United States District Court, D. Massachusetts
MEMORANDUM & ORDER
WILLIAM G. YOUNG, DISTRICT JUDGE.
and Christina Wolski (collectively, "the Wolskis")
filed a complaint in this Court against individual officers
of the Gardner City Police Department (the "Gardner
Police") and the Massachusetts State Police Department
(the "State Police"), as well as against the
agencies themselves. See Verified Compl. Jury Demand
("Original Compl."), ECF No. 1.; First Am. Verified
Compl. Jury Demand ("Am. Compl."), ECF No. 30. The
Wolskis alleged that the State Police are liable under
section 2 of the Massachusetts Tort Claims Act (chapter 258
of the Massachusetts General Laws) for "fail[ing] to
adequately [train or] supervise their respective
employees" who then committed intentional torts against
the Wolskis (count III). Id. ¶¶ 43-44,
48-49. The State Police also construe the Wolskis'
amended complaint as alleging an intentional infliction of
emotional distress claim against them (count V). See
Mem. Law Supp. Def. Mass. State Police Dep't Mot. Dismiss
Pis.' First Am. Verified Compl. ("Mem.
Dismiss'') 3 n.l, ECF No. 32.
State Police seek dismissal under Federal Rule of Civil
Procedure 12(b)(1) and 12(b)(6) of all claims against them,
arguing that they enjoy sovereign immunity and, moreover,
that the Wolskis have failed to state actionable claims.
See id. at 1-2. For the following reasons, the Court
GRANTS the State Police's motion to dismiss for lack of
subject matter jurisdiction, ECF No. 31. Accordingly, the
Court does not reach the State Police's arguments about
whether the Wolski's amended complaint states an
plaintiff, Joseph Wolski ("Officer Wolski"), was at
all relevant times "a police officer employed by the . .
. [Gardner Police]." Am. Compl. ¶ 9. On August 3,
2016, while "on duty and on patrol," Officer Wolski
received a call from his co-worker, the defendant Eric
McAvene ("Lieutenant McAvene"),  telling him
"to return to the [Gardner Police] station for an urgent
meeting." Id. ¶ 10. When he arrived at the
station, the Lieutenant McAvene and defendants Daniel
Wildgrube ("Trooper Wildgrube"), Michael Travers
("Trooper Travers"), and Matthew Prescott
("Trooper Prescott") (collectively, the
"Trooper Defendants") met Officer
Wolski. Id. ¶ 13. They
"escorted Officer Wolski . . . into a windowless back
room typically used for briefing officers prior to conducting
raids (the 'briefing room')." Id.
¶ 14. Lieutenant McAvene represented to Officer Wolski
that defense counsel for a suspect in a homicide
investigation on which Officer Wolski worked had subpoenaed
the Gardner Police for all "investigation-related
communications." Id. ¶¶ 11-12, 16
(emphasis deleted). Though the individually named officer
defendants never showed Officer Wolski the subpoena,
id. ¶ 17, Lieutenant McAvene said that the
subpoena requested the cellphone records of the officers
involved in the investigation, including Officer
Wolski's, id. ¶¶ 11-12, 16. The
Wolskis allege, "[u]pon information and belief, [that]
the subpoena does not exist and never did." Id.
the pretext of the subpoena, "[Lieutenant] McAvene . . .
ordered [Officer] Wolski to turn over his personal, private
cellular phone to [the Trooper Defendants], and permit the
troopers to perform a Mata dump'. . . for the purpose of
collecting investigation-related communications from [his] .
. . cell phone." Id. ¶ 19 (emphasis
deleted). Officer Wolski initially objected to the order
because he maintained that his personal phone did not contain
work-related communications. Id. ¶ 20.
Lieutenant McAvene repeated the order. Id. ¶
Due to the defendant officers' representation that the
[Gardner Police] officers involved in the aforementioned
murder investigation were all under lawful subpoena, Officer
Wolski reluctantly surrendered his personal cellphone to the
defendant officers on the express condition that under no
circumstances was [Officer] Wolski's personal and private
media contained on the cell phone to be viewed, downloaded,
copied, duplicated, transmitted or otherwise misappropriated
or disseminated, and was to remain undisturbed and absolutely
Id. ¶ 22 (emphasis deleted).
Officer Wolski that they "were not collecting any of his
personal private data," id. ¶ 23,
"the defendant officers took [his] cell phone into an
adjacent room and shut the door," id. ¶
24. They re-emerged "[a]fter approximately 30-40 minutes
. . . and demanded that Officer Wolski disclose to them his
personal and private 'Apple I.D. and password.'"
Id. ¶ 25. Officer Wolski initially objected,
but eventually provided the defendant officers his Apple I.D.
and password after they reassured him that they were only
looking for investigation-related communications.
Id. ¶ 28. Within a few weeks of this encounter,
the Wolskis "discovered (through multiple independent
and credible sources) that their personal private media had
been converted by the defendants and widely disseminated
throughout the ranks of the Gardner Police Department and the
[State Police]." Id. ¶ 30. The private media
obtained from Officer Wolski's cell phone included video
and still images of Officer Wolski and Mrs. Wolski
"while being intimate." Id. ¶ 22 n.5.
December 21, 2018, the Wolskis filed a complaint in this
Court against individual the Gardner Police and State Police
officers, as well as against the agencies themselves.
Original Compl. On April 18, 2019, the State Police moved to
dismiss the claims against it under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). Def. Mass. State Police
Dep't Mot. Dismiss ("Original Mot. Dismiss"),
ECF No. 19.
the permission of the Court, the Wolskis filed an amended
complaint on May 9, 2019, see Pis.' Mot. Leave
Am. Compl. ("Motion to Amend"), ECF No. 13;
Electronic Order, ECF No. 29; Am. Compl., which mooted the
State Police's original motion to dismiss, Electronic
Order, ECF No. 35. In their amended complaint the Wolskis
advance the same claims as they did in their original
complaint. See Motion to Amend ("Plaintiffs do
not seek to change the substance of the original Complaint
nor do they seek to add, subtract, or amend the five (5)
causes of action asserted in the original Complaint.").
They allege claims against the individually named officers
under Massachusetts law and under sections 1983 and 1985 of
the Civil Rights Act (found in title 42 of the United States
Code). Am. Compl. ¶¶ 31-41, 56-59. They bring
claims under Massachusetts law for negligent training and
supervision (count III) and intentional infliction of
emotional distress (count V) against the State
Police. Id. ¶¶ 42-49, 56-59.
The State Police renewed its motion to dismiss on May 10,
2019. See Def. Mass. State Police Dep't Mot.
Dismiss Pis.' First Am. Verified Compl., ECF No. 31; Mem.
Law Supp. Def.'s Mot. Dismiss Pis.' First Am.
Verified Compl. ("Renewed Dismiss Mem."), ECF No.
Wolskis did not submit an opposition to the renewed motion to
dismiss before the motion session on July 30, 2019. During
that hearing, the Wolskis' counsel requested a
continuance, Emergency Mot. Continue Hr'g Def. Mass.
State Police Dep't Mot. Dismiss, ECF No. 51; Electronic
Clerk's Notes, ECF No. 50, and the Court allowed the
Wolskis to file a written opposition within 30 days.
Id. The Wolskis' lawyer filed an opposition to
the renewed motion to dismiss with an accompanying memorandum
on August 13, 2019. Pis.' Mot. Opp. Def. Mass. State