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[[COURTLISTENER_SUBOPINION {"id":"11092985","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
GARY CIFIZZARI, )
)
Plaintiff, )
)
v. ) Civil No. 4:22-cv-40139-MRG
)
TOWN OF MILFORD, FORMER )
MILFORD POLICE OFFICERS )
VINCENT LIBERTO, JOHN )
CHIANESE, FORMER MILFORD )
POLICE SGT.S ANTHONY )
DIGIROLAMO AND DONALD )
SMALL, et al. )
)
Defendants. )
)
ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF NO. 117]
GUZMAN, J.
Plaintiff Gary Cifizzari brings this suit against the Town of Milford and several former
Milford Police Department (“MPD”) officers alleging violations of his civil rights stemming from
his 1984 wrongful conviction for the murder of Concetta Schiappa. Before the Court is
Defendants’ Motion for Summary Judgment, ECF No. 117. For the reasons stated below, the
motion is GRANTED as to all counts.
I. BACKGROUND1
The events giving rise to this case began on September 29, 1979, but as is often true in
matters involving wrongful convictions, the tragedy did not end there. Instead, these events
1 The facts are drawn from Plaintiff’s Amended Complaint [ECF No. 65], Plaintiff’s Response to
Defendants’ Joint Local Rule 56.1 Concise Statement of Undisputed Material Facts [ECF No.
122], Response of Milford Defendants to Plaintiff’s Local Rule 56.1 Statement of Material Facts
[ECF No. 131], and the documents cited therein.
culminated in an innocent man spending nearly thirty-five years in prison for a murder he did not
commit. In seeking to address this profound injustice, the Court must now sift through a tangled
web of facts dating back four decades.
Although the parties agree that certain basic events took place, they dispute many facts and
the inferences that should be drawn from the evidence before the Court. Because Defendants have
moved for summary judgment, the Court must review the evidence in the light most favorable to
Plaintiff, who opposes summary judgment, and make all reasonable inferences in his favor. See
Fed. R. Civ. P. 56(a); SEC v. Sharp,
692 F. Supp. 3d 9
, 10 (D. Mass. 2023). However, the Court’s
analysis is limited to considering only those facts which are admissible and relevant to the legal
issues at hand. Moreover, as this matter appears on summary judgment, the Court must distinguish
which facts are truly material and consider whether – in the face of undisputed material facts –
legal standards constrain Plaintiff’s claims such that the Defendant is entitled to judgment as a
matter of law. See Triumph Foods, LLC v. Campbell,
742 F. Supp. 3d 63
, 69 (D. Mass. 2024)
(citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248
(1986)).
A. The Murder
Between September 28 and 29, 1979,2 Milford, Massachusetts resident, Concetta Schiappa,
was murdered in her apartment. [ECF No. 122 ¶ 1]. Her body was discovered by her upstairs
landlord on the morning of September 29, 1979, and the homicide was initially reported to the
MPD. [ECF No. 117 at 7; ECF No. 122 ¶ 26]. The officers determined that the death had been a
homicide. [ECF No. 122 ¶ 2]. A broomstick had been pushed inside the victim’s body, and there
were bitemarks on her body. [ECF No. 131 ¶¶ 2–3].
2 The date of death is not established, as Mrs. Schiappa was last seen alive on September 28, 1979
and it is unknown if Mrs. Schiappa died before or after midnight on the 28th. [ECF No. 122 ¶ 1;
Am. Compl. ¶ 18, ECF No. 65].
B. Control of the Murder Investigation
Although Mrs. Schiappa was murdered in Milford, pursuant to a state statute, the Worcester
County District Attorney (“WCDA”), rather than the MPD, directed the investigation. [ECF No.
122 ¶ 5;
Mass. Gen. Laws ch. 38, § 43
]. The Crime Prevention and Control (“CPAC”) Unit is a
unit of the State Police that works with the WCDA and handles murder investigations in the
county, except in the City of Worcester. [ECF No. 122 ¶ 7]. While Plaintiff objects to the
characterization of the WCDA and CPAC “coordina[ting], direct[ing], and control[ling]” the
Schiappa murder investigation, he does not dispute that the WCDA was the agency that was overall
responsible for conducting the investigation and that a CPAC Unit detective was the lead
investigator. [Id. ¶¶ 4, 8, 10–11]. Additionally, the plain language of the statute stipulates that the
WCDA “shall direct and control the investigation” of a death falling under its purview.
Mass.
Gen. Laws ch. 38, § 4
(emphasis added). Further, the decision to indict and prosecute Plaintiff
rested squarely with the WCDA, with the investigation led at the time by Assistant District
Attorney (“ADA”) Lawrence Murphy. [ECF No. 122 ¶ 19]. Therefore, the Court concludes that
the WCDA and CPAC directed and controlled the murder investigation and Plaintiff’s subsequent
prosecution.
The extent to which certain Defendant MPD officers participated in the murder
investigation is somewhat disputed, although the dispute centers more on the characterization of
their coordination with WCDA and CPAC rather than on a dispute that WCDA and CPAC were
largely in charge. [See
id.
¶¶ 59–66]. It was standard protocol during CPAC investigations to
3
Mass. Gen. Laws ch. 38, § 4
provides that in the event of a death “due to violence or other
unnatural means or to natural causes that require further investigation,” “the district attorney or his
law enforcement representative shall direct and control the investigation of the death and shall
coordinate the investigation with the office of the chief medical examiner and the police
department within whose jurisdiction the death occurred.” (emphasis added).
request local law enforcement to accompany CPAC investigators on interviews, particularly when
witnesses resided in that locality. [Id. ¶ 61].
The six individual defendants in this case worked for the MPD, and each had varying levels
of involvement in the investigation of Mrs. Schiappa’s homicide. A brief summary of the role of
each defendant, as well as key non-defendant members of the investigation into Mrs. Schiappa’s
murder, follows:
• Vincent Liberto: Defendant Liberto was an MPD detective. [Id. ¶ 56]. He responded to the
murder scene along with several other members of the Milford Police. [Id.] Det. Liberto
also accompanied CPAC investigators on a few witness interviews. [Id. ¶¶ 74, 78, 82, 84].
In November 1980, Det. Liberto and Sgt. Small transported Plaintiff’s brother and co-
defendant, Michael Cifizzari, to a psychiatric hospital for involuntary commitment, and
conversed with Michael during the ride about the victim, Mrs. Schiappa, who was the
Cifizzari brothers’ great-aunt. [Id. ¶¶ 95–98]. After Plaintiff’s trial and conviction, Det.
Liberto served as the Chief of the MPD. [ECF No. 131 ¶ 174].
• John Chianese: Defendant Chianese was a patrol officer with the MPD. [ECF No. 122 ¶
58]. Officer Chianese grew up in Milford and knew Michael Cifizzari as being “about two
grades behind [him] in school.” [ECF No. 131 ¶ 49]. Officer Chianese was present at an
interrogation4 with Michael Cifizzari, at the Milford Police Station on February 26, 1981.
[ECF No. 122 ¶ 58]. Officer Chianese wrote down Michael Cifizzari’s statements during
the interrogation. [Id. ¶¶ 58, 115]. Following that interrogation, together with Sgt.
4 Defendants refer to Michael Cifizzari’s interaction at the MPD Station as an “interview,” whereas
Plaintiff refers to it as an “interrogation.” [See, e.g., ECF No. 122 ¶ 113]. Judge Francis Keating
who ruled on Michael Cifizzari’s Motion to Suppress determined that the conversation was a
“custodial” “interrogation.” [See Ruling on Michael Cifizzari Mot. to Suppress (June 22, 1983),
ECF No. 118-2 at 192]. Accordingly, the Court will refer to the conversation as an interrogation.
DiGirolamo and Officer Sullo, Officer Chianese transported Michael Cifizzari from the
Milford Police Station to the State Police CPAC office in Worcester. [Id. ¶ 58]. Officer
Chianese was never officially assigned to investigate the Schiappa murder. [ECF No. 131
¶ 42].
• Anthony DiGirolamo: Defendant DiGirolamo was an MPD sergeant. [ECF No. 122 ¶ 55].
Although Sgt. DiGirolamo was never officially assigned to investigate the Schiappa
murder, [ECF No. 131 ¶ 42], he conducted the interrogation of Michael Cifizzari at the
Milford Police Station on February 26, 1981, [ECF No. 122 ¶ 55]. Sgt. DiGirolamo knew
Michael since he was about twelve years old and had been his football coach when Michael
was a child. [ECF No. 131 ¶ 51]. Together with Officers Chianese and Nicholas Sullo, Sgt.
DiGirolamo transported Michael Cifizzari from the Milford Police Station to the State
Police CPAC Office in Worcester after Michael’s interrogation. [ECF No. 122 ¶ 55]. Sgt.
DiGirolamo is deceased. [Id.]
• Donald Small: Defendant Small was a MPD detective sergeant. [Id. ¶ 57]. Det. Sgt. Small
attended witness interviews with State Police officers. [Id. ¶¶ 57, 76, 77, 79, 80, 81, 83, 85,
86]. Det. Sgt. Small accompanied Det. Liberto in transporting Michael Cifizzari to the
psychiatric hospital in November 1980. [Id. ¶ 90]. Det. Sgt. Small is deceased. [Id. ¶ 57].
• Joseph Doheny: Doheny, not a named defendant, was a Sergeant of the State Police CPAC
Unit in Worcester and the lead detective on this case. [Id. ¶¶ 11, 14, 18, 48; Murphy Dep.,
ECF No. 118-2 at 365:10–11; Michael Cifizzari Trial Tr. 244:2–4, ECF No. 118-2 at
244:2–4]. Sgt. Doheny conducted the State Police interrogation of Michael Cifizzari on
February 29, 1981 at the CPAC Office in Worcester. [ECF No. 122 ¶¶ 134-44]. It was
during this interrogation that Michael Cifizzari implicated Plaintiff Gary Cifizzari in the
murder of Mrs. Schiappa. [Id. ¶ 130]. Sgt. Doheny is deceased. [Id. ¶ 48].
• Robert Meier: Trooper Meier, not a named defendant, was a State Police CPAC
investigator on the case, and was the main detective handling the bitemark evidence and
impressions. [Id. ¶ 12; Murphy Dep. at 364:20–23].
• Thomas White: Trooper White, not a named defendant, was a State Police CPAC
investigator on the case. [ECF No. 122 ¶ 50]. Trooper White arrived at the Milford Police
Station on the morning of February 26, 1981, to be briefed on and participate in Michael
Cifizzari’s interrogation. [Michael Cifizzari Trial Tr. at 225:20–226:2, ECF No. 124-2].
Trooper White also conducted some witness interviews. [ECF No. 122 ¶¶ 76–81].
C. Initial Collection of Evidence
The homicide was initially reported to the MPD, who contacted the CPAC Unit to take
over the investigation. [Id. ¶¶ 26, 28–30]. The State Police and the State Crime Lab collected
physical evidence, and the State Crime Lab was responsible for analyzing it. [Id. ¶¶ 34-37]. It is
undisputed that the MPD did not possess or control physical evidence in the murder investigation.
[Id. ¶ 67]. An autopsy on the victim was performed on September 29, 1979 by Dr. Ambrose
Keeley. [Id. ¶ 40]. Prior to conducting the autopsy, Dr. Keeley contacted Dr. Arthur Schwartz, a
Forensic Dentist of the Tufts School of Dentistry, and the State Police asked Dr. Schwartz to attend
the autopsy. [Id. ¶¶ 42–43]. Dr. Schwartz examined the bitemarks on the body of the victim, and
then made a cast of the bitemarks located on the victim’s stomach. [Id. ¶ 44]. Trooper Meier was
the main detective handling the bitemark evidence and impressions. [Id. ¶ 12]. To Trooper Meier’s
knowledge, MPD officers had no role in the decision to have Dr. Schwartz attend the autopsy,
examine the bitemarks on the victim, or make a cast of the bitemark from the victim’s stomach.
[Id. ¶ 47].
In the weeks following the discovery of Mrs. Schiappa’s murder, CPAC investigators
accompanied by local MPD officers conducted interviews with neighbors and witnesses. [Id. ¶
68]. Not all the facts relating to witness interviews are relevant to summary judgment, and many
of the factual assertions are supported only by hearsay in the form of police reports and witness
statements within them. The police reports are documents that, if introduced for the truth of the
matter asserted, fit the definition of hearsay. See Hannon v. Beard,
645 F.3d 45, 49
(1st Cir. 2011)
(“It is black-letter law that hearsay evidence cannot be considered on summary judgment for the
truth of the matter asserted.”). However, the police reports fall within the business record exception
to hearsay, Fed. R. Evid. 803(6), and would be admissible at trial. The same cannot be said for
witness statements recorded in police reports. “Although the police officer who writes the report
is acting in the regular course of business, the witness talking to the officer is not,” and the
witness’s statements are not covered by the business record exception. United States v. Matta-
Quiñones, Nos. 23-1132, 23-1134,
2025 U.S. App. LEXIS 14107
, at *54 (1st Cir. June 9, 2025)
(citing United States v. Vigneau,
187 F.3d 70
, 75–76 (1st Cir. 1999)).
Relevant, but not material to summary judgment, is that Michael Giroux, the true killer of
Mrs. Schiappa (as established by DNA evidence in 2019), was the investigation’s murder suspect
before Michael Cifizzari made his statement to Sgt. DiGirolamo in Milford in February 1981.
[ECF No. 122 ¶¶ 93–94]. Michael Giroux was the brother-in-law of Mrs. Schiappa’s neighbor,
Kathy Duncan. [Id. ¶ 81]. Duncan reported that Giroux had visited the year before the murder and
Mrs. Schiappa had accused him of seeing him leave her apartment before she discovered missing
money. [Id.] Duncan stated that Giroux was living in Milford after recently returning from the U.S.
Army. [Id.] CPAC investigators interviewed Michael Giroux at least twice in the weeks after the
murder. [Meier Aff. ¶¶ 21–30 (Def. Ex. 3, ECF No. 118-2 at 174–87)].
Throughout the current litigation, Plaintiff argues investigators failed to pursue various
leads that would have led them to charging Michael Giroux with Mrs. Schiappa’s murder. Plaintiff
alleges that David Giroux, Michael Giroux’s brother, stated to Det. Liberto and another officer
that, on the night of Mrs. Schiappa’s murder, Michael came to his house with blood on his clothes.
[ECF No. 131 ¶ 26]. This assertion arises from David Giroux’s 2024 deposition. [David Giroux
2024 Dep. (Def. Ex. 29, ECF No. 118-3 at 264–308)]. In his deposition, David Giroux states that
two officers spoke with him a few days after the murder in 1979 to ask him some questions about
his brother Michael. [Id. at 7:23–9:3]. While David Giroux initially speculated that the officer he
spoke with might have been Det. Liberto, he also stated he knew Liberto as an officer generally
because, “Just, you know, you know who the cops are in Milford[.]” [Id. at 22:1–10]. David Giroux
could not remember if the officers worked for the MPD or the State Police, or a combination of
the two. [Id. at 24:3–11]. There is no documentary evidence that any State Police investigator,
individually or accompanied by an MPD officer, ever interviewed David Giroux any time after the
murder. [ECF No. 131 ¶ 26]. Likewise, there is no documentary evidence that MPD officers ever
interviewed or attended an interview with David Giroux. [Id.] Further, in an affidavit made for
Plaintiff’s 2019 motion for new trial, David Giroux asserted that he was “not certain if the police
talked to [him] about the murder in 1979.” [David Giroux Aff. (Def. Ex. 30, ECF No. 118-3 at
310–13)]. In his own motion for new trial, Plaintiff stated, “[t]here is no evidence that the police
interviewed anyone else regarding Mr. Giroux’s whereabouts on the night of the murder, including
his brother David.” [Gary Cifizzari Mot. for New Trial at 14 (Def. Ex. 10, ECF No. 118-3 at 2–
95)].
Plaintiff also notes that Gary Terhune, Mrs. Schiappa’s neighbor, had described to police
seeing a white man, twenty-five to thirty-five years old, between 5’9” and 5’11” with an “Afro-
type” haircut in Mrs. Schiappa’s apartment around the time of the murder, a description which
more closely matched the appearance of Michael Giroux than Gary Cifizzari. [ECF No. 131 ¶¶
160–63]. Plaintiff asserts that the MPD Defendants hid this information. However, the final State
Police report of the murder investigation that summarizes witness interviews includes a reference
to Terhune’s statement. [1979 State Police Report ¶ 10 (Def. Ex. 1, dated October 11, 1979, ECF
No. 118-2 at 1–21); ECF No. 122 ¶ 69; ECF No. 131 ¶ 160]. While there may not be a separate
document recording Terhune’s statement, as appears for some other witness statements, the State
Police record indicates that the CPAC investigators were aware of Terhune’s observations and his
statement was included in the investigative record. Plaintiff also does not indicate which “police”
allegedly spoke with Terhune; however, the State Police report indicates it was Det. Sgt. Small
and Trooper White who interviewed Terhune. [1979 State Police Report ¶ 10].
Plaintiff also alleges that Michael Giroux was a police informant and that the Defendant
MPD officers framed the Cifizzari brothers to protect Giroux. [ECF No. 127 at 19–20]. There is
no documentary or admissible testimonial evidence supporting Plaintiff’s assertion that Giroux
was an informant for the MPD at any time. There is evidence that Giroux served as an informant
for the FBI, the Massachusetts State Police, and the Worcester Police; however, the earliest
evidence establishes his cooperation with law enforcement beginning in 1991. [ECF No. 122 ¶
325; ECF No. 131 ¶ 31].
It is undisputed that the State Police “looked at” Giroux as a suspect but could not show he
knew the Cifizzaris or place him at the scene. [ECF No. 122 ¶ 318]. Michael Giroux was never
charged with the murder of Mrs. Schiappa. [Id.] Once Michael Cifizzari made his statements to
Sgt. DiGirolamo and Sgt. Doheny in February 1981, the Cifizzari brothers became the primary
murder suspects. [Id. ¶¶ 93–94].
D. Michael Cifizzari’s Milford Police Department Interrogation
On February 26, 1981, at approximately 1:00am, Michael Cifizzari walked into the Milford
Police Station, asking to spend the night there. [ECF No. 122 ¶ 99–100; 1979 State Police Report
¶ 1]. Present at the station were Sgt. DiGirolamo and Officer Chianese. [ECF No. 122 ¶ 103]. Sgt.
DiGirolamo, Michael Cifizzari’s former youth football coach, had previously allowed Michael
Cifizzari to sleep at the station on multiple occasions. [Id. ¶ 101]. Michael Cifizzari had previously
been diagnosed with schizophrenia and had stayed at a state treatment facility on several occasions.
[Ruling on Michael Cifizzari Mot. to Suppress (June 22, 1983) ¶ 12 (Def. Ex. 26, ECF No. 118-3
at 185–94)]. Michael Cifizzari struggled to maintain employment and spent significant periods of
time without housing. [Gary Cifizzari Mot. for New Trial at 9]. The ruling on Michael Cifizzari’s
motion to suppress indicates that often, Michael appeared to be on drugs when he came into the
station, “[h]owever, on this night, Sgt. DiGirolamo observed the defendant to be sober, eyes clear
and speech clear. [Michael] did not appear to be on drugs.” [Ruling on Michael Cifizzari Mot. to
Suppress (June 22, 1983) ¶ 2].
Around 1:00am or 1:30am, Sgt. DiGirolamo attempted to talk with Michael Cifizzari about
Mrs. Schiappa’s murder. [ECF No. 122 ¶ 107]. Mrs. Schiappa was Michael and Gary Cifizzari’s
great-aunt. [Id. ¶ 109]. Sgt. DiGirolamo read Michael Cifizzari his Miranda rights and Officer
Chianese wrote out the Miranda rights on a card. [Id. ¶ 107–108; 1979 State Police Report ¶ 1].
On the Miranda form, Michael Cifizzari first signed his name as “Paul M. Cartney,” after which
Sgt. DiGirolamo instructed Michael to sign his own name, which he did. [ECF No. 131 ¶ 67].
The parties offer differing accounts of how the questioning unfolded. Defendants assert
that Sgt. DiGirolamo asked Michael Cifizzari if he knew anything about the murder, to which he
responded that he did, and then gave a narrative account during which he stated that he had gone
to Mrs. Schiappa’s house on the night she was murdered, attempted to get some money from her,
was refused, became angry, and then killed her. [ECF No. 122 ¶ 109–10]. Michael Cifizzari also
stated that his cousin Robert Cananzey was with him during the murder. [Id. ¶ 111]. Plaintiff
contends that the interaction with Sgt. DiGirolamo was coerced interrogation where Sgt.
DiGirolamo and Officer Chianese asked Michael Cifizzari leading questions and challenged him
about facts related to the Schiappa murder and had him either agree or disagree. [ECF No. 131 ¶¶
72–75].
Officer Chianese wrote down what Michael Cifizzari said during the interrogation. [Id. ¶
80]. During the questioning, Sgt. DiGirolamo and Officer Chianese contacted Trooper White and
requested that he come to the MPD station to participate and be briefed on Michael’s statements.
[ECF No. 122 ¶ 112]. Trooper White arrived and listened to the interrogation of Michael Cifizzari,
but when he attempted to ask questions, Michael Cifizzari refused to answer him. [Id. ¶ 113].
Trooper White left the room and stood in the hallway, and Sgt. DiGirolamo questioned Michael
for another half hour or less. [Id. ¶ 114].
Later, during his criminal prosecution, Michael Cifizzari moved to suppress his statements
from this interrogation. After a two-day evidentiary hearing, Judge Francis Keating of the
Massachusetts Superior Court denied the motion to suppress, holding Michael’s statements were
made voluntarily. [Ruling on Michael Cifizzari Mot. to Suppress (June 22, 1983)]. Judge Keating
noted that Sgt. DiGirolamo’s “fatherly” relationship to Michael “facilitated the confession”; that
Michael “was not tricked or cajoled into making a statement”; that although Michael had struggled
with mental illness, he had “apparent clarity on the night in question”; and that Michael was
capable of understanding the meaning and effect of his confession. [Id. Rulings of Law ¶¶ 1–4].
Judge Keating’s ruling was later affirmed by the Massachusetts Appeals Court. Com. v. Cifizzari,
474 N.E.2d 1174
(Mass. App. Ct. 1985).
D. Michael Cifizzari’s CPAC Interrogation
Around 7:15am the same morning as the interrogation at the MPD station, Sgt. DiGirolamo
and Officers Chinese and Sullo transported Michael Cifizzari to the CPAC office in Worcester.
[ECF No. 122 ¶¶ 119, 134]. Sgt. Doheny introduced himself, read Michael Cifizzari his Miranda
rights, and questioned him about the murder. [Id. ¶¶ 134-37]. Michael Cifizzari again confessed to
the murder, although the details differed slightly from his account at the Milford station. [Id. ¶¶
137–43]. The State Police Report indicates that Michael stated graphic and specific details about
what he and his cousin Robert Cananzey had done to Mrs. Schiappa. [Id. ¶ 142; May 7, 1981 State
Police Report ¶ 4 (Def. Ex. 7, ECF No. 118-2 at 398–403)]. Sgt. Doheny then asked Michael
Cifizzari if he was sure that it was his cousin Cananzey that was with him, and not his brother,
Gary Cifizzari. [ECF No. 122 ¶ 143]. Michael Cifizzari replied, “Yes, Gary was there.” [Id.]
On February 26, 1981, Michael Cifizzari was held without bail. [Id. ¶ 156]. On February
27, 1981, Michael Cifizzari was examined by a court psychiatrist during arraignment at Milford
District Court and was declared incompetent to stand trial. [Ruling on Michael Cifizzari Mot. to
Suppress (June 22, 1983) ¶ 10]. Michael Cifizzari was then hospitalized until around October 1982,
after which he was deemed competent to stand trial. [1984 Trooper Meier Report ¶¶ 1–2, (Def. Ex.
16, ECF No. 118-3 at 129–33)]. After his motion to suppress was denied in June 1983, in
September of that same year, Michael Cifizzari was tried and convicted of second-degree murder.
[ECF No. 122 ¶ 157]. Michael Cifizzari appealed the conviction, and the conviction was affirmed
by the Massachusetts Appeals Court. Cifizzari,
474 N.E.2d 1174
.
E. Investigation of Gary Cifizzari
After Michael Cifizzari implicated his brother, Plaintiff Gary Cifizzari, Gary was located
and Trooper Meier interviewed him. [ECF No. 122 ¶¶ 160–61]. Plaintiff denied being involved in
the murder of Mrs. Schiappa. [Id. ¶ 160]. Trooper Meier also conducted the investigation into the
bitemarks on the victim’s body. [Id. ¶ 165]. MPD did not direct and was not involved in the
decision or arrangements to make a cast of the victim’s bitemarks. [Id. ¶ 182]. Plaintiff was not
under arrest at the time of Trooper Meier’s bitemark investigation, but consented to having his
dental impression made to compare with the bitemark cast made of the victim. [Id. ¶ 166]. MPD
was not involved in getting Gary Cifizzari’s dental mold made. [Id. ¶ 213]. Trooper Meier and
ADA Murphy travelled to Florida to recruit Dr. Richard Souviron to be an expert in the murder
case on the dental evidence. [Id. ¶¶ 168–69]. Dr. Souviron’s opinion was that Gary Cifizzari’s
teeth made the marks on Mrs. Schiappa’s body. [Id. ¶ 170]. Dr. Arthur Schwartz, the expert who
examined the bitemarks on Mrs. Schiappa’s body during the autopsy, also formed the opinion that
Gary Cifizzari’s teeth matched the bitemarks on the victim’s body. [Id. ¶ 168]. The dental evidence
and concurring expert opinions were presented to the grand jury, which indicted Gary Cifizzari in
November 1983 for the 1979 murder of Concetta Schiappa. [Id. ¶ 206]. Gary Cifizzari was arrested
in November of 1983 for the murder of Mrs. Schiappa. [ECF No. 122 ¶ 174]. At the State Police
CPAC office, Gary Cifizzari was questioned by Sgt. Doheny in Trooper Meier’s presence, during
which Cifizzari denied having anything to do with the murder. [Gary Cifizzari Statement (Def. Ex.
20, ECF No. 118-3 at 141); Meier Aff. ¶ 51].
F. Conviction of Gary Cifizzari and Post-Trial Proceedings
At Gary Cifizzari’s trial in 1984, the Commonwealth relied on the testimony of three
forensic dental experts, and each expert matched Gary Cifizzari’s dental impression to the
bitemarks left on the victim’s body. [ECF No. 122 ¶ 222; see Com. v. Cifizzari,
492 N.E.2d 357,
361
(Mass. 1986) (hereinafter, “Gary Cifizzari 1986 SJC Appeal”)]. The third dental expert
witness, Dr. Anthony Captline, was hired by Gary Cifizzari’s defense, but when presented with
the expert opinions of Doctors Schwartz and Souviron, agreed that the forensic dental evidence
proved that Gary Cifizzari’s bitemarks matched those on Mrs. Schiappa’s body. [ECF No. 122 ¶
173]. Michael Cifizzari’s initial confession at the Milford police station and his subsequent
interrogation at the State CPAC office were not introduced at Gary Cifizzari’s trial, although a
witness at Gary Cifizzari’s trial did reference Michael’s confession once in her testimony.5 [Id. ¶
233; Gary Cifizzari Trial Tr. 7:5–9, ECF No. 124-4]. At the conclusion of trial, Gary Cifizzari was
found guilty of first-degree murder. [ECF No. 122 ¶ 234].
Gary Cifizzari appealed his conviction, and the Massachusetts Supreme Judicial Court
affirmed the judgment against him. [Id. ¶ 236; Gary Cifizzari 1986 SJC Appeal at 369]. On appeal,
Plaintiff raised a number of arguments, including but not limited to, the admissibility of bitemark
identification evidence; the statement of witness Annette Pasqualone referencing Michael
Cifizzari’s confession; introduction of the theory of joint venture; instruction of felony murder;
and the prosecutor’s remarks on closing argument regarding a reference to the Cifizzari brothers’
smoking marijuana under a bridge after the murder. [ECF No. 122 ¶ 237; Gary Cifizzari 1986 SJC
Appeal at 358]. Plaintiff did not base his appeal on any conduct by the MPD relative to Michael
Cifizzari’s questioning on February 26, 1981, or on evidence of Michael Cifizzari’s confessions
that were not introduced at trial. Nor did he argue ineffective assistance of counsel relative to the
5 Plaintiff did challenge this witness’ statement regarding Michael’s confession in his appeal. Gary
Cifizzari 1986 SJC Appeal at 364.
failure to introduce a third-party culprit defense relative to Michael Giroux or other State Police
suspects. [ECF No. 122 ¶ 237].6
In 2006, Gary Cifizzari sought to have the physical evidence from the Schiappa murder
investigation tested for DNA evidence. [ECF No. 133 ¶ 219]. In 2017, the New England Innocence
Project represented Plaintiff in a renewed request to have the DNA evidence from the murder
tested. [Id. ¶ 220]. Ultimately, the WCDA worked with the Innocence Project to test the physical
evidence, and this DNA testing excluded Gary Cifizzari and identified Michael Giroux as the
source of the semen on Mrs. Schiappa’s nightgown. [Id. ¶¶ 221–22]. Plaintiff filed a Motion for a
New Trial in state court in May 2019. [ECF No. 122 ¶ 239]. In December 2019, the
Commonwealth entered a Nolle Prosequi on the count of first-degree murder. [Id. ¶ 241]. In May
2021, Gary Cifizzari and the Commonwealth of Massachusetts agreed to a settlement relative to
claims brought or which could have been brought against the Commonwealth pursuant to the
Massachusetts Erroneous Conviction statute. [Id. ¶ 242].
The state of forensic science has drastically changed since Gary Cifizzari’s conviction,
beginning around 2009, when a landmark report by the National Academy of Sciences cast serious
doubt on multiple forms of forensic evidence which had previously been accepted by courts. [Gary
Cifizzari Mot. for New Trial at 33]; see National Research Council, Strengthening Forensic
Science in the United States: A Path Forward (2009) (“NAS Report”),
https://nap.nationalacademies.org/catalog/12589/strengthening-forensic-science-in-the-united-
states-a-path-forward; McCrory v. Alabama,
144 S. Ct. 2483
, 2484-85 (2024) (Sotomayor, J.,
dissenting) (discussing the import of the 2009 NAS Report, noting, “Since the NAS Report, the
6 The Court acknowledges that Plaintiff may not have raised these claims in his 1986 appeal as
some of the bases for the claims did not become known until bitemark science was rejected and
DNA evidence revealed Plaintiff’s innocence.
scientific community has shored up some methods of forensic evidence and left others behind.”).
The NAS report found “no basis existed to support the proposition that a forensic odontologist,
looking at a bitemark on human skin, could individualize that mark to a potential biter.” [Gary
Cifizzari Mot. for New Trial at 34 (citation omitted)]. Subsequent scientific evaluations of
bitemark evidence have drawn similar conclusions about its unreliability, and it is now “generally
accepted scientific consensus that individualization testimony is inherently unreliable.” [Id. at 29,
32].
II. LEGAL STANDARDS
A. Summary Judgment
Summary judgment is required when “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue of
material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson,
477 U.S. at 244
.“Materiality depends on the substantive law, and
only factual disputes that might affect the outcome of the suit can preclude summary judgment.”
Triumph Foods, 742 F. Supp. 3d at 69 (citing Anderson,
477 U.S. at 248
). In reviewing the
evidence at the summary judgment stage, the Court must “draw all reasonable inferences in favor
of the nonmoving party, and it may not make credibility determinations or weigh the evidence.”
Sharp, 692 F. Supp. 3d at 10 (quoting Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133,
150
(2000)). “However, ‘[a]t the summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party only if there is a genuine dispute as to those facts.’” Fernando
v. Fed. Ins. Co., No. 18-10504-MBB,
2022 U.S. Dist. LEXIS 44315
, at *3 (D. Mass. Mar. 14,
2022) (quoting Scott v. Harris,
550 U.S. 372, 380
(2007)). If a properly supported motion for
summary judgment is submitted, the opposing party must “set forth specific facts showing that
there is a genuine issue for trial.” Anderson,
477 U.S. at 250
. The adverse party cannot “rest upon
the mere allegations or denials of his pleading,” but must instead “present affirmative evidence.”
Id.
at 256–57. Inadmissible hearsay evidence cannot be considered on summary judgment for the
truth of the matter asserted. Kenney v. Floyd,
700 F.3d 604, 609
(1st Cir. 2012). Further, opposition
to a motion for summary judgment must set forth such facts as would be admissible in evidence.
Quinones v. Buick,
436 F.3d 284
, 291 (1st Cir. 2006); Fed. R. Civ. P. 56(c)(4). “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine issue of
material fact.” Scott,
550 U.S. at 380
(quoting Anderson, 477 U.S. at 247–48).
B. Article III Standing
Article III standing “is an ‘indispensable part’ of any case that must be present at every
stage of the case.” In re Lantus Direct Purchaser Antitrust Litig.,
512 F. Supp. 3d 106
, 119 (D.
Mass. 2020) (quoting Lujan v. Defs. of Wildlife,
504 U.S. 555, 561
(1992)). This requirement
“assures respect for the constitutional requirement that federal court jurisdiction be limited to
actual “‘Cases’ and ‘Controversies.’” In re Lantus at 119 (quoting Hochendoner v. Genzyme
Corp.,
823 F.3d 724, 731
(1st Cir. 2016) (citing U.S. Const. art. III, § 2, cl. 1)). The “irreducible
constitutional minimum of standing contains three elements.” Lujan,
504 U.S. at 560
. First, the
plaintiff must have suffered an “injury in fact,” that is both “(a) concrete and particularized[,]” and
“(b) actual or imminent, not ‘conjectural’ or hypothetical[.]’”
Id.
Second, the injury must be “fairly
traceable” to “the challenged action of the defendant.”
Id.
Third, it must be “likely” that the injury
will be “redressed by a favorable decision.”
Id.
at 560–61 (citation omitted). “[T]he plaintiff bears
the burden of establishing sufficient factual matter to plausibly demonstrate his standing to bring
the action . . . Neither conclusory assertions nor unfounded speculation can supply the necessary
heft.” Hochendoner,
823 F.3d at 731
.
The fairly traceable element of Article III standing requires that the injury be “‘fairly . . .
trace[able] to the challenged action of the defendant, and not . . . the result [of] independent action
of some third party not before the court.’” Lujan,
504 U.S. at 560
(alterations in original) (quoting
Simon v. E. Ky. Welfare Rts. Org.,
426 U.S. 26
, 41–42 (1976)). “When the suit is one challenging
the legality of government action or inaction, the nature and extent of facts that must be averred
(at the summary judgment stage) . . . in order to establish standing depends considerably upon
whether the plaintiff is himself an object of the action (or forgone action) at issue.” Lujan, 504
U.S. at 561–62. Further, when “[t]he existence of one or more of the essential elements of standing
‘depends on the unfettered choices made by independent actors not before the courts . . . it becomes
the burden of the plaintiff to adduce facts showing that those choices have been or will be made in
such manner as to produce causation and permit redressability of injury.’” Lujan,
504 U.S. at 562
(citing Warth v. Seldin,
422 U.S. 490, 505
(1975)).
III. DISCUSSION
Summary judgment hinges on whether there is a genuine dispute as to material facts, as
well as on whether the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). The evidence and events proposed by the Plaintiff are supported largely by hearsay evidence
and do not have other record support that was contemporaneous to the time of the murder and
investigation. While these accounts of alternative theories and potential uninvestigated leads are
provocative and concerning, they are ultimately not material because, as discussed further below,
Plaintiff's claims fail as a matter of law based on his inability to demonstrate causation.
There are a few undisputed material facts at play here. First, a state statute required the
murder investigation to be overseen and directed by the WCDA and the CPAC unit of the State
Police rather than the local MPD.
Mass. Gen. Laws ch. 38, § 4
. While Plaintiff may dispute the
level of involvement of individual MPD officers, it is undisputed that WCDA was the agency that
was overall responsible for conducting the Schiappa murder investigation and that a CPAC unit
detective was the lead investigator. [ECF No. 122 ¶¶ 4, 8, 10–11]. Second, the key event which
triggered Plaintiff’s prosecution occurred during a CPAC, as opposed to MPD, interrogation. It is
undisputed that Gary Cifizzari was not implicated in the investigation of the murder of Mrs.
Schiappa until his brother Michael falsely stated in his second confession at the CPAC office in
Worcester that Gary was with him when he committed the murder. [Id. ¶¶ 93–94]. It is undisputed
that the second confession was conducted by Sgt. Doheny of CPAC at the CPAC office in
Worcester, and that no MPD officers asked Michael any questions. [Id. ¶¶ 150–51]. Third, Plaintiff
Gary Cifizzari was primarily convicted based on bitemark evidence. It is undisputed that in his
2019 Motion for New Trial, Plaintiff asserted, “[t]he Commonwealth’s case against Mr. [Gary]
Cifizzari was predicated entirely on ‘expert’ bitemark comparison testimony;” and that “[t]he case
against [Gary] Cifizzari began and ended with bitemark comparison evidence in the form of expert
testimony.” [Id. ¶ 221; Gary Cifizzari Mot. for New Trial at 14]. It is undisputed that the State
Police controlled the use of the bitemark evidence, and Plaintiff does not counter that “[t]he Town
of Milford and members of its Police Department did not direct, control or participate in any aspect
of securing, assessing, evaluating or utilizing as evidence the dental evidence, from the initiation
of the murder investigation through the conviction of Gary Cifizzari.” [ECF No. 122 ¶ 207]. It is
undisputed that Plaintiff was indicted following confirmation of Dr. Souviron’s expert dental
opinion that Plaintiff’s teeth made the marks on Mrs. Schiappa’s body. [Id. ¶ 218]. It is undisputed
that the WCDA controlled the prosecution and presented the dental experts who testified at
Plaintiff’s trial that Plaintiff’s dental impression matched the bitemarks on Mrs. Schiappa’s body.
[Id. ¶ 222; Gary Cifizzari 1986 SJC Appeal at 360]. It is undisputed that Plaintiff entered into a $1
million settlement with the Commonwealth of Massachusetts, which includes the WCDA and the
State Police, where Plaintiff released the Commonwealth from any of all claims which were
brought, or which could have been brought pursuant to the Massachusetts Erroneous Conviction
statute. [Settlement Agreement, ECF No. 118-3 at 181]. MPD and its officers were not parties to
the settlement. [Id.]
As will be discussed below, these undisputed material facts entitle the Defendants to
judgment as matter of law on Plaintiff’s Section 1983 claims because the facts controvert
Plaintiff’s attempt to establish causation. The success of Plaintiff’s claim under the Massachusetts
Civil Rights Act depends on whether Plaintiff can establish Defendants’ interference or attempted
interference with civil rights “by threats, intimidation or coercion” in Michael Cifizzari’s
confession, which, as will be explained in Section III.C of this opinion, the Court finds Plaintiff
lacks standing to challenge. See Mass. Gen. Laws Ann. ch. 12, § 11H.
A. Michael Cifizzari’s Confessions
Plaintiff challenges prior court rulings that Michael Cifizzari’s confessions were uncoerced
and voluntary. As stated above, Michael Cifizzari’s attorney did bring a motion to suppress his
confession at the Milford Police Department on February 26, 1981. This motion was denied after
a two-day evidentiary hearing, and was denied again on appeal. [Ruling on Michael Cifizzari Mot.
to Suppress (June 22, 1983) at 194; Cifizzari,
474 N.E.2d at 1177
]. As this is a wrongful conviction
case with the benefit of hindsight, it is clear that Michael’s statements at his confession were false.
However, this Court cannot replace the rulings of the judges hearing the evidence and argument
on the motion to suppress at the time these events unfolded. While Michael’s statements do not
reflect the truth, that does not require a finding that his confession was coerced or involuntary.
Defendants assert that Plaintiff Gary Cifizzari is issue precluded from relitigating in this
action whether Michael’s confession at the Milford Police Department was coerced. “[A] party to
a civil action against a former criminal defendant may invoke the doctrine of collateral estoppel to
preclude the criminal defendant from relitigating an issue decided in the criminal prosecution.”
Aetna Cas. & Sur. Co. v. Niziolek,
481 N.E.2d 1356, 1360
(Mass. 1985). In other words, in some
cases, a defendant in a Section 1983 action may invoke issue preclusion to preclude the plaintiff
who was criminally prosecuted from relitigating an issue that was decided in their criminal
prosecution. “Under Massachusetts law, issue preclusion (or collateral estoppel) is appropriate
where there is ‘an identity of issues, a finding adverse to the party against whom it is being asserted,
and a judgment by a court or tribunal of competent jurisdiction.’" Kyricopoulos v. Orleans,
967
F.2d 14, 16
(1st Cir. 1992) (per curiam) (quoting Miles v. Aetna Cas. & Sur. Co.,
589 N.E.2d 314,
317
(Mass. 1992)). Here, Plaintiff Gary Cifizzari is seeking to challenge his brother Michael’s
confession, which was a main issue in Michael’s rather than Gary’s prosecution. “Massachusetts
no longer requires mutuality of parties to invoke issue preclusion. Thus, where the party in whose
favor collateral estoppel is to be applied was not a litigant in the original action, the central inquiry
is whether the party against whom issue preclusion will be applied had a fair opportunity to litigate
the issue fully or whether reasons exist to afford the party a chance to relitigate the issue.”
Kyricopoulos,
967 F.2d at 16
(citing Brunson v. Wall,
541 N.E.2d 338, 341
(Mass. 1989)).
There are certainly some reasons that go against precluding Plaintiff from contesting
Michael's confession; however, the Court need not reach the issue because Plaintiff has failed to
demonstrate a causal link between the actions of the MPD Defendants and his own wrongful
conviction. While Gary Cifizzari may not be issue precluded from contesting the voluntariness of
his brother Michael’s confession to either the MPD or the State Police, he lacks standing to raise
such a challenge. First, while a defendant has a Fifth Amendment right to seek suppression of his
own confessions, “the privilege against self-incrimination is personal to a defendant,” and “a co-
defendant cannot object to the admission of a confessing defendant’s inculpatory statement on the
ground that the confessing defendant’s Fifth Amendment rights were violated.” United States v.
Robinson-Munoz,
961 F.2d 300, 303
(1st Cir. 1992) (citing Moran v. Burbine,
475 U.S. 412, 433
(1986)). In some circumstances, a defendant may have a valid objection to the inclusion of a co-
defendant’s statement at his trial based on the Confrontation Clause and the Bruton rule. See
id.
at
303 n.2; Bruton v. United States,
391 U.S. 123
, 128–37 (1968). However, that is not the
circumstance of the motion before the Court.
Even more general principles of standing indicate that Plaintiff cannot meet the causation
requirement of the injury-in-fact prong of a standing analysis – that the injury be “‘fairly . . .
trace[able] to the challenged action of the defendant, and not . . . the result [of] independent action
of some third party not before the court.’” Lujan,
504 U.S. at 560
(quoting Simon, 426 U.S. at 41–
42). It is undisputed that Plaintiff was not implicated in the murder until Michael Cifizzari was
interrogated by Sgt. Doheny of the State Police CPAC unit at the CPAC office in Worcester, and
that MPD officers did not question Michael Cifizzari at that interrogation – only Sgt. Doheny
asked questions. [ECF No. 122 ¶¶ 150–51, 159]. Therefore, the infirmity that Plaintiff complains
of in Michael Cifizzari’s confession cannot be attributed to the MPD Defendants, but rather to the
independent actions of the State Police, who are third parties not before the Court. See Lujan,
504
U.S. at 560
(quoting Simon, 426 U.S. at 41–42). Accordingly, the Court will not disturb the
findings of the state courts that presided over Michael Cifizzari’s motion to suppress and appeal
of his conviction. [See Ruling on Michael Cifizzari Mot. to Suppress (June 22, 1983); Cifizzari,
474 N.E.2d at 1177
(finding no error in trial court’s denial of motion to suppress statements;
“Commonwealth had sustained its burden of proving that the defendant’s confession was voluntary
and was based on a knowing and intelligent waiver of Miranda rights.”).
B.
42 U.S.C. § 1983
Plaintiff brings nine claims under 42 U.S.C.§ 1983 (“Section 1983”), including unduly
suggestive, biased, and otherwise improper identification procedures (Count 1), improper
interrogation procedures and techniques (Count 2), fabricating false inculpatory evidence (Counts
3 and 4), failure to investigate (Count 5), malicious prosecution (Count 6), a Monell claim (Count
7), supervisory liability (Count 8), and conspiracy (Count 9). Section 1983 “creates a private right
of action against any person who, under color of state law, ‘subjects, or causes to be subjected, any
. . person within the jurisdiction [of the United States] to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws[.]’” Yaghoobi v. Tufts Med. Ctr., Inc.,
762 F.
Supp. 3d 85
, 92 (D. Mass. 2025) (alterations in original) (citing 42 U.S.C § 1983). “A claim under
Section 1983 has two elements: 1) that the conduct complained of has been committed under color
of state law, and 2) that this conduct worked a denial of rights secured by the Constitution or laws
of the United States.” Yaghoobi, 762 F. Supp. 3d at 92 (citation omitted). “To satisfy the second
element, plaintiffs must show that the defendants’ conduct was the cause in fact of the alleged
deprivation.” Rodriguez-Cirilo v. Garcia,
115 F.3d 50, 52
(1st Cir. 1997). Section 1983 “imposes
a causation requirement similar to that of ordinary tort law.” Maldonado Santiago v. Velazquez
Garcia,
821 F.2d 822, 831
(1st Cir. 1987); see Rodriguez-Cirilo,
115 F. 3d at 52
(“In applying
basic tort principles to the facts raised by a particular section 1983 claim, the causation requirement
may be fleshed out with reference to state law tort principles.”).
1. John Doe Defendants
Plaintiff brings Counts I-II, V-VI, & VIII-X against John Doe Defendants 1-20. Plaintiff
has made no effort to name “John Does 1 – 20” or serve them with the Complaint or Amended
Complaint. “Because these fictitiously named parties remained unidentified at the close of
discovery,” and because summary judgment is ripe for resolution, the claims against John Does 1–
20 are hereby DISMISSED. Silva v. Town of Uxbridge,
771 F. Supp. 3d 56
n.1 (D. Mass. 2025);
Figueroa v. Rivera,
147 F.3d 77
, 82–83 (1st Cir. 1998) (affirming dismissal of claims against John
Doe defendants because plaintiff made no attempt to serve them with the complaint and summary
judgment was ripe for resolution).
2. Counts I, II, & III
Counts I, II, and III all pertain to Michael Cifizzari’s confession at the Worcester CPAC
office. Count I asserts a claim of unduly suggestive, biased, and otherwise improper identification
procedures against the MPD Defendants. Count II asserts a claim of improper interrogation
procedures and techniques against the MPD Defendants. Count III asserts a claim of fabrication
of false inculpatory evidence against the MPD Defendants. As stated above, Plaintiff Gary
Cifizzari cannot establish standing for these claims against the MPD Defendants because his
alleged injuries are not fairly traceable to them given that Sgt. Doheny of the State Police, rather
than any MPD officer, conducted the interrogation where Michael Cifizzari implicated Plaintiff.
[ECF No. 122 ¶¶ 150–51, 159]; see Lujan,
504 U.S. at 560
(quoting Simon, 426 U.S. at 41–42).
For Count I, Plaintiff alleges the improper identification procedures utilized included
“[q]uestioning and interrogating Michael Cifizzari” in “deteriorated mental state” and “asking
Michael suggestively whether he was sure he had been with his cousin, and not his brother . . . at
the time of the crime.” [Am. Compl. ¶ 70]. Count II accuses the MPD Defendants of “interrogating
and questioning the severely mentally ill Michael Cifizzari, then later implicating the Plaintiff in
the murder in additional interrogations.” [Id. ¶ 74]. In Count III, Plaintiff alleges the MPD
Defendants “fabricated inculpatory evidence” in Michael’s confession, essentially asserting that
the Defendants fabricated Michael’s confession. [Id.] In addition to lacking standing, Plaintiff’s
claims in Counts I, II, and III substantively fail because Plaintiff cannot establish the element of
causation. To establish causation for a claim under Section 1983, a plaintiff “must show that the
defendants’ conduct was the cause in fact of the alleged deprivation.” Rodriguez-Cirilo,
115 F.3d
at 52
. The MPD Defendants did not ask any questions at Michael’s CPAC office interrogation.
[ECF No. 122 ¶ 151]. It was Sgt. Doheny who asked Michael Cifizzari if he was sure it was his
cousin that was with him during the murder and not his brother Gary, to which Michael replied,
“Yes, Gary was there.” [Id. ¶ 143; ECF No. 131 ¶ 102; May 7, 1981 State Police Report ¶ 4]. To
the extent Plaintiff’s allegations in Count III refer to Michael’s first interrogation at the MPD
station,7 Plaintiff was not implicated at all during that interrogation and his injuries are not
traceable to Michael’s statements made therein.
Plaintiff cites four out-of-circuit cases to argue that causation is met for his Section 1983
claims because the MPD Defendants “set in motion a series of events that the defendant knew or
should reasonably have known would cause others to deprive the plaintiff of [his] constitutional
rights.” [ECF No. 127 at 53 (quoting Conner v. Reinhard,
847 F.2d 384, 397
(7th Cir. 1988))].
Plaintiff’s argument has two flaws. First, Plaintiff’s wrongful conviction was not a foreseeable
result of the MPD Defendants’ interrogation of Michael Cifizzari at the MPD station in February
1981. The MPD Defendants did not raise Plaintiff’s name in their conversation with Michael
7 The Amended Complaint is unclear as to which interrogation Plaintiff is challenging: Michael’s
first interrogation at the MPD station or Michael’s interrogation at CPAC. [See Am. Compl. ¶¶
78–80].
Cifizzari, nor does the record suggest that Sgt. DiGirolamo and Officer Chianese took any action
to implicate Plaintiff in Michael’s statements. There is no evidence in the record that the MPD
Defendants told Sgt. Doheny to ask Michael whether Plaintiff was involved in the murder, rather
it appears that Sgt. Doheny acted independent of his own accord. While a “defendant will not be
relieved of liability by an intervening cause that was reasonably foreseeable, even if the intervening
force may have directly caused the harm,” a defendant is “shield[ed]” from liability if “an
unforeseen and abnormal intervention . . . breaks the chain of causality.” Gutierrez-Rodriguez v.
Cartagena,
882 F.2d 553, 561
(1st Cir. 1989) (internal quotation marks and citations omitted).
Second, Plaintiff was primarily convicted based on bitemark evidence, and it is undisputed that
“[t]he Town of Milford and members of its Police Department did not direct, control or participate
in any aspect of securing, assessing, evaluating or utilizing as evidence the dental evidence, from
the initiation of the murder investigation through the conviction of Gary Cifizzari.” [ECF No. 122
¶ 207]. Moreover, CPAC investigators had already decided that bitemark evidence might be used
in a future criminal prosecution for Mrs. Schiappa’s murder a full seventeen months prior to
Michael’s interrogation in Milford, when the State Police contacted Dr. Schwartz to attend the
victim’s autopsy on September 29, 1979 and make dental impressions of the bitemarks on her
body. [Id. ¶¶ 40–44]. Therefore, while the MPD Defendants’ interrogation of Michael Cifizzari
does form part of the chain of events that implicated Plaintiff in Mrs. Schiappa’s murder, it is not
the proximate cause of Plaintiff’s wrongful conviction.
The Court pauses to note that Plaintiff – at best – erroneously confuses and – at worst
– intentionally conflates the actions of the MPD Defendants and the State Police investigators in a
manner that improperly portrays the MPD Defendants as having a more active role in the murder
investigation and Plaintiff’s prosecution than is supported by the record. [See e.g., ECF No. 131
¶¶ 82, 86 (Plaintiff incorrectly citing testimony relating to the State Police interrogation of Michael
and attributing it to Sgt. DiGirolamo’s interview of Michael at the MPD station); compare Am.
Compl. ¶¶ 42 (“Along with Milford Police Sgt. DiGirolamo, Milford Officers Chianese and
Nicholas Sullo, Sergeant Doheny began questioning Michael about his statements and asked
Michael whether he was sure he had been with his cousin, and not his brother Gary, at the time of
the crime”) with ECF No. 122 ¶ 151 (Not disputed that “The Milford Police did not question
Michael Cifizzari at the CPAC office, only Sgt. Doheny.”)]. Despite this sleight of hand, the
picture remains clear as to the material undisputed facts at issue. The MPD Defendants did not
cause Plaintiff’s injuries for Counts I through III. Accordingly, summary judgment is GRANTED
on Counts I-III.
3. Count IV
Count IV asserts a fabrication of false inculpatory evidence claim against Richard
Souviron, the dental expert who gave the opinion that Plaintiff’s teeth made the marks on Mrs.
Schiappa’s body. [ECF No. 122 ¶ 218]. Plaintiff failed to name Dr. Souviron as a defendant in the
Amended Complaint caption, Dr. Souviron was never served with notice of this action, and no
attorney has filed an appearance on behalf of Dr. Souviron. Additionally, the allegations for Count
IV in the Amended Complaint are verbatim copy and pasted from Count III and refer only to the
actions of the MPD Defendants. Because Plaintiff failed to serve Dr. Souviron in accordance with
the Federal Rules of Civil Procedure, and because Plaintiff has failed to allege any facts that would
form a basis for his claim against Dr. Souviron, summary judgment is GRANTED as to Count IV.
4. Count V
Count V asserts a claim of failure to investigate against the MPD Defendants. “[T]he First
Circuit has recognized that a duty to investigate may arise in certain circumstances even when an
officer has obtained facts that would otherwise be sufficient to establish probable cause.”
Abubardar v. Gross,
542 F. Supp. 3d 69
, 75 (D. Mass. 2021) (citing Chapman v. Finnegan,
950 F.
Supp. 2d 285, 296
(D. Mass. 2013)). Here, the Court finds that Michael Cifizzari’s confession at
the CPAC office implicating Plaintiff, and the expert opinions that affirmatively (albeit
erroneously) linked Plaintiff’s bite impression to the bitemarks on the victim’s body would have
been enough to establish probable cause for his arrest. Still, Plaintiff argues that the Defendants
ignored other leads and evidence that would have led them to identifying Michael Giroux as the
real killer, thus ruling out Plaintiff as a suspect.
To show that the MPD Defendants had a duty to conduct further inquiry under the
circumstances, Plaintiff must allege that the information known to the Milford Police gave those
officers “an obvious reason to doubt” that Plaintiff had committed the murder of Mrs. Schiappa,
such that the officers’ failure to conduct an additional inquiry “evinced a reckless disregard for the
truth.” Abubardar, 542 F. Supp. 3d at 75 (quoting United States v. Tanguay,
787 F.3d 44, 53-54
(1st Cir. 2015)). To meet the standard for “reckless disregard for the truth,” ‘“negligence or
innocent mistake [is] insufficient.’” Tanguay,
787 F.3d at 52
(alterations in original) (quoting
United States v. Davis,
617 F.2d 677, 694
(D.C. Cir. 1979)). Generally, “[t]he failure to investigate
a matter fully, to exhaust every possible lead, interview all potential witnesses, and accumulate
overwhelming corroborative evidence rarely suggests a knowing or reckless disregard for the
truth.” Tanguay,
787 F.3d at 51-52
(citations omitted). Liability for failure to investigate only
applies when Plaintiff can establish an “affirmative link” between the “alleged investigatory
deficiency and [the police officer’s] violation of [the plaintiff’s] constitutional rights[.]” Aldrich
v. Town of Milton,
881 F. Supp. 2d 158, 173
(D. Mass. 2012) (quoting Febus-Rodriguez v.
Betancourt-Lebron,
14 F.3d 87
, 95 n.11 (1st Cir. 1994)).
Count V fails because Plaintiff cannot establish the first step of the failure to investigate
analysis, which requires that the defendant was under a duty to investigate further. See Tanguay,
787 F.3d at 54
(“[T]he court must first determine whether the information known to [the law
enforcement officer] gave [them] an obvious reason to doubt [the truthfulness of another witness’s
statements] and, thus, triggered a duty of further inquiry.”). Plaintiff objects to the characterization
that the MPD officers did not direct and control the Schiappa murder investigation, and alleges
that individual actions by Defendants DiGirolamo, Chianese, Liberto, and Small show they
retained some direction over the investigation. [See ECF No. 122 ¶¶ 59–68]. The Court has already
concluded that that the WCDA and CPAC directed and controlled the murder investigation and
Plaintiff’s subsequent prosecution. See Section I.B. “Control of the Murder Investigation,” supra.
Further, in an affidavit, Trooper Meier of CPAC testified that the MPD “did not coordinate, direct
or control the Schiappa homicide investigation” and that “[i]nstead, Milford Police detectives were
assigned discrete tasks by CPAC investigators, such as accompanying CPAC investigators during
interviews.” [Meier Aff. ¶ 13]. Trooper Meier’s assertion is not hearsay, but rather a fact statement
based on his personal knowledge of how the investigation was conducted, given that he was
assigned to investigate the Schiappa murder as part of the CPAC unit in 1979. [Id. ¶ 5]. Meier’s
characterization of the control over the investigation is also supported by state law. See
Mass. Gen.
Laws ch. 38, § 4
. There is no evidence in the record that the State Police or WCDA even shared
information about their investigation of the Plaintiff with the MPD officers. Given that MPD did
not control the investigation and the MPD Defendants had a limited role in accompanying CPAC
investigators on local interviews, the Court does not find that the MPD Defendants were under a
duty to investigate further than what they were asked to do by CPAC. Additionally, the record
reflects that MPD officers did report some of the purported uninvestigated leads to the CPAC
investigators, such as the statement of Gary Terhune. [See 1979 State Police Report ¶ 10; ECF No.
122 ¶ 69; ECF No. 131 ¶ 160]. As Plaintiff cannot show that the MPD Defendants had a duty to
investigate further, the Defendants are entitled to summary judgment as a matter of law on Count
V.
5. Count VI
Count VI asserts a claim of malicious prosecution against the MPD Defendants. To prevail
on a Section 1983 malicious prosecution claim, “a plaintiff must meet the common law elements”
of the claim “and additionally demonstrate ‘a deprivation of a federally-protected right.’” Watson
v. Mita,
396 F. Supp. 3d 220
, 224 (D. Mass. 2019) (quoting Nieves v. McSweeney,
241 F.3d 46
,
53 (1st Cir. 2001)). Under Massachusetts common-law, the elements of a malicious prosecution
require, “(1) the commencement or continuation of a criminal proceeding against the eventual
plaintiff at the behest of the eventual defendant; (2) the termination of the proceeding in favor of
the accused; (3) an absence of probable cause for the charges; and (4) actual malice.’” Watson,
396 F. Supp. 3d at 225 (internal quotation marks and citations omitted). Further, a plaintiff “must
establish that a named defendant commenced or continued the criminal proceedings against the
Plaintiff . . . and must show that the defendant acted with ‘improper purpose.’” Id. (citations
omitted). A plaintiff suing pursuant to Section 1983 “must do more than merely satisfy the
elements of the common law tort of malicious prosecution[,]” they “‘must show a deprivation of
liberty, pursuant to legal process, that is consistent with the concept of a Fourth Amendment
seizure.’” Id. at 224 (quoting Harrington v. City of Nashua,
610 F.3d 24, 30
(1st Cir. 2010)).
Plaintiff’s malicious prosecution claim against the MPD Defendants must fail because the
WCDA and the Massachusetts State Police instituted or commenced the criminal proceedings
against Plaintiff, not the MPD Defendants. As discussed already at length, the WCDA and CPAC
directed and controlled the murder investigation and Plaintiff’s subsequent prosecution. See
Section I.B. “Control of the Murder Investigation,” supra. As no evidence has been presented to
demonstrate that MPD officers, rather than the WCDA and CPAC investigators, were responsible
for the Plaintiff’s prosecution, Plaintiff cannot meet the first element of the claim and summary
judgment on Count VI is GRANTED.
6. Count VIII
Count VIII asserts a supervisory liability claim against the MPD Defendants. Supervisory
liability under Section 1983 has two elements. First, “the plaintiff must show that one of the
supervisor’s subordinates abridged the plaintiff's constitutional rights.” Guadalupe-Báez v.
Pesquera,
819 F.3d 509, 514
(1st Cir. 2016) (citing Pineda v. Toomey,
533 F.3d 50, 54
(1st Cir.
2008)). Second, “the plaintiff must show that the [supervisor]’s action or inaction was
affirmative[ly] link[ed] to that behavior in the sense that it could be characterized as supervisory
encouragement, condonation, or acquiescence or gross negligence amounting to deliberate
indifference.” Pesquera,
819 F.3d at 515
(alterations in original) (citations omitted). The First
Circuit is clear that “a supervisor may not be held liable under section 1983 on the tort theory of
respondeat superior[.]”
Id.
Further, a supervisor’s section 1983 liability cannot “rest solely on his
position of authority[.]”
Id.
Plaintiff’s claim fails on the first element: as detailed above, the Court finds that no
subordinate MPD officer violated Plaintiff’s constitutional rights. Because Plaintiff cannot show
that behavior of a subordinate resulted in a constitutional violation, there can be no supervisory
liability. See Pineda,
533 F.3d at 54
. Summary judgment is GRANTED as to Count VIII.
7. Count VII
Count VII asserts a Monell liability claim against the Town of Milford and the MPD
Defendants for failing to properly discipline, supervise, and train MPD officers. While
municipalities, including their police departments, can be sued under Section 1983, they cannot be
held liable on a respondeat superior theory for the actions of their employees. Monell v. Dep’t of
Soc. Servs. of City of New York,
436 U.S. 658, 691
(1978). Instead, a plaintiff must show that the
municipality had a policy or custom that was the moving force behind the constitutional violation.
Id.
Monell liability is contingent on an underlying constitutional violation, and “if there is no
underlying constitutional violation, there can be no municipal liability.” Johnson v. City of
Biddeford,
665 F. Supp. 3d 82
, 122 (D. Me. 2023); see City of Los Angeles v. Heller,
475 U.S.
796, 799
(1986) (per curiam) (“[N]either [Monell] nor any other of our cases authorizes the award
of damages against a municipal corporation based on the actions of one of its officers when in fact
. . . the officer inflicted no constitutional harm.”); Evans v. Avery,
100 F.3d 1033, 1040
(1st Cir.
1996) (“[W]e follow Heller’s clear rule and hold that the City cannot be held liable absent a
constitutional violation by its officers.”).
As the Court has found the MPD Defendants have not committed an underlying
constitutional violation, the City cannot be held liable under Monell, and summary judgment is
GRANTED as to Count VII.
8. Count IX
Count IX asserts a conspiracy claim against the MPD Defendants. There are several causes
of action for conspiracy under state and federal law. Plaintiff has pleaded this claim as a civil rights
conspiracy under Section 1983. “A civil rights conspiracy as commonly defined is ‘a combination
of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by
unlawful means, the principal element of which is an agreement between the parties to inflict a
wrong against or injury upon another, and an overt act that results in damages.’” Est. of Bennett
v. Wainwright,
548 F.3d 155
, 178 (1st Cir. 2008) (citation omitted). While agreement may be
demonstrated with circumstantial evidence, Plaintiff has failed to allege any facts regarding an
agreement between the defendants that rises above “speculation and conjecture.” See Martinez v.
City of Worcester,
502 F. Supp. 3d 606
, 619 (D. Mass. 2020) (citation omitted). Indeed, even
considering Plaintiff’s primary theory regarding Defendants’ alleged fabrication of Michael
Cifizzari’s confession, Plaintiff himself asserts that it is “[n]ot disputed” that “Defendants
DiGirolamo and Chianese did not discuss their plans to interrogate Michael Cifizzari before they
did so on February 26, 1981.” [ECF No. 122 ¶ 106].
As Plaintiff has presented no evidence of an agreement among Defendants from which a
reasonable jury could have inferred a conspiracy among them to inflict harm upon Plaintiff,
summary judgment is GRANTED as to Count IX.
C. Count X: Massachusetts Civil Rights Act
Count X asserts a violation of the Massachusetts Civil Rights Act (“MCRA”) against the
MPD Defendants. To bring a claim under the MCRA, a plaintiff “must prove that (1) their exercise
or enjoyment of rights secured by the Constitution or laws of either the United States or of the
Commonwealth, (2) have been interfered with, or attempted to be interfered with, and (3) that the
interference or attempted interference was by ‘threats, intimidation or coercion.” Thomas v. Town
of Chelmsford,
267 F. Supp. 3d 279, 309
(D. Mass. 2017) (citation omitted). “[T]he MCRA is
narrower than § 1983 in that it limits its remedy to conduct that interferes with a secured right ‘by
threats, intimidation or coercion[,]’ . . . even a direct deprivation of a plaintiff's rights ‘would not
be actionable under the act unless it were accomplished by means of one of these three constraining
elements.’” Id. at 309–10. “Other than the additional requirement that an interference or attempted
interreference was by threats, intimidation, or coercion, ‘the [MCRA] is generally interpreted
coextensively with’ Section 1983.” Renzullo v. Town of Wakefield, No. 20-cv-11961-DJC,
2023
U.S. Dist. LEXIS 32755
, at *31 (D. Mass. Feb. 28, 2023) (alterations in original) (quoting Diaz v.
Devlin,
229 F. Supp. 3d 101, 112
(D. Mass. 2017)).
Plaintiff fails to allege that the MPD Defendants violated his rights by subjecting him to
“threats, intimidation, or coercion,” and he likewise fails to establish an MCRA violation based on
the MPD Defendants’ use of “threats, intimidation, or coercion” against a third party. Plaintiff
alleges that the MPD Defendants violated the MCRA by “conducting a sham investigation of the
actual perpetrator, Giroux, coaching, coercing or otherwise fabricating evidence against the
Plaintiff, or causing witnesses to give statements and/or testimony that would result in his
misidentification,” or by offering false statements and testimony. [Am. Compl. ¶ 105]. None of
these actions constitute “threats, intimidation, or coercion” against Plaintiff directly. In some
instances, a defendant’s coercion of a third party, such as witness, to induce them to fabricate a
false identification can suffice to demonstrate the requirement of coercion. See Echavarria v.
Roach, No. 16-cv-11118-ADB,
2017 U.S. Dist. LEXIS 144589
, at *42 (D. Mass. Sep. 7, 2017).
However, this theory still requires causation that the defendant’s actions harmed the Plaintiff. See
Redgrave v. Bos. Symphony Orchestra, Inc.,
502 N.E.2d 1375
, 1378–80 (Mass. 1987) (discussing
the circumstances in which a defendant’s actions against a third party suffice for liability under
the MCRA). Here, the third party is Michael Cifizzari, and Plaintiff alleges the MPD Defendants
coerced Michael into falsely identifying Plaintiff. As stated repeatedly, Plaintiff was not identified
Michael’s interrogation at the MPD station. Plaintiff was only implicated in the murder during
Michael’s CPAC interrogation, which Sgt. Doheny conducted and where no MPD officer asked
any questions. [ECF No. 122 ¶¶ 150–51]. Additionally, the Court has found that Plaintiff lacks
standing to contest the prior state court rulings that Michael’s confession to the MPD was not the
product of coercion. As Plaintiff has not demonstrated “threats, intimidation or coercion” by the
MPD Defendants, and because he cannot show causation for his claim, summary judgment is
GRANTED as to Count X.
D. Qualified Immunity
As the Court is granting summary judgment on all counts, it declines to reach the merits of
whether any MPD Defendant would be shielded by qualified immunity.
IV. CONCLUSION
The Court acknowledges the substantial harm that Gary Cifizzari endured as a result of
his wrongful conviction; however, it cannot grant relief that the law does not support. To do so
would only compound the injustice surrounding this case. For the reasons stated above,
Defendants’ Motion for Summary Judgment, ECF No. 117, is GRANTED on all counts and the
case is DISMISSED.
SO ORDERED.
Dated: July 9, 2025
/s/ Margaret R. Guzman
Margaret R. Guzman
United States District JudgeCase Information
- Court
- D. Mass.
- Decision Date
- July 9, 2025
- Status
- Precedential