Sceviour v. McKeon et al
Filing
43
Judge George A. O'Toole, Jr: OPINION AND ORDER entered regarding 20 Motion to Dismiss First Amended Complaint ; 34 Motion for Judgment on the Pleadings (Halley, Taylor)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 17-12191-GAO
RYAN N. SCEVIOUR,
Plaintiff,
v.
COLONEL RICHARD MCKEON, MAJOR SUSAN ANDERSON,
and a number of JOHN DOES and/or JANE DOES,
Defendants,
and
CIVIL ACTION NO. 17-12232-GAO
ALI REI,
Plaintiff,
v.
COLONEL RICHARD MCKEON, MAJOR SUSAN ANDERSON,
and a number of JOHN DOES and/or JANE DOES,
Defendants.
OPINION AND ORDER
July 9, 2018
O’TOOLE, D.J.
The plaintiffs in these related cases, Ryan Sceviour and Ali Rei, are Massachusetts State
Police Troopers who allege in substance that they were unjustly disciplined by superior officers,
the defendants Colonel Richard McKeon, then Superintendent of the State Police, and Major Susan
Anderson. 1 Sceviour and Rei claim they were disciplined for refusing to cooperate in the
defendants’ conspiracy to alter police reports and state court documents to omit information that
1
Colonel McKeon and Major Anderson, both of whom have since retired from the State Police,
are sued in their individual capacities. The parallel complaints also suggest claims against
unidentified co-conspirators, named as John and/or Jane Does.
reflected poorly on an arrestee. Both complaints assert claims for violations of substantive due
process under the Fourteenth Amendment to the United States Constitution under 42 U.S.C. §
1983 (Count I); violations of state constitutional rights and the Massachusetts Civil Rights Act,
Massachusetts General Laws Chapter 12, Section 11H (Count II); civil conspiracy (Count III); and
intentional infliction of emotional distress (Count IV). Sceviour additionally brings a claim for
defamation (Count V) against all defendants except Major Anderson.
In brief, the plaintiffs allege that the defendants used their supervisory authority to require
the plaintiffs to revise their reports about an arrest of a woman for operating under the influence
of alcohol or drugs, made in the course of their duties, to omit information that, if publicly known,
would embarrass not only the arrestee but also her family, including her father, a state court judge.
Pending before the Court are McKeon’s motions to dismiss the complaints of both
plaintiffs for failure to state a claim upon which relief can be granted under Federal Rule of Civil
Procedure 12(b)(6), and Anderson’s motion to dismiss the Rei complaint for failure to state a claim
and her motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) as to
the Sceviour complaint.
Because this Court’s subject matter jurisdiction over these two cases is based on the federal
claims asserted, those claims are addressed first and, as will be seen, exclusively.
I.
Applicable Standards for the Present Motions
In order to survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Legal conclusions and bare recitals of the elements of a cause of action are disregarded. Mead v.
Indep. Ass’n, 684 F.3d 226, 231 (1st Cir. 2012) (citing Iqbal, 556 U.S. at 678 and Ocasio–
2
Hernández v. Fortuño–Burset, 640 F.3d 1, 12 (1st Cir. 2011)). “The remaining factual statements
are taken as true, and the question becomes whether those statements permit a reasonable inference
of liability for the misconduct alleged.” Id. (citing Iqbal, 556 U.S. at 678).
A Rule 12(c) motion for judgment on the pleadings is “treated much like a Rule 12(b)(6)
motion to dismiss.” Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008). The Court
“accept[s] all of the non-movant’s well-pleaded facts as true and draws all reasonable inferences
in [their] favor.” Rezende v. Ocwen Loan Servicing, LLC, 869 F.3d 40, 42 (1st Cir. 2017) (citation
omitted). “A judgment on the pleadings is only appropriate when ‘it appears beyond a doubt that
the nonmoving party can prove no set of facts in support of [her] claim which would entitle [her]
to relief.’” Id. (quoting Feliciano v. State of R.I., 160 F.3d 780, 788 (1st Cir. 1998)).
II.
Substantive Due Process Claims
The Due Process Clause in the Fourteenth Amendment “has both procedural and
substantive components. In its procedural aspect, due process ensures that government . . . will use
fair procedures.” DePoutot v. Raffaelly, 424 F.3d 112, 118 (1st Cir. 2005). In their motion papers,
each plaintiff has explicitly abjured any procedural due process claim: “There are no allegations
in the complaint that would invoke the procedural due process clause, nor did the plaintiff plead
such a claim.” (Sceviour Opp’n to Def. McKeon’s Mot. to Dismiss, 4 n.4 (dkt. no. 26); Rei Opp’n
to Def. Anderson’s Mot. to Dismiss, 3 n.3 (dkt. no. 25).)
“In its substantive aspect, due process safeguards individuals against certain offensive
government actions, notwithstanding that facially fair procedures are used to implement
them.” DuPoutot, 42 F.3d at 118 (citation omitted). The plaintiffs each allege that the defendants’
actions in using their authority to compel the plaintiffs to alter their official reports deprived them
of substantive due process. In each of their complaints, the plaintiffs explicitly allege a civil rights
3
cause of action under 42 U.S.C. § 1983 in Count I. In Count III (captioned “Civil Conspiracy State
and Federal”) they appear also to allege a conspiracy under federal law to deprive them of federally
guaranteed rights, thus implicitly invoking § 1983 again. 2
There is a high threshold for Fourteenth Amendment substantive due process claims, “lest
the Constitution be demoted to what [the Supreme Court has] called a font of tort law.” County of
Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998). There are two aspects to a substantive due
process claim. First, “in a [substantive] due process challenge to executive action, the threshold
question is whether the behavior of the governmental officer is so egregious, so outrageous, that it
may fairly be said to shock the contemporary conscience.” Id. Additionally, a plaintiff must show
“not only that the official’s actions shock the conscience, but also that the official violated a right
otherwise protected by the substantive Due Process Clause.” Martinez v. Cui, 608 F.3d 54, 64 (1st
Cir. 2010) (citations omitted); Harron v. Town of Franklin, 660 F.3d 531, 536–37 (1st Cir. 2011).
Neither element has been plausibly alleged by the plaintiffs here.
For the action of a government officer to be conscience-shocking, it must be “truly
outrageous, uncivilized, and intolerable,” McConkie v. Nichols, 446 F.3d 258, 260 (1st Cir. 2006)
(quoting Hasenfus v. LaJeunesse, 175 F.3d 68, 72 (1st Cir.1999)), such that it “can properly be
characterized as arbitrary, or conscience shocking, in a constitutional sense.” Lewis, 523 U.S. at
847 (citation omitted); see also Maymi v. Puerto Rico Ports Auth., 515 F.3d 20, 30 (1st Cir. 2008)
2
There is no federal common law cause of action for civil conspiracy as alleged by the plaintiffs
in Count III. The Court therefore construes this to be a conspiracy claim under § 1983—i.e., a
claim that the defendants conspired to commit the civil rights violation alleged in Count I. Because
conspiracy claims under § 1983 are not an independent cause of action, but only a mechanism for
establishing liability for deprivations that are otherwise actionable under § 1983, Count III cannot
succeed unless Count I does as well. See Thore v. Howe, 466 F.3d 173, 179 (1st Cir. 2006);
Landrigan v. City of Warwick, 628 F.2d 736, 742 (1st Cir. 1980) (“While conspiracies may be
actionable under section 1983, it is necessary that there have been, besides the agreement, an actual
deprivation of a right secured by the Constitution and laws.”).
4
(“The state conduct itself must be so brutal, demeaning, and harmful that it is shocking to the
conscience.”). A plaintiff must allege a violation of personal rights “so severe[,] so
disproportionate to the need presented, and so inspired by malice or sadism rather than a merely
careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power
literally shocking to the conscience.” Harron, 660 F.3d at 536 (quoting González–Fuentes v.
Molina, 607 F.3d 864, 881 (1st Cir. 2010)). “Mere violations of state law, even violations resulting
from bad faith, do not necessarily amount to unconstitutional deprivations of substantive due
process.” See DePoutot, 424 F.3d at 119 (citation omitted). Nor do claims based on “allegations
of perjury, falsification of documents, and retaliatory action” suffice for the purposes of a
substantive due process claim under this circuit’s case law. See Frei v. Town of Holland, 212 Fed.
Appx. 4, 6 (1st Cir. 2007); Coyne v. City of Somerville, 972 F.2d 440, 444 (1st Cir. 1992) (“It is
bedrock law in this circuit, however, that violations of state law—even where arbitrary, capricious,
or undertaken in bad faith—do not, without more, give rise to a denial of substantive due process
under the U.S. Constitution.”).
The gist of the allegations in the two complaints at issue is that superior officers ordered
the plaintiffs to alter reports or records to delete information that would be embarrassing to certain
other persons. Such actions, if proven, would fall well short of the conscience-shocking standard
required for a substantive due process claim. See Cruz–Erazo v. Rivera–Montanez, 212 F.3d 617,
623 (1st Cir. 2000) (holding that allegations that police officers engaged in a months-long
campaign of harassment of plaintiffs and deliberately perjured themselves in official court
proceedings failed to allege a claim for denial of substantive due process).
The plaintiffs have similarly failed to allege the second element of a substantive due
process claim—that the defendants’ actions deprived them of a constitutionally protected right or
5
interest. See Martinez, 608 F.3d at 64. “Substantive due process protects only rights and interests
that implicate one of ‘those fundamental rights and liberties which are, objectively, deeply rooted
in this Nation's history and tradition.’” Gonzalez-Fuentes, 607 F.3d at 895 n.13 (1st Cir. 2010)
(quoting Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997)). 3 No serious argument could
be made that deciding what information to include in official records is one of “those fundamental
rights and liberties.”
For these reasons, the plaintiffs have in each case failed as a matter of law to adequately
allege claims under § 1983 against both the named and John or Jane Doe defendants for violations
of substantive due process or conspiracy to commit such violations. Those claims are therefore
DISMISSED WITH PREJUDICE.
The remaining claims all arise under state law and do not present any federal question.
Accordingly, the Court declines to exercise supplemental jurisdiction under 28 U.S.C. § 1367 over
the state law claims. See Wilber v. Curtis, 872 F.3d 15, 23 (1st Cir. 2017) (“[I]t is an abuse of
discretion for a district court to retain jurisdiction over the remaining pendent state claims unless
doing so would serve ‘the interests of fairness, judicial economy, convenience and comity.’”)
(citations omitted). All non-federal claims are therefore DISMISSED WITHOUT PREJUDICE to
their assertion in an appropriate state forum.
3
This is in contrast to procedural due process, which protects against the deprivation of rights
created by state or federal law, such as interests created by state-sanctioned collective-bargaining
agreements, Wojcik v. Massachusetts State Lottery Comm’n, 300 F.3d 92 (1st Cir. 2002), without
adequate procedures to promote fairness. As noted above, these plaintiffs do not claim a denial of
procedural due process.
6
It is SO ORDERED.
Judgment shall enter accordingly in each case.
/s/ George A. O’Toole, Jr.
United States District Judge
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?