Ricci et al v. Town of Smithfield et al

1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
____________________________________
)
JOSEPH RICCI and CUSTOM 	)
CONSTRUCTION SERVICES, LLC, 	)
Plaintiffs, 	)
)
v. 	) 	No. 1:20-cv-00543-MSM-PAS
)
STATE OF RHODE ISLAND and 	)
TOWN OF SMITHFIELD, et al. 	)
Defendants. 	)
____________________________________)
MEMORANDUM AND ORDER
Mary S. McElroy, United States District Judge.
I. 	INTRODUCTION
“[S]ome truths are self-evident. This is one such: if any concept is fundamental to our
American system of justice, it is that those charged with upholding the law are
prohibited from deliberately fabricating evidence and framing individuals for crimes
they did not commit. … Actions taken in contravention of this prohibition necessarily
violate due process (indeed, we are unsure what due process entails if not protection
against deliberate framing under color of official sanction).”
Limone v. Condon, 372 F.3d 39, 44-45 (1st Cir. 2004) (internal citation omitted).
The plaintiffs have, in their Third Amended Complaint (“Complaint”),1 alleged
– and supported with evidence in their summary judgment submission – that
members 	of 	the 	Smithfield 	Police 	Department 	fabricated 	the 	existence 	of 	a
confidential informant in order to obtain a search warrant. 	As further described
1 The Third Amended Complaint is the operative one here and is referred to simply
as “the Complaint.” 	The Court has denied the plaintiffs’ request to amend their
Complaint for a fourth time. (ECF No. 79.)
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below, the statement contained in the Affidavit in support of the warrant that “the
affiant” 	(defendant 	Joseph 	M. 	Marcello, 	hereafter 	“Marcello”) 	had 	received
information from a confidential informant that Joseph Ricci (“Ricci” or “plaintiff”) was
cultivating large amounts of marijuana was clearly false; the affiant under oath at a
deposition denied having any personal contact with an informant. (ECF No. 62-1, at
100.) Moreover, while Marcello said he knew that his supervisor, defendant Michael
Smith (“Smith”), had been the one to actually talk to the informant because Smith
told him that he met with the informant (ECF No. 62-1, at 100-01), that was not
accurate either, as Smith also denied under oath having personal contact with the
informant. 	(ECF No. 62-1, at 138.) 	What adds to the strength of the inference of
fabrication, however, is the failure of the Smithfield Police to find any written
documentation, in the form of any notations or file entries or other memorialization,
that
anyone in the Department had contact with the putative informant. 	(ECF No.
62-1, at 140.) 	Nor did Smith remember ever seeing a notation about an informant.
Id.
Fabrication of evidence cuts to the very heart of the integrity of criminal
prosecutions. It is one thing for parties to, in good faith, argue vehemently about the
law related to the issuance of search warrants and to figuratively “go to war” over the
existence of probable cause. It is quite another for a police officer to lie in pursuit of
the authority to search.
The allegation is serious. 	But however strong the inference is that the police
simply made up the existence of an informant (and neither Smithfield nor any of its
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officers have, in opposition to summary judgment, produced any material negating
the inference), it is still an inference only and not direct proof. Such a conclusion, if
true, should be drawn by a jury, not by a Court on Motion for Summary Judgment.
For that reason, as explained below, the Court denies summary judgment on many
counts of this complaint, although it grants it to certain defendants on others.
II. 	BACKGROUND
This case arises out of a dispute between Smithfield resident Ricci and the
Police Department of the Town of Smithfield over Ricci’s growing marijuana through
the licenses he holds as a medical marijuana user and as a caretaker-grower for
others. 	The State of Rhode Island is only tangentially involved, injected into the
dispute by a request from the Town to institute forfeiture proceedings against
property of the plaintiffs that Smithfield seized. 	Three Smithfield police officers –
Marcello, Smith, and Police Chief Richard St. Sauveur (“St. Sauveur”) – are accused
in the Complaint of having conducted an illegal search of Ricci’s grow operation and
business. After the search, the officers seized the building and equipment on behalf
of the Town of Smithfield. Ricci alleges that during the ensuing several months, the
Town caused the utilities to be turned off, resulting in burst pipes and so much mold
that Ricci and his tenants could no longer work there. 	He and his co-plaintiff
company, Custom Construction Services, LLC,2 seek damages for the value of the
2 	Custom Construction is a plaintiff only with respect to Count II claiming
conversion. 	In the rest of the Counts, the Complaint alleges Ricci as the only
plaintiff. (ECF No. 51.)
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equipment, the tenancies Ricci had and those he would have had, and their lost
income.
The Complaint is a combination of state law and a kitchen-sink of state and
federal constitutional claims. 	At its heart is the contention under the Fourth
Amendment of the United States Constitution that the search and resulting seizure
of the building and equipment was unconstitutional because no probable cause
existed. In the face of warrants that render searches conducted under their authority
presumptively 	reasonable 	and 	therefore 	lawful, 	the 	plaintiffs 	allege 	that 	the
Smithfield police officers deliberately swore to and submitted false and fabricated
information in the affidavits supporting the warrant applications. 	From that alleged
fabrication spring five claims: 	(1) a Fourth Amendment claim brought through 42
U.S.C. § 1983; 	(2) a direct right-of-recovery claim alleging a violation of Rhode
Island’s constitutional search provision, R.I. Const. Art. 1 § 6; (3) a companion claim
that a violation of Article 1 § 6 also constitutes a violation of Rhode Island’s
constitutional due process guarantee, R.I. Const. Art. 1 § 2; (4) a direct right-of-
recovery claim of a denial of due process under Article 1 § 2, and (5) a claim of a denial
of due process under the Fourteenth Amendment. 	The Plaintiffs also claim a
violation of the excessive fines prohibition of the Eighth Amendment and a direct
right-of-recovery under R.I. Const. Art. 1 § 8 on a similar theory. 	There is an
additional claim under the Rhode Island Civil Rights Act (“RICRA”) that Ricci’s
medical marijuana card renders him a “disabled” person and that he has been
discriminated against because of that disability. The remaining claims rely on state
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law causes of action of trespass, conversion, intentional infliction of emotional
distress, false imprisonment, and replevin.
Before the Court are the parties’ Cross-Motions for Summary Judgment (ECF
Nos. 56, 59, 62.) After parsing these claims and reviewing the material submitted by
the parties and the relevant law, the Court DENIES the plaintiffs’ Motion for
Summary Judgment (ECF No. 62), GRANTS the Motions for Summary Judgment of
the State of Rhode Island (ECF No. 59) and of the Town of Smithfield (ECF No. 56),
and GRANTS in part and DENIES in part the Motion for Summary Judgment of the
Smithfield individual police officers (ECF No. 56.)
III. 	STANDARD OF REVIEW
The parties have filed Cross-Motions for Summary Judgment pursuant to Rule
56 of the Federal Rules of Civil Procedure. 	Summary judgment’s role in civil
litigation is “to pierce the pleadings and to assess the proof in order to see whether
there is a genuine need for trial.”
Garside v. Osco Drug Inc., 895 F.2d 46, 50 (1st Cir.
1990) (quoting Fed. R. Civ. P. 56(e) Advisory Committee Notes). Summary judgment
can be granted only when “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show there is no genuine issue
as to any material fact and the moving party is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56. “A dispute is genuine if the evidence about the fact is such
that a reasonable jury could resolve the point in the favor of the non-moving party. A
fact is material if it carries with it the potential to affect the outcome of the suit under
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the applicable law.”
Santiago–Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46,
52 (1st Cir. 2000) (quoting
Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)).
In ruling on a Motion for Summary Judgment, the court must examine the
record evidence “in the light most favorable to, and drawing all reasonable inferences
in favor of, the nonmoving party.”
Feliciano de la Cruz v. El Conquistador Resort &
Country Club, 218 F.3d 1, 5 (1st Cir. 2000) (citing
Mulero–Rodriguez v. Ponte,
Inc., 98 F.3d 670, 672 (1st Cir. 1996)). 	“[W]hen the facts support plausible but
conflicting inferences on a pivotal issue in the case, the judge may not choose between
those inferences at the summary judgment stage.”
Coyne v. Taber Partners I, 53 F.3d
454, 460 (1st Cir. 1995). 	Furthermore, “[s]ummary judgment is not appropriate
merely because the facts offered by the moving party seem most plausible, or because
the opponent is unlikely to prevail at trial. … If the evidence presented ‘is subject to
conflicting interpretations, or reasonable [people] might differ as to its significance,
summary judgment is improper.’”
	Gannon v. Narragansett Elec. Co., 777 F. Supp.
167, 169 (D.R.I. 1991) (citing and partially quoting 10A Charles A. Wright, Arthur R.
Miller & Mary K. Kane,
Federal Practice & Procedure Civil, § 2725, at 104 (1983)).
IV. 	FACTUAL BACKGROUND
A. 	THE SEARCHES
On or about October 17, 2017, Marcello, then a detective on the Smithfield
police force, signed an affidavit, under pain of perjury, swearing that a person
identified as “Source One” “informed [him] that they have knowledge that Joseph M.
Ricci [of Smithfield, Rhode Island] is growing and selling marijuana from his vacant
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commercial building located at [Smithfield, Rhode Island].” 	(ECF No. 62-1, at 53.)
The affidavit alleged that Source One had spoken personally to Marcello. 	Ricci was
indeed growing marijuana, as it is not disputed that he held a license both as a
medical marijuana patient and a caretaker for others which permitted him to grow
up to 12 plants for himself and each of those qualified patients for whom he was a
caretaker. (ECF No. 62-1, at 53)3; R.I.G.L. 21-28.6-4(a) and (f). 	He was also entitled
to possess a certain amount of “usable” marijuana and a certain amount of wet
marijuana.
Id. The Smithfield Police soon became aware of these licenses but called
the Rhode Island Department of Business Regulation (“DBR”) to determine whether
the plaintiff held a “cultivation license.”
	See R.I.G.L. § 21-28.6-16. 	They were told
that he did not. 	DBR, however, never indicated that the plaintiff was required to
hold a special cultivation license and none of the defendants have alleged that he was
so required.
The 	tip 	plus 	Marcello’s 	allegation 	that 	Ricci’s 	van 	was 	seen 	taking 	an
unspecified “evasive motion” [sic] when leaving the business formed the basis of the
affidavit supporting a search warrant issued on October 16, 2017, by state District
Court Judge Stephen Isherwood. 	(ECF No. 62-1, at 52.) 	The Affidavit also recited
that the owner of a silver Ford parked on Ricci’s property was a medical marijuana
patient.
Id. at 54. Finally, the affidavit contained information about a large amount
3 Many facts are undisputed here. 	The central fact in dispute is whether a
confidential informant exists who passed along information to the Smithfield Police
Department, as asserted in the affidavit.
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of electricity being used in the building.
Id. at 55. The warrant authorized Smithfield
to conduct “thermal imaging” from the outside of the building, a search under the
Fourth Amendment.
Kyllo v. United States, 533 US. 27, 40 (2001). The thermal scan
revealed the cultivation of marijuana inside.4 	The scan could not determine the
quantity of marijuana inside the building. (ECF No. 62-1, at 102.)
Smithfield then applied for a second warrant, this time authorizing a search of
the building’s interior. (ECF No. 62-1, at 106.) Again, the affidavit included Marcello
swearing to a personal conversation with Source One. (ECF No. 62-1, at 107.) 	Again,
on October 22, 2017, a warrant was issued.
	Id. at 106. 	Armed with that warrant,
Smithfield police searched the entire property. 	Concluding that the plaintiff was
growing more marijuana than his licenses permitted, Smithfield seized the building
itself, the marijuana, his work van, tools, and other equipment owned by Custom
Construction, and by law became responsible for its care and the upkeep of the
premises. R.I.G.L. § 21-28-5.04.2(d)
On some unspecified date after the seizures, the Smithfield Police Department
had the utilities to the building shut off. According to the Complaint, this resulted in
a number of separate injuries: the building became uninhabitable due to the loss of
utilities and mold that began to grow; the plaintiffs could no longer use the premises;
4 The scan was conducted by an employee of the State, who was loaned to Smithfield
for that purpose. The Complaint does not allege that any cause of action or any theory
of liability against the State relies on the employment status of this individual.
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and Ricci’s tenants could no longer use the premises.5 	Following the seizure of the
property, the Town requested that the State initiate forfeiture proceedings, which it
did in accordance with the mandatory requirement of R.I.G.L. § 21-28-5.04.2(f) and
(g). 	The forfeiture complaint was filed on November 22, 2017, and proceedings are
ongoing.
	State of Rhode Island v. One 2014 Mercedes-Benz Sprinter et al, PC-2017-
5620.6
B. 	DISCOVERY
During discovery, the plaintiffs deposed defendant Marcello, the officer who
had sworn in the first and second warrant affidavits that he had spoken to Source
One personally and had received the tip. In a deposition, Marcello admitted that he
had never talked to Source One personally and had learned the information at least
second-hand. He acknowledged that he did not know for certain who had spoken to
Source One, but he believed it was his superior, defendant Smith. 	Smith was then
deposed. He, too, admitted that he had never spoken to Source One personally. He
went further and acknowledged that there were no records, or documentation of any
sort memorializing that “a Source One” had ever contacted the Smithfield Police with
5 The plaintiffs have produced some evidence of the damages caused. (ECF No. 62-1,
Exh. 17-20.)
6 According to the docket of this proceeding, Ricci’s motion to suppress will be heard
on August 16, 2023. 	In his First Amended Notice of Interested Party, he raised
three challenges to the forfeiture: a) that Smithfield has targeted medical marijuana
patients, including him, in violation of the Slater-Hawkins Act, R.I.G.L. § 21-28.6-4;
that there was no probable cause for the searches and seizures, and that they
therefore violated R.I. Const. Art. 1 § 6 and U.S. Const. Amend IV; and that the total
value of the seized property constitutes an excessive fine in violation of R.I. Const.
Art. 1 § 8 and U.S. Const. Amend. VIII. 	The Court may take judicial notice of the
docket.
United States v. Mercado, 412 F.3d 243, 247 (1st Cir. 2005).
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the supposed tip of Ricci’s cultivation activity. 	(ECF No. 62-1, at 100-01, 138, 140.)
Smithfield repeated these admissions in its responses to Requests for Admissions.
(ECF No. 62-1, at 146.)
Based on that discovery, the plaintiffs amended their earlier complaint to
allege false statements in the affidavits filed to support the requests for search
warrant. 	They contend there is no Source One and that there never was a Source
One, except as a total knowing and willful fabrication of the Smithfield Police.
V. 	DISCUSSION
A. 	CLAIMS AGAINST THE STATE
The State seeks summary judgment for a number of reasons, most of which
argue some type of immunity.7 	The Court agrees that the claims against the State
are barred by the principle that the State is generally immune for suits for monetary
damages. In addition, there is a conspicuous and fatal absence of proof that the State
took any affirmative action which created liability under any of the plaintiffs’
theories.
1. Count I
Count I, claiming trespass, recites only that the Smithfield police officers
“should be considered joint tortfeasors with the . . . State of Rhode Island because
[their] 	fabrication 	of 	evidence 	caused 	the 	issuance 	of 	unconstitutional 	search
warrants.” (ECF No. 51, ¶ 56, 59.) Every one of the other allegations relates only to
7 There is no question that the portion of the action seeking monetary damages from
the State cannot be maintained.
Will v. Michigan, 491 U.S. 58, 71 (1989).
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Smithfield (ECF No. 51, ¶¶ 50 – 55, 57 – 58, 60 - 61), and the State clearly did not
take part in any fabrication of the warrants. It was Smithfield officers who applied
for the warrants, a Smithfield officer who swore to the truth of the Affidavits in
support of the warrants, Smithfield officers that entered the property, Smithfield
officers that searched, Smithfield officers who seized the property and, pursuant to
Rhode Island law, became responsible for it, Smithfield and its employees that caused
the utilities to be shut off, and Smithfield and its employees who are alleged to have
caused the damage by failing to maintain the property. Labeling the State a “joint
tortfeasor” does not substitute for factual allegations required to support a cause of
action.
2. Count II
Count II – alleging conversion – suffers from the same infirmity as Count I.
The State is mentioned only in a paragraph alleging tortfeasor status because of
Smithfield’s 	fabrications, 	and 	a 	paragraph 	faulting 	the 	Town 	for 	initiating 	a
forfeiture action. (ECF No. 51, at ¶¶ 68, 71.) There are no facts alleged or evidence
provided that even connect the state to the fabrications or application for warrants.
To the extent that the state’s putative liability rests on its initiation of forfeiture
proceedings which caused the plaintiff to lose control over the property, the State is
obligated by statute to initiate a forfeiture action if requested by a municipality, so
long as the property appears subject to forfeiture, R.I.G.L. § 21-28-5.04.2(g), and the
plaintiffs cite nothing attaching any liability to that decision. Moreover, the initiation
of forfeiture proceedings by the State is an exercise of prosecutorial duty pursuant to
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R.I.G.L. § 21-28-5.04.2(g) (“[I]f it is probable that the property is subject to forfeiture
[the attorney general] shall immediately cause the initiation of administrative or
judicial proceedings against the property”). That is a prosecutorial function for which
the State has absolute immunity.
	Imbler v. Pachtman, 424 U.S. 409, 422-23 (1976).
“[A]cts 	undertaken 	by 	a 	prosecutor 	in 	preparing 	for 	the 	initiation 	of 	judicial
proceedings or for trial, and which occur in the course of his role as an advocate for
the 	State, 	are 	entitled 	to 	the protections 	of 	absolute 	immunity.”
	Buckley 	v.
Fitzsimmons, 509 U.S. 259, 273 (1993).
Accord;
Beaudoin v. Levesque, 697 A.2d 1065,
1068 (R.I. 1997) (absolute immunity for assistant town solicitor in role as prosecutor);
Diorio v. Hines Rd., LLC, 226 A.3d 138, 145 (R.I. 2020) (quoting
Goldstein v. Galvin,
719 F.3d 16, 24 (1st Cir. 2013) (“a state official who performs prosecutorial functions
… is absolutely immune from damages actions.”). 	Forfeiture is not “primarily
investigative or administrative in nature,”
Perez v. Ellington, 421 F.3d 1128, 1133
(10th Cir. 2005) (cited in
Penate v. Kaczmarek, 928 F.3d 128, 140 (1st Cir. 2019). 	It
is an enforcement action and, as such, warrants the same absolute immunity that
protects prosecution functions generally.
	Cooper v. Parrish, 203 F.3d 937, 948 (6th
Cir. 2000) (absolute prosecutorial immunity for bringing civil forfeiture complaints);
cf. Skinner v. Govorchin, 463 F.3d 518, 525 (6th Cir. 2006) (applying absolute
immunity to prosecution to recover civil costs, an “enforcement role in initiating
judicial proceedings”).
	See also Torres v. Goddard, 793 F.3d 1046, 1058 (9th Cir.
2015).
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3. Counts III, IV, X and XII.
These Counts are not brought against the State.
4. Counts V, VII, and IX
Each of these counts claims a violation of a provision of the Rhode Island
Constitution: 	Art. 1, §§ 6, 2 and 8 respectively. 	Separate from the lack of factual
basis for liability on the part of the State, the Rhode Island Constitution, for reasons
expressed below at Part V(C)(4), does not give rise to private causes of action.
5. Count VI
This Count alleges a violation of the federal Due Process Clause. 	The only
factual assertions that support the claim are contained at ECF No. 51, ¶¶ 115 through
¶ 117, and no state actor is mentioned.
6. Count VIII
This Claim alleges that the State violated the Excessive Fines Clause of the
Eighth Amendment. 	The Constitution does not generally enable a direct cause of
action. 	An exception to that rule lies for actions brought to vindicate Fourth
Amendment violations by federal officials.
	Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971). 	The First Circuit has cautioned, however, against extending
Bivens generally to other constitutional provisions. “When there is a request for the
judicial 	creation 	of 	a 	supplemental 	damages 	remedy 	arising 	directly 	under 	a
constitutional provision,
Bivens, we think, teaches that a federal court should proceed
with caution.”
Kostka v. Hogg, 560 F.2d 37, 42 (1st Cir. 1977). 	It is doubtful that a
Bivens-type action lies against
state officials.
Thompson v. Hassett, 513 F. Supp. 3d
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258, 259 (D.R.I. 2021). In addition, the claim against the state is again based on its
role in initiating forfeiture proceedings and, for the reasons explained above, its
immunity for that action is absolute.
7. Count XI
In Count XI the plaintiffs seek replevin of the property seized by Smithfield.
Although the Complaint alleges that the property is in the possession of both
Smithfield and the State, Rhode Island law renders Smithfield the custodian, as it
was Smithfield that seized it. 	R.I.G.L. § 21-28-504(b) (“Property taken or detained
under this section shall not be repleviable, but shall be deemed to be in the custody
of the law enforcement agency making the seizure.”). If there is no proof submitted
showing possession by the State, no action for replevin can be maintained against the
State. Moreover, as the State points out, Rhode Island law does not permit an action
for replevin to regain property which has been made the object of forfeiture.
	Id.
Finally, 	to 	the 	extent 	replevin 	depends 	on 	wrongful 	forfeiture, 	the 	State 	has
immunity.
For the reasons explained above, the State of Rhode Island’s Motion for
Summary Judgment is GRANTED with respect to all Counts in which it is named –
Counts I, II, V, VI, VII, VIII, IX and XI.
B. 	MUNICIPAL LIABILITY
Several of the Counts seek to impose liability against the municipality of
Smithfield for civil rights violations.
	See Counts IV (Fourth Amendment), VI
(Fourteenth Amendment) and X (discrimination on the basis of disability). Smithfield
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points out a mismatch between the plaintiffs’ Complaint and their Memorandum in
Support of Summary Judgment. The Memorandum does, as the Town notes, devote
a substantial effort to arguing that Smithfield has failed to properly train its officers
on 	the 	rights 	of 	medical 	marijuana 	card 	holders 	and 	growers. 	(Plaintiff’s
Memorandum, ECF No. 62-1, at 18-19). 	But as the defendants point out, the
Complaint – amended three times – includes no claim for lack of training under
Monell v. New York City Dep’t of Soc. Services, 436 U.S. 658 (1978).
	Monell is
broader, 	however, 	than 	training 	and 	supervision. 	Municipal 	liability 	can 	be
established “when execution of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury 	. . .. ”
	Id. at 694. 	The plaintiff must show not only that
there was “a policy or custom [that] led to the [] deprivation alleged,” but also “the
existence of . . . 	a causal link between that policy and the [] harm.”
	Santiago v.
Fenton, 891 F.2d 373, 381 (1st Cir. 1989).
The Court agrees that nothing in the factual submissions from the plaintiffs
supports the conclusory assertion that Smithfield, either as a municipal entity or
through its policymaking personnel in the Police Department, had an official policy
or custom of discrimination against medical marijuana patients. 	Nor do any of the
factual submissions support the assertion that Smithfield failed to properly train its
officers in enforcing marijuana laws against card holders
or in carrying out searches.
In response, the plaintiffs assert that “the complaint includes multiple references to
the Smithfield PD’s lack of knowledge and training as to the rights of Rhode Island
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medical marijuana patients. 	See
Plaintiff’s Third Amended Complaint.” 	(ECF No.
78, at 3.) The plaintiffs do not point out, however, where those “multiple references”
are. They point only to the allegation that defendant St. Sauveur, as Chief of Police,
himself had “an ongoing antagonism towards medical marijuana patients within the
Town.”
Id. at 4.
The same failure precludes liability against the municipality of Smithfield for
Fourth and Fourteenth Amendment violations.
Therefore, the Court GRANTS the Motion of the Town of Smithfield for
summary judgment in its favor on Counts IV, VI and X.
C. 	CLAIMS AGAINST INDIVIDUAL DEFENDANTS
1. Claims Dependent upon the Validity of the Warrant
Several claims involve the validity of the search warrants, which the plaintiffs
challenge 	as 	having 	been 	issued 	in 	reliance 	on 	deliberately 	false 	statements.
Generally, “[a] search warrant executed by a judicial officer stands as an imposing
impediment to [a] Fourth Amendment] claim.”
	Jordan v. Town of Waldoboro, 943
F.3d 532, 540 (1st Cir. 2019),
rev’d on other gnds, Thompson v. Clark, ___ U.S. ___,
142 S. Ct. 1332 (2022). A valid search warrant would be an equally strong defense to
the plaintiffs’ claim of trespass, and a seizure authorized by such a warrant would
preclude liability for conversion. 	In 1978, however, the Supreme Court held that a
warrant is void if it depends for probable cause on knowing or recklessly false
statements made in the affidavit supporting it.
	Franks v. Delaware, 438 U.S. 154,
156 (1978). A defendant who makes a substantial preliminary showing “that a false
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statement knowingly and intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and if the allegedly false statement
is necessary to the finding of probable cause,” is entitled to a hearing.
	Id. at 155-56.
If at the hearing,
[t]he allegation of perjury or reckless disregard is established . . . 	and, with
the affidavit’s false material set to one side, the affidavit’s remaining content
is insufficient to establish probable cause, the search warrant must be voided,
… to the same extent as if probable cause was lacking on the face of the
affidavit.
Id. at 156. 	That showing overcomes the presumption of validity of the affidavit
supporting the search warrant.
Id. at 171.
Franks, interestingly, involved a very similar set of facts to the plaintiffs’
allegations here. The affidavit in
Franks alleged that two men – James William and
Wesley Lucas – “revealed to your affiant” that the defendant normally wore clothing
that matched the description of the perpetrator given by an eyewitness.
	Id. at 176.
The defendant requested a hearing at which he would produce evidence that neither
Williams nor Lucas had actually spoken personally to the affiant.
	Id. at 158.
Reversing the lower court’s denial of a hearing, the Supreme Court said proof of a
deliberate or reckless falsehood about whether the affiant had spoken personally to
those witnesses would undermine the validity of the warrant such that it could not
be relied upon to validate the search and the search loses its presumption of validity.8
8 Deliberately or recklessly false statements in other pre-indictment contexts can
vitiate the legitimacy of the process. “Lying is wrong, and if the police lie while acting
in their official capacity, they also violate the public trust.”
Riccuiti v. N.Y.C. Transit
Auth., 124 F.3d 123, 125 (2d Cir. 1997) (holding that a fabricated confession included
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The affidavit’s assertion that its affiant spoke personally to a confidential
informant – and, more importantly, whether a confidential informant in fact ever
existed or was totally fabricated – are material facts and their existence is hotly
disputed. 	Without the allegations from the informant, the observations of the
Smithfield 	police 	that 	Ricci 	traveled 	on 	side 	roads 	and 	that 	another 	medical
marijuana cardholder was seen at the premises does not come close to probable cause
of illegal activity. 	The second warrant rested on the same information as the first,
with the addition only of the thermal imaging scan showing large amounts of heat
generated in the building. 	Since Ricci was a lawful marijuana grower, and the
thermal imaging could not determine the quantity of what was being grown, it added
little to the information supporting the first warrant. 	Both warrants depended on
the putative informant’s allegations.
Ricci has submitted evidence from the affiant himself that demonstrates he did
not speak personally to an informant. But the evidence of total fabrication relies on
an inference from the denials of Marcello and Smith, and the absence of any written
documentation of contact by an informant with anyone in the Department.9 	That
inference, while strong, is not compelling, and needs to be drawn by a jury, if at all,
not by the Court on summary judgment.
in a police narrative, which became the basis for escalation of the charges, was
actionable through § 1983 for a Fourth Amendment violation).
9 The claims against defendant St. Sauveur, Chief of the Department, rest on
allegations that he was aware of the fabrication of an informant and assisted in a
cover-up.
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Because of the existence of a genuine issue of material fact, claims that turn
on the validity of the warrant are inappropriate for summary judgment. 	That
includes trespass (Count I), to which a valid warrant is a defense, and conversion
(Count II), to which a valid seizure of the property is a defense. And it includes the
crux of this case which is the alleged illegal searches and seizures of the plaintiff’s
property forming the basis of Count IV (unlawful search) and Count XII (false
arrest/imprisonment). The Court DENIES the Motions of the individual defendants
for Summary Judgment as to Counts I, II, IV and XII.
2. Count VI: Denial of Federal Due Process, U.S. Const. Amend. 14
Ricci predicates his claim under U.S. Const. Amend. XIV on two separate
theories, although he does not distinguish between the two in his Complaint. First,
he maintains that by definition a violation by state officials of the Fourth Amendment
to the U.S. Constitution is a per se violation of the Fourteenth Amendment. 	(ECF
No. 51, ¶ 114.) 	That is true. 	The Fourth Amendment governs the conduct of state
officials only through its incorporation into the Fourteenth Amendment,
Mapp v.
Ohio, 	367 	U.S. 	643, 	660 	(1961), 	and, 	therefore, 	any 	violation 	of 	the 	Fourth
Amendment by a state actor is necessarily a violation of the Fourteenth. But because
that is true, the Fourth Amendment violation claimed in Count IV essentially merges
with the
per se claim under the Fourteenth Amendment. The Court treats Count IV
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in combination with Count VI as invoking the federal constitutional right against
unreasonable searches and seizures.
The alternative theory put forth by Count VI is that of a violation of the
plaintiff’s substantive due process right – behavior on the part of law enforcement
that “shocks the conscience” of the Court. 	The “shock the conscience” doctrine was
first enunciated in
Rochin v. California, 342 U.S. 165, 172 (1952), at a time before the
Fourth Amendment was incorporated into the Fourteenth Amendment. 	In the
criminal prosecution arena, “[r]egard for the requirements of the Due Process Clause
‘inescapably imposes upon this Court an exercise of judgment upon the whole course
of the proceedings . . . 	in order to ascertain whether they offend those canons of
decency and fairness which express the notions of justice of English-speaking peoples
. . . ’”
Id. at 169 (quoting
Malinski v. New York, 324 U.S. 401, 416-17 (1945)). Finding
that forcible stomach-pumping in search of two swallowed capsules of morphine, after
an unsuccessful attempt to extract the capsules from the defendant’s throat, were
“methods 	too 	close 	to 	the 	rack 	and 	the 	screw 	to 	permit 	of 	constitutional
differentiation,”
id. at 172, the Court ordered their exclusion from evidence.
Mapp v. Ohio put an end to the need to resort to the Fourteenth Amendment
to vindicate the right against unreasonable searches by state actors, but
Rochin’s due
process theory has continued viability, particularly in the context here. A number of
courts have recognized fabricated evidence as a basis for a “shock the conscience” due
process claim. 	A plaintiff may maintain such a claim even if never convicted of an
offense.
	Black v. Montgomery Cnty., 835 F.3d 358, 369 (3rd Cir. 2016);
Klen v. City
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of Loveland, 661 F.3d 498, 516 (10th Cir. 2011) (“[U]se of a perjured affidavit to defeat
a defendant’s attempt to dismiss an indictment on grounds of selective prosecution
could also conceivably represent a denial of due process.”). Fabrication of evidence in
order to pursue criminal charges offends fundamental notions of decency equally with
false evidence used to obtain a conviction. “Fabricated evidence is an affront to due
process of law, and state actors seeking to frame citizens undermine fundamental
fairness and are responsible for ‘corruption of the truth-seeking function of the trial
process.’”
	Black, 835 F.3d at 370 (quoting
United States v. Agurs, 427 U.S. 97, 104
(1976)).
The First Circuit has recognized a substantive due process claim based on
fabricated evidence, declaiming “we are unsure what due process entails if not
protection against deliberate framing under color of official sanction.”
	Limone v.
Condon, 372 F.3d 39, 44-45 (1st Cir. 2004). 	In order to sustain a due process
fabrication of evidence claim, a plaintiff must “demonstrate that the fabricated
evidence ‘was so significant that it could have affected the outcome of the criminal
case.’”
	Black, 835 F.3d at 372 (quoting
Halsey v. Pfeiffer, 750 F.3d 273, 295 (3d Cir.
2014)). Certainly here the affidavit was critical to the issuance of a warrant justifying
the searches. 	In addition, the plaintiffs must ultimately prove that the defendants
knew the evidence was fabricated or false.
Id.; Cole v. Carson, 802 F.3d 752, 774 (5th
Cir. 2015),
vac. on other gnds, Hunter v. Cole, ___ U.S. ___, 137 S.Ct. 497, 497 (2016)
(allegation that police intentionally lied to cover up wrongful conduct by colleagues
“directly led” to the decision to charge.).
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In this case, it is undisputed that the Affidavits in support of the search
warrants contained the implication – apparently false – that defendant Marcello had
spoken personally to Source One. 	The fact of that falsity alone, however, does not
necessarily meet the “shock the conscience” standard.10 	What
would amount to
conduct shocking the conscience of the Court is Ricci’s theory that Source One never
existed. Certainly, the fact that both officers denied speaking to Source One, and that
they admit there is no documentation whatsoever of contact between Source One and
anyone from the Department, raises a strong suspicion that the informant was
entirely fabricated. However, the defendants deny this by affidavit, and thus put into
dispute 	the 	very 	material 	fact 	of 	whether 	Marcello, 	with 	the 	knowledge 	and
cooperation of Smith, and the awareness and cover-up of St. Sauveur, deliberately
lied in order to obtain the warrants. Summary judgment cannot be granted and the
parties’ Motions for Summary Judgment on Count VI are DENIED.
3. Count III: Intentional Infliction of Emotional Distress
Rhode Island recognizes a claim for intentional infliction of emotional distress.
‘In order to impose liability on a defendant for intentional infliction of
emotional distress: (1) the conduct must be intentional or in reckless
disregard of the probability of causing emotional distress, (2) the
conduct must be
extreme and outrageous, (3) there must be a causal
connection between the wrongful conduct and the emotional distress,
and (4) the emotional distress in question must be severe.’
10 It is certainly conceivable that if Marcello knew someone else had spoken to
Source One, he might have inadvertently given the impression in the Affidavit
that he had had the conversation himself. 	What Ricci alleges, however, is
entirely different.
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Shannahan v. Moreau, 202 A.3d 217, 230 (R.I. 2019) (quoting
Gross v. Pare, 185 A.3d
1242, 1245-46 (R.I. 2018)) (emphasis original). But state law is clear that to pursue
that cause of action a plaintiff must suffer some physical manifestation of the
emotional condition that defendant’s actions have allegedly caused. 	“Furthermore,
‘this Court has required at least some proof of medically established physical
symptomatology for both intentional and negligent infliction of mental distress.’”
Id.
at 230 (quoting
Gross, 185 A.3d at 1246).
Ricci 	has 	alleged 	no 	physical 	symptomatology 	in 	his 	Third 	Amended
Complaint. 	“The existence of resulting physical symptomatology” must be pleaded.
Clift v. Narragansett Television L.P., 688 A.2d 805, 813 (R.I. 1996). 	Ricci refers in
his summary judgment memorandum to difficulty sleeping and to a loss of libido
(ECF No. 62-1, internal pp 40-4111.) Exhibit 18 is a compendium of medical records
circa 2021 that contain diagnoses of several things. 	(ECF No. 62-1, at 170.) 	One
record notes that the loss of libido began in 2019 – two years after the search of the
warehouse.
	Id. at 176. 	The doctor notes that he “suspects” it is due to stress.
	Id.
Even assuming these complaints are sufficient physical manifestations,12 there is
nothing offered in any of the records that would satisfy the element of causation. In
other words, there is no evidence submitted to support the conclusion that either the
11 When an exhibit contains multiple documents, each has its own internal pagination
and, in addition, has a page number indicating where it is in the ECF package. Page
numbers given herein refer to ECF pages unless “internal” pagination is noted.
12 An October 20, 2020, answer to the assessment question “trouble falling or staying
asleep, or sleeping too much” was “Not at all.” (ECF No. 62-1, at 187).
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loss of libido or difficulty sleeping resulted from the stress or depression caused by
the search. 	“[W]e require for recovery, however, along with the vast majority of
judicial authority, that psychic as well as physical injury claims must be supported
by competent expert medical opinion regarding origin, existence, and causation.”
Vallinoto v. DiSandro, 688 A.2d 830, 839 (R.I. 1997).
In 	the 	absence 	of 	physical 	symptomatology 	pleaded 	and 	supported, 	the
defendants are entitled to summary judgment on Count III.
4. Direct Causes of Action under the Rhode Island Constitution
Two of the counts are brought as direct causes of action claiming violations of
certain clauses of the Rhode Island Constitution. This is in contrast to those counts
claiming violations of the federal Constitution brought through the statutory vehicle
of 42 U.S.C. § 1983. Section 1983 creates a cause of action when state officials violate
federally guaranteed rights. 	There is no Rhode Island statute creating a cause of
action for violations of either article 1, section 6 (unreasonable searches and seizures)
or article 1, section 2 (due process) of the state Constitution.
Ricci asserts an implied cause of action stemming from the provisions of rights
themselves, a course of action recognized by the United States Supreme Court in
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). 	In
Bivens, the
Court reviewed a civil action brought to recover damages for a particularly egregious
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violation of the Fourth Amendment by federal actors.13 With a six-judge majority,14
the Court noted the absence of any existing statutory cause of action through which
the victims of the unlawful search could recover for the violation of their Fourth
Amendment rights and for the damages caused them. 	In an envelope-pushing
decision, the Court declared that the right of citizens to be compensated for federal
constitutional violations should not be dependent on whether the state in which the
violation occurred had provided a remedy.
Id. at 392. Instead, the
Bivens Court held
that the federal Constitution itself created a right of action. 	The
Bivens opinion was
expansive, speaking of constitutional rights generally. 	Before the decade was out,
the Court had recognized a direct cause of action in the Fifth Amendment’s Due
Process Clause.
	Davis v. Passman, 442 U.S. 228, 243-44 (1979). 	But since 1980,
when
Carlson v. Green, 446 U.S. 14, 19-20 (1980), decided that the availability of a
remedy under the Federal Torts Claim Act for inadequate medical treatment in
prison did not defeat a cause of action under
Bivens, the recognition of implied rights
of action has not been expanded.
	See discussion in
Callahan v. Federal Bureau of
13 The handwritten
pro se complaint alleged that six federal agents entered Bivens’
home on the day after Thanksgiving, 1965, without probable cause or a warrant,
searched and arrested him with unreasonable force, manacled him in front of his
children, and threatened to arrest the entire family. Pfander, James E.,
The Story of
Bivens 	v. 	Six 	Unknown 	-Named 	Agents 	of 	the 	Fed. 	Bureau 	of 	Investigation,
Northwestern 	Univ. 	Sch. 	of 	Law 	Scholarly 	Commons 	(1979),
https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1188&c
ontext=facultyworkingpapers (accessed May 15, 2023).
14 The
Bivens opinion was authored by Justice William Brennan, who was joined by
Justices Douglas, Marshall, Stewart and White. 	Justice Harlan concurred in the
judgment and Chief Justice Burger and Justices Blackmun and Black all dissented.
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Prisons, 965 F.3d 520, 523 (6th Cir. 2020) (declining to recognize a direct cause of
action for claims of First Amendment denials in prisons). For nearly forty years after
Carlson, the Court “consistently rebuffed requests to add to the claims allowed
under
Bivens.”
	Hernandez v. Mesa, ___ U.S. ___, 140 S. Ct. 735, 743 (2020). 	Most
tellingly, a majority of the Court in
Mesa went beyond merely expressing extreme
reluctance to extend
Bivens to opining that were the trio of
Bivens, Davis and
Carlson
adjudicated in 2020, it is “doubtful” the same results would have been reached.
	Id.
at 742-43.
The Rhode Island Supreme Court has been no more friendly to implied causes
of action under the Rhode Island Constitution than has its federal counterpart.15 In
Bandoni v. State, 715 A.2d 580 (R.I. 1998), the Court reviewed a civil lawsuit brought
for damages allegedly caused by a violation of article one section 23 of the Rhode
Island 	Constitution, 	the 	State’s 	then-newly 	enacted 	constitutional 	amendment
guaranteeing victims of crime input into sentencings. 	In order to provide a direct
cause of action, the Court held, a constitutional provision must be “self-executing”; in
other words, it must not be reliant on legislative action to create a cause of action to
15 The general disinclination of the Rhode Island Supreme Court to recognize direct
causes of action for constitutional violations is not recent. 	As early as 1909, and
relying on an 1865 case, the Court held that article 1, section 5 of the Rhode Island
Constitution, which provides that “Every person within this state ought to find a
certain remedy . . . for all injuries or wrongs . . . ,” did not create a private cause of
action for invasion of privacy.
	Henry v. Cherry & Webb, 73 A. 97, 107 (R.I 1909)
(citing
Matter of Nichols, 8 R.I. 50, 54 (1864)).
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enforce it.16 A self-executing provision “suppl[ies] ‘a sufficient rule by means of which
the right given may be enjoyed and protected, or the duty imposed be enforced * * *.
A provision that is
not self-executing “merely indicate[s] principles, without laying
down rules by means of which those principles may be given the force of law[.]”
Id. at
586 (quoting
Davis v. Burke, 179 U.S. 399 403 (1900)). 	Concluding the latter, the
Court held there was no direct cause of action available to vindicate violations of
article 1, section 23 and dismissed the claim of victims who had not been notified of
their right to address the sentencing court.
Id. at 601.
(a) Count V: R.I. Const. Art. I § 6
Ricci seeks to establish, in Count V, a
Bivens private cause of action under the
state constitutional guarantee against unreasonable searches and seizures. While he
mounts a vigorous argument that the search lacked probable cause under R.I. Const.
Art. 1 § 6, he does so as if this were a criminal case involving application of an
exclusionary rule. (
See ECF No. 62-1, at 26-27, discussing
State v. Burgess, 138 A.3d
195 (R.I. 2016)). 	He does not address the need to establish a state equivalent of a
Bivens claim in either his initial or reply memoranda in support of summary
judgment. 	(ECF No. 62-1, 78.) 	Indeed, the plaintiff is entirely incorrect when he
proclaims, “the right to be free from unreasonable search and seizure found in article
1, section 6 of the Rhode Island Constitution has long been recognized as self-
executing and thus serves as a basis to bring a private right of action.” (ECF No. 73-
16 Self-execution is a necessary, but not sufficient, condition to enable a suit
for damages.
Doe v. Brown Univ., 253 A.3d 389, 401 (R.I. 2021).
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1, at 13.) 	In support of that declaration, Ricci cites only
Bivens. 	It is true that the
scope of the substantive search and seizure protection of article 1, section 6 is
substantively coterminous with that of the Fourth Amendment,
State v. Werner, 615
A.2d 1010, 1014 (1992),17 but that is a far cry from overcoming the Rhode Island
Supreme Court’s clear disinclination to hold constitutional provisions to be self-
executing. In addition, it fails to take account of the disfavor in which
Bivens seems
to be held today by the Court which birthed it.
	See Mesa, 140 S. Ct. at 742-43.
Recently, another judge of this District noted a similar failure to identify
authority in which the Rhode Island Supreme Court has sanctioned a
direct 	cause 	of 	action 	under article 	1, 	section 	6 	of 	Rhode 	Island
Constitution analogous to that established in
Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Instead, the Rhode Island Supreme Court has consistently refused to
hold that constitutional provisions create a private cause of action
without legislative action.
Hagopian v. City of Newport, C.A. No. 18-283 WES, 2021 WL 4742701, at *1, n.1
(D.R.I. Oct. 12, 2021). 	This Court has been no more successful; the combination of
the Rhode Island Supreme Court’s continuous disinclination to recognize direct
constitutional causes of action and the forewarning in
Mesa that
Bivens has lost its
majority, lead to the same conclusion that Ricci may not maintain a cause of action
for violation of article 1, section 6 of the Rhode Island Constitution.
17 Until
Werner, Rhode Island had differed from federal interpretation in at
least two major situations. 	One involved whether a lawful vehicle search
without a warrant depended on exigency,
State v. Benoit, 417 A.2d 895 (R.I.
1980), and the other dealt with random roadblocks,
Pimental v. Dept. of
Transp., 561 A.2d 1348 (R.I. 1989).
Werner expressly overruled
Benoit but did
not mention
Pimental which is presumably still good Rhode Island law.
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(b) Count VII: Due Process Clause, R.I. Const. Art. 1 § 2
Two decades after
Bandoni, in
Doe v. Brown Univ., 253 A.3d 389, 401 (R.I.
2021), the Rhode Island Supreme Court repeated its reluctance to “create a new cause
of action” by judicial interpretation rather than legislative enactment.
	Id. Doe had
sued Brown University for a violation of the equal protection provision of article 1,
section 2 of the Rhode Island Constitution. 	Even if it found the provision self-
executing, the Rhode Island Supreme Court held, it would decline to “adjust[]
remedies to rights,” which is “a legislative responsibility rather than a judicial task.”
Id.
The due process provision of the Rhode Island Constitution is contained in the
same article 1, section 2 as the equal protection provision addressed in
Doe:
All free governments are instituted for the protection, safety, and
happiness of the people. All laws, therefore, should be made for the good
of the whole; and the burdens of the state ought to be fairly distributed
among its citizens. No person shall be deprived of life, liberty or property
without due process of law, nor shall any person be denied equal
protection of the laws. No otherwise qualified person shall, solely by
reason of race, gender or handicap be subject to discrimination by the
state, its agents or any person or entity doing business with the state.
Nothing in this section shall be construed to grant or secure any right
relating to abortion or the funding thereof.
Like the equal protection clause addressed in
Doe, the due process clause is part of
an Article that expresses general principles. The due process provision has the same
“broad scope and utter lack of any means by which these rights may be enjoyed,
protected, or enforced.”
	Bandoni, 715 A.2d at 588. 	Like article 1, section 23, it
provides no “procedural means by which [citizens] may enjoy or protect their rights
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…”
	Id. The due process clause and equal protection clause are twin branches of the
same tree and there is no reason to believe the Rhode Island Supreme Court would
recognize a direct cause of action under the former after having rejected the same
claim under the latter.
(c) Summary
At the time it was decided,
Bivens operated in a landscape in which there was
no remedy other than a direct cause of action under the Fourth Amendment available
to a plaintiff. Even though
Carlson held that the existence of an alternate remedy –
in that case under the Federal Tort Claims Act – would not defeat a
Bivens claim, it
is significant that in this case the plaintiffs may bring a lawsuit for violation of federal
rights pursuant to 42 U.S.C. § 1983 since the offending conduct was carried out by
state and local officials. 	Indeed, the other counts in this Complaint attest to the
availability of other remedies. 	That is another reason why this Court declines to
presume that a private cause of action exists under either article 1, section 2 or 6 of
the Rhode Island Constitution. The defendants’ Motions for Summary Judgment on
Counts V and VII are GRANTED.
5. Count X: RICRA
Ricci contends that the Town of Smithfield and its officers acted in violation of
the Rhode Island Civil Rights Act (“RICRA”), R.I.G.L. § 42-112-1
et seq, by targeting
him because of his medical marijuana patient status and “attempting to curtail [his]
medical marijuana patient rights.” 	(ECF No. 51, ¶¶ 131, 132). 	He maintains that
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his medical marijuana card presumes a disability. He points to the alleged lies and
fabrication in the warrant affidavit as proving the intent to discriminate against him
as a medical marijuana patient, and to what he terms the “deceptive[]” information
that Ricci lacked a cultivation license when by law he was not required to have one.18
The plaintiff characterizes that deception as an attempt to raise an inference that
Mr. Ricci should have had these licenses, and to confuse the magistrate of what was
actually required under the Slater-Hawkins Act. Beyond the individual officers, Ricci
contends contend that the Town of Smithfield itself “has a history of attempting to
curtail medical marijuana patient rights.”
Id. at ¶ 131.
The essence of the plaintiff’s claim is that he was subject to special prosecution
efforts, and greater punishment, because of his disability as a medical marijuana
patient.19 The problem, however, is that RICRA has not been applied by the Rhode
Island Courts to reach disability discrimination outside a contractual relationship,
almost always in the employment context. 	“[RICRA was] enacted to provide
18 The warrant Affidavit recited that the property was not a registered cultivation
center without indicating that it did not need to be to grow medical marijuana on the
property. (ECF No. 62-1, at 53-54.)
19 RICRA expressly adopts the definition of “disability” contained in R.I.G.L. § 42-87-
1(i): “a physical or mental impairment that substantially limits one or more of the
major life activities of such individual.” 	That is the same definition that constitutes
a “debilitating medical condition,” which is what entitles a person to a medical
marijuana card: R.I.G.L. § 21-28.6-3(10). After extensive analysis, in what appears
to be the only Rhode Island judicial opinion addressing this issue, Associate Justice
Richard Licht of the Rhode Island Superior Court concluded that a person who holds
a medical marijuana card in Rhode Island is “disabled” under the terms of RICRA.
Callaghan v. Darlington Fabrics Corp., C.A. No. PC-2014-5680, 2017 WL 2321181, at
*11 (May 23, 2017). This Court need not reach that issue.
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protection against discrimination in employment . . . RICRA expressly deal[s] with
the subject of employment discrimination . . ..”
	Horn v. S. Union Co., 927 A.2d 292,
294-95 (R.I. 2007). 	“The Rhode Island Civil Rights Act provides broad protection
against all forms of discrimination in all phases of employment.”
	Ward v. City of
Pawtucket, 639 A.2d 1379, 1381 (R.I. 1994). 	There is “precious little case law
addressing the scope of RICRA in any respect,”
Liu v. Striuli, 36 F. Supp. 2d 452, 469
(D.R.I. 1999), but the two cases in which RICRA has been invoked in this Court
outside 	of 	an 	employment 	context 	have 	both 	been 	situations 	of 	contractual
relationships.
	Liu, 36 F. Supp. 2d at 479 (alleged sexual harassment of student by
college professor, citing the contractual nature of “a student’s relationship with an
institution of higher education.”);
Doe v. Brown Univ., 327 F. Supp. 3d 397, 414
(D.R.I. 2018) (student sued university for disability discrimination).20 	There is no
contractual relationship between the parties here, and the Court declines to assume
a scope of RICRA which has not been endorsed by the Rhode Island Supreme Court.
The Motion for Summary Judgment on Count X filed by the Smithfield defendants is
GRANTED and the plaintiffs’ Motion is DENIED.
20 The First Circuit has commented that RICRA applies “both inside and outside the
employment context,”
Rathbun v. Autozone, Inc., 361 F.3d 62, 69, n.2 (1st Cir. 2004),
but it has not made the same observation about whether it applies outside the
contractual context.
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D.
HECK V. HUMPHREY PRECLUSION
The defendants maintain that the plaintiffs’ claims21 constitute a collateral
attack on an outstanding criminal conviction and are, therefore, precluded by
Heck
v. Humphrey, 512 U.S. 477, 487 (1994).
Heck
bars civil litigation that impugns the integrity of a criminal conviction
unless the conviction has already been questioned. It can be called into
question by being “reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a
writ of habeas corpus.”
	Figueroa v. Rivera, 147 F.3d 77, 80 (1st Cir.
1998).
Tempest v. Remblad, No. 1:20-cv-00523-MSM-LDA, 2022 WL 2817865, *7 (D.R.I.
July 19, 2022). 	Only an outstanding conviction bars a civil action that impugns its
integrity.
Thompson v. Clark, ___ U.S. ___, 142 S. Ct. 1332, 1335 (2022).
Thompson’s 	discussion 	is 	in 	the 	language 	of 	civil 	actions 	for 	malicious
prosecution, which
	Heck had found was the most analogous tort to a Fourth
Amendment claim.
	Id. at 1337 (“The narrow dispute in this case concerns one
element of the Fourth Amendment claim under § 1983 for malicious prosecution.”).
Heck itself
, however, was aimed at a broader field: Ҥ 1983 damages claims that do
call into question the lawfulness of conviction or confinement …”
	Heck, 512 U.S. at
483.
Thompson clarifies the holding of
Heck with respect to what status of a criminal
case being challenged in the civil action will bar the action for damages.
21 The defendants fail to distinguish between Ricci and Custom Construction.
The Court finds
Heck preclusion inapplicable to the business, which is a
plaintiff only in Count II. 	The business was not criminally prosecuted.
Therefore, there is no conviction or other adjudication in state court against the
business that would preclude a civil claim in federal court.
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Heck is not an obstacle in this case. First, there appears never to have been a
conviction. 	The plaintiffs’ memorandum reveals a misunderstanding about Rhode
Island criminal law. 	It asserts that upon his
nolo plea, Ricci “received a one year
filing for this misdemeanor charge.” 	(ECF No. 72, at 16.) 	Yet later claims he was
placed on a year’s probation, presumably pursuant to R.I.G.L. § 12-18-1.
Id. The two
are not the same. 	A filing is a legislatively created disposition by which both
adjudication and sentencing on a misdemeanor complaint are delayed for a statutory
period of one year. At the conclusion of the year during which the defendant has been
of good behavior the charge is essentially dismissed by operation of law. 	R.I.G.L. §
12-10-12(c). The probation statute provides that the disposition may not be used as
a “conviction” for any purpose. 	R.I.G.L. § 12-18-3. 	The filing statute goes further:
the passage of a successful year means that “[n]o criminal record shall result.”
R.I.G.L. § 12-10-12(c). 	Thus, it is tantamount to a dismissal, not merely to a
conviction for limited purposes only.
Smithfield’s Exhibit G is a transcript of the Superior Court proceeding. 	It is
clear that, rather than place the plaintiff on probation, the Court “filed” the amended
charge. 	(ECF No. 57, Exh. G.) (“In the matter of P2-2018-1628A, the remaining
amended count on this matter will be filed for one year.”). 	The disposition never
was a conviction in the first place.22
22 Even if Ricci had been placed on probation, any conviction resulting for any purpose
has been expunged.
	Heck itself recognized that an expungement “called into
question” a conviction. While
Heck refers to an “expunge[ment] by executive order,”
the Court sees no significant difference between an expungement granted in the
executive’s discretion or one granted by operation of law.
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The purpose of
Heck was twofold: 	first, to avoid the use of civil actions to
substitute for writs of habeas corpus to challenge convictions; and second, to avoid
the prospect of inconsistency between a conviction and a subsequent successful
constitutional challenge to that conviction’s underpinning in a civil action. 	Neither
is a concern here. 	One could not have brought a habeas corpus petition to “undo” a
filing since it is not a judgment of the court much less a final one. Nor could such a
petition be brought to vacate an expunged conviction.
	Cf., Klen v. City of Loveland,
661 F.3d 498, 516 (10th Cir. 2011) (where the sanction imposed against the defendant
lacked sufficient indicia of custody to permit him to challenge it in a
	habeas
proceeding,
Heck was no bar to the civil action). 	Second, neither a successful filing
nor an expunged conviction has any continuing legal effect, so no inconsistency could
arise were the civil action in this Court successful. Expungement has the same legal
effect as a pardon, which “fulfills the purposes of Heck’s invalidation requirement.”
Carr v. Louisville-Jefferson Cnty., 37 F.4th 389, 394 (6th Cir. 2022). 	“A full pardon
removes all legal consequences of the individual’s conviction, avoiding the concern of
parallel litigation with an outstanding criminal proceeding.”
	Id. 	“
Heck does not
present the same bar to § 1983 suits where the underlying conviction has already
been expunged; the conviction is no longer ‘outstanding.’”
	Poventud v. City of New
York, 750 F.3d 121, 134 (2d Cir. 2014).
Whether a resolution such as a filing is a bar under
Heck has been the object
of 	some 	attention 	and 	differing 	views 	in 	federal 	courts. 	In 	the 	District 	of
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Massachusetts, a case that has been “continued without a finding”23 has been held to
be a
Heck bar, even though once the pretrial probation period passes, the charge is
dismissed.
Cabot v. Lewis, 241 F. Supp. 3d 239, 250-51 (D. Mass. 2017). Other courts
have reached opposite conclusions.
	See Tomashek v. Raleigh Cnty. Emergency
Operating Ctr., 344 F. Supp. 3d 869, 874 (S.D.W. Va. 2018) (collecting cases). 	In
Tomashek, the Court declined to impose a
Heck bar because of the defendant’s entry
into a pretrial diversion program. 344 F. Supp. 3d at 874. It reasoned that pretrial
diversion results in neither an adjudication of guilt nor a conviction; successful
completion results in a dismissal.
	Id. at 874-75. The very purpose of the program is
to “avoid[] a judgment of criminal guilt – the opposite of a conviction in a criminal
action.”
Id. at 875.
This Court declines to hold this action precluded by
Heck for two reasons
.
First, although a decision by a sister District, as
Cabot is, would normally be entitled
to great consideration,
Cabot pre-dated
Clark v. Thompson, which dramatically
softened
Heck’s preclusion effect. Until
Clark, Heck’s literal language had required
a state court disposition that was “favorable” to the defendant, which the First Circuit
had interpreted as tantamount to an acquittal or other exoneration. 	In
Clark, the
Supreme Court set a much lower bar – that the state court criminal charge not have
23 “Continued without a finding” is similar to filing; the case is continued for a specific
period; if the defendant complies with whatever conditions are placed upon it, the
case is dismissed on that date. M.G.A. 278, § 18.
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ended in a “conviction.”24	
Cabot itself acknowledged that its narrow view of
Heck
“ignores, and appears to be inconsistent with, the purposes and rationale of
Heck.”
Cabot, 241 F. Supp. 3d at 252. Thus, there is reason to believe the
Cabot Court would
reach a contrary result, consistent with this Court, were it to consider the issue post-
Clark.
In this Court’s view, while pre-
Clark one might not have been able to say that
a filing was tantamount to an acquittal or exoneration, it certainly is not a conviction
which is, post-
Clark, now a precondition to
Heck preclusion.
See McClish v. Nugent,
483 	F.3d 	1231, 	1251 	(11th 	Cir. 	2007)
	(Heck 	“inapposite” 	where 	defendant’s
participation in pretrial intervention program resulting in ultimate dismissal: “The
issue is not … whether [Appellant’s] participation in [pretrial intervention program]
amounted to a favorable termination on the merits. 	Instead, the question is an
antecedent one – whether
Heck applies at all since [Appellant] was never convicted
of
any crime.”).
Second, it seems fundamentally unfair to interpose a
Heck preclusion on Ricci’s
claims that law enforcement intentionally fabricated a confidential informant to
secure a warrant because Ricci accepted the lowest possible disposition in Rhode
Island criminal law to resolve the criminal case. At that time, he did not know of the
evidence from which an inference of fabrication could be drawn and, indeed, under
24 In
McAllister v. Johnson, No. 1:19CV13, 2022 WL 3359126, *10 n.10 (M.D.N.C.
Aug. 15, 2022), the Court noted the change wrought by
Clark in rejecting a
Heck
preclusion where the defendant challenged his assault arrest after the assault charge
was dismissed in consideration for the defendant’s plea to a manslaughter charge.
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the Rules of Criminal Procedure in Rhode Island, no discovery deposition of right is
allowed. It is somewhat facetious for the defendants to claim that “it [was] incumbent
upon Plaintiff to challenge the evidence through a
Franks [v. Delaware]] hearing.”
Ricci had no factual basis at all for requesting a
Franks hearing which is gained only
after surmounting a high threshold of proffered evidence of falsity.
The Court therefore declines to impose
Heck v. Humphrey as a bar to this
action.
E.
YOUNGER V. HARRIS ABSTENTION
The Court has granted Summary Judgment to the State and to Smithfield. It
has also granted Summary Judgment to the individual defendants on Counts III, V,
VII, and X. 	The “live” Counts, against the individual defendants only, are Counts I
(Trespass), II (Conversion), IV (Fourth Amendment), VI (Due Process), and XII (False
Imprisonment). 	While these latter claims have been supported with sufficient
evidence to go forward, that does not necessarily mean that they should. 	The
defendants contend that the pendency of a forfeiture action brought against a huge
list of real property and personal items owned by Ricci and Custom Construction
requires this Court to abstain.
See R.I. Super. Ct. docket P2-2017-5620.
Younger v. Harris, 401 U.S. 37 (1971), counsels that as a matter of comity,
federal courts should sometimes refrain from acting while state court proceedings are
pending. Although a forfeiture action is not a direct prosecution,
Younger extends “to
‘particular 	state civil 	proceedings 	that 	are 	akin 	to 	criminal 	prosecutions,’
	see
Huffman v. Pursue, Ltd., 420 U.S. 592, 595 S. Ct. 1200, 43 L. Ed.2d 482 (1975), or
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that implicate a State’s interest in enforcing the orders and judgments of its courts,
see Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 107 S. Ct. 1519, 95 L. Ed.2d 1 (1987).”
Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72 (2013). 	“The policies underlying
Younger are fully applicable to noncriminal judicial proceedings when important
state interests are involved
.”
	Middlesex Cnty. Ethics Comm. v. Garden State Bar
Ass’n, 457 U.S. 423, 432 (1982).
Younger abstention may be warranted when three criteria are met: “there are
state proceedings that are (1) currently pending; (2) involve an important state
interest; and (3) will provide the federal plaintiff with an adequate opportunity to
raise his or her constitutional claims.”
Habich v. City of Dearborn, 331 F.3d 524, 530
(6th Cir. 2003). 	The opportunity in state court to litigate the constitutional claims
includes the availability of relief comparable to what would be afforded in federal
court.
	Bridges v. Kelly, 84 F.3d 470, 477 (D.C. Cir. 1996) (only relief in District
proceedings were reinstatement and back pay, whereas federal civil suit afforded the
opportunity 	for 	compensatory 	and 	punitive 	damages.). 	The 	countervailing
consideration to an exercise of comity, however, is that “federal courts ordinarily
should 	entertain 	and 	resolve 	on 	the 	merits 	an 	action 	within 	the 	scope 	of 	a
jurisdictional grant, and should not ‘refus[e] to decide a case in deference to the
States.’”
Sprint Commc’ns, Inc., 571 U.S. at 73 (quoting
New Orleans Pub. Serv., Inc.
v. Council of the City of New Orleans, 491 U.S. 350, 368 (1989)).
The plaintiffs contend that the government defendants should be unable to
invoke
Younger, or presumably any doctrine grounded in federal comity, because
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their removal action was responsible for moving the case from state court where it
was filed to federal court where it is lodged now. 	There is some support for this
proposition. 	“Permitting 	a 	defendant 	to 	remove 	cases 	from 	state 	court 	then
immediately invoke the
Younger abstention doctrine to obtain dismissal would leave
plaintiffs without any forum to pursue federal claims.”
Hill v. Town of Valley Brook,
595 F. Supp. 3d 1030, 1038 (W.D. Okla. 2022).
Accord, Guy v. Lorenzen, 547 F. Supp.
3d 927, 952 (S.D. Cal. 2021). 	The defendants reply that even without removal they
could interpose an abstention concept to persuade a Superior Court judge to defer a
civil action for damages pending completion of the forfeiture procedure. That may be
so, but there would be no consideration of federal comity. 	While the analogy to a
waiver of immunity is not perfect, there is some similarity in the idea that after
defendants choose a federal forum, they should be unable to invoke a doctrine that
expressly claims that the federal forum is inappropriate.
A forfeiture action was filed against property owned by both Ricci and Custom
Construction. 	The plaintiffs have, in substance, raised in the forfeiture action the
same constitutional claims raised here. 	They claim an unlawful search, a violation
of due process rights, and the levy of an excessive fine. 	The relief they are able to
seek in the forfeiture action, however, is markedly narrower than that available in
the civil action. They seek dismissal of the forfeiture action, return of property, and
attorneys’ fees and costs related to the forfeiture action. Nowhere is there a claim for
compensatory or punitive damages, and it appears that those remedies are not
available in the forfeiture proceeding.
	See Bridges, 84 F.3d at 477. 	The statutory
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scheme around civil forfeiture in Rhode Island makes provision only for return of the
property. R.I.G.L. § 21-28-5.04.2(o). No costs or damages are available if there was
“reasonable cause for the seizure or the filing of the complaint.”
Id.
In addition, it seems evident from the language of the statute that the only
constitutional defense to forfeiture is the absence of probable cause. R.I.G.L. 21-28-
5.04.2(p) (“In any action brought under this section, the state shall have the initial
burden of showing the existence of probable cause for seizure or arrest of the
property.”). 	Once the State shows probable cause, “the claimant shall have the
burden of showing by a preponderance of evidence that the property was not subject
to forfeiture under this section.”
	Id. 	Being “not subject to forfeiture” simply means
not being used in connection with enumerated drug offenses in Title 21, Chapter 28.
R.I.G.L. 21-28-r.04(a).
Thus, it appears from the statutory language that
no defense, other than the
absence of probable cause or that the
res is not connected to drugs is available. The
State meets its burden of showing probable cause simply by proffering the warrants;
if probable cause were the product of fabrications in the affidavit in support of the
search warrant, that may well be outside the scope of defenses available in the
forfeiture action. 	So it would seem might be the plaintiffs’ “shock the conscience”
claim. Neither the plaintiffs nor the defendants have produced any case law on either
side of this issue, nor has the Court found any. It is incumbent upon the defendants,
however, to establish the
Younger criterion that the state proceeding affords the
plaintiff 	the 	same 	opportunity 	to 	litigate 	the 	claims 	he 	raises 	in 	his 	federal
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Complaint. 	All the defendants proffer is that the plaintiffs have articulated those
challenges to the state court: there is no indication they will be entertained.
There are many reasons why the Court declines to abstain, at least at this
time.25 	While the state’s interest in forfeiture of the plaintiffs’ property is significant,
it pales in comparison to the importance of resolving the plaintiffs’ claim that
members of the Smithfield Police Department actively lied to a judicial officer – twice
– in order to obtain search warrants. Second, it appears uncertain that the plaintiffs’
due process claim is even within the scope of the forfeiture hearing. 	Third, the
forfeiture proceeding surely cannot provide the plaintiffs with the remedies to which
they would be entitled in this Court were they ultimately successful. And fourth, the
forfeiture complaint was filed on November 22, 2017, five-and-one-half years ago and
has not yet been heard.26 	There is no presumption in favor of abstention simply
because related state proceedings are pending. Indeed, abstention is the
exception to
the presumption that a federal court should proceed to adjudicate disputes over which
it has jurisdiction.
New Orleans Pub. Service, Inc. v. Council of City of New Orleans,
25 Even when the criteria for
Younger abstention are met, a stay rather than
dismissal may be appropriate.
	Gilbertson v. Albright, 381 F.3d 965, 968 (9th Cir.
2004) (federal actions for damages should be stayed until state proceedings are
completed rather than dismissed). 	In
Gilbertson, the federal action was ultimately
dismissed after state proceedings had concluded.
Gilbertson v. Albright, No. Civ. 01-
6292-HO, 2005 WL 2044006 (D. Ore. Aug. 23, 2005).
26 The Court takes judicial notice of docket Rhode Island Superior Court docket PC-
2017-5620,
State of Rhode Island v. One 2014 Mercedes-Benz Sprinter 250, et al. The
forfeiture proceeding is currently scheduled for August 16, 2023. If that proceeding
is held and significantly changes the complexion of the case before this Court, either
party may bring that to the Court’s attention.
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491 U.S. 350, 368 (1989) (reciting the “rule that only exceptional circumstances justify
a federal court’s refusal to decide a case in deference to the States.”).
The request by the Smithfield defendants that the Court abstain in this case
is DENIED.
VI. 	CONCLUSION
A. 	The State of Rhode Island is GRANTED summary judgment on all
Counts in which it is named.
B. 	The Town of Smithfield’s Motion for Summary Judgment is GRANTED
with respect to Counts III, IV, V, VI, VII, VIII, IX, X and XI.
C. 	The Motions for Summary Judgment of the Smithfield defendants, on
Counts III, V, VII, and X are GRANTED. 	The individual defendants’ Motions are
DENIED with respect to Counts I, II, IV, VI, and XII.
D. 	The Plaintiffs’ Motion for Summary Judgment is DENIED.
IT IS SO ORDERED:
____________________________________
Mary S. McElroy,
United States District Judge
Date: 	July 	21, 2023
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