JOAO DEPINA v. WORCESTER COUNTY DISTRICT ATTORNEY'S OFFICE & Others.

• Court: Massachusetts Appeals Court
• Decided: January 31, 2025
• Docket: 23-P-0985
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-985

JOAO DEPINA

vs.

WORCESTER COUNTY DISTRICT ATTORNEY'S OFFICE & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2021, Suffolk County District Attorney Rachael Rollins

caused a criminal complaint to be filed against the plaintiff,

Joao DePina, alleging intimidation after he heckled Rollins

during a televised press conference.2 At the time, DePina was

1Joseph D. Early, Jr.; Anthony Melia; Dante Williams, in their personal and official capacities; Rachael Rollins, in her personal capacity; and the Boston Police Department.

2During the press conference, DePina interrupted Rollins repeatedly, loudly questioning her on policies related to gun violence, her nomination as the United States Attorney for the District of Massachusetts, and her lack of response to his brother's fatal shooting. He also "criticize[d] Rollins for abusing her power as a public official." DePina shouted to Rollins that she was "emotionally disturbed" and made derogatory comments about her boyfriend. He referred to one of his pending criminal cases involving alleged harassment of a State representative using a State-issued cell phone. both a "community activist" and a defendant in three pending

criminal cases being prosecuted by the Suffolk County district

attorney's office. DePina video-recorded events beginning

before and extending after the press conference, then uploaded

the recording to his Facebook Live page. Boston Police

Detective Dante Williams, who was present at the press

conference, filed a police report detailing DePina's behavior at

the press conference. Williams's police report was appended to

an application for a criminal complaint filed in the Boston

Municipal Court (BMC).3 A magistrate found probable cause to

issue the complaint against DePina for intimidation pursuant to

G. L. c. 268, § 13B. The Suffolk County district attorney's

office recused itself, and the Worcester County district

attorney's office took over prosecution of the case. In 2022, a

BMC judge dismissed the intimidation complaint for lack of

probable cause. DePina then commenced this action in the

Superior Court alleging malicious prosecution, malicious abuse

of process, retaliation for free speech, intentional infliction

of emotional distress, and negligent infliction of emotional

distress against Rollins, the Worcester County district

3 Williams was not the complainant; the complainant was Bienvenido Delacruz, presumably another Boston police officer. We note that Williams's name does appear as the complainant in one portion of the application for criminal complaint, but the signature on both the application and the complaint, as well as the printed name of the complainant is "Bienvenido Delacruz."

2 attorney's office, Worcester County District Attorney Joseph

Early, Jr., Assistant District Attorney Anthony Melia, the

Boston Police Department, and Detective Williams. A judge

allowed the defendants' motions to dismiss each of these claims

based on absolute and qualified immunity. DePina appeals only

the dismissals of his claims against Rollins and Williams.4 We

affirm.

Discussion. 1. Standard of review. "We review the

allowance of a motion to dismiss de novo, accepting as true all

well-pleaded facts alleged in the complaint" (citation omitted).

Osborne-Trussell v. Children's Hosp. Corp., 488 Mass. 248, 253

(2021). To survive a motion to dismiss, the plaintiff must

present, at the pleading stage, "factual 'allegations plausibly

suggesting (not merely consistent with)' an entitlement to

relief." United Oil Heat, Inc. v. M.J. Meehan Excavating, Inc.,

95 Mass. App. Ct. 579, 581 (2019), quoting Iannacchino v. Ford

Motor Co., 451 Mass. 623, 636 (2008).

4 During oral argument, DePina conceded that District Attorney Early, Assistant District Attorney Melia, and the Worcester County district attorney's office acted solely within the bounds of their official duties as prosecutors, and thus were entitled to absolute prosecutorial immunity.

3 2. Rollins's absolute prosecutorial immunity.5 The

doctrine of absolute prosecutorial immunity protects prosecutors

from "private suits for what they do in the discharge of their

official duties" (citation omitted). Chicopee Lions Club v.

District Attorney for the Hampden Dist., 396 Mass. 244, 251

(1985). Prosecutors "are entitled to the protection the law

gives them, not because of concern for their personal immunity,

but because such immunity tends to insure zealous and fearless

administration of the law" (citation omitted). Id. "[T]he

touchstone for absolute immunity for prosecutorial functions is

conduct that is 'intimately associated with the judicial phase

of the criminal process.'" C.M. v. Commissioner of the Dep't of

Children & Families, 487 Mass. 639, 648 (2021), quoting Imbler

v. Pachtman, 424 U.S. 409, 430 (1976).

DePina contends that Rollins abused her power "to target

[DePina] for prosecution." His complaint alleged that "Rollins

caused a criminal complaint to be filed." It also alleged that

Detective Williams filed his report, which was the basis for the

criminal complaint, at Rollins's "behest."

DePina argues that Rollins was not entitled to absolute

immunity because she was "merely a complaining witness." See

5 Although the plaintiff argues that absolute prosecutorial immunity should be abolished, he acknowledges that this court lacks the authority to do so. See Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485-486 (2003).

4 C.M., 487 Mass. at 647-648 (prosecutor not entitled to absolute

immunity when acting as witness by attesting to facts in support

of warrant). However, this assertion is untenable given the

allegations of DePina's own complaint. Moreover, it is belied

by DePina's argument on appeal that Rollins abused her power to

target DePina for prosecution.

In DePina's complaint, he alleged that "Rollins caused a

criminal complaint to be filed." He also alleged that Detective

Williams filed his report, which was the basis for the criminal

complaint, at Rollins's "behest." A private citizen does not

have the legal authority to "cause" a criminal complaint to be

filed or to command a police officer to file a report to

initiate a prosecution. See Matter of Chapman, 482 Mass. 1012,

1014 (2019) (private individuals have no standing to demand

prosecution where Commonwealth alone has prerogative and

responsibility to prosecute criminal offenses); Commonwealth v.

Orbin O., 478 Mass. 759, 765-766 (2018) (private citizen lacks

judicially cognizable interest in prosecution).

To the extent DePina contends that Rollins's "personal

influence" was a separate power distinct from her authority as a

prosecutor in this case, we disagree. Only a prosecutor, in

exercising her discretion, can decide which criminal complaints

will be filed. See Commonwealth v. Johnson, 75 Mass. App. Ct.

903, 906 (2009) (Commonwealth retains authority to make

5 determination regarding charging decisions). Because we

conclude that Rollins's ability to "cause" the criminal

complaint to be filed was inextricable from her authority as

Suffolk County's chief prosecutor, we agree with the motion

judge that Rollins's conduct was a prosecutorial advocacy

function necessarily implicating her "exercise [of] independent

judgment" in deciding "which suits to bring and in conducting

them in court" (citation omitted). Kalina v. Fletcher, 522 U.S.

118, 125 (1997). Initiating DePina's prosecution and directing

police to take steps necessary to prosecute him for his conduct

at the press conference were actions "sufficiently related to

the prosecutorial function to warrant absolute protection."

Chicopee Lions Club, 396 Mass. at 252. Thus, Rollins was

entitled to absolute prosecutorial immunity and the claims

against her were properly dismissed.

3. Williams's qualified immunity. "[Police] officers

performing discretionary functions generally are shielded from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights

of which a reasonable person would have known" (quotation and

citation omitted). Gallagher v. South Shore Hosp., Inc., 101

Mass. App. Ct. 807, 828 (2022). Analysis of the qualified

immunity defense requires a two-part inquiry into whether,

6 "[t]aken in the light most favorable to the party asserting the injury . . . the facts alleged show the officer's conduct violated a constitutional right, and, if so, whether the right was clearly established so that it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted" (quotations and citation omitted).

Longval v. Commissioner of Correction, 448 Mass. 412, 419

(2007).

According to DePina's complaint, Detective Williams

violated his constitutional rights by knowingly filing a false

police report in response to DePina's exercise of free speech at

the press conference. DePina also alleged that Williams

conspired with Rollins to "create" the police report that led to

DePina's criminal prosecution for Rollins's benefit. The

complaint further alleged that Williams initiated6 a criminal

complaint against DePina for intimidation that no reasonable

police officer "could have believed . . . was valid and was

anything other than a retaliatory act against DePina for his

[protected] speech [against Rollins]."7

DePina does not identify, in his complaint or on appeal,

any particular statements in Detective Williams's police report

6 Again, we note that Williams was not the complainant.

7 As relevant here, intimidation is established by probable cause of (1) willful (2) direct or indirect (3) threats, intimidation or harassment (4) of an attorney (Rollins) (5) with the intent to or with reckless disregard for the fact that it may (6) impede, obstruct, delay, prevent or otherwise interfere with a criminal proceeding. G. L. c. 268, § 13B.

7 that were false. Williams stated in his report that he

witnessed DePina from about ten feet away making loud, heckling,

personally offensive statements to Rollins during her press

conference. The report also stated that Rollins was aware at

the time that DePina had three pending criminal cases being

prosecuted by the Suffolk County district attorney's office. It

described DePina as making "indirect" references to those cases

during his "verbal offensive," and stated that DePina appeared

to intend to "effect or interfere" with his pending cases. The

report noted that one of those cases was scheduled to be heard

in court less than a week after the press conference. Finally,

Williams's narrative cited DePina's "multiple" unsuccessful

prior attempts to contact Rollins to discuss his pending cases

and a "similar incident" a few months prior, from which "this

incident appear[ed] to be an escalation."

William's descriptions of the scene, as well as the tone,

volume, tenor, and content of DePina's statements were

corroborated by DePina's Facebook Live video recording. See

Rosenberg v. JPMorgan Chase & Co., 487 Mass. 403, 408 (2021)

(any extrinsic documents attached or incorporated by reference

to complaint may be considered in motion to dismiss). DePina

also referred to his pending Suffolk County cases in the

Facebook Live video, and his complaint implicitly acknowledged

that he was being prosecuted by Rollins's office on more than

8 one case at the time of the press conference.8 Williams's

statement of his own impression of DePina's apparent intent when

he referred to his pending criminal cases cannot be said to be

false. Finally, DePina's complaint did not dispute that he

attempted to contact Rollins privately about his cases and had

appeared at an earlier press conference. In short, there were

no "well-pleaded" allegations of a false police report by

Williams. See Verveine Corp. v. Strathmore Ins. Co., 489 Mass.

534, 538 (2022) ("[w]e do not regard as 'true' legal conclusions

cast in the form of factual allegations" [citation omitted]).

Thus, even in the light most favorable to DePina, the facts

alleged in his complaint do not show that Williams violated a

constitutional right. See Longval, 448 Mass. at 419.

Moreover, we disagree with DePina that no reasonable police

officer could have believed that criminally charging DePina

based on his behavior at the press conference was anything other

than retaliation for his exercise of free speech.

"Because probable cause, by its nature, turn[s] on the assessment of probabilities in particular factual contexts and cannot be reduced to a neat set of legal rules, qualified immunity will protect an officer in the absence of an identified body of relevant case law that clearly establishes the answer with respect to probable cause" (quotation and citation omitted).

8 We take Williams's statement that he "secured a copy of the recording" to mean that he reviewed the video before writing his report.

9 Ortiz v. Morris, 97 Mass. App. Ct. 358, 363 (2020). Here, no

such identified body of case law exists.9 Furthermore, taken

together, the facts outlined in Detective Williams's police

report, supplemented by the Facebook Live video, supported at

least arguable probable cause to charge DePina with

intimidation. See Hrycenko v. Commonwealth, 459 Mass. 503, 511

(2011) ("Words do not need to be expressly intimidating,

threatening, or harassing" to constitute intimidation); see also

Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 799 (1998)

(purpose of witness intimidation statute is to prevent

interference with administration of justice). Based on the

circumstances known to Detective Williams at the time he wrote

his report, it would not have been clear to a reasonable police

officer that it was unlawful to follow the district attorney's

order to write a report that initiated the process to prosecute

DePina for intimidation. We thus conclude that Detective

Williams was protected by qualified immunity for his role in the

process that resulted in the criminal complaint for intimidation

against DePina. The claims against Detective Williams were

properly dismissed. See Longval, 448 Mass. at 418 n.10

9 The only authority cited by DePina is a United States Court of Appeals for the Third Circuit case that, unlike the present case, turned on witness credibility. See Losch v. Borough of Parkesburg, Pa., 736 F.2d 903, 909 (3d Cir. 1984).

10 (qualified immunity may be decided on motion to dismiss where

applicability clear from allegations in complaint).

Judgment affirmed.

By the Court (Rubin, Hand & Brennan, JJ.10),

Clerk

Entered: January 31, 2025.

10 The panelists are listed in order of seniority.