Carr v. Metro. Law Enforcement Council, Inc., CIVIL ACTION NO. 13-13273-JGD

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtDEIN, U.S.M.J.
Docket NumberCIVIL ACTION NO. 13-13273-JGD
Decision Date20 August 2014




August 20, 2014




The plaintiff, Christine Carr, is a resident of the Town of Norfolk, Massachusetts. On January 20, 2011, members of the Metropolitan Law Enforcement Council, Inc. ("MetroLEC"),1 along with Norfolk and Foxborough police officers, executed a search warrant at Ms. Carr's home. During the search, an oil line in the basement was broken by MetroLEC officers, as a result of which a substantial amount of oil was discharged in the basement, and the home was eventually declared uninhabitable. Ms. Carr has brought this action against MetroLEC, its commanding officer Terrence M. Cunningham (individually and in an official capacity), and unknown officers involved in the search,

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alleging violations of her federal and state constitutional rights and negligence. She has also brought suit against the Town of Norfolk alleging negligence under the Massachusetts Tort Claims Act ("MTCA").2 The parties have consented to the Magistrate Judge's final jurisdiction over this case pursuant to 28 U.S.C. § 636(c).

This matter is presently before the court on the "Defendant, Town of Norfolk's, Motion to Dismiss Plaintiff's Complaint" (Docket No. 5) and on the "Defendants, Metropolitan Law Enforcement Council, Inc. and Terrence M. Cunningham's Motion to Dismiss Plaintiff's Complaint" (Docket No. 13). By their motions, the defendants are seeking dismissal of all the claims asserted against them. For the reasons detailed herein, the Town's motion is ALLOWED and the MetroLEC defendants' motion is ALLOWED as to Counts VII and X (intentional infliction of emotional distress) and otherwise DENIED.


When ruling on a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6), the court must accept as true all well-pleaded facts, and give the plaintiff the benefit of all reasonable inferences. See Cooperman v. Individual, Inc., 171 F.3d 43, 46 (1st Cir. 1999). "Ordinarily, a court may not consider any documents that are outside of the complaint, or not expressly incorporated therein, unless the motion is converted into one

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for summary judgment." Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001). "There is, however, a narrow exception 'for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiff['s] claim; or for documents sufficiently referred to in the complaint.'" Id. (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)). Applying this standard to the instant case, this court will consider the presentment letter attached to the Town's Motion to Dismiss and Memorandum (Docket No. 5) as Exhibit A. The facts relevant to the defendants' motions to dismiss are as follows.

The Search Warrant

The events giving rise to this action began on January 19, 2011, when Foxborough police observed a brown motor vehicle with front-end damage, a broken headlight, and an open trunk, leaving a BP gas station around 2:38 a.m. (Compl. ¶13). Police pursued the vehicle but it could not be located. (Id.). Upon further investigation, police found that the gas station had been broken into and a cash register containing two hundred dollars had been stolen. (Id.). At 8:30 a.m. on January 19, 2011, responding to a general police broadcast, Detective Nathan Fletcher of the Norfolk Police Department contacted Detective Brian Gallagher of the Foxborough Police Department with information regarding the car's whereabouts and the identity of the alleged driver. (Id. ¶ 14). He described the car and stated that it was garaged at 4 Daisy Drive, Norfolk, and driven by Stephen Kirby. (Id.). Detective Fletcher also sent Detective Gallagher a photograph of the car, which

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was subsequently identified by the Foxborough officer who had seen the vehicle leaving the BP Gas Station just prior to the discovery of the theft. (Id.).

After the identification of the car, Detective Gallagher had another conversation with Detective Fletcher. Detective Fletcher informed him that an unidentified informant had told him and an FBI agent that Stephen Kirby was a convicted bank robber who had committed many "smash and grab[]" jobs in the past, that he owned two sawed off shotguns, that the house where he was living was "booby trapped" with trip wires, and that he was "not afraid of police and will do what he has to but will not go back to jail." (Id. ¶15).

Later that day, based on the information provided by Norfolk Detective Fletcher, Foxborough Detective Gallagher applied for and obtained a "no knock" "nighttime" warrant to search the real property located at 4 Daisy Drive in Norfolk, Massachusetts (Carr's residence). (Id. ¶16). The warrant was issued by the Wrentham District Court. (Id.)

Execution of the Search Warrant

The warrant was executed by Foxborough and Norfolk police beginning at approximately 2:00 a.m. on January 20, 2011. (Id. ¶ 17). In light of the information about a dangerous situation at the residence, the police requested and received assistance from officers assigned to MetroLEC to do an initial sweep of the residence. (Id.). As detailed more fully infra, MetroLEC is used by a number of local towns to provide specialized police services, including specialized SWAT activities. (See id. ¶¶ 3-4).

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MetroLEC officers, equipped with body armor, automatic weapons and mobile operation units, entered the residence at 4 Daisy Drive pursuant to the authority contained in the search warrant. (Id. ¶ 18). Upon observing "the overwhelming police presence including the MetroLEC SWAT team members," Ms. Carr, the owner of the premises, suffered severe distress and a medical emergency. (Id. ¶ 19). She was taken by ambulance to a local hospital where she was admitted for treatment. (Id.).

The plaintiff has alleged that "[d]uring the execution of the search supervised by an unknown supervising MetroLEC officer, an unknown MetroLEC officer kicked, stepped on and/or destroyed the heating oil line leading to the oil tank in the basement causing heating oil to spill and discharge in and throughout the basement of 4 Daisy Drive." (Id. ¶ 20). The MetroLEC officers then left, and when the local police tried to enter the home to continue the search, they were ordered by their supervisors to leave "because of the overwhelming smell of hazardous oil emanating throughout the house." (Id. ¶ 21). The Norfolk Building Department thereafter condemned the home, and Ms. Carr was not able to return. (Id. ¶¶ 22-23). On June 20, 2013, the home was sold at public auction by the mortgage holder. (Id. ¶ 24).

Additional factual details relevant to this court's analysis are described below.


A. Motion to Dismiss Standard of Review

Motions to dismiss under Rule 12(b)(6) test the sufficiency of the pleadings. Thus, when confronted with a motion to dismiss, the court accepts as true all well-

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pleaded facts and draws all reasonable inferences in favor of the non-moving party. Cooperman, 171 F.3d at 46. Dismissal is only appropriate if the pleadings, so viewed, fail to support "'a plausible entitlement to relief.'" Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95 (1st Cir. 2007) (quoting Bell Atl. Corp v. Twombly, 550 U.S. 544, 559, 127 S. Ct. 1955, 1967, 167 L. Ed. 2d 969 (2007)).

Two underlying principles must guide the court's assessment as to the adequacy of the pleadings to support a claim for relief. Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir. 2009). "'First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the element of a cause of action, supported by mere conclusory statements, do not suffice.' Such conclusory statements are 'not entitled to the assumption of truth.'" Id. (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009)) (internal citations omitted). "Second, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. (quoting Ashcroft, 129 S. Ct. at 1950). "This second principle recognizes that the court's assessment of the pleadings is 'context-specific,' requiring 'the reviewing court to draw on its judicial experience and common sense.' '[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not show[n] - that the pleader is entitled to relief.'" Id. (quoting Ashcroft, 129 S. Ct. at 1950) (internal quotations and citation omitted; alterations in original).

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Count XI of the Complaint is the only count directed to the Town. Therein, Ms. Carr alleges that the Town is liable under the MTCA for negligence or gross negligence because (1) its employees provided false and deceptive information which was...

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