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Doe v. Cranston Police Department

Superior Court of Rhode Island

February 10, 2015

JOHN DOE, Petitioner,
CRANSTON POLICE DEPARTMENT, RHODE ISLAND STATE POLICE, KEVIN BARRY, in his capacity as Acting Police Chief of the Police Department for the City of Cranston, and ALLAN FUNG, in his capacity as the Mayor of the City of Cranston, Respondents.

Providence County Superior Court.

For Plaintiff: William J. Conley, Jr., Esq.

For Defendant: Vincent F. Ragosta, Jr., Esq. Danica A. Iacoi, Esq.



Presently before the Court are two motions, one made by the petitioner, "John Doe" (Doe or Petitioner) on July 7, 2014, and one made by the Rhode Island State Police on August 8, 2014. The respondents in this case are the Cranston Police Department (the CPD), the Rhode Island State Police (the RISP), Acting CPD Police Chief Kevin Barry, the City of Cranston, and the Mayor of the City of Cranston, Allan Fung (Mayor Fung) (collectively, Respondents). The first motion is brought by Petitioner against all Respondents seeking to have the charges filed against him dismissed. The second motion is brought by the RISP, individually, for dismissal of the Petitioner's Amended Verified Miscellaneous Petition (Petition) pursuant to Super. R. Civ. P. 12(b)(6) (Rule 12(b)(6)) and in the alternative, Super. R. Civ. P. 56 (Rule 56). For the reasons stated below, the Petitioner's motion is denied, and the RISP's motion is granted.

I Facts & Travel

Petitioner is a captain with the CPD. In late 2013, the CPD launched an internal investigation into Petitioner's alleged involvement in a purported scheme to selectively enforce Cranston's overnight parking ordinance in the wards of Cranston City Councilmen Steven Stycos and Paul Archetto. In early 2014, however, Mayor Fung requested that the RISP assume control of the internal investigation. The RISP and the CPD believe that the purpose of this alleged scheme was to retaliate against Councilmen Stycos and Archetto for having voted against a proposed collective bargaining agreement between the City of Cranston and Cranston Police Officers. The internal investigation conducted by the RISP, however, was not a targeted investigation of the Petitioner individually. Rather, the investigation was a general inquiry into whether Cranston Police Officers had selectively enforced the overnight parking ban as a means of retaliation. The investigation did, however, uncover evidence that led the CPD to initiate disciplinary proceedings against the Petitioner for his alleged involvement in the purported parking ticket scheme.

Pursuant to the Law Enforcement Officers' Bill of Rights (LEOBOR), G.L. 1956 §§ 42-28.6-1 through 42-28.6-17, the CPD issued a complaint and notice to Petitioner, indicating a recommended penalty of termination, and suspended him from duty with pay pending the conclusion of the LEOBOR proceedings. On April 4, 2014, Petitioner exercised his right under § 42-28.6-4(a) to have a hearing before a three-member committee to determine the validity of the CPD's allegations of misconduct. Section 42-28.6-4 of the LEOBOR statute provides that such a hearing committee shall be composed of three "active or retired law enforcement officer[s], " one of whom shall be chosen by the employee facing disciplinary charges and another of whom shall be chosen by the employer. The employer must inform the law enforcement officer of its committee member selection "within five (5) days of its receipt of the officer's request for a hearing." Sec. 42-28.6-4(e). The third committee member shall serve as the chairperson and shall be chosen by agreement of the other two committee members or, if they cannot agree, then by appointment by the Presiding Justice of the Superior Court. Secs. 42-28.6-1, 42-28.6-4. Accordingly, the CPD named Major Todd Catlow (Major Catlow) of the RISP to serve on Petitioner's hearing committee, and Petitioner named West Warwick Lieutenant James Tiernan (Lt. Tiernan). Major Catlow and Lt. Tiernan were unable to agree on a third committee member. Major Catlow therefore sent a letter to the Presiding Justice, requesting that she appoint someone. The Presiding Justice then asked Lieutenant Ann Assumpico (Lt. Assumpico) of the RISP to serve as the chairperson, and Lt. Assumpico accepted the appointment on July 2, 2014.

On July 7, 2014, Petitioner commenced the instant action by filing a Verified Miscellaneous Petition, a motion to dismiss all charges filed against the Petitioner, and a memorandum of law in support of the motion to dismiss all charges. Given the pendency of Petitioner's motion before this Court, on July 16, 2014, Respondents moved for an extension of the statutory time period in which to commence Petitioner's LEOBOR hearing.[1] This Court granted Respondents' motion on July 22, 2014 and extended the time within which Petitioner's LEOBOR hearing must begin to thirty days after entry of a final disposition on the motion. Doe v. Cranston Police Dep't, No. 14-3369, July 22, 2014 (Order) Gibney, P.J. On July 24, 2014, Respondents filed their answer to Doe's Verified Miscellaneous Petition, their objection to the motion to dismiss all charges, and their motion in support of that objection. On that same day, Petitioner filed an Amended Verified Miscellaneous Petition adding a single count alleging that Respondents violated his right to a duly appointed and unbiased hearing committee.[2] (Am. Verified Misc. Pet., at 14). Finally, on August 8, 2014, the RISP filed a motion to dismiss Petitioner's petition pursuant to Rule 12(b)(6), or in the alternative, Rule 56.

II Standard of Review

A Miscellaneous Petition

The Petitioner has sought to invoke this Court's jurisdiction by filing his Verified Miscellaneous Petition. In City of Pawtucket v. Laprade, our Supreme Court recently held that "LEOBOR proceedings are not exempt from the longstanding rule that the jurisdiction of the Superior Court must first be invoked by the filing of a complaint or miscellaneous petition[.]" 94 A.3d 503, 514-15 (R.I. 2014) (emphasis added). However, Rule 80 of the Superior Court Rules of Civil Procedure provides, in pertinent part:

"[w]hen a statute provides for review by the Superior Court of any action by a governmental agency, department, board, commission, or officer, whether by appeal or petition or otherwise or when any judicial review of such action was heretofore available by extraordinary writ, proceedings for such review shall be instituted by filing a complaint with the court. The complaint shall include a concise statement showing that the plaintiff is entitled to relief, and a demand for judgment for the relief the plaintiff seeks." Super. R. Civ. P. 80 (emphasis added).

Here, the Petitioner has filed an Amended Verified Miscellaneous Petition, not a complaint. However, as the Amended Verified Miscellaneous Petition served to initiate a cause of action against Respondents and outlined the pertinent factual allegations and claims, this Court shall- for the purposes of this Decision-construe the Amended Verified Miscellaneous Petition as the functional equivalent of a complaint.[3]

B Procedural Posture

Ordinarily, the court's review of a motion to dismiss is confined to the complaint, Barrette v. Yakavonis, 966 A.2d 1231, 1234 (R.I. 2009), and if the court considers matters outside the complaint, the court must convert the motion into a motion for summary judgment. See Coia v. Stephano, 511 A.2d 980 (R.I. 1986). However, in deciding whether to grant a Rule 12(b)(6) motion to dismiss, the Court may properly consider "documents expressly relied on or integral to the complaint and matters of public record, if the claims of plaintiff are based upon such documents." Rowe v. Morgan Stanley Dean Witter, 191 F.R.D. 398, 405 (D.N.J. 1999); In re Burlington Coat Factory, 114 F.3d 1410, 1426 (3d Cir. 1997); see also Bowen Court Assocs. v. Ernst & Young, LLP, 818 A.2d 721 (R.I. 2003). Therefore, the Court may consider and refer to documents incorporated into a complaint by reference when ruling on a motion to dismiss, without converting the motion into one under Rule 56. Bowen Court Assocs., 818 A.2d at 725-26 (citing Super. R. Civ. P. 10(c)); 27A Federal Procedure L.Ed. § 62:509 (2004). Such documents "must be referred to explicitly, " and be "exhibit[s] annexed to the complaint." 1 Kent, R.I. Civ. Prac. § 10.3 at 100 (1969); see also 5B Wright & Miller, Federal Practice & Procedure, § 1357 (3d ed. 2006).

Here, as a preliminary matter, the Petitioner attached to the Petition a variety of newspaper articles as well as the RISP's investigative report entitled, Selective Enforcement of the Cranston City Ordinance "Overnight Parking" by Sworn Members of the Cranston Police Department. These documents were attached to the Petition and were referenced therein; however, none of these documents is relevant as to whether the Petitioner has "fail[ed] to state a claim upon which relief can be granted." Rule 12(b)(6). Therefore, this Court shall apply the Rule 12(b)(6) standard.

C Rule 12(b)(6) Standard of Review

The "sole function of a motion to dismiss" pursuant to Rule 12(b)(6) is "to test the sufficiency of the complaint." McKenna v. Williams, 874 A.2d 217, 225 (R.I. 2005) (citing R.I. Affiliate, ACLU, Inc. v. Bernasconi, 557 A.2d 1232, 1232 (R.I. 1989)). "When ruling on a Rule 12(b)(6) motion, the [court] must look no further than the complaint, assum[ing] that all allegations in the complaint are true, and resolve any doubts in a plaintiff's favor." Bernasconi, 557 A.2d at 1232. However, "allegations that are more in the nature of legal conclusions rather than factual assertions are not necessarily assumed to be true." DiLibero v. Mortg. Elec. Registration Sys., Inc., 2015 WL 171238, at *2 (R.I. Jan. 14, 2015) (citing Doe ex rel. His Parents and Natural Guardians v. East Greenwich Sch. Dep't, 899 A.2d 1258, 1262 n.2 (R.I. 2006); see also Robert B. Kent et al., Rhode Island Civil Procedure § 12:9, III–44 (West 2006) (stating "sweeping legal conclusions are not admitted" for the purposes of reviewing a Super. R. Civ. P. 12(b)(6) motion for failure to state a claim upon which relief can be granted). "The motion may then only be granted if it 'appears beyond a reasonable doubt that a plaintiff would not be entitled to any relief under any conceivable set of facts . . . .'" Id. (quoting Ryan v. State, Dep't of Transp., 420 A.2d 841, 843 (R.I. 1980)).

D The LEOBOR Statute

Enacted in 1976, LEOBOR provides, in pertinent part, that it "is the exclusive remedy for permanently appointed law-enforcement officers who are under investigation by a law-enforcement agency for any reason that could lead to disciplinary action, demotion, or dismissal." Laprade, 94 A.3d at 511 (citing Lynch v. King, 120 R.I. 868, 870 n.1, 391 A.2d 117, 119 n.1 (1978)); In re Simoneau, 652 A.2d 457, 460 (R.I. 1995). "When convened in accordance with the provisions of LEOBOR, a hearing committee is vested with 'broad powers to investigate allegations of police misconduct, hold hearings, and issue decisions that affect the individual rights of permanently appointed law enforcement officers."' Laprade, 94 A.3d at 512 (citing Lynch, 120 R.I. at 878, 391 A.2d at 123). However, it is well settled that "the statutory scheme 'does not give the hearing committee the power summarily to dismiss charges for procedural violations of the Law Enforcement Officers' Bill of ...

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