MEMORANDUM & ORDER

GORTON, J.

This case involves a suit brought under 42 U.S.C. § 1983 by Anthony Dew, a pro se prisoner, against the City of Boston, its Police Commissioner and various Boston police officers in their official and individual capacities (collectively, "defendants").

In December, 2014, the Boston Police Department ("BPD") arranged for a confidential informant to purchase drugs from the target of a BPD investigation. Following the purchase, a BPD field test revealed the subject drugs to be heroin. The confidential informant identified Anthony Dew as the individual who sold him the heroin and in January, 2015, BPD obtained a warrant to search Dew's apartment.

In June, 2016, Dew pled guilty to 19 criminal charges, including human trafficking, assault and battery, assault and battery with a dangerous weapon and distribution of Class A, B and C controlled substances.

In the instant case, Dew alleges that the defendants violated his rights under § 1983 by (1) searching his home pursuant to an invalid warrant based on allegedly fabricated probable cause and (2) failing to implement meaningful policies to discourage lawless official conduct.

Magistrate Judge Boal issued a Report and Recommendation ("R & R") on August 8, 2019, recommending that this Court dismiss Dew's claims against all defendants (Docket Entry No. 59). Dew filed an objection to the R & R on August 26, 2019 (Docket Entry No. 62).

In his objection, Dew, who represents himself pro se, appears to make three arguments: (1) his criminal conviction is not yet final; (2) success on his § 1983 claim would not necessitate invalidating his plea; and (3) he is entitled to post-conviction DNA testing and forensic analysis to show the search warrant was based on fabricated evidence.

With respect to the finality of his criminal conviction, Dew directs the Court to his application for further appellate review by the Massachusetts Supreme Judicial Court ("the SJC"). He correctly points out that his application for further appellate review by the SJC was still pending when Magistrate Judge Boal issued her R & R. On September 13, 2019, however, the SJC denied Dew's application. Accordingly, Dew's conviction is final.

Dew's remaining objections are either irrelevant or unpersuasive. With respect to his second objection, Dew's § 1983 claim is barred by the favorable termination doctrine for the reasons identified by Magistrate Judge Boal in the R & R at pages 8-10.

Dew's third objection is properly construed as proffering additional argument in support of his pending Motion For Access to Post Conviction DNA Testing (Docket Entry No. 57). In his motion, Dew seeks discovery relating to the chain of custody for the drugs purchased by the confidential informant as well as DNA testing of the drug bags. Dew apparently contests whether the drugs were actually tested by the state lab and whether his DNA shows up on the drug bags.

Dew's motion for discovery ignores Magistrate Judge Boal's previous order finding that Dew cannot establish good cause for discovery until after a favorable ruling on defendants' motions to dismiss (Docket Entry No. 51). Dew provides no additional reason for why discovery should now be allowed apart from his threadbare allegation that such additional discovery might produce potentially exculpatory evidence. In any event, the motion will be moot after Dew's claims are dismissed.

In short, Dew's objections are overruled and Magistrate Judge Boal's R & R (Docket Entry No. 59) is accepted and adopted.

So ordered.

REPORT AND RECOMMENDATION ON MOTIONS TO DISMISS

[Docket Nos. 30, 47]

August 8, 2019

Boal, M.J.

Pro se plaintiff Anthony Dew alleges that defendants, the City of Boston (the "City"), Boston Police Commissioner William B. Evans, Detective Robert T. Charbonnier, Detective Ludwik Bartkiewicz, Sergeant Detective James Miller, and Officer Donald Nicholas, violated his civil rights under 42 U.S.C. § 1983. Docket No. 1 ("Complaint").1 The City and the individual defendants have separately filed motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Docket Nos. 30, 47. For the following reasons, the undersigned recommends2 that the District Judge grant the motions.

I. SCOPE OF THE RECORD

The City has submitted, as part of its motion to dismiss, a copy of the criminal docket in Dew's state court case, as well as the Massachusetts Supreme Judicial Court ("SJC") decision affirming the trial court's denial of Dew's motion for a new trial. See Docket Nos. 31-1, 31-2. As part of his opposition to the motion, Dew has attached public documents from his state court case, as well as the Operating Procedures for the Boston Police Department ("BPD") Drug Control Division. See Docket Nos. 53-1, 53-2, 53-5, 53-6.

In considering the merits of a motion to dismiss, the court may look only to the facts alleged in the pleadings and documents attached as exhibits or incorporated by reference in the complaint and matters of which judicial notice can be taken. See Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008) (citing Fed. R. Civ. P. 10(c)). Under certain "narrow exceptions," however, some extrinsic documents may be considered without converting a motion to dismiss into a motion for summary judgment. Freeman v. Town of Hudson, 714 F.3d 29, 36 (1st Cir. 2013) (citing Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)). "These exceptions include documents the authenticity of which are not disputed by the parties; official public records; documents central to plaintiffs' claim; and documents sufficiently referred to in the complaint." Id. (internal quotations, modifications, and citations omitted). Matters of public record ordinarily include documents from prior state court adjudications. Giragosian v. Ryan, 547 F.3d 59, 66 (1st Cir. 2008). Accordingly, the undersigned may consider the underlying state court docket, SJC opinion and other public documents from Dew's state court case in connection with the motions to dismiss. However, the undersigned may not consider the BPD Operating Procedures because that document was neither attached to nor referenced in the complaint, nor does it satisfy any other exception for considering information out-side of the pleadings in the context of a Rule 12(b)(6) motion.

II. FACTS

On December 6, 2014, Dew rented a room at 49 Maxwell Street, Apt. 2, Dorchester, Massachusetts. Complaint ¶ 9(A). Around that time, Dew alleges that a black Hispanic male known as "Money" was the target of a BPD investigation. Id. ¶ 9(B); Docket No. 1-3 at 4-5. The BPD search warrant application attached to the complaint indicates that the BPD believed that Dew was known as "Money." Docket No. 1-3 at 4-5.

Dew alleges that defendants Charbonnier, Miller, Nicholas and Bartkiewicz were assigned to the BPD Drug Control Unit. Complaint ¶ 7. Defendants Charbonnier, Miller and Nicholas arranged for a confidential informant ("CI") to purchase heroin from "Money." Id. ¶ 9(B); Docket No. 1-3 at 13. Charbonnier field tested a portion of the suspected drugs, which tested positive for heroin, and later forwarded the drugs to the state police laboratory for further analysis. Complaint ¶ 9(C); Docket No. 1-3 at 14. Charbonnier printed a sanitized photograph (meaning, a photograph with no names or markings) of Dew and showed it to the CI. Complaint ¶ 9(E). The CI positively identified the person in the photograph as the individual that had sold the CI drugs. Docket No. 1-3 at 14.

On January 13, 2015, BPD obtained a search warrant for Dew's apartment at 49 Maxwell Street. Complaint ¶ 9(F); Docket 1-3 at 12. At 5:00 a.m. on January 15, 2015, Charbonnier executed the search warrant, forcefully entering Dew's apartment with a handheld "ram." Id. ¶ 9(I). At the time, Dew alleges that he was getting ready to appear at New Bedford District Court. Id. ¶ 9(G). A non-party BPD officer allegedly put a gun to Dew's head, laid him down on the floor and handcuffed him. Id. ¶ 9(I). Dew alleges that Charbonnier gave him a cigarette to smoke. Id.

Officers transported Dew to a police station where another non-party BPD officer arrested him. Id. ¶ 9(K). At the police station, Dew alleges that he was informed of his rights, searched, placed in a cell, and booked. Id. ¶ 9(K), 9(L).

Members of the BPD Sexual Assault Unit escorted Dew to a second-floor interview room. Id. ¶ 9(L). While the officers were attempting to remove Dew's handcuffs, he alleges that the handcuffs got stuck on his right wrist. Id. The Boston Fire Department purportedly responded to the situation and removed the handcuffs. Id.

On June 1, 2016, Dew pled guilty to a total of nineteen charges, including human trafficking; assault and battery; assault and battery with a dangerous weapon; and distribution of Class A, B and C controlled substances. Docket No. 31-1 at 12-13. On November 9, 2017, Dew filed a motion for a new trial in which he sought to withdraw his guilty plea. Id. at 20; Docket No. 31-2 at 2. The trial court denied that motion on April 3, 2018, and on October 30, 2018, the SJC affirmed the trial court's decision. Docket Nos. 31-1 at 22; 31-2.

III. PROCEDURAL HISTORY

Dew commenced this action on July 2, 2018. The complaint initially articulates two bases for his Section 19833 claim: (1) that the search warrant was invalid and based on allegedly fabricated probable cause which led to his arrest on false pretenses; and (2) that Commissioner Evans and the "County of Suffolk Boston Police Department as the Employer of the Personnel" failed to take corrective action or implement meaningful procedures and/or training to discourage lawless official conduct. Complaint ¶¶ 1-2. The complaint later alleges, without elaboration, a series of civil rights violations and tort claims. Id. ¶¶ 11, 12, 14. Dew has sued the individual defendants in both their individual and official capacities. Id. ¶¶ 7-8.

On November 16, 2018, the City filed its motion to dismiss and on December 14, 2018, the individual defendants filed their motion to dismiss. Docket Nos. 30, 47. The City's motion seeks to dismiss all claims against it and the individual defendants to the extent they are sued in an official capacity. Docket No. 30. The individual defendants' motion seeks to dismiss the claims asserted against them in their individual capacities. Docket No. 47. Dew opposed both motions. Docket Nos. 39, 52.

IV. STANDARD OF REVIEW

To survive a motion to dismiss pursuant to Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citation omitted).

When considering a motion to dismiss under Rule 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Decotiis v. Whittemore, 635 F.3d 22, 28-29 (1st Cir. 2011) (citation omitted). However, while the court must accept as true all the factual allegations contained in the complaint, that doctrine is not applicable to legal conclusions. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citation omitted); see also Sanchez v. Pereira-Castillo, 590 F.3d 31, 48 (1st Cir. 2009) ("In other words, a plaintiff must offer `more than an unadorned, the-defendant-unlawfully-harmed-me accusation,' in order to claim a `plausible entitlement to relief.'") (citations omitted). Accordingly, a complaint does not state a claim for relief where the well-pleaded facts fail to warrant an inference of any more than the mere possibility of liability. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

A pro se complaint is subject to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Indeed, pro se pleadings are to be liberally construed. Ayala Serrano v. Lebron Gonzalez, 909 F.2d 8, 12 (1st Cir. 1990). However, "this cannot be taken to mean that pro se complaints are held to no standard at all." Eke v. Deutsche Lufthansa, No. 13-11099-GAO, 2013 WL 12201891, at *5 (D. Mass. Oct. 2, 2013) (citation omitted).

V. DISCUSSION

A. Section 1983 Claims

Section 1983 is a vehicle through which individuals may sue certain persons acting under the color of state law for deprivation of federally assured rights. Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir. 2008). Specifically, Section 1983 states:

1. Individual Defendants In Their Official Capacities

Dew has sued the individual defendants in both their individual and official capacities. Complaint ¶¶ 7-8. However, a state official acting in his official capacity cannot be sued for damages in a Section 1983 action. Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 28 (1st Cir. 2002); Wang v. N.H. Bd. of Registration in Med., 55 F.3d 698, 700 (1st Cir. 1995). Accordingly, Dew's Section 1983 claims against the individual defendants in their official capacities should be dismissed on this basis alone.

2. Supervisory Liability4

In Section 1983 claims, a defendant may not be held liable on a theory of vicarious liability. Baptista v. Hodgson, No. 16-cv-11476-LTS, 2019 WL 319584, at *5 (D. Mass. Jan. 24, 2019) (citing Iqbal, 556 U.S. at 676, 129 S.Ct. 1937). As the Baptista court explained:

Baptista, 2019 WL 319584, at *5. Here, the complaint does not allege any individual actions on the part of Commissioner Evans, let alone any actions that display his deliberative indifference toward the rights of third parties. Therefore, the complaint necessarily does not allege any facts that demonstrate that Evans' actions had a causal connection to Dew's claims. Accordingly, the failure to train claim against Commissioner Evans in his individual capacity should be dismissed on this basis alone.

3. Heck v. Humphrey's Favorable Termination Rule

Both motions to dismiss argue that the Section 1983 claims are barred by the "favorable termination" rule as stated in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Docket Nos. 31 at 5-6; 48 at 6-8. In Heck, the Supreme Court held that a Section 1983 claim is not cognizable if its success would necessarily imply the invalidity of an underlying conviction or sentence. Heck, 512 U.S. at 486-87, 114 S.Ct. 2364. The Supreme Court further held that:

Id. (internal citation omitted). Without such a showing of favorable termination, a prisoner's cause of action that would necessarily demonstrate the invalidity of the conviction is barred. Aldrich v. City of Cambridge, No. 12-12273-RGS, 2012 WL 6622495, at *8 (D. Mass. Dec. 18, 2012) (citing Heck, 512 U.S. at 489, 114 S.Ct. 2364).

The favorable termination requirement "avoids parallel litigation over the issues of probable cause and guilt" and "precludes the possibility ... of two conflicting resolutions arising out of the same or identical transaction." Heck, 512 U.S. at 484, 114 S.Ct. 2364 (citation omitted). It has been extended to a wide variety of criminal challenges where success "`would, if established, necessarily imply the invalidity of the deprivation....'" Aldrich, 2012 WL 6622495, at *8 (quoting Edwards v. Balisok, 520 U.S. 641, 646, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997)).

In applying this rule to a Section 1983 claim, courts must first consider whether a judgment in favor of the plaintiff would undermine the validity of that plaintiff's conviction. Heck, 512 U.S. at 487, 114 S.Ct. 2364. If so, the claim is not cognizable unless there has been a favorable termination of that conviction. Id.

Here, Dew's remaining Section 1983 claims implicate the validity of his conviction. His Fourth Amendment claims allege that the defendants arrested him without probable cause, Complaint ¶ 14(A), whereas his Fifth Amendment claims challenge the validity of the government's evidence and testimony in his state court proceeding. Id. ¶ 14(B). Dew's Sixth Amendment claims allege that the defendants failed to timely disclose Brady material to his attorney and concealed discoverable information from that attorney. Id. ¶ 14(C). All these claims challenge the validity of Dew's conviction. See, e.g., Figueroa v. Rivera, 147 F.3d 77, 80 (1st Cir. 1998); Cabot v. Lewis, 241 F.Supp.3d 239, 255 (D. Mass. 2017); Sullivan v. Flaherty, No. 14-cv-14299-ADB, 2015 WL 1431151, at *4 (D. Mass. Mar. 27, 2015); Spencer v. Dookhan, No. 13-11431-DJC, 2014 WL 6904377, at *4 (D. Mass. Dec. 5, 2014); Aldrich, 2012 WL 6622495, at *8-*9.

Dew has not pled a favorable termination of his conviction. Instead, the facts demonstrate that he pled guilty and that his conviction has not been overturned. Docket Nos. 31-1, 31-2.5 Accordingly, Heck bars all remaining Section 1983 claims.6

4. Municipal Liability Under Monell v. Department Of Social Services Of New York

Dew has sued the City as the employer of the individual defendants. Complaint ¶ 2. The City argues that Dew cannot allege municipal liability under Monell v. Department of Social Services of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), because he failed to identify an unconstitutional policy or custom that was the "moving force" behind his alleged injuries. Docket No. 31 at 6-9. In Monell, the Supreme Court held that municipalities may be liable when a plaintiff is injured by an action pursuant to a municipality's policy or custom. Monell, 436 U.S. at 690-91, 98 S.Ct. 2018. The Supreme Court has also held that there are "limited circumstances" in which a municipality's lack of training or supervision is equivalent to an official governmental policy for purposes of this analysis. Connick v. Thompson, 563 U.S. 51, 61, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011); Rodriques v. Furtado, 950 F.2d 805, 813 (1st Cir. 1991). Those circumstances occur when the failure to train or supervise amounts to "deliberate indifference to the rights of persons with whom the [untrained employees] come into contact." Connick, 563 U.S. at 61, 131 S.Ct. 1350 (citation omitted).

Dew has not identified any allegedly unconstitutional policy. To the extent that Dew alleges that Commissioner Evans' purported failure to train and supervise is equivalent to the City's policy, that claim is not viable. As discussed above, the complaint fails to allege any actions that display Commissioner Evans' deliberative indifference towards the rights of third parties. Accordingly, Dew's Section 1983 claim against the City should be dismissed on this basis as well.

In his opposition to the City's motion to dismiss, Dew includes a request to amend his complaint to "set forth those rules, regulations[,] policy, [and] statute[s]" that BPD must follow and to describe how those policies violated his constitutional rights. Docket No. 39 at 8. This Court finds that any such amendment would be futile. Municipal liability may only be imposed when there are "underlying, identifiable constitutional violations" that are "attributable to official municipal policy." Kennedy v. Town of Billerica, 617 F.3d 520, 531 (1st Cir. 2010) (citation omitted). In other words, a constitutional violation is an element of a Monell claim. As discussed above, successfully proving such a violation in this case would implicate the validity of Dew's conviction. Therefore, even if Dew set forth a policy that caused the alleged constitutional violations, Dew's Monell claim would still be barred by Heck. Cf. Mangual v. City of Worcester, 285 F.Supp.3d 465, 473 n.4 (D. Mass. 2018) (holding a Section 1983 unlawful search claim against a municipality under Monell was barred by Heck due to the interrelated nature of the two claims). For these reasons, this Court does not recommend that Dew be allowed to amend his complaint on this basis.

Accordingly, this Court recommends that all of Dew's Section 1983 claims be dismissed.

B. Dew's State Tort Claims

Dew appears to allege the following tort claims: false arrest; false imprisonment; malicious prosecution; abuse of process; negligence; and gross negligence. Complaint ¶ 12. In light of this Court's recommendation that the federal constitutional claims be dismissed, this Court also recommends that the District Judge decline to exercise supplemental jurisdiction over any state law claims.

A district court's original jurisdiction extends, among other things, to "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. If an action includes both federal and state law claims, then the district court may exercise supplemental jurisdiction over the state law claims. 28 U.S.C. § 1367(a). In a case in which all federal claims are eliminated before trial, however, "the balance of factors to be considered under the pendent jurisdiction doctrine-judicial economy, convenience, fairness, and comity-will point toward declining to exercise jurisdiction over the remaining state-law claims." Wilber v. Curtis, 872 F.3d 15, 23 (1st Cir. 2017) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988)). If no federal claim remains, it may be an abuse of discretion for a district court to retain jurisdiction over a pendent state law claim. Smith v. Town of W. Bridgewater, No. 16-11714-FDS, 2018 WL 3370624, at *8 (D. Mass. July 10, 2018) (quoting Wilber, 872 F.3d at 23). Where, as here, the federal claims are dismissed at an early stage of the litigation, "the balance of competing factors ordinarily weigh strongly in favor of declining jurisdiction over state law claims." Camelio v. Am. Fed'n, 137 F.3d 666, 672 (1st Cir. 1998). There is no reason, based on a review of the parties' pleadings, why this Court should not follow the ordinary rule and decline to exercise jurisdiction over the state law claims. This Court therefore recommends that the District Judge decline to exercise supplemental jurisdiction over the remaining claims.

VI. RECOMMENDATION

For the foregoing reasons, the undersigned recommends that the District Judge grant the motions to dismiss.

VII. REVIEW BY DISTRICT JUDGE

The parties are hereby advised that under the provisions of Fed. R. Civ. P. 72(b), any party who objects to these proposed findings and recommendations must file specific written objections thereto with the Clerk of this Court within 14 days of service of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made, and the basis for such objections. See Fed. R. Civ. P. 72. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Fed. R. Civ. P. 72(b) will preclude further appellate review of the District Court's order based on this Report and Recommendation. See Phinney v. Wentworth Douglas Hosp., 199 F.3d 1 (1st Cir. 1999); Sunview Condo. Ass'n v. Flexel Int'l, Ltd., 116 F.3d 962 (1st Cir. 1997); Pagano v. Frank, 983 F.2d 343 (1st Cir. 1993).