Lambert v. Fiorentini et al

Filing 16

Judge Rya W. Zobel: ORDER entered granting 9 Motion for Judgment on the Pleadings. Judgment may be entered for defendants. (Urso, Lisa)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 17-12317-RWZ

CRAIG LAMBERT
v.
JAMES J. FIORENTINI, et al.
ORDER
April 1, 2019
.
ZOBEL, S. D.J.
Craig Lambert (“plaintiff”), a retired police officer with the City of Haverhill,
Massachusetts, brings this action against Alan R. DeNaro, Chief of the Haverhill Police
Department, and James J. Fiorentini, Mayor of Haverhill (collectively “defendants”), for
relief from their denial of his application for a Law Enforcement Officer Safety Act
(“LEOSA”) identification card. 18 U.S.C. § 926C. Defendants have moved for
judgment on the pleadings (Docket # 9).
I.

Background
LEOSA provides that a “qualified retired law enforcement officer” who obtains the

requisite state-issued identification may “carry a concealed firearm that has been
shipped or transported in interstate or foreign commerce,” notwithstanding any contrary
state or local law. Id. While LEOSA is a federal law, the issuance of the identification
card is left to the states. In Massachusetts, “[t]he chief law enforcement officer for a law
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enforcement agency shall issue an identification card to a qualified retired law
enforcement officer who retired from that law enforcement agency.” 501 Mass. Code
Regs. § 13.03. A “qualified retired law enforcement officer” is defined as, inter alia,
“[a]n individual who ... separated from service in good standing.”1 Id. § 13.02.
Because the Massachusetts regulations do not define “good standing,” local
regulations and policies may provide such definition. Frawley v. Police Com'r of
Cambridge, 46 N.E.3d 504, 517 (Mass. 2016). The Haverhill Police Department’s
policy defines “separated ... in good standing” to mean that the individual, at the time of
retirement, was not “charged with or suspected of criminal activity ... or ... under
investigation or facing disciplinary action for an ethical violation of departmental rules,
or for any act of dishonesty.” Haverhill Police Department, Policy & Procedure No.
22.2.7-III(D) at Docket # 11 at 7.
Plaintiff retired on March 22, 2014, and, in January 2017, requested an
identification card from Alan R. DeNaro, the Chief of the Haverhill Police Department
(“Police Chief”). On October 2, 2017, the Police Chief officially denied plaintiff’s request
by letter, explaining that plaintiff did not qualify for the identification card because “he
left employment under a disability prior to the completion of an Internal Affairs
investigation, which could have potentially resulted in discipline up to and including
termination.” Docket # 1-3 at 13.
Plaintiff then filed a four-count complaint in the Essex Superior Court, which
defendants timely removed to this court asserting federal question jurisdiction, 28
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The Massachusetts regulation contains other requirem ents that are not at issue in this
case, including, for exam ple, that the retired officer have had “statutory powers of arrest” before
separating from service. 501 Mass. Code Regs. § 13.02.

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U.S.C. § 1441, based on Count II, which alleges civil rights violations under 42 U.S.C. §
1983. Count II also invokes the Massachusetts Constitution. In addition, the complaint,
in Count I, alleges a civil action in the nature of certiorari pursuant to Mass. Gen. L. ch.
249 § 4. See Frawley, 46 N.E.3d at 513 (civil action pursuant to Mass. Gen. L. ch. 249
§ 4 is the appropriate avenue of relief for challenging denial of LEOSA identification
card). Count III asserts that defendants acted negligently in “discharg[ing] the legal
duties” owed to plaintiff as a retired police officer. Docket # 1-3 at 10. And, lastly,
Count IV – vaguely titled “Equity” – alleges that the October 2, 2017, letter contained
inaccurate and unsupported assertions of fact.
II.

Legal Standard & Analysis
Defendants have moved for judgment on the pleadings pursuant to Fed. R. Civ.

P. 12 (c), which is governed by the same standard as a Rule 12(b)(6) motion to dismiss.
Thus, to survive a Rule 12(c) motion, “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)). The court may consider the complaint and its exhibits,
documents incorporated by reference in the complaint, and public records.2 See
Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993); see also Grajales v. Puerto Rico Ports

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The state court docket sheet (Docket # 13-1) is properly considered a public record. See
Boateng v. InterAm erican Univ., Inc., 210 F.3d 56, 60 (1st Cir. 2000) (“a court ordinarily m ay treat
docum ents from prior state court adjudications as public records”). Moreover, the court considers the
Haverhill Police Departm ent’s Policy & Procedures, quoted supra, because the authenticity of the policy is
not disputed by the parties and the standards for issuing LEOSA cards is central to plaintiff’s claim s. See
Ironshore Specialty Ins. Co. v. United States, 871 F.3d 131, 135 (1st Cir. 2017). The court does not
otherwise consider the “Record of Proceedings” (Docket # 11) subm itted by defendants.

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Auth., 682 F.3d 40, 44 (1st Cir. 2012).
A.

Count I

In reviewing a denial of a retired police officer’s request for an identification card
for LEOSA purposes, the “court will examine whether the ... decision was arbitrary and
capricious such that it constituted an abuse of ... discretion.” Frawley, 46 N.E.3d at
515. A decision is arbitrary or capricious if it “lacks any rational explanation that
reasonable persons might support.” Id. at 516 (citations ommitted).
In the instant case, the Police Chief determined that plaintiff was not in “good
standing” because when he retired, a disciplinary issue remained open. The issue
dated back to August 2012, when plaintiff was determined to have engaged in
insubordination and misconduct in violation of the Haverhill Police Department’s Code
of Conduct. The Police Chief imposed a five-day suspension without pay and
recommended to the Mayor that plaintiff receive an additional fifty-five day suspension.
However, plaintiff went on “injured leave” just before the suspension was imposed. The
Haverhill Police Department subsequently withheld five days’ pay from plaintiff, but in a
lawsuit filed by plaintiff to recover that pay, a state court found that plaintiff’s “injured
leave” status precluded the imposition of the suspension. Lambert v. DeNaro et al., No.
1377-CV-00351 (Mass. Super. Nov. 26, 2013); see Docket # 13-1. Plaintiff remained
on “injured leave” until he retired and the requisite hearing to determine whether a
further suspension was warranted never occurred.
Thus, at the time of plaintiff’s retirement in March 2014, his suspension had yet
to be served and the decision as to additional punishment had not been addressed. Cf.
Frawley, 46 N.E.3d at 518 (denial of identification card constituted abuse of discretion
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when, at the time of the denial, the retired law enforcement officer had been cleared of
wrongdoing). Accordingly, it was neither arbitrary nor capricious for the Police Chief to
conclude that plaintiff was still “facing disciplinary action for an ethical violation of
departmental rules” when he separated from the department. Haverhill Police
Department, Policy & Procedure No. 22.2.7-III(D) at Docket # 11 at 7. Defendants’
motion for judgment on the pleadings is thus allowed with respect to Count I.
B.

Count II

Count II purports to assert a claim under 42 U.S.C. § 1983 and the
Massachusetts Constitution. Plaintiff does not reference specific constitutional rights,
but rather refers to “civil rights to life (self defense) and property (the [LEOSA] card).”
Docket #1-3.
To the extent plaintiff is alleging a procedural due process claim, Count II fails
because plaintiff does not even allege what process he is due or that the state-law
remedies (including the certiorari process under Mass. Gen. L. ch. 249 § 4) are
inadequate. See Rumford Pharmacy, Inc. v. City of E. Providence, 970 F.2d 996, 9991000 (1st Cir. 1992) (dismissal of procedural due process claims warranted when
complaint failed to allege the unavailability of constitutionally adequate state law
remedies).
Further, if plaintiff is alleging a substantive due process claim, that too fails.
Whether an individual has a cognizable interest in a LEOSA card for due process
purposes is a question not yet addressed by the First Circuit. Compare Henrichs v.
Illinois Law Enf't Training & Standards Bd., 306 F.Supp. 3d 1049, 1058 (N.D. Ill. 2018)
(LEOSA does not create an individual right enforceable under 42 U.S.C. § 1983), with
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DuBerry v. D.C., 824 F.3d 1046, 1054 (D.C. Cir. 2016) (LEOSA does create a
cognizable right). Even assuming, arguendo, that plaintiff has an established and
protectible interest, plaintiff’s allegations, if proven, fall short of the type of “governmental
action that shocks the conscience” required for a substantive due process claim. Najas
Realty, LLC v. Seekonk Water Dist., 821 F.3d 134, 145 (1st Cir. 2016) (“[T]o assert a
viable substantive due process claim, a plaintiff has ‘to prove that they suffered the
deprivation of an established life, liberty, or property interest, and that such deprivation
occurred through governmental action that shocks the conscience.’”) (emphasis in
original) (quoting Clark v. Boscher, 514 F.3d 107, 112 (1st Cir. 2008)). Defendants’
motion with respect to Count II is therefore allowed.3
C.

Remaining Counts: Counts III and IV

Defendants’ motion is also allowed with respect to Counts III and IV. Count III
alleges negligence, but such a claim is barred by the Massachusetts Tort Claims Act.
Mass. Gen. L. ch. 258, § 2 (barring negligence claims against public employees related
to performance of their official duties); id. § 10(e) (barring “any claim based upon the ...
denial ... or refusal to issue ... any permit, license, certificate, approval, order or similar
authorization” against public employers). And lastly, Count IV simply does not state a
cause of action. Plaintiff's opposition to defendants' motion states that "[Count 4] is the
request for the [c]ourt to order the credential, there being no basis offered for its refusal."
Docket # 14 at 13. But, even so, that claim fails for the reasons that Count I fails.

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Plaintiff’s Massachusetts Constitutional claim s, which should have been brought pursuant
to Massachusetts Civil Rights Act (“MCRA”), Mass. Gen. L.ch. 12, § 11I, suffer the sam e fate because
plaintiff has failed to sufficiently allege a violation of state constitutional law. See Najas Realty, LLC, 821
F.3d at 141(“[T]he MCRA is narrower than § 1983 in that it lim its its rem edy to conduct that interferes with
a secured right ‘by threats, intim idation or coercion.’”).

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III.

Conclusion
Defendants’ motion (Docket # 9) is ALLOWED. Judgment may be entered for

defendants.

_____April 1, 2019_______

_________/s/Rya W. Zobel________

DATE

RYA W . ZOBEL
SENIOR UNITED STATES DISTRICT JUDGE

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