United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS TO
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE.
civil rights action, Plaintiff Leon Stuart (“Officer
Stuart”), a former Gloucester police officer and former
president of the Gloucester Police Department
(“GPD”) union, brings claims against the City of
Gloucester, John McCarthy (“Chief McCarthy”),
Chief of the GPD, and a former colleague, Lieutenant Jeremiah
Nicastro (“Lt. Nicastro”) following the
termination of his employment. Officer Stuart alleges that Chief
McCarthy and Lt. Nicastro (together,
“Defendants”) (1) violated his “right to
free speech, right to participate in concerted union
activity, right to Procedural and Substantive Due Process,
right to continued employment and the right to petition and
seek redress from Governmental abuse without
retaliation” in contravention of 42 U.S.C. § 1983
(“Section 1983”); (2) violated his “right
to free speech, protected right to participate in union
activity, right of continued employment and Due Process of
law” in violation of the Massachusetts Civil Rights Act
(“MCRA”), Mass. Gen. Laws. ch. 12, §§
11H, 11I; and, (3) intentionally inflicted emotional
distress. [ECF No. 1 (“Complaint” or
“Compl.”) ¶¶ 103, 112-19]. Currently
pending before the Court are Defendants' motions to
dismiss the claims against them pursuant to Federal Rule of
Civil Procedure 12(b)(6). [ECF Nos. 13, 15]. For the reasons
set forth below, Chief McCarthy's motion to dismiss [ECF
No. 12] is GRANTED in part and DENIED in
part and Lt. Nicastro's motion to dismiss [ECF No. 14] is
following facts are drawn from the Complaint, the
well-pleaded allegations of which are taken as true for the
purposes of evaluating the motion to dismiss. See Ruivo
v. Wells Fargo Bank, N.A., 766 F.3d 87, 90 (1st Cir.
2014). The Court also considers documents attached to the
Complaint, which are incorporated by reference into the
Complaint. See Watterson v. Page, 987 F.2d 1, 3 (1st
2016, Officer Stuart became the local union president for the
GPD and represented a bargaining unit of 45 employees.
[Compl. ¶ 9]. For the preceding nine years, he had held
other leadership roles in the union. [Id.].
11, 2017, Officer Stuart met with Donna Leete, the Director
of Human Resources for the City of Gloucester
(“Director Leete”), in his capacity as union
president. [Id. ¶ 19]. Officer Stuart sought
the meeting with Director Leete to discuss concerns about
inappropriate behavior he had witnessed at a wake for a
former colleague on May 2, 2017 and to ensure that the City
of Gloucester would take appropriate disciplinary action.
See [id. ¶¶ 12-19]. During the
meeting, both Director Leete and Officer Stuart heard
Lieutenant David Quinn (“Lt. Quinn”), who had
been involved in the incident at the wake, and Lt. Nicastro
eavesdropping outside the door to Director Leete's
office. [Id. ¶ 20]. When Director Leete opened
the door, both Lt. Nicastro and Lt. Quinn quickly left the
the meeting, union counsel sent a letter to Director Leete
expressing concern that Lt. Quinn and Lt. Nicastro's
behavior was intended to intimidate Officer Stuart and other
union members and to interfere with union activity.
[Id. ¶ 21; ECF No. 1-1]. Union counsel
requested that the City of Gloucester investigate the
incident. [Compl. ¶ 21].
29, 2017, Chief McCarthy notified Officer Stuart that he was
under investigation after “formal complaints from two
ranking officers of this department” had been lodged
concerning the events of May 11, 2017. [Id. ¶
22; ECF No. 1-2]. The notice indicated that Chief McCarthy
was also investigating “the dissemination of these
false accusations to all patrolmen in this department and to
the Gloucester Daily Times Reporter Ray Lamont.” [ECF
No. 1-2]. The notice ordered Officer Stuart to respond to a
series of questions and stated that the investigation
“could result in disciplinary action against
you.” [Compl. ¶¶ 23-24; ECF No. 1-2]. Officer
Stuart responded to Chief McCarthy's questions on July
13, 2017. [Compl. ¶ 26; ECF No. 1-3]. Officer Stuart
also filed a complaint against Chief McCarthy and the City of
Gloucester with the Department of Labor Relations. [Compl.
Stuart experienced emotional distress as a result of the
threat of discipline and the potential for the loss of
employment. [Id. ¶ 27]. At some time after June
29, 2017, Officer Stuart was placed on Injured on Duty
(“IOD”) leave “as a result of the
significant stress he was experiencing at work.”
[Id.]. Officer Stuart was cleared by his physician
to return to work on July 20, 2017. [Id. ¶ 28].
Chief McCarthy and the City of Gloucester denied Officer
Stuart's return to work without further documentation.
[Id. ¶ 29]. On July 20, 2017, union counsel
emailed Chief McCarthy and Director Leete regarding the
department's refusal to allow Officer Stuart to return to
work and stated that doing so in close temporal proximity to
the filing of a Department of Labor complaint “raises
the specter of retaliation.” [Id. ¶¶
30-31; ECF No. 1-4]. It is not clear when Officer Stuart was
permitted to return to work and under what circumstances.
September 28, 2017, Officer Stuart wrote to Gloucester Mayor
Romeo Theken to voice the union's concerns with an
ongoing audit process at the GPD. [Compl. ¶ 32; ECF No.
December 12, 2017, Officer Stuart filed a written report with
Chief McCarthy concerning improper orders he had received
from his immediate supervisors, Sergeant Christopher Frates
(“Sgt. Frates”) and Lt. Nicastro, on November 30
and December 1, 2017. [Compl. ¶ 34; ECF No. 1-6]. On
November 30, 2017, Officer Stuart was dispatched in response
to a call reporting an unwelcome guest at a residence.
[Compl. ¶ 35]. The female caller explained to Officer
Stuart that she wanted the unwelcome male guest to leave but
she did not provide enough information to support criminal
charges or seem willing to press charges. [Id.
¶¶ 36-37]. Officer Stuart called a cab to remove
the unwelcome guest. [Id. ¶¶ 37-38]. Sgt.
Frates arrived at the scene before the cab arrived and
ordered Officer Stuart to arrest the unwelcome guest.
[Id. ¶ 38]. Officer Stuart complied and
arrested the unwelcome guest for disorderly conduct.
[Id. ¶ 39]. The next day, December 1, 2017, Lt.
Nicastro told Officer Stuart to change the arrest report from
the night before to state that Officer Stuart was unable to
complete his interview of the arrested person, which would
allow additional changes to be made to the report.
[Id. ¶¶ 40-41]. Officer Stuart's
report to Chief McCarthy on December 12, 2017 stated that he
believed that it was wrong to make the November 30, 2017
arrest. [Id. ¶ 43; ECF No. 1-6].
Stuart also formally complained to Chief McCarthy about
another arrest report that was changed by Lt. Nicastro around
December 2, 2017, which resulted in an investigation of Lt.
Nicastro's conduct. See [Compl. ¶¶
45-55]. On December 2, 2017, Officer Stuart, Officer
Christopher Liacos (“Officer Liacos”), Sergeant
Jerome Ciolino, and Lt. Nicastro responded to a complaint of
an alleged assault. [Id. ¶ 46]. Officers Stuart
and Liacos interviewed the caller and his wife, Mr. and Mrs.
L., who alleged that they woke up to the blankets being
pulled off them and their seven-year old daughter by Mr. M.,
who lived with them. [Id. ¶¶ 47-48]. Mrs.
L. stated that “she noticed her daughter's
nightgown was pulled up, but she had not actually seen Mr. M.
move her daughter's nightgown or touch any portion of her
daughter's body.” [Id. ¶ 49].
reviewing case law and learning that “. . . rubbing of
the abdomen is considered indecent assault and battery,
” Lt. Nicastro changed Officer Liacos's report to
state that Mr. M. had touched the daughter's abdomen
while pushing up her nightgown. [Id. ¶¶
50-51]. Mr. M. was thereafter charged with indecent assault
and battery on a child under fourteen. [Id. ¶
Officer Stuart's report to Chief McCarthy of Lt.
Nicastro's actions, the City of Gloucester hired Alfred
Donovan (“Mr. Donovan”) to conduct an independent
investigation. [Id. ¶¶ 54-55]. Officer
Stuart was interviewed as part of this investigation, but his
testimony was not included in the final report, which was
issued in February 2018. [Id. ¶¶ 55-56;
ECF No. 1-7]. Lt. Nicastro admitted to “amending”
the arresting officer's report and changing the charge
from domestic assault and battery to indecent assault and
battery. [Compl. ¶ 57].
2017 Incident, Termination, and Lawsuit
December 28, 2017, Officer Stuart was involved in an
altercation with an individual named Shawn Bartholomew
(“Mr. Bartholomew”) while off-duty. [Id.
¶¶ 58-62]. Officer Stuart observed Mr. Bartholomew
run a stop sign and travel at 40mph in a 25mph zone.
[Id. ¶¶ 59-60]. Officer Stuart directed
the driver of the car he was in to follow Mr.
Bartholomew's vehicle, and once stopped, identified
himself to Mr. Bartholomew as a GPD officer. [Id.
¶ 62]. Officer Stuart told Mr. Bartholomew that he would
be issued a citation and instructed Mr. Bartholomew to return
to his vehicle to wait for a GPD marked car to arrive, as
Officer Stuart did not have a citation book on him.
[Id. ¶¶ 62-63].
told that a GPD marked car was en route, Mr. Bartholomew
“suddenly moved toward” Officer Stuart and a
physical struggle between the two men ensued. [Id.
¶ 66]. When the GPD marked car arrived, Mr. Bartholomew
was arrested, taken into custody, and issued a citation.
[Id. ¶¶ 67-68]. Officer Stuart's
shoulder was injured in the altercation, and he was placed on
IOD. [Id. ¶ 69]. The altercation between
Officer Stuart and Mr. Bartholomew was captured on video.
[Id. ¶ 76].
February 21, 2018, Chief McCarthy notified Officer Stuart in
writing that his actions on December 28, 2017 were being
investigated by the GPD. [Id. ¶¶ 70-71;
ECF No. 1-8]. Mr. Donovan was again hired to conduct this
investigation. [Compl. ¶¶ 55, 72]. According to the
Complaint, Mr. Donovan did not have the licenses needed to
conduct either this investigation or the earlier
investigation into Lt. Nicastro. [Id. ¶ 73].
February 28, 2018, Officer Stuart was interviewed by Mr.
Donovan. [Id. ¶ 78]. Despite multiple requests,
Officer Stuart and his counsel did not receive a copy of the
video of the December 28, 2017 incident in advance of, or
during, the interview. [Id. ¶¶ 76-78].
Officer Stuart and his counsel also sought to learn who
initiated the complaint against Officer Stuart and voiced to
the City of Gloucester their concern about the timing of the
investigation and a possible connection to Officer
Stuart's union activity. [Id. ¶¶
March 28, 2018, Officer Stuart filed a “criminal
complaint form” with the Office of the Attorney General
that named Mr. Donovan and Lt. Nicastro as the subjects of
the complaint. [Id. ¶ 84; ECF No. 1-10]. On
April 16, 2018, Officer Stuart emailed State Police Trooper
Baker, who worked in the Office of the Attorney General, and
stated that he believed that he was being retaliated against
for reporting incidents involving other GPD officers. [Compl.
April 13, 2018, Officer Stuart was notified that his
disciplinary hearing would be held on April 18, 2018.
[Id. ¶ 85]. Before April 18, Officer Stuart
received Mr. Donovan's report, which Officer Stuart
believed to be incomplete because it did not contain an audio
tape or transcript of several witness interviews, including
the interview of Mr. Bartholomew. [Id. ¶ 87].
8, 2018, Officer Stuart notified the City of Gloucester,
Chief McCarthy, and Mayor Theken that he intended to pursue
an action under the Massachusetts Whistleblower Protection
Act and under state and federal civil rights laws for
“retaliation for objecting to and refusing to engage in
activities protected by state law and for reporting and/or
objecting to matters that he reasonably believed to be
violations of law or threats to public safety.”
[Id. ¶ 88; ECF No. 1-12]. The notice stated
that Officer Stuart “has been subjected to repeated
threats, intimidation, and coercion by multiple
members” of the GPD. [Compl. ¶ 89].
15, 2018, the City of Gloucester conducted a disciplinary
hearing regarding Officer Stuart's actions on December
28, 2017. [Id. ¶ 90]. At the hearing, Chief
McCarthy testified that Mr. Batholomew had not made a
complaint against Officer Stuart and that it was Chief
McCarthy who decided to look into the incident after he was
contacted by a reporter from the Gloucester Daily Times.
[Id. ¶¶ 91-93].
19, 2018, Officer Stuart was notified that he was being
terminated from his position at the GPD, effective
immediately. [Id. ¶ 97]. The termination notice
stated that Officer Stuart was being terminated
“[b]ased upon the above findings of several policy
violations, including the use of unnecessary and unreasonable
force and the inaccurate reporting of the facts of a physical
altercation he initiated on December 28, 2017 . . . .”
[Id.]. The next day, Chief McCarthy posted a notice
on the “Roll Call Board” of the GPD, which
informed GPD employees of Officer Stuart's termination
and stated that any “police interaction” with
Officer Stuart needed to be vetted by Chief McCarthy or
Lieutenant Fitzgerald. [Id. ¶ 98]. Similar
notices had not been posted when other GPD officers were
terminated. [Id. ¶ 99].
August 31, 2018, Officer Stuart filed the instant Complaint
alleging violations of his constitutional rights and
retaliation. See generally [Compl.]. On November 19,
2018, the City of Gloucester answered the Complaint, and
Chief McCarthy and Lt. Nicastro filed motions to dismiss,
which were largely duplicative of each other. See
[ECF Nos. 11-15]. On December 17, 2018, Officer Stuart
opposed both motions to dismiss. See [ECF Nos.
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), the Court must accept as true all well-pleaded
facts, analyze those facts in the light most favorable to the
plaintiff's theory, and draw all reasonable inferences
from those facts in favor of the plaintiff. United States
ex rel. Hutcheson v. Blackstone Med., Inc., 647 F.3d
377, 383 (1st Cir. 2011). While detailed factual allegations
are not required, the complaint must set forth “more
than labels and conclusions, ” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007), and it must contain
“factual allegations, either direct or inferential,
respecting each material element necessary to sustain
recovery under some actionable legal theory, ”
Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir.
2008) (citing Centro Médico del Turabo, Inc. v.
Felicano de Melecio, 406 F.3d 1, 6 ...