Opinion
Civil Action No. 02-CV-12447-RGS.
February 14, 2005
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND THE CITY OF METHUEN'S MOTION FOR SUMMARY JUDGMENT
On August 18, 2000, David Blache, a City of Methuen police officer, took plaintiff Tori Beal into protective custody and raped her. Blache was subsequently indicted, tried, and convicted of the crime. On December 20, 2002, Beal filed this lawsuit against Blache and the City of Methuen, alleging violations of the federal civil rights act, 42 U.S.C. § 1983, common-law assault and battery, intentional infliction of emotional distress, and violation of the state civil rights act, G.L. c. 12, § 11H. Beal is also pressing a claim of fraudulent conveyance against Blache and his former wife, Martha.
Shortly after the Complaint was filed, the court granted an attachment on the Blaches' home in Methuen to the extent of "any interest of David Blache in the property." The home was ultimately sold and the proceeds deposited into the court pending the outcome of this litigation.
On September 14, 2004, the City of Methuen moved for summary judgment on the issue of municipal liability, arguing that Bruce MacDougall, the former Chief of the Methuen Police, had acted appropriately in permitting Blache to be reinstated as a patrol officer despite a prior allegation of rape. On October 29, 2004, Beal moved for summary judgment against David Blache, arguing that the state court rape conviction conclusively established Blache's civil liability on her common-law and state civil rights act claims. Beal also seeks summary judgment on her fraudulent conveyance claim. On January 27, 2005, the court heard oral argument.
With her opposition to the City's motion for summary judgment, Beal submitted the expert affidavit of Lou Reiter, a former Los Angeles Deputy Chief of Police and consultant on police training and management issues. In his affidavit, Reiter opines that the City of Methuen exhibited deliberate indifference "in its supervision of David Blache, its administrative investigation process, and its re-employment of David Blache." Reiter Aff., ¶ 10. On November 4, 2004, the City of Methuen moved to strike the affidavit, arguing that it impermissibly asserts legal conclusions, is argumentative, and relies on inadmissible evidence. The City also moved to supplement its pleadings with an affidavit submitted by Bruce MacDougall rebutting Reiter's opinions. In turn, Beal sought to supplement Reiter's affidavit. The motion to strike the Reiter affidavit is DENIED, as the court is perfectly capable of distinguishing admissible from inadmissible expert opinion. The City's motion to supplement isALLOWED. Beal's motion to supplement is also ALLOWED.
During discovery, Blache refused to answer questions during a deposition, asserting his Fifth Amendment privilege against self-incrimination. On September 7, 2004, the court denied a motion to compel brought on Beal's behalf, observing that "Blache's refusal to answer questions causes little prejudice to Beal because, unlike in a criminal proceeding, in a civil action an adverse inference may be drawn from a party's assertion of the privilege. See Mitchell v. United States, 526 U.S. 314, 328 (1999); Baxter v. Palmigiano, 425 U.S. 308, 318 (1976)."
Beal's Motions for Summary Judgment
On August 18, 2000, Blache responded to a reported disturbance involving Beal. With a supervisor's permission, Blache placed Beal in protective custody. While Beal was in Blache's custody, he raped her. That same day, after Beal lodged a complaint, Blache was placed on administrative leave. On June 28, 2001, after being indicted, Blache was suspended without pay. On October 10, 2002, he was convicted of rape and received an eight to ten year state prison sentence. Blache's appeal of his conviction is pending in the Massachusetts Appeals Court.
(a) The Fraudulent Conveyance Claim
In 1999 the Blaches purchased a home in Methuen for $205,000, taking title as tenants by the entirety. On March 20, 2002, after his indictment, but prior to his trial, David Blache conveyed his interest in the house to Martha Blache for the nominal sum of $100. Martha Blache subsequently sold the house (which was listed at $309,000). The Uniform Fraudulent Transfer Act (UFTA), G.L. c. 109A, § 5(a)(2)(ii), invalidates a transfer made with the intent to defraud a creditor with respect to an existing or future claim.
5(a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation: . . .
(2) without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor: . . .
(ii) intended to incur, or believed or reasonably should have believed that he would incur, debts beyond his ability to pay as they became due.
Section 5(b) of the UFTA sets out a number of specific factors to be considered in determining the intent to defraud including the relationship between the debtor and the transferee, the likelihood that the debtor at the time of the transfer faced a potential lawsuit, the value of the consideration received, and whether the transfer effectively depleted the debtor's assets.
The Blaches do not dispute the facts surrounding the conveyance or the conclusiveness of Beal's showing of an actual intent to defraud. Rather, they argue that Martha Blache's contribution to the purchase, improvement, and maintenance of the home so far exceeded the contribution of David Blache that she has an equitable claim to a larger portion of the profits on the sale of the home than the presumptive half-share to which she is entitled as a spouse and tenant by the entirety. Cf. United States v. 221 Dana Avenue, 261 F.3d 65, 73 (1st Cir. 2001). This proposition is somewhat doubtful, as Martha Blache was a knowing participant in the fraudulent transfer. Cf. United States Fidelity Guaranty Co. v. Sheehan, 308 Mass. 321, 324-325 (1941). Nonetheless, Beal is not now seeking a ruling as to the amount of damages to which she is entitled, only a determination of liability.
(b) David Blache's Liability
Beal also seeks to collaterally estop David Blache from contesting her claims of assault and battery, intentional infliction of emotional distress, and violation of the federal and state civil rights acts. Issue preclusion prevents the relitigation of issues actually adjudicated in a prior action between the same parties or their privies. Blanchett v. School Comm. of Westwood, 427 Mass. 176, 179 n. 3 (1998). The offensive use of collateral estoppel by a plaintiff seeking to prevent a defendant from relitigating an issue that the defendant has unsuccessfully litigated previously against another party is an accepted practice. Bar Counsel v. Board of Bar Overseers, 420 Mass. 6, 9 (1995). For the doctrine to apply, there must have been a final judgment on the merits in the prior proceeding. Commissioner of the Dept. of Employment Training v. Dugan, 428 Mass. 138, 142 (1998). Moreover, the issue sought to be precluded must have been essential to the prior judgment.Bannister v. Commonwealth, 411 Mass. 130, 131 (1991). The party invoking issue preclusion has the burden of showing that the issue to be precluded was actually litigated and adjudged. Day v. Kerkorian, 61 Mass. App. Ct. 804, 809 (2004). Finally, "for collateral estoppel to preclude litigation of an issue, there must have been available some avenue for review of the prior ruling on the issue." Sena v. Commonwealth, 417 Mass. 250, 260 (1994). See also Restatement (Second) of Judgments § 28 (1982) (same).
The federal civil rights claim against Blache is framed as a violation of substantive due process, specifically the invasion of Beal's right to bodily integrity. See Rogers v. City of Little Rock, 152 F.3d 790, 796-797 (8th Cir. 1998) (officer's rape of a detained motorist was an arbitrary and outrageous denial of substantive due process). The state civil rights act authorizes a cause of action against any person who by threats, intimidation, or coercion interferes with another person's exercise of rights secured by the Constitution or laws of the Commonwealth of Massachusetts or the United States. See O'Connell v. Chasdi, 400 Mass. 686, 693-694 (1987) (gender discrimination and sexual harassment).
As a preliminary matter, there is no bar against giving a criminal conviction preclusive effect in a civil proceeding.See Aetna Casualty v. Niziolek, 395 Mass. 737, 742 (1985) ("We hold, therefore, that 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."). Here, the elements required for the offensive use of collateral estoppel are present: (1) a final judgment on the merits; (2) for which a finding of Blache's culpability was an essential component; and (3) which judgment is reviewable on appeal. Blache does not argue otherwise, but rather maintains that because his appeal has yet to be heard (and determined adversely), the invocation of collateral estoppel is premature. The argument is mistaken as a matter of law: a trial court judgment is final and has preclusive effect regardless of the fact that it is pending appeal. O'Brien v. Hanover Ins. Co., 427 Mass. 194, 201 (1998).
The City of Methuen's Motion for Summary Judgment
(a) Factual Background
Beal's suit against the City of Methuen is not as clearly articulated as is the suit against Blache. Beal makes reference to the "policy and custom" theory of municipal liability approved by the Supreme Court in Monell v. Department of Social Services, 436 U.S. 658 (1978), but from the facts adduced by Beal, it is doubtful that the Monell doctrine in the literal sense applies. Under Monell, a municipality may be held liable under § 1983 where it causes an injury by implementing a constitutionally unsound policy, ordinance, or regulation, or where it condones an unconstitutional custom or practice so "persistent and widespread" as to have the force and effect of law. Id. at 691. See also Bd. of County Commissioners of Bryan County v. Brown, 520 U.S. 397, 404 (1997). The custom or policy must be the product of deliberate or conscious choice on the part of the municipality's "lawmakers or by those whose edicts or acts may fairly be said to represent official policy."Monell, 436 U.S. at 694. The standard of causation is quite high: the municipal custom or policy must be shown to have been the "moving force" behind the constitutional injury. Polk County v. Dodson, 454 U.S. 312, 326 (1981). It is doubtful that Beal means to argue that the City of Methuen had a "persistent and widespread" custom or policy of employing rapists as police officers. Nor does Beal offer any evidence of a pattern of a failure to investigate civilian complaints of police misconduct on the part of the Methuen Police Department or the City of Methuen. Rather, the thrust of her argument is that the City should be forced to answer for the allegedly callous and indifferent manner in which Chief MacDougall investigated and resolved an earlier allegation of rape against Blache.
In her brief, Beal concedes that "it would be impossible for plaintiff to provide this Court with evidence concerning each and every instance in which Methuen failed to investigate citizens' complaints adequately. . . ." Brief, at 6.
To succeed on this theory, Beal must show that a policy implemented by a City decisionmaker (MacDougall) "cause[d]" a municipal employee (Blache) to violate her constitutional rights.City of St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988) (plurality opinion). Generally, a pernicious policy or custom is shown by acts of indifference on the part of a municipality's decisionmakers to a pattern of serial misconduct on the part of municipal employees. See, e.g., Kibbe v. City of Springfield, 777 F.2d 801, 805-806 (1st Cir. 1985). But municipal liability may be based on a single discretionary act where a key "decisionmaker possesses final authority to establish municipal policy with respect to the action ordered." Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986) (plurality opinion). Cf. Bryan County, 520 U.S. at 405 ("To the extent that we have recognized a cause of action under § 1983 based on a single decision attributable to a municipality, we have done so only where the evidence that the municipality had acted and that the plaintiff had suffered a deprivation of federal rights also proved fault and causation."). The City does not dispute that Chief MacDougall was as a matter of state law a high-level City official with policymaking authority in police matters. See Pembaur, 475 U.S. at 483; Oklahoma City v. Tuttle, 471 U.S. 808, 821-824 (1985) (plurality opinion). Hence, for present purposes, it will be assumed that if in his handling of the prior complaint against Blache, in choosing the level of discipline to impose, and in permitting Blache after being reinstated to resume unrestricted patrol duty, Chief MacDougall was deliberately indifferent to the constitutional rights of persons who might be harmed by Blache, his fault is attributable to the City.
A municipality cannot be held liable for the discretionary acts of lower-level municipal employees on a theory of respondeat superior. Collins v. Harker Heights, 503 U.S. 115, 122 (1992). But holding a municipality liable for the actions of high level officials does not implicate any theory of vicarious liability. This is because the acts of persons with final authority to establish municipal policy "may fairly be said to be those of the municipality." Bryan County, 520 U.S. at 404.
These are the underlying facts. Blache was hired as a police officer by the City of Methuen on August 8, 1995, after successfully passing a background check and a psychological examination. On September 8, 1997, a resident of Methuen, referred to in the pleadings as "S.T.," complained that Blache had raped her while he was on duty. Blache was immediately placed on administrative leave by MacDougall, who was then Chief. MacDougall referred S.T.'s complaint to the Essex County District Attorney's Office and asked that an investigation be conducted by State Police investigators attached to the District Attorney's Office. While department procedures mandated an internal investigation of civilian complaints, MacDougall believed that to avoid any conflict of interest, the better course was to refer S.T.'s allegation to outside investigators. As a result, MacDougall never interviewed S.T. or conducted his own investigation.
The State Police investigators and the District Attorney's Office eventually concluded that there was insufficient credible evidence to prove beyond a reasonable doubt that Blache had raped S.T. as alleged, and that no criminal prosecution was therefore warranted. This determination was made without interviewing Blache. Nonetheless, Blache was not fully exonerated. On the advice of his lawyer, Blache agreed to a "plea bargain" in order to save his job. He admitted to Chief MacDougall that he had engaged in consensual sex with S.T. while on duty. Chief MacDougall then issued a disciplinary order suspending Blache for one year without pay. Blache was given the opportunity to be reinstated if certain conditions were met. The order read as follows.
The State Police report indicated that the investigators had doubts about the credibility of S.T.'s version of events. There were disputes as to whether S.T. had socialized with Blache prior to the incident, as well as third-party allegations that S.T., a reputed police "groupie," had engaged in sexual conduct with other Methuen police officers.
Beal complains that the meeting in which Blache admitted to having had consensual sex with S.T. was convened "off-the-record" and that Chief MacDougall kept no notes of what was said. The issue of what Blache said at the meeting was not pressed in Beal's deposition of Chief MacDougall, although it is doubtful that any real questioning of Blache took place. "In Massachusetts, art. 12 of the Declaration of Rights requires transactional immunity to supplant the privilege against self-incrimination, even in the context of public employment."Carney v. City of Springfield, 403 Mass. 604, 610 (1988).
1. Effective December 1st, 1997, Officer David Blache is suspended without pay from the Methuen Police Department for a period of one year.
2. Officer Blache shall be subject to the right to be reinstated as a Methuen Police Officer after the serving of the one year suspension as follows:
(a) Officer Blache shall participate in a counseling program for a period of one year and shall, throughout this period, cause to be made reports at three month intervals through the counseling program that he in fact is continuing to participate in the program. Such reports shall be made to the Chief of Police.
(b) Prior to re-entry in the service as a Methuen Police Officer, Officer Blache shall undergo a fitness for duty medical and psychological evaluation designed and assigned by the Chief of Police. Officer Blache shall be required, to the satisfaction of the Chief, to pass such fitness for duty medical and psychological evaluation.
(c) For a period of one year, Officer Blache shall not commit any criminal acts or an act in the opinion of the Chief of Police to be an unbecoming conduct act. The commission of such criminal act or unbecoming conduct act shall bar Officer Blache from re-admittance.
(d) Officer Blache shall take any and all actions to assure that, at the time he is ready for re-admission as a Police Officer, there are no legal prohibitions to his carrying firearms and ammunition.
Upon completion of the one-year suspension, Blache was examined and tested by Dr. Paul Zeizel, a psychologist at the Center for Health Resources in Woburn, Massachusetts. Dr. Zeizel reported to the City that "based upon this testing of the candidate, I can recommend to the appointing authority that this individual be considered for a position in law enforcement with the Town [sic] of Methuen." After receiving Dr. Zeizel's positive report and determining that Blache had met all other conditions for reinstatement, Chief MacDougall restored him to the force.
The City can find only one of the quarterly counseling reports in its records. From the one extant report, it appears that Blache underwent couples' counseling rather than the counseling for inappropriate sexual behavior that Chief MacDougall apparently had in mind.
The heart of Beal's claim, as elaborated by Reiter (her expert), is that the City of Methuen, through the acts and omissions of Chief MacDougall, was deliberately indifferent to Beal's welfare (and the welfare of other female residents of the City). Specifically, Beal argues that MacDougall conducted an inadequate investigation of S.T.'s allegations against Blache and accepted Blache's assertion that his sexual conduct with S.T. had been consensual without ever speaking to S.T. According to Beal, the Chief then devised a flawed disciplinary plan, and after a year's suspension, albeit without pay, allowed Blache to return to the force without verifying whether he had fully complied with all of its terms. Finally, after having reinstated Blache, the Chief returned him to patrol duty without any restrictions or additional supervision. In an affidavit, Chief MacDougall explained his actions and thinking as follows:
Beal in her brief also attributes culpability to the Mayor of Methuen, but no facts are developed in support of the allegations against the Mayor.
[i]t was my decision upon notification of the S.T. allegation to place responsibility for this serious investigation with experienced investigators who had extensive history with sexual assault investigations. The Massachusetts State Police officers assigned to the Essex County DA's office had this experience and also had direct relationships with experienced
A.D.A.'s, forensic experts, and testing laboratories. Due to the seriousness of the allegation, I also felt that it was important to have this investigation completed by officers from outside the department. I felt it was in the best interests of the integrity of the investigation that Methuen officers not investigate one of their own on such a serious matter. The DA's office would need to prosecute the charge, should one be brought forward, so I felt it was best to request that the DA's office take the investigation from the start.
With a criminal investigation proceeding under the direction of the DA's office, it would not be proper for Methuen to be conducting a separate Internal Affairs investigation. Given my experience as a public safety officer, I determined that two such investigations (criminal and administrative) should not be conducted at the same time. Upon completion of the State Police investigation and the determination not to charge due to the lack of credibility of the complaining witness, it was my intent to then begin a Methuen Internal Affairs investigation and move forward administratively. Upon receipt of then Sgt. Gill's report, I contacted Officer Blache's attorney and so advised him of my intent. As I indicated in my affidavit, the attorney asserted Blache's Carney rights to immunity. I then called the First Assistant DA for Essex County and requested that he begin the process to secure said letters. It was at this stage that Officer Blache's attorney contacted me and he requested a meeting.
At the meeting, Officer Blache admitted to on-duty consensual sexual contact. Due to the evidence gathered by the state police of S.T.'s sexual encounters with Police officers in the Greater Lawrence area, it was decided that the rape charge would not be able to be sustained even administratively. Based upon the admission of the officer and the history of the complainant, it was determined that the best way to proceed was to administratively charge the officer with on-duty sexual conduct. From this decision came what I felt was a severe punishment agreement with multiple protections for the public.
(b) Supervisory Liability
Under Beal's theory of the case, to establish liability on the part of the City, it is necessary to first establish liability on the part of Chief MacDougall as Blache's ultimate supervisor. (Although Chief MacDougall is not named as a defendant in his official or personal capacity, the cases most relevant to Beal's claim are those that discuss supervisory liability under § 1983). A supervisor who implements an unconstitutional policy, or who engages in a custom or practice that causes a constitutional injury, or who displays a reckless or callous indifference to acts of misconduct on the part of his subordinates may be found liable under § 1983. Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581-582 (1st Cir. 1994). "[E]ven if a supervisor lacks actual knowledge of censurable conduct, he may be liable for the foreseeable consequences of such conduct if he would have known of it but for his deliberate indifference or willful blindness, and if he had the power and authority to alleviate it." Id. at 582; Wilson v. Town of Mendon, 294 F.3d 1, 6 (1st Cir. 2002).
"To demonstrate deliberate indifference a plaintiff must show (1) a grave risk of harm, (2) the defendant's actual or constructive knowledge of that risk, and (3) his failure to take easily available measures to address that risk." Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir. 1998). See Baker v. Monroe Township, 50 F.3d 1186, 1193 (3d Cir. 1995) (supervising officer knew of and acquiesced in the use of excessive force by officers executing a search warrant); Dobos v. Driscoll, 404 Mass. 634, 648-650 (1989) (supervisors knew or should have known of a trooper's violent propensities). Compare Clancy v. McCabe, 441 Mass. 311, 319-320 (2004) (supervisor's imposition of "weighty" disciplinary sanctions on a trooper accused of harassing female motorists, while short of an outright dismissal, did not amount to deliberate indifference as a matter of law — while more could have been done, perfect foresight is not the standard by which official conduct is judged). Finally, "deliberate indifference alone does not equate with supervisory liability; a suitor must also show causation." Camilo-Robles, 151 F.3d at 7. A plaintiff must show an affirmative link between the supervisor's failings and her injury. Lipsett v. University of Puerto Rico, 864 F.2d 881, 902 (1st Cir. 1988). Mere "cause-in-fact" is insufficient. McCabe, 441 Mass. at 321.
The McCabe case is instructive. In McCabe, a State Trooper on highway patrol detained a female motorist and illegally strip searched her while making lewd and suggestive comments and threats. Five years earlier, a departmental investigation had found the Trooper guilty of inappropriate and unprofessional conduct involving four female motorists stopped for questionable driving violations. (The misconduct involved unwarranted detentions, unwanted touchings, suggestive remarks, and threats of being arrested or cited if the women refused a date). McCabe, the Commissioner of Public Safety, after a "plea bargaining session" with the Trooper's lawyer, suspended the Trooper for six months without pay and required him to undergo psychological counseling. After serving the six-month suspension, the Trooper was returned to patrol duty without any restrictions or additional supervision. The plaintiff, as in this case, alleged that McCabe had acted with deliberate indifference to the constitutional rights of female motorists by not recommending to a trial board that the Trooper be terminated. The trial judge denied McCabe's motion for summary judgment and the Appeals Court affirmed. The Supreme Judicial Court, however, disagreed.
To demonstrate the triability of the deliberate indifference element, the plaintiff introduced the affidavit of Lou Reiter, a former Los Angeles deputy police chief with thirty-nine years of police experience, training, and professional involvement in police supervisory, management, and personnel practices. Reiter opined that McCabe "made a conscious choice to not use reasonable police supervisory techniques to change Rivera's attitude, behavior and performance deficiencies." One such technique, according to Reiter, would be committing Rivera involuntarily to professional psychological services. Other practices included evaluating citations to determine the percentage of females versus males stopped by Rivera; contacting females that Rivera stopped and inquiring about his conduct; and putting someone such as an undercover officer "in the field" as a motorist, to be stopped by Rivera so as to evaluate his behavior. Reiter stated that "[t]here is no indication that any of these [techniques] were even considered by the State Police and Commissioner McCabe."
However, even if McCabe's failure to take these or similar steps could be seen as negligent, it does not rise to the level of callous indifference. "Although . . . [McCabe] might have done more, such a rule is not the standard by which we judge [his] conduct." Shaw v. Stroud, 13 F.3d 791, 801 (4th Cir.), cert. denied, 513 U.S. 813 (1994). After conferring with Rivera's attorney and considering the best interests of all those involved, including the State police department, McCabe imposed a six-month suspension, a financially weighty punishment that cost Rivera an estimated $25,000. In addition, McCabe ordered Rivera to receive treatment through the department's stress unit for what he believed to be Rivera's emotional problems. We do not view these disciplinary actions as a "failure to take easily available measures" to address the risk that Rivera would reoffend. Moreover, there is no indication in the record that McCabe believed that if he allowed Rivera to return to active duty, the trooper would continue to harass female motorists.McCabe, 441 Mass. at 318-320 (footnote and internal citation omitted).,
Lou Reiter, the expert referenced in the McCabe case, is the same Lou Reiter who submitted an expert affidavit on Beal's behalf in this case.
The Court also was of the opinion that plaintiff had failed to show causation, that is, that McCabe's failure to impose harsher disciplinary measures was affirmatively linked to her injuries. As the Court observed, "mere cause-in-fact does not suffice to establish the required affirmative link. If that were the test, every depredation of this sort would give rise to [supervisory] liability, for every § 1983 claimant harmed by such employee conduct could 'point to something the [supervisor] "could have done" to prevent the unfortunate incident.'"McCabe, 441 Mass. at 321, quoting Jones v. Wellham, 104 F.3d 620, 627 (4th Cir. 1997).
There are distinctions between this case and McCabe. InMcCabe, the allegations involved repeated instances of misconduct. Blache was accused in a single, albeit very serious, incident. The investigation in McCabe had confirmed the allegations against the Trooper. The investigation into S.T.'s allegations against Blache had come to no firm conclusions. The Trooper in McCabe was suspended without pay for six months. Blache was suspended without pay for a year. While both the Trooper and Blache were required to submit to a psychological examination, the Trooper was virtually guaranteed reinstatement. Blache was not. His reinstatement was conditioned on his not committing "any criminal act or acts which in the opinion of the Chief would be unbecoming conduct." While MacDougall might be faulted for not investigating S.T.'s claims further on his own, rather than relying on the State Police investigation, or for having mistakenly believed that the punishment and conditions that he imposed were sufficient to insure the protection of the public, such fault as there was cannot reasonably be seen to constitute deliberate indifference. See Rogers, 152 F.3d at 799 (where the Chief of Police had handed out a ten day suspension without pay to an officer found to have engaged in consensual sex with a fellow cadet while on duty, neither the Chief nor the City could as a matter of law be found to have responded inadequately despite the officer's subsequent conviction for the rape of a female motorist).
I am not convinced by plaintiff's argument that Chief MacDougall's decision to refer the allegation against Blache to the District Attorney and the State Police rather than conducting his own investigation should be considered as evidence of deliberate indifference. Had the Chief kept the matter in-house and reached the same conclusion as the State Police investigators, I think it likely that his fear of being accused of a coverup would have been realized.
The deliberate indifference standard was set deliberately high by the Supreme Court to insure that § 1983 did not become a fount of constitutional tort liability. "We have emphasized time and again that '[t]he touchstone of due process is protection of the individual against arbitrary action of government,' . . . whether the fault lies in a denial of fundamental procedural fairness, . . or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective. . . ." County of Sacramento v. Lewis, 523 U.S. 833, 845-846 (1998). "[T]he Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process. . . . It is, on the contrary, behavior at the other end of the culpability spectrum that would most probably support a substantive due process claim; conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscienceshocking level." Id. at 849. See also Davidson v. Cannon, 474 U.S. 344, 347-348 (1986) (a merely negligent deprivation of life, liberty, or property, "simply does not approach the sort of abusive government conduct that the Due Process Clause was designed to prevent").
"Deliberate indifference," as it has come to be defined in the case law bespeaks of a state of mind reflecting a conscious disregard or callous indifference to an individual's rights, one sufficiently egregious to "shock the conscience." See Wood v. Ostrander, 879 F.2d 583, 588-589, 591 n. 8 (9th Cir. 1989) (finding liability for an officer's "deliberate indifference" and "callous disregard" for the physical safety of a woman whom he left stranded in a dangerous neighborhood); White v. Rochford, 592 F.2d 381, 382-383 (7th Cir. 1979) (same, officers' callous disregard for the safety of children who after their parents' arrest were left unattended on the shoulder of a busy freeway).See also Miga v. Holyoke, 398 Mass. 343, 351-352 (1986) (officers manifested "deliberate indifference" in leaving an intoxicated, semi-conscious, and suicidal detainee unattended despite warnings from other prisoners about her erratic behavior). As much as one might lament the failure of Chief MacDougall to fully apprehend Blache's potential dangerousness, or his failure to discipline Blache more severely, these failures simply do not rise to the level of a conscience shocking and callous disregard for the rights of others, as a finding of deliberate indifference would require.
Because I do not believe that the facts adduced by Beal would permit a finding of deliberate indifference, I have not addressed the issue of causation. I am, however, doubtful that any shortcomings in Chief MacDougall's handling of S.T.'s complaint against Blache could be shown to have been the "moving force" that caused the rape of Beal.
ORDER
For the foregoing reasons, the City of Methuen's motion to strike (Docket No. 40) is DENIED. The City of Methuen's motion to supplement (Docket No. 43) is ALLOWED. Plaintiff's motion to supplement (Docket No. 52) is also ALLOWED. Plaintiff's motion for summary judgment (Docket No. 38) is ALLOWED as to liability against David Blache for assault and battery, intentional infliction of emotional distress, and violation of plaintiff's rights under the federal and state civil rights acts. Plaintiffs motion is also ALLOWED as to liability on her claim of fraudulent conveyance against David Blache and Martha Blache. The City of Methuen's motion for summary judgment (Docket No. 29) isALLOWED.SO ORDERED.