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Penate v. Kaczmarek

United States District Court, D. Massachusetts

January 24, 2019

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 DEFENDANTS HAN, HANCHETT, NASSIF, SALEM, AND FARAK (DKT. NOS. 93 & 124)

          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 (Plaintiff) against fifteen officials at the Department of Public Health (DPH), the Massachusetts State Police, the Attorney General's Office of the Commonwealth (AGO), and the Springfield Police Department (SPD), as well as against the City of Springfield (City).[1] Most of the defendants have moved to dismiss. Because the allegations and defenses are particular to certain groups of defendants, the court divided the defendants into three categories: the SPD police officers and the City; the individuals employed by or affiliated with the AGO; and the individuals associated with DPH 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 and its police officers (Dkt. No. 140). On December 7, 2018, the court allowed two and denied two of the motions to dismiss by the AGO defendants (Dkt. No. 143).

         This memorandum addresses the last group of motions to dismiss: those filed by the individuals affiliated with DPH and its forensic laboratories. Defendants Linda Han, Julie Nassif, James Hanchett, and Sharon Salem, all employees or former employees of DPH (hereinafter, the DPH defendants), move to dismiss Counts II and VIII directed against them for violation of § 1983 and intentional infliction of emotional distress, respectively. Defendant Sonja Farak moves to dismiss Counts I and VIII directed against her for violation of § 1983 and intentional infliction of emotional distress, respectively.[2] All of these defendants argue that the complaint fails to state a claim upon which relief can be granted. Additionally, the defendants argue that they are entitled to qualified immunity. For the reasons that follow, the court will allow the DPH defendants' motion to dismiss as to Han, Nassif, and Salem and deny the motion as to Hanchett, and deny Farak's motion.

         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 the SPD Officers and the City (Dkt. No. 140 at 2-9). Accordingly, the court turns to the allegations against this group of defendants.

         A. DPH Organization and Management

         The Department of Public Health operated a main drug testing facility in Jamaica Plain, called the Hinton Drug Lab (Compl. ¶ 24). In the 1960s, it opened the Amherst Drug Laboratory (Amherst Lab), a satellite facility in the Morrill Science Building on the University of Massachusetts Amherst campus, with the mission of delivering no cost forensic analysis for local law enforcement agencies (Compl. ¶¶ 23-24, 26). Both labs were chronically underfunded and understaffed (Compl. ¶ 26). Budget restrictions often generated back-logs in testing samples and personnel worked hard to reduce the time it took to produce drug certifications (Compl. ¶¶ 32, 33). The protocols for drug testing were intended to be the same for both the Hinton and Amherst facilities (Compl. ¶ 27).

         In 2006, DPH created the Division of Analytical Chemistry. Defendant Julie Nassif (Nassif) was the first director (Compl. ¶ 39). Prior to her appointment as director of the Division of Analytical Chemistry, Nassif had been in charge of the Childhood Lead Screening Lab, the Chemical Terrorism Response Lab, and the Environmental Chemistry Lab (Compl. ¶ 40). She had no academic or work background in forensic chemistry (Compl. ¶ 42). In her role as Director, Nassif supervised the Hinton and Amherst Labs (Compl. ¶ 41). She frequently cancelled meetings she scheduled with the drug lab supervisors and rarely went out to the Amherst Lab (Compl. ¶¶ 43, 45). While the drug lab supervisors regularly evaluated their employees prior to Nassif's appointment as Director, the practice stopped during her tenure (Compl. ¶¶ 46, 48).

         Prior to 2007, each laboratory under Nassif's supervision participated in a quality control and quality assurance group called the QC/QA Group (Compl. ¶ 50). The purpose of the group was to ensure that the laboratories complied with their various accrediting bodies' requirements and audit recommendations (Compl. ¶ 51). The DPH drug labs, however, were not accredited and were not subject to routine audits (Compl. ¶ 52). In 2007, budget cuts resulted in the discontinuation of the QC/QA Group, and the responsibility fell to Nassif to oversee quality assurance and control at the drug labs. She did not give priority to this function (Compl. ¶¶ 56-57).

         In 2009, defendant Linda Han (Han) became the director of the Bureau of Laboratory Sciences (BLS) (Compl. ¶ 58). Eighteen laboratories, including the Hinton and Amherst Labs, were under the oversight of the BLS (Compl. ¶ 59). Like Nassif, Han rarely visited the Amherst Lab (Compl. ¶ 62). However, both Han and Nassif exercised budgetary control over the Amherst Lab. They questioned requests for essential supplies such as paper, chemicals, gloves, and beakers, denied requests to replace older equipment, and did not authorize continuing education opportunities for the chemists in the lab (Compl. ¶¶ 63- 64).

         On May 2, 2011, Nassif sent an email to DPH drug lab employees informing them of her intention to hold monthly meetings to prepare the labs for accreditation (Compl. ¶¶ 97-98). However, Nassif did not follow through with this plan (Compl. ¶ 100). In July 2011, Nassif proposed to her superiors at DPH that the Amherst Lab be closed entirely (Compl. ¶¶ 104-5). The budget passed by the state on October 5, 2011, kept the Amherst Lab open, but with a bare minimum of funds (Compl. ¶ 109).

         On July 1, 2012, the MSP took over operations of the Amherst Lab (Compl. ¶ 165). On August 8, 2012, after the discovery of the misconduct of former chemist Annie Dookhan, [3] the governor of Massachusetts ordered the closure of the Hinton Drug Lab (Compl. ¶ 168). The investigation into Dookhan's malfeasance revealed neglect and mismanagement by DPH supervisors (Compl. ¶ 169). On September 11, 2012, Han resigned her position; on September 12, 2012, Nassif was fired (Compl. ¶ 170).

         B. The Amherst Lab

         A 2002 review by a team from the National Forensic Science Technology Center (NFSTC) of the Amherst Lab's policies and procedures revealed a lack of formal quality systems consistent with standards set by accreditation boards and working groups (Compl. ¶¶ 34, 35). Based on the lab's shortcomings, the NFSTC recommended that the lab develop and implement written protocols for the analysis of substances, peer review or reports, and a proficiency testing program in order to have quality assurance safeguards (Compl. ¶ 36). The NFSTC regarded these recommended changes as essential to maintaining correct and error-free results (Compl. ¶ 37). DPH officials did not act on these recommendations (Compl. ¶ 38).

         In 2008, defendant James Hanchett (Hanchett), who had worked at the Amherst Lab since 1977, became its supervisor (Compl. ¶¶ 65, 66). Hanchett and defendant Sharon Salem (Salem), a chemist and the lab's evidence officer, shared responsibility for assigning work in the Amherst Lab (Compl. ¶¶ 135, 141). As the lab supervisor, Hanchett engaged in very little oversight of his employees: he did not observe or discuss their work, retest samples to check accuracy, or review their notebooks (Compl. ¶¶ 67-70). In four and one-half years as the Amherst Lab supervisor, Hanchett never conducted a performance evaluation of Farak (Compl. ¶¶ 283, 285). Hanchett permitted his employees unfettered access to the entire lab on weekdays and weekends, including to the lab's primary standards (Compl. ¶¶ 72, 73). As many as fifty standards, including a bottle of methamphetamine oil, were kept in an unlocked refrigerator at the Amherst Lab (Compl. ¶¶ 74, 75).

         Shortly after becoming lab supervisor, Hanchett decided to conduct an audit of the lab (Compl. ¶ 85). Defendant Sonja Farak (Farak), who for several years had been stealing in small increments from an opaque bottle of methamphetamine oil in the unsecured refrigerator, attempted to cover her actions by adding water to the oil in the bottle (Compl. ¶¶ 82-83, 86-7). The oil and the water did not mix well (Compl. ¶ 88). On inspection, Hanchett saw that the solution in the methamphetamine oil bottle appeared unusual. He treated the problem as one of a substance that had degraded (Compl. ¶ 89). He extracted what methamphetamine oil he could from the larger bottle and placed it in a tiny vial for future use as a standard (Compl. ¶ 90).

         In 2011, Hanchett would drive to the parent laboratory to meet with Nassif and give her the Amherst Lab's monthly testing report showing how many samples Amherst had analyzed (Compl. ¶ 101). In this period, the Hinton drug lab was experiencing a significant backlog in testing samples (Compl. ¶ 102). To help reduce the backlog, Hanchett would return to the Amherst Lab from these monthly meetings with between 200 and 300 samples for the Amherst chemists to test (id.). As a result, in fiscal year 2011, the Amherst Lab chemists tested, on average, 2052 samples each, as compared to the Hinton drug lab chemists who tested on average 1105 samples each (Compl. ¶¶ 106-07).

         In 2012, Hanchett undertook an inventory of lab standards. He discovered that several were depleted. Some were missing altogether (Compl. ¶ 171). This was because Farak had consumed them (Compl. ¶ 172). Hanchett notified Salem and raised the possibility of wrongdoing (Compl. ¶ 173). Otherwise, Hanchett did not make any report about the missing lab standards, despite having an obligation to do so as a holder of a federal license (Compl. ¶¶ 174, 175). In early 2013, Hanchett found a beaker with liquid and white residue on the edge in a drawer in the lab (Compl. ¶¶ 185, 186). When he confronted Farak with the beaker, she claimed not to know about it (Compl. ¶ 186). Hanchett explained the find by hypothesizing that one of Farak's coworkers had brought a child to the lab, done a science experiment, and mistakenly left the beaker out (Compl. ¶ 187). Actually, Farak had used the beaker to manufacture crack cocaine in the lab for personal consumption (Compl. ¶ 182).

         Plaintiff further alleges that Hanchett and Salem had a policy whereby the chemist discovery packets routinely produced in criminal cases would state that the Amherst Lab was not accredited “at this time, ” but that “[a]ll of our testing procedures performed are the same as in any accredited Drug Analysis Laboratory” (Compl. ¶¶ 177-79). However, a quality assurance audit performed by the MSP found many discrepancies between procedures used by accredited laboratories and those used by the Amherst Lab (Compl. ¶ 176).[4] Among other issues, samples brought to the lab by police officers often arrived in unsealed envelopes which could increase the likelihood of cross-contamination or tampering (Compl. ¶¶ 133-34). Plaintiff alleges that, as evidence officer, Salem knew or should have known how frequently substances arrived at the lab in unsecured condition (id.).

         On the morning of January 18, 2013, Salem discovered that two cocaine samples that had been assigned to Farak for analysis were not in the main evidence room. She promptly informed Hanchett (Compl. ¶ 188). They searched for the samples and found a manila envelope containing their cut-open packaging (Compl. ¶ 189). Hanchett then called the MSP (Compl. ¶ 190).

         C. Sonja Farak's Misconduct and Its Role in Plaintiff's Trial

         Farak began her employment as a chemist for DPH in 2003 (Compl. ¶ 8). She started consuming drugs at work almost immediately. In 2004, Farak began stealing from the Amherst Lab's methamphetamine oil standard (Compl. ¶ 82). In 2008, after Hanchett discovered the problematic bottle of methamphetamine oil, Farak switched to stealing and using other standards that were kept unsecurely in the Amherst Lab, including standards for amphetamine, cocaine, ecstasy, and LSD (Compl. ¶ 91).

         In early 2009, Farak started stealing from samples brought in by police officers for testing (Compl. ¶ 92). See Comm. for Pub. Counsel Servs. v. Attorney Gen., 108 N.E.3d 966, 987 (Mass. 2018). To facilitate this conduct, Farak partially disabled the heat sealer in the Amherst Lab, which allowed her to steal the drugs more easily (Compl. ¶¶ 131, 132). She also began manipulating the testing assignments to gain access to the drugs she favored (Compl. ¶¶ 139, 140). By the end of 2011, Farak was smoking crack cocaine in the Amherst Lab between ten and twelve times a day (Compl. ¶ 138). She stole powder cocaine from samples submitted by police officers, then use the Amherst Lab's equipment to make crack cocaine (Compl. ¶ 180). On one occasion in 2013, Farak left the beaker she had used to make crack cocaine in a drawer where Hanchett later discovered it (Compl. ¶¶ 183-85).

         The SPD made its first controlled buy of heroin from Plaintiff on October 21, 2011 (Compl. ¶ 110). On October 25, 2011, SPD Narcotics Evidence Officer Kevin Burnham brought the two glassine packets purchased from Plaintiff to the lab, along with several evidence packets from unrelated investigations (Compl. ¶¶ 114-15). The SPD made two other controlled buys from Plaintiff. Burnham brought the evidence from those purchases to the Amherst Lab on November 16, 2011 (Compl. ¶¶ 125, 127). Burnham did not heat seal the evidence packets prior to bringing them to the lab (Compl. ¶¶ 128-29). Instead, he used the Amherst Lab's heat sealer, which had been partially disabled by Farak, to seal the packages (Compl. ¶¶ 130-33). Hanchett and Salem assigned Farak responsibility for testing the samples in Plaintiff's case (Compl. ¶ 135). Farak reported testing the samples on December 22, 2011; January 6, 2012; and January 9, 2012 (Compl. ¶ 142). She reported that each sample tested positive for the presence of a controlled substance (Compl. ¶ 143).

         In late 2011, Farak was being treated at ServiceNet, Inc. for drug addiction (Compl. ¶ 144). Her treatment providers had given her diary cards on which to record whether she was able to resist using illegal substances (Compl. ¶¶ 145-46). On December 22, 2011, the first day she tested evidence from Plaintiff's case, Farak wrote on her diary card, “tried to resist using @ work but ended up failing” (Compl. ¶ 146). On January 9, 2012, another day she tested evidence in Plaintiff's case, Farak spent the morning smoking crack (Compl. ¶ 148). That same day, she also tested a police submission of tablets suspected of containing LSD (Compl. ¶¶ 149-50). After testing and concluding that the samples contained LSD, Farak stole some of the tablets, consumed them, and spent the rest of the work day hallucinating (Compl. ¶¶ 150-51).

         Farak issued drug certificates affirming the presence of controlled substances for each of the samples submitted by the SPD as evidence in Plaintiff's case (Compl. ¶ 161). The Hampden County District Attorney's Office presented the drug certificates to the grand jury, which returned an indictment against Plaintiff, charging him with, among other crimes, possession and distribution of Class A and Class B substances (Compl. ¶¶ 161-62).

         On the morning of January 18, 2012, after Hanchett and Salem notified the MSP about their discovery of two open case envelopes on Farak's desk, investigating MSP officers found two more case envelopes for drug samples in a temporary storage locker used by Farak (Compl. ¶¶ 188-91). That day, Farak was at the Hampden County Hall of Justice waiting to testify in a criminal case, having just ingested crack cocaine in the parking garage (Compl. ¶¶ 192-93). The MSP investigators interviewed her about the case envelopes. Farak denied any wrongdoing (Compl. ¶¶ 194-95). At the end of the interview, the MSP impounded Farak's vehicle (Compl. ¶ 196). On January 22, 2013, ...


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