United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
WILLIAM E. SMITH, CHIEF JUDGE
the Court is Defendants Robert Pacheco's and Joseph T.
Little's, in their Individual and Official Capacities,
Motion To Dismiss (“Motion”). (ECF No. 18.)
Defendants move to dismiss for failure to state a claim
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. (Id.) For the reasons set forth below,
the Court DENIES the Motion with respect to Pacheco and
GRANTS without prejudice the Motion with respect to Little.
29, 2016, Plaintiff Taja Gonsalves went to the Providence
Regional Family Center (“Center”) for an
appointment with an employee of the Department of Human
Services (“DHS”) regarding benefits for herself
and her three children. (Compl. ¶¶ 10-11, 19, ECF.
No. 1.) Rhode Island Capitol Police are assigned to the
Center to carry out duties such as locking and unlocking the
main entrance, staffing the metal detector, and monitoring
the building's occupancy as per the State Fire Marshall.
(Id. ¶¶ 14- 15.) On this day, Defendants
Neil Laird, Robert Tella, and Robert Pacheco, all members of
the Rhode Island Capitol Police, were posted to the Center.
(Id. ¶ 18.) Defendant Little is the Chief of
the Capitol Police. (Id. ¶ 6.)
Plaintiff arrived at the Center, the front doors were locked.
(Id. ¶ 21.) Laird opened the door and informed
Plaintiff that no one could enter the building because it was
over capacity and would be shut down by the Fire Marshall.
(Id. ¶ 24.) Plaintiff informed Laird that she
had an appointment with DHS and asked if he could inform DHS
staff that she had arrived for her appointment. (Id.
¶ 25.) Laird refused. (Id. ¶ 26.) In
additional interactions with Laird when Plaintiff attempted
to enter the building, Laird similarly informed Plaintiff
that she would be denied entry. (Id. ¶¶
Plaintiff entered the Center after the front doors were
unlocked, Laird was standing near the metal detector, Pacheco
was in the area near the metal detector, and Tella was on
break in the back of the Center. (Id. ¶¶
46, 49-52.) As Plaintiff approached the metal detector, Laird
informed her that she would be arrested. (Id.
¶¶ 53-54.) Then, Pacheco radioed Tella and told him
to come to the front. (Id. ¶ 54.) Once Tella
came out of the back office, Plaintiff alleges that Laird and
Tella used excessive force when they arrested her.
(Id. ¶¶ 58-69.)
her arrest, Plaintiff alleges that Laird grabbed her right
arm and twisted it sharply behind her back, which caused her
severe pain and an audible popping sound from her shoulder.
(Id. ¶ 59.) Plaintiff alleges that she screamed
out in pain and said that she was not resisting arrest, which
was followed by Laird slamming her face and chest into the
desk adjacent to the metal detector. (Id.
¶¶ 60-61.) Plaintiff further avers that Laird and
Tella forced handcuffs onto her left wrist, over a brace she
had been wearing for medical treatment, pulled both of her
arms behind her back, and tightened the handcuffs so
excessively that her fingers turned blue. (Id.
¶¶ 62-63.) After being handcuffed, Plaintiff
asserts that Laird and Tella pushed and shoved her through
the reception area and waiting room of the Center, with her
arms pulled up at an angle that caused her pain, which was
exacerbated by the height difference between her and Laird.
(Id. ¶¶ 64-66.) During this pushing and
shoving, Plaintiff alleges that Laird or Tella, or both,
squeezed her upper left arm with enough force to break the
birth control device implanted therein, and that Laird and
Tella pushed her hard enough to cause her to fall to the
floor. (Id. ¶¶ 67-68.) Ultimately, Laird
and Tella brought Plaintiff to a small room at the back of
the Center, where Plaintiff claims that Laird pushed her into
a chair. (Id. ¶ 69.)
has since asserted claims through 42 U.S.C § 1983 for
retaliatory arrest in violation of the First Amendment, false
arrest and false imprisonment in violation of the Fourth
Amendment, and excessive force and malicious prosecution in
violation of the Fourth and Fourteenth
Amendments. Relevant to this particular motion are the
claims brought through § 1983 for Fourth and Fourteenth
Amendment violations for excessive force brought against
Pacheco, and First and Fourth Amendment violations brought
deciding a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the Court “accept[s] the truth of all
well-pleaded facts and draw[s] all reasonable inferences
therefrom in the pleader's favor.”
García-Catalán v. United States, 734
F.3d 100, 102 (1st Cir. 2013) (quoting Grajales v. P.R.
Ports Auth., 682 F.3d 40, 44 (1st Cir. 2012)).
“[H]er claim must suggest ‘more than a sheer
possibility that a defendant has acted
unlawfully.'” Id. at 102- 03 (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In
other words, “the claim must be ‘plausible on its
face.'” Id. at 103 (quoting
Iqbal, 556 U.S. at 678). In determining
plausibility, “the reviewing court [must] draw on its
judicial experience and common sense.” Id.
(alteration in original) (quoting Iqbal, 556 U.S. at
679). Additionally, “the complaint must be read as a
whole.” Id. (citing A.G. v. Elsevier,
Inc., 732 F.3d 77, 78-79 (1st Cir. 2013)). Moreover, the
“plausibility inquiry properly takes into account
whether discovery can reasonably be expected to fill any
holes in the pleader's case.” Id. at
104-05 (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 556 (2007)).
argue that the allegations in the Complaint are too tenuous
and insufficient to support excessive-force claims against
Pacheco because of his mere bystander presence. (Defs. Robert
Pacheco's and Joseph T. Little's Mem. in Supp. of
Mot. To Dismiss (“Defs.' Memo”) 6-7, ECF No.
18.) However, while Plaintiff's allegations against
Pacheco are slight, when viewed in context of the alleged
events as a whole, Plaintiff's allegations suffice at the
motion-to-dismiss stage. (See Compl. ¶¶ 4,
18, 51, 55.)
officer who is present at the scene and who fails to take
reasonable steps to protect the victim of another
officer's use of excessive force can be held liable under
section 1983 for his nonfeasance.” Gaudreault v.
Municipality of Salem, 923 F.2d 203, 207 n.3 (1st Cir.
1990). However, “[h]is mere presence at the scene,
without more, does not . . . render him legally responsible .
. . for the actions of a fellow officer.” Calvi v.
Knox Cty., 470 F.3d 422, 428 (1st Cir. 2006) (citing
Gaudreault, 923 F.2d at 207 n.3). Similarly, a
“police officer cannot be held liable for failing to
intercede if he has no ‘realistic opportunity' to
prevent an attack.” Gaudreault, 923 F.2d at
207 n.3. (quoting O'Neill v. Krzeminski, 839
F.2d 9, 11-12 (2d Cir. 1988)). Although, “[a]