Mazza v. City Of BostonMazza v. City Of Boston
MEMORANDUM & ORDER
GORTON, J.
This action arises out of a purported wrongful conviction for murder. Pending before the Court are 1) a motion of defendant, the City of Boston (“the City“), to dismiss the complaint; 2) a motion of plaintiff, Anthony Mazza (“plaintiff“), to compel the City to accept service on behalf of deceased officers and detectives of the Boston Police Department (“BPD“), Edward Kennealy, James Malamphy, Jerome McCallum, John Murray, Frank Olbrys, John Spencer, Edward Sherry, and George Whitley (collectively, “the officers“); and 3) a motion of plaintiff to extend the time for service of process.
For the reasons that follow, the motion to dismiss will be allowed, in part, and denied, in part; and the motions to serve and to extend time for service will be denied.
I. Background
In 1972, Peter Armata was robbed and murdered in an apartment belonging to Robert Anderson (“Anderson“). Four days later, police arrested Anderson and charged him with the murder. After his arrest, Anderson spoke with two BPD detectives, Edward Sherry and Jerome McCallum, and inculpated plaintiff. Plaintiff was subsequently charged with murder.
After plaintiff‘s arrest, BPD detectives Frank Olbrys and Edward Kennealy interviewed Anderson‘s brother, William. During that interview, he claimed that Anderson, not plaintiff, was responsible for
Two decades later, in the 1990s, plaintiff learned of the statements Anderson‘s brother had made to the police that incriminated Anderson and exculpated plaintiff. After a convoluted legal dispute, plaintiff received a transcript of the statement in 2005. Based on that statement, the SJC granted plaintiff a new trial in 2020. See Commonwealth v. Mazza, 142 N.E.3d 579, 581 (Mass. 2020). The Commonwealth, however, declined to re-prosecute the charge and plaintiff succeeded in having the conviction expunged from his record.
In 2024, plaintiff filed a complaint in this Court against the City and the officers, all of whom plaintiff avers are deceased. Plaintiff asserts six counts against the City and the officers, all brought under
Now, the City moves to dismiss these claims for lack of subject matter jurisdiction under
II. Motion to Dismiss for Lack of Subject Matter Jurisdiction
The City first moves to dismiss for lack of subject matter jurisdiction because it claims plaintiff has no standing to hold the City directly responsible for the officers’ actions by way of indemnification. Plaintiff, in his opposition to that motion, does not directly challenge the assertion of lack of standing but instead suggests that his indemnification claim is “mere surplusage” that the Court can disregard.
Generally, an opposition to a motion to dismiss is “not the proper vehicle” to alter the allegations made in a complaint. Michel v. LoanCare, LLC, No. CV 21-11018-FDS, 2022 WL 355866, at *7 n.7 (D. Mass. Feb. 7, 2022). On at least one occasion, however, another session of this Court has allowed a plaintiff in a reply to a motion to dismiss to clarify his complaint. Johnson v. Brown & Williamson Tobacco Corp., 122 F. Supp. 2d 194, 208 n.1 (D. Mass. 2000). In Johnson, plaintiff‘s complaint had alleged a claim of “true conspiracy” in addition to “joint liability” against defendant. Id. In response to defendant‘s motion to dismiss, plaintiff clarified that he sought only to claim a “joint liability civil conspiracy.” Id. The Court treated the “true conspiracy” aspect of plaintiff‘s complaint as “mere surplusage.” Id.
Plaintiff‘s complaint here expressly alleges that the City is “obligated to indemnify” the officers. Given that his response to the City‘s motion unambiguously disclaims any right to indemnification, this Court will follow the logic in Johnson and accept those allegations as mere surplusage and hereinafter disregard them. See 122 F. Supp. 2d at 208 n.1. It remains only to determine whether the balance of plaintiff‘s complaint, absent a claim against the City for indemnification, states a viable claim at law. See Garcia v. Fantauzzi, 20 F.2d 524, 527 (1st Cir. 1927) (recognizing that even where complaint is “imperfectly drawn and contains superfluous and irrelevant allegations . . . [a] general demurrer [i.e., a motion to dismiss] cannot be sustained . . . if, fairly construing the complaint, a case is stated“).
III. Motion to Dismiss for Failure to State a Claim
The City next moves to dismiss plaintiff‘s complaint for failure to state a claim. Because that motion concerns only claims brought against the City, the Court also disregards Counts 1 through 6 against the officers, the BPD and any other defendants individually, and addresses only the
To survive a motion to dismiss, a plaintiff complaint must contain factual matter sufficient to state a claim for relief that is actionable as a matter of law and “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible if, after accepting as true all non-conclusory factual allegations, the Court can draw the reasonable inference that the defendant is liable for the misconduct alleged. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). In considering the merits of a motion to dismiss, the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff‘s favor. R.G. Fin. Corp. v. Vergara-Nunez, 446 F.3d 178, 182 (1st Cir. 2006).
The requirements for bringing a
[A] municipality cannot be held solely liable because it employs a tortfeasor [and thus] cannot be held liable under
§1983 on a respondeat superior theory [for the actions of its agents, employees, officers, or the like].
Id. at 691 (emphasis in original). A municipality can, however, be held liable if an “official policy” or practice of the municipality “cause[d] an employee to violate another‘s constitutional rights.” Id. (internal quotations omitted). This limitation on municipal liability under
A. Direct Liability Against the City
Plaintiff‘s
B. Indirect Liability Under Monell
In addition to his assertion of direct liability against the City, plaintiff contends, in Counts 1 through 4 and 6, that the alleged violations of his constitutional rights result from 1) the City‘s policies, regulations and procedures and 2) the City‘s practices in failing to train and supervise its officers. Cf. Haley v. City of Boston, 657 F.3d 39, 51-52 (1st Cir. 2011) (recognizing claims based on policies and allegations of failure to train and supervise as separate forms of Monell liability). For reasons that are unclear, plaintiff asserts claims against the City‘s policies and practices in Counts 1 through 4 and 6 but limits its reference to a ”Monell claim” to Count 6. Nevertheless, the effect of these allegations is an expansive, multi-part Monell claim. See Torres Ramirez v. Bermudez Garcia, 898 F.2d 224, 226–27 (1st Cir. 1990) (“It is not fatal to a complaint that a legal theory has been mischaracterized.“).
1. Alleged Unconstitutional Policies
To successfully impose Monell liability on a municipality for its policies and practices, a plaintiff must first show that the alleged deprivation of constitutional rights occurred as a result of the municipality‘s “policy or custom.” DiRico v. City of Quincy, 404 F.3d 464, 468–69 (1st Cir. 2005); Freeman v. Town of Hudson, 714 F.3d 29, 38 (1st Cir. 2013) (quoting Monell, 436 U.S. at 694). This in effect requires proof of a causative link between the municipality‘s policy or practice and the harm the plaintiff alleges. See Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir. 1989) (collecting cases requiring causative link). The plaintiff must also demonstrate that
[The] municipal decisionmakers knew or should have known [that the policy was inadequate but] nonetheless exhibited deliberate indifference to the unconstitutional effects of those inadequacies.
Echavarria v. Roach, 565 F. Supp. 3d 51, 91 (D. Mass. 2021) (quoting Gray v. Cummings, 917 F.3d 1, 14 (1st Cir. 2019)).
Here, plaintiff contends that officers withheld exculpatory evidence from him, namely the statement made by Anderson‘s brother, conspired to prosecute and deprive him of his rights, and failed to intervene on his behalf. Regarding the witness statement, plaintiff blames his conviction on the City, whose policies, regulations, rules, and practices he alleges were prejudicial. Moreover, plaintiff claims that municipal authorities had notice of police misconduct yet allowed it to continue with deliberate indifference to the harm caused.
Contrary to the City‘s assertion, plaintiffs are not required to detail the alleged unconstitutional policies with specificity at the pleading stage. Compare Cosenza v. City of Worcester, 355 F. Supp. 3d 81, 91 (D. Mass. 2019) (finding sufficient facts to allege Monell claim under Haley where plaintiff alleged that a widespread policy caused constitutional violations), with McClinton v. City of Boston, No. CV 19-11235-LTS, 2020 WL 1245307, at *2 (D. Mass. Mar. 16, 2020) (finding insufficient facts to allege Monell claim under Haley where plaintiff failed to connect his constitutional violation to allegations of any municipal policy or practice).
2. Alleged Failure to Train and Supervise
To demonstrate a Monell claim based on a failure to train, a plaintiff must show that
[M]unicipal decisionmakers either knew or should have known that training was inadequate but nonetheless exhibited deliberate indifference to the unconstitutional effects of those inadequacies.
Haley, 657 F.3d at 52. Deliberate indifference typically requires a “pattern of similar constitutional violations.” Aprileo v. Clapprood, No. 3:21-CV-30114-MGM, 2024 WL 3430855, at *9 (D. Mass. May 21, 2024) (citing Connick v. Thompson, 563 U.S. 51, 62 (2011)), report and recommendation adopted, No. CV 21-30114-MGM, 2024 WL 3665802 (D. Mass. Aug. 6, 2024); Hill v. Walsh, 884 F.3d 16, 24 (1st Cir. 2018). Thus, “isolated instances of unconstitutional activity” are often “insufficient to establish . . . deliberate indifference.” Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir. 1994).
Plaintiff here claims that the officers’ unconstitutional actions resulted from the City‘s failure properly to train and supervise its officers on appropriate procedures, namely the proper handling of evidence and witness interviews. Cf. Haley, 657 F.3d at 51-52 (recognizing claims based on failure to train and supervise as alternative argument to claim of unconstitutional policy under Monell). Plaintiff contends that the City was responsible for training its officers and that the City‘s failure adequately to train or supervise them caused the alleged unconstitutional withholding of evidence.
Such allegations, unlike plaintiff‘s more general claims with respect to the City‘s policies, fail to survive the City‘s motion to dismiss. Plaintiff has not alleged anything that would amount to “deliberate indifference,” as the First Circuit has defined it. See Maldonado-Denis, 23 F.3d at 582. Specifically, his complaint fails to allege that his harm is related in any way to a history of recurring rights violations, nor does he claim another instance of an unconstitutional withholding of evidence or improper
Because failure-to-supervise claims are subject to the same stringent standard as failure-to-train claims, plaintiff‘s allegation that the City is liable for failure to supervise is equally unavailing. See Consolo v. George, 835 F. Supp. 49, 51 n.1 (D. Mass. 1993) (“Although the Supreme Court cases only discuss failure to train claims, this Court has held that the same standard is equally applicable to failure to supervise.“). Allegations of one‘s own injury, unmoored from a pattern of conduct by the municipality, thus cannot support a Monell claim on a theory of failure either to train or supervise. Cf. Haley, 657 F.3d 39 at 52 (finding Monell claim for failure to train and supervise plausible based on “volume of [similar] cases“).
III. Motion to Serve
Plaintiff next moves to compel the City to accept service of process on behalf of the officers. Under the statute plaintiff cites, a claim of personal injury brought against a deceased individual can be served on that individual‘s personal representative if the action is filed within one year of the individual‘s death.
1) [T]he action is commenced not later than 3 years after the . . . action accrues [and] 2) any judgment recovered . . . [will] only be satisfied from the proceeds of a policy of liability bond or liability insurance.
[N]ame the decedent[s] as the defendant[s] [directly, and] any service of process that may be necessary [can effectively be] made upon the entity providing the [liability] insurance or bond.
There is no dispute here among the parties that plaintiff‘s action, a
A. Form of Indemnification
The parties dispute at the outset the form of indemnification applicable to the City. Massachusetts law provides two forms of indemnification to which municipalities may be subject. Under
[M]ay indemnify public employees . . . from personal financial loss [that arises out of any claim based on violations] of the civil rights of any person under any federal or state law.
(emphasis added). It is well settled that this form of indemnification is permissive such that a municipality can choose to indemnify the individual but is not obligated to do so. See Triplett v. Town of Oxford, 791 N.E.2d 310, 315 (Mass. 2003) (indicating that municipalities have “discretion to indemnify public employees” under §9). By contrast, under
Here, plaintiff‘s complaint asserts that indemnification under §13 applies, while the City‘s motion to dismiss contends §9 is applicable. After due consideration, the Court concludes there is no support for plaintiff‘s assertion. Plaintiff in fact later produced an agreement demonstrating that the CBA indemnifies police officers only “to the extent permitted by
Nevertheless, plaintiff contends that the language in the CBA indemnifying officers to the extent allowed by §9 imposes mandatory indemnification on the City. To the contrary, however, that language makes indemnification permissive, not mandatory, and permits the City to indemnify or not on a case-by-case basis. Cases from other sessions of this Court and state court have interpreted nearly identical provisions similarly. See Williams v. City of Brockton, No. CIV.A. 12-10430-JGD, 2013 WL 254778, at *8 (D. Mass. Jan. 23, 2013) (finding contractual provision that required “indemnification . . . as per
Moreover, the CBA itself precludes reading its §9 indemnification as mandatory. If the CBA had intended make indemnification mandatory, it could have so provided by relying on §13 or otherwise. It did not do so, and this Court cannot read into the CBA a more extensive indemnification than the parties bargained for. See McCormick v. Lischynsky, 539 F. Supp. 3d 225, 243 (D. Mass. 2021) (recognizing that courts “may not read into an agreement terms that are not reasonably encompassed by the language of the agreement itself“). In the absence of a specific disclaimer of discretion, the City retains it. See Williams, 2013 WL 254778, at *4 (finding claim that §9 “mandates indemnification” to be “inconsistent with the statutory language“); see also Stull v. Town of Weymouth, No. CIV.A. 11-11549-JLT, 2013 WL 5592605, at *6 (D. Mass. Oct. 9, 2013)
B. Indemnification as a Liability Bond
Having determined that the City is subject only to the discretionary form of indemnification under §9, the only remaining question is whether such indemnification is a “liability bond” for purposes of
Different sessions of this Court have concluded that indemnification under §13 is a “policy of liability bond” for purposes of
As applied to §9 indemnification, however, this session finds the interpretation of “liability bond” in Rosario to be inconsistent with the prevailing meaning of liability bond. The term liability bond has long been defined as a promise to pay a victim directly for a wrongdoer‘s alleged harm. In re Opinion of the Justs., 147 N.E. 681, 686 (Mass. 1925); Flaherty v. Travelers Ins. Co., 340 N.E.2d 888, 890 n.1 (Mass. 1976). Indemnification, by contrast, creates a promise to reimburse the wrongdoer after the victim has already brought a claim and held him responsible for the injury he caused, not to pay the victims themselves. Rathbun v. W. Massachusetts Elec. Co., 479 N.E.2d 1383, 1385 (Mass. 1985); Stull v. Town of Weymouth, No. CIV.A. 11-11549-JLT, 2013 WL 5592605, at *6 (D. Mass. Oct. 9, 2013); see Barry v. Keeler, 76 N.E.2d 158, 165 (Mass. 1947) (collecting cases). This distinction has long been recognized by other jurisdictions. See, e.g., Twichell v. Hetzel, 64 P.2d 557, 560 (Kan. 1937) (contrasting promise to indemnify with “liability bond“); Gooschin v. Mercer Cas. Co., 34 P.2d 435, 436 (Wash. 1934) (same); Fenton v. Poston, 195 P. 31, 33 (Wash. 1921) (same); see also, e.g., Tulchinsky v. Pub. Serv. Mut. Cas. Ins. Corp., 282 N.Y.S. 944, 946 (App. Div. 1935) (distinguishing between promise to indemnify and promise of liability coverage).
Given the distinction between the accepted legal definitions of liability bond and indemnification, it would be inconsistent with the plain text of the statute to read “liability bond” as encompassing a promise to indemnify. See Ellis v. Ford Motor Co., 628 F. Supp. 849, 854 (D. Mass. 1986) (assuming legislature intends for statutory terms to be read consistently with their accepted legal meaning); see also Benitez-Pons v. Com. of Puerto Rico, 136 F.3d 54, 64 (1st Cir. 1998) (indicating courts cannot “read into [statutes] a meaning that directly conflicts with the intent of the legislature“). Indeed, it is not for this Court to insert promises of indemnification into
Because the City does not owe the officers a liability bond for their alleged actions, the requirements for service under
IV. Motion to Extend Time for Service
Plaintiff finally moves for an extension of time to complete service. Under
[W]hen the plaintiff‘s failure to complete service in timely fashion is a result of a third person . . . the defendant has evaded service of the process or engaged in misleading conduct, [or] the plaintiff has acted diligently in trying to effect service or there are understandable mitigating circumstances[.]
McIsaac v. Ford, 193 F. Supp. 2d 382, 383 (D. Mass. 2002) (quoting Wright & Miller, 3 Federal Practice & Procedure §1137 (2002)). Even in the absence of good cause, a court may still “exercise its discretion to enlarge the time for service.” Bell v. Rinchem Co., Inc., 2014 WL 11290899, at *4 (D. Mass. Mar. 10, 2016).
Here, plaintiff concedes that the officers themselves cannot be served because they have all been deceased for more than one year. Nevertheless, plaintiff claims that there is good cause to extend the deadline for serving process based on his argument that the City is the appropriate recipient of service on behalf of the officers. As determined above, however, the City is not required to accept such service and there is no other entity available. Accordingly, there is no reason to extend the time for plaintiff to effectuate service.
ORDER
For the foregoing reasons:
- The City‘s motion to dismiss (Docket No. 8) is:
- as to Count 5 and all aspects of Counts 1 through 4 and Count 6 that allege claims against the City under respondeat superior and for failure to train and supervise under Monell, ALLOWED, but
- as to all other aspects of Counts 1 through 4 and Count 6 that allege liability against the City under Monell based on constitutional violations resulting from the City‘s deliberate indifference to known widespread policies, DENIED.
- Plaintiff‘s motion to serve (Docket No. 13) is DENIED.
- Plaintiff‘s motion for extension of time for service (Docket No. 22) is DENIED.
So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated: October 15, 2024