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Stuart v. City of Gloucester

United States District Court, D. Massachusetts

July 15, 2019

LEON STUART, Plaintiff,
v.
CITY OF GLOUCESTER, CHIEF JOHN MCCARTHY, and LIEUTENANT JEREMIAH NICASTRO, in their Official and Individual Capacities, Defendants.

          MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS TO DIMISS

          ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE.

         In this 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.[1] 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.[2] [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 GRANTED.

         I. BACKGROUND

         The 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 Cir. 1993).

         Union Activity

         In 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.].

         On May 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 area. [Id.].

         Following 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].

         On June 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. ¶ 25].

         Officer 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.

         On 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. 1-5].

         Whistleblowing Activity

         On 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].

         Officer 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].

         After 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. ¶ 53].

         Following 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].

         December 2017 Incident, Termination, and Lawsuit

         On 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].

         When 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].

         On 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].

         On 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. ¶¶ 81-83].

         On 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. ¶ 86].

         On 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].

         On May 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].

         On May 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].

         On June 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].

         On 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. 18-21].

         II. LEGAL STANDARD

         On a 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 ...


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