Niarchos v. City of Beverly et al

Filing 53

Judge Nancy Gertner: AMENDED MEMORANDUM AND ORDER: The Memorandum and Order of July 7, 2011, is hereby amended and replaced by this Memorandum and Order due to formatting and typographical errors. Every other aspect of the Memorandum remains intact.(GAM)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
CELESTE R. NIARCHOS,
Plaintiff,
v.
CITY OF BEVERLY, et al.,
Defendants.
GERTNER, D.J.:

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Civil Action No. 08cv10747-NG

AMENDED
MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT
July 26, 2011
The Memorandum and Order of July 7, 2011, is hereby amended and replaced by this
Memorandum and Order due to formatting and typographical errors. Every other aspect of the
Memorandum remains intact.
This is a extraordinarily painful story, made even more painful by the fact that federal
constitutional law is inadequate to address it. On the morning of May 18, 2005, Matthew Lewis
("Lewis") called police because his girlfriend Danielle Tarsook ("Danielle") had threatened to
kill herself. Police officers went to her apartment, where Danielle agreed to allow the officers to
take her to the hospital in an unmarked police car. Per Danielle's requests, one of the officers
contacted Danielle's father, Dennis Tarsook ("Dennis"),1 an on-duty police officer in the same
town, and asked him to meet Danielle at the hospital. When Danielle and the officers arrived at
the hospital, Dennis was already there, waiting outside the building. After watching Danielle
and her father walk through the entrance into the main lobby, the officers left. Inside the
hospital lobby, Dennis and Danielle spoke, then argued. Dennis left and drove away in his patrol

1

First names are used here because multiple family members with the same last name are involved.

car. Shortly thereafter, Danielle went back to her apartment, never having been admitted to the
hospital. She committed suicide by hanging herself with an electric cord.
Plaintiff Celeste Niarchos ("Niarchos"), acting as the administratrix of Danielle's estate,
sued the City of Beverly ("the city") and police officers Richard Ganey ("Ganey"), David
Richardson ("Richardson"), and John DiVincenzo ("DiVincenzo") (collectively "the
defendants"). Pursuant to 42 U.S.C. § 1983, Niarchos claims that (1) the individual defendants
were deliberately indifferent to Danielle's serious medical needs in violation of her Fourteenth
Amendment due process rights; and (2) the city failed to train officers in the detection and
implementation of rules and regulations to prevent suicide attempts, also in violation of
Daneille's Fourteenth Amendment due process rights (collectively Count 1). In addition,
Niarchos alleges that the defendants, by threats, intimidation, or coercion, deprived Danielle of
her federal and state rights in violation of the Massachusetts Civil Rights Act ("MCRA"), Mass.
Gen. Laws ch. 12, §§ 11H, 11I (Count 2), and that the city negligently failed to prevent
Danielle's suicide in violation of Mass. Gen. Laws ch. 258, § 2 (Count 3).
Defendants moved for summary judgment, arguing that: 1) they had not deprived
Danielle of any federally protected right; 2) they were not deliberately indifferent or willfully
blind to the risk that Danielle might harm herself; and 3) the city was immune to Danielle's claim
of negligence pursuant to Mass. Gen. Laws ch. 258, § 10(j).
The outcome of this case is determined by the Supreme Court 's decision in DeShaney v.
Winnebago County Department of Social Services, 489 U.S. 189 (1989), a widely criticized

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case,2 and various opinions construing it. Since I am constrained by those opinions, I have no
choice but to GRANT the defendants' Motion for Summary Judgment (document #38).
I.

STANDARD OF REVIEW
Summary judgment is appropriate when the record shows that there is no genuine issue

of material fact. Fed. R. Civ. P. 56(c)(2). If the non-moving party "fails to make a showing
sufficient to establish the existence of an element essential to that party's case, and on which that
party will bear the burden of proof at trial," then the moving party is entitled to judgment as a
matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court must take the facts
in the light most favorable to the non-moving party and draw reasonable inferences in that
party's favor. CMI Capital Mkt. Inv., LLC v. Gonzalez-Toro, 520 F.3d 58, 61 (1st Cir. 2008).
II.

BACKGROUND
Taken in the light most favorable to Danielle, the facts surrounding her suicide are as

follows:
A.

Danielle's Background and Events Leading Up to Her Suicide

Danielle was born on December 19, 1985, to Beverly and Dennis Tarsook ("Beverly" and
"Dennis"). Dennis was a sergeant for the Beverly Police Department ("BPD"). Def.'s Stmt. Of

2

Perhaps the most telling criticism, with which this Court sympathizes, is that of Justice Blackmun, in
dissent in DeShaney:
Today the Court purports to be the dispassionate oracle of the law, unmoved by
"natural sympathy." But in this pretense, the Court itself retreats into a sterile
formalism which prevents it from recognizing either the facts of the case before
it, or the legal norms that should apply to these facts.
DeShaney, 489 U.S. at 270. See Barbara E. Armacost, Affirmative Duties, Systematic Harms, and the Due Process
Clause, 94 Mich. L. Rev. 982, 983 n. 8 (1996).

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Undisputed Facts 2 (document #40) [hereinafter, Def.'s Stmt.].3 Beverly and Dennis legally
separated in 2001, and after lengthy litigation, finalized their divorce in 2005. Dennis Dep.
15:3-12, Sept. 22, 2008 (document #40-3). Danielle moved in with her father during her last
year of high school, having previously resided at her mother's Beverly home with her older
brother, Matthew. Danielle graduated from Beverly High School in 2004 and subsequently
enrolled at the University of Massachusetts-Dartmouth. She withdrew from college in December
of 2004 after her first semester, at which point Dennis secured an apartment for her at 28 Rear
("28R") Cabot Street in Beverly, for which he paid the monthly rent. Dennis Dep. 19:6-23:15.
Soon after, Lewis, Danielle's boyfriend, moved into the apartment. The couple lived together
until Danielle's death.
According to Dennis, Lewis, and Danielle's medical records, Danielle had a history of
mental health issues. Dennis claims that the problem was Danielle's eating disorder, which was
the only mental health problem he observed affecting his daughter. Dennis Dep. 26:15-18.
Lewis portrays Danielle as emotionally troubled during the last months of her life, noting that
before her hospitalization in April of 2005, Danielle not only ceased eating; she cried constantly.
Lewis Aff. 4 (document #44-9). Danielle visited Beverly Hospital three times between April 20
and April 23, 2005, for problems related to anorexia. The emergency report from one such visit
on April 22 explained that Danielle reported to have "been mildly depressed over the last 4
months," and "believes she has anorexia and needs help." Beverly Hospital Emergency Report,
Exhibit R (document #44-10). After her third and final hospital visit on April 23, 2005, a nurse

3

The parties' statement of facts cover different aspects of the relevant background information. I cite
defendants' statement of undisputed facts where the plaintiff has admitted the facts at issue. See Pl.'s Response to
Defs.' Stmt. Of Undisputed Facts (document #43).

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at Beverly Hospital -- a wife of one of Dennis' coworkers -- helped Danielle obtain treatment at
Waltham Sterling Hospital. Dennis Dep. 25:12-26:11. Danielle entered inpatient care for
anorexia nervosa at Walden Behavioral Care, a facility within the hospital, where she remained
from April 23 until April 28. Walden Behavioral Care Discharge Summary, Exhibit T
(document #44-12).
On the morning of her death, May 18, 2005, at around 8:30 a.m., Danielle unexpectedly
showed up at Lewis' workplace, Aspen Cooling and Heating in Peabody, Massachusetts,
appearing "upset, anxious, and angry." Lewis Aff. 6-7. Between 30 minutes and an hour after
she left Lewis' workplace, Danielle called him crying, claiming that she was going to kill herself.
Concerned about Danielle's safety, Lewis immediately called the police and spoke with
Patrolman Daniel Skerry ("Skerry"), who was working as a dispatcher at the time.4 Lewis told
Skerry that his girlfriend had "just called and said she was going to kill herself and something
needs to be done." Lewis Aff. 9.5
B.

Police's Arrival at Danielle's Apartment

Skerry dispatched Patrolman Jason F. Lantych ("Lantych"), who was at the police station,
to go down and "check on the well-being of [Danielle Tarsook]" at 28R Cabot Street. Lantych

4

Skerry's duties included answering calls and dispatching police officers to events as he deemed
appropriate.
5

Whether Lewis explicitly expressed concern during the 911 call that Danielle would harm herself is
unclear. Lewis' affidavit is the only account of the call that mentions Danielle was threatening to kill herself. In his
deposition, Skerry said, "I believe [Lewis] had just spoken to Danielle Tarsook and he requested that we send a
patrol officer down to speak to her." Skerry Dep. 28:19-24, April 9, 2008 (document #40-7). Captain DiVincenzo
similarly reported that Officer Skerry called him on a Nextel phone that morning and informed him that Danielle's
"boyfriend had called the station and said he didn't think she would harm herself, but would we send a cruiser by to
check on her." DiVincenzo Dep. 17:2-16, March 3, 2009 (document #40-4) [hereinafter, DiVincenzo Dep. (Part 1)].
The specific content of that call does not change the legal analysis, namely, the application of DeShaney to these
facts.

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Dep. 28:19-24, April 6, 2009 (document #40-8). According to a Q sheet -- a computer entry
that a dispatcher initiates when a call comes into a station, which contains facts and brief
comments6 -- that Lantych completed after the incident, he was "sent to 28R Cabot to check on
[the] well-being of female party possibly wanting to harm herself." Incident Report, Exhibit H
(document #40-9). Around the same time, DiVincenzo and Ganey also left the station and
traveled to Danielle's place.
The reason that they went to Danielle's apartment remains unclear; DiVincenzo asserts
that Skerry sent him, but Skerry says that he does not know how or why DiVincenzo was
dispatched or who told DiVincenzo to go to the address. See DiVincenzo Dep. (Part 1), 10:1420; Skerry Dep. 58:7-15. Ganey reports that DiVincenzo asked him for a ride and that he agreed
without knowing the reason for the trip. Ganey Dep. 36:22-24, April 21, 2009 (document
#40-6). According to Ganey, once in the car, DiVincenzo told him that he had been notified at
the station of Danielle's boyfriend's call; however, he said that the brevity of the car ride did not
allow for any further discussion. Ganey Dep. 33:20-22. At some point, DiVincenzo called
Richardson, another officer, via Nextel and told him "to meet him at 28 Rear Cabot for an assist
citizen call." Richardson Dep. 27:13-24, April 13, 2009 (document #40-5).
When Lantych arrived at Danielle's apartment, he parked his marked cruiser in the
parking lot outside of Danielle's building. DiVincenzo and Ganey arrived at Danielle's place
soon thereafter and also parked in the lot. Richardson was the last to arrive, but soon after
spotting the other two cars, he received a dispatch from DiVincenzo that "they were all set and to
clear" from the area. Richardson Dep. 30: 15-21. Richardson left the parking lot almost

6

This is how DiVincenzo defined the Q sheet. See DiVincenzo Dep. (Part 1) 25:22-23.

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immediately -- within "maybe thirty to sixty seconds" -- and returned to the office. Richardson
Dep. 31:6-10.
Lantych, DiVincenzo, and Ganey went to Danielle's apartment, and DiVincenzo knocked
on the door. Crying, Danielle opened the door.7 Incident Report, Exhibit H. DiVincenzo began
to talk with Danielle. Neither Lantych nor Ganey said a word directly to Danielle. DiVincenzo
told Danielle that the officers would like her to go to the hospital in order to speak to staff and
that an ambulance was waiting,8 but Danielle refused to travel in an ambulance. DiVincenzo
Dep. (Part 1) 17:16-18:3; see also Ganey Dep. 39:9-40:7. DiVincenzo then offered to drive
Danielle to the hospital in an unmarked police cruiser instead, and Danielle agreed.9
DiVincenzo Dep (Part 1), 17:14-18:12. She requested that her father meet her at the hospital and
asked DiVincenzo to make sure that Dennis would be waiting for them when they arrived.
DiVincenzo Dep. 52:10-59:23, April 6, 2009 (document #44-4) [hereinafter, DiVincenzo Dep.
(Part 2)]. In total, this encounter at the apartment lasted only a few minutes.
7

Lantych wrote in the Q sheet that Danielle was crying, a description he repeated in his deposition;
however, DiVincenzo and Ganey have both challenged this claim. DiVincenzo asserts that Danielle appeared
composed, calm, and very polite, while Ganey says that she appeared physically fine and was not crying. Lantych
Dep. 29: 3-6; see also DiVincenzo Dep. (Part 1). 127:4-129:15 and Ganey Dep. 42:20-43:11.
8

DiVincenzo asserts that, during his conversation with Danielle, he "was always under the assumption
there was an ambulance standing by," believing "one was on the way or one was out there" already. DiVincenzo
Dep. 21:18-34:19. In fact, there was no ambulance at Danielle's apartment. Skerry says that he does not remember
having any discussions that day about dispatching an ambulance or actually sending one. Skerry Dep. 53:8-55:15.
DiVincenzo does not recall why he thought an ambulance had been dispatched, and said that Skerry only told him
explicitly that he had, in fact, dispatched an ambulance years later, after an article appeared in the news which
reported that no ambulance was sent to Danielle's residence. DiVincenzo Dep. (Part 1), 21:18-22:5.
9

DiVincenzo and Ganey both report that Danielle refused to take an ambulance but agreed to go in an
unmarked car. DiVincenzo Dep. (Part 1), 34:13-38:11; see also Ganey Dep. 39:8-17. While Niarchos denied the
version of the events described by the defendants in their Statement of Undisputed Material Facts, she offered no
alternative. She specifically denied this statement: "Danielle Tarsook then agreed to go to the hospital and
DiVincenzo, who believed there was an ambulance waiting outside, advised her of that belief; at that point, Danielle
Tarsook became quite upset and advised that there was ‘no way' she was going in an ambulance. See Exhibit C,
pp.17-18. DiVincenzo countered by asking if she would be willing to go in an unmarked car; Danielle Tarsook
agreed and asked if her father could meet her there." Def.'s Stmt, 36.

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Along with DiVincenzo and Ganey, Danielle got into Ganey's vehicle and sat in the
backseat for the duration of the ride. See Dennis Dep. 40:23-41:1. While in the car, DiVincenzo
called Dennis via his Nextel and arranged for Dennis to meet the group at the hospital. Def.'s
Stmt. 37.
C.

Summary of Events at Beverly Hospital

Dennis arrived at Beverly Hospital several minutes before the unmarked cruiser. At that
time, he was on duty and in uniform. Upon arriving at the hospital, DiVincenzo and Ganey saw
Dennis standing in front. While Ganey remained sitting inside the vehicle, DiVincenzo exited
the car and opened the cruiser's backdoor for Danielle. Neither Ganey nor DiVincenzo walked
or escorted Danielle into the hospital. Ganey Dep. 58:21-59:8. Rather, they watched Danielle
greet her father outside the hospital entrance and walk into the hospital through an entryway that
led to an "outside lobby" or "foyer" with Dennis. DiVincenzo Dep. (Part 1) 43:7-44:2; Dennis
Dep. 43:24; see also Ganey Dep. 60:5-11. Ganey and DiVincenzo then left.
In the lobby area, Danielle and Dennis sat down on a bench and talked. Dennis recalls
engaging in a conversation about Danielle's boyfriend, Lewis, and her apartment. Danielle
discussed being unable to afford her apartment since Lewis was planning to move out. Dennis
told Danielle that, since he was paying for it anyway, she had no reason to leave. He also
handed his daughter $100 for a bill that she had she mentioned. Dennis Dep. 42:5-44:22. At
some point during their conversation inside the hospital, the two had an argument.10
Massachusetts State Police Record of Investigation, Exhibit Z (document #44-18). Dennis
walked out of the hospital through the doors leading outside, while Danielle walked through the

10

Dennis was unable to remember this argument or its cause at his deposition. Dennis Dep. 47:14-48:2.

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opposite doorway toward the ER. Dennis got into his cruiser and resumed his job duties.
Dennis Dep. 43:16- 44:10.
Danielle appears to have then exited the hospital and returned to her apartment at 28R
Cabot. She never spoke with hospital staff or registered at the hospital. Sometime after
returning home, she hung herself with an extension cord in her kitchen. Lewis discovered her
when he got home from work at approximately 5:30 p.m. and immediately called the BPD.
Lewis Aff. 10-11.
D.

The Alteration of Beverly Police Records

Timothy Hegarty ("Hegarty") was the officer in charge for the BPD during May of 2005,
and his duties included ensuring that accurate records were maintained at the station. On May
20, 2005, after having learned that Danielle had committed suicide, Hegarty changed the
designation of the incident on the Q sheet from "assist citizen" to "medical-mental health" and
"possible suicidal female." Incident Report, Exhibit H. He also contacted Lantych that day,
advising him that he had not completed the comments entry of the Q sheet. Lantych wrote the
narrative section of the report -- after Danielle’s death -- using his recollection of his firsthand
experience and observations at the apartment. Def.'s Stmt #50.
III.

DISCUSSION
Niarchos raises three claims. She asserts under 42 U.S.C. § 1983 (Count 1) and the

MCRA (Count 2) that defendants violated her constitutional and state rights. She further claims
that the defendants were negligent in their care of Danielle (Count 3). I will address each in turn.

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A.

Fourteenth Amendment Due Process

Pursuant to 42 U.S.C. § 1983, Niarchos alleges that both the city and the individual
defendants violated Danielle's right to substantive due process when they deprived her of
essential mental health care and, as a result, her life, by releasing her to her father's care instead
of admitting her to the hospital. In order to prevail on a § 1983 claim, Niarchos must show that
the individual defendants 1) deprived Danielle of a federally protected right; and 2) were acting
under the color of state law. See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988);
Velez-Rivera v. Agosto-Alicea, 437 F.3d 145, 151-52 (1st Cir. 2006). Additionally, in order to
establish municipal liability, Niarchos must also show that the deprivation of Danielle's federally
protected right was attributable to a municipal custom or policy. Monell v. Dep't of Soc. Serv.,
436 U.S. 658, 694 (1978); Kelley v. LaForce, 288 F.3d 1, 9 (1st Cir. 2002).
Under what has come to be known as the DeShaney doctrine, Niarchos simply had no
substantive due process right to affirmative care by the defendants. As such, the defendants did
not deprive Danielle of a federally protected right. See DeShaney v. Winnebago Cnty. Dep't of
Soc. Serv., 489 U.S. 189, 195 (1989).
In DeShaney, the Supreme Court held that state actors generally have no affirmative
constitutional obligation to protect citizens from harm caused by private parties. 489 U.S. at
195-97 (1989). Six members of the Court found that four-year-old Joshua DeShaney was not
entitled to relief on tragic facts. Joshua was so badly abused that nearly half of his brain tissue
was destroyed; at the time of the litigation, he was severely mentally handicapped. His attorney
claimed that the county officials who stood by and documented fourteen months of violent abuse

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to him, without taking any steps to intervene or to obtain medical attention on his behalf,
deprived him of liberty under the due process clause of the Fourteenth Amendment. The Court
held that a proper interpretation of the due process clause precluded Joshua's action. At the close
of the opinion, the majority noted that "judges and lawyers, like other humans, are moved by
natural sympathy in a case like this to find a way for Joshua and his mother to receive adequate
compensation for the grievous harm inflicted upon them." DeShaney, 409 U.S. at 202-03. Yet
the Court resolved that, rather than yielding to that "impulse" of sympathy, it should stand by its
view of what the correct interpretation of the Constitution involved.
To be sure, the Court did recognize an exception to the DeShaney rule. State actors have
an affirmative "duty to protect" a person in "limited circumstances," including those where the
state has incarcerated or involuntarily institutionalized the person. Id. at 199-200. The
DeShaney exception has been applied 1) based on allegations that the plaintiff was in the
functional custody of the state or in instances 2) in which the state created or increased the
danger to which the plaintiff was exposed. See, e.g., J.R. v. Gloria, 593 F.3d 73, 79 (1st Cir.
2010); Breen v. Tex. A&M Univ., 485 F.3d 325, 333-37 (5th Cir. 2007); Pena v. DePrisco, 432
F.3d 98, 108 (2d Cir. 2005). Niarchos claims that Danielle was in the state's functional custody
and, hence, the defendants had a duty to protect her. This contention, however, is not supported
by the facts, and more importantly, runs contrary to prevailing law.
As defined by the Supreme Court in DeShaney, custody is the result of "the State's
affirmative act of restraining the individual's freedom to act on his own behalf." 489 U.S. at 200.
The First Circuit describes functional custody as "situations where a state creates a 'special
relationship' because of 'the limitation which [the state] has imposed on [an individual's] freedom

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to act on his own behalf,'" J.R., 593 F.3d at 79 (quoting Rivera v. Rhode Island, 402 F.3d 27, 34
(1st Cir. 2005) (quoting DeShaney, 489 U.S. at 200)).
The functional custody requirement can typically be satisfied through arrest,
incarceration, or institutionalization. See DeShaney, 489 U.S. at 199-200. In addition, the
majority of circuit courts have recognized a constitutional right to protection from unnecessary
harm for children involuntarily placed by the state in foster care. Nicini v. Morra, 212 F.3d 798,
808 (3d Cir. 2000); Walton v. Alexander, 44 F.3d 1297, 1304 (5th Cir. 1995); Camp v. Gregory,
67 F.3d 1286, 1297 (7th Cir. 1995); Lintz v. Skipski, 25 F.3d 304, 305 (6th Cir. 1994); Norfleet
v. Ark. Dep't of Human Servs., 989 F.2d 289, 293 (8th Cir. 1993).
Courts have generally been hesitant to push the boundaries of "functional custody" much
further than arrest, incarceration, institutionalization or foster care. For instance, several circuit
courts have rejected arguments that public schoolchildren, by virtue of compulsory attendance
laws, are in the functional custody of the state during school hours. See, e.g., Hasenfus v.
LaJeunesse, 175 F.3d 68, 73-74 (1st Cir. 1999); Doe v. Claiborne Cnty., 103 F.3d 495, 510 (6th
Cir. 1996). Courts have likewise rejected the notion that individuals in public housing or
employees of a public entity are in the functional custody of the state. See, e.g., Wallace v.
Adkins, 115 F.3d 427, 430 (7th Cir. 1997); Liebson v. N.M. Corr. Dep't, 73 F.3d 274, 276 (10th
Cir. 1996); Dawson v. Milwaukee Hous. Auth., 930 F.2d 1283, 1285 (7th Cir. 1991).
Indeed, some courts have even suggested that arrest, incarceration, and
institutionalization are not always functional custody. For instance, the Fifth Circuit has held
that "the state creates a 'special relationship' with a person only when the person is involuntarily
taken into state custody and held against his will through the affirmative power of the state."

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Walton, 44 F.3d at 1304 (emphasis added). Similarly, the Seventh Circuit has suggested that
custody under DeShaney entails more than a "simple criminal arrest." Estate of Stevens v. City
of Green Bay, 105 F.3d 1169, 1175 (7th Cir. 1997).
In the context of suicide cases, courts, including the First Circuit, have declined to
impose on police officers or other state actors a constitutional duty to protect a victim where the
victim was not under arrest, incarcerated, or institutionalized. In Monahan v. Dorchester
Counseling Ctr. Inc., the First Circuit found that a state official had no constitutional duty to
protect a mentally ill individual, Kevin Monahan ("Monahan"), whom the official knew had
attempted to voluntarily commit himself to a treatment center. 961 F.2d 987, 988 (1st Cir.
1992). After Monahan experienced a panic attack, an employee from the Department of Mental
Health drove Monahan to a crisis intervention facility, but the facility would not admit him. Id.
at 989. During the trip back to the treatment center, Monahan jumped out of the van and began
walking down a highway off-ramp. Id. The driver continued to the intervention center; in the
meantime, a car struck and injured Monahan. Id. The court held that no constitutional violation
had occurred on the grounds that the Department of Mental Health employee did not owe a duty
to protect Monahan because he had not been involuntarily committed. Id. at 992, 994.
In Hasenfus v. LaJeunesse, the First Circuit again refused to expand the pool of suicide
victims protected by a constitutional right to affirmative state protection. 175 F.3d 68, 71 (1st
Cir. 1999). The court found that school officials do not have a due process duty to protect
students from attempting suicide, and like courts elsewhere (described above), rejected plaintiff's
plea to adopt a general rule that, with respect to a constitutional duty to protect, school children

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are similar to prisoners and patients "because school attendance is compulsory and because in
some measure the school authorities act in loco parentis." Id.
Likewise, in Collignon v. Milwaukee Cnty., a case with facts akin to those here, the
father and stepmother of a suicidal 28-year-old reported that their son was missing. 163 F.3d
982, 986 (7th Cir. 1998). Upon finding the son, officers picked him up and then released him to
his father and stepmother about an hour and a half later. Id. The son committed suicide on the
following day. Id. The Seventh Circuit declined to find that the officers violated the individual's
due process rights in part because the son was not a pretrial detainee. Id. at 993. The court
explained:
[W]hen the state restrains an individual's ability to seek necessary
aid, it must provide that aid itself. The Shorewood police did not
restrain Jonathan's ability to get private aid; indeed they improved
his ability to do so by preventing him from wandering the streets in
the middle of the night and releasing him to his parents. The
plaintiffs are trying to expand the rule that the state must provide
medical treatment to pre-trial detainees into a rule imposing an
obligation to provide medical treatment whenever the police
interact with a person who turns out to have a chronic mental
illness, no matter how brief that interaction. When the Shorewood
police temporarily took Jonathan into custody, he was clearly not a
pre-trial detainee.
Id.
Similarly, in Shoenfield v. City of Toledo, police temporarily detained an individual in a
parking lot after receiving a report that he was apparently intoxicated, had blood on his hands,
and had tried to buy a gun. 223 F. Supp. 2d 925, 927 (N.D. Ohio 2002). The police released the
individual about an hour later when they determined that he had not committed any crimes. Id.
A few hours after that, the individual bought a gun from a different store and killed himself in a

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hotel room. Id. at 928. The court held that the police could not be liable because the individual
was never in custody. Id. at 930.
In one notable case, however, this Court has found that state officials violated their
constitutional duty to protect individuals from killing themselves in a situation where the victim
was not under arrest, incarcerated, or institutionalized, but in the state's protective custody. In
Ringuette v. City of Fall River, a severely intoxicated individual suffered serious injuries while
in protective custody when police neglected to feed him, give him water, or monitor him closely.
888 F. Supp. 258, 261-62 (D. Mass. 1995). The police found Roger Ringuette ("Ringuette")
slumped over a parked car in an extremely drunken state. Id. at 261. When offered a ride home
by the police, Ringuette responded "my brother." Id. Not sure what to make of this response,
officers took Ringuette into protective custody and placed him at a detox facility run by Stanley
Street Treatment & Resource, Inc., pursuant to the Massachusetts Alcoholism Treatment and
Rehabilitation Act. Id.; see Mass. Gen. Laws ch. 111B, § 8.
While in protective custody, Ringuette was not given food or water in contravention of
the treatment center's rules and regulations. Id. at 262. Ringuette was incoherent and
incapacitated throughout his time at the facility. Id. At around 6:00 p.m., over twenty-four
hours after Ringuette had initially been admitted, officers noticed something was wrong. Id.
Emergency medical technicians discovered Ringuette had gone into shock while lying on the
floor, surrounded by a pool of vomit. Id. His left hand, forearm and abdomen were burned. Id.
After being taken to the hospital, the doctors discovered Ringuette had overdosed on drugs, was
severely dehydrated, and was suffering from untreated first and second degree burns. Id.

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Noting that there was an open question "whether a person incapable of consenting or not
consenting" may make out a substantive due process claim under § 1983, this Court held that
"the state has a duty under the constitution to protect persons who are taken into protective
custody because of incapacitation and who lack the capacity to give knowing, intelligent and
voluntary consent to protective custody." Id. at 268.
In Coscia v. Town of Pembroke, applying this body of law,11 I found that the police had a
duty to protect the plaintiff because he had been formally arrested and while in custody,
threatened suicide and indeed, made several attempts. 715 F. Supp. 2d 212, 218 (D. Mass 2010).
Coscia's arrest had followed a single car accident. Id. While detained in police custody, he
licked an electrical outlet, and threw his body against various walls. Id. The police officer's
suicide evaluation form listed him as "a very high risk" of suicide. Id. Significantly, Coscia told
officers he planned on jumping in front of a train. Id. Notwithstanding the threats, the police
simply released him. Id. Shortly afterwards, Coscia did what he had threatened, committing
suicide by walking in front of a train. Id.
In the instant case, Danielle was not arrested, incarcerated, or institutionalized. Nor did
the police exert physical force on her. Rather, unlike the deceased in Ringuette, who was placed

11
This Court distinguished the case from Monahan, emphasizing that the First Circuit in Monahan dealt
with voluntary civil commitment. Ringuette, 888 F. Supp. at 267. The court said: "Monahan was a voluntarily
committed mental patient, with a known history of jumping out of moving vehicles, who claimed that the state was
constitutionally obliged to take precautions that would have prevented him from jumping out of a state van while
being transported from one state facility to another." Id. Conversely, the court said, "Ringuette was either
unconscious, like the plaintiff in Garcia, or so incapacitated as to be incapable of volition, like those in Merideth and
Buffington" putting into serious question whether Ringuette had been able to give consent and, therefore,
involuntarily placed into custody. Id. at 268; see e.g. Garcia v. Salt Lake City, 768 F.2d 303, 308 (10th Cir. 1985)
(finding a county liable for a § 1983 violation for failing to adequately monitor a person who was admitted to jail
while unconscious and suspected of being drunk); Merideth v. Grogan, 812 F. Supp. 1223, 1230 (N.D. Ga. 1992)
(holding a drunken, suicidal person, admitted to jail for his own protection at the request of his family, was entitled
to due process protections).

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in protective custody without his clear consent, Danielle voluntarily got into an unmarked police
car with colleagues of her father's, after she had refused to ride in an ambulance. While she may
have felt pressure to let the officers take her to the hospital -- three officers were encouraging her
to seek medical assistance -- she did not physically resist or even verbally refuse to go.12
Instead, she requested that the police ask her father to meet her at the hospital.
While this case is extraordinarily tragic on so many levels, I cannot ascribe legal
responsibility to the defendants. The law is simply otherwise. I must find that the police did not
restrain Danielle's "freedom to act on h[er] own behalf," DeShaney, 489 U.S. at 200, and, hence,
Danielle was not in the state's custody. Therefore, Danielle had no constitutional right to the
state's protection.13
B.

MCRA and Negligence

Niarchos also claims that the individual defendants deprived Danielle of her liberty and
her right to substantive due process by use of threats, intimidation and coercion, in violation of
the MCRA, which provides for a cause of action "[w]henever any person or persons, whether or
not acting under color of law, interfere by threats, intimidation or coercion, with the exercise or
enjoyment by any other person or persons of rights secured by the constitution or laws of the
United States, or of rights secured by the constitution or laws of the commonwealth." Mass.

12

Niarchos has not shown -- even assuming facts and inferences in Niarchos’ favor -- that Danielle's mental
state rendered her unable to give consent.
13

I draw this conclusion as a matter of federal constitutional law, which imposes a relatively high standard
for liability. I note that there was evidence that the BPD violated their own regulations and policies which provided
that family members were not to respond to incidents involving other family members. I also note that these
regulations and policies which derived from a previous high profile case in which the son of a Beverly police
dispatcher murdered his girlfriend and then committed suicide. The dispatcher had received the call from his son,
and simply directed him to get out of the house. The problem is that evidence of the violation of state policies is
simply not enough under these circumstances to establish a violation of a federal constitutional right.

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Gen. Laws ch. 12, §§ 11H-11I (emphasis added). In addition, Niarchos brings a negligence
claim against the city pursuant to Mass. Gen. Laws ch. 258, § 2, which provides that a public
employer may be liable for "personal injury or death caused by the negligent or wrongful act or
omission of any public employee while acting within the scope of his office or employment."
I have jurisdiction over these state claims only through pendent claim jurisdiction.
Pendent jurisdiction is involved when, as here, a plaintiff seeks to join a non federal claim to a
federal one. The non federal claim is one in which there is no independent basis for federal
subject matter jurisdiction. Without the federal claim, I decline to consider the state claims.14
IV.

CONCLUSION
For the foregoing reasons, defendants' Motions for Summary Judgment (document # 38)

is GRANTED.
SO ORDERED.
Date: July 26, 2011

BáB atÇvç ZxÜàÇxÜ
NANCY GERTNER, U.S.D.J.

14

In any event, to the extent that the state MCRA claims track the requirements of § 1983, Batchelder v.
Allied Stores Corp., 393 Mass. 819, 823 (1985)(explaining that the MCRA is meant to be coextensive with § 1983,
except that the federal statute requires state action, and the MCRA has an additional requirement of “threats,
intimidation and coercion.”) the litigation would be futile. To the extent that the negligence claims do not track §
1983, they are problematic in the light of the statutory public duty rule, Mass. Gen. Laws ch. 258, § 10(j), which
seems to immunize the municipality from liability.

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