United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS TO
DISMISS AND MOTIONS FOR SANCTIONS
Dennis Saylor IV, United States District Judge
an action alleging a variety of claims for relief under 42
U.S.C. § 1983. The pro se complaint contends
that the Town of Framingham, two police detectives, the
Massachusetts Division of Children and Families, two social
workers, an extended family member, five private attorneys, a
state judge, the Middlesex County District Attorney, and an
Assistant District Attorney unlawfully attempted to deprive
plaintiffs Thomas and Joann Tierney of custody of their
all defendants have moved to dismiss the complaint for a
multitude of reasons.Among them are lack of subject-matter
jurisdiction, failure to state a claim upon which relief can
be granted, and failure to provide a short and plain
statement of plaintiffs' theory of relief. In addition,
three defendants have requested that the Court award them
reasonable costs and attorney's fees. For the reasons
stated below, the motions to dismiss will be granted, and the
requests for costs and attorney's fees will be denied.
facts are set forth as described in the complaint,
supplemented by certain official public
and Joann Tierney (collectively, the “Tierneys”)
are grandparents and legal guardians of minor child T.
(Compl. at 1). In early 2015, the Tierneys brought T. to
Framingham Union Hospital tied in cords. See generally
Commonwealth v. Tierney, Docket No. 1581-cr-00016
(Middlesex Superior Court). Medical personnel reported the
incident to the Massachusetts Department of Children and
Families (“DCF”) and the Framingham police.
(Compl. at 4-5). The complaint suggests that detectives
Stacey Macaudda and Phillip Hurton were the investigating
officers. (Id. at 1). The Tierneys were then charged by
the Middlesex District Attorney's office with assault and
battery and child endangerment. See Commonwealth v.
Tierney. Attorney John Daly was initially appointed to
defend the Tierneys in Middlesex Superior Court.
(Compl. at 5). He was eventually replaced by
attorney Michael Brennan. (Id.). It appears that the
prosecuting Assistant District Attorney was Kate Cimini.
(Id. at 1).
then removed from the custody of the Tierneys by DCF for 96
days while he was hospitalized. (Id. at 7). The
complaint suggests that Justice Gloria Tan of the
Massachusetts Juvenile Court presided over a hearing
involving the Tierneys. (Id. at 5). The complaint
alleges that Justice Tan “enforced a state scheduling
law [‘the 72-hour rule']” during this
hearing. (Id.). Attorneys Belle Soloway, Judith
Hyatt, and Cynthia Pucillo were appointed to represent
Thomas, Joann, and T., respectively, at the hearing.
(Id. at 1).
filed the complaint in this action on September 1, 2017. A
letter was filed with the Court on September 12, 2017,
requesting that certain minor changes be made to the
complaint. The Court construed the letter as a motion to
amend the complaint, which was granted on September 14, 2017.
complaint purports to assert claims against 15 different
individuals and entities: (1) the Town of Framingham, (2)
Detective Stacey Macaudda, (3) Detective Phillip Hurton, (4)
the DCF, (5) DCF social worker Chad Cronin, (6) DCF social
worker Debra Connors, (7) John Lapinski, (8) attorney Belle
Soloway, (9) attorney Judith Hyatt, (10) attorney Cynthia
Pucillo, (11) Justice Gloria Tan, (12), attorney John Daly,
(13) attorney Michael Brennan, (14) Middlesex District
Attorney Marian Ryan, and (15) Middlesex Assistant District
Attorney Kate Cimini. The complaint appears to assert a legal
malpractice claim against the private attorney defendants,
and a § 1983 claim against all defendants. The complaint
requests that this Court (1) dismiss pending criminal charges
against the Tierneys in state court, (2) declare the
“72-hour rule” unconstitutional, and (3) award
approximately $3 million in damages.
defendants have filed motions to dismiss the complaint for a
variety of reasons.In addition, in their motions to dismiss,
defendants Daly, Hyatt, and Soloway have requested that this
Court award them their reasonable costs and attorney's
Defendants' Motions to Dismiss Under Rules 12(b)(1)
have moved to dismiss the complaint for lack of
subject-matter jurisdiction pursuant to Rule 12(b)(1) and
failure to state a claim pursuant to Rule
12(b)(6). The complaint states that “[n]o
diversity claim is being made” and that the basis for
federal-question jurisdiction is the “right to a speedy
trial and the right to counsel under the Sixth
Amendment” and “due process and equal protection
rights under the Fourteenth Amendment.” (Compl. at 4)
(internal quotation marks omitted). It appears that the
complaint purports to allege claims under 42 U.S.C. §
1983, and therefore federal-question jurisdiction exists.
Legal Standard on a Motion to Dismiss
motion to dismiss, the court “must assume the truth of
all well-plead[ed] facts and give . . . plaintiff the benefit
of all reasonable inferences therefrom.” Ruiz v.
Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st
Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77
(1st Cir. 1999)). To survive a motion to dismiss, the
complaint must state a claim that is plausible on its face.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). In other words, the “[f]actual allegations must
be enough to raise a right to relief above the speculative
level, . . . on the assumption that all the allegations in
the complaint are true (even if doubtful in fact).”
Id. at 555 (citations omitted). “The
plausibility standard is not akin to a ‘probability
requirement, ' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 556). Dismissal is appropriate
if the complaint fails to set forth “factual
allegations, either direct or inferential, respecting each
material element necessary to sustain recovery under some
actionable legal theory.” Gagliardi v.
Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quoting
Centro Medico del Turabo, Inc. v. Feliciano de
Melecio, 406 F.3d 1, 6 (1st Cir. 2005)).
document filed by a pro se party “is to be
liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle
v. Gamble, 429 U.S. 97, 106 (1976)) (internal quotation
marks omitted); see also Fed. R. Civ. P. 8(e)
(“Pleadings must be construed so as to do
justice.”). However, while pro se complaints
“are accorded ‘an extra degree of solicitude'
. . . even a pro se plaintiff is required to
‘set forth factual allegations, either direct or
inferential, respecting each material element necessary to
sustain recovery under some actionable legal
theory.'” Wright v. Town of Southbridge,
2009 WL 415506, at *2 (D. Mass. Jan. 15, 2009) (quoting
Adams v. Stephenson, 1997 WL 351633, at *1 (1st Cir.
June 23, 1997)).
Section 1983 Claims against Private Attorney Defendants
(Daly, Hyatt, Brenn, Ryan, and
1983 provides a remedy for the deprivation of “any
rights, privileges, or immunities secured by the Constitution
and laws [of the United States]” by an individual
acting under color of state law. 42 U.S.C. § 1983.
“To state a valid cause of action under 42 U.S.C.
§ 1983, a plaintiff must show that she was deprived of a
secured right by a person acting on behalf of (or in concert
with) state officials.” Runge v. Kelly, 2006
WL 167497, at *2 (D. Mass. Jan. 23, 2006) (citation omitted).
of the state-action requirement, section 1983 rarely creates
a right of action against private persons. See Aldrich v.
Ruano, 952 F.Supp.2d 295, 301 (D. Mass.
2013). The complaint appears to suggest that
because the attorney defendants were court-appointed, they
acted under color of state law. (See Compl. at 5-6).
However, the mere fact that private attorneys were appointed
to represent civil litigants or criminal defendants does not
implicate state action. See Aldrich, 952 F.Supp.2d
at 301 (“It is well-settled that a lawyer (even a
court-appointed one) does not act under the color of state
law in performing a lawyer's traditional function as
counsel to a party.”). Accordingly, there is no valid
section 1983 claim against the private attorney
against Defendant Lapinski
noted, there are no claims in the complaint against defendant
Lapinski. Furthermore, because he is also a private party, it
is almost certain that there is no valid section 1983 claim
against him. The claims against Lapinski, if any, will be