United States Court of Appeals

For the First Circuit

No. 10-2064

JAMES HALEY

(pending transfer to the

Estate of James Haley),

Plaintiff, Appellant,

v.

CITY OF BOSTON, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard B. Stearns, U.S. District Judge]

Before

 Thompson, Selya and Dyk,*

Circuit Judges.

Gayle Horn, with whom Arthur Loevy, Jon Loevy, Loevy & Loevy,

James Sultan, and Rankin & Sultan were on brief, for appellant.

Hugh R. Curran, with whom Bletzer & Bletzer, P.C. was on

brief, for appellees.

September 19, 2011

Of the Federal Circuit, sitting by designation. *
SELYA, Circuit Judge. After the discovery of previously

undisclosed evidence resulted in the vacation of his murder

conviction and his release from more than three decades of

incarceration, James Haley brought suit to recover damages from

those he deemed responsible for his plight. The defendants — the

City of Boston (the City) and the two detectives who had

spearheaded the investigation of the crime — moved to dismiss.1

The district court granted their motion piecemeal. See Haley v.

City of Boston (Haley I), 677 F. Supp. 2d 379, 393 (D. Mass. 2009);

Haley v. City of Boston (Haley II), Civ. No. 09-10197, 2010 WL

3198900, at *4 (D. Mass. Aug. 12, 2010). Upon careful

consideration of a tangled record, we affirm in part and reverse in

part.

I. BACKGROUND

Because this appeal tests the mettle of a dismissal for

failure to state a claim, Fed. R. Civ. P. 12(b)(6), we glean the

facts primarily from the complaint. See Nisselson v. Lernout, 469

F.3d 143, 150 (1st Cir. 2006). We embellish that account with

facts contained in documents incorporated within the complaint and

facts susceptible to judicial notice. See id.

Since filing suit, Haley has passed away and the action is

1

being pursued on behalf of his estate. To complete the necrology,

both of the individual defendants died long ago. For ease in

exposition, we refer to Haley and the detectives as if they were

still living.

-2-
David Myers and Gloria Custis lived together in a Boston

neighborhood. In the early morning hours of July 11, 1971, Myers

was shot, stabbed, and killed in the apartment that they shared. 

Gloria, who was present at the time, fled to her brother's home and

notified the police. When she returned to the apartment, she met

a Boston police officer, Sergeant Detective Joseph Kelley, who had

responded to her call. Kelley and fellow detective John Harrington

took statements from both Gloria and her sister Brenda (Haley's

estranged wife).

Myers, Gloria said, told her that Haley had stabbed him. 

She also said that she had seen Haley in the apartment that

morning, brandishing a knife and a gun. She speculated that Haley

had come there in search of Brenda (who had left him). Both Gloria

and Brenda vouchsafed that they had not seen Haley for nearly a

month prior to the murder. Brenda, who had been out of state for

much of that time, said that she had last spoken to Haley over the

telephone a few days before the murder and discussed her desire for

a divorce.

The detectives quickly came to regard Haley as the prime

suspect in the slaying. They arrested him the next day. The

district attorney's office, on behalf of the Commonwealth of

Massachusetts, obtained an indictment for first-degree murder.

Prior to the commencement of trial, Haley's counsel filed

a blanket motion for production of evidence favorable to the

-3-
defense (including impeachment evidence). A justice of the state

superior court granted this motion. In its response, the

prosecution did not furnish the statements given by the sisters on

the day of the murder.

The case went to trial in February of 1972. The

prosecution introduced no physical evidence tying Haley to the

events of July 11, 1971, relying instead on the sisters' testimony,

which for the most part tracked what they had said when first

interviewed. But contrary to those initial statements, both women

testified that, while walking back to the apartment that Gloria

shared with Myers on the day before the murder, they had seen Haley

shopping in the neighborhood. The prosecution built upon this

testimony to construct a theory that Haley's sighting of the women

on July 10 had alerted him to Brenda's return to Boston, and her

presence in the neighborhood led him to suspect that she was

staying with her sister. Distressed by her decision to divorce

him, he broke into the apartment looking for Brenda and, when Myers

confronted him, responded by using deadly force.

Haley steadfastly denied that he had seen either sister

on July 10. He maintained that he had no reason to suspect that

Brenda might be at the apartment and, accordingly, had no reason to

go there on July 11. Haley's sister, called as an alibi witness,

testified that he was elsewhere when the murder took place.

-4-
On March 3, 1972, the jury found Haley guilty, and the

trial justice subsequently sentenced him to life imprisonment. For

the next thirty-four years, Haley was confined in the state

correctional system. Notwithstanding the adverse verdict and the

rejection of his direct appeal, see Commonwealth v. Haley, 296

N.E.2d 207 (Mass. 1973), he continued to maintain his innocence.

In 2005, Haley learned of the Massachusetts Public

Records Act, Mass. Gen. Laws ch. 66, § 10. Through use of the

statute, he formally requested all files relevant to his case from

the district attorney's office and the Boston Police Department

(BPD). The request to the district attorney's office came up dry,

but the request to the BPD yielded sixty pages of documents. 

Included in this trove were typed statements that memorialized the

interviews of Brenda and Gloria conducted on the morning of the

murder. Haley realized that the substance of those statements did

not match the sisters' trial testimony and, in part, supported his

own version of events. He therefore filed a motion for a new

trial. The Commonwealth responded by filing a motion to vacate the

conviction and order a new trial. The superior court granted the

latter motion.

At this juncture, the Commonwealth apparently intended to

retry Haley, and he requested discovery. The district attorney's

office replied that all files relating to his case had been lost. 

-5-
Haley then moved to dismiss the murder charge and, on August 26,

2008, the superior court obliged.

On February 11, 2009, Haley repaired to the United States

District Court for the District of Massachusetts and, invoking both

42 U.S.C. § 1983 and state law, sued the City and the two

detectives. He alleged that the defendants deliberately failed to

disclose the sisters' interview statements. With this as a

centerpiece, the complaint asserted federal claims against the

detectives (Kelley and Harrington) for violation of Haley's due

process rights, together with state-law claims against them for

malicious prosecution, civil conspiracy, and negligent

investigation. The complaint asserted a separate set of claims

against the City, under both federal and state law, including

claims for municipal liability, negligent training and supervision,

and respondeat superior liability.

The defendants moved to dismiss all of Haley's claims. 

As to the detectives, the district court granted this motion on

qualified immunity grounds. Haley I, 677 F. Supp. 2d at 386-91. 

As to the City, the court dismissed with prejudice Haley's statelaw claims for failure to make timely presentment. See id. at 392-

93 (citing Mass. Gen. Laws ch. 258, § 4).

Haley moved to alter or amend the judgment. See Fed. R.

Civ. P. 59(e). He argued that the district court's rescript

identified no basis for dismissing his federal municipal liability

-6-
claims and that the state-law claims against the City should have

been dismissed without prejudice. The district court acknowledged

that it had neglected to address the municipal liability claims but

concluded that, because no actionable constitutional violation on

the part of the detectives had occurred, those claims were

impuissant. Haley II, 2010 WL 3198900, at *2-3. Relatedly, the

court denied Haley's separate request for leave to file an amended

complaint designed to flesh out his municipal liability claims. 

Id. at *3 n.4. The court then reiterated that the state-law claims 

were properly dismissed with prejudice. Id. at *4. Next, with

respect to the previously overlooked malicious prosecution claim,

the court declared that a Massachusetts state court might find this

claim timely and, therefore, declined to exercise supplemental

jurisdiction over it. Id. Accordingly, the court dismissed this

claim without prejudice. Id. This timely appeal followed.

II. ANALYSIS

This appeal calls upon us to decide three sets of issues:

(i) whether the district court erred in granting qualified immunity

to the detectives on Haley's federal claims; (ii) whether the

district court erred in dismissing Haley's federal municipal

liability claims; and (iii) whether the district court erred in its

disposition of a salmagundi of state-law claims. After pausing to

confirm the standard of review, we grapple with these issues in

sequence.

-7-
A. Standard of Review.

We review an order of dismissal for failure to state a

claim de novo. SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010)

(en banc). In conducting this review, "we accept as true all wellpleaded facts set forth in the complaint and draw all reasonable

inferences therefrom in the pleader's favor." Artuso v. Vertex

Pharm., Inc., 637 F.3d 1, 5 (1st Cir. 2011). We may augment these

facts and inferences with data points gleaned from documents

incorporated by reference into the complaint, matters of public

record, and facts susceptible to judicial notice. In re Colonial

Mortg. Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003).

A complaint need contain only "a short and plain

statement of the claim showing that the pleader is entitled to

relief." Fed. R. Civ. P. 8(a)(2). Although "detailed factual

allegations" are not necessary, Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007), the complaint must "contain sufficient

factual matter . . . to 'state a claim to relief that is plausible

on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)

(quoting Twombly, 550 U.S. at 570). The complaint must include

"factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged." 

Id. "If the factual allegations in the complaint are too meager,

vague, or conclusory to remove the possibility of relief from the

-8-
realm of mere conjecture, the complaint is open to dismissal." 

Tambone, 597 F.3d at 442 (citing Twombly, 550 U.S. at 555).

Appellate review is not cabined by the trial court's

rationale. Rather, the court of appeals may affirm an order of

dismissal on a ground not relied upon by the district court, as

long as that ground is evident from the record. See Román-Cancel

v. United States, 613 F.3d 37, 41 (1st Cir. 2010).

B. Qualified Immunity.

Haley's complaint sketches an unattractive tableau of the

detectives' conduct. Taking full advantage of the rule that a

plaintiff may plead alternative and even inconsistent claims, see

Fed. R. Civ. P. 8(a)(3); see also Curet-Velázquez v. ACEMLA de

P.R., Inc., ___ F.3d ___, ___ (1st Cir. 2011) [No. 10-1587, slip

op. at 22], the complaint prefers two distinct claims against those

defendants. First, construed favorably to Haley, it can be read as

alleging that the detectives' failure to disclose the witness

statements, whatever the cause, violated the affirmative no-fault

disclosure obligation articulated in Brady v. Maryland, 373 U.S.

83, 87 (1963). Second, it alleges that the nondisclosure was part

of a deliberate attempt to secure a conviction, without regard to

actual guilt or innocence, offending a broader due process

proscription against intentionally framing an accused person. The

detectives sought refuge from these claims under the carapace of

-9-
qualified immunity. The district court, without differentiating

between the two claims, accepted that defense.

We begin our substantive discussion with first

principles. Qualified immunity is a judge-made doctrine designed

to "balance[] two important interests — the need to hold public

officials accountable when they exercise power irresponsibly and

the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably." Pearson v.

Callahan, 555 U.S. 223, 231 (2009). The doctrine protects all

state actors except "the plainly incompetent [and] those who

knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341

(1986). But despite its broad protective sweep, qualified immunity

does not "shield public officials who, from an objective

standpoint, should have known that their conduct was unlawful." 

Pagán v. Calderón, 448 F.3d 16, 31 (1st Cir. 2006) (citing Davis v.

Scherer, 468 U.S. 183, 193 (1984)).

The Supreme Court has emphasized "the importance of

resolving immunity questions at the earliest possible stage in

litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per

curiam). To this end, the defense sometimes can be raised and

evaluated on a motion to dismiss. See Siegert v. Gilley, 500 U.S.

226, 232-33 (1991).

Courts should follow a two-part inquiry in order to

determine whether a defendant is entitled to qualified immunity. 

-10-
See Pearson, 555 U.S. at 232. We first ask "whether the facts that

a plaintiff has alleged . . . make out a violation of a

constitutional right." Id. If so, we then ask "whether the right

at issue was 'clearly established' at the time of defendant's

alleged misconduct." Id. (quoting Saucier v. Katz, 533 U.S. 194,

201 (2001)).

Prior to Pearson, courts were required to address these

points sequentially. Id. (citing Saucier, 533 U.S. at 201). 

Pearson relaxed this mandate, explaining that undertaking the first

inquiry "sometimes results in a substantial expenditure of scarce

judicial resources on difficult questions that have no effect on

the outcome of the case." Id. at 236-37. If "it is plain that a

constitutional right is not clearly established," a court may grant

the requested immunity without undertaking the "essentially

academic exercise" of ascertaining whether the specific facts

depict a constitutional violation. Id. at 237; see Doe ex rel.

Johnson v. S.C. Dep't of Soc. Servs., 597 F.3d 163, 169 n.2 (4th

Cir. 2010). We follow this advice where pertinent in analyzing the

dual claims that are before us.

1. No-Fault Nondisclosure. In the first of his two

section 1983 forays against the detectives, Haley alleges that they

abridged his due process rights by failing to comply with the

disclosure obligation imposed by the Fifth and Fourteenth

Amendments and explicated by the Supreme Court in Brady v.

-11-
Maryland. Because the answer to the second of the two qualified

immunity inquiries required by Pearson is plain, we assume without

deciding that the alleged no-fault nondisclosure constitutes a

viable claim of breach and proceed directly to the question of

whether the specific right upon which the claim hinges was clearly

established at the time of Haley's trial.

When a public official asserts a qualified immunity

defense, he may be held liable for violating a constitutional right

only if "[t]he contours of the right [are] sufficiently clear

[such] that a reasonable official would understand that what he is

doing violates that right." Anderson v. Creighton, 483 U.S. 635,

640 (1987). This step of the qualified immunity pavane requires a

reviewing court to ask whether the contours of the right would have

been "sufficiently well-defined at the critical time" and, if so,

"whether it would have been clear to an objectively reasonable

official, situated similarly to [the defendants], that the actions

taken or omitted contravened the clearly established right." 

Limone v. Condon, 372 F.3d 39, 48 (1st Cir. 2004). The Court's

decision in Pearson did not alter these requirements. See, e.g.,

Díaz-Bigio v. Santini, ___ F.3d ___, ___ (1st Cir. 2011) [No. 09-

2575, slip op. at 13].

In the case at hand, this inquiry starts with Brady,

which was settled law at the time of Haley's trial. There, the

Supreme Court held that "the suppression by the prosecution of

-12-
evidence favorable to an accused upon request violates due

process." Brady, 373 U.S. at 87. This affirmative obligation

applies "irrespective of the good faith or bad faith of the

prosecution," id., and is sometimes referred to as imposing a nofault disclosure obligation, see, e.g., Porter v. White, 483 F.3d

1294, 1305 (11th Cir. 2007).

The Brady Court wielded a scalpel, not a meat-axe. The

Justices made it transparently clear that the newly announced nofault disclosure obligation does not cover all evidence but,

rather, only "evidence [that] is material either to guilt or to

punishment." Brady, 373 U.S. at 87; see United States v. Trainor,

423 F.2d 263, 264 (1st Cir. 1970).

Approximately nine years intervened between the Court's

decision in Brady and Haley's trial. The parties clash over the

dimensions of Brady's materiality requirement as perceived in 1972

— a debate that centers on whether a duty then existed to disclose

potentially critical information that was impeaching but not

necessarily exculpatory.2

We need not decide when it became clearly established

that Brady extended to impeachment evidence. Here, qualified

immunity attaches for a different and independent reason: in 1972,

Although the Supreme Court did not explicitly extend Brady

2

to impeachment evidence until after 1972, see, e.g., United States

v. Bagley, 473 U.S. 667, 676 (1985), there were spoor for the

cognoscenti prior to that date, see, e.g., Giglio v. United States,

405 U.S. 150, 154 (1972) (citing pre-1972 cases).

-13-
it was not clearly established that Brady's no-fault disclosure

obligation applied to police officers as opposed to prosecutors.

By its terms, Brady applied only to prosecutors. 373

U.S. at 87-88. The Court's decision contained no discussion of any

independent disclosure obligations that might affect police

officers. In the roughly nine years between Brady and Haley's

trial, the question of how, if at all, the Brady rule might apply

to disclosure of material known only to police officers remained

uncertain.

The Supreme Court's jurisprudence indicates the unsettled

nature of the question at the relevant time. Only a few days

before Haley's trial commenced, the Court reiterated that Brady's

no-fault disclosure obligation was the "responsibility of the

prosecutor." Giglio v. United States, 405 U.S. 150, 154 (1972). 

The Justices did not clarify that the Brady duty imposed on

prosecutors bore any relation to disclosure by police officers

until more than twenty years after the jury convicted Haley. Even

then, the described relationship was indirect. In Kyles v.

Whitley, the Court held that the disclosure obligation imposed by

Brady extends to evidence known only to police officers, but that

the responsibility for obtaining and disclosing such evidence

remains the duty of the prosecutor, and not the police officer. 

514 U.S. 419, 437-38 (1995) (holding that Brady's duty encompasses

evidence "known only to police investigators and not to the

-14-
prosecutor"); see also Strickler v. Greene, 527 U.S. 263, 280-81

(1999) (identifying Kyles as the source of this elaboration of the

Brady rule); Porter, 483 F.3d at 1306 (noting that a Brady claim

cannot be brought against a police officer for failing to turn over

evidence). The holding in Kyles is antithetic to any suggestion 

that in 1972, Brady's affirmative disclosure obligation reached

unreservedly to no-fault nondisclosure of Brady materials known

only to police officers. A fortiori, it was not then clearly

established that police officers owed any affirmative no-fault

obligation to criminal defendants. Consequently, the detectives

are entitled to qualified immunity.

2. Deliberate Suppression. Haley's second section 1983

claim against the detectives is more promising. This claim draws

sustenance from a line of cases flowing from the Supreme Court's

seminal decision in Mooney v. Holohan, 294 U.S. 103 (1935), which

held that state actors violate an accused's due process rights when

they engage in "deliberate deception." Id. at 112. Haley avers

that the detectives violated a proscription, developed in Mooney's

pre-1972 progeny, against intentionally concealing evidence and

permitting false testimony to be given at a defendant's trial.3

The complaint describes this claim partly in a separate 3

section 1983 count for malicious prosecution. As the district

court implicitly recognized, Haley I, 677 F. Supp. 2d at 385, this

is not an independent claim; rather, it folds into the broader

claim that the detectives' conduct violated the plaintiff's due

process rights. See Torres v. Sup't of Police, 893 F.2d 404, 409-

10 (1st Cir. 1990).

-15-
The defendants do not respond directly to this aspect of

Haley's asseverational array but, rather, attempt to limit Haley to

his basic Brady claim. See supra Part II(B)(1). We reject that

gambit; it is the party suing, not the party sued, who enjoys the

right to frame the claims asserted in a complaint. Here, as in

Limone, "[t]o restrict the plaintiff[] to a Brady claim would

require us to disregard the forest and focus single-mindedly on a

particular tree." 372 F.3d at 47. Accordingly, we take Haley's

case as he has pleaded it, and proceed to determine whether, as a

matter of law, the detectives are entitled to qualified immunity on

the deliberate suppression claim.

In evaluating this claim, we employ the traditional twostep qualified immunity pavane. See Pearson, 555 U.S. at 232-33. 

We start with whether the complaint alleges a violation of a

constitutional right. This question is not difficult. Haley's

deliberate suppression claim fits easily within the compass of the

right described in Mooney. See Limone, 372 F.3d at 47. Deliberate

concealment of material evidence by the police, designed to grease

the skids for false testimony and encourage wrongful conviction,

unarguably implicates a defendant's due process rights. See

Newsome v. McCabe, 256 F.3d 747, 753 (7th Cir. 2001); see also

Pierce v. Gilchrist, 359 F.3d 1279, 1299 (10th Cir. 2004). "[I]f

any concept is fundamental to our American system of justice, it is

that those charged with upholding the law are prohibited from

-16-
deliberately fabricating evidence and framing individuals for

crimes they did not commit." Limone, 372 F.3d at 44-45.

There is no doubt that this due process protection

applies to police officers who deliberately keep the defense in the

dark about important evidence. See, e.g., Jones v. City of

Chicago, 856 F.2d 985, 995 (7th Cir. 1988). Haley has brought

himself within the encincture of this protection and, thus, the

claim satisfies the first of the two Pearson steps.

At the second step, the threshold question is whether the

contours of the right were clearly established at the relevant

time. See Díaz-Bigio, ___ F.3d at ___ [slip op. at 13]. Almost

forty years before Haley was tried, the Supreme Court made it

pellucid that due process protects an accused against a conviction

procured through deliberate deception. See Mooney, 294 U.S. at

112; see also Brown v. Mississippi, 297 U.S. 278, 286 (1936).

Expanding upon this principle, the Court declared, well before

Haley's trial, that "allegations that imprisonment result[ing] from

. . . the deliberate suppression by [the State] of evidence

favorable to [the accused] . . . sufficiently charge a deprivation

of rights guaranteed by the Federal Constitution." Pyle v. Kansas,

317 U.S. 213, 216 (1942). Context makes it apparent that this

holding encompasses the misconduct of police officers. See id. at

215; see also Smith v. Florida, 410 F.2d 1349, 1350-51 (5th Cir.

1969).

-17-
The Court later explained that this rule protects an

individual when "the State, although not soliciting false evidence,

allows it to go uncorrected when it appears." Napue v. Illinois,

360 U.S. 264, 269 (1959). The Court then reaffirmed that it would

countenance "no deviation from th[e] established principle"

developed in those decisions. Miller v. Pate, 386 U.S. 1, 7

(1967). The upshot, then, is that, by 1972, the relevant right was

clearly established.

The inquiry into whether objectively reasonable officials

in the defendants' positions would have known that their actions

contravened this clearly established right need not occupy us for

long. This inquiry perforce focuses on the facts of the particular

case. Hatch v. DCYF, 274 F.3d 12, 24 (1st Cir. 2001).

Crediting the complaint's allegations and taking all

reasonable inferences therefrom in Haley's favor (as we must), the

detectives investigated the murder and took the sisters'

statements. They knew that the prosecution's case rested largely

on the sisters' testimony — and they were aware that the

prosecution's theory relied heavily on Haley's supposed sighting of

the sisters on the day before the murder. Yet, even though Haley

seasonably requested production of all exculpatory and impeachment

evidence, the detectives purposely failed to tell either the

prosecutor or defense counsel about the sisters' statements. This

deliberate withholding precluded the production of the statements.

-18-
To be sure, this scenario is not precisely the same as

that portrayed in any of the pre-1972 precedents. But variations

between the fact pattern of a case and the fact patterns of earlier

cases do not mean that the earlier cases should be disregarded. 

"[A] general constitutional rule already identified in the

decisional law may apply with obvious clarity to the specific

conduct in question." United States v. Lanier, 520 U.S. 259, 271

(1997). Put another way, "[t]here is no requirement that the facts

of previous cases be materially similar to the facts sub judice in

order to trump a qualified immunity defense." Limone, 372 F.3d at

48.

So it is here. We think that, even as far back as 1972,

a reasonable officer in the circumstances alleged here would have

understood that parlous behavior of the sort described in Haley's

complaint would contravene the constitutional right limned in

Mooney and its progeny. Consequently, the district court erred in 4

dismissing this claim.

C. Municipal Liability.

Haley lodges federal claims against the City, which he

says arise out of standing (if unannounced) policy of nondisclosure

that prevailed at the BPD. We review the district court's

dismissal of these claims de novo.

We emphasize that, at this juncture, we must credit the

4

factual allegations of the complaint. Tambone, 597 F.3d at 441-42. 

We take no view as to what the evidence may show at a trial.

-19-
Unlike public officials, a municipality does not have

available a qualified immunity defense with respect to damages

claims alleged to result from its own constitutional infractions. 

Owen v. City of Independence, 445 U.S. 622, 657 (1980). 

Furthermore, claims of this nature are measured under current law,

without regard to whether the municipality's legal obligations were

clearly established when the alleged malfeasance occurred. See

Barber v. City of Salem, 953 F.2d 232, 237-38 (6th Cir. 1992); see

also Owen, 445 U.S. at 634, 657 (looking to precedents that postdated the alleged violation).

Generally, a municipality "may be liable under [section

1983] if the governmental body itself 'subjects' a person to a

deprivation of rights or 'causes' a person 'to be subjected' to

such deprivation." Connick v. Thompson, 131 S. Ct. 1350, 1359

(2011) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 692

(1978)). However, municipalities are not vicariously liable under

section 1983 for the actions of their non-policymaking employees. 

See Bd. of Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403-04

(1997). They are responsible only for their own unconstitutional

acts. Pembaur v. City of Cincinnati, 475 U.S. 469, 478-79 (1986). 

Thus, a plaintiff who brings a section 1983 action against a

municipality bears the burden of showing that, "through its

deliberate conduct, the municipality was the 'moving force' behind

the injury alleged." Brown, 520 U.S. at 404 (emphasis in original)

-20-
(quoting Monell, 436 U.S. at 694). Such a plaintiff must "identify

a municipal 'policy' or 'custom' that caused the plaintiff's

injury." Id. at 403 (quoting Monell, 436 U.S. at 694).

Here, Haley forthrightly alleged both that the BPD had a

standing policy that was itself unconstitutional and that the City

failed to train its personnel in their evidence-disclosure

obligations despite notice of persistent and ongoing violations. 

These allegations are sufficient to anchor two separate Monell-type

claims, each demanding a different kind of proof.

Haley's first Monell-type claim implicates the standing

policy itself. "Where a plaintiff claims that a particular

municipal action itself violates federal law, or directs an

employee to do so, resolving [the] issues of fault and causation is

straightforward" as long as the appropriate level of culpability is

established. Id. at 404. Haley's second Monell-type claim

implicates an alleged failure to train. Triggering municipal

liability on a claim of failure to train requires a showing that

municipal decisionmakers either knew or should have known that

training was inadequate but nonetheless exhibited deliberate

indifference to the unconstitutional effects of those inadequacies. 

Id. at 407; City of Canton v. Harris, 489 U.S. 378, 387, 390 n.10

(1989). The City counters that Haley's allegations fail to state

a cognizable claim on either front.

-21-
The primary thrust of the City's argument is that the

absence of any constitutional violation on the part of the

detectives pretermits any possibility of Monell-type recovery. 

See, e.g., Evans v. Avery, 100 F.3d 1033, 1039-40 (1st Cir. 1996). 

This argument is unavailing for two reasons. First, under current

law (which applies to Monell-type claims) it is clear that the

disclosure obligation imposed by Brady extends to evidence known

only to police officers, see Kyles, 514 U.S. at 437-38. Second,

one of Haley's claims of a constitutional violation attributable to

the detectives remains in the case. See supra Part II(B)(2).

The City also contends that both municipal liability

claims fail as a matter of pleading to meet the Supreme Court's

recently elucidated "plausibility" requirement. See Iqbal, 129 S.

Ct. at 1949; Twombly, 550 U.S. at 557. This contention elevates

hope over reason.

The complaint alleges that the detectives' withholding of

the sisters' statements occurred pursuant to a standing BPD policy,

under which Boston police officers regularly kept helpful evidence

from criminal defendants. The complaint further alleges that this

policy was designed to encourage successful prosecutorial outcomes

despite the existence of evidence pointing to innocence. The

complaint contrasts the BPD's policy with that of the district

attorney's office, which it alleges had a standing policy to

disclose all known exculpatory and impeachment evidence in full

-22-
compliance with Brady. Haley argues that, in his case, the

district attorney's office was unable to fulfill its salutary (and

constitutionally mandated) disclosure policy because the BPD failed

to apprise it of the sisters' statements. The end result was

Haley's wrongful conviction.

Haley's second municipal liability claim draws on many of

these same facts. The difference is the allegation, made in the

alternative, that the BPD's unconstitutional suppression of the

sisters' statements, if not the result of a standing policy, was

precipitated by poor training, to which the City was deliberately

indifferent.

For its part, the City vigorously disputes the accuracy

of these allegations. It denies that the BPD either put in place

an unconstitutional policy or turned a blind eye to the need for

training. But this is neither the time nor the place to resolve

the factual disputes between the parties. Whether Haley can prove

what he has alleged is not the issue. At this stage of the

proceedings, we must take the complaint's factual allegations as

true, and those allegations paint an ugly but plausible picture. 

If proven, that picture will support a finding of municipal

liability.

We do not reach this conclusion lightly. Evaluating the

plausibility of a pleaded scenario is a "context-specific task that

requires the reviewing court to draw on its judicial experience and

-23-
common sense." Iqbal, 129 S. Ct. at 1950. Disclosure abuses are

a recurring problem in criminal cases, see United States v. Osorio,

929 F.2d 753, 755 (1st Cir. 1991), and the BPD's failure to

disclose the sisters' statements is wholly unexplained. Given the

volume of cases involving nondisclosure of exculpatory information

and the instant failure to disclose statements that clearly would

have undermined the prosecution's theory of the case, we think that

the municipal liability claims pleaded by Haley step past the line

of possibility into the realm of plausibility. See Iqbal, 129 S.

Ct. at 1949-50. Indeed, if the detectives intentionally suppressed

the discoverable statements even when such activity was condemned

by the courts (as Haley has alleged), it seems entirely plausible

that their conduct was encouraged, or at least tolerated, by the

BPD. Although couched in general terms, Haley's allegations

contain sufficient factual content to survive a motion to dismiss

and open a window for pretrial discovery. See id.; Tambone, 597 5

While the "plausibility" question is close, we think it 5

noteworthy that Haley's complaint was filed before the Supreme

Court decided Iqbal. After the Iqbal Court clarified that the

plausibility requirement applied to cases beyond the realm of

antitrust, see 129 S. Ct. at 1953, Haley attempted to flesh out his

municipal liability claims through a motion for leave to file a

further amended complaint. The district court denied this motion

because it thought, mistakenly, that neither the original nor the

proposed amended complaint properly pleaded an underlying

constitutional violation on the part of the detectives. See Haley

II, 2010 WL 3198900, at *3 n.4. Because we set aside the order of

dismissal with respect to the municipal liability claims, we need

not review that ruling.

-24-
F.3d at 442. Consequently, the district court erred in dismissing

Haley's section 1983 claims against the City.

D. State-Law Claims.

This brings us to Haley's assertion that the district

court erred in dismissing certain of his state-law claims. In 6

resolving these portions of Haley's appeal, we "apply federal

procedural law and state substantive law." Alt. Sys. Concepts,

Inc. v. Synopsys, Inc., 374 F.3d 23, 32 (1st Cir. 2004).

1. Malicious Prosecution. The district court dismissed

Haley's state-law malicious prosecution claim without prejudice. 

Haley II, 2010 WL 3198900, at *4. The defendants asseverate that

this claim should have been dismissed with prejudice. Haley has

abandoned this claim, see supra note 6, and the defendants have not

prosecuted a cross-appeal.

It is black-letter law that even though an appellee can

argue in support of a lower court's ruling in his favor on any

ground made manifest in the record (including grounds not relied on

by the lower court), he cannot, without a cross-appeal, argue

Haley has explicitly waived his intentional tort claims 6

against the City and his common law negligence claims against the

detectives. See Appellant's Reply Br. at 23 n.5. He has not

developed on appeal any arguments related to either the district

court's dismissal without prejudice of his malicious prosecution

claim or the court's disposition of his respondeat superior and

civil conspiracy claims. Hence, we treat those claims as

abandoned. See Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st

Cir. 2011); United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990).

-25-
against a judgment in his favor in an endeavor either to expand his

rights or to diminish the appellant's rights. See Morley Constr.

Co. v. Md. Cas. Co., 300 U.S. 185, 191 (1937); Figueroa v. Rivera,

147 F.3d 77, 81 (1st Cir. 1998). Because the City never filed its

own notice of appeal, its effort to make this favorable ruling even

more favorable comes to naught.

2. Negligence Claims. Under Massachusetts law, one who

wishes to assert a negligence claim against a municipality must

"present[] his claim in writing to the [defendant] within two years

after the date upon which the cause of action arose." Mass. Gen.

Laws ch. 258, § 4. Suit must be brought within "three years after

the date upon which such cause of action accrued," id., and the

plaintiff must make the required presentment prior to the

commencement of suit. Id. This statute is written with

conspicuous clarity, and the Massachusetts Supreme Judicial Court

(SJC) has left little doubt that its plain meaning controls. See

Holahan v. City of Medford, 474 N.E.2d 1117, 1119-20 (Mass. 1985).

Haley concedes that his state-law claims for negligent

investigation, negligent supervision and training, and civil

conspiracy fall within the purview of this statute. The district

court jettisoned these claims for Haley's failure to comply with

the statute. See Haley I, 677 F. Supp. 2d at 392-93; Haley II,

2010 WL 3198900, at *4.

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In Massachusetts, the accrual date for a negligence claim

of this genre is either the date of the injury or the date on which

the plaintiff discovered (or should have discovered) the injury. 

See Doe v. Harbor Schs., Inc., 843 N.E.2d 1058, 1060-61 (Mass.

2006). The claims at issue accrued on February 14, 2006, when

Haley received the sisters' statements pursuant to his records

request. Haley I, 677 F. Supp. 2d at 384. Under the statutory

time line, Haley was required to make presentment by February 14,

2008 and to bring suit by February 14, 2009. He brought suit on

February 11, 2009 (within the specified period) but neglected to

make presentment until April 28, 2009. This presentment was doubly

flawed: it came both too late and after the filing of suit.

In an effort to paper over these deficiencies, Haley

proposes an alternate time line. His proposal depends on the

notion that the period for making presentment was tolled until

August 26, 2008 (the date on which the state court vacated his

conviction) because he could not have commenced a viable suit until

then. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (holding

that a plaintiff, in order to recover damages for an

unconstitutional conviction, must show a favorable termination of

the underlying conviction); Jones v. Maloney, 910 N.E.2d 412, 415

(Mass. App. Ct. 2009) (similar).

Haley suggests that one Massachusetts jurist has

concluded that Heck's holding provides a basis for tolling the

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three-year limitations period for bringing suit against a

municipality until the plaintiff's conviction is overturned. See

Lombard v. Salisbury Police Dep't, No. 942937B, 1995 WL 1146874, at

*3 (Mass. Super. Ct. June 14, 1995). But even if this reading is

correct — a matter that is open to considerable doubt — the three- 7

year deadline for bringing suit and the two-year deadline for

making presentment are independent requirements. The SJC does not

treat those two requirements with the same flexibility. See George

v. Town of Saugus, 474 N.E.2d 169, 170-72 (Mass. 1985). While

occasionally recognizing that the limitations period for filing

suit may be tolled, the SJC has held that a plaintiff's inability

to bring a suit does not toll the running of the presentment

period. See id. at 171-72 & n.3; Weaver v. Commonwealth, 438

N.E.2d 831, 835 (Mass. 1982). There is a sensible basis for this

distinction: an impediment to bringing suit does not necessarily

denote an inability to give notice, and a municipality should not

be deprived of its right to conduct a timely investigation and

build an effective defense where notice is feasible. See George,

474 N.E.2d at 171-72. That is the case here: the Heck doctrine in

no way prevented Haley from effecting presentment by February 14,

In all events, Justice Souter, writing for this court, 7

recently pointed out the pitfalls of relying on state trial courts

as authoritative arbiters of state law. See EMC Corp. v. Arturi,

___ F.3d ___, ___ (1st Cir. 2011) [No. 11-1001, slip op. at 5-6]

(noting a conspicuous lack of harmony among state trial courts when

it comes to defining the extent of their equitable-enforcement

power).

-28-
2008. His failure to do so subjected his state-law negligence

claims against the City to dismissal.

Haley's failure to follow the statutorily prescribed

sequence reinforces this result. The statute explicitly directs

that the making of presentment precede the commencement of suit. 

See Mass. Gen. Laws ch. 258, § 4. A plaintiff's obligation to

follow this sequence is relieved only where the defendant has

waived the requirement that presentment precede the institution of

litigation. See Holahan, 474 N.E.2d at 1119-20. Haley has not

suggested that such a waiver transpired here.

Although his argument against the dismissal of these

claims fails, Haley has a fallback position. The district court

dismissed the claims with prejudice, and Haley insists that the

dismissal should operate without prejudice. This argument lacks

merit.

The SJC has indicated that dismissal without prejudice

would be proper in a case brought pursuant to chapter 258, section

4, only if timely presentment might still be made. See, e.g.,

Commesso v. Hingham Hous. Auth., 507 N.E.2d 247, 249-50 (Mass.

1987). Here, the presentment period had run before the district

court granted the motion to dismiss (indeed, it had run before the

City was served with the complaint). In view of these facts,

dismissing Haley's state-law negligence claims against the City

with prejudice was altogether appropriate.

-29-
We need not linger over Haley's malicious prosecution

claim. The district court declined to exercise supplemental

jurisdiction over this claim and therefore dismissed it without

prejudice. Haley II, 2010 WL 3198900, at *4. That disposition was

proper at the time, and Haley has not contested it on appeal. 

While the district court may choose to re-examine its declination

of supplemental jurisdiction in light of changed circumstances,

see, e.g., Allen v. LaSalle Bank, N.A., 629 F.3d 364, 366, 369 (3d

Cir. 2011); Shames v. Cal. Travel & Tourism Comm'n, 626 F.3d 1079,

1085 (9th Cir. 2010); Young v. Lepone, 305 F.3d 1, 17-18 (1st Cir.

2002), there is nothing for this court to do.

E. Remaining Issues.

In a plea that defies reason, the defendants contend that

"extraordinary circumstances" warrant dismissal of all of Haley's

claims. Specifically, they complain that the loss of many relevant

files, the death of several witnesses, and the passage of so many

years will hamstring their ability to mount a full defense. The

defendants cite no authority in support of the startling

proposition that the loss of evidence over time, without any fault

on the part of the plaintiff, warrants the automatic dismissal of

a cognizable claim. What authority exists contradicts their

position. See, e.g., In re Sealed Case, 494 F.3d 139, 150-51 (D.C.

Cir. 2007) (holding that the "death of a witness . . . is not an

occasion to dismiss complaints on the basis of speculation about

-30-
what the lost evidence might have suggested"); Rideau v. Whitley,

237 F.3d 472, 482-83 (5th Cir. 2000) (concluding that lost evidence

did not warrant dismissal of habeas petition).

At any rate, the loss of evidence will not necessarily

prevent the development of the facts of this case. Some records

(such as the files of the BPD) remain available; others may still

be found or located; and Haley has identified specific witnesses,

including the sisters and various employees of the district

attorney's office, who may be in a position to shed light on the

facts. Haley bears no responsibility for the loss of evidence, and

it would be unfair to prevent him from attempting to prove his case

because of the foibles of others.

There is one loose end. Haley has filed a conditional

motion asking us, should he prevail on this appeal, to invoke D.

Mass. R. 40.1(K)(2) and order his case reassigned to a different

trier. We deny the motion. Local Rule 40.1(K)(2) is addressed in

the first instance to the discretion of the district court. See

Rodi v. S. New Engl. Sch. of Law, 532 F.3d 11, 19 (1st Cir. 2008). 

We have no reason to believe that the able district judge will not

administer this rule appropriately.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we reverse the dismissal of Haley's section 1983 claims for

deliberate suppression against the individual defendants and

-31-
municipal liability claims against the City. We affirm the lower

court's disposition of all other claims. We deny Haley's motion to

order reassignment to a different district judge.

Affirmed in part, reversed in part, and remanded. Costs shall be

taxed in favor of the plaintiff.

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