Opinion
16-P-781
07-19-2017
William E. RYAN & another v. CITY OF MALDEN & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
William E. Ryan and Victoria Cerulle commenced this lawsuit against the city of Malden (city), Malden police Chief James J. Holland, and Malden police Officers Douglas Perrigo and John Lanni (the chief and the officers are referred to collectively as the officers), after the seizure of Ryan's firearms and subsequent suspension of his firearms license and firearms identification (FID) card. The defendants now appeal from the partial denial of their motion to dismiss. The defendants argue that the judge erred in denying their motion, largely because either (1) the officers' conduct is protected as lawful petitioning activity within the meaning of G. L. c. 231, § 59H, or (2) the city and the officers are immune from suit. We affirm.
James J. Holland, John Lanni, Douglas Perrigo, and Visionworks Inc. (Visionworks). Visionworks is not involved in this appeal and our reference to "the defendants" in this decision does not include it.
Background. The complaint alleges the following facts, which we accept as true for purposes of this appeal. On May 5, 2012, following a telephone conversation between Ryan and a Visionworks employee, the employee reported to the Malden police department (department) that Ryan had become irate and made various threats. Several officers, including Lanni, responded to the report by visiting Ryan at his home. Ryan denied threatening any Visionworks employees. Nevertheless, Lanni demanded to see his license to carry firearms, which Ryan produced, and ordered Ryan to accompany him in his police cruiser to Ryan's mother's home so that the officers could seize Ryan's firearms, which Ryan did. Thereafter, Holland suspended Ryan's license to carry firearms and his FID card.
On May 22, 2012, a clerk-magistrate of the Malden District Court denied the police department's application for a criminal complaint against Ryan, concluding that the application lacked probable cause. On August 24, 2012, a judge of the same court determined that Holland's decision to suspend Ryan's license was arbitrary and capricious, and ordered the department to return Ryan's license and FID card.
The plaintiffs commenced this lawsuit in the Superior Court thereafter, alleging various torts and violations of Ryan's State and Federal rights. The defendants moved to dismiss the tort claims against them under both G. L. c. 231, § 59H, and Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). The judge denied the motion in part and allowed the motion in part. We review the denial of the G. L. c. 231, § 59H, motion for abuse of discretion or other error of law. Moriarty v. Mayor of Holyoke, 71 Mass. App. Ct. 442, 445 (2008). We review the denial of the rule 12(b)(6) motion to dismiss de novo, accepting as true the facts alleged in the plaintiffs' complaint as well as any favorable inferences that reasonably can be drawn from them. Galiastro v. Mortgage Electronic Registration Sys., Inc., 467 Mass. 160, 164 (2014).
Analysis. 1. Lawful petitioning activity. General Laws c. 231, § 59H, the so-called anti-SLAPP statute, "provides a procedural remedy for early dismissal of lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. That remedy is the special motion to dismiss, which allows a special movant to seek dismissal of civil claims, counterclaims, or cross claims based solely on its exercise of the right of petition." 477 Harrison Ave., LLC v. Jace Boston, LLC, 477 Mass. 162, 167-168 (2017) (quotations and citations omitted).
As the judge noted, the anti-SLAPP statute does not protect individuals acting in their official capacities on behalf of municipal bodies. See Moriarty, supra at 445 (noting that statute's scope is limited to defendants who petition government "on their own behalf" [emphasis in original] ). See also Kobrin v. Gastfriend, 443 Mass. 327, 332 (2005) ; Fisher v. Lint, 69 Mass. App. Ct. 360, 364-365 (2007). The statute was "designed to protect overtures to the government by parties petitioning in their status as citizens." Moriarty, supra (emphasis in original). See Keegan v. Pellerin, 76 Mass. App. Ct. 186, 191-192 (2010). Here, the defendants' investigation, criminal complaint application, and suspension of Ryan's license and FID card, are not instances in which the defendants were petitioning to redress their personal grievances. See Kobrin, supra at 330 (paid expert witness in disciplinary case before Board of Registration of Medicine was not entitled to protection of anti-SLAPP statute because he was not seeking redress for grievance of his own or otherwise petitioning on his own behalf). Nor are they instances in which the officers were acting as agents of another petitioning party. Compare Plante v. Wylie, 63 Mass. App. Ct. 151, 157 (2005), with Fustolo v. Hollander, 455 Mass. 861, 868-869 (2010). Here, the officers acted in their official capacities on behalf of the city alone. Therefore, the judge appropriately denied the defendants' motion. See Keegan, supra at 192 (statute has "no applicability to situations in which the government petitions itself").
Dickey v. Warren, 75 Mass. App. Ct. 585 (2009), cited at oral argument by the defendants, does not alter our conclusion.
2. Failure to state a claim. a. Statutory immunity. The judge allowed the motion to dismiss the claims against the city "that arose out of the suspension of [Ryan's] license to carry an FID card," but otherwise denied the motion to dismiss. The defendants argue, as they did to the judge, that the city and officers are generally immune from suit under G. L. c. 258, § 10. The defendants did not delineate which subsections of § 10 should bar the plaintiffs' tort claims. The judge properly considered each subsection, Vining v. Commonwealth, 63 Mass. App. Ct. 690, 696 (2005) ( § 10 defenses are jurisdictional), and concluded that § 10(b ) and § 10(e ) potentially were implicated. We agree. Where the judge dismissed the claims arising from the suspension of Ryan's license and FID card under § 10(e ), see note 3, supra, we focus our analysis on the applicability of § 10(b ).
In their motion to dismiss, the defendants asserted statutory immunity arguments under G. L. c. 258 only; they did not argue either qualified or absolute immunity to the judge. Similarly, the defendants argue for the first time on appeal that the complaint should be dismissed because the plaintiffs "failed to allege facts sufficient to establish prima facie elements of any statutory or constitutional deprivation claims." We decline to consider these arguments because they were not presented to the judge. See Pelullo v. Croft, 86 Mass. App. Ct. 908, 909 n.3 (2014).
The defendants also argue that G. L. c. 258, § 9, affords the officers immunity. We disagree. Section 9 merely allows for the city to indemnify the officers.
The Supreme Judicial Court has identified a two-step analysis for application of § 10(b ), the so-called discretionary function exception: (1) whether the governmental actor had any discretion as to what course of conduct to follow and, if so, (2) whether the actor's discretion is the kind of discretion for which § 10(b ) provides immunity from liability. Sena v. Commonwealth, 417 Mass. 250, 255–256 (1994). Whether a particular decision falls within the discretionary function exception depends largely on the facts specific to each case. Dobos v. Driscoll, 404 Mass. 634, 651 (1989) ("We have indicated previously that it is necessary to engage in a case-by-case determination of what is a discretionary function under § 10 [b ] and what is not"). Generally, "conduct of [a] law enforcement official[ ] in investigating potentially criminal conduct" would require discretion on the part of the official and "fall within the exception in § 10(b )." Sena, supra at 257. However, there are circumstances where this is not the case. For instance, where the official's conduct "violates officially established departmental procedures," or exceeds the bounds of the law, "that conduct likely would not be protected." Id. at 257 n.5. "Indeed, as to the first prong of our inquiry, such conduct likely is outside of the officer's discretion; as to the second prong, such conduct likely would not constitute a public policy decision." Ibid.
Here, the plaintiffs allege that the officers acted unlawfully by, inter alia, performing a warrantless search and seizure. The defendants did not offer the judge much in the way of specific facts or argument in support of their contention that the officers were performing a discretionary function within the bounds of the law. See Allen v. Boston, 44 Mass. App. Ct. 679, 681 (1998) (noting that court would expect defendant asserting immunity under § 10 [b ] to point to some evidence, "deposition, affidavit, or otherwise," relevant to issue of whether the defendant performed discretionary function, as such evidence "can often be readily assembled and presented where it exists"). We conclude that on the record before him, considering the complaint in the light most favorable to the plaintiffs, the judge correctly denied the defendants' motion. See id. at 681-682.
We recognize the fast-paced and volatile nature of police work, see, e.g., Commonwealth v. Gonsalves, 429 Mass. 658, 665 (1999), and nothing contained herein should be construed as a view on the merits of the claims. Rather, we simply hold that at this early stage, the judge properly denied the motion to dismiss.
b. Loss of consortium. The defendants argue, as they did to the judge, that Cerulle's loss of consortium claim must be dismissed because the complaint is devoid of any allegation that Ryan suffered "serious bodily injury." We disagree. "[T]he underlying purpose of [an] action [for loss of consortium] is to compensate for the loss of the companionship, affection, and sexual enjoyment of one's spouse, and it is clear that these can be lost as a result of psychological or emotional injury as well as from actual physical harm." Agis v. Howard Johnson Co., 371 Mass. 140, 146 (1976). Accordingly, "where a person has a cause of action for intentional or reckless infliction of severe emotional distress, his or her spouse also has a cause of action for loss of consortium arising out of that distress." Id. at 146-147. Serious bodily injury is not required. Id. at 146.
The plaintiffs alleged that Ryan suffered "emotional distress accompanied and manifested by physical symptomatology" as a result of the defendants' actions, and that Cerulle, in turn "suffered the loss of the care, comfort, and services of her husband." The plaintiffs also allege that Ryan suffered "unjustified humiliation and emotional distress," and that Cerulle "suffered the disruption of her family relationships." While ultimate recovery on this claim might require a more specific description of the purported loss, the allegation that Ryan was emotionally distressed and, consequently, Cerulle suffered the loss of the care, comfort, and services of her husband, is sufficient to withstand a motion to dismiss. See id. at 141-142. ,
To the extent we do not discuss other arguments made by the parties, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
The plaintiffs' request for sanctions is denied.
Order denying special motion to dismiss and motion to dismiss affirmed.