Penate v. Kaczmarek et al
Filing
140
Magistrate Judge Katherine A. Robertson: MEMORANDUM AND ORDER entered. For the reasons set forth above, the Motions to Dismiss by Defendant Kent - (Dkt. No. 26), Defendants Wadlegger, Bigda, and Kalish - (Kdt. No. 63), and by the City of Springfield - (Dkt. No. 57) are hereby DENIED. (Finn, Mary)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ROLANDO PENATE,
)
)
Plaintiff,
)
)
v.
)
)
ANNE KACZMAREK, KRIS FOSTER,
)
RANDALL RAVITZ, JOSEPH BALLOU, )
ROBERT IRWIN, RANDY THOMAS,
)
SONJA FARAK, SHARON SALEM,
)
JAMES HANCHETT, JULIE NASSIF,
)
LINDA HAN, STEVEN KENT,
)
JOHN WADLEGGER, GREGG BIGDA, )
EDWARD KALISH, and
)
CITY OF SPRINGFIELD,
)
)
Defendants.
)
Civil Action No. 3:17-30119-KAR
MEMORANDUM AND ORDER REGARDING MOTIONS TO DISMISS BY
INDIVIDUAL DEFENDANTS STEVEN KENT, JOHN WADLEGGER, GREGG BIGDA,
AND EDWARD KALISH AND THE CITY OF SPRINGFIELD
(Dkt. Nos. 26, 57, & 63)
ROBERTSON, U.S.M.J.
This is a civil rights action brought pursuant to 42 U.S.C. § 1983 by Plaintiff Ronaldo
Penate against fifteen officials at the Department of Public Health, the Massachusetts State
Police, the Attorney General’s Office of the Commonwealth, and the Springfield Police
Department, as well as against the City of Springfield. 1 Most of the defendants have moved to
dismiss. Because allegations and defenses are particular to certain groups of defendants, the
court has divided the defendants into three categories: the Springfield Police Department (SPD)
1
The suit initially named the estate of Kevin Burnham as one of the defendants. On December
14, 2017, Plaintiff moved to dismiss the counts brought against Burnham’s estate (Dkt. No. 41),
and the court did so on December 15, 2017 (Dkt. No. 42).
police officers (collectively, the SPD Officers) and the City of Springfield; the individuals
employed by or affiliated with the Attorney General’s office, and the individuals employed by or
affiliated with the Department of Public Health and its forensic laboratories, including the
laboratories used for analyzing substances suspected of being illegal drugs. The court heard
argument on the motions to dismiss over three days. This memorandum addresses the motions to
dismiss filed by the SPD Officers and Springfield.
SPD Officers Steven Kent, John Wadlegger, Gregg Bigda, and Edward Kalish move to
dismiss Counts VI and VIII directed against them for violation of § 1983 and intentional
infliction of emotional distress respectively. Defendant Springfield moves to dismiss Count VII,
a § 1983 claim. Defendants all argue that the complaint fails to state a claim upon which relief
can be granted, and the SPD Officers assert that qualified immunity insulates them from liability.
For the reasons that follow, the court will deny the motions.
I.
BACKGROUND
In evaluating a motion to dismiss, the court accepts as true all well-pleaded allegations in
the complaint and draws all reasonable inferences in favor of Plaintiff. Diaz-Nieves v. United
States, 858 F.3d 678, 689 (1st Cir. 2017). The facts set down herein are drawn from Plaintiff’s
Complaint (Dkt. No. 1). 2 The court will first set out a general overview of Plaintiff’s allegations
before turning to the allegations and claims involving this group of defendants.
A.
General Overview
2
Plaintiff submitted trial transcripts and excerpts of grand jury testimony in support of his
oppositions to the defendants’ motions to dismiss. The SPD Officers and the City did not oppose
the court’s reliance on these sources of information. Nonetheless, because this is a motion to
dismiss, the court has relied on the allegations in the very detailed complaint as the source for the
facts on which Plaintiff’s claims are based.
2
In late October and early November of 2011, the SPD narcotics unit arranged three
controlled buys of a suspected controlled substance from Plaintiff. After each transaction, the
undercover officer who made the buy returned to the police station with the evidence to catalog
it. The following morning, the narcotics evidence officer, Kevin Burnham, took custody of the
packets of alleged drugs. Protocol required that Burnham heat seal packets of suspected
narcotics prior to delivering them to the forensic drug laboratory at Amherst (Drug Lab) for
analysis. Burnham rarely did so. In Plaintiff’s case, he brought the unsealed packets to the Drug
Lab and sealed them there.
The Drug Lab operated under the auspices of the Department of Public Health (DPH).
Defendant Julie Nassif, Director of DPH’s Division of Analytical Chemistry since its inception
in 2006 until 2012, had the responsibility of supervising the Drug Lab. Defendant Linda Han,
Director of DPH’s Bureau of Laboratory Sciences from 2009 until 2012, also supervised the
Drug Lab on paper. In practice, however, there was little oversight and few site visits.
Defendants Sharon Salem and James Hanchett worked at the Drug Lab. Hanchett, a chemist,
became the lab supervisor in 2008. Salem was the evidence officer in charge of assigning
samples to chemists for analysis. The Drug Lab was unaccredited, underfunded, and
understaffed; there were few, if any, quality assurance safeguards, such as written protocols or
audits, or employee performance evaluations. Despite operating with a lean budget, a small
staff, and little oversight, the Drug Lab chemists analyzed almost twice as many drug samples as
chemists at the DPH drug laboratory in Hinton.
Defendant Sonja Farak worked at the Drug Lab as a chemist, employed first by DPH and
then by the Massachusetts State Police. She started working at the Drug Lab in 2004 and
remained employed until the lab closed in January 2013. From the beginning of her time at the
3
Drub Lab, Farak routinely stole and consumed unsecured drugs kept at the Drug Lab as
standards for testing the substances submitted by law enforcement. Eventually, Farak moved on
from abusing the drug standards to stealing from and ingesting samples submitted for testing,
using drugs including methamphetamine, cocaine, and LSD. She consumed these substances
during the day, while she was analyzing the samples submitted to the lab for testing.
On November 15, 2011, after the SPD arranged its third undercover purchase from
Plaintiff, he was arrested with five other individuals. The arresting officers seized over $2,000 in
cash, some packets of suspected heroin and cocaine, and a firearm and ammunition. The
arresting officers turned over the money seized at the time of arrest, as well as the packets
containing the alleged drugs, to Burnham’s custody. Burnham, after stealing some of the cash,
cataloged the remaining money and the drugs as evidence. The following day, Burnham drove
to the Amherst drug lab with the alleged drugs seized at the time of Plaintiff’s arrest and the
packets obtained during the two earlier controlled buys. At the Drub Lab, Burnham attempted to
heat seal the packets using the lab’s heat sealer. Farak, however, had tampered with the heat
sealer so that the seal would be ineffective, permitting her access to the drugs. Burnham
transferred custody of the drugs to the Drub Lab.
Farak tested the samples in Plaintiff’s case over a two week period at the end of
December 2011 and into January 2012. In that period, she was also undergoing counseling at
ServiceNet for her drug addiction and keeping a diary card as part of her treatment. Despite
being in treatment, Farak continued to steal and use drugs to which she had access through her
employment. For two of the days during which she tested the samples submitted by Burnham as
related to Plaintiff’s case, Farak was under the influence of drugs, including crack cocaine and
4
LSD. She certified that all of the samples related to Plaintiff’s arrest had tested positive for the
presence of a controlled substance.
On January 11, 2012, Plaintiff was indicted and charged in thirteen counts with
possession of illegal substances with intent to distribute, distribution of illegal substances, school
zone violations, 3 possession of a firearm without a valid FID card, possession of ammunition
without a valid FID card, and possession of a firearm during the commission of a felony. In
February 2012, Plaintiff pled not guilty to the charges against him.
In January 2013, Hanchett and Salem discovered that cocaine samples that had been
assigned to Farak for testing were not in the evidence room. When the chemists discovered
suspicious circumstances at Farak’s desk, the Massachusetts State Police (MSP) were brought in
to investigate the loss of drug samples. The MSP discovered other case envelopes in Farak’s
storage locker and, by the afternoon, they had spoken to Farak and impounded her car. After
securing a warrant, the MSP investigators, Defendants Joseph Ballou, Robert Irwin, and Randy
Thomas, searched Farak’s car and seized approximately 300 pages of paper, including so-called
“mental health worksheets,” comprising ServiceNet diary cards and other documents related to
Farak’s therapy. The MSP officers turned over the evidence to the Massachusetts Attorney
General’s Office (AGO). Farak was arrested.
Following Farak’s arrest, the AGO began a limited investigation into Farak’s activities at
the Drug Lab. Defendants Robert Irwin and Joseph Ballou worked with the AGO’s Enterprise
and Major Crimes Division; defendant Anne Kaczmarek was the assistant attorney general
assigned to prosecute Farak’s case. On January 22, 2013, Farak was arraigned and charged with
tampering with evidence and drug possession. In March 2013, the chief of the AGO’s Criminal
3
The Commonwealth dismissed all the school zone charges against Plaintiff before trial.
5
Bureau sent a letter to each of the Commonwealth’s District Attorneys (DAs) explaining the
investigation into Farak and providing a list of materials pursuant to the AGO’s “obligation to
provide potentially exculpatory information to the District Attorneys.” This discovery did not
include Farak’s mental health worksheets or information about such evidence. A prosecution
memo sent around this time from Kaczmarek to the chief of the Criminal Bureau listed the
mental health worksheets among the paperwork recovered from Farak’s car, with the comment
that the worksheets were not shown to the grand jury; the chief hand-wrote a note on the memo
stating that the worksheets also had not been turned over to the DAs.
During Farak’s prosecution, Kaczmarek turned over the mental health worksheets to
Farak’s attorney. However, Kaczmarek treated the mental health worksheets as privileged and
did not provide this material to the “Farak defendants,” meaning individuals who were being or
had been prosecuted for drug crimes by DAs in cases for which Farak had tested the alleged
drugs.
On July 15, 2013, Plaintiff, a “Farak defendant,” filed a pretrial motion to dismiss the
charges against him based, in part, on Farak’s misconduct at the Drug Lab. He sought discovery
from the AGO related to Farak’s arrest and prosecution. A Superior Court judge set an
evidentiary hearing on Plaintiff’s motion and, in the order, reminded the DA’s office of its
obligation to seek and produce exculpatory evidence from relevant government agencies. In
anticipation of the hearing, Plaintiff served subpoenas on the AGO and MSP officers involved
with Farak’s prosecution, including Ballou, the chief MSP investigator in Farak’s case.
Subpoenas served on the AGO are handled by its Appeals Division, of whom Defendant
Randall Ravitz was chief. Ravitz assigned Defendant Kris Foster, a new assistant attorney
6
general, the responsibility of responding to Plaintiff’s subpoena. Under Ravitz’s supervision,
Foster moved to quash the subpoenas or, in the alternative, to restrict their scope.
At a September 9, 2013 motion hearing, the Superior Court judge denied the AGO’s
motion to quash with respect to Ballou’s testimony and ordered Foster to review the MSP
investigator’s file and submit any documents that had not yet been disclosed for in camera
review. Foster consulted with Kaczmarek regarding the judge’s ruling. Kaczmarek knew that
Farak’s mental health worksheets had not been produced to the DAs or to Plaintiff in response to
his subpoena. She also knew that, although Ballou was aware of the mental health worksheets,
he did not have copies of the documents in his paper case file. Kaczmarek advised Foster that
there were no additional documents in the MSP case file to produce. Foster sent a letter to the
state court judge representing that every “document” in the MSP investigator’s file had already
been disclosed.
Plaintiff’s counsel then sent a letter to Foster requesting permission to review all of the
evidence seized from Farak’s car. Kaczmarek took the position that this evidence was only
relevant to the prosecution of Farak; Foster denied the request. On October 1, 2013, Plaintiff
filed a motion to inspect the physical evidence in the Farak prosecution on the basis that Plaintiff
was seeking proof of any third-party knowledge of Farak’s misconduct. Foster opposed this
motion as well, arguing that the AGO had already turned over the grand jury exhibits and the
documents in the MSP investigator’s file and none of it supported the theory that a third party
had knowledge of Farak’s misconduct prior to her arrest. During argument on Plaintiff’s motion,
Foster assured the court that there was “no smoking gun.” The court ultimately denied Plaintiff’s
motion to dismiss after concluding – based on the evidence that had been produced by the AGO
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and its assurances that there was nothing else relevant – that Farak’s misconduct in the Drug Lab
commenced after she tested the samples in Plaintiff’s case.
On December 9, 2013, Plaintiff’s trial began. The trial judge granted the DA’s motion in
limine to preclude Plaintiff from arguing that Farak was engaged in misconduct when she tested
the drug samples in Plaintiff’s case. All four SPD Officers testified at Plaintiff’s trial. Burnham
testified as the SPD evidence officer. On December 11, 2013, the trial judge granted Plaintiff’s
motion for a required finding of not guilty on the three charges related to possession of a firearm
or ammunition; on December 13, 2013, the jury returned a not guilty verdict on all remaining
charges except one: the jury found Plaintiff guilty of a single count of distribution of a class A
substance. On December 16, 2013, Plaintiff received a sentence of five to seven years in state
prison.
On January 6, 2014, Farak pled guilty to the criminal charges stemming from some of her
misconduct at the Drug Lab. In July 2014, Plaintiff’s counsel, in a separate and unrelated case,
obtained an order to inspect the “assorted lab paperwork” that had been seized from Farak’s car.
During counsel’s review of those documents, he discovered Farak’s mental health worksheets.
On November 13, 2014, the AGO sent another mailing to DAs providing copies of documents
that had been in its possession but had not previously been turned over, including Farak’s mental
health worksheets. In May 2015, based on newly discovered evidence, Plaintiff filed a motion
for new trial and a motion to dismiss the charges for which he was serving a sentence.
In late December 2015, Burnham was indicted on seven counts of larceny for stealing
money from the SPD’s evidence room. Plaintiff’s motions were consolidated with other Farak
defendants’ motions for post-conviction relief, and, in December 2016, Superior Court Judge
Richard J. Carey convened a six-day evidentiary hearing into the matters. The Commonwealth
8
eventually withdrew its opposition to Plaintiff’s motion for new trial, which was allowed in early
2017. On June 26, 2017, Judge Carey allowed Plaintiff’s motion to dismiss the indictment
against him with prejudice.
On September 5, 2017, Plaintiff filed this eight count civil action against Defendants for
civil rights violations based on allegations of wrongdoing that occurred during the investigation
and trial, as well as what Plaintiff alleges was a cover-up by government officials of misconduct.
B.
Allegations Specific to the SPD Officers and the City
Defendants Kent, Wadlegger, Kalish, and Bigda were all Springfield police officers
employed as nightshift narcotics officers (Compl. ¶¶ 14-18, 356). At the relevant time, it was the
practice of the nightshift narcotics officers at the SPD to have two officers count the money
whenever they seized cash in excess of $100 (Compl. ¶ 356). Once the officers’ counts were in
accord, one of the officers would “seal the money in an envelope, record the sum on the
envelope and separate evidence tag, then put the envelope and evidence tag through a slot in the
door” into Burnham’s office (Compl. ¶ 357). On numerous occasions, Burnham had informed
the SPD Officers that their counts were off. Each time he did so, he claimed the money
submitted was less than the amount the officer(s) had recorded (Compl. ¶¶ 358-59).
The SPD Officers suspected that Burnham regularly stole the cash he was responsible for
safekeeping. Each of them had reported their suspicions to superiors at the SPD, including to
superior officers “entrusted with the power to make and enforce” SPD policy (Compl. ¶¶ 36061). The SPD officers never reported “Burnham’s thefts” to the Hampden County assistant
district attorney prosecuting Plaintiff’s case or to anyone else at the Hampden County District
Attorney’s Office (Compl. ¶ 362). Before Plaintiff’s trial, the City “and its policymakers” knew
about complaints by the SPD Officers regarding Burnham and his thefts from the evidence room.
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The City failed to investigate the allegations made by fellow officers against Burnham or to
discipline Burnham and were deliberately indifferent to the rights of individuals such as Plaintiff
(Compl. ¶¶ 363-365). The City failed to monitor, supervise, control, and discipline Burnham,
contrary to its duty to do so (Compl. ¶¶ 364-65).
Plaintiff further alleges that, in Burnham’s capacity as the SPD evidence officer, he
would transport suspected controlled substances to the Drug Lab for analysis (Compl. ¶¶ 11314). Burnham was supposed to heat seal the packets of narcotics prior to submitting them to the
Drug Lab in accordance with DPH protocols (Compl. ¶ 128). It was Burnham’s practice,
however, to bring unsealed drug samples to the Drug Lab and use the Drug Lab heat sealer as he
was transferring custody of the narcotics (Compl. ¶ 130). Farak later admitted to partially
disabling the heat sealer so she could steal and use substances submitted for analysis (Compl. ¶
131-32).
Plaintiff’s arrest occurred in the fall of 2011. In late October and early November 2011,
the narcotics unit of the SPD conducted three undercover buys from Plaintiff of a controlled
substance that was purportedly heroin (Compl. ¶¶ 110, 116, 118). Following the first two
purchases, the undercover officer returned to the SPD station in the evening, sealed the glassine
packets in a manila envelope, and deposited it through a slot into the locked evidence room
(Compl. ¶ 112). On November 11, 2011, based on these purchases, Wadlegger applied for and
obtained a warrant to search the residence where the undercover buys had taken place (Compl. ¶
117). After the third undercover sale on November 15, 2011, SPD officers executed the search
warrant, arrested Plaintiff and four others, and seized, among other things, certain sums of cash
(Compl. ¶¶ 119-24). The police reports documenting the arrest stated that a total of $2,344 in
cash was seized from three of the individuals arrested (Compl. ¶¶ 123-24). Wadlegger reported
10
that Plaintiff had $386 in cash on his person at the time of his arrest (Compl. ¶ 123). Officers
reportedly seized $1,958 in cash from two other suspects arrested at the same time (Compl. ¶
124).
On November 16, 2011, Burnham transported to the Drug Lab the substances allegedly
sold by Plaintiff (Compl. ¶ 127). Farak was assigned to test the substances (Compl. ¶ 135). In
January 2012, Burnham retrieved the evidence related to Plaintiff’s case from the Drug Lab
(Compl. ¶ 152). Although Farak routinely used the drugs she was supposed to be testing and
frequently tested drugs while under the influence of narcotics, and was under the influence of
drugs when she tested the samples allegedly sold by Plaintiff, Farak nonetheless certified that the
envelopes submitted to her by Burnham in Plaintiff’s case tested positive for controlled
substances (Compl. ¶¶ 142-43, 146, 148-151). However, the evidence returned to Burnham by
Farak did not match what Burnham had dropped off earlier: the samples were not in heat-sealed
bags and did not match the descriptions of the evidence contained on the evidence tags (Compl.
¶¶ 153-58).
At Plaintiff’s criminal trial in December 2013, Burnham and each of the SPD Officers
testified (Compl. ¶¶ 352, 354). All were confronted on cross-examination with the discrepancies
between Wadlegger’s police report, the search warrant return, and the evidence tags for the
money and drugs seized at the time of Plaintiff’s arrest (Compl. ¶ 355). The prosecution
introduced into evidence sixty bills allegedly seized at the time of Plaintiff’s arrest (Compl. ¶
371). On December 13, 2013, a jury found Plaintiff guilty of one count of distribution of a Class
A substance (Compl. ¶ 376).
After Plaintiff’s conviction and sentencing, Burnham’s criminal activity came to light.
On December 30, 2015, Burnham was indicted for larceny (Compl. ¶ 388). The investigation
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into his wrongdoing revealed that, by the time Burnham testified at Plaintiff’s trial, he had stolen
over $200,000 in cash submitted to him in his capacity as evidence officer in over 100 separate
narcotics investigations (Compl. ¶ 368). Ten of the sixty-six bills introduced into evidence at
Plaintiff’s trial had not been in circulation at the time of Plaintiff’s arrest (Compl. ¶¶ 371-374).
In Count VI of his complaint, brought pursuant to § 1983, Plaintiff alleges that the SPD
Officers covered up and lied to Hampden County assistant district attorneys about the substantial
evidence of Burnham’s criminal activity (Compl. ¶ 447). Plaintiff further alleges that the SPD
Officers knew that this information constituted exculpatory evidence in a case like Plaintiff’s
where the cash was short and Burnham was entrusted with the suspected narcotics (Compl. ¶
448). Count VIII of the complaint alleges that the conduct of the SPD Officers was extreme and
outrageous and caused Plaintiff to suffer severe emotional distress (Compl. ¶¶ 462-64).
In Count VII of the complaint, Plaintiff charges the City with failure to adequately
supervise and discipline Burnham in the performance of his duties as an evidence officer with
respect to Burnham’s thefts of money seized from suspects and his handling of suspected drug
samples. Plaintiff alleges that the City had a policy or custom of failing and refusing to
investigate allegations of misconduct made against Burnham, and to discipline him, that this
failure caused Burnham to believe that he could operate with impunity, and that the City’s failure
resulted in injury to Plaintiff (Compl. ¶¶ 456-461).
II.
DISCUSSION
The SPD Officers and the City have moved to dismiss on various bases. Plaintiff
opposes on all fronts. For both groups, the standard of review is the same. In evaluating a
motion to dismiss, the court construes the complaint’s well-pleaded facts in the light most
favorable to Plaintiff, draws all reasonable inferences in his favor, and ascertains whether the
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complaint states a claim for which relief can be granted. Fed. R. Civ. P. 12(b)(6); OcasioHernandez v. Fortuno-Burset, 640 F.3d 1, 7 (1st Cir. 2011). In § 1983 cases, the court examines
if “the facts alleged, viewed in the light most favorable to the complaining party, show that the
[defendant’s] conduct violated some constitutional right.” Limone v. Condon, 372 F.3d 39, 44
(1st Cir. 2004). Under the standard laid out by the Supreme Court in Ashcroft v. Iqbal, 556 U.S.
662 (2009), and distilled by the First Circuit, the court is directed to identify and disregard
statements in the complaint that “merely offer ‘legal conclusion[s] couched … as fact[]’ or
‘[t]hreadbare recitals of the elements of a cause of action.’” Ocasio-Hernandez, 640 F.3d at 12
(alterations in original). Treating the “[n]on-conclusory factual allegations … as true,” the court
must determine if these alleged facts state “a plausible, not a merely conceivable, case for relief.”
Id. While “a complaint need not plead facts sufficient to make out a prima facie case or allege
all facts necessary to succeed at trial,” Medina-Valaquez v. Hernandez-Gregorat, 767 F.3d 103,
108 (1st Cir. 2014) (citing Carrero-Ojeda v. Autoridad de Energía Eléctrica, 755 F.3d 711, 71718 (1st Cir. 2014)), the elements of a prima facie case “form[] ‘part of the background against
which a plausibility determination should be made.’” Id. (quoting Rodríguez-Reyes v. MolinaRodríguez, 711 F.3d 49, 54 (1st Cir. 2013)). “An analysis of plausibility is ‘a context-specific
task that requires the reviewing court to draw on its judicial experience and common sense.’” Id.
at 109 (quoting Grajales v. P.R. Ports Auth., 682 F.3d 40, 44 (1st Cir. 2012)). That said, “the
court may not disregard properly pled factual allegations, ‘even if it strikes a savvy judge that
actual proof of those facts is improbable.’” Ocasio-Hernández, 640 F.3d at 12 (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “[A] court [may not] attempt to forecast a
plaintiff’s likelihood of success on the merits; ‘a well-pleaded complaint may proceed even if …
a recovery is very remote and unlikely.’” Id. at 12-13 (quoting Twombly, 550 U.S. at 556).
13
A.
SPD Officers’ Motions to Dismiss (Dkt. Nos. 26 & 63)
1. § 1983 Claims
To succeed in an action for deprivation of his civil rights, Plaintiff must show that the
defendants were acting under color of state law and that their conduct deprived Plaintiff of rights
secured under the U.S. Constitution or federal law. Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st
Cir. 2008). The SPD Officers do not challenge the allegation that they were acting under color
of law. Plaintiff alleges that the SPD Officers violated his rights by failing to disclose
impeachment information about Burnham that could have been used in Plaintiff’s 2013 criminal
trial, in contravention of Plaintiff’s due process rights under the Fifth Amendment. See Brady v.
Maryland, 373 U.S. 83, 87 (1963) (holding that “suppression by the prosecution of evidence
favorable to an accused” is a due process violation). The SPD Officers argue that Plaintiff’s §
1983 claim should be dismissed as to all of them because the facts as alleged fail to make out a
Brady claim. 4 In the alternative, the SPD Officers argue that, even if they committed a Brady
violation, they are nonetheless entitled to qualified immunity because this right was not clearly
established at the time of Plaintiff’s trial. Because the decision on whether the defendant officers
are entitled to qualified immunity necessarily encompasses a decision on whether Plaintiff has
adequately alleged a constitutional violation by the SPD Officers, the court turns immediately to
the qualified immunity inquiry.
The judge-made qualified immunity doctrine insulates a defendant official from liability
“when an official’s conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Kisela v. Hughes, 138 S.Ct. 1148, 1152
4
Kent filed his motion to dismiss (Dkt. No. 26) separately from Wadlegger, Bigda, and Kalish,
who filed together (Dkt. No. 63). Because the arguments raised by the defendant officers are
largely the same, the court will address them collectively.
14
(2018) (holding that qualified immunity protected a police officer in a Fourth Amendment
context because the officer’s conduct did not violate clearly established law) (quotations
omitted). The purpose of the “clearly established” requirement is to provide clear and fair
warning to an officer that his or her conduct was unlawful. Id. at 1152-53. For a right to be
clearly established, “existing precedent must have placed the statutory or constitutional question
beyond debate” at the time the violation is alleged to have occurred. Id. (quoting White v. Pauly,
137 S.Ct. 548, 551 (2017)); see also Haley v. City of Boston, 657 F.3d 39, 47-48 (1st Cir. 2011).
On the one hand, there need not be a case “directly on point for a right to be clearly established.”
Kisela, 138 S.Ct. at 1152. On the other hand, “clearly established law” should not be defined “at
a high level of generality.” Id.
The Supreme Court has counseled that the issue of qualified immunity should be resolved
“at the earliest possible stage in litigation,” because it is an entitlement to “immunity from suit,
rather than a mere defense to liability.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (emphasis in
original). Thus, the question is appropriately raised by a motion to dismiss. Haley, 657 F.3d at
47. The two-step inquiry for the court involves first examining whether the facts as alleged in
the complaint make out a constitutional violation and, second, determining if the right at issue
was “clearly established” in settled law at the time of the defendant’s alleged action. Id. at 47.
(a) Has Plaintiff Adequately Alleged a Constitutional Violation?
(i)
The Brady Rule
“Brady was an ‘extension’ of a line of cases . . . in which the Supreme Court held that a
state actor violates a criminal defendant’s due process rights by the knowing use of perjured
testimony or the deliberate suppression of evidence leading to the defendant’s conviction.”
Drumgold v. Callahan, 707 F.3d 28, 38 (1st Cir. 2013) (citing Kyles v. Whitley, 514 U.S. 419,
15
432 (1995); Pyle v. Kansas, 317 U.S. 213 (1942); Mooney v. Holohan, 294 U.S. 103 (1935)).
“Brady broke new ground in holding that a prosecutor also violates a defendant’s due process
rights merely by failing to disclose material evidence in his possession that is favorable to the
defendant, irrespective of the good or bad faith of the prosecutor.” Id. The so-called Brady rule
applies to information that is claimed to be directly exculpatory and to impeachment evidence,
United States v. Bagley, 473 U.S. 667, 676 (1985), as well as to inadmissible evidence that is “so
promising a lead to strong exculpatory evidence there could be no justification for withholding
it.” Ellsworth v. Warden, 333 F.3d 1, 5 (1st Cir. 2003). Moreover, the Brady duty applies
beyond prosecutors to law enforcement officers generally. Drumgold, 707 F.3d at 38 (stating
that Brady’s “affirmative disclosure obligation also encompasses evidence known only to law
enforcement officers and not to prosecutors”) (citing Strickler v. Greene, 527 U.S. 263, 280-81
(1999); Kyles, 514 U.S. at 437-38; Haley, 657 F.3d at 49); cf. Jones v. Han, 993 F. Supp. 2d 57,
65 (D. Mass. 2014) (holding that the Brady rule extends to state drug lab analysts because they
“are as much an arm of the government as are police officers”). Thus, Brady and its progeny
impose a no-fault obligation on police officers to disclose evidence to prosecutors that is
favorable to a defendant. Drumgold, 707 F.3d at 38.
To make out a successful Brady claim, Plaintiff must show that evidence claimed to be
withheld is material. “The evidence is material only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have been
different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the
outcome.” Bagley, 473 U.S. at 682. Impeachment evidence is material “where the evidence is
highly impeaching or when the witness’ testimony is uncorroborated and essential to the
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conviction.” Conley v. United States, 415 F.3d 183, 189 (1st Cir. 2005) (emphasis in original;
internal quotations omitted).
(ii)
Application
Plaintiff asserts that the SPD Officers violated his Brady rights when they failed to
disclose impeachment information concerning how Burnham handled money that was seized by
narcotics officers and turned over to Burnham in his capacity as evidence officer. Plaintiff’s
complaint states the following allegations and supports the following inferences regarding the
money evidence under Burnham’s control. 5
•
As night shift narcotics detectives, it was the practice of the SPD Officers to have at least
two officers count the cash when there was a seizure of money in excess of $200. When
the officers’ tallies agreed, the last officer to count the money would seal the money in an
envelope, write the amount on the envelope and on a separate evidence tag, and post the
envelope and evidence tag through a slot in the locked evidence room door (Compl. ¶
357).
•
When Plaintiff was arrested, the SPD Officers seized $2,344 in cash. Wadlegger reported
that Plaintiff had $386 in cash on him at the time of his arrest. According to arrest
reports, officers seized a total of $1,958 from two female suspects (Compl. ¶¶ 123-24).
5
To the extent that Plaintiff’s § 1983 claims against the SPD Officers are premised on
allegations about Burnham’s mishandling of the controlled substances allegedly obtained from
Plaintiff, those allegations do not appear to support Plaintiff’s claims against the SPD Officers.
There are no allegations in the complaint from which it could be inferred that the SPD Officers
knew or had reason to know of Burnham’s shoddy practices related to the alleged controlled
substances he submitted for Drug Lab analysis. While a Brady violation in the criminal context
may be no fault, “a negligent act or omission cannot provide a basis for liability in a § 1983
action seeking compensation for loss of liberty occasioned by a Brady violation.” Porter v.
White, 483 F.3d 1294, 1308 (11th Cir. 2007).
17
•
Before any of the SPD Officers took the stand in Plaintiff’s case, each had been told by
Burnham on numerous occasions – in cases other than Plaintiff’s case – that his money
count was off. Each time, the officer was told that there was less cash in the envelope
than the amount the officer had recorded (Compl. ¶¶ 358-59).
•
Each of the SPD Officers had reported to a supervisor or supervisors that he believed that
Burnham was stealing from cash the night narcotics unit had submitted as evidence
(Compl. ¶ 361).
•
At Plaintiff’s trial, the cash that was submitted in evidence did not match the amount of
cash that Wadlegger stated in his police report had been seized on the night of Plaintiff’s
arrest or the amount recorded on the evidence tag that was filled out the night Plaintiff
was arrested, nor did the amount of cash recorded in the search warrant return match the
amount in the police report, or the amount on the evidence tag (Compl. ¶ 355).
•
At least some of the bills submitted as evidence at Plaintiff’s trial could not have been
seized the night he was arrested because the bills were not placed into circulation until
after the date they were allegedly seized (Compl. ¶ 372-74).
•
Burnham testified as the SPD evidence officer in Plaintiff’s case to the chain of custody
as to cash seized when Plaintiff was arrested (Compl. ¶ 367).
Because it is alleged that many of the bills introduced into evidence at Plaintiff’s trial
were not in circulation when Plaintiff was arrested, it is reasonable to infer that Burnham stole a
substantial part of the money that the SPD Officers submitted as evidence in Plaintiff’s case, then
replaced some of the missing money with cash he obtained from another source. It is also
reasonable to infer that the amount of money introduced into evidence during Plaintiff’s trial was
less than the amount recorded on the evidence tag and in Wadlegger’s police report and that,
18
when the SPD Officers testified at Plaintiff’s trial, they knew or had reason to know that
Burnham had stolen at least some of the cash seized when Plaintiff was arrested. Further, it is
reasonable to infer that Burnham testified falsely at Plaintiff’s criminal trial in 2013 regarding
the chain of custody for the seized cash and that the SPD Officers knew or should have known
that parts of his testimony were false. Not only did the SPD Officers fail to inform the
prosecuting assistant district attorney about Burnham’s theft prior to trial, they also did nothing
to stop Burnham from testifying falsely to a reliable chain of custody during Plaintiff’s trial.
The SPD Officers argue that Plaintiff fails to allege facts sufficient to make out a claim
for a Brady violation for several reasons. One reason can be quickly addressed. The SPD
Officers assert that impeachment evidence consisting of nothing more than the officers’
suspicions about Burnham’s misconduct would not have been admissible. See Commonwealth v.
Dockham, 542 N.E.2d 591, 599 (Mass. 1989) (“Evidence of specific or particular acts of lying or
similar misconduct is not admissible; nor is the opinion of a witness as to the character of the
witness being impeached.”). The First Circuit has stated that in considering the viability of a
Brady claim, it is “plain that evidence itself inadmissible could be so promising a lead to strong
exculpatory evidence that there could be no justification for withholding it.” Ellsworth v.
Warden, 333 F.3d 1, 5 (1st Cir. 2003) (emphasis in original). Accordingly, the claim cannot be
dismissed solely on the basis that the evidence the SPD Officers failed to disclose would have
been inadmissible. Moreover, the argument is premised on the contention that Plaintiff has
merely alleged that the SPD Officers suspected that Burnham was stealing. “[I]t is the party
suing, not the party sued, who enjoys the right to frame the claims asserted in the complaint.”
Haley, 657 F.3d at 49. Plaintiff has alleged far more than mere suspicion. Rather, he has alleged
19
knowledge of a theft in his case, which would have been strong impeachment evidence, and
deliberate indifference to false testimony.
Defendant Officers’ second argument is an attack on the materiality of the alleged
impeachment evidence, a requisite finding for a Brady violation to be sustained. They further
posit that a finding of non-materiality is mandated by Judge Carey’s decision and the principles
of collateral estoppel. The court will begin with the issue of collateral estoppel and then address
the question of materiality.
On June 26, 2017, Judge Carey issued a comprehensive memorandum of decision on a
series of motions to dismiss indictments in cases “emanate[ing] from the scandal at the Amherst
drug lab” based on the misconduct by chemist Sonja Farak, one of which was Plaintiff’s criminal
case. Commonwealth v. Cotto, 2017 WL 4124972, at *1 (Mass. Sup. Ct. June 26, 2017)
(Indictment No. 2007770). Judge Carey determined that the misconduct of Farak, among other
reasons, warranted the “drastic remedy” of dismissal of Plaintiff’s indictments with prejudice.
Id. at **36, 47. Included in his “ultimate” findings of fact was the statement: “Other claims of
misconduct by government actors, including Burnham, and failings, such as the deficiencies in
operating the Amherst lab, have not been shown by themselves to merit post-conviction relief for
the reasons explained above.” Id. at *33 (emphasis added). It is this finding that the SPD
Officers argue is binding on this court.
This court must give a Massachusetts court judgment the same preclusive effect as would
be given that judgement under Massachusetts law. See Migra v. Warren City Sch. Dist. Bd. of
Educ., 465 U.S. 75, 81 (1984). Four prerequisites must exist for issue preclusion to apply here:
(1) the prior adjudication reached a final judgment; (2) Plaintiff was a party to the prior
adjudication; (3) the issue the SPD Officers seek to preclude is identical to the issue in the prior
20
adjudication; and (4) the issue sought to be precluded “must have been essential to the earlier
judgment.” Kobrin v. Bd. of Registration in Med., 832 N.E.2d 628, 634 (Mass. 2005) (quotations
omitted). With respect to the first element, the finality of the judgment, “Massachusetts courts
also require that appellate review must have been available in the earlier case before issue
preclusion will arise.” In re Sonus Networks, Inc. S’holder Derivative Litig., 499 F.3d 47, 57
(1st Cir. 2007) (citing Sena v. Commonwealth, 629 N.E.2d. 986, 992 (Mass. 1994)).
The SPD Officers assert that Plaintiff is barred from arguing that evidence of Burnham’s
misconduct as evidence officer can be considered material for purposes of establishing a Brady
violation because Judge Carey already decided the issue to the contrary. Their argument for
collateral estoppel argument fails on the first element: the decision cannot be considered final on
the point for which the defendants rely on it. Assuming solely for the sake of argument that
Judge Carey ruled that Burnham’s thefts of money from the evidence room were not a basis for
post-conviction relief, 6 Plaintiff had no way to appeal such a finding. Plaintiff’s motion to
dismiss was granted on the basis of other government misconduct. Had the Commonwealth
6
In fact, Burnham’s transgressions with cash played little, if any, role in Judge Carey’s
consideration of the motions to dismiss the indictments. Aside from noting in the introduction to
his decision that Burnham had been indicted for this misconduct, Cotto, 2017 WL 4124972, at
*1, Judge Carey only referenced Burnham’s role in the various defendants’ cases in the context
of his handling of the suspected drugs he submitted to the Drug Lab for analysis. While noting
that Burnham’s mishandling of drugs “facilitated” Farak’s scheme, Judge Carey ultimately
concluded that the evidence did not support a finding that Burnham himself tampered with the
substances he submitted for analysis. Id. at **9, 60. Judge Carey’s opinion does not refer to
Burnham’s theft of money from the SPD evidence room in general, or to the theft of money
seized in Plaintiff’s case. The section of Judge Carey’s opinion addressing Plaintiff’s motion to
dismiss the indictments against him does not mention Burnham at all. Because the
Commonwealth did not oppose, Judge Carey did not rule on Plaintiff’s motion for a new trial,
which was premised in part on Burnham’s misconduct. The issue of Burnham’s thefts of cash
was hardly “essential” to Judge Carey’s judgment on Plaintiff’s motion to dismiss the indictment
returned against him. Accordingly, the SPD Officers’ collateral estoppel argument breaks down
on both the third and fourth elements of the test as well.
21
appealed the decision, Plaintiff could have defended the judgment on the basis of Burnham’s
misconduct. See Boston Edison Co. v. Boston Redevelopment Auth., 371 N.E.2d 728, 735 & n.5
(Mass. 1977). However, barring an appeal from the Commonwealth, which was not
forthcoming, Plaintiff could not appeal the favorable outcome on the basis of a disagreement
with a particular finding. See Commonwealth v. Graves, 112 Mass. 282, 283 (1873) (“The
defendant is not legally aggrieved by his discharge from custody, and therefore cannot appeal
from the order of discharge.”).
Leaving aside the question of collateral estoppel, the SPD Officers assert that Plaintiff
has not identified withheld evidence that meets the materiality requirement of the Brady inquiry
because there is no “reasonable probability” that the trial would have come out differently had
the impeachment information about Burnham been disclosed to the prosecutor and, through the
prosecutor, to defense counsel. See Conley, 415 F.3d at 188 (“Impeachment evidence must be
material before its suppression justifies a new trial.”) (citing Wood v. Bartholomew, 516 U.S. 1, 5
(1995)).
“The strength of impeachment evidence and the effect of suppression are evaluated in the
context of the entire record to determine materiality. Evidence is immaterial where it is
cumulative or merely impeaches a witness on a collateral issue.” United States v. Paladin, 748
F.3d 438, 444 (1st Cir. 2014) (internal citation omitted). In evaluating the strength of
impeachment evidence, a court takes into account whether the evidence was unique or
cumulative, as well as whether there was other evidence strongly corroborating the witness’s
testimony such that the impeachment evidence could be said to have had “little probative value.”
Paladin, 748 F.3d at 444. Ultimately, Plaintiff will be required to show that, had he had access
22
to the undisclosed evidence, there is a reasonable probability that the outcome of his trial would
have been different. Bagley, 473 U.S. at 682.
A short answer to the SPD Officers’ contention that there is no reasonable probability
that the outcome would have been different lies in the Commonwealth’s response to Plaintiff’s
motion for a new trial. The Commonwealth assented to that motion, stating, as to Burnham’s
misconduct, that “the discovery that currency that was admitted into evidence at [Penate’s] trial
as circumstantial evidence of distribution had not been in circulation at the time Penate was
arrested would have had a profound effect on [Penate’s] trial and probably would have been a
real factor in the jury’s determination” (Dkt. No. 40 at 14). Burnham testified at trial as the SPD
narcotics evidence officer to the chain of custody for the money and drugs the Commonwealth
chose to introduce into evidence at Plaintiff’s trial in support of the distribution charge. Plaintiff
brought the discrepancies about the amounts of cash in the police report, the evidence tag, and
the warrant return to the jury’s attention (Dkt. No. 40 at 10-11). The cash, as the Commonwealth
indicated in its assent to Plaintiff’s new trial motion, was helpful, albeit perhaps not necessary,
circumstantial evidence of Plaintiff’s alleged involvement in the distribution, as opposed to mere
possession, of heroin. In Farak’s absence, 7 Burnham’s testimony about the provenance of the
drugs was probably essential. At the very least, Burnham was an important Commonwealth
witness.
Materiality is in part a question of fact. See Drumgold, 707 F.3d at 39 (“We may rule in
[the defendant police officer’s] favor only if no reasonable person could view the withheld
evidence as material.”) (citing Zachar v. Lee, 363 F.3d 70, 73 (1st Cir. 2004); Correa v. Hosp.
7
Plaintiff’s counsel represents that jurors were informed that the alleged drug samples were
initially submitted to Farak for analysis, but she was under indictment for evidence tampering
and therefore unavailable to testify (Dkt. No. 40 at 12).
23
San Francisco, 69 F.3d 1184, 1191 (1st Cir. 1995)). The court cannot say that all reasonable
persons would view as immaterial the information that Plaintiff’s was one in a long line of cases
in which narcotics unit officers had seized more cash than Burnham acknowledged receiving
from them, that they had complained internally that he was stealing, and that they had seized
more cash at the time of Plaintiff’s arrest than the prosecution had introduced into evidence.
This evidence is unique, it was relevant to the credibility of an important witness, and there was
no other evidence to corroborate Burnham’s (false) chain of custody testimony. There is,
moreover, a real possibility that timely disclosure of information about Burnham would have led
to the discovery that the money the Commonwealth sought to introduce as circumstantial
evidence of Plaintiff’s distribution of narcotics was not the money seized at the time of his arrest
and could not be introduced into evidence, and, further, that the Commonwealth would have
been forced to account for this gap in its evidence. The court cannot say, as a matter of law, that
the result of Plaintiff’s criminal trial would have been the same if the impeachment evidence
Plaintiff claims the SPD Officers possessed had been disclosed. See Drumgold, 707 F.3d at 41
(evidence that the state’s eyewitness received pecuniary benefits from the defendant police
officer, which was not disclosed to the plaintiff at the time of his criminal trial, could have
undermined the witness’s credibility and testimony).
Moreover, the allegations in the complaint also make out a claim for a constitutional
violation under the Mooney line of cases. That case law established the proscription “against
intentionally concealing evidence and permitting false testimony to be given at a defendant’s
trial.” Haley, 657 F.3d at 49. Due process rights are contravened when law enforcement officers
“deliberately keep the defense in the dark about important evidence” in order “to grease the skids
for false testimony and encourage wrongful conviction.” Id. at 49-50. In this case, the
24
allegations in the complaint support the inference that the SPD Officers, who all testified at
Plaintiff’s trial, knew that Burnham’s testimony regarding a reliable chain of custody for the cash
was false and, yet, said nothing to the prosecutors or to the defense.
Plaintiff’s factual allegations, and the reasonable inferences to which they give rise, may
not prove out. However, at this early stage, the court cannot dismiss Plaintiff’s § 1983 claims
against the SPD Officers on the basis that a constitutional violation has not been adequately pled.
See Marrero-Rodriguez v. Municipality of San Juan, 677 F.3d 497, 502 (1st Cir. 2012) (stating
that the court was “reluctant” to dismiss a § 1983 case at the motion to dismiss stage because,
although the allegations might not prove to be true, the inferences must be drawn in plaintiff’s
favor). The SPD Officers’ arguments as to the insufficiency of the pleadings on the issue of
causation or the necessary state of mind are similarly premature. 8
(b) Was the right clearly established?
The second step of the qualified immunity analysis, after determining if a constitutional
right was violated, is whether the state of the law at the time was such that an officer could be
said to be on notice that his conduct was unlawful. The inquiry into whether a right has been
clearly established itself has two parts. First, the court must examine the state of the law leading
up to the point of the alleged infringement. Drumgold, 707 F.3d at 42. Second, the court must
evaluate – given the particular facts of the case – “whether a reasonable defendant would have
understood that his conduct violated the plaintiff’s constitutional rights.” Id. The SPD Officers
8
The court acknowledges and leaves for another day the question of whether Plaintiff can
succeed in his § 1983 claim for a Brady violation without showing that the officers acted
deliberately or with reckless disregard to Plaintiff’s rights, or whether some “less culpable state
of mind might suffice.” Drumgold, 707 F.3d at 43 n.10; Nnodimele v. Derienzo, 13-CV3461(ARR)(RLM), 2016 WL 3561708, at **4-5 (E.D.N.Y. June 27, 2016) (noting circuit split
on the degree of a defendant’s culpability required to succeed on a § 1983 claim for a Brady
violation). Plaintiff has adequately pled knowing or reckless violations of his rights.
25
assert that the question of whether an officer’s Brady obligation would extend to disclosing
general suspicions of a fellow officer’s misconduct is uncertain. Thus, they argue, they prevail
on the defense of qualified immunity because the court cannot say that the right to impeachment
evidence encompasses speculation about another officer’s wrongdoing.
As to the first inquiry, in 1942, the Supreme Court held that a defendant’s due process
rights were violated by a state actor’s “knowing use of perjured testimony or the deliberate
suppression of evidence leading to the defendant’s conviction.” Id. at 38 (citing Mooney, 294
U.S. at 103; Pyle, 317 U.S. at 213). In 1963, the Supreme Court recognized an affirmative
obligation on the part of prosecutors to disclose exculpatory evidence to defendants. Brady, 373
U.S. at 87; Drumgold, 707 F.3d at 43. As of 1985, the law was clear that information
encompassed within the Brady obligation included evidence that was either exculpatory or
impeaching. Bagley, 473 U.S. at 676; Drumgold, 707 F.3d at 38. In 1995, the Court extended
this obligation to evidence known only to law enforcement officers. Kyles, 514 U.S. at 437-38;
Haley, 657 F.3d at 49. Thus, “law enforcement officers have a correlative duty to turn over to
the prosecutor any material evidence that is favorable to a defendant.” Drumgold, 707 F.3d at
38.
Defendant Officers assert that at the time of Plaintiff’s trial, the law was not clearly
established that they had an obligation to disclose their “suspicions” of Burnham’s malfeasance.
However, it is not the defendant who defines the claims, but the plaintiff. Limone, 372 F.3d at
46 (“Courts must be careful not to permit an artful pleader to convert the doctrine of qualified
immunity into a hollow safeguard simply by alleging a violation of an exceedingly nebulous
right. Courts must be equally careful, however, not to permit a defendant to hijack the plaintiff’s
complaint and recharacterize its allegations so as to minimize his or her liability.”); see also
26
Haley, 657 F.3d at 49. As is set forth above, Plaintiff’s complaint, fairly read, paints a far more
damning picture of the SPD Officers’ general knowledge about Burnham’s thefts and specific
knowledge about Burnham’s misconduct in Plaintiff’s case. A reasonable inference from
Plaintiff’s allegations is not that the SPD Officers had a mere suspicion of Burnham’s
malfeasance, but that they had actual knowledge of it, and knowledge that he had stolen money
from the cash submitted as evidence in Plaintiff’s case.
When the constitutional violation alleged by Plaintiff is defined as a failure to turn over
impeachment evidence regarding a witness whose testimony was important to the criminal case,
it is evident that the state of law in 2013, when Plaintiff was tried, put police officers on notice
that Brady obliged them to tell prosecutors that their witness, Burnham, had stolen money from
the evidence room in the past and, in Plaintiff’s case in particular. The law was firmly
established at the time of Plaintiff’s trial that Brady required the government to “disclose
impeachment evidence that could have been used to impugn the credibility” of a “key witness.”
Conley, 415 F.3d at 189 (citing Giglio v. United States, 405 U.S. 150 (1972)). Moreover, the
state of the law in this circuit, from 2005 onward, was that an officer’s Brady obligation
extended to evidence that could be used to impeach a fellow law enforcement officer. Id. at 191
(concluding that suppression of an FBI memorandum that could have been used to impeach the
testimony of a police officer during the trial of a fellow officer for perjury and obstruction of
justice constituted a Brady violation); cf. Drumgold, 707 F.3d at 43 (holding that by 1989 the law
was clearly established that “a law enforcement officer may not deliberately suppress material
evidence that is favorable to a defendant,” and concluding that an officer violated Brady by
failing to disclose that he provided financial assistance to a key witness).
27
Finally, it is no answer to Plaintiff’s allegations to contend that there was no Brady
violation because the prosecution disclosed Burnham’s misconduct by introducing into evidence
bills that were not in circulation at the time of Plaintiff’s arrest. Supreme Court “decisions lend
no support to the notion that defendants must scavenge for hints of undisclosed Brady material
when the prosecution represents that all such material has been disclosed.” Banks v. Dretke, 540
U.S. 668, 695 (2004). 9 At trial, the prosecution elicited testimony from Burnham substantiating
the chain of custody for the cash introduced in evidence. Defense counsel had no reason to be
suspicious of that testimony. “A rule . . . declaring ‘prosecutor may hide, defendant must seek,’
is not tenable in a system constitutionally bound to accord defendants due process.” Id. at 696.
Plaintiff’s allegations of reckless or knowing violations of Plaintiffs’ due process rights
may not be born out on a more complete record. However, at the motion to dismiss stage, the
court cannot find that the SPD Officers are entitled to qualified immunity.
2. Intentional Infliction of Emotional Distress
Count VIII alleges that the conduct by Defendant Officers was “extreme and outrageous
and likely to result in severe emotional distress to Plaintiff” (Compl. ¶ 463). Under
Massachusetts law, there are four elements to a claim for intentional infliction of emotional
distress: (1) the defendant “intended, knew, or should have known that his conduct would cause
emotional distress;” (2) the defendant’s conduct was “extreme and outrageous;” (3) the
defendant’s conduct caused the plaintiff emotional distress; and (4) the plaintiff’s emotional
distress was severe. Polay v. McMahon, 10 N.E.3d 1122, 1128 (Mass. 2014). “The conduct at
issue must go ‘beyond all possible bounds of decency, and [be] regarded as atrocious, and utterly
9
Procedural aspects of this case have been superseded by the Antiterrorism and Effective Death
Penalty Act of 1996.
28
intolerable in a civilized community.’” Bazinet v. Thorpe, 190 F. Supp. 3d 229, 240 (D. Mass.
2016) (quoting Polay, 10 N.E.3d at 1128)). In addition to his conduct being extreme and
outrageous, the defendant must have “acted in [a] targeted and malicious manner.” Rua v.
Glodis, 52 F. Supp. 3d 84, 100 (D. Mass. 2014). For example, a defendant’s conduct can be
considered “heartless, flagrant, and outrageous” when he or she proceeds to act in the face of
actual knowledge that such actions would impact a plaintiff who “is peculiarly susceptible to
emotional distress, by reason of some physical or mental condition or peculiarity.” George v.
Jordan Marsh Co., 268 N.E.2d 915, 921 (Mass. 1971).
Defendant Kent argues that Plaintiff’s allegations do not suffice to make out this claim
because the complaint is devoid of allegations about specific actions undertaken by Kent
targeting Plaintiff. 10 Henriquez v. City of Lawrence, No. 14-cv-14710, 2015 WL 3913449, at *5
(D. Mass. June 25, 2015) (dismissing claim for intentional infliction of emotional distress where
the complaint lacked allegations that the defendant engaged in any conduct directed at the
plaintiff). Additionally, Defendant Kent asserts that the allegations themselves do not present
conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Foley v. Polaroid Corp., 508 N.E.2d 72, 82 (Mass. 1987) (quotations omitted).
Accepting the allegations in the complaint as true, and drawing all reasonable inferences
in Plaintiff’s favor, the court concludes that Plaintiff has adequately alleged a claim for
intentional infliction of emotional distress. This case is similar to Limone v. United States, 579
10
Though Defendants Wadlegger, Bigda, and Kalish ostensibly seek dismissal of Count VIII,
unlike Defendant Kent, their memorandum in support of dismissal contains no argument with
respect to this count. Thus, the court’s discussion focuses on Defendant Kent’s arguments,
though they apply with equal force to all the SPD Officers.
29
F.3d 79, 94 (1st Cir. 2009), in which the Court of Appeals affirmed the district court’s finding of
liability for intentional infliction of emotional distress where the law enforcement defendants had
willingly participated in framing “scapegoat[ed]” civilians and then acted to cover up their
malfeasances. The court noted specifically that a finding of extreme and outrageous conduct
“may be grounded either on actual knowledge or on a defendant’s deliberate disregard of a
substantial probability that his actions will produce severe emotional distress.” Id. at 95; cf.
Bazinet, 190 F Supp. 3d at 240 (denying motion to dismiss where allegations in complaint
charged law enforcement defendants with “fabricating evidence in an effort to obtain criminal
charges against an innocent citizen who was in the midst of a suicidal breakdown”). Moreover,
under Massachusetts law, “claims for intentional infliction of emotional distress may be founded
on a pattern of misconduct.” Limone, 579 F.3d at 98.
The allegations and reasonable inferences derived therefrom are that the SPD Officers,
including Defendant Kent, had actual knowledge that Burnham’s testimony at Plaintiff’s
criminal trial was false. The SPD Officers counted the money seized at the time of Plaintiff’s
arrest and reached agreement on an amount that Burnham later told the officers – consistent with
his past practice – was too high (Compl. ¶¶ 123-24, 355-62); when cross-examined by Plaintiff’s
attorney, the SPD Officers did not fully account for the difference between the amounts listed in
the police reports and on the warrant return and evidence tags (Compl. ¶ 355); Burnham falsely
testified about the sums of money seized and the chain of custody (Compl. ¶¶ 367-68, 371-74);
and yet at no point did the SPD Officers bring to the attention of the prosecuting district
attorneys their knowledge of Burnham’s past wrongdoing and likely current malfeasance
(Compl. ¶ 362). The SPD Officers’ conduct may be considered extreme or outrageous premised
on the allegation or the inference that they had actual knowledge or that they acted with
30
“deliberate disregard of a substantial probability that [their] actions [would] produce severe
emotional distress” for Plaintiff. Limone, 579 F.3d at 95 (citing Simon v. Solomon, 431 N.E.2d
556, 562 (Mass. 1982) (concluding that a defendant could be held liable for intentional infliction
of emotional distress where he “violated his duty to [the plaintiff] recklessly, by outrageous
omission to act, and thereby caused [her] severe emotional harm”).
Accordingly, the SPD Officers’ motions to dismiss Count VIII will be denied.
B.
Defendant City of Springfield’s Motion to Dismiss (Dkt. No. 63)
Plaintiff’s only claim against the City, in Count VII, is a § 1983 claim premised on the
City’s alleged policy or custom of failing to supervise and discipline Burnham for his thefts of
cash submitted as evidence by narcotics officers and his sloppy handling of narcotics samples
submitted to the Drug Lab for analysis (Compl. ¶¶ 456-460).
A city can be liable pursuant to § 1983 when a plaintiff shows that a municipal policy or
custom was the driving force behind a constitutional violation committed by one of its
employees. Young v. City of Providence ex. rel. Napolitano, 404 F.3d 4, 25 (1st Cir. 2005)
(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). Monell liability cannot be
based on a theory of respondeat superior. “It is only when the governmental employees’
‘execution of a government’s policy or custom . . . inflicts the injury’ and is the ‘moving force’
behind the constitutional violation that a municipality can be liable.” Id. at 25 (quoting Monell,
436 U.S. at 694) (omissions in original). To successfully make out a Monell claim, a plaintiff
must show, first, that his “harm was caused by a constitutional violation, and second, that the
City [was] responsible for that violation.” Id. at 26. Furthermore, a plaintiff must show
causation and a requisite level of fault. The city’s custom or policy must “actually have caused
the plaintiff’s injury,” and the city must have been deliberately indifferent to the plaintiff’s
31
constitutional rights. Id. The First Circuit has recognized this standard as “exceptionally
stringent.” Crete v. City of Lowell, 418 F.3d 54, 66 (1st Cir. 2005) (citing Young, 404 F.3d at
30).
The City argues that Plaintiff’s complaint fails to state a plausible claim either that his
injuries stemmed from a constitutional violation or that any such violation was caused by a
municipal policy or custom. 11 As to the first argument, the court has already found that the
complaint adequately alleges a constitutional violation and that Plaintiff is not barred by
collateral estoppel from pursuing this claim. 12 At the motion to dismiss stage, for the reasons set
forth above, the first element is satisfied. The remaining questions are deliberate indifference
and causation. See Young, 404 F.3d at 26; Cox v. Murphy, Civil No. 12-11817-FDS, 2016 WL
4009978, at *7 (D. Mass. Feb. 12, 2016) (stating that a plaintiff asserting a Monell claim for
failure to supervise must show that the municipality had a custom, policy or practice of failing to
investigate or discipline its officers; this custom, practice or policy demonstrated deliberate
indifference to the rights of citizens; and that the custom, policy or practice was the cause of the
alleged constitutional violation).
The City argues that the complaint does not allege a pattern of Brady violations such that
it should have been on notice that Burnham required investigation or better supervision. The
11
The City also presses the argument that it cannot be liable based the actions of SPD Officers
Kent, Wadlegger, Bigda, or Kalish because none of them violated Plaintiff’s constitutional
rights. The court will pass on this line of argument as it appears from Plaintiff’s complaint that
the allegations regarding the City’s liability under § 1983 rely on the alleged customs and
policies of the City that permitted Burnham to mishandle evidence and steal money with
impunity (Compl. ¶¶ 455-461).
12
As is the case with respect to the SPD Officers, the complaint does not allege that the City
knew or had reason to know, prior to or at the time of Plaintiff’s trial, of Burnham’s slipshod
practices in handling controlled substances. Under the applicable standard set out in the body of
the memorandum and order, the complaint does not make out a claim against the City on this
basis.
32
City further argues that the misconduct Burnham committed in Plaintiff’s case, which it defines
as stealing from the seized currency and replacing the seized currency with different bills, is so
different from the reports of Burnham’s misconduct by narcotics unit officers (i.e., stealing cash
from the evidence room) that the City cannot be said to have been on notice of the possibility
that Burnham’s conduct would lead to a constitutional harm. See Connick v. Thompson, 563
U.S. 51, 63 (2011) (finding that the plaintiff failed to demonstrate deliberate indifference when
there was no proof of a pattern of similar Brady violations that would have put the municipality
“on notice that specific training was necessary to avoid this constitutional violation”).
The City’s reading of Plaintiff’s allegations is unduly restricted. Plaintiff claims
infringement of his due process rights under the Fifth Amendment, of which a Brady violation is
one type. See Drumgold, 707 F.3d at 38. A criminal defendant’s due process rights are
infringed when officers fail to disclose exculpatory evidence, including impeachment evidence,
and they are infringed when officers “intentionally conceal[] evidence and permit[] false
testimony to be given at a defendant’s trial.” Haley, 657 F.3d at 49.
Plaintiff alleges that Burnham’s thefts of money turned over to him in his capacity as
SPD narcotics evidence officer resulted in a violation of Plaintiff’s due process rights under the
Fifth Amendment. 13 He has alleged a long-standing practice by Burnham of stealing funds
seized by narcotics officers (Compl. ¶¶ 113-15, 127-132) that was known to his fellow officers
(Compl. ¶¶ 358-360), who reported their suspicions to superior officers in the SPD who had the
authority to make and enforce SPD policy (Compl. ¶ 361). He has further alleged that the SPD
undertook no investigation and that no disciplinary action followed these reports (Compl. ¶¶
13
Plaintiff’s complaint alleges violation of his rights to due process and a fair trial under the
Fifth, Sixth, and Fourteenth Amendments (Compl. ¶ 453).
33
358-369). Over the decades in his role as evidence officer, Burnham managed to steal more than
$200,000 in cash in over a hundred different cases and misappropriated money in many others
(Compl. ¶ 368). Burnham stole from the cash seized in Plaintiff’s case (Compl. ¶¶ 123-24, 355362), then testified falsely to the chain of custody when the cash was introduced in evidence at
Plaintiff’s trial (Compl. ¶¶ 367-68, 371-74).
For pleading purposes, Plaintiff has adequately alleged that the City had a well-settled
“custom, policy, or practice” of failing to investigate numerous, sometimes heated complaints
about Burnham’s thefts from the money being seized by SPD narcotics officers. Whitfield v.
Melendez-Rivera, 431 F.3d 1, 13 (1st Cir. 2005) (noting that, while not officially authorized,
some practices may be so well-settled and widespread that a municipality’s policymaking
officials can be said to have actual or constructive knowledge of them and yet have done nothing
to end them). On the question of causation, it must be left to a finder of fact to decide whether,
because of the City’s deliberate indifference to complaints about Burnham, he remained the SPD
narcotics evidence officer, able to testify falsely and without challenge, to the chain of custody
for drugs and cash generally and specifically in Plaintiff’s case, resulting in a violation of
Plaintiff’s due process rights.
The City’s reliance on Connick v. Thompson, 563 U.S. 51 (2011), is misplaced. In
Connick, the Supreme Court reversed a jury finding of liability against the defendant district
attorney for failure to adequately train the attorneys under his authority on their Brady
obligations. The jury “rejected [the plaintiff’s] claim that an unconstitutional policy caused the
Brady violations.” Id. at 57. The Court held that the district attorney could not “be held liable
under § 1983 for failure to train based on a single Brady violation,” id. at 54, because the
plaintiff had to show that the defendant was deliberately indifferent to the likelihood of
34
employees violating his constitutional rights. Id. at 71. Therefore, the plaintiff’s § 1983 claim
premised on failure to train had to include a showing of a “pattern of similar violations.” Id.
Additionally, the earlier incidents used to establish a pattern had to be similar enough to put the
defendant “on notice that specific training was necessary to avoid this constitutional violation.”
Id. at 63.
Nowhere in his complaint does Plaintiff allege a failure to train as a basis for his claim
against the City. Count VII alleges “a policy or custom of failing to investigate allegations of
misconduct” and “failing to discipline” Burnham for his misconduct (Compl. ¶ 458). In support
of this claim, Plaintiff has alleged numerous reports made to supervisory SPD officers about
Burnham’s thefts. As the Supreme Court explained in Connick, § 1983 liability premised on a
municipality’s custom or policy depends on showing either that the policy itself was
constitutionally infirm or, as Plaintiff alleges here, that the municipality was deliberately
indifferent to the likelihood of constitutional violations resulting from the custom or policy. The
touchstone is predictability. See Connick, 563 U.S. at 71 (“To prove deliberate indifference, [the
plaintiff] needed to show that [the defendant] was on notice that, absent additional specified
training, it was ‘highly predictable’ that the prosecutors in his office would be confounded by
those gray areas and make incorrect Brady decisions as a result. In fact, [the plaintiff] had to
show that it was so predictable that failing to train the prosecutors amounted to conscious
disregard for defendants’ Brady rights.”) (emphasis in original). Here, accepting the allegations
in the complaint as true, it cannot be said that no reasonable finder of fact could conclude that the
alleged violation of Plaintiff’s due process rights was an unpredictable result of the blind eye
turned by the City to repeated reports of Burnham’s misconduct.
35
There is much to learn in discovery about reports to the City about Burnham prior to
Plaintiff’s trial. At this stage, the court must accept allegations in the complaint as true; taken as
true, the allegations plausibly state a claim for relief under Monell. See Haley, 657 F.3d at 52
(reversing a dismissal of § 1983 claims against the city because, though the city “vigorously
dispute[d]” the existence of an unconstitutional policy or of deliberate indifference to the need
for training, the issue was whether the complaint painted a “plausible picture”).
III.
CONCLUSION
For the reasons set forth above, the Motions to Dismiss by Defendant Kent (Dkt. No. 26),
Defendants Wadlegger, Bigda, and Kalish (Kdt. No. 63), and by the City of Springfield (Dkt.
No. 57) are hereby DENIED.
It is so ordered.
/s/ Katherine A. Robertson_____
KATHERINE A. ROBERTSON
United States Magistrate Judge
DATED: September 27, 2018
36
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