McLaughlin v. Boston Retirement Board

Filing 88

Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered Boston and the Retirement Boards Motions to Dismiss [ECF No. 31, 37] are GRANTED and the Clerk is directed to enter final judgment dismissing the Complaint. The remaining pending motions [ECF Nos. 42, 58, 59, 72, 73, 82, 85, 86] are DENIED AS MOOT. A copy of this Order has been mailed to the Plaintiff via first class and certified mail (Ref# 0648). (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

RICHARD McLAUGHLIN,
Plaintiff,
v.
BOSTON RETIRMENT BOARD, CITY OF
BOSTON, AND COMMONWEALTH OF
MASSACHUSETTS,
Defendants.

*
*
*
*
*
*
*
*
*
*
*

Civil Action No. 15-cv-10818-ADB

MEMORANDUM AND ORDER
November 10, 2015
BURROUGHS, D.J.
Plaintiff Richard McLaughlin filed his complaint in this action on March 12, 2015. [ECF
No. 1 (“Complt.”).] McLaughlin, a retired Boston firefighter, alleges widespread misconduct by
the three defendants—the Boston Retirement Board (“Retirement Board”), the City of Boston
(“Boston”), and the Commonwealth of Massachusetts (the “Commonwealth”)—in connection
with his retirement and accidental disability benefit payments. All three defendants have moved
to dismiss the complaint, [ECF Nos. 31, 37, & 65], and on October 27, 2015, the Court granted
the Commonwealth’s motion to dismiss for lack of jurisdiction. [ECF No. 77.] Now before the
Court are the Retirement Board and Boston’s motions to dismiss. For the foregoing reasons, both
motions are GRANTED and all other pending motions in this case are DENIED as MOOT.
I.

Background
McLaughlin retired from the Boston Fire Department in 1997 after suffering a broken

leg. Complt. ¶¶ 1, 7; McLaughlin v. Contributory Retirement Appeal Bd., Civil Action No.

2012-04354-D, slip op. at 1 (Mass. Super. Jan. 13, 2014).1 Starting on January 31, 2000,
McLaughlin began receiving accidental disability retirement benefits from the Retirement Board,
pursuant to Mass. Gen. Law ch. 37, § 7. Contributory Retirement Appeal Bd., slip op. at 1. In
January 2009, while still receiving those benefits, a jury convicted McLaughlin of operating
under the influence of intoxicating liquor (“OUI”) and negligent operation to endanger. See
McLaughlin v. MacDonald, No. CIV.A. 11-11587-JLT, 2013 WL 4679604, at *1 (D. Mass.
Aug. 29, 2013) (habeas opinion summarizing McLaughlin’s previous criminal proceedings). By
a subsequent jury-waived trial, the judge found the OUI conviction to be McLaughlin’s third
such offense and sentenced him to two and a half years of incarceration under Mass. Gen. Laws
ch. 90, § 24(1)(a)(1). See id. The Massachusetts Appeals Court affirmed his conviction in 2011
and the Massachusetts Supreme Judicial Court denied further review. Commonwealth v.
McLaughlin, 79 Mass. App. Ct. 670, 670 (2011), rev. denied 460 Mass. 1110 (2011).
McLaughlin filed two petitions for a Writ of Habeas Corpus, which were both denied.
McLaughlin v. Gillen, No. CIV.A. 11-10746-NMG, 2011 WL 2746459 (D. Mass. July 8, 2011);
MacDonald, 2013 WL 4679604. He was released on parole on October 4, 2011. See MacDonald,
2013 WL 4679604, at *2-3.
On or about July 15, 2011, the Retirement Board became aware of McLaughlin’s
incarceration and stopped paying his accidental disability benefit payments. Contributory
Retirement Appeal Bd., slip op. at 2. The Retirement Board subsequently entered into an
agreement with McLaughlin, in which he agreed to repay the $115,974.30 in benefits he received
from January 15, 2009 (when he was first incarcerated) to July 15, 2011 (when the Retirement

1

The Court may consider prior judicial opinions in resolving a Motion to Dismiss under Fed. R.
Civ. P. 12(b)(6). Giragosian v. Ryan, 547 F.3d 59, 66 (1st Cir. 2008).
2

Board learned he was incarcerated). [ECF No. 83-1, at 4.]2 The Retirement Board acted pursuant
to Mass. Gen. Laws c. 32, § 7(2)(d), which provides that:
Payments to a member retired under the provisions of this section who is incarcerated for
having been convicted of a felony committed on or after the effective date of this
paragraph shall cease for the period of such member’s incarceration. Under no
circumstances shall such payments be recoverable by such member after such period of
incarceration.
McLaughlin later requested a waiver of repayment and on December 2, 2011, the
Retirement Board held a hearing on McLaughlin’s request. [ECF No. 83-1, at 1.] The Hearing
Officer recommended that McLaughlin’s request for waiver be denied and in February 2012, the
Retirement Board adopted his recommendation. [ECF No. 83-1, 83-2.] The Hearing Officer
found that “the Legislature has made it abundantly clear through its use of the phrase – ‘under no
circumstances’ – that it did not want to provide retirement boards with the discretion to award
accidental disability retirement benefits to members while they were incarcerated on account of a
felony conviction.” [ECF No. 83-1, at 7.] Accordingly, McLaughlin “could not be relieved of his
obligation to repay benefits received while he was incarcerated on account of Board error, as
there was none.” Id. at 6.
McLaughlin appealed the Retirement Board’s decision to the Contributory Retirement
Appeals Board (“CRAB”), which assigned the matter to the Division of Administrative Appeals
(“DALA”). Contributory Retirement Appeal Bd., slip op., at 2. After both sides filed crossmotions for a summary decision, the DALA affirmed the Retirement Board’s decision to deny
McLaughlin’s request for waiver. Id. On October 1, 2012, the CRAB received a letter from
McLaughlin with objections to the DALA decision and a request for additional time to file

2

Under the repayment plan, $568.11 would be deducted from McLoughlin’s monthly retirement
allowance for 180 consecutive months following his release. [ECF No. 83-1, at 4.]
3

documents. Id. The CRAB denied McLaughlin’s request and determined that it lacked
jurisdiction to hear an appeal of the DALA decision, since McLauhlin had sent the letter outside
the fifteen-day appeals window. Id. at 3-4 (citing Mass. Gen. Laws. ch. 32, § 16 (4)). In a
January 13, 2014 opinion, the Suffolk County Superior Court affirmed the CRAB’s finding that
McLaughlin’s appeal was untimely. Id. at 4. Though it did not need to reach the merits of
McLaughlin’s claim, the Superior Court noted that even had McLaughlin filed his appeal on
time, he would not have prevailed. There was “no proper basis to overturn the DALA decision,”
since McLaughlin had been incarcerated for a felony conviction, and “the language the
Legislature used is unambiguous that the Plaintiff is not entitled to pay while incarcerated for
having been convicted of a felony.” Id. at 4, n. 2.
On March 12, 2015, McLaughlin filed his complaint in this action, seeking $20 million in
damages from the Retirement Board, Boston, and the Commonwealth. Complt. ¶ 84.
McLaughlin’s complaint makes wide-ranging allegations against the three defendants regarding
both his retirement from the fire department and his receipt of accidental disability benefit
payments. Among other things, McLaughlin alleges that Boston used coercion to force him to
retire, that Mass. Gen. Laws ch. 32, § 7(2)(d) is unconstitutional, and that the Retirement Board
is liable for defamation, libel, invasion of privacy, and a variety of other torts.
Boston and the Retirement Board both moved to dismiss the complaint under Fed. R.
Civ. P. 12(b)(6) for failure to state a claim. [ECF Nos. 31, 37.] In its motion to dismiss, Boston
argues that it is not a proper party to the lawsuit and that it should not be held responsible for the
conduct of the Retirement Board, an independent political body. [ECF No. 32.] In addition,
Boston asserts that the complaint was filed more than three years after the Retirement Board
voted to adopt the Hearing Officer’s recommendation, and therefore McLaughlin’s challenges

4

are time-barred. Id. In turn, the Retirement Board contends that McLaughlin’s conclusory
allegations are insufficient to survive a motion to dismiss and that, regardless, his claims are
time-barred and precluded by res judicata. [ECF No. 38.]
II.

Discussion
A. Legal Standard
On a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure (“Rule 12(b)(6)”), the Court accepts as true all well-pleaded
facts in the light most favorable to the plaintiff and draws all reasonable inferences from those
facts in favor of the plaintiff. United States ex rel. Hutcheson v. Blackstone Med., Inc., 647 F.3d
377, 384 (1st Cir. 2011). Although detailed factual allegations are not required to survive a
motion to dismiss, “more than labels and conclusions” are required. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). A “formulaic recitation of the elements of a cause of action” is not
enough. Id. The facts alleged must “raise a right to relief above the speculative level.” Id. The
plaintiff must “nudge[] [the] claims across the line from conceivable to plausible,” or the claims
will be dismissed. Id. at 570. “The make-or-break standard . . . is that the combined allegations,
taken as true, must state a plausible, not a merely conceivable, case for relief.” SepulvedaVillarini v. Dep’t of Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010) (citing Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009); Twombly, 550 U.S. at 555, 570). The plausibility standard “asks for more
than a sheer possibility” of actionable conduct. Id.
In this case, the Court construes McLaughlin’s complaint liberally because it was filed
pro se. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). “However, pro se status does not insulate
a party from complying with procedural and substantive law.” Ahmed v. Rosenblatt, 118 F.3d
886, 890 (1st Cir. 1997). Dismissal of a pro se complaint is appropriate when the complaint fails

5

to state an actionable claim. Muller v. Bedford VA Admin. Hosp., Civ. No. 11-10510, 2013 WL
702766, at *3 (D. Mass. Feb. 25, 2013) (citing Overton v. Torruella, 183 F. Supp. 2d 295, 303
(D. Mass. 2001)).
B. Analysis
The bulk of McLaughlin’s complaint concerns the Retirement Board’s decision to
suspend benefit payments while McLaughlin was incarcerated and to deny his request to waive
repayment of benefit payments made before the Retirement Board realized he was incarcerated.
The Retirement Board’s conduct has already been subject to extensive review. McLaughlin’s
request for waiver has been reviewed by a Retirement Board Hearing Officer, the Contributory
Retirement Appeals Board, the Division of Administrative Appeals, and the Suffolk County
Superior Court. All agreed that under Mass. Gen. Laws c. 32, § 7(2)(d), McLaughlin was not
entitled to accidental disability benefit payments during his incarceration. See, e.g., Contributory
Retirement Appeal Bd., slip op. at 4, n.2 (“The language the Legislature used is unambiguous
that the Plaintiff is not entitled to pay while incarcerated for having been convicted of a
felony.”). It is not this Court’s role to insert itself into this state administrative review process.
See Mass Gen. Law. ch. 30A, § 14 (providing that an action seeking judicial review of a state
agency decision may be instituted in Massachusetts Superior Court). That being said, since it is
not in dispute that McLaughlin was incarcerated for having been convicted of a felony3, the
Court agrees that under Mass. Gen. Laws ch. 32, § 7(2)(d), McLaughlin was not entitled to
accidental disability benefit payments while incarcerated.

3

See Mass. Gen. Laws. ch. 274, § 1 (“A crime punishable by death or imprisonment in the state
prison is a felony. All other crimes are misdemeanors.”)
6

To the extent McLaughlin challenges the constitutionality of this review process or Mass.
Gen. Laws ch. 32, § 7 in general, the Court finds that McLaughlin fails to state an actionable
claim. His allegations are, “too meager, vague, or conclusory to remove the possibility of relief
from the realm of mere conjecture,” and are therefore subject to dismissal. S.E.C. v. Tambone,
597 F.3d 436, 442 (1st Cir. 2010) (citing Twombly, 550 U.S. at 555). Among other things,
McLaughlin’s allegations include that defendants “have used Mass. Gen. Laws ch. 32, § 7(2)(d)
to deny Plaintiff’s right to due process,” “violated Plaintiff’s civil rights by stopping . . .
disability retirement benefits without a judge’s order,” and “violated Plaintiff’s rights under
equal protection.” Complt. ¶¶ 22, 24, 29. These threadbare allegations are insufficient to survive
a motion to dismiss. Taking all of McLaughlin’s allegations as true, the Court cannot discern a
plausible cause of action under the Equal Protection Clause, the Due Process Clause, or any
other provision of the federal Constitution. See Splude v. Apfel, 165 F.3d 85, 91 (1st Cir. 1999)
(finding no due process or equal protection violation where government recovered “SSI
payments to which the claimant was never entitled”); see also Davis v. Coakley, 802 F.3d 128,
134 (1st Cir. 2015) (to establish a due process claim, “the plaintiff must identify a ‘legitimate
claim of entitlement to the property in question—a claim of entitlement created and defined by
existing rules or understandings that stem from an independent source such as state law’”)
(quoting Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 8 (1st Cir.2005)).
In any event, any claims that either Boston or the Retirement Board’s conduct violated
McLaughlin’s federal Constitutional rights are time-barred. Such claims could potentially be
brought under 42 U.S.C. § 1983 (§ 1983), through which “an aggrieved individual may sue
persons who, acting under color of state law, abridge rights, immunities, or privileges created by
the Constitution or laws of the United States.” Johnson v. Rodriguez, 943 F.2d 104, 108 (1st Cir.

7

1991). § 1983 does not contain a statute of limitations provision, and courts have accordingly
been directed to “borrow the forum state’s statute of limitations for personal injury actions.”
Jardin De Las Catalinas Ltd. P’ship v. Joyner, 766 F.3d 127, 133 (1st Cir. 2014). In
Massachusetts, the statute of limitations for personal injury actions is three years, and therefore,
§ 1983 actions must be brought three years from the date on which they accrue. See, e.g.,
Thomas v. Town of Salisbury, No. CV 14-13726-JGD, 2015 WL 5684074, at *7 (D. Mass. Sept.
28, 2015) (“In Massachusetts, claims brought under § 1983 are subject to a three year statute of
limitations.”) (citing Nieves v. McSweeney, 241 F.3d 46, 51 (1st Cir. 2001)). McLaughlin retired
in 1997, had his disability payments suspended in July 2011, and had his repayment waiver
denied in February 2012. Construing his complaint as liberally as possible, the last possible
accrual date for McLaughlin’s constitutional claims is February 2012, when the Retirement
Board adopted the Hearing Officer’s recommendation to deny his request for waiver. See
Williams v. City of Brockton, 59 F.Supp.3d 228, 240 (D. Mass. 2014) (“[U]nder federal law,
‘section 1983 claims accrue when the plaintiff knows, or has reason to know, of the injury on
which the action is based.’”) (citing Marrero-Gutierrez v. Molina, 491 F.3d 1, 5 (1st Cir. 2007)).
McLaughlin filed his complaint on March 12, 2015, more than three years from then, and
therefore any claims alleging a violation of McLaughlin’s federal Constitutional rights are
barred.
McLaughlin’s wide-ranging state law claims are likewise time-barred. McLaughlin at
time alleges defamation, libel, negligence, fraud, and invasion of privacy against the Retirement
Board. Complt. ¶¶ 38, 7, 57, 12.4 Each of his state law claims is barred by Massachusetts’s three

4

The Court cannot discern any state law claims against Boston. In any event, since the
allegations against Boston all appear to have taken place in 1997, when McLaughlin retired, any
claims that might be levied against Boston are time-barred.
8

year statute of limitations for torts. Mass. Gen. Laws Ch. 260, § 2A.5 Again, the last possible
accrual date for these claims was February 2012, more than three years from the date
McLaughlin filed his complaint.
With respect to McLaughlin’s defamation claim, the Court acknowledges that the
Retirement Board Hearing Officer’s recommended decision contains certain inaccuracies. It
falsely states that McLoughlin sought to waive the repayment of benefits from January 15, 2009
to July 15, 2001; it should have said July 15, 2011. [ECF 61-1, at 4.] Likewise, it incorrectly
notes that McLoughlin had three felony convictions as of January 2009; rather, in January 2009
McLoughlin received a felony conviction for having previously been convicted of three OUIs.
Id. at 5.6 As an initial matter, the Court notes that these minor inaccuracies were contradicted by
accurate information elsewhere in the decision. On several occasions, the hearing officer stated
the correct period for which repayment was sought [ECF 83-1, at 4-5], and he also correctly
noted that only the third conviction for OUI constituted a felony. Id. at 2-4. As the Massachusetts
Supreme Court has noted, “Context matters in assessing” claims for defamation and, “[t]he court
[must] examine the statement in its totality in the context in which it was uttered or published.
The court must consider all the words used, not merely a particular phrase or sentence.”

5

See, e.g., Clorite v. Somerset Access Television, Inc., No. CIV.A. 14-10399-DJC, 2014 WL
6983350, at *5 (D. Mass. Dec. 9, 2014) (claims for defamation are subject to three year statute of
limitations); Esserian v. Harvard Univ., No. MICV200500513E, 2005 WL 1476881, at *2 (Mass.
Super. May 4, 2005) (“The statute of limitations for libel and defamation is three years.”);
Errichiello v. Eli Lilly & Co., 618 F. Supp. 484, 486 (D. Mass. 1985) (“The Massachusetts
statute of limitations governing negligence actions provides that ‘actions of tort . . . shall be
commenced only within three years next after the cause of action accrues.’”); Ortiz v. Mass Med.
Servs., Inc., No. CIV.A. 12-3326-BLS1, 2013 WL 4017291, at *2 (Mass. Super. Feb. 19, 2013)
aff’d, 86 Mass. App. Ct. 1116 (2014) (“Ortiz’s claim for invasion of privacy is governed by the
three year statute of [sic] limitations for tort actions.”); Putnam v. DeRosa, 963 F.2d 480, 486
(1st Cir. 1992) (“[T]he relevant statute of limitations for fraud in Massachusetts is three years.”).
6
This misstatement was immaterial to the Hearing Officer’s decision. Under Mass. Gen. Laws
ch. 32, § 7(2)(d), only one felony is required to suspend benefit payments.
9

Rotkiewicz v. Sadowsky, 431 Mass. 748, 752-53 (2000); see also LaChance v. Boston Herald,
78 Mass. App. Ct. 910, 912 (2011) (“Massachusetts law recognizes that a statement is not
necessarily false, for purposes of a defamation claim, simply because it contains inaccuracies. . .
. [S]ince the law of defamation ‘concentrates upon substantial truth,’ minor inaccuracies will ‘not
amount to falsity so long as the substance, the gist, the sting, of the libelous charge be
justified.’”) (quoting Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516-517 (1991)).
Despite the inaccuracies, the hearing report taken as a whole makes clear the actual facts
surrounding McLoughlin’s request for waiver. In any event, the defamation claims are timebarred. The statute of limitations for a defamation claim is three years, Mass Gen Laws. Ch. 260,
§ 4, and the “general rule is that the accrual period begins upon publication of the defamatory
statement.” Clorite v. Somerset Access Television, Inc., No. CIV.A. 14-10399-DJC, 2014 WL
6983350, at *5 (D. Mass. Dec. 9, 2014). McLoughlin has not alleged that the Hearing Officer’s
recommended decision was ever published, but even if the Court liberally construes the date the
Hearing Officer issued the recommendation (February 3, 2012) as the date of publication, the
claim is time-barred. Accordingly, McLaughlin’s defamation claim, like his other state law
claims, must be dismissed.
III.

Conclusion
For the foregoing reasons, Boston and the Retirement Board’s Motions to Dismiss [ECF

No. 31, 37] are GRANTED and the Clerk is directed to enter final judgment dismissing the
complaint. The remaining pending motions [ECF Nos. 42, 58, 59, 72, 73, 82, 85, 86] are denied
as moot.
So Ordered.

10

Dated: November 10, 2015
/s/ Allison D. Burroughs
Allison D. Burroughs
District Court Judge

11