Denicola v. Potter

• Decision Date: 30 June 2020
• Docket Number: Civil Action No. 19-cv-11391-ADB
• Parties: JOHN DENICOLA, Plaintiff, v. CHERYL P. POTTER, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

JOHN DENICOLA, Plaintiff, v. CHERYL P. POTTER, et al., Defendants.

Civil Action No. 19-cv-11391-ADB

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

June 30, 2020

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS AND MOTION FOR JUDGMENT ON THE PLEADINGS

BURROUGHS, D.J.

John DeNicola ("Plaintiff"), appearing pro se, brings this action against Quincy Police Officer Cheryl P. Potter ("Potter"), Quincy District Court Assistant Clerk Magistrate James Comerford ("Comerford"), and Quincy District Court Clerk Magistrate Arthur Tobin ("Tobin" and, collectively, "Defendants"), alleging violations of his First, Fourth, and Fourteenth Amendment rights in connection with charges brought against him under the Massachusetts wiretap statute. [ECF No. 7 ("Am. Compl.")]; Mass. Gen. Laws. ch. 272, § 99. Currently before the Court is Comerford and Tobin's motion to dismiss, [ECF No. 26], and Potter's motion for judgment on the pleadings, [ECF No. 30]. For the reasons set forth below, Comerford and Tobin's motion, [ECF No. 26], and Potter's motion, [ECF No. 30], are all GRANTED.¹

I. BACKGROUND

A. Factual Background

For purposes of this Order, the relevant facts are drawn from Plaintiff's amended complaint, [Am. Compl.], and documents referred to in the complaint, and viewed in the light most favorable to Plaintiff. See Ruivo v. Wells Fargo Bank, N.A., 766 F.3d 87, 90 (1st Cir. 2014) (citations omitted).²

Plaintiff's amended complaint sets forth limited factual allegations:

On 12/31/18 Officer Potter and James Comerford filed [a] felony wiretapping complaint . . . against plaintiff at 2:22 pm for trying to file a complaint against a court employee of Quincy District Court. . . . On 01/03/19 Clerk Magistrate Tobin issued the charges at 12:12:54 pm against plaintiff.

[Am. Compl. at 4, 6, 8].³

A police report written by Potter indicates that Plaintiff called the Quincy District Courthouse on December 31, 2018 and spoke with three different employees, includingComerford. [ECF No. 32-1 at 1-2].⁴ According to Potter's report, Plaintiff told the first employee he spoke with that he was recording the call. [Id. at 2]. Comerford, the third individual with whom Plaintiff spoke during that same call, told Potter that Plaintiff did not inform Comerford that he was recording the call until after they had spoken for a period of time. [Id. at 1].⁵ Once Plaintiff told Comerford that he had been recording the call, the report states that Comerford informed Plaintiff "that he did not have [Comerford's] permission to record [the call] and that he would be contacting the Quincy Police Department." [Id. at 1-2].

In her report, Potter recommended follow up from the "BCI," Quincy Police Department's Bureau of Criminal Investigations. [ECF No. 32-1 at 2; ECF No. 31 at 5]. On January 3, 2019, Tobin "approved" the report, [ECF No. 32-1 at 3], and on January 16, 2019, Plaintiff was issued a notice of an application for a criminal complaint for violation of Massachusetts General Laws ch. 272, § 99, [id. at 4]. On June 12, 2019, the criminal complaint was dismissed at the request of the Quincy Police Department. [Id. at 5].

B. Procedural Background

Plaintiff filed his original complaint on June 24, 2019. [ECF No. 1]. On July 29, 2019, Plaintiff filed an amended complaint. [Am. Compl.]. Plaintiff subsequently moved to amend his complaint again, [ECF No. 12], which the Court denied, [ECF No. 14]. In its Order denying the motion to amend, the Court construed Plaintiff's amended complaint, which alleges violations of Plaintiff's First, Fourth, and Fourteenth Amendment rights, as asserting claims under 42 U.S.C.§ 1983. [Id. at 3 n.2 ("[A] litigant complaining of a violation of a constitutional right does not have a direct cause of action under the United States Constitution but [rather] must utilize 42 U.S.C. § 1983." (quoting Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001))]. The Court allowed Plaintiff to proceed with his claims against Defendants in their individual capacities only, finding that allowing an amendment to add official capacity claims would be futile. [Id. at 3].

On September 20, 2019, Comerford and Tobin filed a motion to dismiss the amended complaint under Rule 12(b)(6), [ECF No. 26], and on October 3, 2019, Potter filed a motion for judgment on the pleadings under Rule 12(c), [ECF No. 30]. Plaintiff filed his opposition to each. [ECF Nos. 28, 29, 32, 33].⁶

II. LEGAL STANDARD

In reviewing a motion to dismiss under Rule 12(b)(6), the Court must accept as true all well-pleaded facts, analyze those facts in the light most favorable to the plaintiff, and draw all reasonable factual inferences in favor of the plaintiff. See Gilbert v. City of Chicopee, 915 F.3d 74, 80 (1st Cir. 2019) (citations omitted). "[D]etailed factual allegations" are not required, but the complaint must set forth "more than labels and conclusions," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), and must contain "factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory," Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quoting Centro Médico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)). The alleged facts must be sufficient to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570.

"To cross the plausibility threshold a claim does not need to be probable, but it must give rise to more than a mere possibility of liability." Grajales v. P.R. Ports Auth., 682 F.3d 40, 44-45 (1st Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "A determination of plausibility is 'a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Id. at 44 (quoting Iqbal, 556 U.S. at 679). "[T]he complaint should be read as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible . . . ." Hernandez-Cuevas v. Taylor, 723 F.3d 91, 103 (1st Cir. 2013) (quoting Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 14 (1st Cir. 2011)). "The plausibility standard invites a two-step pavane." A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013) (citing Grajales, 682 F.3d at 45). First, the Court "must separate the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited)." Id. (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir.2012)). Secondly, the Court "must determine whether the remaining factual content allows a 'reasonable inference that the defendant is liable for the misconduct alleged.'" Id. (quoting Morales-Cruz, 676 F.3d at 224).

"A Rule 12(c) motion for judgment on the pleadings 'is treated much like a Rule 12(b)(6) motion to dismiss.'" Santiago v. Bloise, 741 F. Supp. 2d 357, 360 (D. Mass. 2010) (quoting Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008)). "[T]o survive a Rule 12(b)(6) motion (and, by extension, a Rule 12(c) motion) a complaint must contain factual allegations that 'raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true . . . .'" Perez-Acevedo, 520 F.3d at 29 (quoting Twombly, 550 U.S. at 555). "Because a Rule 12(c) 'motion calls for an assessment of the merits of the case at an embryonic stage, the court must view the facts contained in the pleadings in the light most favorable to the nonmovant and draw all reasonable inferences therefrom' in the nonmovant's favor." Santiago, 741 F. Supp. 2d at 360 (quoting R.G. Financial Corp. v. Vergara-Nunez, 446 F.3d 178, 182 (1st Cir. 2006)).

"Like Rule 12(b)(6), Rule 12(c) does not allow for any resolution of contested facts; rather, a court may enter judgment on the pleadings only if the uncontested and properly considered facts conclusively establish the movant's entitlement to a favorable judgment." Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54 (1st Cir. 2006) (quoting Rivera-Gomez v. De Castro, 843 F.2d 631, 635 (1st Cir. 1988)). "[T]he court may not grant a defendant's Rule 12(c) motion 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Rivera-Gomez, 843 F.2d at 635 (quoting George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2d Cir. 1977)).

Although a defendant may have "moved for judgment on the pleadings pursuant to Rule 12(c) . . . , it is well established that the Court may apply to said rule the applicable standard of review of a Rule 12(b)(6) motion to dismiss." Ramirez-Averasturi v. Rivera Gonzalez, No. 03-cv-02360, 2005 U.S. Dist. LEXIS 33001, at *6-7 (D.P.R. Sep. 8, 2005); see Oses v. Vose, No. 90-cv-11642, 1994 U.S. Dist. LEXIS 13039, at *5 (D. Mass. Aug. 9, 1994) ("Although defendant's motion is couched as a motion for judgment on the pleadings under Fed. Rule Civ. P. 12(c), in essence the [m]otion challenges the legal foundation for the complaint. The motion is therefore subject to the same standard of review as a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)."). Here, the Court will construe Potter's Rule 12(c) motion, which adopts the majority of the arguments made in Comerford and Tobin's Rule 12(b)(6) motion, [ECF No. 31 at 2-3], as a Rule 12(b)(6) motion to dismiss. See Whiting v. Maiolini, 921 F.2d 5, 6 (1st Cir. 1990) ("The district court was acting within its discretion in converting [defendants'] Rule 12(c) motion for judgment on the pleadings to a 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.").

III. DISCUSSION

Plaintiff alleges that Defendants violated his First, Fourth, and Fourteenth Amendment rights when they filed and approved a complaint against Plaintiff in retaliation "for trying to file a complaint against a court employee of Quincy District...