Barrett v. Town of Plainville et al

Filing 56

Judge William G. Young: ORDER entered. MEMORANDUM AND ORDER. "For the foregoing reasons, this Court DENIES Plainvilles motion for summary judgment, ECF No. 39 .SO ORDERED."(Sonnenberg, Elizabeth)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
)
Plaintiff,
)
)
v.
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)
TOWN OF PLAINVILLE,
)
)
Defendant.
)
___________________________________)
JULIE ANN BARRETT,

CIVIL ACTION
NO. 16-12551-WGY

YOUNG, D.J.

September 27, 2017
MEMORANDUM & ORDER

I.

INTRODUCTION
Plainville Police Department Patrolman Julie Ann Barrett

(“Barrett”) brings a section 1983 claim against the Town of
Plainville (“Plainville”) for the involvement of Plainville
Police Chief Alfred (“Alfred”) in the search and seizure of
Barrett’s personal cell phone in connection with North
Attleborough’s internal investigation of another police officer.
Plainville has now moved for summary judgment.
A.

Procedural History

Barrett initially filed a complaint in the Norfolk Superior
Court on November 15, 2016, asserting three counts: (1) a
section 1983 claim against Plainville, Alfred, and Lieutenant
Floyd (“Floyd”) (count I); (2) a violation of Massachusetts
General Laws chapter 12, sections 11H and 11I against Alfred and

Floyd (count II); and a violation of Massachusetts General Laws
chapter 214, section 1B against North Attleborough’s Police
Department Captain Joseph DiRenzo (“DiRenzo”) and Chief John
Reilly (“Reilly”), as well as John and Jane Doe (count III).
Notice Removal, Ex. A, Compl. (“Compl.”), ECF No. 1-1.

After

the case was removed to this Court, Notice Removal 1, ECF No. 1,
and various defendants moved for dismissal of the claims against
them, Mot. North Attleborough Defs. Dismiss Pl.’s Compl. Rule
12(b)(6), ECF No. 9; Defs., Town Plainville, James Alfred &
James Floyd’s Mot. Dismiss Pl.’s Compl. Fed. R. Civ. P.
12(b)(6), ECF No. 12, this Court heard oral arguments,
Electronic Clerk’s Notes, ECF No. 22, and dismissed counts I and
II solely as to Alfred and Floyd, Order, ECF No. 23.

Barrett

subsequently dismissed her claims against John and Jane Doe,
Notice Voluntary Dismissal, ECF No. 43, and Reilly and DiRenzo,
Stipulation Dismissal, ECF No. 51.
Plainville now moves for summary judgment on count I.
Town of Plainville’s Mot. Summ. J., ECF No. 39.

Def.

The parties

briefed the issues and filed supporting statements of facts.
Pl. Julie Barrett’s Opp’n Def. Town Plainville’s Mot. Summ. J.
(“Pl.’s Opp’n”), ECF No. 48; Pl. Julie Barrett’s Statement
Material Facts Supp. Opp’n Town Plainville’s Mot. Summ. J.
(“Pl.’s Facts”), ECF No. 48-1; Def. Town of Plainville’s Mem.
Law Supp. Mot. Summ. J. (“Def.’s Mem.”), ECF No. 40; Def. Town
[2]

Plainville’s Statement Undisputed Material Facts Supp. Mot.
Summ. J. (“Def.’s Facts”), ECF No. 41.

On September 14, 2017,

this Court heard oral argument and took the matter under
advisement.
B.

Electronic Clerk’s Notes, ECF No. 55.

Undisputed Facts

Barrett is employed as a police officer for the Town of
Plainville.

Compl. ¶ 1; Def.’s Facts ¶ 1.

On July 30, 2016,

there was an alleged incident in which Sergeant David Gould
(“Gould”) of the North Attleborough Police Department punched
Detective James Moses (“Moses”) of the Plainville Police
Department and also committed domestic assault and battery
against Barrett.

Compl. ¶¶ 23-24; Def.’s Facts ¶ 2.

On August 9, 2016, State Troopers Edward Keefe (“Keefe”)
and Yuri Bukhenik (“Bukhenik”) investigated the alleged assault
and battery.

Pl.’s Facts ¶ 7; Def.’s Facts ¶ 4.

Following

Barrett’s declining to discuss the incident with Keefe, Def.’s
Facts ¶¶ 5-7, Keefe and Bukhenik then went to the Plainville
Police station where they explained to Floyd that they would
like to ask Barrett some questions and look at her phone, id.
¶¶ 8-9.

Floyd had Barrett called off of patrol and into the

station, id. ¶ 10, where Keefe and Bukhenik told Barrett that
they wanted to discuss the alleged domestic violence incident.
Id. ¶¶ 11-12.

Barrett, however, again indicated that she had

nothing to say, Pl.’s Facts ¶ 2; Def.’s Facts ¶ 13.
[3]

Keefe asked Barrett if he could take a look at her cell
phone, but Barrett said no.

Def.’s Facts ¶ 14.

Keefe then told

Barrett that they needed to take her cell phone as evidence,
Pl.’s Facts ¶ 2; Def.’s Facts ¶ 15, and that if she did not give
her cell phone over voluntarily, they would get a warrant,
Def.’s Facts ¶ 21, and leave Barrett without her cell phone for
a much longer period of time, id. ¶¶ 16, 19.
was inclined to have them get a warrant.

Barrett said she

Id. ¶ 20.

Barrett

told the state troopers that her phone was in her police cruiser
and that she wanted to make some calls.

Id. ¶ 22.

The troopers let Barrett go to her cruiser and make phone
calls.

Id. ¶ 23.

During this time, Barrett received a call

from Moses, who told her that Floyd had called Alfred and said
that Barrett was being uncooperative, and that Alfred was going
to the Plainville Police station to get Barrett to cooperate.
Id. ¶¶ 24-25.

Moses told Barrett that he was with Alfred, id.

¶ 35, and had told Alfred that he would call and talk to
Barrett, id. ¶ 26.

Barrett told Moses that Floyd, Keefe, and

Bukhenik were trying to take her phone.

Id. ¶ 28.

Moses told

Barrett, “they can,” and that “they” already had his phone.
¶¶ 29-30.

Id.

He encouraged Barrett to hand over her phone, saying

“Don’t lose your job over this,” and “You have to cooperate in
an internal investigation.”

Id. ¶¶ 31-32.

Moses lied to

Barrett by telling her that she had to cooperate and reinforced
[4]

Barrett’s belief that there was an internal investigation by
saying that she could lose her job.

Id. ¶¶ 33-34.

Barrett told Floyd that she wanted to speak with a union
attorney; Floyd responded that the attorney said that Barrett
had to cooperate.

Id. ¶ 36.

Barrett handed her cell phone

over, id. ¶ 37, because of Floyd’s statement that the union
attorney said she had to cooperate and Floyd’s and Alfred’s
directives, Pl.’s Facts ¶ 6.

Floyd went back into the police

station and the state troopers took the phone, asked Barrett to
sign a form, then drove away.

Def.’s Facts ¶¶ 38-40.

Keefe took the phone to the Norfolk County District
Attorney’s Office and downloaded the contents of the device.
Id. ¶ 41.

Barrett resumed patrol; a trooper returned her cell

phone to her later during her shift.

Id. ¶¶ 42-43.

Alfred later returned to the police station and told
Barrett that he did not know what happened on July 30, but that
if something had happened, it pissed him off.
Def.’s Facts ¶ 44.

Pl.’s Facts ¶ 3;

Barrett interpreted this as meaning that

Alfred would be upset if Gould had committed violence against
her.

Pl.’s Facts ¶ 3.
The Plainville Police Department has only one policy

relating to cell phone use at work, which requires officers to
have a phone number at which the Department can reach them.
Pl.’s Facts ¶ 4.
[5]

Town Administrator Jennifer Thompson (“Thompson”) is
Plainville’s sole appointing authority.

Def.’s Facts ¶ 47.

Alfred does not have the power or authority to terminate police
officers, including Barrett, and Alfred’s decisions regarding
personnel actions or decisions that affect the conditions of an
officer’s employment are subject to review by the Board of
Selectman.

Id.

Thompson’s decisions regarding termination are

also subject to review by the Board of Selectman.
II.

Id.

ANALYSIS
Plainville has moved for summary judgment on count I,

asserting that Barrett fails to establish a violation of her
Fourth Amendment rights, Def.’s Mem. 3-5, and that the
municipality is not liable regardless, because the police chief
-- Alfred -- is not a final policymaker, id. at 5-7.

Barrett

counters that it is disputed whether the search of her phone
violated her Fourth Amendment rights, Pl.’s Opp’n 2-7, and that
Alfred does have final policymaking authority for the challenged
action, id. at 7-8.

This Court holds that Plainville fails to

establish its entitlement to summary judgment.
A.

Legal Standard

Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

The Court

does not weigh the evidence, but draws all reasonable inferences
[6]

in favor of the nonmovant.

Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 150 (2000).

For the movant to prevail, it

must demonstrate that “the nonmoving party has failed to make a
sufficient showing on an essential element of her case with
respect to which she has the burden of proof.”
Catrett, 477 U.S. 317, 323 (1986).

Celotex Corp. v.

The nonmovant then has the

burden of going forward with citations to specific facts which
establish a genuine issue for trial.

Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

“[I]f

the evidence is such that a reasonable jury could return a
verdict for the nonmoving party,” then summary judgment is not
merited.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).
B.

Fourth Amendment Violation

Plainville argues that Barrett cannot show a violation of
her Fourth Amendment rights because it was reasonable for Alfred
to require Barrett to cooperate with state troopers.1
Mem. 4.

Def.’s

Barrett counters that Plainville has not shown that

1

Plainville also argues that Barrett has not established a
Fourth Amendment violation because the state troopers -- not
Plainville -- took possession of Barrett’s phone, Def.’s Mem. 5,
which they would have done regardless of Alfred’s actions, id.
This opinion excludes an extensive discussion of these arguments
because -- as Barrett successfully counters -- Alfred and
Floyd’s alleged actions were the instigating force in Barrett
turning over her phone, Pl.’s Opp’n 5-6, and whether the state
troopers would have seized Barrett’s phone regardless of
Alfred’s actions is irrelevant, id. at 6-7.
[7]

Alfred acted reasonably, Pl.’s Opp’n 3-4, or that reasonableness
is the appropriate standard, id. at 4-5.

On the record before

the Court, there is insufficient evidence to understand the
justification for the search or to conclude that the search was
reasonable, thus precluding summary judgment.
The Fourth Amendment guarantees “[t]he right of the people
to be secure in their persons, . . . and effects, against
unreasonable searches and seizures.”

U.S. Const. amend. IV.

This protects people against arbitrary and invasive acts by
government actors, including when the government is acting as an
employer.
(2010).

City of Ontario, Cal. v. Quon, 560 U.S. 746, 755-56

The Supreme Court has recognized, however, that

government employers have special needs that “make the warrant
and probable-cause requirement impracticable.”

Id. at 756

(citing O’Connor v. Ortega, 480 U.S. 709, 725 (1987) (plurality
opinion); 480 U.S. at 732 (Scalia, J., concurring in part)).
The O’Connor plurality proposed a two-step analysis to analyzing
Fourth Amendment claims against government employers: first, did
the employee have a reasonable expectation of privacy given the
operational realities of the workplace, O’Connor, 480 U.S. at
717, and second, if the intrusion was for noninvestigatory,
work-related purposes or for work-related misconduct, was it
reasonable under the circumstances, id. at 725-26.

[8]

Barrett argues that Plainville has not shown that the
reasonableness inquiry espoused by the O’Connor plurality
applies at all, because Plainville does not set forth any facts
establishing that the search was conducted for work-related
purposes or as an investigation of work-related misconduct.
Pl.’s Opp’n 5.

Indeed, two state troopers investigated the

incident, Pl.’s Facts ¶ 7; Def.’s Facts ¶ 4, not Plainville
police officers; no facts establish -- nor does Plainville argue
-- that this investigation was work-related in any way.

In

fact, Plainville fails to set forth any facts justifying the
search of Barrett’s phone other than a vague assertion that it
was reasonable, Def.’s Mem. 4.

On this incomplete record, the

Court denies summary judgment.
C.

Final Policymaker

Plainville argues that because Alfred’s decisions are
reviewable by the Board of Selectmen, Alfred is not a final
policymaker and thus his actions cannot form the basis for
imposing liability under section 1983.

Def.’s Mem. 5-7. Barrett

argues that Alfred was the final policymaker regarding whether
Barrett was required to cooperate with state police.

Pl.’s

Opp’n 7-8, successfully drawing into dispute Plainville’s
argument for summary judgment.
Although section 1983 allows an individual to sue a
municipality for a deprivation of her constitutional rights, it
[9]

does not allow for municipal liability on a respondeat superior
theory.

Monell v. Department of Soc. Servs., 436 U.S. 658, 690-

91 (1978).

Rather, the challenged action must be official

policy, id. at 691 -- i.e., a formal rule or understanding or a
single decision by a municipal policymaker in appropriate
circumstances, Pembaur v. City of Cincinnati, 475 U.S. 469, 480
(1986).

In City of St. Louis v. Praprotnik, 485 U.S. 112

(1988), the Supreme Court “define[d] the proper legal standard
for determining when isolated decisions by municipal officials
or employees may expose the municipality itself to liability
under [section] 1983.”

Id. at 114.

The Supreme Court

emphasized: “[w]e have assumed that an unconstitutional
governmental policy could be inferred from a single decision
taken by the highest officials responsible for setting policy in
that area of the government’s business.”

Id. at 123 (citing

Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981); Owen v.
City of Independence, 445 U.S. 622 (1980)).

“[T]he

identification of policymaking officials is a question of state
law.”

Id. at 124.

The Supreme Court further clarified:

the authority to make municipal policy is necessarily the
authority to make final policy. When an official’s
discretionary decisions are constrained by policies not of
that official’s making, those policies, rather than the
subordinate’s departure from them, are the act of the
municipality. Similarly, when a subordinate’s decision is
subject to review by the municipality’s authorized
policymakers, they have retained the authority to measure
the official’s conduct for conformance with their policies.
[10]

If the authorized policymakers approve a subordinate’s
decision and the basis for it, their ratification would be
chargeable to the municipality because their decision is
final.
Id. at 127.
Plainville argues that under Massachusetts law, Alfred’s
decisions are subject to review by the town’s Board of
Selectmen, and that only the Town Administrator can terminate a
town employee.

Def.’s Mem. 5-6.

Barrett responds that the act

in question is Alfred’s forcing Barrett to turn over her phone,
not threatening her job.

Pl.’s Opp’n 7.

Massachusetts law

gives the Board of Selectmen and the police chief parallel
authority over the department:

“The selectmen may make suitable

regulations governing the police department and the officers
thereof.

The chief of police shall be in immediate control of

all town property used by the department, and of the police
officers, who shall obey his orders.”
§ 97.

Mass. Gen. Laws c. 41

Some of the police chief’s policymaking is reviewable,

Mass. Gen. Laws c. 41 § 97A (“The chief of police in any such
town shall from time to time make suitable regulations governing
the police department, and the officers thereof, subject to the
approval of the selectmen . . . .”), but the First Circuit has
recognized that a police chief is a final policymaker in certain
circumstances, see Welch v. Ciampa, 542 F.3d 927, 941-42 (1st
Cir. 2008) (holding that police chief’s decision not to

[11]

reappoint a specialist could constitute official policy and thus
a basis for the town’s section 1983 liability under Pembaur).
Although Barrett and Plainville do not dispute that some of
Alfred’s decisions are subject to review, Def.’s Facts ¶ 47;
Plainville fails to carry its burden to establish that Alfred’s
challenged conduct was reviewable.

Accordingly, this Court

denies summary judgment on whether liability may be imposed on
Plainville.
III. CONCLUSION
For the foregoing reasons, this Court DENIES Plainville’s
motion for summary judgment, ECF No. 39.
SO ORDERED.

/s/ William G. Young
WILLIAM G. YOUNG
DISTRICT JUDGE

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