Opinion
Civil Action No. 01-10730-DPW
January 29, 2003
MEMORANDUM AND ORDER
Plaintiff Joel Rosenfeld brings various § 1983 and state-law claims against an officer and the chief of the Millis Police Department based primarily upon their alleged involvement in (1) the removal of Rosenfeld from police duty, (2) the revocation of Rosenfeld's firearms license, (3) the denial of Rosenfeld's application to renew his expired firearms license, (4) the decision of Rosenfeld's wife to seek a restraining order, and (5) the officer's alleged assault of Rosenfeld. Before me are the defendants' motions for summary judgment on all counts.
Defendant Officer David Egy has not submitted a 56.1 statement of facts. Accordingly, for purposes of resolving the summary judgment motions, I will make my determinations on the basis of the facts as presented by Rosenfeld and Chief Albert Baima.
I. FACTUAL BACKGROUND
In 1986, Rosenfeld filed a lawsuit in state court against defendant Albert Baima, then the police chief of the Town of Millis, alleging that Baima trespassed on his property. The lawsuit was settled. In 1987, the Millis Board of Selectman convened hearings to consider whether Baima should be removed as chief of police. During testimony at the hearings, the plaintiff made statements that were adverse to or critical of Baima.Defendant Officer David Egy also testified adversely to Baima at the hearings. No action was taken against Baima as a result of those hearings.
A decade later, during the summer of 1997, Charlotte Rosenfeld, Rosenfeld's wife, told Egy, then a patrolman with the Millis Police Department, that she had been a victim of abuse by her husband. At that time, Joel Rosenfeld was employed as a reserve intermittent police officer by the Millis Police Department. At some time prior to April 1998, Egy photographed Charlotte Rosenfeld depicting a bruise on her face.
On April 30, 1998, there was a confrontation between the plaintiff and Egy at the Millis Police Station. Most of the details of this confrontation are in dispute, however, it is undisputed that Rosenfeld expressed his displeasure regarding Egy's interactions with Charlotte Rosenfeld and that Egy showed Rosenfeld a picture of Charlotte Rosenfeld with a black eye. Egy told Rosenfeld at this time that he had made a report of abuse to the Norfolk County District Attorney. It is also undisputed that during this confrontation Egy struck Rosenfeld with his open palm. Rosenfeld has not alleged that the confrontation resulted in any physical injuries.
It is unclear whether Egy showed Rosenfeld the exact photographs contained in the record. Exh. 83; Exh. 86; Exh. 97: Egy at 12.
On May 1, 1998, Rosenfeld called Baima at his home to report that Egy struck him during the altercation the day before. Baima went to Rosenfeld's home at Rosenfeld's request to discuss the matter.
Rosenfeld wrote a report concerning the altercation in which he also made allegations that Egy and his wife were involved in a romantic relationship. Rosenfeld gave Baima the report on May 2, 1998.
Baima subsequently confronted Egy with Rosenfeld's allegations. Egy told Baima that Rosenfeld had become aware that Egy was investigating Charlotte Rosenfeld's allegations of abuse and this knowledge had caused the plaintiff to initiate the confrontation. Egy showed Baima a report he had prepared concerning the matter and the photograph of Charlotte. Baima was not aware of the alleged abuse or the investigation prior to this date.
On May 3, 1998, Millis Patrolman Roderick MacLeod gave Baima a memo in which he alleged that Rosenfeld was responsible for domestic abuse. On or about May 3, 1998, Baima turned the matter over to the Norfolk District Attorney Sexual Assault Unit.
On May 3, 1998, Baima wrote a letter to Rosenfeld ordering him removed from the active duty roster and ordering him to turn in his service firearm and license to carry due to circumstances surrounding the April 30, 1998 incident. The letter stated that Rosenfeld's "department weapon and license to carry shall be surrendered immediately and will remain with me." Also, on May 3, 1998, Baima sent Egy a letter ordering him to turn in his service firearm and placing him on administrative leave pending investigation of the April 30, 1998 incident.
From 1987 through 1998, Rosenfeld had worked on average less than five shifts a year for the Millis Police Department. He was not scheduled to work any shifts in the near future at the time he was removed from the roster.
On May 4, 1998, Rosenfeld sent a "letter of disinvitation" to Egy, stating that Egy's presence was "no longer welcome" at the "Rosenfeld Residence" at 375 Orchard Street and that his presence at the residence would amount to a trespass.
Baima rescinded Egy's administrative leave effective May 18, 1998, subject to a number of conditions including: turning in the photograph of Charlotte Rosenfeld for submission to the District Attorney's Office, ceasing participation in an independent investigation of the allegations of abuse of Charlotte Rosenfeld, and abiding by Rosenfeld's letter of disinvitation.
On June 3, 1998, Rosenfeld's license to carry a firearm expired. On July 21, 1998, he submitted an application for renewal of his license to carry a firearm. On August 17, 1998, he submitted a number of documents, including letters of reference and newspaper articles, in support of his application for renewal.
In August 1998, Baima requested a status report from the Norfolk County District Attorney regarding the progress of the investigation. On August 6, 1998, the Office of the District Attorney for the Norfolk District replied that because Charlotte Rosenfeld was unwilling to cooperate with an investigation of her husband's abuse, the district attorney was "unable to proceed further with this particular investigation."
The letter is dated August 6, 1997, but it appears to be a clerical error.
On October 13, 1998, Baima informed the plaintiff that his application for renewal of his firearm license was denied.
Charlotte Rosenfeld initiated divorce proceedings on December 9, 1998, and at the same time brought a "Motion for Temporary Restraining Order" against Rosenfeld. It is not clear from the record before me whether a restraining order was issued against Rosenfeld at that time.
On March 8, 1999, Charlotte Rosenfeld obtained an ex parte Abuse Prevention Order, or restraining order, against Rosenfeld pursuant to Mass. Gen. Laws ch. 209A. The order required Rosenfeld not to abuse or contact Charlotte and to stay away from her home and workplace. The order further required the plaintiff to surrender his firearms to the police department. Sergeant Peter McGowan served the restraining order on Rosenfeld that day. McGowan collected one machine gun from Rosenfeld at that time.
That evening, Rosenfeld faxed McGowan nine firearms transaction cards indicating that Rosenfeld had sold his remaining nine handguns to his brother, Marc Rosenfeld, in December 1998. McGowan subsequently determined that of those nine firearms, one was currently in the possession of Officer Robert Dixon of the Millis Police Department and eight were in the possession of Larry Bruce, another relative of Rosenfeld's.
Egy prepared a report dated March 11, 1999, citing concerns about the legality of the transfer of Rosenfeld's nine firearms and uncertainty as to whose control they were under. Attached to the report were the nine transfer cards relating to the gun transfers between Rosenfeld and his brother.
On March 16, 1999, the Norfolk Division of the Probate and Family Court held a hearing on whether to extend the order of March 8. Rosenfeld, Baima, and Egy were present at the hearing. During the hearing, Egy's report was handed to the judge. The court continued the restraining order with two modifications: "(1) Defendant is restrained from stalking the plaintiff. (2) Millis police shall take immediate possession of all firearms transferred by defendant to third parties on December of 1998."
There is a factual dispute as to who actually handed the report to the judge — Baima or Egy. Complaint ¶ 25; Exh. 100: Baima at 71-73; Exh. 88 at ¶ 19.
On April 18, 1999, the Town of Millis held a dedication ceremony for Rosenfeld's mother, Hindy Rosenfeld. It is unclear from the record the exact nature of this event, which has been characterized by the plaintiff as the "Hindy Rosenfeld Dedication Ceremony at the Town's new office building." Complaint ¶ 104. Rosenfeld attended the dedication ceremony. He left after seeing Egy was also in attendance.
On December 9, 1999, Rosenfeld sought to move his personal belongings from the Orchard Street residence. According to Rosenfeld, a letter from Rosenfeld's attorney dated December 15, 1999, and a statement in Officer Dixon's police report regarding the incident, the parties had agreed that Egy would not be present when Rosenfeld moved his belongings out of the Orchard Street house. However, Egy was present when Rosenfeld arrived. Rosenfeld canceled his plans to move out that day.
II. DISCUSSION
A. Standard of Review
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is material if it has the "potential to affect the outcome of the suit under applicable law." Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000). A genuine issue is one that "may reasonably be resolved in favor of either party." Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir. 1997).
B. Claims Against Egy
In Counts II and XI, Rosenfeld alleges that Egy is liable under the Massachusetts Civil Rights Act. Mass. Gen. Laws ch. 12 § 11(I). Section 11I creates a cause of action where plaintiffs can show that "(1) their exercise or enjoyment of rights secured by the Constitution or laws of either the United States or of the Commonwealth, (2) have been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by threats, intimidation or coercion." Swanset Development Corp. v. City of Taunton, 423 Mass. 390, 396 (1996). In the present setting, § 1983 and § 11I are largely coextensive, but not identical. Where dispositive, I will note in this memorandum the relevant differences between the two statutes.
Rosenfeld argues that Egy took a number of actions under color of law, not to serve governmental ends, but to advance the affair he was allegedly having with Charlotte Rosenfeld. These actions, contends Rosenfeld, constitute violations of the Fourth Amendment, due process, and equal protection.
a. Excessive Force (Count I)
Rosenfeld first brings a § 1983 claim against Egy for Egy's actions during the April 30, 1998 incident between Egy and Rosenfeld. Presumably, although not stated in the complaint, this action is thought to concern a violation of the Fourth Amendment.
"To sustain an action under 42 U.S.C. § 1983," Rosenfeld must prove both: "(i) that the conduct complained of has been committed under color of state law, and (ii) that this conduct worked a denial of rights secured by the Constitution or laws of the United States." Collins v. Nuzzo, 24 F.3d 246, 250 (1st Cir. 2001). Based on the record before me, Rosenfeld can prove neither of these elements.
First, Egy was not acting under color of law during the April 30, 1998 incident. To distinguish private action from state action, "the general inquiry is whether 'a state actor's conduct occurs in the course of performing an actual or apparent duty of his office or . . . is such that the actor could not have behaved in that way but for the authority of his office.'" Zambrana-Marrero v. Suarez-Cruz, 172 F.3d 122, 125 (1st Cir. 1999) (citing Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995)).
Although this concept can be "particularly elusive when applied to police conduct," it is not so in this case. Zambrana-Marrero, 172 F.3d at 125. Egy's conduct did not occur in the course of his official duties, actual or apparent. Though on duty when he was called back to the police station by Rosenfeld, Egy's status as a police officer was not implicated in his conduct towards Rosenfeld at that time. See, e.g., Martinez, 54 F.3d at 987 ("Though on duty and in uniform, [the defendant's] status as a police officer simply did not enter into his benighted harassment of his fellow officer.")
Second, regardless of whether Egy was acting under color of law, Egy's conduct on April 30, 1998, taken in the light most favorable to Rosenfeld, did not deny Rosenfeld any rights secured by the Constitution. Excessive use of force by a police officer is a constitutional tort under § 1983. Wilson v. Mendon, 294 F.3d 1, 6 (1st Cir. 2002). Yet, in the circumstances presented here, "striking" the plaintiff's chest with an open hand, interfered with no civil rights and apparently caused no physical harm, injury, or consequence. As such, Egy's assault and battery simpliciter did not constitute an excessive or objectively unreasonable use of force, see Graham v. Connor, 490 U.S. 386, 396-97 (1989), or otherwise deny civil rights. Therefore, I find that Egy is not liable for a violation of any civil rights and will grant the defendant's motion for summary judgment on Count I.
This further analysis is arguably necessary because an aggrieved person may bring suit against a police officer under Mass. Gen. Laws ch. 12 § 11I even if that officer is not acting under color of law.
b. Involvement in the Issuance of the Restraining Order (Count V)
i. The Merits. Rosenfeld next charges that the Norfolk
Division of the Probate and Family Court issued, and later continued, a restraining order against Rosenfeld as a result of illegal and unconstitutional actions taken by Egy. First, argues Rosenfeld, Egy coerced Charlotte Rosenfeld into obtaining the March 8, 1999 ex parte order. Then, the following week, at a hearing on whether to continue the order, Egy allegedly presented the court with a report containing "deliberate falsities and statements made with reckless disregard for the truth" that called into question Rosenfeld's compliance with the original order.
It is not clear from the Complaint what constitutional provision Rosenfeld wishes to put at issue here. In his opposition to the defendants' motions for summary judgment Rosenfeld argues that the issuance of the March 8 restraining order was an unreasonable seizure, which violated the plaintiff's Fourth Amendment rights. He makes no mention of the provision violated by the continuance of the order on March 16. I will assume Rosenfeld is alleging a violation of the Fourth Amendment in that instance as well.
Any procedural due process concerns Rosenfeld may have regarding the issuance of the order, were remediable through an adequate opportunity for appeal on the state level. See Mass. Gen. Laws ch. 211A § 10; Zullo v. Goguen, 423 Mass. 679, 681-82 (1996) (holding that orders issued pursuant to ch. 209A can be reviewed "by the filing of an appeal in the Appeals Court"). That he did not appeal the restraining order was by his own choice. Because the state offered him adequate post-deprivation remedies my review of the state-court procedure under § 1983 is foreclosed, see Cronin v. Town of Amesbury, 81 F.3d 257 (1st Cir. 1996), even if, as appears unlikely, Egy would be the proper defendant in connection with a procedural due process claim.
Regardless of Rosenfeld's chances of success on the merits on this count, the Rooker-Feldman doctrine and the full faith and credit statute, 28 U.S.C. § 1738, preclude my ability to revisit this issue.
Including whether a police officer may properly be named as a defendant in a claim alleging a court order was issued in violation of the Fourth Amendment.
First, pursuant to the Rooker-Feldman doctrine, this court lacks jurisdiction to review the issuance of the restraining order. The Rooker-Feldman doctrine provides that no federal district or appellate court has jurisdiction to review state court judgments. Sheehan v. Marr, 207 F.3d 35, 39-40 (1st Cir. 2000); see District of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). For federal claims not presented in state court, Rooker-Feldman "forecloses lower federal court jurisdiction over claims that are 'inextricably intertwined' with the claims adjudicated in a state court." Sheehan, 207 F.3d at 39-40. A federal claim is "inextricably intertwined with the state-court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it." Hill v. Conway, 193 F.3d 33, 39 (1st Cir. 1999). The logic of this rule stems from the proposition that if a federal court were able to grant relief from the state-court judgment, it would be "difficult to conceive the federal proceeding as, in substance, anything other than a prohibited appeal of the state-court judgment." Hill, 193 F.3d at 39.
In this case, Rosenfeld is in essence seeking an appeal of a state-court judgment through his claim. Rosenfeld apparently did not present a federal claim in state court, but the one he appears to present here is inextricably intertwined with the state-court judgment at issue because, at its core, his claim is that the state court should not have issued Charlotte Rosenfeld a restraining order under Mass. Gen. Laws ch. 209A. Thus, under Rooker-Feldman, this court lacks jurisdiction to hear Rosenfeld's federal claim, which is nothing more than a prohibited appeal from a state-court judgment.
Second, 28 U.S.C. § 1738 requires this court to give "the same preclusive effect to state court judgments — both as to claims and issues previously adjudicated — as would be given in the state court system in which the federal court sits." Keystone Shipping Co. v. New England Power Co., 109 F.3d 46 (1st Cir. 1997) (citing Kyricopolous v. Town of Orleans, 967 F.2d 14 (1st Cir. 1992)). A state-court issued judgment has the same preclusive effect in § 1983 suits as in other federal suits. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 83-85 (1984).
Here, the Probate and Family Court in Massachusetts issued a restraining order against Rosenfeld pursuant to Mass. Gen. Laws ch. 209A. Although Egy was not a party to this proceeding, the doctrine of issue preclusion, or collateral estoppel, bars Rosenfeld from relitigating in federal court whether the issuance of the restraining order was unconstitutional.
Under Massachusetts law, for an issue to have preclusive effect in a subsequent proceeding, four elements must be present: "(1) the issue sought to be precluded must be the same as that involved in the prior action; (2) the issue must have been actually litigated; (3) the issue must have been determined by a valid and binding final judgment; and (4) the determination of the issue must have been essential to the judgment." Keystone Shipping Co. v. New England Power Co., 109 F.3d 46, 51 (1st Cir. 1997) (citing Grella v. Salem Five Cent Savings Bank, 42 F.3d 26, 30 (1st Cir. 1994)). An issue may be "actually decided" where it "constituted, logically or practically, a necessary component of the decision reached in the prior litigation." Grella, 42 F.3d at 30-31; see Keystone Shipping, 109 F.3d at 51 (applying Massachusetts law).
Whether Charlotte Rosenfeld was subject to a substantial likelihood of immediate danger of abuse by her husband has previously been litigated. The issue was decided and settled by the state court when it issued, and then continued, the restraining order. A restraining order issued pursuant to Mass. Gen. Laws ch. 209A is a final order. Bloise v. Bloise, 437 Mass. 1010, 1010 n. 1 (2002) (noting that an order issued pursuant to Mass. Gen. Laws ch. 209A "was final and appealable as a matter of right"); Parekh v. Parekh, 421 Mass. 1009 (1996). Rosenfeld is attempting to relitigate the issue by charging that the issuance of the restraining order was a result of Egy's, not his own, actions. At the hearing, Rosenfeld's counsel conceded that should this Fourth Amendment claim go to trial, testimony regarding whether Charlotte Rosenfeld was actually in immediate danger of abuse would have to be presented. The Rooker-Feldman doctrine, the doctrine of issue preclusion, and the requirement that I give full faith and credit to state judgments under 28 U.S.C. § 1738 precludes me from revisiting this issue. Therefore, I will grant Egy's motion for summary judgment on Count V as it relates to the merits of the restraining order.
ii. Harassment.
Rosenfeld also contends in Count V that Egy "concocted a scheme" of harassment "in an attempt to further damag[e] [Rosenfeld's] credibility before the Norfolk County Probate Court in the divorce proceedings." As evidence of that harassment, Rosenfeld references Egy's attendance and behavior at the dedication ceremony for Rosenfeld's mother, Egy's presence at the Orchard Street house on December 9, 1999, and the fact that Egy made allegations to town official Charles Aspinwall that Rosenfeld was involved with stealing a water pump from a nearby sewer plant.
Rosenfeld does not identify in the Complaint what provision of the Constitution was violated by the alleged harassment. However, I will assume that Rosenfeld is alleging some violation of substantive due process. See Cruz-Erazo v. Rivera-Montanez, 212 F.3d 617, 622-24 (1st Cir. 2000) (holding that appellants failed to state a claim for verbal harassment and intimidation under the Due Process Clause, but "leaving open the question" of whether this conduct could "under appropriate circumstances" be found to violate due process). To succeed on a substantive due process claim where the plaintiff identifies no "particular constitutionally protected interest," the plaintiff must prove that the state's conduct shocks the conscience. Cruz-Erazo, 212 F.3d at 622. The First Circuit has stated that an action shocks the conscience when it is "arbitrary and capricious," "runs counter to the concept of ordered liberty," or appears, in context, "shocking or violative of universal standards of decency. Cruz-Erazo, 212 F.3d at 622 (citing Amsden v. Moran, 904 F.2d 748, 753-54 (1st Cir. 1990)).
In Cruz-Erazo, the plaintiffs alleged that their due process rights had been violated by repeated harassment by defendant police officers. The harassment included insults and threats of physical violence against the plaintiffs and one of their daughters, patrol cars passing their house frequently, and one defendant's pushing a plaintiff who miscarried two days later. Id. at 619-20. In evaluating the allegations of harassment, the First Circuit noted that it had failed to find a violation of substantive due process in Pittsley v. Warish, where defendant police officers threatened to kill Pittsley and told her children that they would never see their father again if they caught him. Id. at 623; Pittsley v. Warish, 927 F.2d 3 (1st Cir. 1991). The court also noted that the majority of the conduct alleged by the plaintiffs "was not physically intrusive or violent, nor did it 'strike at the basic fabric' of any protected relationship" such as a parent-child relationship. Id. at 623. The court then held that the conduct alleged by the plaintiffs did not "sufficiently shock the conscience so as to violate substantive due process." Id. at 624.
Egy's alleged actions in this case do not descend to the level of those of the defendant police officers in Cruz-Erazo. There is no evidence in the record that Egy actually attempted to arrest Rosenfeld at any time.
For evidence of Egy's intent to arrest him, Rosenfeld points only to the testimony of Officers Duffy and Quinn. Officer Sherry Lee Duffy states in her deposition that Egy called and told her to tell Dixon that should Rosenfeld show up to the dedication, "he was going to be arrested because Charlotte would be there" and Rosenfeld had a restraining order against him. [Exh. 107: Duffy at 54.] According to Duffy, Egy said, "I'll arrest him myself." Duffy told Sergeant Quinn about the phone call. In his deposition, Egy denies having stated that he would arrest Rosenfeld.
I find that Egy's alleged harassment of Rosenfeld does not demonstrate a violation of due process. Consequently, I will grant Egy's motion for summary judgment on the harassment contentions of Count V.
2. Assault and Battery (Count XIII)
A genuine issue of material fact exists as to Egy's liability for the intentional tort of assault and battery as a result of the events of April 30, 1998.
Under Massachusetts law, an assault and battery is "the intentional and unjustified use of force upon the person of another, however slight, or the intentional doing of a wanton or grossly negligent act causing personal injury to another." Commonwealth v. McCan, 277 Mass. 199, 203 (1931).
Suits against police officers for intentional torts are not barred by the Massachusetts Tort Claims Act, Mass. Gen. Laws ch. 258 § 2, but the standard for liability can be slightly different. A police officer has "the right to use the force which is reasonably necessary to overcome physical resistance by the person sought to be arrested." Julian v. Randazzo, 380 Mass. 391, 396 (1980). Nevertheless, this "reasonableness" standard does not apply to Egy here, because he was not acting in his official capacity as a police officer when the incident occurred.
The disputed aspects of the incident are as follows. According to Egy's testimony, Egy returned to the Millis police station in response to a dispatcher call to meet Rosenfeld at the station. Upon Egy's arrival, according to Rosenfeld, Rosenfeld demanded that Egy stay away from Charlotte, his wife.
Rosenfeld contends that Egy told Rosenfeld "it's not going to fucking happen." Both defendant and plaintiff agree that Egy stated "get the fuck out of here." Then, according to Rosenfeld, Egy struck Rosenfeld with an open palm to Rosenfeld's chest.
According to Egy, however, after showing Rosenfeld the photograph of Charlotte, Egy turned and began walking into the police station. At that point, in Egy's words, Rosenfeld was "hanging on my back saying in my ear stop talking to my wife." Egy stated that at the time Rosenfeld was pushing toward him and was "literally right on my back" as Egy was walking through the door. Egy states that prior to turning around, Rosenfeld was touching Egy "[w]ith his whole body leaning over" his back and whispering in his ear.
At that point, Egy turned around, "put [his] hand out" and told Rosenfeld to "get away" from him. Egy testified that he believed it was necessary to put out his hand to stop Rosenfeld from approaching Egy to continue touching Egy physically, and that Rosenfeld pushed his body towards the weight of the fingers of Egy's hand.
Based on these facts, there is a genuine issue of fact as to whether Egy is liable for assault and battery. For this reason, I will deny Egy's motion for summary judgment on Count XIII, although as will appear below I decline to exercise supplemental jurisdiction over this claim.
3. Negligent Infliction of Emotional Distress (Count X)
Rosenfeld's claim against Baima for Negligent Infliction of Emotional Distress was dismissed by me on August 21, 2001.
To recover for negligent infliction of emotional distress, a plaintiff must allege and prove that he "suffered physical harm as a result of the conduct which caused the emotional distress," and that harm "must be manifested by objective symptomatology and substantiated by expert medical testimony." Payton v. Abbott Labs, 386 Mass. 540, 556 (1982).
Rosenfeld argues that he "provided the defendants photocopies of his medical records evidencing the physical harm he sustained as a result of the severe emotional distress." In a footnote, he states that "[f]or purposes of judicial economy, copies of Rosenfeld's medical records have not been submitted with this Memorandum. Rosenfeld will provide this Court said medical records upon request." Opp. Memo at 47. While concerns for "judicial economy" are always appreciated, without any evidence on the record (which includes some 111 exhibits submitted by Rosenfeld as to which concerns for "judicial economy" were apparently not so salient) of Rosenfeld's physical harm, his opposition to dismissal of this count fails for lack of evidentiary support in the record.
I note, in any event, that Egy would be immune for negligent actions taken in the scope of his employment pursuant to the Massachusetts Tort Claims Act, Mass. Gen. Laws ch. 258 § 2. See, e.g., Fratus v. Board of Select Men of Yarmouth, 17 Mass. App. Ct. 1036 (1984).
Consequently, I will grant Egy's motion for summary judgment on Count X.
C. Claims Against Baima
In Counts IV and VIII, Rosenfeld alleges that Egy is liable under the Massachusetts Civil Rights Act. Mass. Gen. Laws ch. 12 § 11(I). As with the civil rights claims against Egy, see note 6 supra, I will note where differences between federal and state causes of action are potentially dispositive with respect to Baima. Otherwise, I will treat the two statutes as coextensive for the purposes of this action.
Rosenfeld alleges that Baima violated Rosenfeld's constitutional rights by ordering the surrender of his firearms license, by subsequently refusing to renew the license, and by failing to take measures to prevent Egy's unconstitutional actions against him.
a. Surrender of license (Count III)
Rosenfeld charges that by ordering Rosenfeld to surrender his license, Baima violated his rights under the First Amendment, the Equal Protection Clause, and the Due Process Clause. I will address each of these claims in turn.
First, I note that Rosenfeld has already attempted to raise these issues on the state court level. In May 1998, Rosenfeld filed a claim contesting the suspension of his firearms license in Massachusetts state court. Days after Baima ordered Rosenfeld to surrender his license, Rosenfeld petitioned the Wrentham District Court for "reinstatement of his license to carry firearms." Rosenfeld named as defendants Chief Baima, the Millis Police Department, and the Town of Millis. A review of Wrentham District Court documents, which were submitted by Rosenfeld after the hearing upon the request of this court, reveals that, on July 29, 1998, the court dismissed the action for reinstatement "in view of expiration of permit and pending application for renewal, motion not yet acted upon by Chief."
Rosenfeld's license expired in June 1998.
The Wrentham District Court's dismissal of Rosenfeld's action does not have the force of res judicata under Massachusetts law. For the purposes of the doctrine of res judicata, "a dismissal based on mootness is not a decision on the merits." Fabrizio v. U.S. Suzuki Motor Corp., 362 Mass. 873, 874 (1972).
Therefore, even though Rosenfeld chose to appeal the suspension of his license, no final state judgment on the merits has been issued on that claim. Because I am only required to give the same preclusive effect to state court judgments as would be given in the Massachusetts state court system, I am not precluded from hearing Rosenfeld's § 1983 claim regarding the suspension of his license. Keystone Shipping Co., 109 F.3d at 51; see 28 U.S.C. § 1738.
As will appear in Section II.C.1.b., infra, however, qualified immunity would bar any damage claims against Baima for the license suspension.
i. Procedural Due Process (Count III)
Regardless of the non-binding effect of the prior state court litigation on this claim, however, Rosenfeld's action for procedural due process is barred because he has not shown that the state failed to provide him with an adequate post-deprivation remedy. See Cronin v. Town of Amesbury, 81 F.3d 257 (1st Cir. 1996). In fact, Massachusetts provides an adequate post-deprivation remedy for the revocation or suspension of firearms licenses under Mass. Gen. Laws ch. 140 § 131. That Rosenfeld was unsuccessful in invoking that process is not dispositive, the process was regularly available and nothing about the outcome demonstrates inadequacy. Therefore, I will grant Baima's motion for summary judgment on Count III as to procedural due process.
In his opposition to defendants' motion for summary judgment, Rosenfeld argues that he was denied an adequate post-deprivation remedy for the suspension of his license because Baima illegally "seized" the license, rather than suspending or revoking it. As evidence of the inadequacy of state remedies available to Rosenfeld, he states in an affidavit that the Wrentham District Court had dismissed his appeal on the grounds that "no statutory controversy had been presented because said license was not suspended or revoked," but instead seized. The Wrentham District Court docket regarding Rosenfeld's appeal, which was submitted after the hearing, reveals that his claim was not dismissed on this basis.
To the extent that Rosenfeld asserts that the surrender of his license constituted an unlawful "seizure" in violation of the Fourth Amendment, his argument is unsuccessful. Revoking a firearms license in the manner effected by Baima is not clearly proscribed by law. Ordering the surrender of Rosenfeld's license was the functional equivalent of ordering its revocation. Consequently, because Baima did not violate clearly established Fourth Amendment law by ordering the surrender of Rosenfeld's firearms license, he is entitled to qualified immunity. See Suboh v. Dist. Attorney's Office of the Suffolk Dist., 298 F.3d 81, 90 (1st Cir. 2002).
ii. First Amendment (Count III)
Rosenfeld argues that Baima ordered the surrender of his gun license in political retaliation for Rosenfeld's 1987 testimony against Baima before the Millis Board of Selectmen. Because this retaliation is said to stem from Rosenfeld's testimony, he argues that it constituted a violation of his First Amendment rights.
In a political retaliation case, the plaintiff must satisfy a threshold burden of producing sufficient evidence that the plaintiff's constitutionally protected speech was a "substantial" or "motivating" factor behind the defendant's action. Acevedo Diaz v. Aponte, 1 F.3d 62, 66 (1st Cir. 1993); see Padilla-Garcia v. Guillermo Rodriguez, 212 F.3d 69 (1st Cir. 2000); Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996); Shabazz v. Cole, 69 F. Supp.2d 177 (D.Mass. 1999). If the plaintiff meets that burden, the burden shifts to the defendant to articulate a non-discriminatory basis for the action and prove by a preponderance of the evidence that it would have been taken without regard to the plaintiff's speech. Acevedo-Diaz, 1 F.3d at 66; Collins v. Nuzzo, 244 F.3d 246, 251 (1st Cir. 2001); see Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).
The Supreme Judicial Court has found a cause of action under § 1983 may be stated for political retaliation resulting in the revocation of a gun license. Rzeznik v. Chief of Police of Southampton, 374 Mass. 475 (1978) (§ 1983 claim for revocation of a firearms license where defendant chief of police initiated proceedings to revoke plaintiff's firearms licenses the day after plaintiff testified adversely against defendant before the grand jury).
Taken in the light most favorable to the plaintiff, Rosenfeld has not provided enough evidence of Baima's dissatisfaction with his 1987 testimony before the Millis Board of Selectmen to satisfy his threshold burden. It is conceded that Rosenfeld's testimony was against Baima's interests. And, according to Rosenfeld, Baima made it "unequivocally clear" that he "intended to retaliate against Rosenfeld for the testimony he provided to the Board of Selectmen." For this proposition, Rosenfeld cites to the testimony of Sergeant Roderick MacLeod and Officer Robert Dixon. Sergeant MacLeod testified that, in a conversation about "the now board of selectmen," Baima said, "They're just as bad as the last, they're after me. . . . I am going to get everybody that tried to screw me during those years." Officer Dixon testified that, sometime during 1998 or 1999, Baima "let it be known that anybody that spoke against him at the Baima hearings he was going to go after." But this evidence of free floating disposition toward revenge, even if — as it must be at this stage — read in the light most favorable to the plaintiff, is not enough to demonstrate the requisite substantial or motivating factor for Baima's actions.
It is apparent that Baima made the decision to remove Rosenfeld from active duty after learning of Rosenfeld's alleged abuse, seeing a photograph of Charlotte Rosenfeld, and having knowledge of Egy's "counter allegations" against Rosenfeld of assault. After suspending Rosenfeld, Baima testified that he then called the Norfolk County Sexual Assault Unit. Under these circumstances, the decision to require surrender of the firearm license was a prudent decision which would have been made irrespective of any retaliatory animus lingering after ten years. Cf. Dressler v. Daniel, No. 01-2569, Slip Op. at 8 (1st Cir. Jan. 9, 2003) (granting summary judgment for defendant on Title VII retaliatory discharge claim given passage of time between alleged retaliation event and alleged cause).
Taken in the light most favorable to Rosenfeld, I find no material dispute of fact as to Baima's motivation in denying Rosenfeld's firearms license. I recognize that "[s]ummary judgment is to be used sparingly when intent or motive is at issue." Aponte-Santiago v. Lopez-Rivera, 957 F.2d 40, 43-44 (1st Cir. 1992) (citing Catrone v. Thoroughbred Racing Ass'ns, 929 F.2d 881 (1st Cir. 1991)). Nevertheless, where, as here, the motivating factor is plainly independent of a retaliatory purpose, summary judgment is appropriate. Accord Crawford-El v. Britton, 523 U.S. 574, 593 (1998). The record is clear that Baima would have reached the same result regardless of Rosenfeld's statements a decade before. Cf. Lewis v. City of Boston, No. 02-1495, Slip Op. at 21 (1st Cir. Jan. 28, 2003). Accordingly, I will grant Baima's motion for summary judgment on Count III on First Amendment grounds.
iii. Substantive Due Process (Count III)
Rosenfeld also argues that the termination of his employment and confiscation of his license was a violation of his substantive due process rights under the Constitution.
An action is a violation of substantive due process where it is an "abuse of government power that shocks the conscience" or "is legally irrational in that it is not sufficiently keyed to any legitimate state interests." Collins v. Nuzzo, 244 F.3d 246, 250 (1st Cir. 2001) (citing PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28, 31 (1st Cir. 1991)). "Where a license or permit denial is involved, the class of cases which meets the constitutional threshold is narrowly limited." Nuzzo, 244 F.3d at 250. This demanding standard is also applicable in situations involving the revocation of a license. See Nuzzo, 244 F.3d at 251; Amsden v. Moran, 904 F.2d 748 (1st Cir. 1990) (revocation of land surveying license). The First Circuit has stated that a violation occurs only in a "truly horrendous situation." Nestor Colon, 964 F.2d at 45. The standard is "unforgiving" and "guards against 'insinuat[ing] the oversight and discretion of federal judges into areas traditionally reserved for state and local tribunals." Nestor Colon, 964 F.2d at 45.
In Amsden, the plaintiff charged that the defendant board of land surveyors revoked his land surveying license motivated, in part, by animosity. Amsden, 904 F.2d at 751. The First Circuit held that summary judgment was properly granted for the plaintiff because, as a matter of fact, the defendants' treatment of the plaintiff was not so "shocking or violative of universal standards of decency" and, as a matter of settled constitutional law, even the bad-faith, malicious denial of a license "does not amount to a deprivation of due process where the state courts are available to correct the error." Id. at 757-58 (citing Chiplin Enterprises, Inc. v. City of Lebanon, 712 F.2d 1524, 1526 (1st Cir. 1983)).
Even assuming Rosenfeld's allegations of malice are true, a situation similar to Amsden presents itself here; and a similar result is appropriate. The revocation of Rosenfeld's firearms license — and the parallel removal of Rosenfeld from the active duty roster — does not amount to a deprivation of due process because it is neither shocking nor violative of universal standards of decency. Accordingly, I will allow the defendant's motion for summary judgment as to the substantive due process dimension to Count III.
iv. Equal Protection (Count III)
Rosenfeld also alleges that "Baima's conduct constituted a misuse of his government position and was arbitrary, capricious and overly broad so as to constitute an abuse of discretion which violated his . . . equal protection rights." The "conduct" referred to in Count III includes "Baima's termination of Rosenfeld's employment and confiscation" of his firearms license.
A violation of equal protection has occurred only where there has been a "'gross abuse of power, invidious discrimination, or fundamentally unfair procedures' or some sort of unjustified disparate treatment with respect to similarly situated" persons. Nuzzo, 244 F.3d at 251 (citing Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 832 n. 9 (1st Cir. 1982)).
Rosenfeld provides no significant evidence that Baima treated him differently from similarly situated police officers by removing him from active duty and ordering him to surrender his firearms license. Rosenfeld does point out that Baima did not think that he had ever "ceased" an individual's license without "suspending or revoking" it. Nonetheless, there is no evidence that Rosenfeld was treated differently than other police officers who had been accused of domestic abuse. Moreover, even if there were such evidence, Baima's conduct would not have been unjustified on its own terms in light of the allegations of abuse. Accordingly, I will grant Baima's motion for summary judgment on the equal protection branch of Count III.
b. Renewal of license (Count III)
It is Rosenfeld's contention that Baima's decision not to renew his firearms license was a violation of due process, equal protection, and the First Amendment. First, I note that Rosenfeld's procedural due process claim fails, because he has an adequate post-deprivation remedy for the denial of his license. See Cronin v. Town of Amesbury, 81 F.3d 257 (1st Cir. 1996). At the hearing on the pending motions, Rosenfeld's counsel stated that, in October 1998, Rosenfeld had filed an action in Wrentham District Court appealing the denial of his license. By his account, this appeal is still pending and the only issue outstanding in the appeal is "whether the determination by the Millis Police Department concerning Rosenfeld's gun application was proper."
Rosenfeld has ample opportunity to raise his substantive due process, equal protection, and First Amendment constitutional concerns regarding the license denial in the state court appeal proceedings. In light of the fact that these proceedings are still pending, to the extent that Rosenfeld is seeking declaratory or injunctive relief against, inter alia, Chief Baima, I invoke Younger abstention and refuse to grant such relief. See Younger v. Harris, 401 U.S. 37 (1971); Bettencourt v. Bd. of Registration in Medicine of the Commonwealth of Mass., 904 F.2d 771 (1st Cir. 1990).
Rosenfeld does not specifically seek declaratory or injunctive relief in the Complaint, but does seek "such other and further relief as this Court deems just and necessary."
To the extent that Rosenfeld is seeking damages for the denial of his license, because it appears that he is unable to seek damages in his appeal under Mass. Gen. Laws ch. 140 § 12B(5) or § 131(f), I would arguably be obligated to stay that portion of his claim against the possibility that the state court rules in his favor. See Deakins v. Monaghan, 484 U.S. 193 (1988); Kyricopoulos v. Town of Orleans, 967 F.2d 14, 15 n. 1 (1st Cir. 1992); Bettencourt v. Bd. of Registration in Medicine of the Commonwealth of Massachusetts, 904 F.2d 772 (1st Cir. 1990). However, I will not do so because, even if he were to prevail on the merits of his appeal, he has not demonstrated that the denial of the license renewal transgressed clearly established law. Consequently, I find Baima entitled to qualified immunity for refusing to renew Rosenfeld's expired firearms license.
Qualified immunity is equally applicable to any damages claim for Baima's suspension of Rosenfeld's firearm license.
A government official is entitled to qualified immunity when he does not violate clearly established law. It is not clearly established law that an individual who is the subject of substantiated allegations of domestic abuse is entitled to renewal of an expired firearms license, even where the motivation of the official charged with renewing the license is at issue.
The First Circuit utilizes a three-part test to determine whether a government official is entitled to qualified immunity. Suboh v. Dist. Attorney's Office of the Suffolk Dist., 298 F.3d 81, 90 (1st Cir. 2002). The "threshold inquiry" is whether the plaintiff's allegations, "if true, establish a constitutional violation." Suboh, 298 F.3d at 90 (citing Hope v. Pelzer, ___ U.S. ___, 122 S.Ct. 2508, 2513 (2002)). Second, a court must inquire whether the right was clearly established at the time of the alleged violation. Suboh, 298 F.3d at 90. The final question is "whether a reasonable officer, similarly situated, would understand that the challenged conduct violated that established right." Id.
Rosenfeld has charged that Baima's denial of the application for license renewal was motivated by Rosenfeld's 1987 testimony against Baima. On summary judgment, allegations of retaliation for the exercise of free speech must be addressed with great sensitivity and careful analysis, so as not to foreclose an avenue of redress prematurely. See Crawford-El v. Britton, 523 U.S. 574 (1998); see also Acevedo-Garcia v. Vera-Monroig, 204 F.3d 1 (1st Cir. 2000). Nevertheless, where the evidence of improper motive is so thin, and where the official would properly be subject to criticism for taking the course of action sought by the plaintiff, it is eminently reasonable and not a violation of clearly established First Amendment law when the official acts adversely to a plaintiff such as Rosenfeld. This same reasoning applies a fortiori to Rosenfeld's substantive due process and equal protection claims. In light of the circumstances, Baima had ample reason to deny Rosenfeld access to firearms. The plaintiff is plainly unable to show that the decision was a violation of clearly established law. Therefore, I find that, regardless of the outcome of the pending state proceedings, Baima is entitled to qualified immunity for his involvement in the denial of Rosenfeld's application to renew his firearms license.
c. Supervisory Authority (Count VII)
Rosenfeld contends that Baima knew or should have known that Egy was taking actions to violate Rosenfeld's constitutional rights, but took "no measures whatsoever" to prevent the violations. The actions at issue include: (1) Egy's participation in any investigation concerning Rosenfeld, (2) Egy's preparation of the 3/11/99 report regarding Rosenfeld's compliance with the restraining order, (3) Egy's persuasion of Charlotte Rosenfeld to pursue a restraining order against Rosenfeld, (4) the submission of the report to the probate court without attempting to confirm its legitimacy, (5) Egy's interaction with Charlotte Rosenfeld, and (6) Egy's attendance at the Hindy Rosenfeld Dedication Ceremony.
In the First Circuit, "[a] supervisory officer may be held liable for the behavior of his subordinate officers where his action or inaction is affirmatively linked . . . to [the behavior of his subordinate officers] in the sense that it could be characterized as supervisory encouragement, condonation or acquiescence or gross negligence amounting to deliberate indifference." Wilson v. Town of Mendon, 294 F.3d 1, 6 (1st Cir. 2002) (citations omitted); see Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir. 1989). If the officer "has inflicted no constitutional harm," the supervisor cannot be held liable. Wilson, 294 F.3d at 6. As discussed above, Egy effected no violation of the plaintiff's constitutional rights. With no underlying constitutional violation, I find that Baima cannot be liable under § 1983 for his alleged supervisory actions or inactions. Accordingly, I will grant Baima's motion for summary judgment on Count VII.
2. Malicious Interference with Employment (Count XIV)
The Complaint identifies this claim as Count IV, but it is set forth after Count XIII and the Complaint already contains a Count IV. Accordingly, I style it as Count XIV.
The scope of the common law claim of "malicious interference with employment" is unclear. See Kibbe v. Potter, 196 F. Supp.2d 48, 71 (D.Mass. 2002). The claim appears to encompass both intentional interference with contractual relations and intentional interference with business relations. Kibbe, 196 F. Supp.2d at 71. Intentional interference with contractual relations requires the presence of a contract. Because no employment contract between Rosenfeld and the Millis Police Department is present on the record before me, I find that the characterization of this claim as "intentional interference with business relations" is the only potentially appropriate one. See Kibbe at 71.
To succeed on a claim for intentional interference with business relations, Rosenfeld must prove that "(1) he had a business relationship for economic benefit with [the Millis Police Department], (2) [Baima] knew of the relationship, (3) [Baima] interfered with the relationship through improper motive or means, and (4) [Rosenfeld's] loss of advantage resulted directly from the defendants' conduct." Kurker v. Hill, 44 Mass. App. Ct. 184, 191 (1998).
The record establishes that Baima would have reached the same result regardless of any residual animus against Rosenfeld, cf. Lewis v. City of Boston, No. 02-1495, Slip Op. at 21 (1st Cir. Jan. 28, 2003), and consequently vitiates any claim of improper motive or means. The record is devoid of any evidence of damages Rosenfeld suffered as a result of his removal from the active duty roster at the Millis Police Department as a reserve intermittent police officer. Rosenfeld was not scheduled for another shift "in the near future" at the time he was removed from the active duty roster. Rosenfeld Dep. Day 2 at 51. No evidence supports Rosenfeld's assertion that he is "incapable of procuring similar work with any other police department." Complaint ¶ 159. Without the requisite showing of damages, I find that Rosenfeld's claim for malicious interference with employment fails. See Kibbe at 72 (granting defendant summary judgment on malicious interference with employment claim because plaintiff provided "absolutely no evidence" that either plaintiff "actually suffered any damages," a "required element for a claim for interference with advantageous relations"). Accordingly, I will allow defendant's motion for summary judgment on Count XIV.
D. Claims against both Baima and Egy
1. Intentional Infliction of Emotional Distress (Count IX)
To prevail on his claim for intentional infliction of emotional distress, Rosenfeld must establish "(1) that the defendant[s] intended to inflict emotional distress, or knew or should have known that emotional distress was the likely result of [their] conduct, but also (2) that the defendant[s'] conduct was extreme and outrageous, beyond all possible bounds of decency and utterly intolerable in a civilized community, (3) the actions of the defendant[s] were the cause of the plaintiff's distress, and (4) the emotional distress suffered by the plaintiff was severe and of such a nature that no reasonable person could be expected to endure it." Tetrault v. Mahoney, Hawkes Goldings, 425 Mass. 456, 466 (1997) (citing Payton v. Abbott Labs, 386 Mass. 540, 555 (1982) and Agis v. Howard Johnson Co., 371 Mass. 140 (1976)).
In the complaint, Rosenfeld alleges that the "acts of the defendant were extreme and outrageous and were committed intentionally for the purpose of inflicting severe emotional distress upon the plaintiff" and that he suffered emotional distress as a result of their actions. He does not state which of Egy's and Baima's acts form the basis of this claim, consequently I will consider all of the acts alleged.
Rosenfeld has alleged facts sufficient to raise a dispute of material fact as to the emotional distress he suffered from defendants' actions. Nonetheless, none of Egy's or Baima's acts as alleged in the Complaint, individually or taken as a whole, supports a finding of intentional infliction of emotional distress. Even if motivated by an intent to harm Rosenfeld, Baima's and Egy's actions cannot fairly be characterized as "extreme," "outrageous," or "beyond all bounds of decency." Cf. Boyle v. Wenk, 378 Mass. 592, 595 (1979) ("Repeated harassment . . . may compound the outrageousness of incidents which, taken individually, might not be sufficiently extreme to warrant liability for infliction of emotional distress.") Accordingly, I find that Baima and Egy are not liable for intentional infliction of emotional distress and will grant their motions for summary judgment on Count IX.
As proof of his distress, Rosenfeld cites to his deposition. In this portion of his deposition, Rosenfeld states that, as a result of Baima and Egy's actions he "suffered severe emotional distress," visits a therapist on a regular basis, and visits a psychiatrist on a regular basis. In addition, on account of "what was happening to me between Egy, Baima and my wife," Rosenfeld was too "emotionally stressed out" to plant crops in 1998 and 1999. He eventually decided he was not going to do any more farming in 2000 or 2001 and that "what Egy, Baima and my wife did, that had something to do with it." He also took anti-depressant medication for his stress and mental health difficulties.
2. Abuse of Process (Count XII)
Rosenfeld contends that Baima and Egy are liable for abuse of process because Baima and Egy "enticed Charlotte Rosenfeld to procure a Restraining Order against Rosenfeld" even though they knew or should have known that he did not engage in criminal activity.
This state-law action for abuse of process is fundamentally different than the § 1983 action brought against Egy for a violation of the Fourth Amendment, which was discussed above in Section II.B.1.b. In the present abuse of process action, the claim arises from the charge that the defendants coerced Charlotte Rosenfeld into obtaining a restraining order. In the Fourth Amendment action, the claim necessarily arises out of the alleged unlawful "seizure": the issuance of the restraining order itself.
The tort of malicious abuse of process consists of "the use of lawful process primarily for a purpose for which it is not designed." Gutierrez v. Mass. Bay Transportation Auth., 437 Mass. 396 (2002). "'[P]rocess' refers to the papers issued by a court to bring a party or property within its jurisdiction." Jones v. Brockton Public Markets, Inc., 369 Mass. 387 (1975). Abuse of process can refer to misrepresentations that "caused papers to issue by a court." Gutierrez, 437 Mass. at 408-409 (abuse concerned "falsified arrest reports that served as the basis for sworn applications for complaints"); Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760, 775-76 (1986) (abuse concerned misrepresentations in initial complaint). To show an abuse of process, the plaintiff must show that "process was used to accomplish some ulterior purpose for which it was not designed or intended, or which was not the legitimate purpose of the particular process employed." Bednarz v. Bednarz, 27 Mass. App. Ct. 668, 673 (1989) (citing Quaranto v. Silverman, 345 Mass. 423, 426 (1963)). The abuse must result in damage. Gutierrez, 437 Mass. at 407; Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. at 775-76.
Rosenfeld's claim founders on the direction in Massachusetts law that officers of the law are required to "use all reasonable means to prevent further abuse," whenever they have reason to believe a person "has been abused or is in danger of being abused." Mass. Gen. Laws ch. 209A § 6. In light of this statute, Rosenfeld cannot support on this record a viable claim of abuse of process against a police officer for "coercing" a victim of abuse into bringing a restraining order against the plaintiff. Accordingly, I will allow defendants' motions for summary judgment on Count XII.
3. Civil Conspiracy (Count XI)
Count XI is entitled "Civil Conspiracy." The Complaint does not state whether the cause of action arises under state common law or under § 1983. I find the conclusory statements in the Complaint alleging a civil conspiracy insufficient to create a cause of action under § 1983. It has "long been the law" in the First Circuit that complaints alleging a civil conspiracy under § 1983 "cannot survive a motion to dismiss if they contain conclusory allegations of conspiracy but do not support their claims with references to material facts." Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir. 1977); Torres Rosado v. Rotger Sabat, 204 F. Supp.2d 252, 268 (D.P.R. 2002) (denying plaintiff's motion for summary judgment on same grounds). The Complaint merely alleges that the defendants "combined together in the form of an orchestrated conspiracy and entered into a plan to punish Rosenfeld" and to "threaten, intimidate and coerce Rosenfeld into relinquishing constitutional rights granted to him." The Complaint further alleges that defendants' conduct "was a combination entered into for an unlawful purpose and employed unlawful means in attempting to procure same." These allegations are conclusory and, as such, insufficient to support a § 1983 civil conspiracy action against the defendants. Rosenfeld does allege that Baima knew or should have known of a number of Egy's actions, and that his behavior constituted condonation of some of those activities, (e.g., ¶ 127, ¶ 128) but provides no material facts to support his conclusory allegations that the two were involved in a civil conspiracy.
Rosenfeld alleges that Baima and Egy "combined together in the form of an orchestrated conspiracy and entered into a plan to punish Rosenfeld" as well as to "threaten, intimidate and coerce [him] into relinquishing" his constitutional rights. In his Complaint, Rosenfeld provides no specific instances of the conspiracy. In his opposition to defendants' motions for summary judgment, however, he charges that the "existence of a conspiracy between Baima and Egy is the only logical explication for their outrageous conduct toward Rosenfeld." Memo Opp. at 48. Despite this allegation, in light of the record before me, I find no adequate evidence of a civil conspiracy between Baima and Egy.
In Massachusetts, there are two types of civil conspiracy. Kurker v. Hill, 44 Mass. App. Ct. 184, 188 (1998). The first arises where there is "no independent basis for imposing tort liability — where the wrong was in the particular combination of the defendants rather than in the tortious nature of the underlying conduct." Id. Under this theory, the element of coercion is required. Id. In the second type, the conspiracy "derives from 'concerted action,' whereby liability is imposed on one individual for the tort of the other." Id.
Under the two theories of civil conspiracy, liability cannot attach without evidence that the defendants acted "in combination" or to forward "a common plan." Fleming v. Dane, 304 Mass. 46, 50 (1938) (first theory); Kurker v. Hill, 44 Mass. App. Ct. 184 (1998) (second); Stock v. Fife, 13 Mass. App. Ct. 75, 82 n. 10 (1982) (second).
None of the evidence provided by Rosenfeld in his opposition to the defendants' motions for summary judgment supports the existence of a common plan on the part of Baima and Egy. To the contrary, evidence provided by the Millis Police Department's now-Sergeant MacLeod and Officer Dixon suggests that Baima said he was going to "get" or "get even with" everyone who testified against him before the town board of selectmen in 1987. Egy, of course, was one of the individuals who testified against Baima at that time. No joint venture between the two is inferable on its face in this setting.
Rosenfeld's arguments in support of his action for civil conspiracy are insufficient. Rosenfeld, for example, argues that Baima removed Rosenfeld from the duty roster and demanded Rosenfeld surrender his weapon and license to carry after having conducted no investigation of Egy's allegations of domestic abuse "in alleged reliance upon the District Attorney for same." But this action, even if properly characterized, does not point to a common plan between Baima and Egy.
Rosenfeld also argues that evidence of a conspiracy can be found in the fact that Baima rescinded Egy's administrative leave but did not reinstate Rosenfeld. In actuality, Baima only reinstated Egy upon satisfaction of a number of conditions. The fact that Baima reinstated Egy subject to a number of conditions undercuts Rosenfeld's argument that Baima and Egy were involved in a conspiracy together. If anything, it demonstrates that Baima was attempting to prevent potential wrongdoing on Egy's part and occasions for further conflict between Rosenfeld and Egy.
In addition, Rosenfeld argues that Baima determined Rosenfeld to be an unsuitable person and refused to renew his gun license, even though he possessed a letter of reference from Charlotte Rosenfeld, and that this decision not to renew the license was based solely upon Egy's initial allegations of domestic abuse. Even assuming the truth of these allegations, they do not prove that Baima was involved in a common plan with Egy.
Finally, Rosenfeld argues that Baima was aware of Egy's intent to wrongfully arrest Rosenfeld at his mother's dedication ceremony under the auspices of violating the restraining order, but did nothing to stop him. There is no evidence in the record to support this argument. According to the testimony of Officer Quinn, Baima told Quinn that there was a possible necessity for more men to be appointed for the dedication and to add more men for the detail. Quinn stated to Baima that there were already three of them and he didn't think there would be a problem for "just a dedication at the town office across from the police station." Baima was "hesitant" and "thought maybe I should get a couple more men." Baima never explained to Quinn his reasons for his hesitancy. Baima specifically told Quinn not to have MacLeod or Egy on the detail. According to Quinn, Baima "just didn't think they should be over there on duty as a police officer for the dedication because of all the incidents that had happened." Also according to Quinn's testimony, after the ceremony, Egy told Quinn that Baima knew of his intentions to arrest Rosenfeld at the dedication ceremony. Moreover, Officer Duffy told Quinn that Baima had told her that he knew of Egy's intent to arrest Rosenfeld at the dedication ceremony. On this evidence, Baima, knowing of Egy's intent, sought to avoid having him "over there."
According to Duffy's testimony, Duffy overheard Baima ask Quinn to put an extra man on for the dedication. The day before the dedication, Duffy got a call from Egy who said he wanted Duffy to tell Dixon that should Rosenfeld show up to the dedication he was going to be arrested. According to Duffy, Egy said, "He has a restraining order on him and if he's near her, he will be arrested. I'll arrest him myself." Duffy asked Egy if Baima knew about this and Egy said: "The chief knows about this." Duffy called Quinn to talk to him about it.
This evidence shows that Baima may have known about Egy's intentions at the dedication ceremony, and that he wanted extra officer(s) to be present at the ceremony just in case. More importantly, it shows that Baima did not want Egy to be present at the ceremony in his official capacity. There is no evidence of Egy and Baima having a combined plan in this record.
Rosenfeld has failed to provide evidence that Baima and Egy acted in combination, consequently, his claim for civil conspiracy must fail.
III. CONCLUSION
For the reasons set forth more fully above, defendants' motions for summary judgment are GRANTED as to all remaining counts except as to Count XIII against Egy, which is DENIED but regarding which I decline to exercise supplemental jurisdiction under 28 U.S.C. § 1367 and direct that the claim be DISMISSED without prejudice to its pursuit in state court.