Afrasiabia v. Awad

• Decision Date: 14 September 2015
• Docket Number: CIVIL ACTION NO. 14-10239-PBS
• Parties: KAVEH L. AFRASIABIA, Plaintiff, v. TAMERLAN AWAD, CHRISTINE MOSER, ALEXANDRA MOSER, CAMBRIDGE POLICE DEPARTMENT, OFFICER ANN DIMASCIO, OFFICER JOHN CROWLEY, ANONYMOUS CAMBRIDGE POLICE OFFICERS and CITY OF CAMBRIDGE, Defendants.
• Court: U.S. District Court — District of Massachusetts

KAVEH L. AFRASIABIA, Plaintiff, v. TAMERLAN AWAD, CHRISTINE MOSER, ALEXANDRA MOSER,CAMBRIDGE POLICE DEPARTMENT, OFFICER ANN DIMASCIO,OFFICER JOHN CROWLEY, ANONYMOUS CAMBRIDGE POLICE OFFICERSand CITY OF CAMBRIDGE, Defendants.

CIVIL ACTION NO. 14-10239-PBS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

September 14, 2015

REPORT AND RECOMMENDATION RE: DEFENDANTS CITY OF CAMBRIDGE, OFFICER ANN DIMASCIO, OFFICER JOHN CROWLEY AND CAMBRIDGE POLICE DEPARTMENT'S MOTION TO DISMISS (DOCKET ENTRY # 37); DEFENDANTS CITY OF CAMBRIDGE'S, OFFICER JOHN CROWLEY'S AND OFFICER ANN DIMASCIO'S MOTION TO DISMISS (DOCKET ENTRY # 52)

BOWLER, U.S.M.J.

This action arises out of several arrests of plaintiff Kaveh L. Afrasiabia ("plaintiff") by patrol officers of the Cambridge Police Department beginning in June 2010. Defendant City of Cambridge ("the City") moves to dismiss the intentional tort claims in an amended complaint under Fed.R.Civ.P. 12(b)(6) ("Rule 12(b)(6)") as subject to its sovereign immunity pursuant to section 10(c) ("section 10(c)") of Massachusetts General Laws chapter 258 ("chapter 258"). The claims arising out of the June2010 arrest are also subject to dismissal as untimely, according to the City. The City also seeks to dismiss the federal civil rights violations in Count Three due to the absence of any unconstitutional policy or custom. (Docket Entry # 52).

Defendants John Crowley ("Crowley") and Ann Dimascio ("Dimascio"), respectively a detective and a patrol officer with the Cambridge Police Department, move to dismiss the claims against them under Fed.R.Civ.P. 12(b)(5) ("Rule 12(b)(5)") due to insufficient service of process. (Docket Entry ## 37, 52).¹ Defendant Cambridge Police Department ("the Department") moves to dismiss the claims against it under Rule 12(b)(6) because it is not a legal entity subject to suit separate and apart from the City. (Docket Entry # 37). On August 19, 2015, this court heard oral argument on the motions (Docket Entry ## 37, 52)² and on September 9, 2015, conducted an evidentiary hearing on the issue of service of process of the amended complaint on Crowley or Dimascio.

PROCEDURAL BACKGROUND

Plaintiff filed the original complaint on February 19, 2014, against Christine Moser and defendant Tamerlan Awad ("Awad"). On November 4, 2014, plaintiff filed the amended complaint (Docket Entry # 27) which, as subsequently determined by a prior magistrate judge (Docket Entry # 42), was filed as a matter of right.³ On December 15, 2014, the City, the Department, Crowley and Dimascio filed the first motion to dismiss. (Docket Entry # 37). Thereafter, plaintiff sought and this court allowed plaintiff to attempt to serve five new summonses, as requested by plaintiff in an emergency motion. (Docket Entry # 39). On April 27, 2015, the summonses were returned and filed as "executed" with respect to the City, Crowley and Dimascio. (Docket Entry ## 59, 60, 61). As noted above, Crowley and Dimascio move to dismiss the amended complaint under Rule 12(b)(5) given the continued lack of service. (Docket Entry ## 37, 52). The City seeks dismissal of the amended complaint under Rule 12(b)(6) and the Department continues to assert it is not subject to suit as an entity separate from the City. (Docket Entry # 52).

The amended complaint sets out the following counts: (1) malicious abuse of process (Count One); (2) malicious prosecution(Count Two); (3) violations of 42 U.S.C. § 1983 ("section 1983") and a conspiracy to violate plaintiff's constitutional rights under 42 U.S.C. § 1985 ("section 1985") (Count Three); (4) false arrest and imprisonment (Count Four); (5) assault (Count Five); (6) intentional infliction of emotional distress (Count Six); (7) "unintentional infliction of emotional distress" (Count Seven); and (8) defamation of character (Count Eight). Because the record subject to review under Rule 12(b)(5) for insufficient service includes affidavits and documents not included in the Rule 12(b)(6) record, this court considers the Rule 12(b)(5) and the Rule 12(b)(6) motions separately and summarizes the record accordingly.

I. Rule 12(b)(6) Motions (Docket Entry ## 37, 52)

The City and the Department each move to dismiss the amended complaint under Rule 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, the amended complaint must include factual allegations that when taken as true demonstrate a plausible claim to relief even if actual proof of the facts is improbable. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-558 (2007); accord Mulero-Carrillo v. Roman-Hernandez, 790 F.3d 99, 104 (1^st Cir. 2015) (plaintiffs "survive a Rule 12(b)(6) motion to dismiss only if their pleadings plausibly establish that they are entitled to relief"). Thus, while "not equivalent to a probability requirement, the plausibility standard asks for more than a sheerpossibility that a defendant has acted unlawfully." Boroian v. Mueller, 616 F.3d 60, 65 (1^st Cir. 2010) (internal quotation marks omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint . . . has not shown that the pleader is entitled to relief." Feliciano-Hernandez v. Pereira-Castillo, 663 F.3d 527, 533 (1^st Cir. 2011) (internal quotation marks and citations omitted). Discarding legal conclusions and taking the facts in the amended complaint as "true and read in a plaintiff's favor," the complaint "must state a plausible, but not a merely conceivable, case for relief." Sepúlveda-Villarini v. Dept. of Education of Puerto Rico, 628 F.3d 25, 29-30 (1^st Cir. 2010).

In evaluating a Rule 12(b)(6) motion, the court may consider a limited category of documents outside the amended complaint without converting the motion into one for summary judgment. Such documents include public records and documents sufficiently referred to in the amended complaint. See Butler v. Balolia, 736 F.3d 609, 611 (1^st Cir. 2013) (supplementing facts in complaint "by examining 'documents incorporated by reference into the complaint, matters of public record, and facts susceptible to judicial notice'"); Freeman v. Town of Hudson, 714 F.3d 29, 36 (1^st Cir. 2013) (court may consider "'official public records; documents central to plaintiffs' claim; and documents sufficiently referred to in the complaint'") (ellipses andbrackets omitted). As to the former, a court may take judicial notice of complaints filed in related cases. See E.I. Du Pont de Nemours & Co., Inc. v. Cullen, 791 F.2d 5, 7 (1^st Cir. 1986) (federal court may take judicial notice of complaint filed in related case even though neither party "placed the complaint in the record"); Fed.R.Evid. 201(b). As further explained in E.I. Du Pont, "'Federal courts, in appropriate circumstances, may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.'" Id. (quoting St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10^th Cir. 1979), in parenthetical with brackets omitted). The amended complaint refers to the proceedings regarding plaintiff's arrests and the criminal dockets filed by plaintiff are therefore part of the Rule 12(b)(6) record either as matters of public record or documents sufficiently referred to in the amended complaint.

A complaint also includes any documents attached to it. Fed.R.Civ.P. 10(c) ("an exhibit to a pleading is part of the pleading for all purposes"). The amended complaint served on Crowley and Dimascio (Docket Entry # 53-2) attached exhibits that are not attached to the amended complaint filed by plaintiff as of right (Docket Entry # 27). The exhibits, however, fall under the above exceptions and it is therefore not necessary to address the discrepancy. The only exhibit that does not fall within anexception, a July 2010 newspaper article showing the dismissal of an arrest warrant for an unpaid motor vehicle ticket (Docket Entry # 52-2, p. 35), includes information already set out in the amended complaint (Docket Entry # 27, ¶ 1).

Adhering to the foregoing framework and construing the facts in plaintiff's favor, the record with respect to the Rule 12(b)(6) motions to dismiss (Docket Entry ## 37, 52) is as follows.

FACTUAL BACKGROUND

Plaintiff, a former member of the "faculty at Boston University, Framingham State College and Tehran University," graduated from Boston University with a "Ph.D. in political science." (Docket Entry # 17). In or around April 1996, an arrest warrant issued out of the Massachusetts District Court Department, Newton Division. The warrant stemmed from a charge of operating a motor vehicle without a license. (Docket Entry # 27, ¶ 1) (Docket Entry # 53-1, p. 34).⁴ In May 1996, plaintiff paid the fine.

In June 2010, however, Cambridge police arrested plaintiff and incarcerated him overnight based on the 1996 arrestwarrant.⁵ The day after the arrest, Cambridge police transported plaintiff "to court." (Docket Entry # 27, ¶ 1). During transit, plaintiff suffered a "severe head injury," which required "months of medical care." (Docket Entry # 27, ¶ 1). On June 29, 2010, plaintiff was treated at Mount Auburn Hospital ("Mount Auburn") in Cambridge for the head injury. (Docket Entry # 70-2, p. 10).⁶ In dismissing the charges, "a judge stated the record clearly showed [plaintiff] had paid the fine back in May, 1996 and there was no basis for his arrest." (Docket Entry # 27). In November 2010, the City "agreed to cover $25000.00 of Afrasiabia's medical expense[s]." (Docket Entry # 27) (Docket Entry # 53-1, p. 16). Cambridge police officers "were incensed by [plaintiff's] prior criticisms of the Cambridge Police in the aftermath of the June 2010 incident." (Docket Entry # 27, ¶ 11).

One year later on June 17, 2011, Dimascio applied for a criminal complaint charging plaintiff with criminal harassment in violation of section 43A(a) of Massachusetts General Laws chapter 265 ("section 43A") and making annoying...