Winfield v. Town of Andover, CIVIL ACTION NO. 17–11051–WGY

305 F.Supp.3d 286

Marie WINFIELD and Robert Winfield, Plaintiffs,

v.TOWN OF ANDOVER, Wendy Adams, Chad Cooper, Christopher Hughes, Sobahn Namvar, Steven Gerroir, Barry Dubois, Derrek Deranian, Patrick Keefe, Andrew Loonie, Thomas Kennedy Iii, Brian Flanagan, Michael Mansfield, and Richdale Convenience Store, Defendants.

CIVIL ACTION NO. 17–11051–WGY

United States District Court, D. Massachusetts.

Signed April 4, 2018

Marie Winfield, Boston, MA, pro se.

Robert Winfield, Andover, MA, pro se.

Adam Simms, John J. Davis, Pierce Davis & Perritano LLP, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

YOUNG, D.J.

I. INTRODUCTION AND PROCEDURAL HISTORY

Pro se plaintiffs Marie Winfield ("Ms. Winfield") and Robert Winfield ("Mr. Winfield") (collectively, the "Winfields") bring a civil rights suit against the Town of Andover ("Andover"), the executive assistant to the Andover Town Manager Wendy Adams ("Adams"), police officers Christopher Hughes ("Hughes"), Sobahn Namvar ("Namvar"), Steven Gerroir ("Gerroir"), Barry Dubois ("Dubois"), Derrek Deranian ("Deranian"), Chad Cooper ("Cooper"), and chief of police Patrick Keefe ("Keefe"); fire and rescue personnel Andrew Loonie ("Loonie"), Thomas Kennedy III ("Kennedy"), Brian Flanagan ("Flanagan"), and fire and rescue chief Michael Mansfield ("Mansfield") (collectively the "Town Officials" and with Andover, the "Andover Defendants"), and Richdale Convenience Store ("Richdale") for discriminatory treatment stemming from a number of incidents with the various defendants. Pls.' First Am. Compl. ("Am. Compl.") 1–5, ECF No. 16–1.

The Winfields initially filed their complaint on June 5, 2017. Compl., ECF No. 1. The Andover Defendants moved to dismiss the claims, Mot. Dismiss Pls.' Compl., ECF No. 7, and subsequently briefed the issues, Mem. Dismiss, ECF No. 8.

Upon hearing the motion to dismiss, the Court granted the motion. Order Mot. Dismiss Failure State Claim, ECF No. 13. Counts II, IV, X, and XI were dismissed with prejudice, and the other counts were dismissed without prejudice with leave for the Winfields to file a motion for leave to amend within 30 days. Id. The Winfields duly filed a motion for leave to file a proposed first amended complaint. Mot. Leave File First Am. Compl., ECF No. 16. The Andover Defendants opposed the motion, maintaining that the amended complaint failed to cure the deficiencies of the original complaint and was therefore futile. Defs.' Opp'n, ECF No. 18.

After denying the Winfields' request for notice of default against Richdale due to the lack of evidence of service upon Richdale, see ECF No. 24, the Court then reissued a summons as to Richdale, Summons, ECF No. 25, and the summons returned executed, Summons Ret., ECF No. 26. The Winfields again requested notice of default, and the Court entered default against Richdale on March 23, 2018. See ECF No. 27; ECF No. 31.

II. ANALYSIS

The Winfields' proposed first amended complaint includes twelve claims, most of which are asserted under 42 U.S.C. section 1983 : retaliation in violation of the First Amendment against the police officer defendants and Adams (count I), Am. Compl. ¶¶ 92–106; discrimination in public accommodations against Richdale (count III), id. ¶¶ 107–20; unreasonable seizure, unreasonable detention, false arrest and imprisonment of Ms. Winfield against the police officer defendants and the fire and rescue personnel defendants (counts V and VI), id. at ¶¶ 121–37; unlawful arrest and false imprisonment of Mr. Winfield by the police officer defendants (counts VII and VIII), id. at ¶¶ 138–48; civil conspiracy in violation of the Civil Rights Act of 1964 by police officers and fire and rescue personnel (count IX), id. at ¶¶ 149–60; supervisory liability, reckless or callous indifference, and gross negligence against Keefe and Mansfield (count XII), id. at ¶¶ 161–73; a claim alleging local government liability against Andover asserted under Monell v. Department of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (count XIII), id. at ¶¶ 174–186; excessive use of force by Keefe and Cooper under both section 1983 and the Massachusetts Civil Right Act ("MCRA") (counts XIV and XV), id. at ¶¶ 187–201; and a free standing MCRA claim¹ (count XIV), id. at 70–71.

The Andover Defendants contend that (i) the Winfelds' motion for leave to amend was untimely because it was filed after the expiration of the thirty day period set by this Court, and (ii) because the proposed amended complaint "contains the same deficiencies as Plaintiffs' original complaint ...their Motion for Leave to File an Amended Compliant should be denied [as futile]." Defs.' Opp'n 2. They contest all but Count III, which the Winfields asserted (and won default judgment) solely against Richdale. See Am. Compl. ¶¶ 107–120; ECF No. 31.

A. Standard of Review

Leave to amend should be "freely give[n] ...when justice so requires." Fed. R. Civ. P. 15(a) ; see also Edlow v. RBW, LLC, 688 F.3d 26, 39 (1st Cir. 2012). Courts, however, have discretion to deny leave to amend under "appropriate circumstances," such as "undue delay, bad faith, futility, and the absence of due diligence on the movant's part." Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006).

The Winfields do not contest that they filed their motion for leave to amend more than thirty days after this Court's order, but they allege that their motion was delayed due to Ms. Winfield's injury by Keefe and Cooper's assault that resulted in hospitalization. Pls.' Reply ¶ 2, ECF No. 19. The Court, in its discretion, will not deny the motion to leave to amend due to this delay because the reason may be "valid" and the delay of approximately one month is not "considerable." See Pérez v. Hospital Damas, Inc., 769 F.3d 800, 802 (1st Cir. 2014) (quoting In re Lombardo, 755 F.3d 1, 3 (1st Cir. 2014) ).

The issue here is whether the Winfields' amended claims are futile. In assessing futility, courts apply the same standard as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Adorno v. Crowley Towing & Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006). "[I]f the proposed amendment would be futile because, as thus amended, the complaint still fails to state a claim, the district court acts within its discretion in denying the motion to amend." Abraham v. Woods Hole Oceanographic Inst., 553 F.3d 114, 117 (1st Cir. 2009) (quoting Boston & Me. Corp. v. Hampton, 987 F.2d 855, 868 (1st Cir. 1993) ); see Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996) ("There is no practical difference, in terms of review, between a denial of a motion to amend based on futility and the grant of a motion to dismiss for failure to state a claim.").

In order for the Winfields' proposed amended complaint to survive under Rule 12(b)(6), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Court is allowed to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Ocasio–Hernandez v. Fortuño–Burset, 640 F.3d 1, 11 (1st Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). This Court must "accept as true all well-pleaded facts alleged in the complaint and draw all reasonable inferences therefrom in the pleader's favor." Santiago v. Puerto Rico, 655 F.3d 61, 72 (1st Cir. 2011). The court's assessment of the pleadings is " ‘context-specific,’ requiring ‘the reviewing court to draw on its judicial experience and common sense.’ " Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir. 2009) (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ).

In reviewing documents for a motion to dismiss, "[o]rdinarily ...any consideration of documents not attached to the complaint, or not expressly incorporated therein, is forbidden." Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). There are exceptions, however, "for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiffs' claim; or for documents sufficiently referred to in the complaint," even if those documents are introduced by the defendant. Id.; see Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011).

B. Count I: 42 U.S.C. § 1983 (Violation of the First Amendment)

In Count I, the Winfields assert a First Amendment retaliation claim in violation of 42 U.S.C. § 1983 against certain police officers and Adams. Am. Compl. ¶¶ 92–106. In particular, the Winfields allege that the "Andover Town Manager and the Chair of the Board of Selectmen have hindered [Ms. Winfield's] participation in the public Town meeting," and that a police officer seized Ms. Winfield to prevent her from participating in town meetings. Id. at ¶ 93. More specifically, Ms. Winfield alleges that on July 22, 2017, Adams, the executive assistant to the Andover Town Manager, without saying a word, called the police when Ms. Winfield went to her office to seek to be placed on the agenda for the next town meeting. Id. at ¶ 62. Then, three police officers arrived, told her that they wanted her to leave, and escorted her out of the public building. Id. Ms. Winfield alleges that this was the second time Adams called Andover police to remove her from the Town Hall just for seeking to speak with a town official. Id. at ¶ 63. These allegations bear a general resemblance to Lozman v. City of Riviera Beach, 681 Fed. Appx. 746 (11th Cir. 2017), cert. granted, ––– U.S. ––––, 138 S.Ct. 447, 199 L.Ed.2d 328 (2017), now under review by the Supreme Court. As the constitutional rights in this area are thus not firmly established, the persons sued are entitled to qualified immunity.

Under the qualified immunity doctrine, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional...