Opinion
Civil Action No. 05-12196-RWZ.
May 19, 2006
MEMORANDUM OF DECISION
Plaintiff Richard Santiago worked as an officer for the Lowell Police Department. He and some fellow officers were handling crowd control for a restaurant on privately paid detail when he observed a colleague, defendant John MacLaughlin, allegedly mistreat a young Asian woman. According to plaintiff, the incident inflamed the crowd, and some officers inappropriately used capstun spray to regain control. Afterwards, plaintiff attempted to report the incident to Sergeants Richard Callahan and Brendan T. Durkin, but these defendants refused to listen. Plaintiff privately confronted Officer MacLaughlin and requested an explanation for his conduct. He also questioned whether racist intentions motivated the behavior, and Officer MacLaughlin furiously denied the claim. Sgt. Callahan later instructed plaintiff to write a report of the incident, despite plaintiff's concern that an honest report would compromise MacLaughlin's job. As plaintiff drafted the report that evening, Sgts. Callahan and Durkin publicly taunted him at the police station, characterized his actions as shameful and called him a disgrace to the Department. When plaintiff challenged the taunting, Sgt. Durkin ordered him to remove his uniform, badge and weapon and leave these on Durkin's desk, as plaintiff was unfit to wear them. Plaintiff then experienced shortness of breath and intense anxiety and was taken to a local hospital for medical assistance. Upon plaintiff's return to work the following day, defendants ordered him to submit to a drug test and subsequently placed him on administrative leave. They denied plaintiff's request for disability benefits and temporarily removed him from administrative leave until plaintiff filed a grievance with his union for reinstatement. He remains on administrative leave and still awaits the results of an internal investigation regarding these events.
In the meantime, plaintiff and his wife sued defendants on eighteen counts alleging federal Constitutional and state law violations. After plaintiff agreed to dismiss half of these as against defendants Callahan and Durkin, these two defendants now move for dismissal of the remaining nine counts (Counts II, IV, VI, VIII, XII, XIII, XIV, XV and XVIII). Plaintiff opposes.
In Counts II and IV, plaintiff characterizes defendants' discharge of him as illegal discrimination on the basis of national origin or race under both federal and state law. Count VIII similarly accuses Callahan and Durkin of violating a different state law by inducing plaintiff's constructive discharge on the basis of race. With respect to all counts, Callahan and Durkin contend that plaintiff never alleged their specific participation in the decisions leading to his constructive termination. Plaintiff asserts generally that "the Lowell Police Department, through its officers, agents, servants or employees" decided to require a drug test and place him on administrative leave and that these decisions resulted from Callahan and Durkin's conduct following the private detail. (See Complaint ¶ 31). As plaintiff argues, civil rights cases are subject to a notice pleading requirement that requires "minimal facts as to who did what to whom, when, where, and why — although why, when why means the actor's state of mind, can be averred generally." Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 68 (1st Cir. 2004). While plaintiff must eventually supplement the record with evidence of Callahan and Durkin's actual involvement, at this stage in the litigation the Complaint meets the low threshold for pleading. Accordingly, Callahan and Durkin's Motion to Dismiss is denied as to Counts II, IV and VIII.
Count VI alleges intentional infliction of emotional distress. Plaintiff correctly cites the elements required to establish this claim under Massachusetts law. See Agis v. Howard Johnson Co., 371 Mass. 140, 144-45 (1976). Firing, vilifying, on-the-job harassment and "tak[ing] steps to maximize [plaintiff's] shame in the eyes of coworkers" may constitute the conduct required to establish this claim, depending on the underlying factual context. Conway v. Smerling, 37 Mass. App. Ct. 1, 9 (1994). Plaintiff has generally alleged Callahan and Durkin's participation in such activities, but defendants properly note that they may not be held liable for this tort in their official capacities. See Howcraft v. City of Peabody, 51 Mass. App. Ct. 573, 596 (2001). Accordingly, Callahan and Durkin's Motion to Dismiss with respect to Count VI is allowed as to these defendants in their official capacities and denied with respect to these defendants in their individual capacities.
Counts XII and XIII assert Callahan and Durkin's violation of the Massachusetts Civil Rights Act that permits citizens to sue someone who interfered or attempted to interfere with the exercise or enjoyment of constitutional rights by means of threats, intimidation or coercion. See Mass. Gen. Laws ch. 12, § 111; Swanset Dev. Corp. v. City of Taunton, 423 Mass. 390, 395-96 (1996). Plaintiff argues that these defendants both conspired to violate and did violate his constitutional rights to equal protection, freedom of speech and due process by collectively intimidating and taunting him and requiring him to remove his uniform, weapon and badge. Of the three constitutional rights identified by plaintiff, the cited conduct amounted to an attempt to interfere only with the right to free speech. The equal protection allegation relates to plaintiff's termination that resulted from an administrative decision and not threats, intimidation or coercion of plaintiff. With respect to plaintiff's due process claim, "[t]he failure to hold a hearing . . . do[es] not readily compare to the sort of threatening, intimidating, or coercive conduct that would be a violation of the State Civil Rights Act." Longval v. Comm'r of Correction, 404 Mass. 325, 333 (1989). Accordingly, Callahan and Durkin's Motion to Dismiss is allowed as to Counts XII and XIII with respect to plaintiff's allegations of equal protection and due process and is denied as to the claim for violation of freedom of speech.
The allegations regarding equal protection, freedom of speech and due process also underlie Count XIV in the context of a claim for violation of 42 U.S.C. § 1983. This statute enables a citizen to seek damages for the violation of a federal Constitutional right by a state actor. See 42 U.S.C. § 1983. Callahan and Durkin move to dismiss this count on the same basis that the Complaint fails to allege their specific involvement in conduct adverse to plaintiff beyond taunting. Although plaintiff did not specifically describe how these defendants may have participated in the decisions that led to his alleged constructive termination, he generally avers the involvement of Lowell police officers. Such allegation suffices to meet the low pleading threshold and thus defeats the motion. Callahan and Durkin's Motion to Dismiss Count XIV is denied.
In Count XV, plaintiff states a claim for conspiracy by Callahan and Durkin to deprive him of constitutional rights in violation of 42 U.S.C. § 1985(3). Callahan and Durkin move to dismiss this count on the basis that the Complaint offers no evidence that these defendants demonstrated racial discriminatory animus beyond plaintiff's plain assertion that such animus motivated their conduct. However, at the notice pleading stage, the issue of why defendants behaved as alleged, "when why means the actor's state of mind, can be averred generally."Hernandez, 367 F.3d at 68. Plaintiff clearly asserts that defendants acted on racist motivations, and this suffices to meet the notice pleading standard. Whether the evidence offered by plaintiff to support this assertion will in the end be enough remains to be seen, but the Motion to Dismiss is denied as to Count XV.
Plaintiff's wife alleges loss of consortium under Massachusetts law in Count XVIII. Callahan and Durkin premise their Motion to Dismiss this count on the assumption that plaintiff's other claims would be dismissed. Because the other counts largely remain, and defendants offer no other basis for dismissal of this count, the Motion to Dismiss as to Count XVIII is denied.
In addition to moving to dismiss these counts, Callahan and Durkin also argued their entitlement to qualified immunity from suit. Whether these defendants are entitled to qualified immunity depends on the following three-part analysis:
First, [the court] consider[s] whether plaintiffs' allegations, if true, establish a constitutional violation. Second, [the court] look[s] at whether the right allegedly violated was clearly established at the time of the challenged conduct. Finally, if the prior two questions are answered affirmatively, we determine whether a similarly situated reasonable official would have understood that the challenged action violated the constitutional right at issue.Jordan v. Carter, 428 F.3d 67, 71-72 (1 Cir. 2005) (internal quotes omitted). The present record is not sufficiently developed to permit a meaningful consideration of immunity. "[The court] therefore cannot eliminate the possibility that the facts once developed will show a violation of clearly established law."Id. at 75. Qualified immunity is therefore denied without prejudice to reassertion upon further development of the record.
Accordingly, Callahan and Durkin's Motion to Dismiss (#16 on the docket) is allowed with respect to Count VI against these defendants in their official capacities (but denied as to the claim against them in their individual capacities), allowed with respect to Counts XII and XIII with respect to plaintiff's allegations of equal protection and due process (but denied as to the claim for violation of freedom of speech) and is denied as to Counts II, IV, VIII, XIV, XV and XVIII. Qualified immunity is denied without prejudice to reassertion upon further development of the record.