United States District Court, D. Massachusetts
RYAN N. SCEVIOUR, Plaintiff,
COLONEL RICHARD MCKEON, MAJOR SUSAN ANDERSON, and a No. of JOHN DOES and/or JANE DOES, Defendants, and ALI REI, Plaintiff,
COLONEL RICHARD MCKEON, MAJOR SUSAN ANDERSON, and a number of JOHN DOES and/or JANE DOES, Defendants.
OPINION AND ORDER
A. O'Toole, Jr. United States District Judge
plaintiffs in these related cases, Ryan Sceviour and Ali Rei,
are Massachusetts State Police Troopers who allege in
substance that they were unjustly disciplined by superior
officers, the defendants Colonel Richard McKeon, then
Superintendent of the State Police, and Major Susan
Anderson. Sceviour and Rei claim they were
disciplined for refusing to cooperate in the defendants'
conspiracy to alter police reports and state court documents
to omit information that reflected poorly on an arrestee.
Both complaints assert claims for violations of substantive
due process under the Fourteenth Amendment to the United
States Constitution under 42 U.S.C. § 1983 (Count I);
violations of state constitutional rights and the
Massachusetts Civil Rights Act, Massachusetts General Laws
Chapter 12, Section 11H (Count II); civil conspiracy (Count
III); and intentional infliction of emotional distress (Count
IV). Sceviour additionally brings a claim for defamation
(Count V) against all defendants except Major Anderson.
brief, the plaintiffs allege that the defendants used their
supervisory authority to require the plaintiffs to revise
their reports about an arrest of a woman for operating under
the influence of alcohol or drugs, made in the course of
their duties, to omit information that, if publicly known,
would embarrass not only the arrestee but also her family,
including her father, a state court judge.
before the Court are McKeon's motions to dismiss the
complaints of both plaintiffs for failure to state a claim
upon which relief can be granted under Federal Rule of Civil
Procedure 12(b)(6), and Anderson's motion to dismiss the
Rei complaint for failure to state a claim and her motion for
judgment on the pleadings under Federal Rule of Civil
Procedure 12(c) as to the Sceviour complaint.
this Court's subject matter jurisdiction over these two
cases is based on the federal claims asserted, those claims
are addressed first and, as will be seen, exclusively.
Applicable Standards for the Present Motions
order to survive a Rule 12(b)(6) motion to dismiss, “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Legal conclusions and bare
recitals of the elements of a cause of action are
disregarded. Mead v. Indep. Ass'n, 684 F.3d 226,
231 (1st Cir. 2012) (citing Iqbal, 556 U.S. at 678
and Ocasio- Hernández v.
Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011)).
“The remaining factual statements are taken as true,
and the question becomes whether those statements permit a
reasonable inference of liability for the misconduct
alleged.” Id. (citing Iqbal, 556 U.S.
12(c) motion for judgment on the pleadings is “treated
much like a Rule 12(b)(6) motion to dismiss.”
Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26,
29 (1st Cir. 2008). The Court “accept[s] all of the
non-movant's well-pleaded facts as true and draws all
reasonable inferences in [their] favor.” Rezende v.
Ocwen Loan Servicing, LLC, 869 F.3d 40, 42 (1st Cir.
2017) (citation omitted). “A judgment on the pleadings
is only appropriate when ‘it appears beyond a doubt
that the nonmoving party can prove no set of facts in support
of [her] claim which would entitle [her] to
relief.'” Id. (quoting Feliciano v.
State of R.I., 160 F.3d 780, 788 (1st Cir. 1998)).
Substantive Due Process Claims
Process Clause in the Fourteenth Amendment “has both
procedural and substantive components. In its procedural
aspect, due process ensures that government . . . will use
fair procedures.” DePoutot v. Raffaelly, 424
F.3d 112, 118 (1st Cir. 2005). In their motion papers, each
plaintiff has explicitly abjured any procedural due process
claim: “There are no allegations in the complaint that
would invoke the procedural due process clause, nor did the
plaintiff plead such a claim.” (Sceviour Opp'n to
Def. McKeon's Mot. to Dismiss, 4 n.4 (dkt. no. 26); Rei
Opp'n to Def. Anderson's Mot. to Dismiss, 3 n.3 (dkt.
its substantive aspect, due process safeguards individuals
against certain offensive government actions, notwithstanding
that facially fair procedures are used to implement
them.” DuPoutot, 42 F.3d at 118 (citation
omitted). The plaintiffs each allege that the defendants'
actions in using their authority to compel the plaintiffs to
alter their official reports deprived them of substantive due
process. In each of their complaints, the plaintiffs
explicitly allege a civil rights cause of action under 42
U.S.C. § 1983 in Count I. In Count III (captioned
“Civil Conspiracy State and Federal”) they appear
also to allege a conspiracy under federal law to deprive them
of federally guaranteed rights, thus implicitly invoking
§ 1983 again.
is a high threshold for Fourteenth Amendment substantive due
process claims, “lest the Constitution be demoted to
what [the Supreme Court has] called a font of tort
law.” County of Sacramento v. Lewis, 523 U.S.
833, 847 n.8 (1998). There are two aspects to a substantive
due process claim. First, “in a [substantive] due
process challenge to executive action, the threshold question
is whether the behavior of the governmental officer is so
egregious, so outrageous, that it may fairly be said to shock
the contemporary conscience.” Id.
Additionally, a plaintiff must show “not only that the
official's actions shock the conscience, but also that
the official violated a right otherwise protected by the
substantive Due Process Clause.” Martinez v.
Cui, 608 F.3d 54, 64 (1st Cir. 2010) (citations
omitted); Harron v. Town of Franklin, 660 F.3d 531,
536-37 (1st Cir. 2011). Neither element has been plausibly
alleged by the plaintiffs here.
action of a government officer to be conscience-shocking, it
must be “truly outrageous, uncivilized, and
intolerable, ” McConkie v. Nichols, 446 F.3d
258, 260 (1st Cir. 2006) (quoting Hasenfus v.
LaJeunesse, 175 F.3d 68, 72 (1st Cir.1999)), such that
it “can properly be characterized as arbitrary, or
conscience shocking, in a constitutional sense.”
Lewis, 523 U.S. at 847 (citation omitted); see
also Maymi v. Puerto Rico Ports Auth., 515 F.3d 20, 30
(1st Cir. 2008) (“The state conduct itself must be so
brutal, demeaning, and harmful that it is shocking to the
conscience.”). A plaintiff must allege a violation of
personal rights “so severe[, ] so disproportionate to
the need presented, and so inspired by malice or sadism
rather than a merely careless or unwise excess of zeal that
it amounted to a brutal and inhumane abuse of official power
literally shocking to the conscience.” Harron,
660 F.3d at 536 (quoting González-Fuentes v.
Molina, 607 F.3d 864, 881 (1st Cir. 2010)).
“Mere violations of state law, even violations
resulting from bad faith, do not necessarily amount to
unconstitutional deprivations of substantive due
process.” See DePoutot, 424 F.3d at 119
(citation omitted). Nor do claims based on “allegations
of perjury, falsification of documents, and retaliatory
action” suffice for the purposes of a substantive due
process claim under this circuit's case law. See Frei
v. Town of Holland, 212 Fed.Appx. 4, 6 (1st Cir. 2007);
Coyne v. City of Somerville, 972 F.2d 440, 444 (1st
Cir. 1992) (“It is bedrock law in this circuit,
however, that violations of state law-even where arbitrary,
capricious, or undertaken in bad faith-do not, without more,
give rise to a denial of substantive due process under the
gist of the allegations in the two complaints at issue is
that superior officers ordered the plaintiffs to alter
reports or records to delete information that would be
embarrassing to certain other persons. Such actions, if
proven, would fall well short of the conscience-shocking
standard required for a substantive due process claim.
See Cruz-Erazo v. Rivera-Montanez, 212 F.3d 617, 623
(1st Cir. 2000) (holding that allegations that police
officers engaged in a months-long campaign of harassment of