No. 23-1165

NATALE COSENZA, Plaintiff, Appellant,

v.

CITY OF WORCESTER, MA, Defendant, Appellee,

KERRY HAZELHURST; JOHN DOHERTY; T.J. COAKLEY; MARK RICHARDSON; ALLAN BURNES; DANIEL BENEDICT; BRIAN DONOHUE; ROBERT TURGEON; AS YET UNKNOWN WORCESTER POLICE OFFICERS; DAVID GRADY; DARLENE ROCHEFORD,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Timothy S. Hillman, U.S. District Judge]

Before

Gelpí, Lynch, and Montecalvo, Circuit Judges.

Steve Art, with whom Jon Loevy, Locke Bowman, Megan Pierce, and Loevy & Loevy were on brief, for appellant. Douglas T. Radigan, with whom Brian J. Edmonds, and Bowditch & Dewey, LLP were on brief, for appellee. October 28, 2024 LYNCH, Circuit Judge. Natale Cosenza was convicted in 2002 by a jury in Massachusetts state court of the assault and battery with a dangerous weapon of Melissa Horgan and the armed burglary of her apartment. A significant part of the prosecution's evidence against Cosenza was the victim's identification of Cosenza from a photo array administered by investigating Worcester police. In light of later developments in the law, the state courts, in 2016, granted him a new trial and, in 2017, suppressed the photo array evidence, leading the Commonwealth to enter a nolle prosequi.1

In this federal civil rights action brought in 2018, 16 years after his conviction, Cosenza sued the City of Worcester for monetary damages on the theory the City had adopted an affirmative policy of not properly training its officers as to photo arrays and other investigative techniques, and the City's deliberate indifference to his constitutional rights caused him injury. The federal district court entered summary judgment for the City. Cosenza v. City of Worcester, No. 18-cv-10936, 2021 WL 5138493, at *14 (D. Mass. Nov. 4, 2021). We affirm.

1 Massachusetts law defines a "nolle prosequi" as "a strategic decision by the Commonwealth to cease pursuing charges. Its entry is thus an affirmative exercise of a prosecutorial tool to discontinue prosecution." Commonwealth v. Denehy, 2 N.E.3d 161, 172 (Mass. 2014). "A prosecuting attorney may enter a nolle prosequi of pending charges at any time prior to the pronouncement of a sentence . . ." Mass. R. Crim. P. 16(a).

- 3 - The undisputed record evidence shows Worcester did not exhibit deliberate indifference to Cosenza's constitutional rights. Among other things, Cosenza did not point to any evidence that the City maintained a policy of not training officers on the procedures to conduct photo arrays, officers in fact completed on- the-job training, and both state and federal law as to photo arrays did not then cast doubt on the procedures used. See, e.g., Walker v. Medeiros, 911 F.3d 629 (1st Cir. 2018); Commonwealth v. Silva-Santiago, 906 N.E.2d 299 (Mass. 2009), abrogation on other grounds recognized by Commonwealth v. Moore, 109 N.E.3d 484, 497 n.9 (Mass. 2018).

I.

A.

At roughly 4:00 A.M. on August 14, 2000, Melissa Horgan woke in her Worcester apartment to find a man standing beside her bed wearing underwear, a t-shirt, and a white covering on his head. The man began striking Horgan with a hard object and a struggle ensued, which ended when Horgan kicked the man and he fled. Horgan's assailant entered the fourth-floor apartment through a window in Horgan's roommate's bedroom, who was not at home that night.