Aaron v. City of Lowell

666 F.Supp.3d 102

Paul AARON, Plaintiff, v. CITY OF LOWELL et al., Defendants.

Civil Action No. 20-cv-11604-ADB

United States District Court, D. Massachusetts

Signed March 31, 2023

Andrew R. Burger, Law Offices of Andrew R. Burger LLC, Andover, MA, for Plaintiff.

Nicholas L. Anastasi, Pierce Atwood LLP, Boston, MA, Mark J. Jorgensen, City of Lowell Law Department, Lowell, MA, for Defendant City of Lowell.

Michael Fitzgerald, United States Attorney's Office, Boston, MA, for Defendant Francisco Vicente.

Devin R. McDonough, Douglas I. Louison, Louison, Costello, Condon & Pfaff, LLP, Boston, MA, for Defendants Rafael Rivera, Nickolas Dokos, David Lavoie.

Michael J. Akerson, Reardon, Joyce & Akerson PC, Worcester, MA, for Defendants Daniel Desmarais, Mathew Penrose.

MEMORANDUM AND ORDER

ALLISON D. BURROUGHS, UNITED STATES DISTRICT JUDGE

Plaintiff Paul Aaron ("Plaintiff") brings constitutional and state tort claims against a Drug Enforcement Agency ("DEA") Task Force member, Francisco Vicente ("Defendant Vicente"), and Lowell police officers, Nickolas Dokos, David Lavoie, Rafael Rivera, Daniel Desmarais, and Matthew Penrose ("Defendants Dokos, Lavoie, Rivera, Desmarais, and Penrose" or "Lowell Defendants") (collectively, "Defendants"),¹ related to his March 2018 arrest, the search of his apartment, and the subsequent state prosecution. See [ECF No. 92 (Third Amended Complaint) ("TAC")]. Presently before the Court are three motions to dismiss the TAC, filed by Defendant Vicente, Defendants Dokos, Lavoie, and Rivera, and Defendants Desmarais and Penrose. [ECF Nos. 99, 101, 108]. For the reasons that follow, Defendants' motions are GRANTED in part and DENIED in part.

I. BACKGROUND

A. Factual Background

The following relevant facts are taken from Plaintiff's TAC, which the Court assumes to be true when considering a motion to dismiss. Ruivo v. Wells Fargo Bank, N.A., 766 F.3d 87, 90 (1st Cir. 2014).

i. The March 7, 2018 Arrest and Detention

On or before March 7, 2018, a joint federal and state task force investigating drug distribution in Northern Massachusetts and New Hampshire received a tip that a target of their investigation would be traveling to Lowell. [TAC ¶¶ 1-2]. The task force sought assistance from the Lowell Police Department to "to surveil the transaction." [Id. ¶ 3]. On March 7, 2018, officers, including Defendants Vicente and detectives from the Lowell Police Department's Special Investigations Section ("SIS"), surveilled the target of the investigation in Lowell. [Id. ¶¶ 1, 3, 17]. During this surveillance, the officers witnessed Plaintiff cross a street to a taxi driven by their target, carrying a plastic bag. [Id. ¶¶ 4, 23]. After walking away from the taxi, still carrying the bag, Plaintiff was approached by Defendant Vicente. [Id. ¶ 25]. Plaintiff immediately dropped the bag he was carrying, and Defendant Vicente "slammed [him] into the pavement[.]" [Id.]. More officers then "piled on top of the Plaintiff." [Id.]. Other officers, including possibly Defendants Rivera, Dokos, and Lavoie,² witnessed Plaintiff being slammed to the ground. [Id. ¶¶ 78, 96].

As a result of being slammed into the pavement by Defendant Vicente, Plaintiff suffered "extensive injuries[.]" [TAC ¶ 76]. Plaintiff did not "resist arrest" or "attempt to enter any buildings." [Id. ¶ 26]. This all occurred in front of 177 Merrimack Street in Lowell, Massachusetts and was captured on a surveillance video. [Id. ¶¶ 6-7, 27].

The officers placed Plaintiff under arrest. [TAC ¶ 4]. The officers did not have an arrest warrant but "acted based on their 'observations[,]'" "believing" they had witnessed Plaintiff "meeting with a distributor in a taxi." [Id.].

Plaintiff told Defendants (though he does not identify which Defendants) "that he was injured and in need of immediate medical care for his back, hip, and leg." [TAC ¶ 97]. "Defendants" left Plaintiff "in [a] holding cell for several days" and did not summon medical care. [Id. ¶ 98]. Plaintiff experienced "severe pain and suffering[,]" including anxiety, panic attacks, and emotional distress, as a result of Defendants' conduct. [Id. ¶¶ 100, 105-06, 110].

ii. The Arrest Report and Search Warrant Affidavit

Following the arrest, Defendants Vicente, Dokos, and Rivera returned to the Lowell Police station to prepare reports on the arrest. [TAC ¶ 5]. A report on the arrest was eventually submitted under Defendant Rivera's name (the "Arrest Report"). [Id. ¶¶ 7, 14].³ The Arrest Report misconstrues details of the arrest, as evidenced by the surveillance video. [Id. ¶ 7]. For example, the Arrest Report states that Plaintiff was not holding a plastic bag when he walked across the street to the taxi, while the video confirms that he was. [Id. ¶¶ 14, 23]. It further states that Defendant Vicente approached and eventually arrested Plaintiff in front of 193 Merrimack Street, which is Plaintiff's apartment building. [Id. ¶¶ 17, 27]. The video, however, shows that these events actually occurred in front of 177 Merrimack Street, which is nearly 80 feet away. [Id. ¶¶ 17, 27]. The Arrest Report also says that Plaintiff "resisted arrest and tried to flee" into 193 Merrimack Street, which Plaintiff did not do, and which the video does not show. [Id. ¶¶ 17-18, 26]. The fact that Defendant Rivera, and possibly Defendants Lavoie and Dokos, had observed Defendant Vicente "slam the Plaintiff into the pavement" was not included in the Arrest Report. [Id. ¶¶ 78, 96].

Although the Arrest Report was submitted by Defendant Rivera, it was written by Defendant Lavoie. [TAC ¶¶ 30-31]. Plaintiff avers that "Defendant Rivera, Defendant Lavoie, and Defendant Vicente decided that the report should be submitted under Defendant Rivera's name," rather than Defendant Lavoie's, to avoid revealing that Defendant Lavoie was a member of the DEA task force. [Id. ¶ 31]. Defendant Rivera had "little background information about the night's events" and the Arrest Report was misleadingly written to suggest that Defendant Rivera had "personal knowledge of the events[,]" and specifically a "clear view and memory of the details of ... Plaintiff's arrest." [Id. ¶¶ 33, 39]. Defendants Desmarais and Penrose signed off on the Arrest Report. [Id. ¶ 34].

Defendant Dokos "cut and pasted" the false information from the Arrest Report into an affidavit ("Affidavit" or "Search Warrant Affidavit") that he submitted to the Lowell District Court to secure a warrant to search Plaintiff's apartment, located at 193 Merrimack Steet ("Search Warrant"). [TAC ¶¶ 20, 35-36, 67-68]. Defendant Dokos included the false information that Plaintiff attempted to enter 193 Merrimack in the Affidavit to connect Plaintiff to that residence. [Id. ¶¶ 17-18, 21]. The Affidavit gave the "false impression" that Defendant Dokos personally witnessed Plaintiff's arrest and the events leading up to it, "even though he was around the corner at the time that it happened." [Id. ¶ 37].

Defendant Vicente, Dokos, and Lavoie obtained a Search Warrant based on the Affidavit. See [TAC ¶¶ 20, 35, 68, 71]. A search of Plaintiff's apartment was apparently conducted based on the Search Warrant. See [id. ¶¶ 67, 71].

Plaintiff asserts that Defendants Vicente, Dokos, Lavoie, and Rivera "intentionally hid information from the Court in their arrest reports and search warrant application." [TAC ¶ 32]. When Defendant Lavoie was made aware of the inconsistencies between the Arrest Report and the surveillance video, he stated he might have received incorrect information from Defendant Vicente. [Id. ¶ 38].

iii. State Criminal Charges

The state brought criminal charges against Plaintiff, which were ultimately dismissed. [TAC ¶ 83].

iv. Federal Court Testimony

Federal criminal charges were also brought against Plaintiff. See [TAC ¶¶ 8, 42].⁴ In October 2018, Defendant Vicente testified at a hearing in federal court about the events leading up to Plaintiff's arrest. [Id. ¶ 8]. Defendant Vicente falsely testified that he did not observe Plaintiff carrying a bag when he crossed the street to the taxi, and that, while arresting Plaintiff, "'he slipped,'" which "caus[ed] he and the Plaintiff to fall to the ground." [Id. ¶¶ 24, 73-74].⁵ Defendants Dokos and Rivera were planning to testify after Vicente, but declined to do so after learning that the surveillance video would contradict the Arrest Report and Search Warrant Affidavit. [Id. ¶¶ 9-12].

v. Board of Inquiry Investigation

The Board of Inquiry (the "Board"), presumably of the Lowell Police Department, conducted an investigation into the Arrest Report and Search Warrant Affidavit. [TAC ¶¶ 28-29]. The Board concluded that both the Arrest Report and Affidavit were "inaccurate to a level that is far beyond simple mistakes." [Id. ¶¶ 28, 49]. The Board found that Defendant Rivera had not written the Arrest Report, but nevertheless allowed it to be submitted under his name. [Id. ¶¶ 29, 47]. The Board also concluded that Defendant Lavoie wrote the Arrest Report, and that the Arrest Report included "inaccurate information." [Id. ¶¶ 42-43]. The evidence before the Board did not support that Defendant Lavoie intentionally included false information in the Arrest Report, because Defendant Vicente declined to be interviewed for the investigation. [Id. ¶ 44]. Plaintiff asserts that if Defendant Vicente had agreed to be interviewed for the investigation, the Board "would have concluded that Defendant Lavoie intentionally included false information in his report." [Id. ¶ 45]. Additionally, the Board found that Defendant Dokos had used portions of the Arrest Report in the Search Warrant Affidavit but was "unaware [those portions] contained incorrect information." [Id. ¶ 49].

Defendant Penrose, as "Officer in Charge" of the SIS Unit when the Arrest Report was submitted, was found to have failed to "properly supervise his subordinates." [TAC ¶ 53]. The Board further found that Defendant Desmarais "did not review the [Search Warrant Affidavit] properly" and that, if he...