Levo Dion v. Town of Bristol et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
____________________________________
)
KENDRA ROSE LEVO DION, 	)
Plaintiff, 	)
)
v. 	) 	No. 1:26-cv-00010-MSM-AEM
)
TOWN OF BRISTOL, CHIEF 	)
KEVIN LYNCH, PTLW ASHLEIGH 	)
FLESER, BRISTOL POLICE DEPT., 	)
Defendants. 	)
____________________________________)
ORDER
Mary S. McElroy, United States District Judge.
The plaintiff, Kendra Rose Levo Dion, has turned to this Court to recover
damages from what she believes was the abject unresponsiveness of the Bristol Police
Department to respond to her need for protection in the face of abuse from her
domestic partner. In addition to failing to protect her and failing to take her seriously
or act on her repeated complaints of abuse, a member of the Department allegedly
increased the danger to Ms. Dion by informing the alleged abuser of her intent to
obtain a restraining order against him. That, in Ms. Dion’s view, caused her partner
to preemptively obtain a restraining order and to eject her from her home. 	There
then ensued a cascading series of emotional injuries, creating trauma that triggered
what seems to have been preexisting mental health difficulties. In a previous Order,
the Court concluded that the Complaint failed to state a plausible federal claim for
relief and awarded Ms. Dion the opportunity to file an Amended Complaint, which
she did. (ECF No. 4.)
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The Amended Complaint tells a story of alleged domestic abuse which caused
Ms. Dion to file a report with the Bristol Police. 	She was looking for help to file a
restraining order against her partner, Felix, with whom she lived. 	Rather than
assisting her in obtaining such an Order, the Bristol officer, Defendant Fleser,
apparently spoke to the partner and, while doing so, informed him of Ms. Dion’s
intention, in breach of what Ms. Dion claims was a duty of confidentiality. 	That
allegedly caused her partner to preemptively obtain a Court Order ejecting her from
the home. 	Being removed from her home caused a series of adverse emotional
reactions and injury.
The Amended Complaint asserts a number of claims against the Bristol Police,
the Town, the Police Chief, and the officer who dealt with Ms. Dion. There are really
two occurrences (police failure to act and police breach of confidentiality) that,
according to the Amended Complaint, support four claims: a Fourteenth Amendment
Due Process claim for creating a dangerous situation for her and failing to secure her
safety; a First Amendment claim for retaliation, hypothesizing that her attempt to
seek emergency protection from the police caused them to deliberately ignore her
reports; an equal protection claim based on her theory that the non-responsiveness of
the Bristol Police was motivated by gender discrimination – a general dismissal of
her as “emotional”; and a claim against the Town for alleged policies, practices and
customs causing the police to be indifferent to her safety.
The Court has examined R.I.G.L. § 12-29-3, a statute governing the obligations
of police responding to a domestic abuse complaint, to determine the existence of a
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duty or expectation sufficiently created by state law to constitute a federal due
process 	property 	interest. 	There 	is, 	however, 	nothing 	in 	even 	the 	Amended
Complaint to suggest that the responding officer had probable cause to believe that a
felonious assault had been committed which, per § 12-29-3(i), is the triggering
situation creating a duty to arrest. Absent probable cause to believe that a physical
assault or violation of an existing court order occurred, there appears to be nothing
in the law creating a duty of action. 	The police are compelled to assist a victim of
domestic violence in leaving the abode, but Ms. Dion does not suggest she had
difficulty doing that or that any difficulty was caused by the failure of Defendant
Fleser to render assistance.1 Absent a violation of an expectation grounded in state
law, there is no federal due process claim here.
	Town of Castlerock, Colorado v.
Gonzalez, 545 U.S. 748, 764 (2005) (where state law did not clearly mandate
enforcement of a restraining order, there was no federally protected due process right
violated by the failure of police to enforce it).
To the extent that Ms. Dion is positing a general due process duty on the part
of the police to actively protect her and act in furtherance of her safety, there is no
duty to prosecute imposed by federal law that an individual citizen can enforce.
Linda
R.S. v. Richard D., 410 U.S. 614, 617 (1973);
Johnson v. Craft, 673 F. Supp. 191, 193
1 R.I Gen. Laws §12-29-3(e)(4) provides that “[i]n cases where the officer has
determined that no cause exists for an arrest, assistance shall also include: (i)
Remaining at the scene as long as there is danger to the safety of the person or until
the person is able to leave the dwelling. The officer shall transport the person if no
reasonable transportation is available.
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(S.D. Miss. 1987) (“The decision to prosecute a particular crime is within authority of
the state and there appears to be no federal constitutional right to have criminal
wrongdoers brought to justice.”).
	Soto v. Flores, 103 F.3d 1056 (1st Cir. 	1997), is a
tragic case that may illustrate this point. In 1991, Flor Maria Soto complained to the
police about the abuse she suffered at the hands of her husband, Angel Rodriguez.
He had threatened to kill her and their children. The police – knowing of the threats
that Rodriguez had specifically made against Soto if she went to the police –
nonetheless contacted Rodriguez and told him of Ms. Soto’s allegations. They did not
put Rodriguez in jail or take any other action against him. 	Four days later, Mr.
Rodriguez killed his children. 	Ms. Soto sued the police under 42 U.S.C. § 1983.
	Id.
at 1058. The
Soto case was in a different legal position but along the way to its result,
the First Circuit remarked that this scenario had not violated any due process right
of Ms. Soto.
Id. at 1062 (“She herself was not deprived of a constitutionally protected
interest, and she may not bring a section 1983 due process claim on her own behalf.”).
See also Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir. 1993).
Ms. Dion does not contend that the action of Officer Fleser increased the
danger to her from Felix and so does not present a due process claim under the state-
created danger theory of liability. But in
Irish v. Fowler, 979 F.3d 65 (1st Cir. 2020),
the First Circuit announced adoption of the state created danger doctrine and held
that it constituted a “clearly settled right” that could defeat qualified immunity. To
state a claim under that doctrine the plaintiff must allege 	that a state actor
affirmatively acted to create or enhance a danger to the plaintiff; that the danger
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created was specific to the plaintiff as distinct from the public; that the act caused
the plaintiff harm; and “that the state actor’s conduct, when viewed in total, shocks
the conscience.” 	The plaintiff must also show that the state actor knew of a
substantial risk of serious harm and disregarded that risk.
	Id. at 74. 	The Court is
therefore affording Ms. Dion another opportunity to amend her Amended Complaint
to provide more factual support for this specific claim: what did Officer Fleser know
about previous acts of actual violence committed by Felix? 	Had Ms. Dion been
physically assaulted before Officer Fleser responded and what had she told the
Officer about that? Were there any indicia other than timing indicating that Officer
Fleser’s disclosure was the cause of Felix’ seeking a restraining order? 	Was there
any subsequent physical abuse resulting from the disclosure? What are the specifics
about the harm suffered by the plaintiff – the relationship between being evicted and
subsequent emotional distress? Did Officer Fleser know of Ms. Dion’s mental health
issues?2
As to the second prong of Ms. Dion’s Amended Complaint, there is no
constitutional right to non-disclosure by police of an alleged victim’s identity to the
putative perpetrator and Ms. Dion has not pointed to a statutory right. In the absence
2 In an attempt to come within
DeShaney v. Winnebago County Dept. of Soc. Serv.,
489 U.S. 189 (1989), Ms. Dion includes in her Amended Complaint an allegation that
she stood in a “special relationship” with the Bristol Police. The
DeShaney doctrine
imposes an affirmative duty to protect on the State if such a special relationship
exists. But that relationship generally involves the deprivation of the person’s right
to take care of themselves, as in the case of “incarceration, institutionalization, or
other similar restraint of personal liberty,” which is not the situation here.
	Kneipp
v. Tedder, 95 F.3d 1199, 1205 (3d Cir. 1996) (quoting
DeShaney 489 U.S. at 197).
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of a federal statutory right, there is no federal claim for breach of confidentiality. Nor
does R.I.G.L. § 12-29-3 create a state expectation that there will be no disclosure such
that the federal due process clause might protect a confidentiality right.
In 	addition 	to 	these 	claims, 	Ms. 	Dion 	sues 	the 	Town 	and 	the 	Police
Department, positing that they dismissed her as an “emotional” woman, rather than
take her seriously, and that this constituted gender discrimination. She assumes the
police conduct – or lack of action on her behalf – reflects a policy, custom, or practice
that would subject the Town to liability under
Monell v. New York Dept. of Soc. Serv.,
436 U.S. 658, 694 (1978). Such a claim has three elements: “that there is a custom or
policy of providing less protection to victims of domestic violence than to victims of
other crimes, that gender discrimination is a motivating factor, and that [the
plaintiff] was injured by the practice.”
Soto, 103 F.3d at 1066. Ms. Dion’s perceptions
may in fact be true, in whole or in part, but she has provided nothing, other than
conclusory 	allegations 	from 	which 	the 	Court 	can 	even 	draw 	an 	inference 	of
discriminatory motivating intent.
Finally, there are no factual allegations to support any claim of unlawful
conduct by Police Chief Kevin Lynch. 	There is an assumption, presumably, that he
is generally “responsible” for what the Bristol Police do, but that is not enough upon
which to base a federal lawsuit. There must be a causal link adequately pled between
the actions of the Chief and whatever constitutional violation has been committed by
the subordinate.
	Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir.
1994).
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The claims against the Town of Bristol, its Police Department, and its Police
Chief are DISMISSED.
The Plaintiff may file a Second Amended Complaint against Defendant Fleser
on or before May 8, 2026, in support of the state-created danger claim. 	That is the
only claim that survives this Order.
The IFP Application remains deferred while Plaintiff is allowed to file a Second
Amended Complaint. If no Second Amended Complaint is filed by May 8, 2026, or if
one is filed but it fails to state a federal claim, the case will be DISMISSED.
IT IS SO ORDERED
_____________________________
Mary S. McElroy
United States District Judge
April 15, 2026
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