Penate v. Kaczmarek et al

Filing 373

Magistrate Judge Katherine A. Robertson: MEMORANDUM AND ORDER entered RE: Plaintiff's 303 Motion for Summary Judgment. For the reasons stated above, Plaintiffs Motion for Partial Summary Judgment against Defendant Sonja Frank - (Dkt. No. 303) is DENIED.It is so ordered. (Finn, Mary)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ROLANDO PENATE,
Plaintiff,
v.
ANNE KACZMAREK, JOSEPH
BALLOU, ROBERT IRWIN, RANDY
THOMAS, and SONJA FARAK,
Defendants.

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Civil Action No. 3:17-30119-KAR

MEMORANDUM AND ORDER ON PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST SONJA FARAK
(Dkt No. 303)
ROBERTSON, U.S.M.J.
Rolando Penate (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 1983 against
Sonja Farak (“Defendant”) and others after having served more than five years in Massachusetts
state prison based on his criminal conviction for drug distribution, a conviction which was
ultimately dismissed with prejudice as a result of evidence that Defendant, a drug laboratory
chemist, was stealing and using lab samples to feed a drug addiction at the time she was
entrusted with the samples in Plaintiff’s case. 1 Presently before the court is Plaintiff’s motion for
partial summary judgment against Defendant on Count I of his complaint alleging a violation of
42 U.S.C. § 1983 (Dkt. No. 303). The parties have consented to this court’s jurisdiction. See 28

1

The other remaining defendants are Anne Kaczmarek, who is a former Massachusetts Assistant
Attorney General, and Joseph Ballou, Robert Irwin, and Randy Thomas, who were members of
the Massachusetts State Police. The motions for summary judgment by and against these
defendants will be addressed separately.

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U.S.C. § 636(c); Fed. R. Civ. P. 73 (Dkt. No. 92). For the following reasons, Plaintiff’s motion
for partial summary judgment is DENIED.
I.

STANDARD OF REVIEW
Summary judgment is appropriate if “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “An issue is ‘genuine’ when a rational factfinder could resolve it either direction.” Mu v.
Omni Hotels Mgmt. Corp., 882 F.3d 1, 5 (1st Cir.), rev. denied, 885 F.3d 52 (1st Cir. 2018)
(citing Borges ex rel. S.M.B.W. v. Serrano–Isern, 605 F.3d 1, 4 (1st Cir. 2010)). “A fact is
‘material’ when its (non)existence could change a case’s outcome.” Id. (citing Borges, 605 F.3d
at 5).
A party seeking summary judgment is responsible for identifying those portions of the
record “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant can meet this burden either by “offering
evidence to disprove an element of the plaintiff’s case or by demonstrating an ‘absence of
evidence to support the non-moving party’s case.’” Rakes v. United States, 352 F. Supp. 2d 47,
52 (D. Mass. 2005) (quoting Celotex, 477 U.S. at 325). If the moving party meets its burden,
“[t]he non-moving party bears the burden of placing at least one material fact into
dispute.” Mendes v. Medtronic, Inc., 18 F.3d 13, 15 (1st Cir. 1994) (citing Celotex, 477 U.S. at
325). The record is viewed in favor of the nonmoving party, and reasonable inferences are
drawn in the nonmoving party’s favor. See Garcia-Garcia v. Costco Wholesale Corp., 878 F.3d
411, 417 (1st Cir. 2017) (citing Ameen v. Amphenol Printed Circuits, Inc., 777 F.3d 63, 68 (1st
Cir. 2015)).

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An unopposed motion for summary judgment does not automatically give rise to a grant
of summary judgment. Aguiar-Carrasquillo v. Agosto-Alicea, 445 F.3d 19, 25 (1st Cir. 2006).
“Instead, ‘the district court [is] still obliged to consider the motion on its merits, in light of the
record as constituted, in order to determine whether judgment would be legally appropriate.’”
Id. (alteration in original) (quoting Mullen v. St. Paul Fire & Marine Ins. Co., 972 F.2d 446, 452
(1st Cir. 1992)). “It is well-settled that ‘before granting an unopposed summary judgment
motion, the court must inquire whether the moving party has met its burden to demonstrate
undisputed facts entitling it to summary judgment as a matter of law.’” Id. (quoting López v.
Corporación Azucarera de P.R., 938 F.2d 1510, 1517 (1st Cir. 1991)). That said, the moving
party generally prevails on an unopposed motion for summary judgment. See Pérez-Cordero v.
Wal-Mart P.R., 440 F.3d 531, 534 (1st Cir. 2006) (“In most cases, a party’s failure to oppose
summary judgment is fatal to its case.”).
II.

FACTUAL BACKGROUND 2
In late 2004 or early 2005, Defendant, a chemist employed at the Amherst Drug Lab

(“the Lab”), began stealing and using narcotics at the Lab (Dkt. No. 304 at ¶ 8). Among the
narcotics Defendant stole and used were methamphetamine, amphetamine, phentermine,
ketamine, LD, MDMA (“ecstasy”), MDEA, LSD, powder cocaine, and crack cocaine (Dkt. No.
304 at ¶ 9). Defendant’s misconduct escalated over time, and, by the summer of 2012,
Defendant was using crack cocaine multiple times per workday (Dkt. No. 304 at ¶ 41). By
November of that same year, Defendant was stealing large quantities of powder cocaine from
police submissions and using lab equipment to manufacture crack (Dkt. No. 304 at ¶ 46).

Because Defendant did not submit a statement of material facts, the court deems admitted the
facts set forth in Plaintiff’s Statement of Undisputed Material Facts. See L.R. 56.1
2

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Defendant’s increasingly brazen theft and use of narcotics in the Lab was finally
uncovered in mid-January 2013. At that time, Sharon Salem, the evidence officer at the Lab,
advised Supervisor James Hanchett that two cocaine samples assigned to Defendant were not in
the main evidence room where they were supposed to be (Dkt. No. 304 at ¶¶ 53, 73). Hanchett
contacted the Massachusetts State Police (“MSP”), and detectives in the MSP unit assigned to
the Northwestern District Attorney’s Office (“NWDAO”) commenced an investigation (Dkt. No.
304 at ¶¶ 54-55). Investigators quickly spoke to Defendant, who denied any wrongdoing and
refused to consent to a search of her car, which she knew contained incriminating materials (Dkt.
No. 304 at ¶¶ 60-63). Undeterred, the investigators impounded the vehicle and towed it to the
MSP barracks in Northampton, where it was searched and found to contain 289 pages of
documents, some of which reflected Defendant’s use of narcotics at the Lab and treatment for
substance use disorder by clinicians at ServiceNet, Inc., going back as far as 2011 (Dkt. No. 304
at ¶¶ 10, 64-68). Among other items, investigators found a ServiceNet Diary Card
memorializing Defendant’s use of narcotics at the Lab on Thursday, December 22, 2011, on
which Defendant wrote, “tried to resist using @ work but ended up failing” (Dkt. No. 304 at ¶¶
11-12).
Defendant was arrested on January 19, 2013, and arraigned in the Eastern Hampshire
District Court three days later (Dkt. No. 304 at ¶¶ 73, 80). Following her arraignment,
Defendant retrieved her car and discovered that the paperwork documenting her drug use at the
Lab was no longer in the vehicle. She surmised that it had been seized as evidence (Dkt. No. 304
at ¶ 82).
At Defendant’s Superior Court arraignment three months later, Assistant Attorney
General Anne Kaczmarek, who appeared for the prosecution, filed a First Certificate of

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Discovery, which stated that she had provided various materials to Defendant’s counsel, Elaine
Pourinski, including seven pages of “Paperwork recovered from M/V” (Dkt. No. 304 at ¶¶ 81,
86-87). Kaczmarek told Pourinski that her office considered the mental health paperwork found
in the car to be “privileged” and promised that the documents would not be disclosed to any socalled “Farak Defendants” in pending criminal cases in which Defendant had signed the drug
certificate (Dkt. No. 304 at ¶ 88).
Plaintiff was one of these “Farak Defendants” (Dkt No. 304 at ¶ 74). In late December
2011 and early January 2012, Defendant had analyzed substances purchased or seized by the
Springfield police from 57 Johnson Street, where narcotics detectives had executed a search
warrant and arrested Plaintiff, who was present at the scene. He was charged with three counts
of distributing heroin and possessing heroin and cocaine with intent to distribute (Dkt. No. 304 at
¶¶ 1-5). Defendant analyzed the samples from Plaintiff’s case over three separate days in late
2011 and early 2012. Defendant signed a drug certificate attesting that the substance she
analyzed on December 22, 2011, contained heroin. December 22, 2011, was the same day she
had “tried to resist using @ work but ended up failing. Defendant analyzed other samples from
Plaintiff’s case on January 6 and 9, 2012, and attested that those substances contained heroin or
cocaine (Dkt. No. 304 at ¶ 5). Plaintiff was indicted on February 1, 2012, and Eduardo
Velazquez, an Assistant District Attorney in the Hampden County District Attorney’s Office
(“HCDAO”), was assigned to prosecute Plaintiff (Dkt. No. 304 at ¶¶ 16-17).
After Defendant’s arrest on January 19, 2013, Velazquez had the discretion not to move
forward with Plaintiff’s prosecution in light of Defendant’s malfeasance, but he decided to
proceed because, not being privy to the ServiceNet Diary Card, he had no reason to believe that
Defendant was engaged in misconduct at the Lab in December 2011 and January 2012, when she

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analyzed the substances seized in Plaintiff’s case (Dkt. No. 304 at ¶¶ 76, 79). In June 2013,
Velazquez arranged to have the samples in Plaintiff’s case tested by William Hebard, the
supervisor at the Drugs of Abuse Laboratory at the UMass Medical School in Worcester (Dkt.
No. 304 at ¶ 90).
On July 15, 2013, Plaintiff filed a motion to dismiss the drug charges against him based
on Defendant’s egregious misconduct and the government’s noncompliance with its obligation to
turn over exculpatory evidence (Dkt. No. 304 at ¶ 100). Hampden County Superior Court Judge
Mary-Lou Rup issued an order on July 23, 2013, stating that:
an evidentiary hearing must be conducted on the following issues:
(i) if Ms. Farak and/or the Amherst drug lab engaged in egregious
misconduct in the handling, storage, and analysis of suspected
narcotics during the time period between November 2011 and
January 2012, when the Amherst drug lab had custody and control
of the alleged substances related to the defendant’s case; (2) if such
misconduct has substantially prejudiced the defendant or
irreparably harmed his right to a fair trial; or (3) if such egregious
misconduct was deliberate and intentional, warranting a
prophylactic sanction of dismissal
(Dkt. No. 304 at ¶ 101). Defendant was summonsed to testify at this proceeding, but she
exercised her Fifth Amendment rights and did not disclose that her misconduct at the Lab
encompassed the time-period between November 2011 and January 2012 (Dkt. No. 304 at ¶ 10203). Following the evidentiary hearing, Hampden County Superior Court Judge C. Jeffrey
Kinder denied Plaintiff’s motion to dismiss, concluding that while there was “powerful evidence
that Farak was stealing cocaine and replacing it with other substances,” there was “insufficient
evidence before [him] that … she was engaged in misconduct in November 2011, and January of
2012, when the samples in [Plaintiff’s] case were tested” (Dkt. No. 304 at ¶¶ 124-25).
Plaintiff’s trial took place between December 9 and 13, 2013 (Dkt. No. 304 at ¶¶ 127,
146). He was precluded from introducing any Farak-related evidence (Dkt. No. 304 at ¶¶ 1286

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29). Plaintiff was ultimately convicted of one count of distributing a class A substance. He was
acquitted of four other drug charges, and the court allowed Plaintiff’s motion for required
findings of not guilty with respect to firearm and ammunition related charges (Dkt. No. 304 at ¶¶
133, 135, 146). Hampden County Superior Court Judge Tina Page sentenced Plaintiff to not less
than five years and not more than seven years in state prison (Dkt. No. 304 at ¶ 147).
Defendant pled guilty to criminal charges against her on January 6, 2014. She did not
reveal the full scope of her wrongdoing at her change of plea and sentencing (Dkt. No. 304 at ¶¶
149-150).
On July 21, 2014, Plaintiff’s counsel filed a motion to inspect the evidence seized from
Defendant’s vehicle on behalf of another Farak defendant, which was granted (Dkt. No. 304 at
¶¶ 151-52). After the inspection, Plaintiff’s attorney sent an 11-page letter to the Massachusetts
Attorney General’s Office (“AGO”) detailing the significance of the previously undisclosed
evidence (Dkt. No. 304 at ¶ 153). Thereafter, on November 13, 2014, the AGO disclosed to the
Commonwealth’s district attorneys the 289 pages of documentary evidence seized from
Defendant’s vehicle, including the ServiceNet Diary Card indicating that Defendant had used
drugs at work on December 22, 2011 (Dkt. No. 304 at ¶¶ 154-55).
In May 2015, Plaintiff filed a motion for a new trial based on this newly discovery
evidence, which was allowed with the assent of the HCDAO (Dkt. No. 304 at ¶156, 159).
Following a grant of immunity, Defendant testified before an investigatory grand jury and
admitted to stealing and using narcotics at the Lab from late 2004/early 2005 until her arrest in
January 2013 (Dkt. No. 304 at ¶¶ 157-58). On June 26, 2017, Hampden County Superior Court
Judge Richard J. Carey issued a 127-page decision dismissing Plaintiff’s conviction with
prejudice (Dkt. No. 304 at ¶ 160). According to Velazquez, had he known prior to Plaintiff’s

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trial that Defendant was using illicit drugs at the Lab while she had custody of and was analyzing
the samples in Plaintiff’s case, he would have dismissed the charges against Plaintiff (Dkt. No.
304 at ¶ 164).
III.

DISCUSSION
Section 1983 provides a cause of action for the “deprivation of any rights, privileges, or

immunities secured by the Constitution and laws” by any person acting “under color of any
statute, ordinance, regulation, custom, or usage, of any State or Territory.” 42 U.S.C. § 1983.
“The threshold question in a § 1983 suit is whether there has been a violation of a federally
secured right.” Drumgold v. Callahan, 707 F.3d 28, 49 n.13 (1st Cir. 2013) (citing Baker v.
McCollan, 443 U.S. 137, 140 (1979)). In addition to deprivation of a right, a plaintiff also must
establish “a causal connection between the actor and the deprivation, and state action.” Sanchez
v. Pereira-Castillo, 590 F.3d 31, 41 (1st Cir. 2009) (citing 42 U.S.C. § 1983).
Plaintiff alleges that his constitutional due process rights were violated by Defendant’s
withholding of material exculpatory evidence of her theft of, use of, and tampering with
narcotics at the Lab, which he asserts was in violation of Brady v. Maryland, 373 U.S. 83 (1963).
The Supreme Court in Brady held that “the suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87.
“Evidence is favorable to a defendant if it is either exculpatory or impeaching in nature.”
Drumgold, 707 F.3d at 38-39. Evidence is “material” when there is a reasonable probability that,
had the prosecution disclosed the evidence, the trial proceedings would have resulted
differently. United States v. Bagley, 473 U.S. 667, 682 (1985).

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More than twenty years after Brady, in Kyles v. Whitley, 514 U.S. 419 (1995), the
Supreme Court “held that the disclosure obligation imposed by Brady extends to evidence
known only to police officers ….” Haley v. City of Boston, 657 F.3d 39, 49 (1st Cir. 2011)
(citing Kyles, 514 U.S. at 437-38). However, “the responsibility for obtaining and disclosing
such evidence remains the duty of the prosecutor, and not the police officer.” Id. (citing Kyles,
514 U.S. at 437-38). Withal, the First Circuit has since recognized that “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 (citing Moldowan v. City of Warren, 578
F.3d 351, 381 (6th Cir. 2009); McMillian v. Johnson, 88 F.3d 1554, 1567 (11th Cir. 1996)).
Here, Defendant was not a law enforcement officer but rather a state-employed lab
chemist. Plaintiff glosses over this distinction, arguing that “[t]he duty to disclose exculpatory
evidence runs not just to prosecutors, but ‘others acting on the government’s behalf in the case’”
(Dkt. No. 305 at 6-7 (quoting Kyles, 514 U.S. at 437)). This is not precisely what Kyles said.
Instead, the Kyles Court held that “the individual prosecutor has a duty to learn of any favorable
evidence known to the others acting on the government’s behalf in the case, including the
police.” Id. at 437. It is not a foregone conclusion from this holding that state-employed lab
chemists, such as Defendant, have a duty to criminal defendants, such as Plaintiff, to turn over
material exculpatory evidence to the prosecutor.
At the motion to dismiss stage, this court indicated that it was persuaded that laboratory
chemists have disclosure obligations under Brady. Penate v. Kaczmarek, Civil Action No. 3:17cv-30119-KAR, 2019 WL 319586, at *9 (D. Mass. Jan. 24, 2019), rev’d in part, vacated in part,
Penate v. Hanchett, 944 F.3d 358, 366 (1st Cir. 2019). The First Circuit, in reversing this court’s
decision denying the motion to dismiss Plaintiff’s § 1983 claim against James Hanchett,

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Defendant’s supervisor at the Lab, stated that it “harbor[ed] grave doubts … that it was clearly
established as early as 2012 that lab chemists could be held liable for withholding exculpatory
evidence under Brady ….” Hanchett, 944 F.3d at 366. 3 The statement strongly suggests that the
First Circuit would find Defendant entitled to qualified immunity as to Plaintiff’s Brady claim.
One would expect that, in the normal course, Defendant would have raised the defense of
qualified immunity in opposition to Plaintiff’s motion for partial summary judgment. Defendant,
however, is self-represented in this case and Plaintiff’s motion is unopposed. Nor has Defendant
filed her own motion for summary judgment. It is unclear whether the court has the authority to
consider the defense sua sponte at summary judgment. 4 While the First Circuit has not spoken
on the issue, the majority of federal courts of appeals have taken the view that district courts are
not empowered to raise the affirmative defense of qualified immunity sua sponte. Compare
Summe v. Kenton Cty. Clerk’s Office, 604 F.3d 257, 269-270 (6th Cir. 2010) (declining to
address qualified immunity on appeal where the district court sua sponte held that the defendant
was entitled to qualified immunity, because the defendant waived that defense at summary
judgment); Straub v. Does, 63 Fed. Appx. 309, 311 (9th Cir. 2003) (unpublished) (holding that
the district court erred in raising qualified immunity sua sponte because “[q]ualified immunity is
an affirmative defense that must be raised and affirmatively established by the Defendants, not

3

At oral argument on the instant motion, Plaintiff’s counsel adopted the characterization of this
statement as dicta and indicated that it should not give this court pause in granting summary
judgment to Plaintiff. This court cannot disregard a considered statement by the First Circuit any
more than the circuit courts of appeals could disregard a similar statement by the Supreme Court.
See United Nurses & Allied Prof’ls v. NLRB, 975 F.3d 34, 40 (1st Cir. 2020) (“We are bound by
the Supreme Court’s ‘considered dicta.’”) (quoting McCoy v. Mass. Inst. of Tech., 950 F.2d 13,
19 (1st Cir. 1991)).
4
The court addressed Defendant’s claim of qualified immunity at the motion to dismiss stage.
While Defendant did not raise the defense in her papers, during oral argument, she adopted the
arguments of certain other defendants, including Hanchett, who had squarely raised the defense.
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the district court”); Lee v. Myers, 92 F.3d 1185, 1996 WL 444460, at *2 (6th Cir. Aug. 6, 1996)
(unpublished) (“It is ordinarily error to raise an affirmative defense sua sponte unless the defense
is obvious from the face of the complaint.”); Moore v. Morgan, 922 F.2d 1553, 1557-58 (11th
Cir. 1991) (noting that, where the defendant officials waived the affirmative defense of qualified
immunity, “the magistrate judge improperly injected the issue of qualified immunity into the
case”); with Lillo ex rel. Estate of Lillo v. Bruhn, 413 Fed. Appx. 161, 162 (11th Cir. 2011)
(unpublished) (finding no error on the part of the district court in determining sua sponte that the
defendants were entitled to qualified immunity). Relying on this authority, the court will not
address sua sponte whether Defendant is entitled to qualified immunity at this time. She remains
entitled to raise the defense at trial. Brust v. City of Worcester, 947 F. Supp. 2d 143, 145 (D.
Mass. 2012) (“‘[D]efendants may raise a claim of qualified immunity at three distinct stages of
the litigation’ – in a motion to dismiss at the pleading stage, at summary judgment, and as an
affirmative defense at trial.”) (quoting Guzmán–Rivera v. Rivera–Cruz, 98 F.3d 664, 667 (1st
Cir. 1996)).
Turning to the substance of Plaintiff’s claim, a plaintiff asserting a Brady violation must
prove that: 1) the evidence is favorable to the accused because it is exculpatory or impeaching, 2)
the evidence was suppressed, either willfully or inadvertently, and 3) prejudice ensued, meaning
that “‘there is a reasonable probability’ that the result of the trial would have been different if the
suppressed documents had been disclosed to the defense.” Strickler v. Greene, 527 U.S. 263,
281-82, 289 (1999). In addition, “while a prosecutor’s duty to disclose is absolute, to recover
damages from other law enforcement officials for a Brady violation, a § 1983 plaintiff must
prove the requisite mens rea.” Stewart v. Wagner, 836 F.3d 978, 982 (8th Cir. 2016). See also
Cok v. Cosentino, 876 F.2d 1, 4 (1st Cir. 1989) (“The Supreme Court has made plain that due

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process, whether procedural or substantive, is not implicated by mere negligence of persons
acting under color of state law.”) (citing Daniels v. Williams, 474 U.S. 327, 328 (1986);
Davidson v. Cannon, 474 U.S. 344 (1986)).
Addressing the question of mens rea first, the First Circuit has not identified what state of
mind suffices to establish liability of a law enforcement officer under § 1983. Drumgold, 707
F.3d at 43 n.10. While deliberate suppression of evidence is adequate, “[n]on-disclosure with a
less culpable state of mind might [also] suffice.” Id. (citing Haley, 657 F.3d at 47). 5 For
example, in the Ninth Circuit, “[a] § 1983 plaintiff must show that police officers acted with
deliberate indifference to or reckless disregard for an accused’s rights or for the truth in
withholding evidence from prosecutors.” Tennison v. City & Cty. of San Francisco, 570 F.3d
1078, 1089 (9th Cir. 2009). By contrast, in the Eighth Circuit, “[t]he recovery of § 1983
damages requires proof that a law enforcement officer … intended to deprive the defendant of a
fair trial.” Villasana v. Wilhoit, 368 F.3d 976, 980 (8th Cir. 2004). See also Jean v. Collins, 221
F.3d 656, 663 (4th Cir. 2000) (Wilkinson, J., concurring) (stating that § 1983 liability requires
that a police officer have “intentionally withheld the evidence for the purpose of depriving the
plaintiff of the use of that evidence during his criminal trial”).

5

Plaintiff argues that “Drumgold did make clear that ‘intentionally or recklessly’ withholding
exculpatory evidence is ‘clearly unlawful’ and a proper basis for a Section 1983 claim” (Dkt. No.
305 at 9 (quoting Drumgold, 707 F.3d at 45). However, this is not the holding of Drumgold.
The Drumgold court explicitly declined to decide whether a reckless failure to disclose
exculpatory evidence would suffice for purposes of a Brady-based Section 1983 claim, calling
this a “difficult question.” Drumgold, 707 F.3d at 43 n.10. Instead, what the Drumgold court
identified as “firmly settled” was that a law enforcement officer could not deliberately suppress
material evidence that was favorable to a defendant. Id. at 43. The court held that Drumgold
had raised this claim, which arose under Mooney v. Holohan, 294 U.S. 103 (1935), and Pyle v.
Kansas, 317 U.S. 213 (1942), “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.” Id. at 38 (citing
Brady, 373 U.S. at 86).
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As a general matter, “[c]ases in this circuit suggest that government officials may be held
liable for a deprivation of life, liberty, or property without due process if their conduct reflects a
reckless or callous indifference to an individual’s rights.” Germany v. Vance, 868 F.2d 9, 17-18
(1st Cir. 1989) (citing Maldonado Santiago v. Velazquez Garcia, 821 F.2d 822, 831 (1st Cir.
1987); Clark v. Taylor, 710 F.2d 4, 9 (1st Cir. 1983)). Accordingly, this court will assume
without deciding that the First Circuit would align itself with the Ninth Circuit and find
deliberate indifference or reckless disregard sufficient with respect to a failure to comply with
the Brady directive to disclose exculpatory evidence. “An official displays … reckless or callous
indifference when it would be manifest to any reasonable official that his conduct was very
likely to violate an individual’s constitutional rights.” Id. at 18. In Germany, the First Circuit
acknowledged that the distinction between “‘negligence,’ ‘reckless or callous indifference,’ and
‘intentional’ conduct can be elusive.” Id. 18 n.10. For purposes of defining these states of mind,
the court stated that reckless or callous indifference should be viewed “as a lesser form of
intent.” Id. “A reckless or callously indifferent violation occurs … if the official believes (or
reasonably should believe) that his conduct is very likely (but not certain) to result in … a
[constitutional due process] violation.” Id. (citing Restatement (Second) of Torts) § 500, cmt. f
(1977); Cook v. Avien, Inc., 573 F.2d 685, 692 (1st Cir. 1978)). Additionally, this court takes
into consideration the principle, most often applied in employment cases but applicable beyond
that context, that “intent … is a matter generally deemed ill-suited to summary judgment – as the
First Circuit has cautioned, ‘courts must be exceptionally cautious in granting brevis disposition
in such cases.’” Chu v. Legion of Christ, Inc., 2. F. Supp. 3d 160, 176 (D.R.I. 2014) (quoting In
re Varrasso, 37 F.3d 760, 764 (1st Cir. 1994)). Parties contesting the question of intent at the

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summary judgment stage must point to relevant evidence that has the potential for admissibility
at trial. See id. at 176-77.
Here, Plaintiff asserts in conclusory fashion that Defendant’s “decision to remain silent
when she knew she had been tampering with drug samples and getting high at the time she
analyzed the samples in Plaintiff’s case was nothing short of intentional, and, without question, a
reckless disregard for Plaintiff’s constitutional right to this exculpatory information” (Dkt. No.
305 at 9-10 (citing Germany, 868 F.2d at 18)). Plaintiff does not cite to evidence of Defendant’s
state of mind or intent to support this assertion. It may be true that Defendant’s failure to
disclose was intentional in the sense that she intentionally did not speak up and disclose her
malfeasance, but that is not enough. See Germany, 868 F.2d at 18 n.11 (“It is true that the
evidence would support the finding that [Defendant’s] omissions were deliberate in the sense of
being consciously intended rather than inadvertent. … But the fact that an act or omission is
deliberate, rather than inadvertent, does not mean that it should necessarily characterized as
‘intentional.’”). In the court’s view, notwithstanding the extensive record submitted by Plaintiff,
it cannot be said as a matter of law that Plaintiff has shown that Defendant acted intentionally to
deprive Plaintiff of a fair trial. Plaintiff has pointed to no evidence suggesting that Defendant
intended, by withholding information about her misconduct in the Lab, to ensure Plaintiff’s
conviction. Cf. Haley, 657 F.3d at 46 (noting that the complaint alleged that the defendants’
non-disclosure of exculpatory evidence was part of a deliberate attempt to secure a conviction
without regard to guilt or actual innocence). On the facts as presented, a finder of fact
reasonably could infer that Defendant’s non-disclosure was motivated by the desire to protect
herself from further criminal exposure, an impulse that would only indirectly have the effect of
depriving Plaintiff of his Brady rights. Indeed, some evidence to which Plaintiff alludes in his

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statement of facts supports the inference that Defendant was motivated by a desire to protect
herself from the negative consequences of her criminal conduct (Dkt. No. 304 at ¶¶ 102-07).
Nor is it necessarily the case, on the record before the court, that Defendant “clearly
knew (or reasonably should have known) that [her] failure to report [her wrongdoing] to
[P]laintiff … was very likely to deprive [him] of [his] constitutionally protected liberty interest.”
Germany, 868 F.2d at 18-19. As the First Circuit noted, it was not necessarily clearly established
at the time that Defendant suppressed the information that her actions rose to the level of a
constitutional violation, such that she could be said to have acted in reckless disregard for
Plaintiff’s constitutional rights. Penate, 944 F.3d at 366. Additionally, the undisputed facts
establish that Defendant knew that law enforcement had seized incriminating materials from her
car, including the ServiceNet Diary Card. A finder of fact reasonably could infer that Defendant
also knew that Kaczmarek, the prosecutor in her case, had come into possession of the mental
health records that were in Defendant’s vehicle at the time of her arrest, since Kaczmarek told
Defendant’s defense lawyer that Kaczmarek had those records and that they would be withheld
from the Farak defendants as privileged. In other words, Defendant knew that the
Commonwealth had possession of evidence that her theft and use of narcotics in the Lab dated
back to 2011 (when she had tested the samples in Plaintiff’s case) and that lawyers for the
Commonwealth were making decisions as to whether to disclose this evidence to the Farak
defendants. Based on these facts, a factfinder could conclude that Defendant was not acting with
reckless disregard of Plaintiff’s constitutional rights in not herself disclosing the extent of her
misconduct, but rather was relying on lawyers for the Commonwealth to do so to the extent that
doing so was constitutionally necessary.

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Case 3:17-cv-30119-KAR Document 373 Filed 02/10/22 Page 16 of 16

Because Plaintiff has not shown as a matter of law that Defendant acted with deliberate
indifference to or reckless disregard for Plaintiff’s due process rights in withholding evidence
from prosecutors, Plaintiff has not shown that he is entitled to summary judgment. Having so
found, the court declines to address the other elements of Plaintiff’s claim at this time.
IV.

CONCLUSION
For the reasons stated above, Plaintiff’s motion for partial summary judgment against

Defendant (Dkt. No. 303) is DENIED.
It is so ordered.
/s/ Katherine A. Robertson_____
KATHERINE A. ROBERTSON
United States Magistrate Judge
DATED: February 10, 2022

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