Penate v. Kaczmarek

          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 ...