Suboh v. City of Revere, Mass.

141 F.Supp.2d 124

Mouna Kandy SUBOH, individually, as administratix of the Estate of Ishaq Suboh, and as next friend of her minor daughter Sofia Kandy, Plaintiffs, v. CITY OF REVERE, MASSACHUSETTS, Carl Borgioli, Steven Pisano, John McRae, Steven Wallace, Theodore Michalski, Julieann Malvarosa, Antonio Arcos, John M. Azzari, Richard Bachour, and Michael Murphy, individually and in their official capacities and the Office of the District Attorney for Suffolk County, Defendants.

No. CIV.A. 00-10396-WGY.

United States District Court, D. Massachusetts.

March 30, 2001.

COPYRIGHT MATERIAL OMITTED

James R. Knudsen, Whittenberg & Associates, Lynnfield, MA, Harvey A Schwartz, Rodgers, Powers & Schwartz, Boston, MA, for plaintiffs.

Michael J. Akerson, Austin M. Joyce, Edward P. Reardon, P.C., Worcester, MA, Denise DiCarlo, Assistant City Solicitor, Revere, MA, Douglas I. Louison, James W. Simpson, Jr., Merrick & Louison, Boston, MA, Linda Wagner, Assistant Attorney General, Criminal Bureau, Boston, MA, for defendant.

MEMORANDUM AND ORDER

YOUNG, Chief Judge.

I. Introduction

This civil rights matter arises from a dispute over the custody of Sofia Kandy ("Sofia"), a resident and citizen of Morocco and the eight-year-old child of Mouna Kandy Suboh ("Mouna"). Mouna and Sofia contend that nine City of Revere police officers (the "police defendants"), working in concert with Michael Murphy ("Murphy"), the Assistant District Attorney, violated the constitutionally protected rights derived from their familial relationship with each other. Murphy and the Office of the District Attorney for Suffolk County ("District Attorney's Office") have moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Relevant to the present motion, therefore, are the counts that Mouna and Sofia now assert against Murphy and the District Attorney's Office: (1) liability of the District Attorney's Office and Murphy under the Massachusetts Tort Claims Act to Mouna (Count II); and (2) liability of Murphy under 42 U.S.C. § 1983 to Mouna and Sofia (Counts IV and X).

The motion to dismiss, filed on August 1, 2000, was initially directed toward the Original Complaint. On September 8, 2000, however, the plaintiffs filed an assented-to motion to amend, Fed.R.Civ.P. 15(a), and attached the Amended Complaint. The Court allowed the motion to amend on September 12, 2000. The Court therefore considers the motion to dismiss as it applies to the Amended Complaint. This Court heard arguments with respect to this motion on September 27, 2000, and took the matter under advisement. The Court now concludes that the motion should be denied in part and granted in part.

II. Factual Background¹

In 1969, Mouna was born to a wealthy and influential family in Casablanca in the Kingdom of Morocco. Am. Compl. ¶ 23. In 1991, while in Morocco, she became pregnant out of wedlock with Sofia. Id. ¶ 24. Mouna's parents, Mustapha Kandy ("Mustapha") and Rahima Kandy ("Rahima") (collectively "the Kandys"), attempted to force Mouna to have an abortion because of the perceived shame she had brought to her family. Id. ¶ 25. Instead, Mouna severed ties with her family and fled to Holland, where Sofia was born on April 9, 1992. Id. ¶¶ 25-26.

Shortly after Sofia's birth, Rahima traveled to Holland and eventually convinced her daughter to return to Casablanca. Id. ¶¶ 27-28. In Morocco, the Kandys allowed Mouna to live in their household, but began to raise Sofia as their own child without Mouna's consent. Id. ¶ 29. Although Mouna protested, she did not immediately take legal action. Id. Rather, from 1992 to 1995, Mouna continued to live with her parents and to maintain regular contact with Sofia. Id. ¶ 31. At some point, the Kandys falsified a birth certificate, which purported to demonstrate that Rahima was Sofia's natural mother, and Rahima used that birth certificate as legal evidence of her parental relationship. Id. ¶ 30.

In 1995, Mouna met a United States citizen, Ishaq Suboh ("Ishaq"). Id. ¶ 32. On September 7, 1995, Mouna moved to the United States, and on September 13, 1995, she married Ishaq. Id. ¶ 32. The Kandys had earlier promised to send Sofia to Mouna and Ishaq after they were settled in the United States, but the Kandys did not honor that promise. Id. With substantial assistance from Ishaq, Mouna made extensive, but unsuccessful, attempts to obtain physical custody of Sofia, including four trips to Morocco. Id. ¶ 33. Her attempts to force a change of physical custody through the Moroccan judicial process also failed, not because the case was decided on the merits by a court but because the case "disappeared" under suspicious circumstances. Id. By visiting, calling, and writing letters, Mouna maintained her relationship with Sofia at all times prior to May 1998. Id. ¶ 34.

Morocco has a national identity system through which each person is registered with the government. Id. ¶ 35. Morocco officially recognizes Mouna as Sofia's legal mother. Morocco does not allow adoptions. Id.

In 1998, Mouna's opportunity to obtain custody of her child from her parents arose, but was hindered by the involvement of Michael Murphy and the police defendants. That year, the Kandys traveled to Massachusetts so that Mustapha could receive medical treatment at Massachusetts General Hospital. Id. ¶ 36. The Kandys brought Sofia with them and stayed with Mouna and Ishaq in their apartment in Revere. Id. After receiving advice from representatives of the City of Boston on or about May 26, 1998, Mouna and Ishaq took Sofia from their apartment and concealed their location from the Kandys. Id. ¶ 37. They kept with them all of the papers that demonstrated that Mouna was Sofia's mother and the Kandy's falsification of the birth certificate. Id. On May 27, 1998, Mustapha reported to the Revere Police Department that his daughter, Sofia, had been kidnaped by his son-in-law, Ishaq. Id. ¶ 38. Mustapha further reported that Mouna was married to Ishaq and was with them. Id. On May 28, 1998, officers of the Revere Police Department conducted an interview of the Kandys, who reported that Ishaq had kidnaped Sofia and stolen a Rolex watch. Id. ¶ 39. The Kandys also told the police that Ishaq was having financial troubles and that he was attempting to obtain money from them. Id. After a period of two days, and with the assistance of agents from the Federal Bureau of Investigation, the Revere police located Mouna and Sofia in a hotel room. Id. ¶ 40. On the morning of May 29, 1998, two detectives went to the room and found Mouna and Sofia. Id. ¶ 41. At that time, Mouna stated that Sofia was her daughter. Id. Two other officers transported Mouna and Sofia to the Revere Police Department. Id. Although Mouna was not formally arrested, she alleges that she was not free to leave. Id. ¶ 42.

At the police station, Mouna was interviewed. Id. ¶ 43. During this interview and back at the hotel room, Mouna provided official, certified documentation that she was Sofia's mother. Id. She also presented documents supportive of her claim that Morocco recognized her as Sofia's mother and that the Kandys had falsified a birth certificate. Id. The police copied these documents. Id. Mouna further explained that the Kandys' claims to custody of Sofia were false, that she had never abandoned her child or consented to giving up her parental rights, and that no court had ever determined that Sofia was rightfully in the physical custody of the Kandys. Id. ¶ 44. Moreover, she repeatedly stated that the documents she presented contained proof of her parental rights and of the Kandys' falsification of documents. Id.

The police officers were aware that the Kandys' passports would expire within four days and that Sofia would be returning to Morocco with them. Id. ¶ 46. The officers, however, did not request that the Kandys voluntarily surrender their passports. Id. ¶ 47.

Of particular importance with respect to this motion, the plaintiffs allege that the police officers, "in concert with representatives of the Suffolk District Attorney's Office including Michael Murphy, promised Mouna that Sofia would be safely protected in state custody until the conflicting claims of custody could be resolved." Id. ¶ 45. Yet the police defendants "in concert with representatives of the Suffolk district attorney's office including Michael Murphy, made no attempt to protect Sofia but, instead, released her to the custody of the Kandys within minutes of the promises to Mouna that Sofia would be held safely in state custody." Id. ¶ 48. Mouna and Ishaq sought assistance in preventing the Kandys from escaping the country, but they received none from the police or the District Attorney's Office. Id. ¶ 53. As a result, the Kandys immediately fled to Morocco with Sofia. Id. ¶ 49. Mouna has not had custody of her daughter since these events.² Id. ¶ 57.

III. Legal Analysis

A. Standard of Review

Dismissal is appropriate "only if `it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Roeder v. Alpha Indus., Inc., 814 F.2d 22, 25 (1st Cir.1987) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 [1957]). In making this determination, the Court should "take the allegations in the complaint as true and grant all reasonable inferences in favor of the plaintiff." Monahan v. Dorchester Counseling Ctr., 961 F.2d 987, 988 (1st Cir.1992) (citing Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 20 [1st Cir.1989]).

Nonetheless, the standard for dismissal is not without any bite. In taking the plaintiffs' allegations as true, the Court may "eschew any reliance on bald assertions, unsupportable conclusions, and opprobrious epithets." Dartmouth Review, 889 F.2d at 16 (internal quotation marks omitted) (quoting Chongris v. Bd. of Appeals, 811 F.2d 36, 37 [1st Cir.1987]). Moreover, plaintiffs must set forth in their complaints "`factual allegations,...