United States District Court, D. Massachusetts
Brian Johnson, Kelley O'Neil, Christopher Johnson, Minor Child, Plaintiffs,
Town of Duxbury, Matthew Clancy, Defendants.
MEMORANDUM & ORDER
NATHANIEL M. GORTON UNITED STATES DISTRICT JUDGE.
suit, brought under 18 U.S.C. § 1983, arises out of a
dispute in which retired Duxbury police officer Brian Johnson
(“plaintiff” or “Johnson”) alleges
that the Town of Duxbury (Massachusetts) and Chief of Police
Matthew Clancy (“defendants”) violated
plaintiff's federal and state rights under the Fourth
Amendment to the United States Constitution and the
Massachusetts Civil Rights Act, M.G.L. c. 12, §§
11H, 11I. Plaintiff asserts that defendants violated his
civil rights by ordering him to produce his personal phone
records pursuant to an internal affairs (“IA”)
investigation. Plaintiff brings this suit on behalf of
himself and his family members whose phone records were
produced as part of the IA investigation.
Johnson is a retired police officer of the Duxbury Police
Department. Following his resignation in 2016, he brought a
suit under § 1983 on behalf of himself and three family
members, alleging that the Town of Duxbury (“the
Town”) and its Chief of Police Matthew Clancy
(“the Chief”) (collectively referred to as
“defendants”) violated his civil rights under
federal and state law.
November, 2013, following an earlier IA finding of misconduct
against plaintiff, he and his union signed an agreement with
the Town, known as a Last Chance Agreement (“LCA”
or “the Agreement”), whereby plaintiff was
demoted and agreed that there was just cause to dismiss him
from the Duxbury Police Department. The LCA further states
that if Johnson engages in any future serious misconduct, the
Chief of Police has just cause to dismiss him. Termination
pursuant to the LCA was to be unreviewable under the
grievance and arbitration procedures of the current
collective bargaining agreement between the police union and
the Town. The actions of the Town were, however, to remain
reviewable on arbitrary, capricious or substantial evidence
the Fall of 2015, Johnson was contacted by a potential
witness who claimed to have incriminating evidence with
respect to an ongoing murder/robbery investigation in
Marshfield, Massachusetts. Johnson disputes that he spoke to
the witness but does not dispute that he failed to report to
his commanding officer or to any other law enforcement agency
that he received voicemail and text messages from the
witness. Plaintiff thereafter was subpoenaed to testify
before a grand jury regarding the murder investigation but
again failed to report that fact to his superiors. Upon
learning of Johnson's reticence, the Chief instructed his
Deputy to open an investigation into the actions of Johnson
and another officer. During this new IA investigation,
plaintiff was represented by union counsel Kareem Morgan of
the law firm Sandulli Grace, PC.
February, 2016, Chief Clancy issued an order for Johnson to
produce phone records as part of the IA investigation.
Attorney Morgan told the Chief that Johnson would comply with
the order only if it were narrowed in scope to records
“reasonably related and germane” to the
investigation. The Chief delayed issuing the order and his
retained counsel, Fernand Dupere (“Attorney
Dupere”), negotiated with Attorney Alan Shapiro of the
same Sandulli Grace law firm with respect to the scope of the
phone records to be produced. Shapiro agreed to produce
redacted records of Johnson and another officer as part of
the investigation. Chief Clancy issued the revised order for
phone records with which plaintiff complied, albeit
“under protest”. The phone records encompassed
information relating to Johnson and members of his family but
Johnson was the account subscriber for all relevant lines. In
July, 2016, during the pendency of the investigation, Johnson
retired from the Duxbury Police Department. Following his
retirement, he filed this § 1983 suit.
before this Court is defendant's motion for summary
Legal Standard for Summary Judgment
role of summary judgment is to assess the proof in order to
see whether there is a genuine need for trial. Mesnick v.
Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991). The
burden is on the moving party to show, through the pleadings,
discovery and affidavits, that there is “no genuine
dispute as to any material fact and that the movant is
entitled to judgment as a matter of law”. Fed.R.Civ.P.
56(a). A fact is material if it “might affect the
outcome of the suit under the governing law”.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A genuine issue of material fact exists where the
evidence with respect to the material fact in dispute
“is such that a reasonable jury could return a verdict
for the nonmoving party”. Id.
moving party has satisfied its burden, the burden shifts to
the nonmoving party to set forth specific facts showing that
there is a genuine, triable issue. Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). The Court must view
the entire record in the light most favorable to the
nonmoving party and indulge all reasonable inferences in that
party's favor. O'Connor v. Steeves,
994 F.2d 905, 907 (1st Cir. 1993). Summary judgment is
appropriate if, after viewing the record in the nonmoving
party's favor, the Court determines that no genuine issue
of material fact exists and that the moving party is entitled
to judgment as a matter of law. Celotex Corp., 477
U.S. at 322-23.
Defendants' Motion for Summary Judgment
Reasonable Search of Phone Records
contends that defendants' search of his personal phone
records violated his Fourth Amendment rights because
defendants did not have probable cause for the search.
Defendants respond that the standard of review with respect
to a work-related investigation of an employee's personal
phone records is one of reasonableness, not probable cause.
Defendants aver that the search was, in fact, reasonable in
inception and scope because the records were 1) specifically
related to an IA investigation, 2) redacted and 3) limited to
nine phone numbers, all of which were germane to the
employer intrusions of the constitutionally protected privacy
interest of government employees for legitimate
investigations of work-related misconduct are analyzed under
a standard of reasonableness, not probable cause.
O'Connor v.Ortega, 480 U.S. 709, 725
(1987). The subject search must be reasonable in its
inception and scope. Id. at 26. It is
“justified” at inception when there are
reasonable grounds to suspect that the search will reveal
evidence that the employee has engaged in work-related
misconduct. Id. Whether a search is reasonable ...