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Penate v. Kaczmarek

United States District Court, D. Massachusetts

September 27, 2018

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.

          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)

          KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE

         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) 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

         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 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 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 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 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 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 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. ¶¶ 360-61). 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. 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. ¶¶ 113-14). 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 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 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 ...


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