Koltin v. City of Fall River, Fall River Police Dep't, William Flanagan, Daniel Racine, John Demello, Richard Saraiva, James Costa, Wendell Burke, Warren Francis, Alan Correiro, Kevin Dolan, Jeffrey Richard, Gregory Bell, Roger Dufour, Joseph Biszko, Fall River Fire Dep't, Bristol Elder Servs., Inc.

• Decision Date: 01 September 2015
• Docket Number: CIVIL ACTION NO. 14-13749-NMG
• Citation: Koltin v. City of Fall River, Fall River Police Dep't, William Flanagan, Daniel Racine, John Demello, Richard Saraiva, James Costa, Wendell Burke, Warren Francis, Alan Correiro, Kevin Dolan, Jeffrey Richard, Gregory Bell, Roger Dufour, Joseph Biszko, Fall River Fire Dep't, Bristol Elder Servs., Inc., CIVIL ACTION NO. 14-13749-NMG (D. Mass. Sep 01, 2015)
• Parties: HAROLD KOLTIN, Plaintiff, v. CITY OF FALL RIVER, FALL RIVER POLICE DEPARTMENT, WILLIAM FLANAGAN, DANIEL RACINE, JOHN DEMELLO, RICHARD SARAIVA, JAMES COSTA, WENDELL BURKE, WARREN FRANCIS, ALAN CORREIRO, KEVIN DOLAN, JEFFREY RICHARD, GREGORY BELL, ROGER DUFOUR, JOSEPH BISZKO, FALL RIVER FIRE DEPARTMENT, BRISTOL ELDER SERVICES, INC., NANCY MUNSON, LISA KUROWSKI, NICOLE CHENEY, PHILLIP VIERA, JOANN GETTINGS and BRIAN GETTINGS, Defendants.
• Court: U.S. District Court — District of Massachusetts

HAROLD KOLTIN, Plaintiff, v. CITY OF FALL RIVER, FALL RIVER POLICE DEPARTMENT, WILLIAM FLANAGAN,DANIEL RACINE, JOHN DEMELLO, RICHARD SARAIVA, JAMES COSTA, WENDELL BURKE,WARREN FRANCIS, ALAN CORREIRO, KEVIN DOLAN, JEFFREY RICHARD,GREGORY BELL, ROGER DUFOUR, JOSEPH BISZKO, FALL RIVER FIRE DEPARTMENT,BRISTOL ELDER SERVICES, INC., NANCY MUNSON, LISA KUROWSKI, NICOLE CHENEY,PHILLIP VIERA, JOANN GETTINGS and BRIAN GETTINGS, Defendants.

CIVIL ACTION NO. 14-13749-NMG

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

September 1, 2015

REPORT AND RECOMMENDATION RE: DEFENDANTS' MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM

(DOCKET ENTRIES ## 12, 15 & 20)

BOWLER, U.S.M.J.

Three motions to dismiss are pending before this court. First, there is a motion to dismiss filed by defendants the City of Fall River ("City"), Fall River Police Department ("FRPD"), William Flanagan ("Flanagan"), John DeMello ("DeMello"), Richard Saraiva ("Saraiva"), James Costa ("Costa"), Wendell Burke ("Burke"), Warren Francis ("Francis"), Alan Correiro ("Correiro"), Kevin Dolan ("Dolan"), Jeffrey Richard("Richard"), Gregory Bell ("Bell"), Roger Dufour ("Dufour"), Joseph Biszko ("Biszko") and the Fall River Fire Department ("FRFD") (collectively "defendants"). (Docket Entry # 12). Second, there is a motion to dismiss filed by defendants Bristol Elder Services, Inc. ("BES"), Nancy Munson ("Munson"), Lisa Kurowski ("Kurowski") and Nicole Cheney ("Cheney") (collectively "BES defendants"). (Docket Entry # 15). Finally, there is a motion to dismiss filed by defendants Brian Gettings ("Brian Gettings") and Joann Gettings ("Joann Gettings") (collectively "the Gettings"). (Docket Entry # 20).

PROCEDURAL BACKGROUND

In September 2014, plaintiff Harold Koltin ("plaintiff") filed a complaint on behalf of his mother, Edith Koltin ("Edith Koltin"), "in his capacity as Personal Representative" of her estate. (Docket Entry # 1). The complaint sets out 18 counts against 23 defendants. (Docket Entry # 1). Subsequently, plaintiff voluntarily dismissed all counts asserted against defendant Daniel Racine. (Docket Entry # 46). The remaining counts are as follows: (1) Count I for violations of 42 U.S.C. 1983 ("section 1983"); (2) Count II for violations of the Massachusetts Civil Rights Act, Massachusetts General Laws chapter 12, sections 11H and 11I ("MCRA"); (3) Count III for violations of the Fourth Amendment by warrantless forced entry; (4) Count IV for violations of the Fourth Amendment bywarrantless search and seizure; (5) Count V for wanton destruction of property; (6) Count VI for conversion; (7) Count VII for use of excessive force against a person over 60 years of age; (8) Count VIII for willful and unreasonable conduct in violation of constitutional rights; (9) Count IX for failure to intervene; (10) Count X for trespass; (11) Count XI for lack of proper supervision; (12) Count XII for attempted forced entry; (13) Count XIII for slander; (14) Count XIV for libel; (15) Count XV for defamation; (16) Count XVI for invasion of privacy; (17) Count XVII for actions exceeding reasonable bounds, infringing on plaintiff's constitutional rights and producing serious injury and hastening and precipitating death; and (18) Count XVIII for civil perjury.

Plaintiff, represented by counsel, filed an opposition but only addresses the section 1983 claim. (Docket Entry # 51). In no uncertain terms, the opposition reads as follows:

The plaintiff has filed an eighteen-count complaint against the named defendants. Counts 1 and 2 of the complaint allege a civil rights violation pursuant to 42 U.S.C. § 1983. The remaining counts allege specific conduct falling with the purview of § 1983.

(Docket Entry # 51). The opposition concludes with the statement that the allegations "amply support a finding that all defendants violated Section 1983" and that "[d]ismissal is therefore not appropriate." (Docket Entry # 51). Accordingly, plaintiff waived any basis for opposing the arguments that donot address a section 1983 claim made by defendants, the BES defendants and the Gettings in their motions to dismiss. See Vallejo v. Santini-Padilla, 607 F.3d 1, 7 and n.4 (1^st Cir. 2010) ("[p]laintiffs have not cited a single authority in support of their assertion that their failure to timely oppose the motion to dismiss did not constitute waiver" and noting that "[p]laintiffs did not properly raise their arguments below"); see also Coons v. Industrial Knife Co., Inc., 620 F.3d 38, 44 (1^st Cir. 2010) ("district court was 'free to disregard' the state law argument that was not developed in Coons's brief").

STANDARD OF REVIEW

Defendants each move to dismiss the complaint under Fed.R.Civ.P. 12(b)(6) ("Rule 12(b)(6)"). To survive a Rule 12(b)(6) motion to dismiss, the 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 v. Twombly, 550 U.S. 544, 555-58 (2007). Thus, while "not equivalent to a probability requirement, the plausibility standard asks for more than a sheer possibility that a defendant has acted unlawfully." Boroian v. Mueller, 616 F.3d 60, 65 (1^st Cir. 2010) (internal quotation marks ommited). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint . . . has not show[n] 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).

Taking the facts in the governing complaint as "true and read in a plaintiff's favor" even if seemingly incredible, the complaint "must state a plausible, not a merely conceivable, case for relief." Sepulveda-Villarini v. Dep't of Educ. of Puerto Rico, 628 F.3d 25, 29-30 (1^st Cir. 2010). "[A]ccepting . . . all well-pleaded facts in the complaint and making all reasonable inferences in the plaintiff's favor," Boroian v. Mueller, 616 F.3d at 64, the "factual allegations 'must be enough to raise a right to relief above the speculative level.'" Gorelik v. Costin, 605 F.3d 118, 121 (1^st Cir. 2010). Drawing reasonable inferences in plaintiff's favor but eschewing reliance on "'bald assertions, . . . unsubstantiated conclusions,'" Fantini v. Salem State College, 557 F.3d 22, 26 (1^st Cir. 2009), and legal conclusions, see Dixon v. Shamrock Financial Corp., 522 F.3d 76, 79 (1^st Cir. 2008) (rejecting unsupported conclusions or interpretations of law in reviewing Rule 12(b)(6) dismissal), the complaint sets out the following facts.

FACTUAL BACKGROUND

On October 3, 2011, based on a "prank swatter" call by "Joann Gettings in collaboration with her husband," Brian Gettings, Kurowski, a BES supervisor, and Cheney, a BESprotective services worker, showed up unannounced and without identification at the home of Edith Koltin, an 89 year old blind woman. (Docket Entry # 1). The Gettings were "adjacent neighbors" to Edith Koltin. (Docket Entry # 1). Saraiva and Costa, two Fall River police officers, next arrived and "began banging on the door and shouting." (Docket Entry # 1). Subsequently, the FRFD showed up and "per order of the police," namely, FRPD Lieutenant DeMello, "broke windows and gained access into the house without a warrant." (Docket Entry # 1).

The allegations made by the Gettings were false because Edith Koltin's son and full-time caretaker, Theodore Koltin, had not abandoned his mother. There was food in the refrigerator, the gas stove worked and the Gettings had seen Edith Koltin and "her son in the backyard daily for the past several months." (Docket Entry # 1). Edith Koltin did not show signs of dementia. (Docket Entry # 1). Saraiva and Costa, however, attempted to involuntarily commit Edith Koltin to a facility for the treatment of mentally ill persons under Massachusetts General Laws chapter 123, section 12.¹ (Docket Entry # 1). In fact, they tied "her to a chair as she screamed to leave her alone." (Docket Entry # 1). She was then taken, still "tied tothe chair, to the hospital." Saraiva and Costa then "trashed" the house. (Docket Entry # 1).

Meanwhile, Edith Koltin's son, Theodore Koltin, was arrested and "brutally beaten while in handcuffs." (Docket Entry # 1). He was then "imprisoned in a cell at the police station" overnight. (Docket Entry # 1). The following morning, "the Court" arraigned him and released him on his own recognizance. (Docket Entry # 1). Within hours of returning home, defendant Phillip Viera ("Viera"), a contractor hired by the City, showed up and started banging on the doors of the home. (Docket Entry # 1). Viera then went to the Gettings' home and telephoned the police. (Docket Entry # 1). Shortly thereafter, FRPD officers Burke, Francis, Correiro, Dolan and FRPD sergeants Richard and Bell arrived along with the City's Minimum Housing Director, Dufour, and the City's Director of Inspectional Services, Biszko. (Docket Entry # 1).

Burke and Francis proceeded to break down the front door and gain access to the home without a warrant. (Docket Entry # 1). They told Theodore Koltin they thought "he was demented," and then "leg-swept him onto the floor," handcuffed him, "and dragged him into the kitchen, where he was raised to the ceiling and slam-dropped onto the floor." (Docket Entry # 1). While on the floor, Burke tased Theodore Koltin six times. (Docket Entry # 1). The police then "destroyed" the home which, drawingreasonable inferences, necessarily encompassed Edith Koltin's personal items and furniture. (Docket Entry # 1). Thereafter, "Biszko and Dufour declared the house unfit for human habitation." (Docket Entry # 1). They listed "the code violations as 'debris'" and "overgrown shrubbery." (Docket Entry # 1). Additionally, Biszko demanded that the violations be remedied immediately, but he would not let any family members back on the property. (Docket Entry # 1).

Theodore Koltin was taken to the hospital. (Docket Entry # 1). The hospital, however, "refuse...