Opinion
16-P-646
02-21-2017
Alfred BOTTICELLI & others v. Andrea CABRAL & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, former employees of the Suffolk County sheriff's department, brought this action against the former sheriff of Suffolk County, Andrea Cabral, and the current sheriff of Suffolk County, alleging, among other claims, that the termination of the plaintiffs' employment violated their right to procedural due process in violation of 42 U.S.C. § 1983. The defendants' motion pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), to dismiss the complaint in its entirety was denied, and the defendants filed a notice of interlocutory appeal from so much of the order as pertained to the issue of their claim of qualified immunity. By a subsequent stipulation of the parties, the sole issue before this court is whether defendant Cabral is entitled to qualified immunity with respect to the 42 U.S.C. § 1983 claim asserted against her in her individual capacity. We affirm.
An order denying a motion to dismiss on the basis of qualified immunity is immediately appealable under the doctrine of present execution. See Brum v. Dartmouth , 428 Mass. 684, 687-688 (1999) ; Kent v. Commonwealth , 437 Mass. 312, 317 (2002).
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In reviewing the sufficiency of the complaint, we take all of the factual allegations of the complaint as true, and draw all reasonable inferences therefrom in the plaintiffs' favor. See Golchin v. Liberty Mut. Ins. Co ., 460 Mass. 222, 223 (2011). The complaint alleges that, at the time of their termination, the plaintiffs were tenured employees of the sheriff's department who were injured in the performance of their duties and were receiving workers' compensation benefits. As to defendant Cabral, the complaint states that Cabral, "through" nonparty superintendents, terminated the employment of nine of the plaintiffs, without prior notice or the opportunity for a hearing. The termination letters indicated officers could be rehired upon improvement of their medical condition and subject to the availability of positions. The complaint also alleges that the officers were subject to a "re-hiring policy unilaterally implemented by Sheriff Cabral ... in which the terminated [o]fficers would lose seniority rights, vacation eligibility, sick leave balance, insurance, previously set health care contribution rate, salary or 'pay step' rights, and shift bid."
Defendant Cabral, in her individual capacity, argues that the complaint fails to plead facts sufficient to overcome her claim of qualified immunity. Specifically, she argues that the complaint fails to sufficiently allege (1) a violation of a clearly established right and (2) that she acted "personally" in depriving the plaintiffs of those rights. We discuss each contention in turn.
Government officials "are shielded 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." Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). See Cristo v. Evangelidis , 90 Mass. App. Ct. 585, 589-590 (2016). We apply a tripartite test to determine whether a defendant is entitled to qualified immunity: (1) whether "there was a violation of the plaintiff's Federal constitutional or statutory rights; (2) if so, whether at the time of the violation those rights were clearly established; and (3) whether a reasonable person in the defendant's position would understand that his conduct violated those clearly established rights." Id . at 590. The complaint sufficiently alleges that the plaintiffs, all tenured employees, had a property interest in their continued employment, and that they were deprived of that property interest without notice or an opportunity to be heard. At issue is whether, in the circumstances described in the complaint, it was "clearly established" that the plaintiffs were entitled to the due process protections of notice and an opportunity to be heard prior to their terminations, and whether a reasonable person in Cabral's position "would appreciate that the conduct in question was unlawful." LaChance v. Commissioner of Correction , 463 Mass. 767, 777 (2012), quoting from Longval v. Commissioner of Correction , 448 Mass. 412, 419 (2007).
Cabral argues that because the terminations were administrative, as opposed to terminations for cause, it was not clearly established that the employees were entitled to notice or an opportunity to be heard and a reasonable person in her position would not understand that her conduct violated their rights. The complaint acknowledges that the department deemed the terminations "purely administrative," but it alleges facts that call into question whether that characterization was designed to effect the terminations without the normal procedural safeguards. Given the sparse record available at this early stage of the proceedings, we express no opinion on the relative merits concerning the characterization of the terminations. This is a matter better explored on a more fully developed record upon completion of discovery. We note only that, as to this point, the allegations of the complaint are sufficient to raise the issue of Cabral's personal liability "above the speculative level." Golchin , 460 Mass. at 223.
Cabral also argues that the complaint fails to allege sufficient facts that she acted personally in depriving the plaintiffs of their clearly established rights. She focuses this argument on the complaint's allegation that the terminations were effected by Cabral "through" her superintendents. See Leavitt v. Correctional Med. Servs., Inc ., 645 F.3d 484, 502 (1st Cir. 2011) (personal liability under § 1983, must rely on defendant's own actions, not on the unconstitutional conduct of subordinates). Drawing all reasonable inferences in the plaintiffs' favor, the complaint sufficiently alleges that the terminations were directed by Cabral. In addition, the complaint also alleges that Cabral unilaterally implemented a rehiring policy that deprived the plaintiffs of substantial rights. These allegations are sufficient to raise a claim that Cabral acted personally.
Order denying motion to dismiss affirmed .