Brown v. Pepe

• Decision Date: 08 September 2014
• Docket Number: Civil Action No. 13–13123–RGS.
• Parties: Manson BROWN v. Joseph PEPE and Curtis Cinelli.
• Court: U.S. District Court — District of Massachusetts

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Manson BROWN
v.
Joseph PEPE and Curtis Cinelli.

Civil Action No. 13–13123–RGS.

United States District Court, D. Massachusetts.

Signed Sept. 8, 2014.

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Joseph G. Donnellan, Rogal & Donnellan, P.C., Norwood, MA, C. Raye Poole, Department of Correction, Legal Division, Boston, MA, for Joseph Pepe and Curtis Cinelli.

MEMORANDUM AND ORDER ON DEFENDANT CINELLI'S MOTION FOR JUDGMENT ON THE PLEADINGS

STEARNS, District Judge.

In this civil rights lawsuit, inmate Manson Brown alleges that defendants Department of Correction (DOC) Lieutenant Joseph Pepe and Massachusetts State Police Trooper Curtis Cinelli forced him to submit to an unconstitutional perp walk¹ while being extradited to Massachusetts from Georgia after being arrested as an escapee. Brown claims violations of his Fourth, Eighth, and Fourteenth Amendment rights. This action is brought pursuant to 42 U.S.C. §§ 1983 and 1985. Trooper Cinelli now moves for judgment on the pleadings.

BACKGROUND²

Brown, a convicted felon, escaped from DOC custody in Massachusetts on November 27, 2009.³ He was recaptured in Decatur,

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Georgia, on January 5, 2010. On January 12, 2010, Lt. Pepe and Trooper Cinelli arrived at the Dekalb County Jail to take custody of Brown to return him to Massachusetts. Before leaving the jail, Pepe and Cinelli placed Brown in hand and leg restraints. They then brought him to an area of the jail where several sheriff's deputies were milling about. While there, Cinelli used the camera of his cell phone to take a “selfie” with Brown, “like [Brown] was a ‘prize catch.’ ” Am. Compl. ¶ 11.

Pepe and Cinelli then escorted Brown through the doors of the main lobby of the jail, rather than through a secluded side sally port, to an area where a gaggle of news media had assembled. Seeing the news cameras, Brown attempted to cover his head with the hood of his sweatshirt. Cinelli pulled the hood back to expose Brown's face. When Brown then tried to duck to shield himself from view, Cinelli and Pepe pulled him back up to face the cameras. Brown growled to the officers, “[Y]ou ain't gonna get your shine off me.” Id. ¶ 12.

Brown alleges that he suffered “extreme humiliation, intense discomfort and emotional distress” from being publicly displayed in this fashion.⁴ Pl.'s Opp'n at 2 (Dkt. # 38). He first brought suit against Pepe, Cinelli, and Sheriff Thomas Brown of Dekalb County, Georgia, in this court on September 10, 2012. See Brown v. Pepe, No. 12–cv–11687 (D.Mass.2012) (Brown I ). Because Sheriff Brown was not a resident of Massachusetts and the incident which formed the basis of the Complaint occurred in Georgia, pursuant to 28 U.S.C. § 1391(b)⁵ , the court (Sorokin, M.J.) determined that the Northern District of Georgia was the proper venue for the lawsuit. See Brown v. Pepe, 2013 WL 3246127, at *3 (D.Mass. June 25, 2013). Brown I consequently was dismissed without prejudice, pursuant to 28 U.S.C. § 1406(a).⁶ Id., at *3–4, Report and Recommendation adopted, 2013 WL 3786464, at *1 (D.Mass. July 17, 2013) (Tauro, J.).

On November 12, 2013, Brown filed a second complaint in the Northern District of Georgia, this time omitting Sheriff Brown as a defendant. See Brown v. Pepe, No. 13–cv–03751 (N.D.Ga.2013) (Brown II ). On Brown's motion, the Georgia court transferred Brown II to this district in December of 2013, pursuant to 28 U.S.C. § 1404(a). Because all of the defendants named in Brown II reside in this district, venue in Massachusetts is now proper. See Dkt. # 2 at 2–3, citing 28 U.S.C. § 1391(b)(1).

DISCUSSION

To impose liability under section 1983, Brown must demonstrate that “(1) [ ] the

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conduct complained of was committed by a person acting under the color of state law; and (2) [that] this conduct deprived [him] of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Gutierrez–Rodriguez v. Cartagena, 882 F.2d 553, 559 (1st Cir.1989), quoting Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds, Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986). Cinelli does not contest that he was acting in his capacity as a Massachusetts State Police Trooper at all times in his dealings with Brown, but contends that he is entitled to qualified immunity because he did not violate any of Brown's “clearly established” constitutional rights.

Qualified immunity attaches to discretionary conduct of government officials that “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ; see also Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (officers immune unless their actions were “clearly proscribed” by established law). “[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness' of the action.” Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The line properly drawn is not between the constitutional and the unconstitutional, but between acts that, although unconstitutional, are nonetheless objectively reasonable, and acts that are unconstitutional on their face. See Cox v. Hainey, 391 F.3d 25, 31 (1st Cir.2004). “The qualified immunity standard ‘gives ample room for mistaken judgments' by protecting ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Rivera v. Murphy, 979 F.2d 259, 263 (1st Cir.1992), quoting Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam ).

In assessing a qualified immunity defense, a court may choose to “first determine whether the plaintiff has alleged a deprivation of an actual constitutional right at all.” Conn v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999). The “threshold” question in this mode of analysis can be stated as follows: “Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? ... If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

The Supreme Court had previously identified a particular value in this order of procedure. “Deciding the constitutional question before addressing the qualified immunity question ... promotes clarity in the legal standards for official conduct, to the benefit of both the officers and the general public.”Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). Saucier elevated this “benefit” into a mandate under which lower courts were always obligated to answer the constitutional question before asking whether the right asserted was “clearly established” law. However, in Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), the Court backed away, acknowledging that “[t]here are circumstances in which the first step of the Saucier procedure may create a risk of bad decisionmaking.” Id. at 239, 129 S.Ct. 808. There are cases “in which a court

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will rather quickly and easily decide that there was no violation of clearly established law before turning to the more difficult question whether the relevant facts make out a constitutional question at all.” Id. A trial court, in other words, is at liberty to proceed in the sequence that seems most appropriate to the facts of the case at hand. Id. at 242, 129 S.Ct. 808. Here, the court will take up the arguably “more difficult question” or whether Brown has alleged a constitutional violation at all.⁷

The constitutionality of the so-called “perp walk” is a matter of first impression in this Circuit. Brown's principal argument is based on an alleged violation of his Fourth Amendment right to be free from “unreasonable ... seizures.” U.S. Const. Amend. IV.⁸ Brown does not contend (nor could he) that he was not lawfully in Pepe's and Cinelli's custody, but rather that his voice and likeness was captured and memorialized against his will, in violation of his right to privacy (no matter how diminished by the fact of lawful custody).⁹

Cinelli does not contest that the Fourth Amendment encompasses seizures of intangibles such as video footage and photographic images. See Caldarola v. Cnty. of Westchester, 343 F.3d 570, 574 (2d Cir.2003) ( “Although [i]t is true that ... at one time ... th[e] [Fourth] Amendment was thought to limit only searches and seizures of tangible property.... [t]he premise that property interests control the right of the Government to search and seize has been discredited.”) (internal quotation marks omitted), citing Katz v. United States, 389 U.S. 347, 352–355, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). However, “Katz teaches that Fourth Amendment protection extends only to situations in which the complaining person had a reasonable and legitimate expectation of privacy.” Amezquita v....