United States District Court, D. Massachusetts
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
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). 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).
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. 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.
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.
DPH Organization and Management
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).
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).
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).
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).
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).
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,
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).
The Amherst Lab
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).
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. ¶¶
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).
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).
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).
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). 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.).
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).
Sonja Farak's Misconduct and Its Role in Plaintiff's
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).
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).
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).
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. ¶¶
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).
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,