Tort – Malicious prosecution | Massachusetts Lawyers Weekly

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Where a defendant police officer who obtained a criminal complaint against the plaintiff has moved to dismiss the plaintiff’s malicious prosecution claims, that motion should be denied because the plaintiff adequately pleads facts suggesting that the officer had a basis to suspect that the plaintiff did not tamper with a carton of almond milk as alleged by a supermarket employee.

“Plaintiff Billy Smith Jr. (Smith) has brought an action against Brockton Police Officer Kenneth Egan and the Stop & Shop Supermarket Company, LLC (Stop & Shop). He contends that the defendants falsely accused him of food tampering and caused baseless criminal charges to be brought against him. Officer Egan moves to dismiss the complaint against him. … The motion is denied for the reasons explained below. …

“On May 26, 2020, Smith was grocery shopping at a Stop & Shop supermarket in Brockton, Massachusetts. Officer Egan was working as a uniformed detail police officer assigned to the store. As well, a video surveillance system permitted a Stop & Shop employee named Calvin Fenelus to monitor, investigate, and surveil store customers. At some point, Fenelus began to surveil Smith because he is black.

“Security camera footage from May 26 showed Smith selecting a carton of almond milk from a non-refrigerated shelf, placing it in his shopping cart, and heading towards an aisle containing greeting cards. Smith also had Bai juice drinks in his cart, which likewise came from a non-refrigerated shelf. While in the greeting cards aisle, where he spent about 75 seconds looking down at the cards and at coupons he had brought from home, the camera showed only Smith’s head, left shoulder, and back. Smith then returned the almond milk and the juice drinks to the same non-refrigerated shelves where he had found them. …

“On September 8, 2021, all criminal charges against Smith were dismissed for lack of prosecution. …

“The complaint asserts three malicious prosecution-related claims against Officer Egan: Count One asserts a claim for malicious prosecution in violation of 42 U.S.C. §1983 (section 1983); Count Two alleges that Officer Egan and Stop & Shop conspired to effectuate Smith’s malicious prosecution, in violation of section 1983; and Count Three asserts a common law claim against Officer Egan for malicious prosecution. …

“In moving to dismiss, Officer Egan argues that Smith cannot prove the second element, that his arrest was not supported by probable cause. Officer Egan argues, correctly, that all of Smith’s claims, including his section 1983 claim, necessarily fail as a matter of law if Smith’s arrest was supported by probable cause. … Officer Egan also notes, correctly, that a neutral judicial official’s determination that probable cause exists for the individual’s arrest is an intervening act that could disrupt any argument that the defendant officer had caused the continued unlawful seizure. … Officer Egan argues that both propositions favor him here: he contends that the pled facts reflect that he conducted a proper investigation supporting probable cause to arrest and, regardless, the state district court’s subsequent determination to issue a criminal complaint constituted an intervening event breaking the chain of causation between Officer Egan’s actions and Smith’s arrest.

“It remains to be seen whether a full airing of the facts supports or refutes Officer Egan’s proffered narrative, particularly his claim that he had probable cause to seek criminal charges against Smith based on his investigation. At this juncture, though, the complaint asserts several allegations which if true could tend to suggest contrarily that Officer Egan had a basis to suspect that some of Fenelus’ key allegations may not have been entirely true. …

“To be sure, Officer Egan contends that the state court’s decision to issue the criminal complaint constituted an intervening act that severed any causal link between Officer Egan’s actions and the issuance of charges. … Given the undeveloped record, the court cannot agree at this juncture that the state court’s decision to issue the criminal complaints was so independent as to absolve Officer Egan of any responsibility for the subsequent prosecution.

“Accordingly, the court finds that the complaint pleads a viable section 1983 claim for malicious prosecution. Dismissal of the claim therefore is not warranted. …

“Count Three alleges common law malicious prosecution. … In this regard, the principal difference between a common law and section 1983 malicious prosecution claim is that the plaintiff in a common law malicious prosecution claim must additionally show that the defendant acted with actual malice. …

“In moving to dismiss, Officer Egan argues that the complaint fails to establish both a lack of probable cause and that Officer Egan acted with malice. Neither claim resonates. Regarding a lack of probable cause, the court has already found as discussed above that the complaint adequately pleads facts suggesting that Officer Egan had a basis to suspect that Smith did not tamper with the milk as accused.

“… Here, while the allegations suggesting Officer Egan acted with malice are not explicit or overly fulsome, malice can arguably be inferred from the facts suggesting that Officer Egan had a basis to believe Smith did not tamper with the milk and yet chose nonetheless to bring charges against him. That is enough for now.

“Accordingly, the court finds that Count Three pleads a valid common law malicious prosecution claim.”

Smith v. Egan, et al. (Lawyers Weekly No. 02-541-25) (14 pages) (Cabell, U.S.M.J.) (Docket No. 24-cv-11794-DLC) (Sept. 29, 2025).

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