Gross v. Bohn, Civ. A. No. 90-11901-N.
| Decision Date | 17 December 1991 |
| Docket Number | Civ. A. No. 90-11901-N. |
| Citation | 782 F. Supp. 173 |
| Parties | Aaron GROSS, Jr. and Jacqueline Gross, Plaintiffs, v. Robert T. BOHN, et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
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Petere C. Horstmann, F. Lee Bailey, Kenneth J. Fishman, Daniel Patrick Leonard, Bailey, Fishman & Leonard, Boston, Mass., for plaintiffs Aaron Gross, Jr. and Jacqueline Gross.
Edward L. Kirby, Jr., John J. O'Brien, David J. Gorman, Kirby and Associates, Boston, Mass., for defendants Robert T. Bohn, Kevin M. Betts, Vincent Rams, Francis Wohlgemuth, William Gross, John Reed, Town of Stoughton and Peter Gabrielle.
Richard W. Cole, Asst. Atty. Gen., Chief, Civil Rights Div., Boston, Mass., for Com. of Mass.
Nancy Albano, Asst. Corp. Counsel, City of Boston Law Dept., Boston, Mass., for City of Boston and Arthur Morgan, Jr., Deputy Superintendent, Boston Police Dept.
Donna De Simone Buckley, International Broth. of Police Officers, Boston, Mass., for Peter Gabrielle.
After de novo review, without a more complete factual development as to the defendants' actual presence and participation in the events complained of, and having in mind the high standard of dismissal at this stage, I approve and adopt this Report and Recommendation as an ORDER of this court.
REPORT AND RECOMMENDATION RE: DEFENDANT ARTHUR MORGAN, JR.'S MOTION TO DISMISS COUNTS 1, 2, 5, 6 AND 7 OF PLAINTIFFS' COMPLAINT (DOCKET ENTRY # 14); DEFENDANT CITY OF BOSTON'S MOTION TO DISMISS COUNTS 4, 5, 6 AND 7 OF PLAINTIFFS' COMPLAINT (DOCKET ENTRY # 16)
The defendant Arthur Morgan, Jr. ("Morgan") filed a motion on August 27, 1990 to dismiss counts 1, 2, 5, 6, and 7 of the present action for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). (Docket Entry # 14). As grounds for his motion, Morgan argues that the plaintiffs failed to state a claim against him because Morgan did not participate in the arrest of the plaintiff Aaron Gross, Jr. ("Gross") which occurred in Stoughton by Stoughton police officers. The plaintiffs opposed Morgan's motion, asserting that they have set forth sufficient facts to support their claims of civil rights violations by Morgan.
The defendant City of Boston ("City") filed a similar motion with respect to counts 4, 5, 6, and 7 of the plaintiffs' complaint. (Docket Entry # 16). In support of its motion, the City argues the following: (1) the plaintiffs have alleged conclusory claims with insufficient supporting facts; (2) the City cannot be held liable for a policy or custom claim without an underlying violation of constitutional rights by a municipal employee; and (3) the City cannot be held liable for any intentional torts. (Docket Entry # 16). The plaintiffs opposed the City's motion, asserting that they did set forth specific facts to support claims of: (1) a violation of 42 U.S.C. § 1983; and (2) injury caused by official policy or the grossly negligent lack thereof; and (3) violation of Mass.Gen.L. ch. 12, § 11I. (Docket Entry # 20).
The relevant facts as alleged in plaintiffs' complaint are stated as follows. The plaintiff Gross was at all relevant times, a police officer employed by the Boston Police Department and a resident of the town of Stoughton. (Docket Entry # 1, ¶ 3). Plaintiff Gross was stopped by Stoughton police officers in September, 1988 while driving a motor vehicle with Massachusetts registration number 504-KDB in Stoughton, Massachusetts. (Docket Entry # 1, ¶ 15). Gross identified himself as a Boston police officer and was permitted to leave. (Id.). Gross was again stopped in October, 1988, by a different Stoughton police officer. (Id. at ¶ 16). On November 23, 1988, Gross was stopped in the town of Canton, Massachusetts by a Canton police officer. The Canton officer requested backup, and Stoughton police officer, Peter Gabrielle ("Gabrielle") responded. Gross identified himself as a Boston police officer, and Gabrielle inquired whether plaintiff Gross knew defendant Morgan. Gross responded that he did know Morgan, and he was permitted to leave. The officers recorded Gross' registration number. (Id. ¶¶ 17-21, # 10, ¶ 6).
On November 30, 1988, Gross was driving the same vehicle in Stoughton at approximately 1:30 a.m. when he observed two Stoughton police cruisers approach him from behind. Gross pulled over to the side of the road to allow the officers to pass. The two officers stopped, one cruiser pulled diagonally in front of Gross' vehicle and the other pulled up behind him, therefore, preventing Gross' vehicle from moving. (Docket Entry # 1, ¶¶ 22-25). The officers asked Gross for identification, and he supplied his driver's license, his firearms license, his Boston Police badge, and his Boston Police Department identification. (Id. at ¶¶ 26-27). Gross also removed his gun from its holster and placed it on the trunk of his car. (Id. at ¶ 27). A third Stoughton Police officer arrived as backup. The two original officers then informed Gross that he was wanted for murder and that there was a warrant out for his arrest. (Id. at ¶¶ 28-29). The officers stated that the statement was based on a flier picturing a black male. (Id. at ¶ 29). Gross was detained approximately 45 minutes. (Id.).
Defendant Reed, the Stoughton Police Chief, then arrived and identified Gross who was allowed to leave. Subsequently, Gross went to the Stoughton Police Department and met with Reed who assured him that such a situation would not reoccur. (Id. at ¶¶ 31-32). Reed also showed Gross the "flier" at that time. The "flier" pictured Donta Singleton, a former Boston Police Officer, with a vehicle bearing Massachusetts registration number 504-BDZ, a different number than that on Gross' vehicle.1 (Id. at ¶¶ 15 and 32). Plaintiffs allege that defendant Gabrielle prepared the "flier" based upon information obtained from Morgan and that Gabrielle and Reed distributed the "flier" to Stoughton police officers on November 29, 1988 and November 30, 1988, respectively. (Id. at ¶ 33).
At approximately 8:40 p.m. on November 30, 1988, Gross was again pulled over after leaving a restaurant parking lot in Stoughton. (Id. at ¶ 34). Numerous cruisers surrounded Gross, and the police officers had guns drawn and aimed at Gross. (Id. at ¶¶ 34-35). Defendants Bohn and Betts removed Gross from his vehicle, threw him to the ground, pushed his face against the cement, pressed a gun against his back, screamed obscenities at him, pinned his arms, and frisked him. (Id. at ¶¶ 36-38). Gross was then lifted from the ground and thrown against his vehicle. (Id. at ¶ 38). Defendant Morgan then identified the plaintiff as a Boston police officer. Gross then informed Morgan of the earlier stop by the Stoughton police officers and stated his intention to sue the town of Stoughton. (Id. at ¶ 40).
Gross was then handcuffed and placed under arrest. Morgan informed Stoughton police officer Bohn that he "had no choice." (Id. at ¶ 42). Gross' vehicle was then searched in the presence of Morgan. Gross was taken to Stoughton Police Department and subsequently transported to Goddard Memorial Hospital for treatment of injuries sustained during his arrest. (Id. at ¶¶ 3-44). Gross was then returned to the custody of the Stoughton Police Department and was released after posting a bond. (Id. at ¶ 45).
Fed.R.Civ.P. 12(b)(6) requires the court to accept as true all factual allegations outlined in the complaint with all reasonable inferences made in favor of the non-moving party. See generally Miree v. DeKalb County, 433 U.S. 25, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977). Legal conclusions, deductions or opinions, however, are not given a presumption of truthfulness. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981), cert. denied, 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981); see Bryan v. Stillwater Board of Realtors, 578 F.2d 1319, 1321 (10th Cir. 1977) (); Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429 (7th Cir.1978) (). The court may not dismiss the complaint 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." Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (per curiam), reh'g denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)).
Even assuming the truth of the allegations contained in the plaintiffs' complaint, Morgan submits that the plaintiffs' complaint should be dismissed for failure to specifically state facts in support of a civil rights violation. (Docket Entry # 15, pp. 7-8). Morgan contends that although the plaintiff may have a constitutional claim against the Stoughton police officers, the facts, as pleaded, do not involve any unconstitutional activity by defendant Morgan. (Id. at 8). Defendant emphasizes the fact that a Stoughton Police officer, not Morgan, arrested Gross. Morgan further submits that he did all he could under the circumstances by identifying Gross as a Boston Police Officer prior to his arrest.
The basis of plaintiffs' civil rights claim is that the defendant, Morgan, was an essential causal link to the physical injuries and constitutional rights violations suffered by Gross when Morgan released the information in the flier to Gabrielle. Moreover, plaintiffs assert that Morgan's actions at the site of Gross' arrest and the statement to the arresting officer that "he had no choice" constituted an endorsement of an illegal stop and arrest, therefore, demonstrating defendant's intent to cause the violation of Gross' rights and the existence of a conspiracy...
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