United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING MOTIONS TO DISMISS BY
INDIVIDUAL DEFENDANTS IRWIN, FOSTER, KACZMAREK, AND RAVITZ
(DKT. NOS. 49, 53, 86, & 95)
KATHERINE A. ROBERTSON, U.S. 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 the allegations and defenses are
particular to certain groups of defendants, the court has
divided the defendants into three categories: individual
Springfield police officers and the City of Springfield;
individuals employed by or affiliated with the Massachusetts
Attorney General's Office (AGO); and the individuals
associated with the Department of Public Health and its
forensic laboratories. The court heard argument on the
motions to dismiss over three days. On September 27, 2018,
the court denied the motions to dismiss by the City of
Springfield and its police officers (Dkt. No. 140).
This
memorandum will address those motions to dismiss filed by the
individuals employed by or affiliated with the AGO. Defendant
Massachusetts State Police (MSP) Detective Lieutenant Robert
Irwin (Irwin) moves to dismiss Counts III and VIII directed
against him for violation of § 1983 and intentional
infliction of emotional distress.[2] Defendants Anne Kaczmarek
(Kaczmarek), Kris Foster (Foster), and Randall Ravitz
(Ravitz) (collectively, Defendant Attorneys) move to dismiss
Counts IV and VIII directed against them for violation of
§ 1983 and intentional infliction of emotional
distress.[3] Defendants argue that the complaint fails
to state a claim upon which relief can be granted.
Additionally, Defendant Attorneys argue that they are
entitled to absolute immunity, and Irwin asserts that
qualified immunity insulates him from liability. For the
reasons that follow, the court will allow the motions to
dismiss with respect to Foster and Ravitz, and deny the
others.
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.
Díaz-Nieves v. United States, 858 F.3d 678,
689 (1st Cir. 2017). The following recitation of facts is
drawn from Plaintiff's complaint (Dkt. No. 1). The court
sketched out a broad overview of Plaintiff's allegations
in its earlier memorandum and order regarding the motions to
dismiss by Springfield police officers and the City and
incorporates that overview herein by reference (Dkt. No. 140
at 2-9). Accordingly, the court moves directly to the
allegations relevant to Plaintiff's claims against the
AGO defendants.
Springfield
police officers arrested Plaintiff on November 15, 2011,
after the last of three controlled buys of suspected
narcotics (Compl. ¶¶ 118, 121). After each
transaction, the glassine packets containing the suspected
narcotics were delivered to the Amherst Drug Laboratory (Drug
Lab), which was then operated by the Department of Public
Health (Compl. ¶¶ 23, 127). Defendant Sonja Farak
worked at the Drug Lab as a chemist, along with defendants
James Hanchett (Hanchett) and Sharon Salem (Salem). Hanchett
became the lab supervisor in 2008. Salem was the evidence
officer responsible for work assignments to the Drug Lab
chemists (Compl. ¶¶ 66, 141). Hanchett and Salem
gave Farak the assignment of testing the suspected narcotics
in Plaintiff's case (Compl. ¶ 135). Farak tested the
three samples on three separate dates: December 22, 2011;
January 6, 2012; and January 9, 2012 (Compl. ¶ 142).
Plaintiff
was indicted and charged in thirteen counts with possession
of illegal substances with intent to distribute, distribution
of illegal substances, school zone violations, [4] 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 (Compl. ¶ 162). On February
10, 2012, Plaintiff pled not guilty to the charges against
him (Compl. ¶ 163).
On
January 18, 2013, Salem discovered that cocaine samples
assigned to Farak were not in the evidence room and so
informed Hanchett (Compl. ¶ 188). When Hanchett and
Salem discovered the case envelope for these samples empty on
Farak's desk, Hanchett contacted the MSP to investigate
(Compl. ¶ 190). The MSP discovered other case envelopes
in Farak's storage locker. By the afternoon, they had
spoken to Farak and impounded her car (Compl. ¶¶
191, 194-96). That evening, Ballou and Thomas drafted an
application for a warrant to search Farak's car, and a
clerk issued the warrant (Compl. ¶¶ 197-98).
Early
on September 19, 2013, Ballou and Thomas, with Irwin,
searched Farak's car and seized, among other things, over
300 documents found in the car (Compl. ¶¶ 199,
201). During the search, Irwin spoke with John Verner
(Verner), chief of the AGO's Criminal Bureau (Compl.
¶ 200). Over the next several days, Ballou catalogued
the evidence found in Farak's car (Compl. ¶¶
203, 205-06). Among the documents recovered from the car were
so-called “mental health worksheets.” These were
documents related to Farak's treatment with ServiceNet
for drug addiction and included diary cards on which she
noted her daily drug use (Compl. ¶¶ 144, 146, 201,
203). On January 22, 2013, Farak was arraigned on charges of
tampering with evidence and drug possession (Compl. ¶
212).
Verner
assigned the Farak prosecution to Kaczmarek, an Assistant
Attorney General with the AGO's Enterprise and Major
Crimes Unit. Kaczmarek worked with Irwin, Thomas, and Ballou
on the Farak case (Compl. ¶ 204). Plaintiff alleges that
together, Kaczmarek, Irwin, Ballou, and Thomas conspired to
conceal evidence probative of the extent and timing of
Farak's drug abuse, including the mental health
worksheets (Compl. ¶ 207). On January 23, 2013, Ballou
prepared an affidavit in support of an application for a
warrant to search a tote bag found at Farak's work
station (Compl. ¶ 205). Despite a recommendation from
Verner that Ballou list the mental health worksheet as
“personal papers” found during the search of
Farak's car, Ballou did not describe these documents in
the warrant application (Compl. ¶¶ 205-06). In
preparing the return for the warrant that authorized the
search of Farak's vehicle, Thomas classified the
ServiceNet mental health worksheets that Farak used as a part
of her addiction treatment as “assorted lab
paperwork” (Compl. ¶ 210). Thomas used the same
misleading description in his January 24, 2013 police report
(Compl. ¶ 211).
On
January 24, 2013, Ballou met with a Hampden County Assistant
District Attorney (ADA) who reported that Farak might have
tampered with oxycodone pills seized in a separate
investigation (Compl. ¶¶ 213-14). Ballou also
learned about a sample of cocaine that Farak tested in 2005
that came back to an ADA four grams lighter than when it was
sent to the Drug Lab (Compl. ¶¶ 214-15). In
response, Kaczmarek wrote, “Please don't let this
get more complicated than we thought. If she were suffering
from a back injury-maybe she took some oxys?” (Compl.
¶ 216).
In
February 2013, Ballou sent an email to Kaczmarek to which
were attached scanned copies of Farak's mental health
worksheets. He copied Irwin and Verner on the email (Compl.
¶ 220). The email had the subject heading “Farak
Admissions” and stated, “Here are those forms
with the admissions of drug use I was talking about. There
are also news articles with handwritten comments about other
officials being caught with drugs. All of these were found in
her car inside of the lab manila envelopes” (Compl.
¶ 220). The documents attached to the emails included
two “Emotion Regulation Worksheets, ” a list of
the costs and benefits of resisting or engaging in
“target behavior, ” and one ServiceNet diary card
(Compl. ¶ 221). Ballou did not attach a second diary
card, which stated, “Shame at work. Going to use
phentermine, but when I went to take it, I saw how little (v.
little) there is left = ended up not using” (Compl.
¶¶ 223-24). Kaczmarek never reviewed the originals
of the documents or any other evidence seized from
Farak's car (Compl. ¶ 222).
On
March 27, 2013, Verner sent a letter to each of the
Commonwealth's District Attorneys providing, in part, as
follows:
This Office is investigating Sonja Farak, a chemist who
conducted analysis of suspected narcotic samples out of the
Amherst Drug Laboratory . . . . During our investigation,
this Office has produced or otherwise come into possession of
information, documents, and reports. Pursuant to this
Office's obligation to provide potentially exculpatory
information to the District Attorneys as well as information
necessary to your Offices' determination about how to
proceed with cases in which related narcotics evidence was
tested at the Amherst Laboratory, please find the below
listed materials . . .
(Compl. ¶ 232).
Farak's
mental health worksheets were not included in the materials
listed in Verner's letter. That same day, Kaczmarek
submitted a Prosecution Memo to her supervisors, including
Verner, in which Kaczmarek noted that she had not submitted
the mental health worksheets to the grand jury. Verner wrote
back to Kaczmarek on a copy of the memorandum, noting that
the mental health worksheets had not yet been turned over to
the DAs (Compl. ¶ 236).
Kaczmarek
provided copies of the mental health worksheets to
Farak's defense attorney (Compl. ¶ 239). However,
Kaczmarek told defense counsel that she regarded the
worksheets as privileged and, for this reason, the documents
would not be provided to so-called “Farak
[D]efendants” (Compl. ¶ 239), meaning individuals
prosecuted for crimes by the DAs where Farak had conducted
the drug analysis.
On July
15, 2013, Plaintiff, a Farak Defendant, filed a pretrial
motion to dismiss the charges against him based in large part
on the misconduct of Farak at the Drug Lab (Compl. ¶
242). He sought discovery from the AGO concerning Farak's
arrest and prosecution (Compl. ¶ 240). None was
forthcoming (Compl. ¶ 241). Massachusetts Superior Court
Judge Mary-Lou Rup scheduled 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
(Compl. ¶ 244). When the ADA assigned to Plaintiff's
criminal case sought exculpatory evidence from the AGO, the
AGO replied that all relevant evidence had been turned over
(Compl. ¶ 246). On August 23, 2013, in anticipation of
the hearing, Plaintiff served subpoenas on Kaczmarek and
Ballou, seeking all AGO intra and inter office communications
regarding deficiencies in the operations of the Drug Lab and
evidence-tampering from January 18, 2013 to the present
(Compl. ¶ 249). The mental health worksheets, as well as
the email from Ballou to Kaczmarek entitled “Farak
Admissions, ” were responsive to the subpoena (Compl.
¶ 250).
The
AGO's Appeals Division handled subpoenas received by its
attorneys and MSP officers assigned to work at the AGO. In
2013, Randall Ravitz was the head of the Appeals Division. He
appointed Kris Foster, who had recently been hired by the
AGO, to respond to Plaintiff's subpoenas to Kaczmarek and
Ballou (Compl. ¶¶ 251-54). Ravitz provided Foster
with templates for drafting a motion to quash the subpoenas
(Compl. ¶¶ 259-60).[5]
On July
25, 2013, Judge Kinder ordered the consolidation of fourteen
unrelated cases seeking post-conviction relief for purposes
of a September 9, 2013 evidentiary hearing concerning the
timing and scope of Farak's misconduct at the Drug Lab
(Compl. ¶ 247). After Foster requested a postponement of
the evidentiary hearing in Plaintiff's case, the parties
agreed that the evidence adduced in the proceedings before
Judge Kinder would be relied on to adjudicate Plaintiff's
motion to dismiss (Compl. ¶ 262). Ballou received a
subpoena duces tecum ordering “the
production of all documents and photographs pertaining to the
investigation of Sonja Farak and the Amherst Drug Lab”
in advance of the evidentiary hearing before Judge Kinder
(Compl. ¶ 263). Foster was assigned responsibility for
responding to this subpoena (Compl. ¶ 265). In the
course of preparing the AGO's response to various
subpoenas and motions, Foster never reviewed the files in
Kaczmarek's or Ballou's possession (Compl.
¶¶ 256, 258).
Several
meetings were held in the AGO, with Foster, Kaczmarek,
Ravitz, and Irwin in attendance, to discuss a response to the
Ballou subpoena. Prior to a meeting on September 3, 2013,
Kaczmarek sent an email stating that, though she did not
think Judge Kinder would allow a motion to quash, she was
confident that Ballou would be “pretty unhelpful in
what the judge is trying” to get to the bottom of
(Compl. ¶ 266). Ravitz replied that if they could not
get the subpoena quashed, they should work to get “its
scope limited so as to preclude certain types of
questions” (Compl. ¶ 269). At a meeting the
following day, Kaczmarek disclosed the existence of
Farak's mental health worksheets (Compl. ¶ 273). She
took the position that the documents were irrelevant to
hearings in the Farak Defendant cases (Compl. ¶ 274).
On
September 6, 2013, Foster moved to quash the subpoenas or, in
the alternative, to restrict their scope (Compl. ¶
275-76). The AGO's motion for a proposed protective order
included precluding the production of “information
concerning the health or medical or psychological treatment
of individuals” (Compl. ¶ 276). On the same day,
Plaintiff filed motions to compel the production of documents
in third party possession, including the AGO and DPH, at the
hearing (Compl. ¶ 278). Foster prepared oppositions to
these motions, which Ravitz reviewed before Foster filed them
(Compl. ¶ 314-15).
Plaintiff
alleges that, in preparing for the hearing before Judge
Kinder, Irwin and Foster instructed Ballou to conceal the
existence of the mental health worksheets (Compl. ¶
286). On September 9, 2013, Judge Kinder denied the AGO's
motion to quash with respect to testimony by Ballou. He
ordered Foster to review Ballou's file and submit for his
in camera review any documents that had not yet been
disclosed (Compl. ¶¶ 287-89). During Ballou's
testimony at the hearing, he was asked about the evidence
seized by the MSP from Farak's vehicle. He represented to
the court that crime scene services photographed every piece
of evidence at the time of seizure (Compl. ¶ 293).
Ballou, however, knew that the mental health worksheets had
not been photographed by crime scene services (Compl. ¶
294).
After
the hearing, Foster consulted with Kaczmarek and Ravitz about
Judge Kinder's order to submit documents for in
camera review (Compl. ¶ 296). Kaczmarek compared
the papers in Ballou's investigative file to her trial
binder (Compl. ¶ 302). She also scheduled a meeting with
Ballou to discuss his testimony, his file, and Judge
Kinder's order (Compl. ¶¶ 302-03). Although
Kaczmarek knew that the mental health worksheets had not been
produced to either the DAs or to Plaintiff in response to his
subpoena, Kaczmarek advised Foster that there were no
additional documents in Ballou's file to produce (Compl.
¶¶ 303-04).
Foster
subsequently sent a letter to Judge Kinder. The letter
stated:
On September 9, 2013, pursuant to a subpoena issued by
defense counsel, you ordered the Attorney General's
Office to produce all documents in Sergeant Joseph
Ballou's possession that the Attorney General's
Office believes to be privileged by September 18, 2013, to be
reviewed by your Honor in camera. After reviewing Sergeant
Ballou's file, every document in his possession has
already been disclosed. This includes grand jury minutes and
exhibits, and police reports. Therefore, there is nothing for
the Attorney General's Office to produce for your review
on September 18, 2013. Please do not hesitate to contact me
should your [sic] require anything further.
(Compl. ¶ 305). The letter closed, “Sincerely,
” followed by Foster's signature and phone number
(Compl. ¶ 305). Foster did not personally review the
file before she sent the letter to Judge Kinder (Compl.
¶ 308).
Plaintiff's
counsel also sent an email to Foster requesting permission to
review all of the evidence seized from Farak's car
(Compl. ¶ 309).[6] Kaczmarek took the position that the
evidence was only relevant to the prosecution of Farak.
Foster denied the request on this basis (Compl. ¶¶
311-12). On October 1, 2013, Plaintiff filed a motion to
inspect the physical evidence in the Farak prosecution
(Compl. ¶¶ 313-14). Foster opposed this motion as
well, arguing, with Ravitz's approval, 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 supposition that a third party had knowledge of
Farak's misconduct prior to her arrest (Compl.
¶¶ 314-17).[7]
On
October 2, 2013, the parties appeared before Judge Kinder for
argument on the discovery motions (Compl. ¶ 321). The
judge questioned Foster about the documents Plaintiff was
seeking. He asked whether Foster had reviewed Farak's
personnel file or the physical evidence seized during the
search of Farak's car or the AGO's intra-office
correspondence (Compl. ¶¶ 322, 325, 328). Foster
admitted that she had not personally looked at any of this
information. She represented that her “office”
was confident that everything relevant had been turned over
(Compl. ¶¶ 321-31). She characterized
Plaintiff's requests as a “fishing
expedition” (Compl. ¶ 330). She assured the court
that there was “no smoking gun” (Compl. ¶
332).
The
court denied most of Plaintiff's motions based largely on
the AGO assurances that there was nothing else relevant to
produce (Compl. ¶¶ 323, 326). Judge Kinder did
allow Plaintiff's motion with respect to some materials
in the AGO's possession (Compl. ¶ 336). In response
to this order, Foster and Ravitz filed a long motion for
clarification asserting, among other things, that the court
should accept the AGO's representations about work
product protections of its materials (Compl. ¶¶
337-38). Judge Kinder ultimately held that the AGO did not
have to produce any of its internal correspondence (Compl.
¶ 340). Thereafter, on November 4, 2013, Judge Kinder
denied Plaintiff's motion to dismiss the indictment on
the grounds that the evidence indicated that Farak's
misconduct in the Drug Lab commenced after the testing of the
samples Plaintiff allegedly sold (Compl. ¶¶
341-42).
On
November 22, 2013, in advance of Plaintiff's trial, the
prosecuting ADA filed a motion in limine to preclude
Plaintiff from arguing that Farak was engaged in misconduct
when she tested the drug samples in Plaintiff's case. On
November 25, 2013, Foster (with Ravitz's approval) filed
a motion to quash Plaintiff's subpoenas to Kaczmarek and
Ballou, as well as to relieve the AGO of any further
obligation to produce health or medical treatment records of
individuals or internal AGO emails (Compl. ¶¶
345-46, 349). Foster argued again that Plaintiff was on a
groundless fishing expedition when he sought evidence to show
that Farak's misconduct dated “back much further
than the roughly four months before Farak's arrest that
the AGO alleges” (Compl. ¶ 347). On December 4,
2013, the trial judge granted the ADA's and the AGO's
motions (Compl. ¶ 351).
Plaintiff's
trial began on December 9, 2013 (Compl. ¶ 352). The jury
found Plaintiff guilty of a single count of distribution of a
class A substance (Compl. ¶ 376). On December 16, 2013,
Plaintiff was sentenced to five to seven years in state
prison (Compl. ¶ 377).
On
January 6, 2014, Farak pled guilty to criminal charges
stemming from misconduct in the Drug Lab (Compl. ¶ 381).
On July 30, 2014, Plaintiff's counsel, in a separate and
unrelated case, obtained a court order to inspect the
“assorted lab paperwork” that had been seized
from Farak's car eighteen months earlier (Compl. ¶
382). When counsel reviewed the documents on October 30,
2014, he discovered Farak's mental health worksheets
(Compl. ¶ 383). On November 1, 2014, he sent a letter to
the AGO about the evidence that had not previously been
disclosed (Compl. ¶ 384). On November 13, 2014, Verner
finally sent copies of all of the documents that had been
seized from Farak's car, including Farak's mental
health worksheets, to the Commonwealth's DAs (Compl.
¶ 385).
On May
21, 2015, Plaintiff filed a motion for new trial and a motion
to dismiss the indictment (Compl. ¶ 386).
Plaintiff's motions were consolidated with motions for
post-conviction relief filed by other Farak Defendants that
were assigned to Massachusetts Superior Court Judge Richard
Carey for hearing. In connection with the hearing before
Judge Carey, Plaintiff and other Farak Defendants sought
evidence of prosecutorial misconduct from the AGO (Compl.
¶ 391). The AGO opposed this request, stating that:
The defendants' proposed claim of prosecutorial
misconduct based on actions by the Attorney General's
Office fails for the very simple fact that the AGO is not the
prosecutor of any of these cases. Certainly, the AGO
prosecuted Sonja Farak; but this is not Farak's case.
Instead, in these cases the AGO was a non-party from which
the defendants previously sought expansive post-conviction
discovery. In that capacity, the AGO was well supported by
case law in presenting arguments opposing the proposed
discovery requests, just as any other non-party might do.
(Compl. ¶ 393).
Judge
Carey convened a six-day hearing into the Farak
Defendants' motions in December 2016 (Compl. ¶ 394).
On June 26, 2017, Judge Carey allowed Plaintiff's motion
to dismiss the indictment against him with prejudice (Compl.
¶ 395). Judge Carey's ruling was based in
significant part on his finding that Foster and Kaczmarek had
deliberately withheld exculpatory evidence that
Plaintiff's counsel had specifically requested. On June
27, 2017, Plaintiff was released from custody (Compl. ¶
397).
On
September 5, 2017, Plaintiff filed this case against the
defendants for civil rights violations based on his
allegations of wrongdoing during the investigation of Farak
and his trial, as well as what Plaintiff ...