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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
ULYSSES RODRIGUEZ CHARLES,
Plaintiff,
v.
CITY OF BOSTON, et al.,
Defendants.
GERTNER, D.J.:

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C.A. No. 04-10986-NG

MEMORANDUM AND ORDER RE:
DEFENDANT STANLEY BOGDAN’S MOTION TO DISMISS
March 29, 2005
I.

INTRODUCTION
Plaintiff Ulysses Rodriguez Charles (“Charles”) tells a far

too familiar and tragic story.

He was released from prison on

May 17, 2001, after serving nineteen years of an eighty year
sentence for unlawful confinement, rape and robbery.

He was

released after DNA testing on the physical evidence used against
him exonerated him of the crimes for which he was convicted.
Charles brought this civil rights action under 28 U.S.C. §
1983 to recover damages for violations of his constitutional
rights resulting in his wrongful conviction, including failure to
disclose evidence, conspiracy to commit wrongful imprisonment,
and malicious prosecution under both federal and state law.
Defendant Stanley Bogdan (“Bogdan”), a senior Boston Police
Department (“BPD”) forensic criminalist who worked with other law
enforcement officials investigating the crimes for which Charles
was convicted, moves to dismiss the claims against him pursuant
to Federal Rule of Civil Procedure 12(b)(6).

This Court held a

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hearing on defendant Bogdan’s motion to dismiss on January 20,
2005.
For the reasons set forth below, defendant Bogdan’s motion
to dismiss [document #13] as to Counts II and III of the
Complaint – for failure to disclose evidence and conspiracy hereby DENIED.

is

Counts IV and VI of the Complaint - for malicious

prosecution under federal and state law - are hereby DISMISSED,
as Charles did not object to defendant Bogdan’s motion to dismiss
these counts.
In addition to the motions that are the subject of the
instant opinion, motions related to defendant Bogdan’s motion to
dismiss are disposed of as follows:

Plaintiff Charles’ motion to

vacate [document #24] his first motion for entry of default
[document #23] is GRANTED, and his second motion for entry of
default [document #25] is DENIED.

Defendant Bogdan’s motion to

stay the case pending the issuance of this written opinion
[document #26] is DENIED as moot.
A.

Factual Background

In 1984, Charles, an African-American man of West Indian
decent, was found guilty of committing a 1980 rape against three
white women and sentenced to eighty years in prison.

In 1999,

fifteen years later, DNA tests were performed on semen that had
been collected at the crime scene and withheld from Charles
during his trial.

The DNA tests showed that Charles could not
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have been the source of the semen.

The state court granted

Charles a new trial, but the Suffolk County district attorney
declined to retry him; the charges were dismissed.
To understand the nature of the § 1983 claims lodged against
the several named defendants, it is important to review the facts
surrounding Charles’ arrest and conviction.
1.

Prior Racially Motivated Official Conduct

According to Charles, BPD officers began harassing him in
the mid-1970's, harassment which took the form of unjustified
stops, searches, threats and false accusations of criminal
wrongdoing.

For example, in 1975, Boston police officers

arrested and charged Charles for serious crimes,1 and he was
ultimately convicted.

However, the Massachusetts state court did

not sentence him to prison because, according to the Complaint,
the court did not believe the police testimony garnered at trial.
Following that decision, Charles claims that former BPD
Officer John Mulligan went after him, targeting him and his
family and friends for stops, searches, harassment and threats.
Significantly, Charles alleges that defendant William Keogh, also
a BPD officer at the time, harassed Charles only days before the
1980 crime occurred.
2.

The 1980 Crime and Ensuing Investigation

1

Charles does not provide details about these “additional serious crimes
he did not commit” in either the Complaint or in his subsequent pleadings.
Compl. ¶ 25.
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On December 8, 1980, three white women were violently
assaulted, raped and robbed in their Brighton apartment by an
African-American man.

In their initial description, the women

described their assailant as an African-American man of medium
complexion, five feet, ten inches in height, with a thin build
and straggly beard.

At the hospital, one of the victims told the

doctor that her rapist had an American accent.

The women made no

mention of Charles’ hair style, dread locks, his Caribbean
accent, or the fact that his front teeth were gold, all
distinctive physical traits.
Defendants Keough and Paul Rufo of BPD were assigned to the
case and interviewed the victims on December 9, 1980.

That

interview was tape recorded.
Vaginal swabs from two of the victims revealed the presence
of sperm.

On or about December 12, 1980, defendant Keough

collected the rape kit from the hospital, but he did not collect
the vaginal swabs, despite written warnings by the hospital that
such evidence would be destroyed after seven days if BPD failed
to retrieve it before then.
On the same day, defendant Keough and defendant Bogdan, a
senior BPD criminalist and the movant in this motion to dismiss,
went to the crime scene and collected a bed sheet on which two of
the rapes had occurred as well as the robe worn by one of the
victims during her rape.

Bogdan determined that stains on these

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items were seminal in origin and derived from an O-type secretor.
At the same time, he concluded that Charles is a B-type secretor,
and that neither Charles nor a boyfriend of one of the victims
were the source of the semen stains.

Charles never learned about

these exculpatory findings until long after his conviction and
imprisonment.
Following the December 9 interview of the victims, defendant
Keough took the women to BPD Headquarters where they viewed about
two hundred photographs, including two photographs of Charles.
Defendant Keough would later testify that they arrested Charles
on June 1, 1981, based on photograph identifications by two of
the victims.2

At trial, one of the victims testified that she

picked out Charles’ photograph because “he had dreads.”

The BPD,

however, did not have a picture of Charles with dread locks at
the time of the December interview.

Indeed, it was not until the

photograph taken at the time of his arrest in June 1981 that BPD
obtained a photograph of Charles with dread locks.
Charles also alleges that, before his June 9, 1981, probable
cause hearing, defendant Keough was seen actually showing one of
the victims Charles’ arrest photograph.

As a result, the hearing

judge refused to allow an in-court identification of Charles.
fact, Charles alleges that several other suggestive

2
Neither Charles nor defendant Bogdan account for the six-month lag
between the crime and Charles’ arrest.

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In

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identification techniques were used by BPD and the district
attorney throughout their investigation and Charles’ prosecution.
3.

Misconduct at Trial

At no time before or during Charles’ trial did the BPD or
the Suffolk County District Attorney’s Office reveal to Charles
Bogdan’s central finding – that he had excluded Charles as well
as a boyfriend of one of the victims as the source of the semen
stains found on the bed sheet and robe.

In fact, Charles Campo,

a Suffolk County assistant district attorney at the time,
elicited false testimony from defendant Bogdan that the stains
were not seminal in origin.

In addition, Campo never disclosed

that sperm had been retrieved on vaginal swabs immediately after
the crime, or that the BPD did not preserve that evidence.
According to Charles, Campo knew that the swabs existed from his
review of the victims’ medical records, but he failed to make the
records available to the defense.

Contrary to all of the

evidence known to Campo at the time, he testified at trial that
the rapist had not ejaculated, thereby explaining the lack of
semen matching Charles, the alleged rapist.

Indeed, Campo

entered into a stipulation at trial that what one of the victims
had told the doctor shortly after the rapes was that the rapist
had a non-American accent, although Campo knew from the accounts
in the medical records that this was untrue.

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Charles was convicted in 1984 and sentenced to eighty years
in state prison.
4.

All of his appeals failed.

Post-Trial Exoneration

After many years of incarceration, Charles finally obtained
copies of the victims’ medical records that BPD officers and
Suffolk County district attorneys withheld from him during his
trial.3

From the records, Charles learned that sperm had been

found on the vaginal swabs taken from the victims, and that the
BPD had ignored the hospital’s requests that they retrieve them,
permitting them to be destroyed.

In 1995, Charles sought to have

the bed sheet and robe stains tested with what was then new DNA
technology.

John Zanini, a Suffolk County assistant district

attorney at that time, persuaded the state court to deny Charles’
request.
It was not until 1999 that Charles was finally allowed to
perform the DNA testing.

The results revealed that there were

traces of semen from two different men on the bed sheet and robe,
and that Charles could be excluded as a source of either one.
Despite this apparent exoneration, Zanini and the Suffolk County
District Attorney’s Office persisted in denying the exculpatory
value of the results.

Over their objections, the state court

vacated Charles’ conviction and granted his motion for a new

3
In his initial pleadings, Charles does not disclose how he was able to
discover records that had been withheld from him at the time of trial.

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trial.

The Suffolk County District Attorney’s Office declined to

retry him.
B.

Procedural Background

Charles filed his suit in federal court on May 17, 2004,
pursuant to 28 U.S.C. § 1983, alleging that his wrongful
conviction was a direct result of the tortious and
unconstitutional acts of the named defendants – the City of
Boston, BPD Officer John Mulligan, BPD Officer William Keough,
BPD Officer Paul Rufo, BPD Officer Kathleen Johnson, BPD
criminalist Stanley Bogdan, unnamed BPD supervisors, Suffolk
County Assistant District Attorney Charles Campo, the Suffolk
County District Attorney’s Office, and Suffolk County Assistant
District Attorney John Zanini.4

Initially pro se at the time he

filed his complaint, Charles has since obtained counsel.
II. ANALYSIS
Defendant Stanley Bogdan has moved to dismiss all of
Charles’ allegations against him, pursuant to Federal Rule of
Civil Procedure 12(b)(6).

In short, Bogdan contends that he is

entitled to dismissal because, as a BPD criminalist, he has
immunity, and because the claims against him are insufficiently
plead.
A.

Charles’ Factual Allegations Against Defendant Bogdan

4

By stipulation on December 21, 2004, defendants Charles Campo, John
Zanini, and the Suffolk County District Attorney’s Office were dismissed from
the suit. Defendant Bogdan reports that defendant BPD officers John Mulligan,
William Keough, and Paul Rufo are deceased.
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Charles makes the following factual allegations in support
of his Brady and conspiracy claims against Bogdan:
1.

On December 12, 1980, Bogdan collected a stained
bed sheet and robe from the crime scene. Upon
performing tests on these items, Bogdan determined
that the stains were seminal in origin and from an
O-type secretor.

2.

Bogdan then collected and compared Charles’ blood
type and the blood type of a boyfriend of one of
the victims with that of the bed sheet and robe.
Bogdan determined that neither Charles nor the
boyfriend were sources of the semen.

3.

At trial, Bogdan testified falsely that the stains
on the bed sheet were not seminal in origin, and
thus the rapist did not ejaculate.

4.

Before and during trial, Bogdan failed to disclose
to Charles’ defense counsel material information
that was favorable to Charles, including
serological evidence that would have excluded
Charles as the rapist.

B.

Motion to Dismiss Standard

Dismissal pursuant to Rule 12(b)(6) is appropriate where a
party “fail[s] to state a claim upon which relief can be
granted.”

Fed.R.Civ.P. 12(b)(6).

Even in a civil rights case, a

complaint need only include “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Educadores Puertorriquenos En Accion v. Hernandez, 367 F.3d 61,
66 (1st Cir. 2004) (internal citations omitted).
In considering motions to dismiss, “a court should not
decide questions of fact.”
22, 25 (1st Cir. 1987).

Roeder v. Alpha Industries, 814 F.2d

Rather, a court must accept the
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plaintiff’s sufficiently plead facts as true and grant all
reasonable inferences in the plaintiff’s favor.
Individual, 171 F.3d 43, 46 (1st Cir. 1999).

Cooperman v.

A motion to dismiss

is only allowed where it is clear that the plaintiff can prove no
set of facts to support his or her cognizable claim.
Gibson, 355 U.S. 41, 45-46 (1957).

Conley v.

Where state of mind is

relevant to the claim, knowledge, motive and intent may be
averred generally.

Educadores Puertorriquenos, 367 F.3d at 66.

A pro se complaint “however inartfully pleaded,” must be
held to “less stringent standards than formal pleadings drafted
by lawyers.”

Haines v. Kerner, 404 U.S. 519, 520-521 (1972).

It

can only be dismissed per Rule 12(b)(6) if it appears “beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.”
Complaint is somewhat anomalous.

Id.

Charles’

On the one hand, it was

initially prepared by a pro se plaintiff, but on the other hand,
Charles’ newly retained counsel has chosen not to amend the pro
se Complaint.

Thus, the Complaint can no longer be deemed pro se

for the purposes of determining whether it survives a Rule
12(b)(6) dismissal.

Nevertheless, the issue is moot because, as

I describe below, the Complaint – pro se or not – more than
suffices to meet the standards of Rule 12(b)(6) and the
applicable law.
C.

Count II: Charles’ Brady Claim Against Defendant Bogdan

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In Count II of his Complaint and in his opposition to
Bogdan’s motion to dismiss, Charles claims that defendant Bogdan
violated the Fourteenth Amendment’s due process requirement that
law enforcement officers disclose material exculpatory
information to the defense by turning such information over to
the prosecutors.

Specifically, Charles alleges that Bogdan

failed to disclose to ADA Campo material information that was
favorable to Charles, including the serological evidence.

There

is no question that the serological evidence and testing were
exculpatory even before DNA testing was available: The test
results confirmed the presence of semen.

The semen stains were

likely produced by the rapist, who was an O-type secretor, while
Charles was a B-type.

The failure to disclose these results,

argues Charles, was a direct violation of the strictures of Brady
v. Maryland, 373 U.S. 83 (1963), and its progeny.
At the time of Charles’ arrest and prosecution, there was no
question that criminal investigators had a Brady obligation to
disclose material exculpatory evidence to the prosecutor, who in
turn was obliged to disclose it to the defense.

See, e.g.,

Newsome v. McCabe, 256 F.3d 747, 752 (7th Cir. 2001) (it was
clearly established in 1979 and 1980 that police could not
withhold Brady evidence from the prosecutor); Hauptmann v.
Wilentz, 570 F.Supp. 351, 389 (D.N.J. 1983) (police duty to
disclose to prosecutor).

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Bogdan does not dispute that he had Brady obligations.

He

seeks to evade them by urging the Court to read Charles’
Complaint literally and strictly, precisely the opposite of what
Rule 12 (b)(6) directs a court to do.

Bogdan claims that, since

the Complaint accuses him of violating Brady only insofar as he
did not turn over the material evidence directly to Charles or
his counsel, he could not be liable.

As a crime lab technician,

he argues, he does not have a Brady duty to disclose evidence
directly to a criminal defendant.

For support, Bogdan notes that

the four circuits that have considered the issue have declined to
extend that type of Brady duty to lab technicians.

See Villasana

v. Wilhoit, 368 F.3d 976 (8th Cir. 2004); Mowbray v. Cameron
County, 274 F.3d 269 (5th Cir. 2001); Newsome v. McCabe, 256 F.3d
747 (7th Cir. 2001); McMillan v. Johnson, 88 F.3d 1154 (11th Cir.
1996).

Thus, argues Bogdan, his duties under Brady were

fulfilled once he turned over the lab results to Charles’
prosecutors.
But the Complaint, read liberally as this Court is required
to do under the Rule, alleges simply that Bogdan’s results were
never turned over to the defense.

This can be the result of

Bogdan’s failure to turn over the results, or because Campo
failed to do so despite having received the results from Bogdan.
At this point, Charles is free to argue in the alternative.

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It is true that some criminalists who have minor law
enforcement roles (e.g., lab technicians who merely test numbered
vials) may not have independent Brady obligations.

But from the

face of the Complaint, defendant Bogdan’s role in Charles’
prosecution was hardly insignificant.

He accompanied BPD

officers to the crime scene to collect evidence, tested that
evidence, tested Charles, tested a boyfriend of one of the
victims, and then lied on the stand about the inculpatory nature
of his findings.
Bogdan’s related qualified immunity argument must also fail
because it turns on the absence of a clearly established duty for
him to disclose directly to a defendant, which is not the
constitutional breach that Charles is alleging.

Bogdan’s duty to

disclose Brady information to the prosecutor was clearly
established at the time of his investigation into the 1980 rapes
(not to mention his duty – unquestionably well-established – to
testify truthfully on the stand).
Thus, if the qualified immunity question is “whether a
reasonable official could have believed his actions were lawful
in light of clearly established law and the information the
official possessed at the time of the allegedly unlawful
conduct,” Lowinger v. Broderick, 50 F.3d 61, 65 (1st Cir. 1995)
(internal citations omitted), the answer is an unequivocal “no.”
Bogdan, an experienced crime lab technician, must have known of

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his legal obligation to disclose exculpatory evidence to the
prosecutors, their obligation to pass it along to the defense,
and his obligation not to cover up a Brady violation by perjuring
himself.

That there is no statutory or common law rule

explicitly proscribing such conduct

– no case that says “a crime

lab technician whose tests go a long way to exculpating the
defendant must disclose that to the prosecutor and cannot lie
about them on the stand” – does not mean that Bogdan’s behavior
is immunized.

Some acts are unlawful on their face.

See

Limone

v. United States, 271 F.Supp.2d 345, 365-366 (D.Mass. 2003).
D.

Count III: Charles’ Conspiracy Claim Against Defendant
Bogdan

In Count III of the Complaint, Charles alleges that all of
the named defendants conspired, reached a mutual understanding
and acted in concert to violate his civil rights.

Bogdan is

implicated in this conspiracy through the withholding of
exculpatory physical evidence, which culminated in his false
testimony at trial.
While it is true that Charles accuses both ADA Campo and
Bogdan of violating their Brady obligations, even though the
failure to disclose could have belonged to one or the other (i.e.
if Bogdan failed to disclose, then Campo might not have known of
the Brady material, and if Bogdan disclosed the Brady material,
then the failure was Campo’s), as described above, Charles does
not have to wed himself to one version of the facts at this
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preliminary stage.

Charles can lodge claims against both Bogdan

and Campo and decide later, after discovery and further
pleadings, which of the two, if either, is guilty of withholding
critical Brady evidence.

At that point,

Bogdan can file a

dispositive motion on his behalf.
Bogdan also argues that the conspiracy charges contained in
Count III of Charles’ complaint are insufficiently plead, as they
posit “a conclusory assertion, unsupported by any alleged facts.”
But Charles’ complaint – even as drafted by a layman –

sets

forth over seventy paragraphs of factual allegations, several of
which specifically describe actions by Bogdan, detailing a series
of mutually reinforcing actions undertaken by law enforcement
before, during and after Charles’ prosecution.
Moreover, agreement between the conspirators – the glue of
conspiracy – can be inferred from all of the factual
circumstances alleged.

United States v. Tormos-Vega, 959 F.2d

1103, 1117 (1st Cir. 1992); Earle v. Benoit, 850 F.2d 836, 843
(1st Cir. 1988).

Plaintiff need not show an express agreement in

order to state a claim for conspiracy.

Earle, 850 F.2d at 845;

see also Limone v. Condon, 372 F.3d 39, 49 (1st Cir. 2004) (for
Rule 12(b)(6) purposes, the facts alleged in the complaint need
only “support a plausible inference that” the alleged coconspirators acted in concert).

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Accordingly, Bogdan is not entitled to a dismissal of the
conspiracy charges against him.

Bogdan is free to reassert his

defense against these charges, namely that he did not act in
concert with any of the alleged co-conspirators, “on a more fully
developed record, either at summary judgment or at trial.”
Limone, 372 F.3d at 50.
E.

Count III: Is Defendant Bogdan Protected From
Conspiracy Liability By The Absolute Immunity Enjoyed
By Testifying Witnesses?

Defendant Bogdan argues that, under Briscoe v. LaHue, 460
U.S. 325 (1983), his testimony at Charles’ trial is absolutely
immune from civil liability.

In short, he argues that “[a]

plaintiff cannot use a conspiracy claim to short-circuit
Briscoe’s grant of absolute immunity to testifying witnesses.”
Mitchell v. City of Boston, 130 F.Supp.2d 201, 211-12 (D.Mass.
2001).
In response, Charles recites the next step in the court’s
reasoning in Mitchell, in which she finds that, where the
wrongdoing extends beyond perjury, including extra-judicial acts,
the conspiracy defendant cannot use Briscoe immunity as a shield
to protect an entire course of unlawful conduct merely because at
one point the defendant took the stand.

Id. at 212.

“[T]he fact

that a certain subset of conduct, viewed in isolation, is not
actionable in tort does not somehow immunize the tortious end to
which that conduct is directed.”

Limone v. United States, 271

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F.Supp.2d 345 (D.Mass. 2003), aff’d, 372 F.3d 39 (1st Cir. 2004).
Construed in favor of Charles, the Complaint adequately
pleads several extra-judicial instances of Bogdan’s participation
in the alleged conspiracy – Bogdan collected physical evidence at
the crime scene with Officer Keough, he tested that evidence, he
prepared reports on the inculpatory conclusions that could be
drawn from the evidence, and he lied on the stand to cover up his
defalcations or that of the prosecutor.
begin and end with his testimony.

His conduct did not

It predated his testimony, and

may well have continued afterwards.

He can find no refuge in the

Briscoe decision.
III. CONCLUSION
For the reasons discussed above, defendant Bogdan’s motion
to dismiss the Complaint is DENIED as to as to Counts II and III
alleging failure to disclose evidence and conspiracy.

Charles’

pro se complaint, coupled with his opposition to Bogdan’s motion
to dismiss, which was prepared by counsel, alleges sufficient
facts to survive a Rule 12(b)(6) dismissal as to these claims
against Bogdan.
Bogdan’s motion to dismiss the Complaint is GRANTED as to
Counts IV and VI alleging malicious prosecution under federal and
state law.

Charles did not object to defendant Bogdan’s motion

to dismiss these counts in his pleadings or during oral argument
on January 20, 2005.
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Plaintiff Charles’ motion to vacate [document #24] his first
motion for entry of default [document #23] is GRANTED, and his
second motion for entry of default [document #25] is DENIED.
Defendant Bogdan’s motion to stay the case pending the issuance
of this written opinion [document #26] is DENIED as moot.
Defendant Bogdan is hereby instructed to file an answer to
the Complaint on or before ten (10) days from the issuance of
this opinion – April 8, 2005.

The parties are further instructed

to submit an amended joint scheduling statement on or before ten
(10) days from the issuance of this opinion – April 8, 2005.

SO ORDERED.
Dated: March 29, 2005

s/ NANCY GERTNER U.S.D.J.

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