Opinion
Civil Action No. 01-10425-WGY
March 29, 2002
Stephen J. Delamere, Law Offices of Bruce A. Bierhans, P.C., Stoughton, MA, For ROBERT A. DWAN, CATHERINE M. DWAN Plaintiffs.
Stephen J. Delamere, Law Offices of Bruce A. Bierhans, P.C., Stoughton, MA, For ALLYSON M. DWAN, BRITTANY C. DWAN, MADYSON E. DWAN, CHRISTOPHER J. DWAN, by their parents and natural guardians, Robert A. Dwan and Catherine M. Dwan Plaintiffs.
Steven P. Perlmutter Robinson Cole, Boston, MA, For THE CITY OF BOSTON, PAUL F. EVANS, Individually and as the Police Commissioner for the Boston Police Department THOMAS DOWD, Individualy and as an Employee of the City of Boston Police Department, Defendants.
MEMORANDUM AND ORDER
Robert A. Dwan ("Dwan"), a sergeant in the Boston Police Department (the "Department"), and his family (the "Dwans"), bring an action for violation of civil rights, intentional and negligent infliction of emotional distress, negligence, and loss of consortium against the City of Boston (the "City"), Paul F. Evans ("Evans"), the Commissioner of the Department, and Thomas Dowd ("Dowd"), who was the investigating officer of the Department's Anti-Corruption Division during the time relevant to this lawsuit. Dwan and his family seek damages under the First, Fifth, and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983 and 1985, the Massachusetts Civil Rights Act, and the laws of the Commonwealth of Massachusetts.
The defendants filed a motion to dismiss or, in the alternative, for summary judgment on August 28, 2001. At a hearing on September 26, 2001, the Court denied the motion to dismiss as it pertained to the Dwans' section 1983 claims (Counts One and Two), granted the motion to dismiss on various other counts, as shown below, and directed the Dwans to supplement their response to the motion within thirty days. Accordingly, the defendants' motion is now treated as one for summary judgment on all remaining counts.
I. UNDISPUTED FACTS
For the purposes of ruling first on the motion to dismiss and presently for summary judgment, the Court takes the following facts as undisputed.
Dwan joined the Department on or about November 27, 1989. Compl. ¶ 16 [Docket No. 1]. He served as a police officer, working primarily as a uniformed officer, until he was promoted to the position of sergeant on December 12, 1997. Id. On January 25, 1995, Dwan was involved in a police pursuit of multiple murder suspects in Mattapan which resulted in the beating of Boston Police Officer Michael Cox ("Cox"), who was mistaken for a suspect. Id. ¶¶ 18-30. The facts of that fateful night are summarized in Conley v. United States, 164 F. Supp.2d 216, 217-18 (D.Mass. 2001) (Keeton, J.) (appeal pending). Dwan claimed ignorance of what happened to Cox that night and further claims he did not participate in nor witness the beating. Compl. ¶¶ 18-30.
On January 26, 1995, the Internal Affairs Division ("IAD") of the Department began an investigation into the beating of Cox. Id. ¶ 31. On March 3, 1995, Dwan, at the request of the IAD, wrote a form 26 (an internal police report) concerning his actions on the night of Cox's beating. Id. ¶ 32. On April 11, 1995, Lt. Detective James Hussey of the IAD interviewed Dwan regarding the events of the night of Cox's beating. Id. ¶ 33. Dwan was told he was "all set" regarding his role in the investigation at the conclusion of this interview. Id. Nevertheless, two years later, on March 27, 1997, Special Agents of the Federal Bureau of Investigation questioned Dwan at his home about the events surrounding Cox's beating. Id. ¶ 35.
On April 1, 1997, Dwan was served a subpoena to appear before a federal grand jury which had been convened to investigate the assault of Cox. Id. ¶ 36. In May 1997, Dwan appeared before the grand jury and, on the advice of counsel, asserted his Fifth Amendment rights and declined to answer any questions. He was then excused from the grand jury. Id. ¶ 37. Dwan's partner, Officer Kenneth Conley ("Conley"), appeared before the grand jury pursuant to a grant of immunity and was later charged with two counts of perjury and one count of obstruction of justice as a result of his testimony; after a trial he was convicted of one count of perjury and obstruction of justice on June 10, 1998. Conley, 164 F. Supp.2d at 218.
Conley's motion for a new trial was granted and his conviction was set aside when it was revealed the prosecution did not turn over certain exculpatory evidence. Conley, 164 F. Supp.2d at 224-25.
On October 20, 1998, Dwan was served with another subpoena from a federal grand jury investigating the Cox incident. The United States Attorney's Office for the District of Massachusetts declined to grant Dwan immunity, though immunity was granted to a number of other officers who testified. Id. ¶ 45. Dwan, through his attorney, stated that he had already pleaded the Fifth Amendment when called before a grand jury investigating Cox's beating and would not testify without immunity. Id. On October 28, 1998, Dwan was notified that he would not be appearing in front of the grand jury scheduled for that same day. Id. ¶ 46.
On the same day, Dwan was ordered to surrender his weapon, badge, radio, and police identification by two detectives working out of the Boston Police Department's Anti-Corruption Unit. Id. ¶ 47. He was also given a letter signed by Evans that stated he was being placed on administrative leave for "the efficiency of the Department." Defs.' Mem. Ex. 1 [Docket No. 17]. The letter further stated that the administrative leave was "not a disciplinary action." Id. While on administrative leave an officer is paid their usual salary but may not participate in any special details, cannot carry a weapon, and may not work overtime. Defs.' Mem. at 4-5 [Docket No. 16]; id. Ex. 3. The decision to place an officer on administrative leave with pay resides in the discretion of the Commissioner — Evans — pursuant to Rule 109, section 10 of the Rules and Procedures of the Boston Police Department. Officers are placed on administrative leave not as a disciplinary action but, under the Rules, in order "to maintain the efficiency of the force if for some reason an employee is rendered unfit for duty." Id. Although Dwan was told that no story regarding his being placed on administrative leave would appear in the newspapers, a front-page story about Dwan's placement on administrative leave ran in The Boston Globe the next day. Compl. ¶ 48.
Dwan privately took a polygraph test on November 2, 1998, during which he answered questions regarding the Cox incident. The results indicated he was truthful in answering all questions regarding whether or not he had been involved in or witnessed the beating. Id. ¶ 49. The results of this test were sent to Evans. Id. ¶ 51. Nevertheless, on November 23, 1998, Dwan was placed on administrative leave effective October 28, 1998. Id. ¶ 52. From December 7 until December 16, 1998, the civil trial brought by Cox, Cox v. City of Boston, Civil Action No. 95-12729-WGY, was held in federal court in Boston. Dwan was neither named as a defendant nor called to testify.
On January 26, 1999, Dwan was served with eight specifications noting his alleged violations of the Boston Police Department's rules and procedures relating to the Cox investigation. Pls.' Mem. Ex. C [Docket No. 18]; Defs.' Mem. Ex. 4. The notice indicated that Evans was contemplating disciplinary action against Dwan, "including discharge or suspension." Id. Dwan was entitled to a disciplinary hearing concerning these charges and a hearing was set for March 22, 1999, which was then cancelled. Three subsequent hearings, set for June 24, 1999, November 1, 1999, and December 10, 1999 were also cancelled. Compl. ¶¶ 54, 56-57, 63. Dwan was never given any documents to support the internal charges brought against him by the Department and had to request copies, at his own expense, of investigatory documents relating to his charges from an attorney representing Officer Burgio who was also under investigation for his actions the night of Cox's beating. Id. ¶ 57. Dwan was last informed he would have a disciplinary hearing on January 7, 2000. Id. ¶ 64.
The disciplinary complaint outlined the following charges against Dwan: 1) submission of false reports; 2) submission of incomplete reports; 3) the use of unreasonable judgment in the exercise of his discretion as a Boston police officer; 4) failure to act in accord with the established and ordinary duties of a Boston police officer; 5) the failure to report felony violations to his commanding officer; 6) the intentional withholding of evidence of information; 7) the seeking to influence the outcome of an investigation; and 8) the failure, in an emergency, to come to the aid of Cox. Id.
On November 3, 1999, Dwan was notified he was to appear on November 18, 1999 before a federal grand jury investigating the Cox incident. On November 17, 1999, Dwan was informed that he would not be called to testify in front of the grand jury and his counsel was told by the U.S. Attorney's office that he would probably not hear from them again regarding the Cox investigation. Id. ¶ 65.
On January 6, 2000, Dwan offered to take another polygraph test regarding his knowledge of the Cox incident. Id. ¶ 66. The Department offered to return Dwan to duty if he passed this polygraph examination and waived any and all claims, administrative and civil, arising out of his placement on administrative leave. Dwan agreed to take the polygraph and answer all questions but would not waive his rights regarding future claims. Dwan again passed the polygraph test regarding his witnessing or participating in the beating of Cox. On January 26, 2000, Dwan was notified that he would be reinstated to full duty upon the completion of a competency exam, first aid test, and weapons qualification, making the time he spent on administrative leave a total of approximately 15 months (October 28, 1998-January 26, 2000). Dwan returned to full duty in area B-3 after passing all of these tests on March 8, 2000. Id. ¶¶ 72-74.
Dwan alleges that the Department is continuing to retaliate against him and violate his rights. He states that on numerous occasions since his reinstatement he has applied for and been rejected for special assignments and positions posted within the Department. Id. ¶ 75. Dwan has also requested transfer from his current assignment in area B-3 because his placement there requires him to interact with several officers who were present at the Cox beating whom Dwan believes were less than forthcoming in their reports or interviews regarding the assault of Cox. Id. ¶ 76. Dwan alleges he was told by his commanding officer that he would not be going anywhere. Id. Since his return from administrative leave, Dwan further alleges that he has been subjected to numerous practical jokes from other members of the Department, including superior officers, due to his actions concerning the Cox incident. Id. ¶ 77.
II. STANDARD OF REVIEW
In determining a motion for summary judgment, the Court views the record "in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor." Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). "The moving party is entitled to judgment as a matter of law if the nonmoving party does not adduce enough evidence to permit a reasonable trier of fact to find for the nonmoving party on any element essential to its claim." Milton v. Van Dorn Co., 961 F.2d 965, 969 (1st Cir. 1992). The party with the burden of proof must produce more than a "scintilla of evidence on each element essential to its claim, thus affording the jury a nonconjectural basis for concluding that the fact to be inferred [is] more probable than its nonexistence." Id. at 969 (quoting Malave-Felix v. Volvo Car. Corp., 946 F.2d 967, 970-71 (1st Cir. 1991)). The "material" facts upon which the non-movant relies to avoid summary judgment must reveal a genuine dispute "over facts that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
III. DISCUSSION
Count One of the Dwans' complaint seeks relief under 42 U.S.C. § 1983 for violations by Evans and Dowd of Dwan's constitutional rights under the First, Fifth, and Fourteenth Amendments. Count Two seeks the same relief against the City. Such an action, insofar as it is brought against Evans and Dowd in their official capacities, is considered to be a suit against the official's office itself. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). A suit against municipal officials in their official capacities therefore is no different from a suit against the municipality. See id. This is important, because municipal liability under section 1983 cannot be based on a theory of respondeat superior. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-95 (1978). Dwan must show that the City of Boston caused the deprivation through operation of an unconstitutional policy or custom, id. at 694, or as a result of inadequate training or supervision which amounted to deliberate indifference toward Dwan's constitutional rights, City of Canton v. Harris, 489 U.S. 378, 388-92 (1989). Municipal liability attaches only when a municipal official or employee's "edicts or acts may fairly be said to represent official policy," Monell, 436 U.S. at 694, which can only occur when "the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered" that inflicted injury on the plaintiff, Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). Evans, as police commissioner, possessed such final authority. Dowd, who supervised the internal investigation against Dwan, may be liable if Dwan can prove that inadequate training or supervision of the internal investigation led to the violation of his constitutional rights. Accordingly, all of Dwan's claims for violations of his constitutional rights by Evans and Dowd in their official capacities will be treated as if they were claims against the City itself. Count One will be treated as a claim against Evans and Dowd in their individual capacities. These defendants do not dispute that they acted under the color of state law, and Dwan alleges that he was deprived of a constitutional right, as is required in making a claim under section 1983 not predicated upon violation of a federal statutory right. Adickes v. S.H. Kress Co., 398 U.S. 144, 150 (1970).
Insofar as these claims relate to Dwan's rights to free speech under the First Amendment and due process under the Fourteenth Amendment, summary judgment is GRANTED. Dwan engaged in no protected speech and was not deprived of a property or liberty interest sufficient to warrant the protection of the Fourteenth Amendment.
Summary judgment on Dwan's Fifth Amendment claim is DENIED. Taking all factual inferences in favor of Dwan, the Court is satisfied a reasonable jury could conclude his right against self-incrimination was wrongfully burdened by the defendants' actions. A police officer may be dismissed from the force for failing to answer questions specifically, directly, and narrowly related to the scope of their official duties in front of a grand jury, as long as the officer is not required to make a blanket waiver of his or her constitutional right against self-incrimination. Gardner v. Broderick 392 U.S. 273, 278-79 (1968). Dwan was not confronted with the choice of testifying before the grand jury or losing his job before invoking his rights, and he was not asked to waive them by the Department prior to remaining silent. Dwan, however, alleges that the defendants, knowing full well he had committed no wrongdoing, placed him on administrative leave and brought internal disciplinary charges against him after he twice invoked his Fifth Amendment privilege. The defendants did this, according to Dwan, in order to coerce him to waive his privilege against self-incrimination in the future or to fabricate testimony regarding what he did or witnessed the night Officer Cox was beaten. If proven, these actions could constitute a scheme of harassment designed to chill his Fifth Amendment rights and to coerce Dwan into incriminating himself. Dwan may have been placed on administrative leave with pay, and therefore was not subjected to any economic sanction or outright termination for invoking his rights, but he did face what he claims were groundless internal disciplinary procedures that could have led to dismissal. According to Dwan, the Department also placed him in a position where he would have to waive his privilege against self-incrimination in order to return to full active duty.
The Department may not compel Dwan to waive his Fifth Amendment rights through the coercive effects of administrative leave and internal disciplinary sanctions:
[The] government cannot penalize assertion of the constitutional privilege against compelled self-incrimination by imposing sanctions to compel testimony which has not been immunized. . . . [T]he touchstone of the Fifth Amendment is compulsion, and direct economic sanctions and imprisonment are not the only penalties capable of forcing the self-incrimination which the amendment forbids.
Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977). Dowd and Evans are not entitled to qualified immunity because at the time of this alleged violation, Dwan's constitutional rights under the Fifth Amendment were clearly established. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Accordingly, this portion of Dwan's constitutional claims, and this alone, may go to trial.
Count Three charges all the defendants with violations of 42 U.S.C. § 1985 and the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11H. The defendants' motion for summary judgment is GRANTED as to Dwan's claims of a conspiracy to deprive him of his constitutional rights under 42 U.S.C. § 1985(3). Dwan does not provide the Court with sufficient allegations or evidence that the defendants, motivated by racial or class-based animus toward Dwan, conspired to deprive him of a constitutional right, which is required when bringing such an claim. Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971). Nor does Dwan proffer allegations or evidence that any police officer invoking his Fifth Amendment rights in front of a grand jury is subject to an automatic adverse employment action by the Department in retaliation.
Moreover, Dwan makes no claim under the Massachusetts Constitution and the Court declines to address any rights he might have under it. Dwan's claim under the Massachusetts Civil Rights Act cannot be brought against the City because a municipality is not a "person" under this statute. Mass. Gen. Laws ch. 12, § 11H; Howcroft v. City of Peabody, 51 Mass. App. Ct.573, 591-92 (2001). For this reason his claim under this count against the City and against Dowd and Evans in their official capacities was dismissed from the bench.
However, for the reasons already stated for denying summary judgment as to Counts One and Two, Dwan's claims against Evans and Dowd individually under the Massachusetts Civil Rights Act for violations of Fifth Amendment rights may go forward. To establish a claim under the Massachusetts Civil Rights Act, a plaintiff must show an interference or attempted interference with his exercise or enjoyment of rights secured by the Constitution or laws of the United States or Massachusetts by means of threats, intimidation, or coercion. Mass. Gen. Laws ch. 12, § 11H; Bally v. Northeastern Univ., 403 Mass. 713, 717 (1989); Reprod. Rights Network v. President of the Univ. of Mass., 45 Mass. App. Ct. 495, 505 (1998). Dwan has presented a triable issue on the question whether the conduct of Dowd and Evans, if proven, would constitute a pattern of harassment designed to coerce him into taking an action that he would not otherwise take. See Broderick v. Roache, 803 F. Supp. 480, 487 (D.Mass. 1992) (Mazzone, J.) (holding that a scheme of harassment and retaliation that included disciplining a police officer without cause would satisfy the threats, intimidation, or coercion requirement of the Massachusetts Civil Rights Act); see also Howcroft, 51 Mass. App. Ct. at 593-94 (finding a genuine triable issue whether defendants attempted to chill the plaintiff's First Amendment rights through concerted harassment and retaliation). But see Fletcher v. Szostkiewicz, Civ. A. No. 99-30075-KPN, 2002 WL 386701, at *11 (D.Mass. Mar. 8, 2002) (Neiman, Mag.) (distinguishing and calling into question Broderick and Howcroft and holding that a single three-day suspension of an officer is insufficient evidence of a pattern of harassment to satisfy the Massachusetts Civil Rights Act). See generally Carvalho v. Town of Westport, 140 F. Supp.2d 95, 100-02 (D.Mass. 2001) (summarizing cases interpreting the "threats, intimidation, or coercion" requirement of the Massachusetts Civil Rights Act). Recognizing that no Massachusetts Supreme Judicial Court or First Circuit case has decided this issue, this Court is satisfied that if Dwan can prove that the defendants engaged in a pattern of activity designed to coerce him into incriminating himself by placing him on administrative leave and levying internal charges against him, the "threats, intimidation or coercion" requirement of the Massachusetts Civil Rights Act would be met. Summary judgment for this aspect of Dwan's claim under the Massachusetts Civil Rights Act is therefore DENIED.
Count Four charges intentional infliction of emotional distress against all the defendants. Under the Massachusetts Tort Claims Act, Mass. Gen. Laws ch. 258, § 2, a municipality is not liable for the intentional torts of its employees. Spring v. Geriatric Auth., 394 Mass. 274, 285 (1985). Dwan's claims against Dowd and Evans in their official capacities are likewise not allowed. For this reason, the claims against the City and Dowd and Evans in their official capacity for intentional infliction of emotional distress were dismissed from the bench.
Dwan's claims against Dowd and Evans as individuals are not barred by governmental immunity. Id. at 286 n. 9; cf. Laubinger v. Dep't of Rev., 41 Mass. App. Ct. 598, 601-02 (1996). A plaintiff must, however, establish that the defendant's conduct was "extreme and outrageous beyond all bounds of decency and utterly intolerable in a civilized community" to maintain a claim for intentional infliction of emotional distress. Dusoe v. Mobil Oil Corp., 167 F. Supp.2d 155, 165 (D.Mass. 2001) (Gorton, J.) (citing Agis v. Howard Johnson Co., 371 Mass. 140, 144-45 (1976)). Physical harm is not a required element of this tort, but "[t]he standard for making a claim of intentional infliction of emotional distress is very high." Doyle v. Hasbro, Inc., 103 F.3d 186, 195 (1st Cir. 1996). No reasonable jury could find that the conduct alleged here rose to the level of "extreme and outrageous beyond all bounds of decency and utterly intolerable in a civilized community." The conduct alleged here, if proven by the Dwans, would certainly be wrongful and the Court in no way intends this portion of its holding to diminish the seriousness of the allegations, but such action does not reach the egregious level of conduct necessary to qualify as intentional infliction of emotional distress. The motion for summary judgement for Count Four against Evans and Dowd as individuals is GRANTED.
In Count Five Dwan asserts that the infliction of emotional distress upon him by the defendants, even if unintentional and simply the result of a slipshod investigation, is still actionable as negligent infliction of emotional distress. The motion for summary judgment is GRANTED for the defendants because, in order to maintain an action for negligent infliction of emotional distress in Massachusetts, a plaintiff must show physical manifestations or other objective evidence of acute mental anguish resulting from the alleged distress. Sullivan v. Boston Gas Co., 414 Mass. 129, 137-38 (1993); Payton v. Abbott Labs, 386 Mass. 540, 555 (1982). Dwan has failed to provide the Court with any evidence of physical harm, and his claim for negligent infliction of emotional distress therefore cannot survive the defendants' motion.
In Count Thirteen, the last of the direct claims alleging tortious conduct, Dwan asserts that the City of Boston and Evans and Dowd are liable for his injuries under a theory of common law negligence. Under this theory, the City and Evans owed Dwan a duty properly to train and supervise police officers in the investigation of misconduct, the initiation of internal charges, and the placement of officers on administrative leave, and Dowd owed Dwan a duty properly to supervise the internal investigation that led to Dwan being placed on administrative leave. Under the Massachusetts Tort Claims Act, public employers, and not the individual employees themselves, may be liable for the "injury or loss of property or personal injury or death" caused by a public employee acting "within the scope of his office or employment." Mass. Gen. Laws ch. 258, § 2. The actions of Evans and Dowd at issue here were within the scope of their employment. The Torts Claims Act, however, does not apply to "any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a public employer or public employee, acting within the scope of his office or employment, whether or not the discretion involved is abused." Id. § 10(b). Dowd and Evans' conduct was discretionary, as so it falls under the bar to recovery established in this provision.
Even if Dwan could prove the defendants acted so maliciously and intentionally to cause their conduct to fall outside this statutory bar, his negligence claim fails for two reasons. First, Dwan can not recover damages solely based on a claim of negligent investigation in Massachusetts. Generally, an investigator's duty runs to the person or entity an whose behalf an investigation is conducted, not to the person investigated. O'Donnell v. Bank of Boston, 37 Mass. App. Ct. 416, 419 (1995). If an investigation results in ill-founded allegations or charges of criminal conduct, other actions in tort: malicious prosecution, defamation, tortious infliction of emotional distress, are available to make the injured party whole. Id. at 420. As explained above, Dwan's claims based on emotional distress fail and he never brought actions for defamation or malicious prosecution. Second, Dwan's damages — the loss of overtime pay — were purely a unilateral expectation on his part. Dwan has failed to allege any other cognizable injury. For these reasons his negligence claim likewise fails against Dowd and Evans individually. Thus, as matter of law the motion for summary judgment is GRANTED to all defendants as to common law negligence.
The remaining counts are based on vicarious liability for the underlying tortious conduct. Count Twelve charges the City with vicarious liability. This Count fails under any conceivable theory of liability. First, a municipality cannot be held vicariously liable for constitutional violations perpetrated by its employees under 42 U.S.C. § 1983. Pembaur v. City of Cincinnati, 475 U.S. 469, 478-79 (1986); City of Oklahoma City v. Tuttle, 471 U.S. 808, 818 (1985) (plurality opinion); Santiago v. Fenton, 891 F.2d 373, 381 (1st Cir. 1989). Dwan asks the Court to ignore this line of precedent and hold the city liable under a theory of respondeat superior. The Court declines to do so. Second, it is also the case that a municipality cannot be held vicariously liable for violations of the Massachusetts Civil Rights Act. Chaabouni v. City of Boston, 133 F. Supp.2d 93, 103 (D.Mass. 2001). As such, the motion to dismiss Count Twelve against the City was GRANTED. Upon further reflection, the Court recognizes that the City could be held liable for unintentional torts committed by Dowd and Evans individually. However, Dwan has no remaining state law tort claims against Dowd or Evans individually that could serve as the basis for municipal liability under the Massachusetts Tort Claims Act. For this reason summary judgment as to the surviving basis for Count Twelve is GRANTED.
The plaintiffs Catherine Dwan, Sergeant Dwan's wife, and his five children, Allyson M., Britanny C., Madyson E., Robert A., and Christopher J. Dwan bring claims for loss of consortium against all defendants in Counts Six through Eleven, respectively. In Massachusetts, a claim for loss of consortium on behalf of the wife (or children) of an injured party can only be maintained when the injured party has a valid tort claim. Mouradian v. General Elec. Co., 23 Mass. App. Ct. 538, 544 (1987). To be sure, Dwan's federal civil rights claims based on the Fifth Amendment have survived, but "[a] spouse [and by extension, the children] of a federal civil rights victim is not permitted to raise a separate ancillary cause of action for loss of consortium based solely upon the federal civil rights violation." Meaney v. Dever, 170 F. Supp.2d 46, 64 (D.Mass. 2001) (Gertner, J.) (citing Tauriac v. Polaroid Corp., 716 F. Supp. 672, 673 (D.Mass. 1989) (Tauro, J.)). Dwan's claim of violation of the Massachusetts Civil Rights Act, based as it is on the putative violation of his Fifth Amendment rights, is a civil rights violation and therefore is also an impermissible vehicle for a loss of consortium claim. Columbus v. Biggio, 76 F. Supp.2d 43, 59 (D.Mass. 1999) (Tauro, J.) (holding that a Massachusetts civil rights claim may not be the basis for a loss of consortium claim). Because the Court has granted Defendants summary judgment on all of the state tort claims brought by Dwan, as detailed above, his wife and children lack an adequate legal foundation for their loss of consortium claim. For this reason, the defendants' motion for summary judgement on all claims for loss of consortium, Counts Six through Eleven, is GRANTED.
IV. CONCLUSION
To summarize, the Defendants' Motion to Dismiss or in the Alternative for Summary Judgement is:
1. DENIED as to Counts One and Two insofar as those counts pertain to Dwan's claims under 42 U.S.C. § 1983 regarding his Fifth Amendment rights, but GRANTED as to claims arising under the First and Fourteenth Amendments to the United States Constitution. Dowd and Evans are not liable in their official capacities but the City of Boston and Dowd and Evans as individuals are properly named as defendants.
2. GRANTED as to Count Three against all the defendants for claims arising under 42 U.S.C. § 1985, but DENIED against Dowd and Evans as individuals for Dwan's claims under the Massachusetts Civil Rights Act. Insofar as these claims are grounded on an abridgement of his Fifth Amendment rights this claim may not go forward against the City of Boston and Dowd and Evans in their official capacities because these parties cannot properly be named defendants in a suit under the Massachusetts Civil Rights Act.
3. GRANTED as to Counts Four and Five against all the defendants for claims of intentional and negligent infliction of emotional distress.
4. GRANTED as to Counts Six through Eleven against all defendants for all claims by Dwan's wife and children for loss of consortium.
5. GRANTED as to Count Twelve against the City of Boston on the theory of vicarious liability.
6. GRANTED as to Count Thirteen against all the defendants on the negligence theory.
SO ORDERED.