Opinion
Civil Action No. 00-10376-GAO
May 15, 2003
REPORT AND RECOMMENDATIONS ON MOTIONS TO DISMISS
This is a civil rights case with pendent state law claims. The action is brought against some seven named Massachusetts State Police Officers, various and sundry "John Does", "Other Officials of the Commonwealth of Massachusetts", the Commonwealth of Massachusetts, the Town of Walpole, and various forensic examiners, including defendants Crowley, Kessler, and Evans.
Plaintiff has also brought suit against a forensic dentist, Dr. Lowell Levine, who resides in New York State.
The underpinnings of this case began with the murder of one Irene Kennedy in Walpole, Massachusetts. The crime scene search indicated that Mrs. Kennedy had multiple stab wounds, from which she died. A possible bite mark was observed on her body, and photographs of that bite mark were made. At some point during the investigation, investigators of the Massachusetts State Police focused their investigation towards the plaintiff, Edmund F. Burke. Plaintiff voluntarily provided certain forensic materials to the State Police, and voluntarily provided a dental impression to Dr. Crowley, then (and now) a forensic dentist assigned to the Medical Examiner's Office of the Commonwealth of Massachusetts. That dental impression, in turn, together with the photographs of the bite mark found on Mrs. Kennedy's body, was forwarded to Dr. Levine. Dr. Levine opined that the dental impressions voluntarily given to Dr. Crowley by plaintiff matched the bite marks observed on the body of the victim, Mrs. Kennedy. Based on that, and other information, the Massachusetts State Police, by and through the offices of the District Attorney, applied for and may have received an arrest warrant for the plaintiff. Plaintiff was subsequently arrested, and was held in custody. Thereafter, at or about the same time, a forensic DMA examination was conducted in a State of Maine laboratory, and that DNA examination apparently eliminated plaintiff as the killer. Plaintiff was released from custody, and the case was subsequentlynol prossed.
See note 1, supra.
Even now it is not settled that an arrest warrant issued. There is no question that the authorities applied for an arrest warrant. But plaintiff says that, in fact, the warrant was not issued, and that members of the Massachusetts State Police arrested the plaintiff without a warrant. At the present time, none of the defendants have proffered anything which indicates that the warrant applied for was, in fact, issued, and whether plaintiff's arrest was based on that warrant.
At or about the same time, the Massachusetts State Police applied for and received a search warrant to search the plaintiff's residence.
At bottom, plaintiff alleges that the conduct of the defendants, including defendants Crowley, Kessler, and Evans, caused his improper arrest, continued detention, and search of his premises, in violation of his Fourth Amendment rights and Fifth Amendment rights (Counts 1, 3, and 13). He also alleges pendent state law claims.
I.e., as to the moving defendants, violation of the Massachusetts Civil Rights Act (Count 4), False Imprisonment (Count 5), Malicious Prosecution (Count 6), Defamation (Count 7), Intentional Infliction of Emotional Distress (Count 9) Illegal Search, Execution, and Conversion (Count 10), Invasion of Privacy (Count 11).
There are no pendent state law claims brought against defendants Evans and Kessler.
Defendants Crowley, Kessler, and Evans, move to dismiss on a number of grounds, including qualified immunity and the ground that the plaintiff has not pleaded (and cannot make out) a claim against any of these defendants based on the facts alleged or the facts which could be shown. These motions to dismiss are discussed seriatim vis a vis defendants Crowley, Kessler, and Evans.
A hearing on the motions to dismiss was originally held on July 22, 2002. Thereafter, this court ordered plaintiff to file a further pleading delineating the precise nature of his claims against the moving defendants. See Docket # 176. That supplemental pleading was filed on or about August 30, 2002. (# 177). In the meantime, plaintiff had filed a motion to file a Third Amended Complaint (# 171). After a hearing thereon, that motion was allowed in part and denied in part on October 25, 2002. (# 185). Given the allowance of the filing of the Third Amended Complaint, a further hearing was held on the motions to dismiss referred to herein on November 17, 2002. Plaintiff made yet another submission in connection with his opposition to those motions to dismiss on January 2, 2003 — a submission later stricken by this court on motion of the defendants. See note 48, infra.
I. General Factual Allegations vis a vis Crowley, Kessler and Evans
To the extent that plaintiff brings claims against defendants Crowley, Evans, and Kessler, plaintiff alleges, in pertinent part (Third Amended Complaint):
9. The defendant Dr. Stanton Kessler is a Massachusetts State Medical Examiner, whose residence is at present unknown to the plaintiff.
10. The defendant Dr. Kathleen M. Crowley is an individual who has a usual place of business at the Office of the Commonwealth Medical Examiner, Albany Street, Boston, Massachusetts.
11. The defendant Dr. Richard J. Evans is an individual who has a usual place of business at the Office of the Commonwealth Medical Examiner, Albany Street, Boston, Massachusetts.
41. At all pertinent times, the defendant Dr. Richard J. Evans, M.D. was the Chief Medical Examiner of the Commonwealth of Massachusetts.
42. Dr. Evans, as Chief Medical Examiner is responsible for the supervision of employees in his department.
43. At all pertinent times, Dr. Stanton Kessler was a pathologist medical examiner who reported directly to Dr. Evans.
44. Sometime in or around 1995, Drs. Kessler and Evans hired Dr. Crowley to be the Massachusetts forensic odontologist. At that time, the position was part-time, 20 hours per week.
45. At all pertinent times thereafter, Dr. Kathleen Crowley was the sole forensic dentist in the regular employ of the Commonwealth of Massachusetts.
46. On the date she was hired Dr. Crowley had absolutely no employment experience whatsoever as a dentist of any kind, and no experience whatsoever with forensic matters. She had just graduated from the Boston University School of Medicine in 1995 with a pre-doctoral degree, and was looking for part-time work to help offset the cost of pursuing a career as a periodontist.
47. Between 1995 and 1998, Dr. Crowley worked 20 hours a week for the Commonwealth in the above described capacity, and attended a post graduate program in periodontology.
48. At no pertinent time did either Dr. Evans or Dr. Kessler take a personal role in training or supervising Dr. Crowley. Her entire on the job training consisted of being sent to seminars out of state, and being referred to the defendant Dr. Lowell Levine, to serve as a mentor.
49. Between 1995 and 1998, Dr. Crowley would drive to Albany on occasion to review cases with Dr. Levine. They became personally close, and Dr. Crowley took a personal social interest in Dr. Levine's wife and young child.
50. Dr. Stanton Kessler was the lead pathologist assigned to the Irene Kennedy homicide, and he was responsible for the autopsy. As such he was the highest ranking employee of the office to work on the investigation into the death of Irene Kennedy.
51. Almost immediately after Mrs. Kennedy was murdered, Dr. Kessler requested that Dr. Crowley participate in the investigation. Dr. Crowley had never before been asked to effectuate a comparison of human dentition to a bite mark left on flesh.
52. Dr. Crowley knew or should have known that she was not qualified to render an opinion as to any match that may have existed between the bite marks on the victim's breasts and Mr. Burke's dentition. According to Dr. Crowley, she immediately recognized her own limitations and requested Dr. Kessler's permission to involve Dr. Levine.
53. Notwithstanding her lack of qualification, Dr. Crowley became closely involved in the investigation into an alleged bite mark match. She obtained photographs of the bite marks on the victim, took molds of the victim's breasts, and took molds of the defendant's teeth.
54. On or about December 6, 2001, Dr. Crowley attempted to effectuate a comparison between the bite marks and Mr. Burke's dentition. At that time, Dr. Crowley either knew or should have known that there was no match between the two, and even if there was, Dr. Crowley herself was not qualified to render such an opinion to a reasonable scientific certainty.
55. Despite knowing there was no match between the bite marks and Mr. Burke's dentition, and knowing further that she was not qualified to render an opinion, Dr. Crowley repeatedly advised the Massachusetts State Police, including and specifically Lieutenant Martin, and others that the bite marks matched absolutely, to a reasonable scientific certainty. In making these statements, Dr. Crowley was intentionally fabricating an important forensic opinion.
56. Dr. Crowley further advised the State Police including Lieutenant Kenneth Martin, and Trooper Steven McDonald that she was prepared to testify in open court that they matched to a reasonable degree of medical certainty. She went so far as to state that she expected to be lead expert and that Dr. Levine's opinions were only necessary for backup.
57. Dr. Crowley lied to the state police for one simple reason: to further her own career. She believed her lies would escape detection because she believed Dr. Levine would back her up.
58. Dr. Crowley's behavior, including the above referenced fabrication of a forensic opinion, was thus a deliberate and intentional violation of the civil rights of the plaintiff Edmund Burke. Her conduct was a direct and proximate cause of Edmund Burke's incarceration and directly led to his continued incarceration after DNA evidence excluded him as a perpetrator. Her conduct caused Mr. Burke to lose a constitutionally protected interest in being free from arrest without probable cause.
59. At the arraignment of Mr. Burke, Assistant District Attorney Gerald Pudolsky told the court that two forensic dentists had formed an opinion with respect to Mr. Burke's guilt, and he specifically used Dr. Crowley's name.
60. On or about June 18, 2001, after much delay caused by her employer, the Commonwealth of Massachusetts, Dr. Crowley was deposed in this matter. At her deposition Dr. Crowley committed perjury concerning the extent of her involvement into the forensic investigation regarding Edmund Burke, and otherwise dissembled under oath, and on the record. A complete copy of the transcript of her testimony is appended hereto as Exhibit A and incorporated herein.
61. At her deposition, Dr. Crowley admitted her total lack of qualification to form an opinion of an alleged match between Mr. Burke's dentition and the marks allegedly left on Mrs. Kennedy's breast. (Tr. 75, 116, 138). She also admitted comparing photographs of the marks on Mrs. Kennedy's breast with Mr.Burke's dentition, though she refused to use the word "compare." (Tr. 111-118).
62. In this context, the false statements are as follows:
a. Dr. Crowley testified that she never drew any conclusions whatsoever, during the process of comparing the photographs to the molds (Tr. 111)
b. Dr. Crowley denied knowledge of Dr. Levine's preliminary findings made on Decembers, 2001 (Tr. 139)
c. Dr. Crowley stated further that any communications she had with Dr.Levine were strictly in her role as a student, (Tr. 162) and called herself "a silent observer." (Tr. 145)
d. Dr. Crowley even denied a general awareness of
Plaintiff's Third Amended Complaint was filed on or about September 5, 2002, but was not docketed pending ruling on plaintiff's motion to amend (# 171). That motion was allowed in part and denied in part (the latter to the extent that plaintiff sought to add yet another party as a party defendant) on or about October 25, 2002 (# 185). To date, the Third Amended Complaint has not been docketed.
It is not clear what the underscored allegation adds to the claims presented. In many respects, as we indicate infra, plaintiff, in his Third Amended Complaint, says far too little. And, in other respects, plaintiff says far too much with irrelevancies sprinkled hither and thither.
the goal of having Dr. Levine attempt to
effectuate a match (Tr. 157) and denied knowledge
of the overall law enforcement goals. (Tr. 177)
e. Dr. Crowley denied any actual knowledge that Dr. Levine even formed an opinion (Tr. 195) claiming only that she heard it from police (Tr. 187), and claiming never to have discussed it with him at any time. (Tr. 194-195)
f. Dr. Crowley denied ever articulating any opinion whatsoever about a possible match between Mr. Burke's dentition, and the marks allegedly placed on Mr. Kennedy's breast. (Tr. passim)
63. Proof that the statements described in paragraph above are false is set forth in the testimony of Massachusetts State Police Lieutenant Kenneth Martin, taken on August 29, 2001. A true copy of pertinent transcript pages. (Tr. 117-121) is appended hereto as Exhibit B.
64. Dr. Crowley's perjury, misrepresentation and distortion of the truth at her deposition had two intertwined goals. First she consciously intended to cover-up her own role in this matter. Second, she intended to thwart plaintiff's discovery into what she knew about the role of Dr. Levine, and to provide as much cover as she could for Dr. Levine.
65. On information and belief Dr. Crowley's immediate supervisors, the defendants Kessler and Evans offered her no training and guidance whatsoever. She has received no protocol for writing reports and no protocol for the conduct of examinations. On her own, she learned of the American Academy of Forensic Odontologists, which has established such protocols, but as of June 18, 2001, she was unfamiliar with their standards and admitted to having never read its manual.
66. Although Dr. Crowley obtained an accurate mold of Mr. Burke's dentition, she did not follow AFBSO protocol. She failed to take a number of routinely expected steps including requesting a dental history from Mr. Burke.
67. On information and belief, Dr. Crowley has had no training whatsoever into the importance of constitutional protections for innocent people, and the presumption of innocence. She has no understanding of the "probable cause" doctrine, and no training or guidance whatsoever relative to the importance of truth in the American adversary system of justice, has never had even introductory courses into constitutional law similar to those provided at the police academy.
68. Dr. Crowley's superiors knew or should have known that employing her and cloaking her with the powers of her office could create risk for citizens if she was not properly taught respect for the adversary system, and constitutional limitations of police powers. They did nothing to correct these deficiencies on procedure. Dr. Crowley was cloaked with powers similar to police, but with none of the training.
II. The Motions to Dismiss
As indicated above, defendants Crowley, Evans, and Kessler move to dismiss all claims in the Third Amended Complaint, including all federal claims, and defendant Crowley moves to dismiss all pendent state law claims. Defendants Crowley, Evans and Kessler contend that the Third Amended Complaint fails to state a claim upon which relief may be granted as to all claims brought, and, with respect to the civil rights claims, that these defendants are entitled to qualified immunity. These matters are discussed below in terms of the causes of actions asserted and the defendants against whom those causes of action are asserted.
The motions to dismiss were filed before the filing of the Third Amended Complaint, and were directed to the claims and factual allegations set forth in the Second Amended Complaint. For purposes of the motions to dismiss, however, the amendments set forth in the Third Amended Complaint are not material to the pending motions to dismiss.
Counts 1 and 3 as to defendant Crowley, and Count 13 as to defendants Evans and Kessler.
As previously indicated, there are no pendent state law claims brought against defendants Evans and Kessler.
Because of some inartful pleading, it appeared that defendant Crowley was being sued for damages in her official capacity, not her individual capacity. Based on that, defendant Crowley additionally moved to dismiss on Eleventh Amendment grounds. The Third Amended Complaint now makes clear that defendant Crowley is being sued in her individual capacity, not her official capacity, and the Eleventh Amendment argument is now moot.
III. Defendant Crowley
As stated in his Third Amended Complaint (¶ 57), plaintiff claims that the conduct of Dr. Crowley " . . . was a direct and proximate cause of Edmund Burke's incarceration and directly led to his continued incarceration after DNA evidence excluded him as a perpetrator." Plaintiff further contends that the actions of defendants Evans and Kessler, more precisely, the inactions of these defendants, also caused the arrest and continued detention of the plaintiff, as well as the allegedly illegal search of his premises.
In terms of negligent supervision of defendant Crowley, as alleged in Count 13 of the Third Amended Complaint.
Although the various and sundry counts set forth in the Third Amended Complaint seemingly are directed to defendants Evans and Kessler (except where individual defendants are specifically excluded), at the last hearing on the motions to dismiss, counsel for plaintiff indicated that plaintiff's entire case against defendants Evans and Kessler was bottomed on Count 13 alleging so-called negligent supervision within the context of the civil rights statutes, and should plaintiff not prevail on Count 13, liability vis a vis Evans and Kessler could not be found under the other counts.
Insofar as plaintiff brings civil rights claims against these defendants, all defendants and the plaintiff, in terms of their respective motions and/or oppositions to those motions, first address the matter of whether an objectively reasonable officer, performing discretionary functions, would have understood his or her conduct violated a clearly established constitutional right of the plaintiff. That issue, however, which addresses the matter of qualified immunity, cannot be addressed until it is first determined whether any conduct on the part of any of the moving defendants caused plaintiff to suffer a constitutional injury. See e.g., Abreu-Guzman v. Ford, 241 F.3d 69, (1St Cir. 2001).
And for purposes of this discussion, this court assumes that the claims under the federal civil rights statutes and the Massachusetts civil rights statute mirror each other, although there are differences. That is to say, the Massachusetts civil rights statute does not require a showing of "state action", but does require a showing that one's constitutional rights have been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by threats, intimidation, or coercion. E.g., Swanset Dev. Corp. v. City of Taunton, 423 Mass. 390, 668 N.E.2d 333, 337 (1996). Those differences, however, are not controlling vis a vis the motions to dismiss filed by these defendants.
There the Court stated (Id. at 73):
The analysis of a qualified immunity defense is identical for actions brought under § 1983 and Bivens. Graham v. Connor, 490 U.S. 386, 394 n. 9, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The Supreme Court has set forth a preferred method of analysis, most recently reinforced in Wilson v. Layne, 526 U.S. 603, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). First, the court must "determine whether the plaintiff has alleged the deprivation of an actual constitutional right." Id. at 609, 119 S.Ct. 1692, quoting Conn v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999). Second, the court must "proceed to determine whether that right was clearly established at the time of the alleged violation." Id. Only if these two questions are answered in the affirmative does the court address the particular conduct in question.
A. Pleading a Substantive Cause under Sections 1983 and G.L. c. 12, § 11 I
In the circumstances, this court finds and concludes that, in the limited context of a motion to dismiss, the substantive civil rights claims (Counts 1 and 4) brought against defendant Crowley clearly survive a motion to dismiss. At bottom, plaintiff alleges that the deliberate conduct of defendant Crowley fabricating evidence for the purpose of causing the arrest of the plaintiff without probable cause and which, in fact, caused the arrest of the plaintiff without probable cause, violated the plaintiffs Fourth Amendment constitutional right to be free from arrest in the absence of probable cause. It can hardly be gainsaid that a state actor who deliberately and purposely causes the arrest of another in the absence of probable cause violates the Fourth Amendment rights of the person so arrested and detained. Indeed, defendant does not contend to the contrary, her argument on this score simply being that plaintiff has failed to allege sufficient facts showing that her conduct "caused" the arrest, continued detention, and search of the premises, of the plaintiff.
As set forth above, pp. 3-8.
On this latter matter, however, plaintiff, at this stage, has met his burden. Under settled precedent, pleadings in civil rights case must be judged under the relaxed standard applicable to all civil cases set forth in Rule 8(a), F.R.Civ.P. That is to say, civil rights claims do not enjoy a "heightened pleading" standard. E.g. Leatherman V. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163 (1993). To the extent that defendant Crowley contends that the allegations are insufficient as a matter of law to show that her conduct "caused" the constitutional deprivations of which plaintiff complains, the factual allegations of the Third Amended Complaint — particularly ¶¶ 56-59 — clearly allege the factual underpinnings of a claim that, but for the conduct of defendant Crowley, plaintiff would not have been arrested, would not have been further detained after his initial arrest, and would not have suffered the search of his premises. The Third Amended Complaint clearly states a claim under Counts 1 and 4.
To wit:
56. Dr. Crowley further advised the State Police including Lieutenant Kenneth Martin, and Trooper Steven McDonald that she was prepared to testify in open court that they [the bite marks] matched to a reasonable degree of medical certainty. She went so far as to state that she expected to be lead expert and that Dr. Levine's opinions were only necessary for backup.
57. Dr. Crowley lied to the state police for one simple reason: to further her own career. She believed her lies would escape detection because she believed Dr. Levine would back her up.
58. Dr. Crowley's behavior, including the above referenced fabrication of a forensic opinion, was thus a deliberate and intentional violation of the civil rights of the plaintiff Edmund Burke. Her conduct was a direct and proximate cause of Edmund Burke's incarceration and directly led to his continued incarceration after DNA evidence excluded him as a perpetrator. Her conduct caused Mr. Burke to lose a constitutionally protected interest in being free from arrest without probable cause.
59. At the arraignment of Mr. Burke, Assistant District Attorney Gerald Pudolsky told the court that two forensic dentists had formed an opinion with respect to Mr. Burke's guilt, and he specifically used Dr. Crowley's name.
To be sure, it may well be that, viewed through a different prism, for example, in the context of a motion for summary judgment, or, upon trial, on a motion for judgment as a matter of law under Rule 50(a), F.R.Civ.P., that plaintiff will fall far short of establishing that the conduct of the defendant Crowley "caused" him to be arrested without probable cause, or "caused" him to be detained thereafter, or "caused" him to suffer a search of his premises. It is one thing to allege; it is quite another to show. At the present time, however, the facts are simply not clear. Even now, some three years after the events in issue, and two years after litigation was commenced, it has not been established whether the plaintiffs arrest was based on an outstanding warrant, or based simply on probable cause. Either way, plaintiff must, in order to prevail, show by a preponderance of the evidence that the conduct of defendant Crowley "caused" his arrest, his detention, and the search of his house. Causation within the meaning of Section 1983 must be read against basic tort law. Rodriguez-Cirilo v. Garcia, 115 F.3d 50, 52 (1st Cir. 1997). Under traditional tort concepts, an action (or inaction, as the case may be) can be said to have caused an injury when it can be fairly said that that action (or inaction) was asubstantial factor in producing the harm. E.g., Restatement (Second) of Torts § 433 (1965).
There is no question that an affidavit was prepared for purposes of obtaining a warrant from a judicial officer. See Docket # 67, Deposition Exhibit 32A through the top of Exhibit 32B. And it certainly appears that a warrant issued on that application. See Docket # 32, Deposition Exhibit 32 ("On Thursday, December 10, 1998, at 3:52 pm, Edmund Burke was arrested on a warrant for murder . . . ") and 33. And there is no question but that the search of the plaintiff's house was pursuant to a judicially ordered search warrant. Plaintiff, however, suggests that the arrest of the plaintiff was made by officers of the Massachusetts State Police based on probable cause alone, and defendants have not, to and through this date, suggested anything to the contrary.
There that Court observed (Id.):
To satisfy the second element, plaintiffs must show that the defendants' conduct was the cause in fact of the alleged deprivation. See Gutierrez-Rodriquez v. Cartagena, 882 F.2d 553, 559 (1st Cir. 1989). The issue of causation of damages in a section 1983 suit is based on basic notions of tort causation. See Maldonado Santiago v. Velazquez Garcia, 821 F.2d 822, 831 (1st Cir. 1987) ("Section 1983 imposes a causation requirement similar to that of ordinary tort law."). 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.
In this case, as we have indicated above, given the liberal construction of pleadings, plaintiff has fairly pleaded the causative link. But showing it — i.e., showing that the conduct of defendant Crowley can fairly be said to have been a substantial factor in producing the harm — is quite another matter. If, in fact, on the facts yet to be developed, it is shown that the arrest of the plaintiff was pursuant to a judicially issued warrant of arrest, then the record currently before this court is relatively bleak in terms of causation. Although the term "substantial factor in producing the harm" is not subject to a bright line test, we can fairly say that it does not mean that the conduct of the plaintiff must have been the sole cause of the harm. On the other hand, however, lest Section 1983 causation be equated and trivialized to the point of the errant horse shoe nail, it is not enough to simply say that defendant Crowley engaged in the conduct alleged and that, in addition to that, the plaintiff was thereafter arrested, jailed, and subjected to a search of his premises. From a pragmatic point of view, obviously not controlling at this stage of the case, if the plaintiff was arrested on the basis of a warrant issued as a result of the affidavit presented to the judicial officer, then it comes close to blinking reality to conclude that the neutral and detached magistrate, in issuing that warrant, gave any weight or consideration at all to that which defendant Crowley may or may not have opined. Qualified Immunity
Here, the arrest of the plaintiff, his continued detention, and the search of his premises.
For want of a nail a shoe was lost, for want of a shoe a horse was lost, for want of a horse a rider was lost, for want of a rider an army was lost, for want of an army a battle was lost, for want of a battle the war was lost, for want of the war the kingdom was lost, and all for the want of a little horseshoe nail.
Benjamin Franklin
The affidavit prepared in connection with the application for an arrest warrant (Docket # 67, Deposition Exhibit 32A through the top of 32B) consisted of some seventeen (17) pages of incident reports, was replete with matters and evidence suggesting that there was probable cause to believe that the plaintiff murdered Irene Kennedy. In terms of forensics and other indicia of probable cause, the applying officer indicated that:
On 12-01-98 Irene Kennedy was brutally murdered in Bird Park. A State Police K-9 unit conducted a track from the victim. The K-9 lead directly to Edmund Burkes' front door at 315 Pleasant St.Edmund was interviewed and he said that he had been sleeping all morning. Our investigation revealed two independent witnesses who saw him outside of his house in his yard in the morning to the murder. They also described the clothing he was wearing. He has denied owning clothing of this type.
Edmund has changed his story several times during the course of this investigation to try and explain his actions. They are all inconsistent.
Preliminary autopsy reports indicated that Irene Kennedy had been bitten on her breasts. These bites appear to be human. They were examined by Forensic Dentist Kate Crowley of the Medical Examiners Office and compared to impressions of Edmund Burkes' teeth. She requested that Dr. Lovell Levine examine them also. He is the leading expert in the country and has testified as such. He is a Forensic Dentist with over thirty years of experience. He determined that the marks were bite marks made by human teeth. He has also determined with reasonable scientific certainty that the they [sic] were made by Edmund Burke. (Emphasis added).
Based on the above facts, there is probable cause to believe that Edmund Burke entered Bird Park on the morning of 12-1-98 and brutally murdered Irene Kennedy. I am requesting a warrant for his arrest for murder.
To the extent that defendant Crowley contends that she is entitled to qualified immunity on the substantive civil rights claims (Counts 1 and 4), based on that which has been pleaded as set forth above, she has failed to show her entitlement to that immunity at this time and on the state of this current record.
The contours of qualified immunity have been addressed on numerous occasions by the United States Court of Appeals for this Circuit. More recently, that Court observed (lacobucci v. Bolter, 193 F.3d 14, 21-22 (1st Cir. 1999)):
Qualified immunity is a medium through which "the law strives to balance its desire to compensate those whose rights are infringed by state actors with an equally compelling desire to shield public servants from undue interference with the performance of their duties and from threats of liability which, though unfounded, may nevertheless be unbearably disruptive." Buenrostro v. Collazo, 973 F.2d 39, 42 (1st Cir. 1992) (citing Harlow v. Fitzgerald. 457 U.S. 800, 806, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "Hence, state officials exercising discretionary authority are entitled to qualified immunity insofar as their conduct does not transgress clearly established constitutional or federal statutory rights of which a reasonably prudent official should have been aware." Id. To ascertain a defendant's eligibility for such immunity, a court must inquire into the objective legal reasonableness of the defendant's actions, gauged in connection with the mosaic of legal rules that were clearly established when the defendant acted. See Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). In operation, the outcome of this inquiry "depends substantially upon the level of generality at which the relevant 'legal rule' is to be identified." Id.
lacobucci asserts that Boulter, a policeman acting under color of his official authority, lacked probable cause to arrest him and thereby violated his Fourth Amendment rights. In this wise, he observes that a citizen's right to be free from arrest in the absence of probable cause has long been clearly established. See, e.g., Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142(1964). That observation sweeps so broadly, however, that it bears very little relationship to the objective legal reasonableness vel non of Boulter's harm-inducing conduct. See Wilson v. Layne, 526 U.S. 603, 119 S.Ct. 1692, 1699-1700, 143 L.Ed.2d 818 (1999). The "right the official is alleged to have violated must have been 'clearly established' in a more particularized, and hence more relevant, sense."Anderson, 483 U.S. at 640, 107 S.Ct. 3034. Our inquiry, then, reduces to whether a reasonable police officer, standing in Boulter's shoes, would have known that arresting lacobucci for disorderly conduct, under all the attendant circumstances, would contravene clearly established law. That inquiry must proceed in light of the commonly held understanding that probable cause exists only if the facts and circumstances within the arresting officer's knowledge "are sufficient to lead an ordinarily prudent officer to conclude that an offense has been, is being, or is about to be committed, and that the putative arrestee is involved in the crime's commission."Logue v. Dore, 103 F.3d 1040, 1044 (1st Cir. 1997).
Using those contours, it is clear that defendant Crowley, viewed against the prism of that alleged in the Third Amended Complaint, is not entitled to qualified immunity. It cannot be gainsaid that a state actor who, by falsehood or false statements, and for the primary, if not sole, purpose of furthering his or her own career, causes the arrest of another without probable cause, violates the Fourth Amendment rights. And that point was clearly established, not in the general sense, but in the specific sense, not only by this Circuit in Briggs v.Malley, 748 F.2d 715 (1st Cir. 1984), but again by the highest court of the land, the Supreme Court, when it affirmed theBriggs v. Malley holding by the First Circuit inMalley v. Briggs, 475 U.S. 335 (1986).
As defendant says in her memorandum in support of her motion to dismiss (# 139, p. 8), quoting from Malley v. Briggs, supra, and its progeny, "[q]ualified immunity 'provides ample protection to all but the plainly incompetent or those who knowingly violate the law." But that, at once, says too much and too little. And that is because plaintiff alleges, not without factual specificity, that she intentionally fabricated a forensic opinion which caused the arrest of the plaintiff for the purpose of furthering her caeer. See note 16, supra. It cannot be reasonably gainsaid that Crowley could not reasonably contend, if she did that which it is alleged that she did (the fabrication of evidence for the purpose of causing the arrest of the plaintiff), that she was unaware, subjectively or objectively, that that sort of conduct would violate the civil rights of the plaintiff. On the current state of the record, defendant Crowley has not shown her entitlement to qualified immunity.
Pleading a Conspiracy Claim under Section 1983 (Count 3)
Notwithstanding that said immediately above vis a vis plaintiffs substantive claims against Crowley under Section 1983 (Count 2) and the Massachusetts Civil Rights Act (G.L. c. 12, § 111) (Count 4), plaintiff has not fairly pleaded a conspiracy to violate plaintiffs civil rights under Section 1983 as alleged in Count 3 and the remainder of the allegations of the Third Amended Complaint.
It goes without saying that, in order to establish a conspiracy, plaintiff must allege sufficient facts that the defendant Crowley agreed with others, tacitly or otherwise, to violate plaintiff's civil rights. Vague and conclusory allegations of the existence of a conspiracy are not enough to sustain a plaintiff's burden — a complaint must contain factual allegations suggesting that the defendants reached a meeting of the minds. See e.g., Amundsen v. Chicago Park Dist., 218 F.3d 712, 718 (7th Cir. 2000); Francis-Sobel v. Univ. of Maine, 597 F.2d 15, 17 (1st Cir. 1979); Slotnick v.Garfinkle, 632 F.2d 163, 166 (1st Cir. 1980) (affirming dismissal because complaint "neither elaborates nor substantiates its bald claims that certain defendants 'conspired' with one another"). That is to say, merely asserting the existence of a conspiracy by pleading the conclusory word, "conspiracy', does not make the day.E.g. Hanania v. Loren-Maltese, 212 F.3d 353, 356 (7th Cir. 2000).
In this case, that is all that plaintiff has alleged. In Count 3, plaintiff simply alleged:
81. By having engaged in the conduct described above, the Defendants conspired to deprive Mr. Burke of the equal protection of the law or of the equal privileges and immunities under the law, and they acted in furtherance of the conspiracy, which resulted in the injury to Mr. Burke described above, in violation of 42 U.S.C. § 1983. (Emphasis added).
That conclusory allegation, however, stands alone. There is not a single, solitary allegation of a fact in the 26 pages, more or less, of the Third Amended Complaint which even touches upon any meeting of the minds, tacitly or otherwise, between defendant Growley and any other person. To the contrary, the entire thrust of the case against Crowley is that she, on her own, in order to advance her career, fabricated a forensic opinion. There is nothing alleged whatsoever that she shared her alleged scheme with any other defendant or person. Indeed, plaintiff specifically alleges (Third Amended Complaint, ¶ 57), contrary to any notion that defendant Crowley shared a common design or scheme with the other defendants, most of whom are state police officers, that she "lied" to the state police as well. Plaintiff's use of the magic talisman, "conspired", in Count 3, against a backdrop of an allegation that it was the "Defendants" (without any specificity as to which defendants, if any) who so conspired, fails to meet the requirements of established law in this Circuit, Francis-Sobel, supra, andSlotnick, supra, that a bare minimum of facts must be pleaded in support of a conspiracy claim.
"Dr. Crowley lied to the state police for one simple reason: to further her own career." (Emphasis added).
Although the holdings in Francis-Sobel, supra, andSlotnick, supra, preceded the holding in Leatherman V.Tarrant County Narcotics Intelligence Coordination Unit, supra, this court concludes that nothing in the latter case undermines that which was said in Francis-Sobel andSlotnick, which is the law of this Circuit. It is one thing to say, as did the Leatherman Court, that there is no "heightened pleading" requirement for Section 1983 cases. But the rationale ofFrancis-Sobel and Slotnick did not mean to suggest any sort of heightened pleading requirement sui generis to Section 1983 claims. To the contrary, the First Circuit concluded, and rightfully so, that the mere use of the talisman, "conspiracy", or "conspired", does not even give fair notice under Rule 8, F.R.Civ.P.
Not only has plaintiff failed to allege one fact showing that defendant Crowley agreed with others to do that which plaintiff says that she did, but, during the course of two arguments on the motions, counsel for the plaintiff was unable to point to one fact suggesting such an agreement.
B. Pleading a Claim of False Imprisonment (Count 5)
For essentially the same reasons set forth above, pp. 10-16, with respect to Counts 1 and 4 (substantive civil rights claims), plaintiff states a claim for relief under Count 4 alleging false imprisonment. Counts 1 and 4, the substantive civil rights claims, are bottomed, in part, on the basis of the claims, and the facts as pleaded in support of those claims, that defendant Crowley fabricated forensic evidence and caused the arrest and detention of the plaintiff without probable cause. To that extent, plaintiff pleads the causal relationship required. And for the reasons set forth with respect to qualified immunity, above, if Crowley fabricated evidence which caused the arrest and detention of plaintiff without probable cause, then she simply has not made out her claim to entitlement of qualified immunity.
C. Pleading a Claim of Malicious Prosecution (Count 6)
In Count 6, plaintiff brings a malicious prosecution against the defendant Crowley. Under settled Massachusetts law, to make out a claim for malicious prosecution, a plaintiff must show:
All defendants in their moving papers suggest that in order for a malicious prosecution claim to be cast and brought under Section 1983, it must be shown that the prosecution was the functional equivalent of a Fourth Amendment violation. In this Circuit, that is undoubtedly true, see Meehan v. Town of Plymouth, 167 F.3d 85 (1st Cir. 2001), but it is also beside the point. Count 6 is a pendent state law claim, and plaintiff does not invoke Section 1983 based on a notion of malicious prosecution.
"(1) the institution of criminal process against the plaintiff with malice; and (2) without probable cause; and (3) the termination of the criminal proceeding in favor of the plaintiff." J.R. Nolan L.J. Sartorio, Tort Law § 77, at 88 (2d ed. 1989).See also Beecy v. Pucciarelli, 387 Mass. 589, 593, 441 N.E.2d 1035 (1982); Gutierrez v. Massachusetts Bay Transportation Authority, 437 Mass. 396, 772 N.E.2d 552, 562 (2002).
In this case, plaintiff properly alleges that the institution of criminal process against him was made with malice, without probable cause, and that the criminal proceedings were terminated in his favor. That is to say, plaintiff alleges that Crowley caused the prosecution to be commenced based on fabricated forensic evidence — evidence which was fabricated solely for the purpose of advancing her own career. That clearly states a claim for malicious prosecution under Massachusetts law.
In terms of what constitutes the "initiation" of a prosecution, the holding in Ziemba v. Fo'cs'le, 19 Mass. App. Ct. 484, 475 N.E.2d 1223 (Mass.App.Ct. 1985), is instructive. In that case, non-state actors caused the plaintiff to be arrested by Nantucket police. In concluding that it was not the non-state actors who initiated the procecution, that Court observed, inter alia (Id., at 488):
Neither those facts nor the inferences which could reasonably be drawn therefrom can support a finding that Dorothy demanded or directed the police to arrest David and Sarah, that she furnished the police with false information to influence their actions, or that the police did not exercise their independent discretion in arresting David and Sarah. (Emphasis added).
In this case, of course, plaintiff specifically alleges that defendant Crowley gave the police and prosecutors false — indeed, fabricated — evidence for the purpose of causing the arrest and prosecution of the plaintiff.
It may well be, in truth and fact, of course, that there was an intervening and superseding cause to the initiation of the prosecution, consisting of an independent assessment by a prosecutor ( e.g., an Assistant District Attorney) based on considerations wholly divorced from that which defendant Crowley said or did not say. But none of the parties have proffered anything on that score up until the present time. As noted, even now none of the parties are sure whether the arrest of the plaintiff was based on a warrant, or was based on probable cause alone.
D. Pleading a Claim of Defamation (Count 7)
In Count 7, plaintiff generally alleges that the " . . . defendant, jointly and severally, published false statements about the plaintiff" which exposed plaintiff to public hatred, ridicule and shame. In an earlier paragraph (¶ 33) of the Third Amended Complaint (¶ 33), plaintiff specifically alleged:
That same evening [December 10, 1998 — the date that the defendant was arrested], some of the defendants held a news conference and virtually announced to the world that Mr. Burke was guilty of murder. During their news conference, the defendants leaked major details of their alleged investigation. (Emphasis added).
Under controlling Massachusetts law, to make out a claim for defamation, a plaintiff must allege and be able to prove, among other things, that a defendant published a defamatory statement. E.g., Zortman v. Bildman, 1999 WL 1318959 *14 (Mass.Super. 1999).
There that court observed (Id.):
The elements of a defamation claim include (1) a false and defamatory communication (2) of and concerning the plaintiff which is (3) published or shown to a third party." Dorn v. Astra USA, 975 F. Supp. 388, 396 (D.Mass. 1997), citing McAvoy v. Shufrin, 401 Mass. 593, 597, 518 N.E.2d 513 (1988). (Emphasis added).
During the course of oral arguments, plaintiff, by and through counsel, eschewed any suggestion that defendant Crowley uttered any statements at the news conference referred to in Paragraph 33 of the Amended Complaint. Plaintiff has not pleaded or otherwise suggested that she was even at that news conference, or that any utterance made at that news conference consisted of any statements traceable to her.
In his opposition to the motions to dismiss (Plaintiff's Omnibus Opposition to Motion to Dismiss Brought By Kathleen Crowley and Stanton Kessler (# 153, p. 9, Part D)), plaintiff specifically allows: "Plaintiff concedes that Dr. Crowley never spoke to the news media directly."
In this case, plaintiff has not pleaded, and, from all that plaintiff by and through counsel has said during the course of oral arguments, cannot show, that the defendant Crowley, in any shape or manner, published, or caused to be published, any statement, much less a defamatory statement, or that the defendant Crowley imparted any information to any person or persons at that news conference for the purpose of having that person or persons publish that which was imparted to them by her. As a general rule, it appears that Massachusetts' courts require more than conclusory allegations to support a defamation action. As recently observed by Judge Lasker of this court (Dorn v.Astra USA, 975 F. Supp. 388, 395-396 (D.Mass. 1997)):
Nevertheless, the defamation claim must be dismissed because plaintiffs have failed to state a claim. The Massachusetts Supreme Judicial Court has stated that defamation traditionally is a disfavored action, and that "courts have applied a stricter standard to complaints for defamation by requiring defamation plaintiffs to plead the elements of their claims with specificity in order to survive a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)." See Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 432 n. 7, 583 N.E.2d 228, 231 n. 7 (1991); Phantom Touring, Inc. v. Affiliated Publications, 953 F.2d 724, 728 n. 6 (1st Cir), cert. denied, 504 U.S. 974, 112 S.Ct. 2942, 119 L.Ed.2d 567 (1992) ("a defendant is entitled to knowledge of the precise language challenged as defamatory, and the plaintiff therefore is limited to its complaint in defining the scope of the alleged defamation"). To survive a motion to dismiss, a defamation plaintiff must plead: (1) the general tenor of the libel or slander claim, along with the precise wording of at least one sentence of the alleged defamatory statement(s); (2) the means and approximate dates of publication: and (3) the falsity of those statements. Pattison v. Town of South Hadley, No. 92-12378-Z, 1993 WL 343675 (D.Mass. Aug.30, 1993); See Eyal, 411 Mass, at 431-34, 583 N.E.2d at 231-33; See White v. Spence, 5 Mass. App. Ct. 679, 685-86, 369 N.E.2d 731, 735 (1977). The elements of a defamation claim include (1) a false and defamatory communication (2) of and concerning the plaintiff which is (3) published or shown to a third party. McAvoy v. Shufrin, 401 Mass. 593, 597, 518 N.E.2d 513, 517 (1988). (Emphasis added).
In this case, plaintiff has pleaded nothing whatsoever even touching upon an allegation that the defendant published anything — much less that she published, or caused to be published, a defamatory statement of or concerning the plaintiff. And he has pleaded nothing which even remotely suggests that those who did publish anything at the news conference referred to in the Third Amended Complaint said anything whatsoever as to matters imparted to them (whomever they might have been) by the defendant Crowley. Plaintiff fails to state a claim for defamation vis a vis defendant Crowley under Count 7.
E. Pleading a Claim of Intentional Infliction of Emotional Distress (Count 9)
Defendant Crowley agrees that liability for intentional infliction of emotional distress can attach upon a showing of conduct where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Defendant Crowley seems to suggest, however, that liability cannot be predicated upon "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." That much is given. But, if, as alleged, defendant Crowley fabricated false forensic evidence solely for the purpose of fostering her own career, and that fabrication "caused", in the legal sense of the word, plaintiff's arrest and detention without probable cause to believe that plaintiff committed any offense, then, in this court's view, plaintiff has fairly pleaded a claim for intentional infliction of emotional distress under Massachusetts law.
Memorandum of Law in Support of Her Motion to Dismiss (# 139, p. 17).
See pp. 11-12, supra.
Of course, whether the ultimate trier of fact would determine that the conduct of defendant Crowley, whatever that conduct might have been shown by competent proof, rises to the level of conduct which is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community, is a matter which this court cannot reach at this time. The motion to dismiss only focuses on the pleading of this claim, not the ultimate proof.
F. Pleading a Claim of Illegal Search and Seizure, Execution, and Conversion (Count 10)
To the extent plaintiff alleges in Count 10 that the defendant Crowley "caused" an illegal search of his residence without probable cause to do so, in the same manner as he alleges that the defendant Crowley "caused" his illegal arrest and detention without probable cause, plaintiff clearly states a claim upon which relief may be granted for the reasons set forth above with respect to Counts 1, 2, and 7. To the extent, however, that he seeks to hold plaintiff liable for improprieties in the execution of the search warrant and/or conversion of property taken during the course of that search, plaintiff concededly cannot show that the defendant Crowley, in any manner, shape, or form, participated in the execution of that search warrant or the seizure (and continued retention) of any property taken thereunder. To make out a claim of conversion under Massachusetts law, a plaintiff must be able to show that the defendant exercised dominion or control over personal property of another with no right to immediate possession. Kelley v. LaForce, 288 F.3d 1,
12 (1st Cir. 2002). To that extent, plaintiff fails to state a claim upon which relief may be granted under Count 9. Indeed, plaintiff, in his original opposition to the motions to dismiss, as well as in his supplemental opposition, makes no argument whatsoever, much less any principled argument, in opposition to defendant Crowley's motion to dismiss vis a vis Count 10.
There that Court observed (Id):
The tort of conversion requires an intentional or wrongful exercise of dominion or control over personal property of another by one with no right to immediate possession. See Third Nat'l Bank v. Continental Ins. Co., 388 Mass. 240, 446 N.E.2d 380, 383 (Mass. 1983); Restatement (Second) of Torts § 222A(1965).
Plaintiff's Omnibus Opposition to Motion to Dismiss Brought By Kathleen Crowley and Stanto Kessler(#153).
Plaintiff's Supplemental Opposition to Motion to Dismiss Brought By Kathleen Crowley and Stanton Kessler (# 177).
G. Pleading a Claim of Invasion of Privacy (Count 11)
In Count 11, plaintiff generally alleges that the "defendants" caused private facts about the plaintiff to be published throughout the community, in an attempt to make out a claim of invasion of privacy under Massachusetts law. Neither in his complaint nor in any supplemental pleading or argument has the plaintiff specified which of the defendants, if any, engaged in that alleged conduct. For that reason, alone, plaintiff fails to state a claim against the defendant Crowley for precisely the same reasons as set forth above, pp. 20-22, with respect to the defamation count (Count 7), since invasion of privacy, not unlike defamation, requires some allegation that the defendant "published" the alleged private facts. Dorn v. Astra USA, supra, at 396. Moreover, notwithstanding defendant Crowley's motion to dismiss the invasion of privacy count (Count 11), plaintiff, in his original opposition to the motions to dismiss, as well as in his supplemental opposition, makesno argument whatsoever, again, much less any principled argument, in opposition to defendant Crowley's motion to dismiss vis a vis Count 11. Count 11 must be dismissed for failure to state a claim upon which relief may be granted.
As previously indicated, the Third Amended Complaint names some thirteen (13) plus defendants, including the Commonwealth of Massachusetts, two John Does (John Doe I and John Doe II), and"Various Other Officials of the Commonwealth of Massachusetts." (Emphasis added).
Plaintiff's Omnibus Opposition to Motion to Dismiss Brought By Kathleen Crowley and Stanton Kessler(#153).
Plaintiff's Supplemental Opposition to Motion to Dismiss Brought By Kathleen Crowley and Stanton Kessler (# 177).
H. Pleading a Claim of Professional Malpractice (Count 14)
In Count 14, plaintiff generally alleges that, inasmuch as defendant Crowley allegedly fabricated forensic evidence against him, defendant Crowley is liable to him for professional malpractice.
In the circumstances, plaintiff fails to state a claim for malpractice. Among other things, to state a claim for malpractice, the plaintiff must allege the existence of a physician-patient relationship between the plaintiff and defendant Crowley, and that, in the course of that relationship, the defendant breached a duty arising under that relationship. E.g., Mitchell v. United States, 141 F.3d 8, 13 (1st Cir. 1998). Plaintiff has not even pleaded, and he surely cannot show, the existence of that physician-patient relationship. Given that, and plaintiff's complete failure, in his original opposition to the motions to dismiss, as wellas in his supplemental opposition, makes no argument whatsoever vis a vis defendantCrowley's motion to dismiss the pendent malpractice claim (Count 14), Count 14 must bedismissed.
"Under Massachusetts tort law, a plaintiff in a medical malpractice suit bears the burden of proving by a preponderance of the evidence that a physician-patient relationship existed between the physician and the injured party, that the physician breached his or her duty of care, and that the breach was the proximate cause of the injury.See Blood v. Lea, 403 Mass. 430, 530 N.E.2d 344, 347 (1988); see also Poyser v. United States, 602 F. Supp. 436, 438 (D.Mass. 1984); Berardi v. Menicks, 340 Mass. 396, 164 N.E.2d 544, 546 (1960)." (Emphasis added).
Plaintiff's Omnibus Opposition to Motion to Dismiss Brought By Kathleen Crowley and Stanton Kessler(#153).
Plaintiff's Supplemental Opposition to Motion to Dismiss Brought By Kathleen Crowley and Stanton Kessler (# 177).
IV. Defendants Evans and Kessler
The sole count against defendants Evans and Kessler in the Third Amended Complaint is Count 13, alleging a violation of Section 1983 in terms of "supervisor" liability.
Although, throughout all of the counts, plaintiff does not particularize as to defendants, resting on the mere allegation of "defendants", plaintiff represented at the second argument on the motions to dismiss that the sole count against defendants Evans and Kessler was Count 13.
Defendants Evans and Kessler were, at all relevant times, the supervisors of defendant Crowley. Neither is a dentist by profession. Plaintiff concedes that neither Evans nor Kessler can be held liable on a theory of respondeat superior. See Monell v. Department of Social Services. 436 U.S. 658, 694 n. 58 (1978). Plaintiff nevertheless says that defendants Evans and Kessler are liable to him under Section 1983(1) because they "failed to discipline Dr. Crowley knowing that she violated the rights of Commonwealth citizens"; and (2) because they failed in their duty of training the defendant Crowley vis a vis her appointed duties.
Third Amended Complaint, p. 23, ¶ 118.
Plaintiff has made a host of conclusory allegations vis a vis the liability of defendants Evans and Stanton in ¶¶ 115 through 121 of the Third Amended Complaint. At the second hearing on defendants' motion to dismiss, however, plaintiff's claims were reduced to these two general principles.
Plaintiff has conceded that neither Evans nor Kessler knew of that which is currently attributable to the defendant Crowley until well after the arrest of the plaintiff and the subsequent nolle pros of the charges against him. For that reason, plaintiff cannot fairly show that the failure of defendants Evans and Kessler to discipline defendant Crowley "caused" any harm — constitutional or otherwise — to the plaintiff. To impose liability on one's supervisors, a plaintiff must be able to establish that the defendant's actions created "an 'affirmative link' between the conduct of the supervisor and that of the employee." Voutour v. Vitale, 761 F.2d 812, 820 (1st Cir. 1985); see also, City of Oklahoma City v.Tuttle, 471 U.S. 808, 824 n. 8 (1985). That is to say, a plaintiff must show that the action or inaction of a supervisor, in some manner, "caused" the injury of which a plaintiff complains. Plaintiff cannot make that showing here. Plaintiff has not cited any authority whatsoever suggesting that a single failure to discipline a subordinate imposes Section 1983 liability on a supervisor. Although some authorities suggest that a "persistent" failure to discipline might establish the existence of a custom or policy warranting supervisory liability under Section 1983, see e.g., DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998); Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995); Batista v. Rodriguez. 702 F.2d 393, 397 (2d Cir. 1983); Carter v. City of Philadelphia, 181 F.3d 339, 356 (3d Cir. 1999); Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 94 (1st Cir. 1994); Davis v. Lynnbrook Police Department, 224 F. Supp.2d 463, (E.D.N.Y. 2002), that is clearly not this case. In no manner can it be fairly said that the singularfailure of Evans and Kessler to discipline defendant Crowley well after the events in issue when they first learned about those events "caused' plaintiff any harm — much less harm of a constitutional nature.
"In this regard, we cannot condone the loose language in the charge leaving it to the jury to determine whether the alleged inadequate training would likely lead to "police misconduct." The fact that a municipal "policy" might lead to "police misconduct" is hardly sufficient to satisfy Monell's requirement that the particular policy be the "moving force" behind a constitutional violation. There must at least be an affirmative link between the training inadequacies alleged, and the particular constitutional violation at issue." (Emphasis added).
"[A] failure to train, discipline or control can only form the basis for section 1983 municipal liability if the plaintiff can show both contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents and circumstances under which the supervisor's actions or inaction could be found to have communicated a message of approval to the offending subordinate', Montgomery v. De Simone, 159 F.3d 120, 127 (3d Cir. 1998) (citingBonenberger v. Plymouth Township, 132 F.3d 20, 25 (3d Cir. 1997))."
"As an additional ground for finding this claim insufficient, the plaintiffs have failed to show how Betancourt's alleged failure to discipline Officer Rodriguez was affirmatively linked to Officer Rodriguez' alleged assault on Febus on April 14, 1990." (Emphasis added).
"A plaintiff can also prove such deliberate indifference by showing "that the municipality had notice of but repeatedly failed to make any meaningful investigation into charges that its agents were violating citizens 'constitutional rights.' DeCarlo, 141 F.3d at 61; Vann, 72 F.3d at 1049 (holding that a plaintiff 'may establish the pertinent custom or policy by showing that the municipality, alerted to the possible use of excessive force by its police officers, exhibited deliberate indifference'); Ricciuti, 941 F.2d at 123;Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) ("[M]unicipal inaction such as the persistent failure to discipline subordinates who violated civil rights could give rise to an inference of an unlawful municipal policy of ratification of unconstitutional conduct within the meaning of Monell.')." (Emphasis added).
So, too, with the guestion of training. Plaintiff does not, and cannot, contend that defendant Crowley received inadeguate training in connection with her assigned duties as a forensic dentist. To the contrary, as plaintiff specifically alleges in his Third Amended Complaint, p. 8, ¶¶ 46, 48, defendant Crowley came to the Medical Examiner's office as a graduate from the Boston University School of Medicine, the Medical Examiner's office dispatched defendant Crowley to seminars out of state, and she was specifically referred to defendant Dr. Lowell Levine, one of the leading forensic dentists in the nation, to serve as a mentor. It can hardly be said that defendants Evans and Kessler could have done more in this regard — particularly where defendant Crowley was the first, and, indeed, the only, dentist to be recruited to the Medical Examiner's office.
At bottom, plaintiff, by and through counsel at the second hearing on the motions to dismiss, contended that defendants Evans and Kessler were "deliberately indifferent" to the constitutional rights of others in general, and of the rights of the plaintiff in particular, by failing to provide Dr. Crowley with the functional equivalent of a course in constitutional law, including the topics of arrest, search and seizure, and probable cause.
In this court's view, this theory of liability has no foundation in the law. This court is unaware of any authority — and plaintiff has not even pretended to proffer any — suggesting that the Constitution of the United States imposes a duty on supervisors in a Medical Examiner's office to provide subordinates, including fellow physicians and dentists, with a crash course in constitutional law. It is one thing to say that those who supervise the doings of line law enforcement officials might be required to "train" line officers —, i.e., those officers who, on a day to day basis, confront the general citizenry, often in an adversarial or confrontational setting — on the basics of arrest policies, probable cause, and the constitutional limitations of the use of deadly force. See e.g. City of Canton v. Harris, 489 U.S. 378, 390 n. 10 (1989). But liability under Section 1983 can only be predicated on a showing that that which the supervisor did, or did not do, constituted a "deliberate indifference" to the constitutional rights of the citizenry. And that "deliberate indifference" can only be established upon a showing that it was (and should have been) obvious to the supervisor that the failure to train would result in the violation of the civil rights of others.
As accurately observed by one Court (Cornfield by Lewis v. Consolidated High School Dist. No. 230, 991 F.2d 1316, 1326-1327 (7th Cir. 1993)):
An allegation of a "failure to train" is available only in limited circumstances. To prevail, Cornfield must show that District 230's "failure to train its employees in a relevant respect evidences a 'deliberate indifference'" to the rights of students. City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989). Deliberate indifference itself is an elusive standard. The Supreme Court reasoned that policymakers would be deliberately indifferent when "in light of the duties assigned to the specific . . . employees[,] the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights." Id. In order to ensure that isolated instances of misconduct are not attributable to a generally adequate policy or training program, we require a high degree of culpability on the part of the policymaker. Coupled with a causation requirement, this standard ensures that the violation alleged is not too far removed from the policy or training challenged as inadequate. Taken together, these two considerations amount to a requirement that liability be based on a finding that the policymakers have actual or constructive notice that a particular omission that is likely to result in constitutional violations. Otherwise, we would risk creating de facto respondeat superior liability, which is contrary to Monell See Monell, 436 U.S. at 693-94, 98 S.Ct. at 2037-38. (Emphasis added).
The United States Court of Appeals for this Circuit has spoken in similar tones (Febus-Rodriquez v. Betancourt-Lebron, supra, at 92-93)):
With respect to claims of lack of proper police training, when implementing and maintaining a training program, in order to be found liable, a supervisor must demonstrate reckless or callous indifference to the rights of citizens See Voutour v. Vitale, 761 F.2d 812, 820-21 (1st Cir. 1985), cert. denied, 474 U.S. 1100, 106 S.Ct. 879, 88 L.Ed.2d 916 (1986); see generally Gutierrez-Rodriguez, 882 F.2d at 562. The plaintiffs have failed to show that Betancourt demonstrated the requisite reckless or callous indifference. There is no evidence that Betancourt actually knew that there were any problems with his recruitment practices or his training program. The plaintiffs have also failed to offer any evidence that Betancourt should have known that there were recruitment and training problems, and that he was indifferent to such problems. Betancourt's recruiting practices and his training program, on their face, do not reflect a conscious policy to hire incompetent officers and train them inadequately. See, e.g., Santiago v. Fenton, 891 F.2d 373, 382 (1st Cir. 1989). The plaintiffs did not proffer any evidence that these specific practices violated a legally mandated standard. See, e.g., Voutour, 761 F.2d at 821. Nor did plaintiffs show that these specific practices were inferior by the standards of the profession. See, e.g., Santiago, 891 F.2d at 382. The plaintiffs have also failed to introduce any evidence that there were previously any problems with officers other than Rodriguez being improperly recruited or inadeguately trained. Moreover, plaintiffs' own expert, Dr. Vales, does not opine that the implementation or maintenance of these recruiting or training practices constituted callous or reckless indifference. Rather, Dr. Vales states that the recruitment practices were "extremely lax" and officers were not "adequately trained." Perhaps the implementation of some of these policies was negligent, but even when we look at all of the asserted weaknesses taken together, we fail to see how a jury could conclude that Betancourt's implementation and maintenance of these recruitment and training policies reflected callous or reckless indifference to the constitutional rights of citizens. See, e.g., Bowen, 966 F.2d at 21; Manarite v. City of Springfield, 957 F.2d 953, 957-58 (1st Cir.), cert. denied, 506 U.S. 837, 113 S.Ct. 113, 121 L.Ed.2d 70 (1992); Santiago, 891 F.2d at 381-82. (Emphasis added).
On or about January 2, 2003, well after the second argument on the motions to dismiss, counsel for plaintiff mailed a letter and an attached "report by the National Association of Medical Examiners" to the chambers of this court for consideration by this court in connection with the motions to dismiss. By order of January 31, 2003 (# 203), this court allowed defendants' motion to strike that submission on a number of grounds, including, but not limited to, the fact that nothing in that report, insofar as this court could determine, assisted the plaintiff in any respect vis a vis the matters under consideration by this court. Significantly, however, for all that that report did say, itnever suggested that it was an accepted standard that supervisors in medical examiner's offices throughout the United States should offer their subordinates and fellow physicians training in the area of constitutional law.
And that same court added in a footnote (Id. at 93 n. 6):
We are somewhat troubled by Betancourt's failure to provide officers with training about how to deal with mentally handicapped persons. Still, we do not find that the need to extensively train officers about how to identify and deal with mentally handicapped persons is so obvious, that failure to give this training supports a finding of reckless or callous indifference to constitutional rights. (Emphasis added).
It is not obvious to this court, or, for that matter, obvious to anyone proffered by the plaintiff, that the failure of supervisors in medical examiner's offices to provide subordinates and fellow physicians therein training in the niceties of constitutional law in general, and the hornbook principles of the law of arrest, search and seizure, and Fourth Amendment
jurisprudence, in particular, would, more likely than not, result in the violation of the civil rights of others. And, indeed, not a single case suggests that to be the case. Accordingly, applying theWilson v. Layne, supra, approach, this court finds and concludes that plaintiff cannot show that this failure to train amounts to a constitutional violation under Section 1983.
In any event, even if plaintiff can make that case, defendants Evans and Kessler are entitled to qualified immunity. The analysis of the qualified immunity defense was well stated in Hatch v.Department for Children, Youth and Their Families (State of Rhode Island), 274 F.3d 12, 20-26 (1st Cir. 2001). There that Court observed, inter alia:
Determining whether qualified immunity is available to a particular defendant at a particular time requires a trifurcated inquiry. We ask, first, whether the plaintiff has alleged the violation of a constitutional right. If so, we then ask whether the contours of the right were sufficiently established at the time of the alleged violation. Finally, we ask whether an objectively reasonable official would have believed that the action taken or omitted violated that right. Starlight Sugar, Inc. v. Soto, 253 F.3d 137, 141 (1st Cir. 2001). We make these three inquiries in sequence, mindful that a single negative answer suffices to defeat the plaintiff's claim for damages. Id.
This court has already determined that plaintiff does not even pass the first element — i.e., ashowing that the action or inaction by defendants Evans and Kessler constituted a constitutional violation within the penumbra of Section 1983. Nevertheless, this court addresses the remaining two steps as well.
* * * * *
We start, as the Supreme Court has suggested, with the question of whether the appellant has alleged the violation of a constitutional right.
* * * * *
We now must determine whether the contours of the constitutional right that we have identified-a parent's right to custody in the absence of a case worker's reasonable suspicion of child abuse-were clearly established at the time of the critical events.
* * * * * The critical inquiry here is whether the dimensions of the right were sufficiently well-defined that a reasonable official would have understood that his actions violated that right. Anderson, 483 U.S. at 640, 107 S.Ct. 3034. This does not mean that a court must already have outlawed similar conduct; the test is satisfied if, viewed in the light of preexisting jurisprudence, the unlawfulness of the conduct is apparent, Id. We emphasize that this test is time-sensitive. Unless the law was clearly established at the time when an official acted, he "could not reasonably be expected to anticipate subseguent legal developments, nor could he fairly be said to 'know' that the law forbade conduct not previously identified as unlawful." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Absent such notice, the official is excused from liability for money damages under the doctrine of gualified immunity. Anderson, 483 U.S. at 646, 107 S.Ct. 3034. If such notice exists, however, the inguiry proceeds.
To determine the contours of a particular right at a given point in time, an inguiring court must look not only to Supreme Court precedent but to all available case law. See United States v. Lanier, 520 U.S. 259, 268-69, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997); Bucklev v. Rogerson, 133 F.3d 1125, 1129(8th Cir. 1998).
* * * * *
While the first two steps in the gualified immunity pavane deal with abstract legal principles, the final step deals with the facts of the particular case. The guestion here is whether Brown had reliable information, sufficient to support a reasonable suspicion of abuse, when he removed John from his father's custody.
In answering this guestion, it is important to understand the parameters of the gualified immunity defense. We have written that "the defense of gualified immunity offers sanctuary not only to government officials who act with impeccable propriety, but also to those who err but could not reasonably have understood that their actions infracted a prospective plaintiff's federally assured rights." Quintero de Quintero v. Aponte-Rogue, 974 F.2d 226, 228 (1st Cir. 1992). This means that an official is entitled to gualified immunity as long as "he had an objectively reasonable basis for believing that his conduct would not abridge the rights of others." lacobucci v. Boulter, 193 F.3d 14, 23 (1 st Cir. 1999). (Emphasis added)
In this case, plaintiff cannot show that the dimensions of the right which plaintiff posits — i.e., that supervisors in a Medical Examiner's office must train its employees and fellow physicians in the contours of Fourth Amendment jurisprudence — were sufficiently well-defined that a reasonable official would have understood that his or her actions violated the civil rights of others. Plaintiff has not proffered a single authority, and this court has found none, suggesting that it is error of constitutional magnitude not to train Medical Examiner's personnel on the parameters of constitutional law. Nor, for that very same reason, can plaintiff show that, from an objectively reasonable basis, either Evans or Kessler had reason to believe otherwise. In short, although entitled to only one strike, plaintiff has three. He has failed to establish the constitutional right bottoming his claims against Evans and Kessler. He has failed to show any legal authority suggesting otherwise. And he has failed to establish that defendants Evans and Kessler had any basis, objectively reasonable or otherwise, to believe that that failure to train, as alleged in the Third Amended Complaint and proffered at the hearings on the motions to dismiss, implicated constitutional considerations. Defendants Evans and Kessler are, accordingly, entitled to judgment as a matter of law on Count 13 — the only count in which they are charged in the Third Amended Complaint.
V. Conclusion
For the reasons set forth above, this court recommends that the district judge to whom this case is assigned:
The parties are hereby advised that under the provisions of Rule 72(b) of the Federal Rules of Civil Procedure and Rule 3(b) of the Rules for United States Magistrate Judges in the United States District Court for the District of Massachusetts, any party who objects to these proposed findings and recommendations must file specific and written objections thereto with the Clerk of this Court within 10 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this rule shall preclude further appellate review.See Keating v. Secretary of Health and Human Services, 848 F.2d 271 (1st Cir. 1988); United States v.Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir. 1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); see also, Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466(1985).
(1) Allow the motions to dismiss (## 141, 157) filed by defendants Kessler and Evans vis a vis Count 13 — the only count in the Third Amended Complaint brought against defendants Kessler and Evans;
(2) Allow the motion to dismiss (# 138) filed by defendant Crowley as to Counts 3 (conspiracy to violate civil rights), 7 (defamation), 10 (to the extent that count is bottomed on notions of an illegal execution of a search warrant and/or conversion), 11 (invasion of privacy), and 14 (medical malpractice); and, based on the current record,
(3) Deny the motion to dismiss (# 138) filed by defendant Crowley as to Counts 1 (substantive civil rights under Section 1983), 4 (substantive violation of the Massachusetts Civil Rights statute), 5 (false imprisonment), 6 (malicious prosecution), 9 (intentional infliction of emotional distress), and 10 (to the extent that Count 10 alleges that the defendant Crowley caused an illegal search.