Opinion
Civil Action No. 15-cv-11587-NMG
09-21-2016
DAMARIS JUSTINIANO, as the personal representative of the estate of Wilfredo Justiniano, Jr., Plaintiff, v. STEPHEN V. WALKER and TIMOTHY P. ALBEN, Defendants.
REPORT AND RECOMMENDATION REGARDING DEFENDANT TIMOTHY ALBEN'S MOTION TO DISMISS AND DEFENDANT STEPHEN WALKER'S MOTION TO DISMISS
(Dkt. Nos. 9 and 23)
On June 14, 2013, Wilfredo Justiniano Jr. was killed following an encounter with Massachusetts State Police Trooper Stephen Walker ("Trooper Walker"). The plaintiff, Damaris Justiniano, has brought suit as the personal representative of Justiniano's estate against Trooper Walker and his supervisor, MSP Colonel Timothy Alben ("Colonel Alben"). Trooper Walker moves to dismiss one of the two counts against him while Colonel Alben moves to dismiss both counts against him. (Dkt. Nos. 23 and 9). For the reasons discussed below, I recommend that Defendant Walker's motion to dismiss be denied, but that Defendant Alben's motion to dismiss be granted.
I. RELEVANT FACTUAL BACKGROUND
The facts are taken from the complaint and are accepted as true for purposes of the present motions. Trooper Walker was at all relevant times a Massachusetts State Police Officer. On June