Opinion
1784CV04031G
08-29-2018
Anthony SULLIVAN-WHITE et al.[1] v. COMMONWEALTH of Massachusetts et al.[2]
File Date: September 5, 2018
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS
Rosemary Connolly, Justice of the Superior Court The current litigation arises from the circumstances surrounding the placement of minor children A.S. and W.S. into foster care. Following Care and Protection proceedings that ultimately returned the children to their parents, A.S., W.S., their father Brian Sullivan, their mother Kelley Sullivan-White, their paternal grandmother Tonna Epstein, and their paternal step-grandfather Paul Epstein filed suit against the following defendants: Commonwealth of Massachusetts (Commonwealth); Linda Spears, Commissioner; Department of Children and Families (DCF); William Kennedy; Michael Burke; Shannon Snyder; Elise Richardson; Ann Marie Lynch; Josephine St. Saleh; Celeste Wilson; and Boston Children’s Hospital.
Due to the nature of the proceedings, the Court refers to the Plaintiffs by their initials.
The Plaintiffs allege 193 causes of action, including intentional infliction of emotional distress, negligence, deceit, defamation, perjury, loss of consortium, Racketeer Influenced and Corrupt Organization ("RICO") Act violations, "constitutional rights" violations, conspiracy to violate "constitutional rights," Fourth Amendment violations, and conspiracy to violate Fourth Amendment rights. Pursuant to Mass.R.Civ.P. 12(b)(6), defendants DCF and William Kennedy, Michael Burke, Shannon Snyder, Elise Richardson, Ann Marie Lynch, and Josephine St. Saleh (collectively referred to as the "Individual DCF Defendants") now move to dismiss all counts, against them, contending that the Plaintiffs failed to allege sufficient facts to plausibly state their claims and that the defendants are protected by sovereign, absolute, and qualified immunities. For the reasons set forth below, the motion to dismiss is ALLOWED in part and DENIED in part.
The Plaintiff’s Complaint states 187 causes of action but appears to have arrived at this total due to two errors in numbering. The Court has counted 193 causes of action.
The Complaint lacks any allegations of specific actions by Commissioner Spears; it is therefore presumed that Commissioner Spears has been named as a defendant only in her official capacity. See Harihar v. U.S. Bank Nat’l Assoc., 2017 WL 1227924 at *14 (D.Mass. 2017). A claim against Commissioner Spears in her official capacity is functionally identical to a claim against DCF. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) ("A suit against a state official in their official capacity "is not a suit against the official but rather is a suit against the official’s office ... As such, it is no different from a suit against the State itself"). Accordingly, "DCF" will refer to both Commissioner Spears and the Commonwealth.
BACKGROUND
The following is drawn from the allegations in the Complaint, which are assumed to be true for the purposes of this motion.
On December 23, 2014, parents Brian Sullivan and Kelley Sullivan-White brought their eleven-week-old son, A.S., to his pediatrician after A.S. had become ill and vomited. Finding only signs of dehydration, the pediatrician instructed the parents to bring A.S. to South Shore Hospital, where medical professionals confirmed that A.S. was dehydrated and gave him fluids. While determining the cause of his illness, he was administered what was described as a "traumatic spinal tap," which left A.S. "shrieking in pain." South Shore Hospital eventually transported A.S. and his parent Mrs. Sullivan-White to Children’s Hospital via an ambulance. The child’s father Mr. Sullivan and his grandmother, Tonna Epstein, followed the ambulance in their vehicle.
At Children’s Hospital, doctors ordered A.S. to undergo a CT scan in order to rule out spinal meningitis. While initially clear, the CT scan revealed a small amount of blood on A.S.’s brain upon a second review. Because his family was unable to explain any cause for the injury, Children’s Hospital staff filed a 51A Report with the Department of Children and Families (DCF).
A computed tomography (CT) scan makes use of computer-processed combinations of many X-ray measurements taken from different angles to produce cross-sectional images of specific areas of a scanned patient, allowing the user to see inside the patient.
G.L.c. 119, § 51A provides that a mandated reporter who "has reasonable cause to believe that a child is suffering physical or emotional injury resulting from: (i) abuse inflicted upon him which causes harm or substantial risk of harm to the child’s health or welfare ... shall file a written report with [DCF] detailing the suspected abuse ..."
By this time, twenty-four hours had elapsed since Mr. Sullivan first took A.S. to see his pediatrician. The parents, who had stayed with A.S. at the hospital, had not slept. Eventually, A.S. was moved to a room, where his parents also hoped to rest. At that time, DCF Social Worker William Kennedy arrived, demanding to speak with them. Explaining that they wanted to rest before speaking to him, the parents sought to postpone the interview with Mr. Kennedy. However, Mr. Kennedy informed them that they had to meet with him immediately. His demeanor became "aggressive and demeaning" as he told the parents that "because of them their baby was now blind and retarded and they better confess."
Mrs. Sullivan-White and Mr. Sullivan became "extremely upset" at what Mr. Kennedy told them, especially because it contradicted what they were told by medical professionals regarding A.S.’s condition. Mrs. Sullivan-White called her sister, a nurse, and Mr. Sullivan called his stepfather and A.S.’s grandfather, Paul Epstein, who is also an attorney and a named plaintiff in this action. Mr. Epstein came to the hospital and met with the family in A.S.’s hospital room. Mr. Kennedy objected to Mr. Epstein’s presence. Fortunately, at about this time, A.S.’s doctor informed the family and Mr. Kennedy that the blood would be reabsorbed and that A.S. should be "fine."
Again, Mr. Kennedy sought to. speak with Mr. Sullivan and Mrs. Sullivan-White. Over Mr. Kennedy’s objection, Mr. Epstein joined the parents in their conversation with Mr. Kennedy. While Mr. Kennedy began with general questions, delivered in a calm manner, his demeanor soon changed. He yelled at Mr. Sullivan and Mrs. Sullivan-White, telling them that their baby was going to be "blind and brain dead" so they "better confess." Mr. Kennedy then shook his hands and arms violently, telling the parents that "that’s what they did to their baby."
At this point, Mr. Epstein told Mr. Kennedy that his behavior was totally inappropriate and further that Kennedy’s information was contrary to the doctor’s prognosis for A.S. Mr. Kennedy then became aggressive and demeaning toward Mr. Epstein. Mr. Kennedy then sat down, "appear[ing] to be bothered by numerous tics" and "talking in sound bites that had no relation to the conversation." The complaint states that, based on the family’s interactions with Mr. Kennedy, they believed Mr. Kennedy to be "mentally ill" and agreed to make sure that Mr. Kennedy would not be with A.S. alone.
Unbeknownst to the family, Mr. Kennedy put in an order stating that medical staff was not to discuss A.S.’s condition with anyone other than himself. A.S.’s parents repeatedly asked A.S.’s nurse for updates about his condition. However, the nurse could only tell them that she did not know and that they would have to ask the doctor. Finally, Mr. Epstein requested the nurse to have the doctor talk to the family. About an hour later, the doctor arrived, followed by Mr. Kennedy. Mr. Epstein informed the doctor that Mr. Kennedy was giving the family false information about A.S.’s condition and that the family wanted to know A.S.’s actual condition. While Mr. Epstein said this, Mr. Kennedy stood behind the doctor, "mouthing and mimicking" Mr. Epstein.
Given the hospital’s 51A Report and Mr. Kennedy’s investigation, DCF commenced Care and Protection proceedings, seeking custody of both A.S. and his brother, twenty-two-month-old W.S., on December 24, 2014. After Mr. Kennedy informed the family of this, he told Mr. Sullivan, Mrs. Sullivan-White, and Mr. Epstein to leave A.S.’s room. Mr. Epstein declined, telling Mr. Kennedy that he would leave once Mr. Kennedy answered his questions. Mr. Kennedy stated he intended to call security and left the room.
Because of their concern regarding Mr. Kennedy’s behavior, the Plaintiffs decided they would deliver W.S. to "some other individual" at DCF’s local office. Mr. Epstein and Mr. Sullivan then left the hospital, but Mrs. Sullivan-White-who was still breast-feeding A.S.-decided to stay with A.S. Within minutes, however, two police officers came into A.S.’s room and informed Mrs. Sullivan-White that she would have to leave not only the room but the hospital campus. Accordingly, Mrs. Sullivan-White-without shoes, a jacket, or her pocketbook-was escorted outside to wait until her family returned to pick her up.
That evening, on December 24, 2014, DCF Social Worker Elaine Thurberg arrived at Mr. Epstein’s home. Mr. Epstein explained the events of the last day to her, and Ms. Thurberg gave him her card and told him to contact her on December 26th. Satisfied with Ms. Thurberg’s demeanor, Mr. Epstein advised the parents to contact Ms. Thurberg on December 26th and to bring W.S. to her then.
However, the next day, on December 25th, Mr. Kennedy and DCF Social Worker Elise Richardson came to Mr. Epstein’s residence, demanding A.S.’s older brother, W.S. Mr. Epstein informed Mr. Kennedy that W.S. was not present in his home. The Plaintiffs allege that Mr. Kennedy informed Mr. Epstein that if W.S. was not brought to him "that day" then W.S. would "never [be placed] with a family member." Mr. Kennedy and Ms. Richardson then left. However, they returned later that same night, at approximately 9:30 p.m., with four police officers. Mr. Kennedy accused Mr. Epstein of having W.S. and of knowing W.S.’s location-both of which Mr. Epstein denied.
Mr. Epstein then asked Mr. Kennedy, "[W]hy don’t you say what you said in front of these witnesses that if you don’t get the child tonight he will never go with a family member[?]"
Ms. Richardson, grinning, replied, "[W]e do that all the time and now [...] they will never go to family members." After this exchange, Mr. Epstein shivered, felt nauseated, and vomited.
The next day, on December 26th, Mr. Epstein e-mailed Ms. Thurberg and her supervisor, Jean Macchi. Ms. Macchi replied, explaining that Mr. Kennedy’s affidavit prevented her from placing the children with Mr. and Mrs. Epstein. However, she would attempt to place the children with family members or friends.
As previously decided, Mr. Epstein, Mr. Sullivan, and Mrs. Sullivan-White brought W.S. to DCF on Friday afternoon. Ms. Macchi placed W.S. with Mrs. Sullivan-White’s sister and A.S.-after his hospital release that day-with Mrs. Sullivan-White’s friend in Scituate. For the next four months, the parents of the children were only able to see their children-who were placed in separate locations-for one hour a week.
The Plaintiffs allege that Mr. Kennedy referred the case to the District Attorney’s office for potential criminal complaints. Because of this, DCF Social Worker Shannon Snyder informed Mr. Sullivan and Mrs. Sullivan-White that they could not regain custody of their children while the case was still in the District Attorney’s office.
Further, while A.S. was in DCF custody, the Plaintiffs were unable to get medical updates on A.S., so Mr. Epstein ordered A.S.’s medical records. Shortly after receiving the records, Ms. Snyder called Mr. Epstein and informed him that if he "ever ordered medical records again then [the Epsteins] would never get the children."
After this confrontation between the Epsteins and Ms. Snyder, Mr. Sullivan and Mrs. Sullivan-White asked Ms. Snyder to place their children with their grandparents, the Epsteins. Ms. Snyder informed Mr. Sullivan and Mrs. Sullivan-White, however, that she could not place the children with them as Mr. Epstein. "kept interfering with her." Ms. Snyder also stated that the grandparents were "suspects," even though DCF had been told that the grandparents had not seen A.S. and W.S. for three weeks prior to A.S.’s hospitalization. Nonetheless, Ms. Snyder stated that "as far as she was concerned [they] were still suspects."
At the beginning of February of 2015, Mr. and Mrs. Epstein were assigned Ms. Thurberg as a social worker. With her help, the children were placed with them in mid-February. However, in mid-March, Ms. Snyder called Mr. Epstein and told him that she "had it on good information" that the grandparents planned to "disguise" six-month-old A.S. and twenty-month-old W.S., use "voice altering technology" on twenty-month-old W.S., and "abscond with the children to New Hampshire." Therefore, she was "seriously contemplating" taking the children away. When Mr. Epstein denied such information as pure "foolishness," Ms. Snyder told him that "if he did not take her seriously [then] she would take away the children right then and there."
By April of 2015, Mr. Sullivan and Mrs. Sullivan-White successfully completed every class DCF recommended in order to regain custody of their children. Ms. Snyder informed them that, provided the District Attorney did not prosecute them, then they would likely get their children back. However, when the District Attorney closed the case without prosecuting anyone, Ms. Snyder still declined to return the children "since the DA could still bring charges if they found more evidence." Mrs. Epstein requested that Assistant District Attorney Jeremy Kustnin contact Ms. Snyder to explain that the investigation was over, the case was closed, and no charges would be brought against anyone. Ms. Snyder then changed the timing for the return of the children, stating that the parents would have to wait for a completed parenting evaluation.
Throughout this time, Mr. Epstein had tried to warn DCF about Mr. Kennedy. However, each time Mr. Epstein tried to warn someone at DCF, DCF denied a visitation. Finally, in mid-May of 2015, Mr. Kennedy was fired. DCF apologized to the family, and the physical custody of the children was returned to the parents. However, DCF maintained legal custody of the children. On July 28, 2015, DCF filed a motion to return legal custody of the children to the parents. The Juvenile Court, however, declined to act on the motion and instead set a date for a merits hearing. This hearing took place on October 6, 2015, at which time the Juvenile Court allowed DCF’s motion to return legal custody of the children to their parents and the Care and Protection proceedings came to an end.
DISCUSSION
1. Standard
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain "allegations plausibly suggesting (not merely consistent with) an entitlement to relief ..." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). A plaintiff is required to present "more than labels and conclusions" and must raise a right to relief "above the speculative level." Id. The court accepts as true all well-pleaded factual allegations and reasonable inferences. Id. At the pleading stage, the question is "whether all the facts alleged, when viewed in the light most favorable to the plaintiff, render the plaintiff’s entitlement to relief plausible." Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 14 (1st Cir. 2011).
II. Legal Analysis
Against DCF Social Worker William Kennedy in his individual capacity, the Plaintiffs allege intentional infliction of emotional distress (Counts 1-5, 7, and 8), deceit in misrepresenting the nature of A.S.’s injuries and the potential harm to W.S. and that the children would not be placed with a family member (Counts 9-16), violation of the Plaintiffs’ constitutional rights by taking the children (Counts 26-31), conspiracy to violate the Plaintiffs’ constitutional rights by taking the children (Counts 63-68), violation of the Plaintiffs’ Fourth Amendment rights in illegally seizing the children (Counts 91-94), defamation for making "perjurious and defamatory" statements about the Plaintiffs to third parties (Counts 128-34), perjury (Counts 135-38), and loss of consortium (Counts 164-69). Against DCF Social Worker Elise Richardson in her individual capacity, the Plaintiffs allege intentional infliction of emotional distress (Counts 6 and 19), deceit in misrepresenting that the children would not be placed with family members due to the actions of the Epsteins (Counts 17, 18, 36, and 37), and violation of the Plaintiffs’ constitutional rights (Counts 45-50). Against Linda Spears in her official capacity as the Commissioner of DCF, the Plaintiffs allege violations of the Plaintiffs’ constitutional rights in taking the children (Counts 20-25), conspiracy to violate the Plaintiffs’ constitutional rights in taking the children (Counts 57-62), RICO violations (Counts 81-86), violating the Plaintiffs’ Fourth Amendment rights by illegally seizing the children (Counts 87-90), negligence in duty (Counts 99-105), negligence in training (Counts 122-27), and loss of consortium (Counts 158-63). Against DCF Social Worker Shannon Snyder in her individual capacity, the Plaintiffs allege deceit in misrepresenting that the children would not be placed with family members due to the Epsteins’ actions (Counts 32-35), violation of the Plaintiffs’ constitutional rights by taking the children (Counts 38-44), conspiracy to violate the Plaintiff’s constitutional rights by taking the children (Counts 69-74), and loss of consortium (Counts 170-75). Against DCF Social Worker Michael Burke in his individual capacity, the Plaintiffs allege violation of the Plaintiffs’ rights in taking the children (Counts 51-56), conspiracy to violate the Plaintiffs’ constitutional rights in taking the children (Counts 75-80), violation of the Plaintiffs’ Fourth Amendment rights in illegally seizing the children (Counts 95-98), and loss of consortium (Counts 176-81). Against DCF Social Worker Ann Marie Lynch in her individual capacity, the Plaintiffs allege conspiracy to violate the Plaintiffs’ constitutional rights by taking the children (Counts 106-09, and conspiracy to violate the Plaintiffs’ Fourth Amendment’ rights by seizing the children (Counts 114-17), and loss of consortium (182-87). Against DCF Social Worker Josephine St. Saleh in her individual capacity, the Plaintiffs allege conspiracy to violate their constitutional rights by taking the children (Counts 110-13), conspiracy to violate the Plaintiffs’ Fourth Amendment rights by seizing the children (Counts 118-21), and loss of consortium (Counts 188-93). For the reasons discussed below, and even after indulging the Plaintiffs’ overbroad Complaint with all possible reasonable inferences, the Court concludes that the allegations in this complaint are only sufficient under the R. 15 standard to allege intentional infliction of emotional distress against Mr. Kennedy (Counts 2-5) and Ms. Richardson (Counts 6 and 19). All remaining claims against these two and the remaining defendants are dismissed. Specifically, the Plaintiffs’ remaining allegations against Mr. Kennedy and Ms. Richardson are insufficient for the Court to conclude that there are any plausible claims from the factual allegations contained in the Complaint. Finally, the claims against Mr. Michael Burke, Ms. Ann Marie Lynch, Ms. Josephine St. Saleh, Ms. Snyder, and DCF each fail because the defendants are protected by sovereign immunity for any claims arising against the Commonwealth, absolute immunity against claims arising against defendants in their individual capacities for actions under color of state law, and qualified immunity as a matter of law by operation of Duarte v. Healy, 405 Mass. 43, 47 (1989). See also Nelson v. Salem State Coll., 446 Mass. 525, 537 (2006) ("At common law ... a public official, exercising judgment and discretion is not liable for ... the making of an official decision if the official acted in good faith, without malice, and without corruption").
1. Intentional Infliction of Emotional Distress
The Plaintiffs raise several claims of intentional emotional distress against Mr. Kennedy (Counts 1-5, 7, and 8) and Ms. Richardson (Counts 6 and 19) in their individual capacities. "To sustain a claim of intentional infliction of emotional distress, a plaintiff must show (1) that the defendant intended to cause, or should have known that his conduct would cause, emotional distress; (2) that the defendant’s conduct was extreme and outrageous; (3) that the defendant’s conduct caused the plaintiff’s distress; and (4) that the plaintiff suffered severe distress." Sena v. Commonwealth, 417 Mass. 250, 263-64 (1994), citing Agis v. Howard Johnson Co., 371 Mass. 140, 145 (1976). "To be considered extreme and outrageous, the defendant’s conduct must be ‘beyond all bounds of decency and ... utterly intolerable in a civilized community.’" Id., quoting Agis, 371 Mass. at 145. Liability cannot be founded upon mere insults, threats, or annoyances. Foley v. Polaroid Corp., 400 Mass. 82, 99 (1987).
To the extent that the Complaint makes claims against the Individual DCF defendants in their official capacities, those claims will be treated as claims against DCF, which as discussed below, are barred by sovereign immunity. The Commonwealth and its agencies are not persons for the purposes of 42 U.S.C., § 1983 or the Massachusetts Civil Rights Act. Williams v. O’Brien, 78 Mass.App.Ct. 169, 173 (2010). See also Commonwealth v. Elm Med. Lab., Inc., 33 Mass.App.Ct. 71, 76 (1992) (the Commonwealth retains its sovereign immunity under the MCRA because "[n]either the language of the statute nor its legislative history supports the argument that the Commonwealth is a ‘person’" subject to suit).
As to Counts 2-5, Mr. Kennedy’s statements and gestures to Mr. Sullivan, Mrs. Sullivan-White, and Mr. Epstein at Children’s Hospital are plausibly extreme and outrageous. Arguably, Mr. Kennedy should have known that informing the parents, at A.S.’s bedside, that their baby would be "blind," "brain dead," and "retarded" would cause the parents emotional distress, especially when the medical professionals had offered a contrary assessment of A.S.’s medical condition. Likewise, the removal of A.S.’s mother by police officers at Mr. Kennedy’s request from not only A.S.’s hospital room but the entire Children’s Hospital campus, where the child was also in the company of numerous medical professionals as well as Mr. Kennedy himself, was extreme and outrageous and should have been apparent to Mr. Kennedy that it would distress Mrs. Sullivan-White, especially while the child was still ill. The family has sufficiently alleged their distress.
Likewise, Mr. Kennedy’s and Ms. Richardson’s arrival at Mr. Epstein’s home and their words and actions on December 25th, telling the grandparents that their grandchildren would "never" be placed with a family member, constitute facts to support the Plaintiffs’ claim that Mr. Kennedy and Ms. Richardson’s conduct was extreme and outrageous. It should have been apparent to Mr. Kennedy and Ms. Richardson that such behavior would distress the Epsteins. In addition to the stated distress that Mrs. Epstein experienced following this interaction, Mr. Epstein vomited.
In Count 1, however, the Complaint states information that is not contained in the factual allegations of the Complaint, namely that Mr. Kennedy told W.S. that he was taking W.S. because Mr. Kennedy was "upset with" Mr. Epstein so he had to show Mr. Epstein, Mrs. Epstein, Mr. Sullivan, and Mrs. Sullivan-White his "bad side." Because this information is not contained within the factual aliegations, the Court declines to consider the merits of this specific allegation. The Plaintiffs may move to amend the Complaint to include this factual allegation. Likewise, Counts 7 and 8 alleging intentional infliction of emotional distress by Mr. Kennedy against A.S. appear duplicative. Additionally, these counts also fail to sufficiently allege what actions were extreme and outrageous and intended to distress the then eleven-week-old A.S.
2. Negligence
The Plaintiffs allege several counts of negligence against the DCF defendants (Counts 99-105 and 122-27). These claims against the Commonwealth or Commonwealth officials may only be brought under G.L.c. 258, the Massachusetts Tort Claims Act. The Plaintiffs satisfied the presentment requirements of G.L.c. 258, § 4, by sending a letter dated December 5, 2016, presenting only their negligence claims. See Gilmore v. Comonwealth, 417 Mass. 718, 721 (1994) ("[P]resentment must be made in compliance with the statute"). However, the Complaint fails to describe with particularity what actions constituted such negligence. To the extent that the Plaintiffs allege the investigation as a whole was negligent because the allegations eventually remained unproven, their claims fail. Under Sena, such a prosecutorial decision "regarding whether, when, how, and whom to investigate, [...] are based on considerations of, and necessarily affect, public policy." 417 Mass. at 256. "So long as they are within the bounds of law, and therefore within the [worker’s] discretion, they are public policy decisions," for which the worker is immune from suit. Id. See also Suarez v. Belli, 1997 WL 39918 at *4 (Mass.Super. Jan. 13, 1997) (applying Sena in context of DCF social worker alleged to have conducted a "procedurally inadequate, faulty, and unfair investigation" and holding that the "discretionary function immunity applies as a matter of law to the allegations of negligence by [DCF] employees"). There is no entitlement to an error-free child abuse investigation. See, e.g., Wilmot v. Tracey, 938 F.Supp.2d 116, 138 (D.Mass. 2013) (dismissing claims against DCF social workers where abuse allegations ultimately proven unfounded); Kauch v. Dep’t for Children, Youth & Their Families, 321 F.3d 1, 4-5 (1st Cir. 2003) (same); Watterson v. Page, 987 F.2d 2, 8 (1st Cir. 1993) ("The right to family integrity clearly does not include a constitutional right to be free from child abuse investigations"). Accordingly, the Plaintiffs’ claims for negligence must be dismissed.
Counts 99-105 each state that defendants "so negligently and carelessly discharged their duties so as to cause serious harm" to the plaintiffs. Counts 122-27 each state that defendants "so negligently and careless trained their employees so as to cause serious harm" to the plaintiffs.
The Plaintiffs may, however, move to amend their complaint in order to include a more detailed claim for negligence if they can sufficiently allege with particularity that any defendant, such as Mr. Kennedy, acted outside of "officially established departmental procedures" or that specific defendants, such as those Mr. Epstein warned about Mr. Kennedy, knew Mr. Kennedy acted outside of established protocol but did not act. See Sena, 417 Mass. at 257 n.5. As the Plaintiffs have not fairly raised this issue, the Court will not analyze such a claim. To the extent that Plaintiffs wish to raise a violation of Department regulations, they may move to amend their Complaint accordingly.
3. Deceit
The Plaintiffs allege several broad claims of deceit against Mr. Kennedy (Counts 9-16), Ms. Richardson (Counts 17, 18, 36, and 37), and Ms. Snyder (Counts 32-35) in their individual capacities for misrepresenting the nature and extent of A.S.’s injuries, the potential harm to W.S., and the likelihood of W.S.’s placement with a family member. A claim for deceit not only requires a plaintiff to allege the essential elements of the claim but also requires that the claim meet the heightened pleading mandate of Rule 9(b), which requires such claims to "be stated with particularity." Equipment & Sys. for Indus., Inc. v. Northmeadows Constr. Co., 59 Mass.App.Ct. 931, 932 (2003). The plaintiff must provide that "(1) the defendant made a misrepresentation of fact; (2) it was made with the intention to induce another to act upon it; (3) it was made with the knowledge of its untruth; (4) it was intended that it be acted upon, and that it was in fact acted upon; and (5) damage directly resulted therefrom." Id.
As to the misrepresentation of A.S.’s injuries, the Complaint clearly states that Mr. Kennedy’s statements were not taken as true by any Plaintiff. The Plaintiffs each contradicted and corrected Mr. Kennedy, even seeking A.S.’s doctors for confirmation of their contrary understanding of A.S.’s prognosis. As to the misrepresentation of the potential harm to W.S., the Plaintiffs have not shown that any defendant knew this to be false. As the Complaint shows, A.S. presented to Children’s Hospital with unexplained bleeding in his brain, which-even a minimal amount-reasonably suggests A.S. could have been abused and that his sibling was also at risk. Lastly, as to the statement that W.S. would never go to a family member, the Plaintiffs have failed to show how this was a false representation, especially as they allege that several defendants impermissibly prevented placement with Mr. and Mrs. Epstein for several months. Accordingly, the Plaintiffs’ many claims of deceit against Mr. Kennedy, Ms. Richardson, and Ms. Snyder fail to sufficiently allege such facts to make them plausible and must therefore be dismissed.
4. Defamation
The Plaintiffs allege several claims of defamation against Mr. Kennedy (Counts 128-34), presumably for his statements as a DCF Social Worker in the Care and Protection proceedings. "Defamation is the publication of material by one without a privilege to do so which ridicules or treats the plaintiff with contempt." Correllas v. Viveiros, 410 Mass. 314, 319 (1991), citing Merrill v. Post Publishing Co., 197 Mass. 185, 191-92 (1908). Under Massachusetts law, "communications made in the ‘institution or conduct of litigation or in conferences and other communications preliminary to litigation’ are subject to an absolute privilege." Frazier v. Bailey, 957 F.2d 920, 932 (1st Cir. 1992), citing Sullivan v. Birmingham, 11 Mass.App.Ct. 359, 416 (1981) (holding that absolute privilege applies to defamatory statements made in the course of or preliminary to litigation). "Statements made in the course of a judicial proceeding that pertain to that proceeding are absolutely privileged and cannot be used to support a civil liability even if the statements were uttered with malice or in bad faith." Fisher v. Lint, 69 Mass.App.Ct. 360, 366 (2007). Accordingly, the Plaintiffs’ claims for defamation must be dismissed as Mr. Kennedy’s statements, in the furtherance of a child abuse investigation, are protected by absolute immunity.
5. Perjury
In Counts 135 through 138, the Plaintiffs raise four claims of perjury against Mr. Kennedy. There is no civil tort for perjury. See Phelps v. Stearns, 70 Mass. 105 (1855); Ezekiel v. Jones Motor Co., 374 Mass. 382, 387 (1978) ("[A] witness at a judicial proceeding is free to make defamatory statements without fear of being sued by the defamed person ..."). Additionally, even if there were such a cause of action, the defendant’s statements in the course of the Care and Protection proceeding would be protected by absolute immunity even where the statement is uttered with malice or bad faith, as discussed above. Accordingly, the Plaintiffs’ claims of perjury must be dismissed.
6. Loss of Consortium
A loss of consortium claim must be based on "proof of a tortious act that caused the claimant’s spouse [or parent or child] personal injury." Sena, 417 Mass. at 264-65. The parent or child of an "alleged federal civil rights victim," however, "is not permitted an ancillary cause of action for loss of consortium." Id., quoting Tauriac v. Polaroid Corp., 716 F.Supp. 672, 673 (D.Mass. 1989). The Court is not aware of any authority that would permit loss of consortium damages for the state and federal civil rights claims against any of the defendants except to the extent that they allege claims for family members’ loss of consortium damages based on intentional infliction of emotional distress by Mr. Kennedy and Ms. Richardson. See Agis, 371 Mass. at 146-47. Additionally, these claims against the Commonwealth or Commonwealth officials may only be brought under G.L.c. 258, the Massachusetts Tort Claims Act. And, the Plaintiffs failed to satisfy the presentment requirements of G.L.c. 258, § 4, as their December 5, 2016 letter presented only their negligence claims. See Gilmore v. Comonwealth, 417 Mass. 718, 721 (1994) ("[P]resentment must be made in compliance with the statute"). A separate presentment letter is required for a loss of consortium claim. Monderer v. City of Newton, 2002 WL 388209, at *2 (Mass.Super. 2002) . In any event, where the tort claims against the individual defendants are dismissed, there can be no claim for loss of consortium. See, e.g., Litif v. U.S., 682 F.Supp.2d 60, 927 (2010) (loss of consortium claims may only be brought with valid tort claims); Armstrong v. Lamy, 938 F.Supp. 1018 (D.Mass. 1996) (claim for loss of consortium is separate from spouse’s cause of action, but requires as prerequisite that the injured spouse have valid claim). Accordingly, these claims (Counts 158-93) must be dismissed.
To the extent that the Plaintiffs intend to allege claims for loss of consortium against defendants Mr. Kennedy and Ms. Richardson, arising from acts relating to Counts 2-6 and 19, they may move to amend the Complaint. See Agis v. Howard Johnson Co., 371 Mass. 140 (1976) (that there is no physical injury should not bar consortium claim; underlying purpose of consortium action is to compensate for loss of companionship, affection, and sexual enjoyment of spouse, and it is clear that these can be lost as result of psychological or emotional injury as well as from actual physical harm; therefore, where one spouse has cause of action for intentional or reckless infliction of severe emotional distress, other spouse also has cause of action for loss of consortium arising out of that distress); Columbus v. Biggio, 76 F.Supp.2d 43 (D.Mass. 1999); Gross v. Bohn, 782 F.Supp. 173 (D.Mass. 1991) (Massachusetts courts have recognized cause of action for consortium where loss arises out of intentional infliction of emotional distress inflicted on spouse by third party). However, here, the loss of the children is more the result of the 51A Report rather than Mr. Kennedy’s statements to the family.
7. RICO
The Plaintiffs assert civil claims against DCF (Counts 81-86) for violations of the RICO Act. 18 U.S.C., § 1962(c) makes it "unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity." To succeed in a civil RICO action, plaintiffs must establish "(1) conduct (2) of an enterprise (3) through a patten (4) of racketeering activity." Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985) (citations omitted). The Plaintiffs must, of course, allege each of these elements to state a claim as well as show that "his business or property" has been harmed by this conduct. Id. Even if the Court accepts the Plaintiffs’ contention that DCF is an enterprise within the context of the statute, the Plaintiffs have not alleged (and the Court can glean no) specific actions with any particularity that would establish two acts of racketeering, constituting a pattern, that interfered with the Plaintiffs’ business or property. In any event, the Commonwealth has sovereign immunity from these claims. There is no indication that Congress waived the state’s Eleventh Amendment Right to be held liable for RICO claims-hence the Commonwealth’s official capacity claims barred by sovereign immunity. See Harihar v. U.S. Bank Nat’l Assoc., 2017 WL 1227924 at *14 (D.Mass. 2017). Therefore, these claims must be dismissed.
To bring a federal civil rights claim, the Plaintiffs must allege that a person, or persons, acting under color of state law, deprived them of a constitutionally protected right. If there is no recognized constitutional right at issue, then the Plaintiffs’ claims fail as a matter of law. If, however, the Plaintiffs allege that a cognizable constitutional right has been violated by a state actor then the focus shifts to determine whether qualified immunity protects the defendants from answering these claims.
The 42 U.S.C., § 1983 claims against the individual DCF defendants and DCF are not clearly pled. As best as the Court has been able to discern from the Complaint, the defendants allegedly violated the parent’s constitutionally protected interest in the care, custody, and control of their children and the children’s right to remain unseparated from their family in several respects. As referenced above, a federal civil rights claim under 42 U.S.C., § 1983 allows a plaintiff to recover damages from a person, who while acting under color of state law, deprives the plaintiff of a right guaranteed by the United States Constitution. See 42 U.S.C., § 1983; Camilo-Robles v. Hoyos, 151 F.3d 1, 5 (1st Cir. 1998). As to each alleged violation, and as to each defendant, the Plaintiffs must allege that, as a result of the defendant’s conduct, they suffered the deprivation of a right protected by the United States Constitution. See Gutierrez v. Massachusetts Bay Transp. Auth., 437 Mass. 396, 401 (2002). Once the Plaintiffs meet this threshold, then the defendants have the burden of proving their absolute immunity defense. See Cady v. Marcella, 49 Mass.App.Ct. 334, 340 (2000), citing Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 432 n.4 (1993) (defendant bears the burden of showing it is entitled to absolute immunity under § 1983). If there is no deprivation of a constitutional right, then the Plaintiffs’ § 1983 claims must fail. Under the due process provisions of the Fourteenth Amendment, both the parents and the children possessed a "clearly established right to be free from unwarranted governmental intrusion into their family affairs" when DCF, acting under the color of state law, interfered with this right by removing the children. Donald M. v. Matava, 668 F.Supp. 703, 709-10 (D.Mass. 1987), and cases cited. However, this right has limits. "[T]he state may separate a child from his parent [...] based on reasonable suspicion that child abuse has occurred or [where] a threat of abuse is imminent." Piccone, 586 F.App’x at 711, citing Hatch v. Dep’t for Children, Youth and Their Families, 274 F.3d 12, 20-22 (1st Cir. 2001). The Complaint states that unexplained bleeding in A.S.’s brain was revealed on a CT scan-creating a reasonable suspicion that child abuse occurred. Hootstein v. Collins, 928 F.Supp.2d 326, 343 (D.Mass. 2013) ("Plaintiffs can cite to no case law that would support [a] theory that their grandson was ‘seized’ when DCF initiated the [Care and Protection] proceedings it was statutorily permitted to begin"). However, to the extent that the Plaintiffs argue that DCF and the Individual DCF Defendants acted beyond this permissible interference, the defendants are immune from such claims for several reasons.
Including the following: claims for constitutional rights violations by taking A.S. and W.S. against DCF (Counts 20-25), Mr. Kennedy (Counts 26-31), Ms. Snyder (Counts 38-44), Ms. Richardson (Counts 45-50), and Mr. Burke (Counts 51-56); claims for conspiracy to violate constitutional rights by taking A.S. and W.S. against DCF (Counts 57-62), Mr. Kennedy (Counts 63-68), Ms. Snyder (Counts 69-74), Mr. Burke (Counts 75-80), Ms. Lynch (Counts 106-09), and Ms. St. Saleh (Counts 110-13); claims for Fourth Amendment violations by illegally seizing A.S. and W.S. against DCF (Counts 87-90), Mr. Kennedy (Counts 91-94), and Mr. Burke (Counts 95-98); and, finally, claims for conspiracy to violate Fourth Amendment rights by illegally seizing A.S. and W.S. against Ms. Lynch (Counts 114-17) and Ms. St. Saleh (Counts 118-21).
See Opinion of the Justices to the Senate, 427 Mass. 1201, 1205-06 (1998) (children’s interest in being free of abuse and neglect and state’s interest in promoting welfare of its children outweigh any risk of erroneous deprivation of parental right to relationship with child as well as child’s interests in relationship with his or her family).
First, the claims against the Commonwealth, DCF, or any defendants in their official capacity are barred by the Commonwealth’s sovereign immunity. The Commonwealth and its agencies are not "persons" subject to suit for federal constitutional claims under § 1983. See Will, 491 U.S. at 64 (1989) (holding that § 1983 did not abrogate the states’ sovereign immunity); Laubinger v. Dep’t of Revenue, 41 Mass.App.Ct. 598, 601 (1996) ("[A]n agency of the Commonwealth is not a ‘person’ subject to suit for monetary damages under § 1983"). Consequently, all counts alleging constitutional violations, or conspiracy to commit constitutional violations, against DCF must be dismissed as barred by sovereign immunity.
Second, even if the Complaint stated plausible claims against the Individual DCF Defendants, acting under color of law, those claims are subject to dismissal if, as here, the individual defendants are protected by qualified or absolute immunity for their involvement in what was ultimately a judicial process to temporarily remove custody of the children from their parents. Here, the children were removed as a result of a valid legal order from a court with jurisdiction over the matter. Accordingly, as to Mr. Burke (Counts 51-56, 75-80, and 95-98), Ms. Lynch (Counts 106-09 and 114-17), and Ms. St. Saleh (Counts 110-13 and 118-21), the Plaintiffs fail to allege any facts concerning their specific conduct, which would plausibly state a violation of 42 U.S.C., § 1983. Accordingly, these claims as to each individual defendant must be dismissed as they fail to allege sufficient facts to make these claims plausible.
To the extent that the Plaintiffs argue that the child abuse investigation resulted in a constitutional violation, the remaining Individual DCF Defendants Mr. Burke, Ms. Snyder, Ms. Lynch, and Ms. St. Saleh are protected by qualified immunity for their actions in the child abuse investigation. "The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’" Pearson v. Callahan, 555 U.S. 223, 231 (2009), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "[Q]ualified immunity "protects all but ‘the plainly incompetent and those who knowingly violate the law.’" Wilmot v. Tracey, 938 F.Supp.2d 116, 135 (D.Mass. 2013), quoting Pagan v. Calderon, 448 F.3d 16, 31 (1st Cir. 2006) (internal punctuation omitted). "DCF defendants are entitled to qualified immunity for their actions in pursuing the abuse investigation[s]," even where their "suspicion was ultimately determined to be unfounded" or where "they were perhaps overzealous." Id., at 138. See also Kauch, 321 F.3d at 3 (constitutional right to family integrity not violated where social worker had "reasonable suspicion" of abuse, even though charges later proved unfounded).
To the extent that the Plaintiffs argue that the Care and Protection litigation resulted in a constitutional violation, the Individual DCF Defendants are protected by absolute immunity for their actions leading up to and during the Care and Protection litigation. These defendants "had absolute immunity with regard to the decision to substantiate" the child abuse report. Matava, 668 F.Supp. at 710. G.L.c. 119, § 51B(5) "requires that social services be offered to a family when there is reasonable cause to believe a report of child abuse is accurate," and where families decline then "the state [may] initiate court proceedings which could result in removal of the child from the parents." Id. "Even if [the defendants] made grave errors in [their] report[ing] to the court, absolute immunity would still protect those errors unless [they were] acting clearly and completely outside the scope of [their] function." McNulty v. Massachusetts Dep’t of Children & Families, 2014 WL 4965403, at *3 (D.Mass. Sept. 30, 2014), citing Stump v. Sparkman, 435 U.S. 349, 356-57 (1978). Additionally, and of note, it was not ultimately the individual DCF defendants nor DCF as an agency that removed custody of the children from Brian and Kelley. "[I]n the end it was the judge who made the final decision" to remove the children. See McNulty, at *3. Accordingly, the constitutional claims against the remaining Individual DCF Defendants must be dismissed.
ORDER
For the foregoing reasons, it is hereby ORDERED that the motion to dismiss on Counts 2-6 and 19 as to defendants William Kennedy and Elise Richardson is hereby DENIED and ALLOWED as to all other counts and all other named defendants.
So ordered.