FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Katherine A. Robertson, U.S. Magistrate
D. Jacobson, Assistant Attorney General, with whom Maura
Healey, Attorney General of Massachusetts, and Adam
Hornstine, Assistant Attorney General, were on brief, for
Ryan, with whom Sasson, Turnbull, Ryan & Hoose was on
brief, for appellee.
Lynch, Selya, and Barron, Circuit Judges.
appeal raises issues under the clearly established law prong
of the qualified immunity test for supervisory state
officials. A magistrate judge concluded that a state drug lab
supervisor, defendant-appellant James Hanchett, is not
entitled to qualified immunity from a claim brought by
plaintiff-appellee Rolando Penate under 42 U.S.C. §
1983. The claim alleged that Hanchett's inadequate
supervision of a drug lab chemist constituted deliberate
indifference to Penate's constitutional rights. The
magistrate judge denied Hanchett's motion to dismiss that
claim. Penate v. Kaczmarek, No. 3:17-30119-KAR, 2019
WL 319586, at *12-13 (D. Mass. Jan. 24, 2019). This ruling
was in error, and we reverse and direct entry of dismissal on
the § 1983 claim.
vacate and remand the denial of Hanchett's motion to
dismiss an intentional infliction of emotional distress state
law claim, as our qualified immunity ruling eliminates the
sole basis for asserting federal jurisdiction over that
Facts Alleged in the Complaint
accept all well-pleaded facts as true and draw all reasonable
inferences in favor of the non-moving party." Starr
Surplus Lines Ins. Co. v. Mountaire Farms Inc., 920 F.3d
111, 114 (1st Cir. 2019) (alterations and internal quotation
marks omitted) (quoting Fantini v. Salem State
Coll., 557 F.3d 22, 26 (1st Cir. 2009)). Facts are drawn
from the complaint, and, where not in conflict with the
complaint's factual allegations, from the decision in
Commonwealth v. Cotto, No. 2007770, 2017 WL 4124972
(Mass. Super. Ct. June 26, 2017), which was referenced in the
complaint and relied on by the magistrate judge and both
parties in this appeal. See San Gerónimo Caribe
Project, Inc. v. Acevedo-Vilá, 687 F.3d 465, 471
& n.2 (1st Cir. 2012) (en banc).
the 1960s until July 2012, the Massachusetts Department of
Public Health ("DPH") operated the Amherst Drug Lab
(the "Lab") on the campus of the University of
Massachusetts. Massachusetts State Police assumed operation
of the Lab from July 2012 until the Lab closed on January 18,
2013. The Lab analyzed samples submitted by law enforcement
agencies in the Commonwealth to determine whether the samples
contained controlled substances.
at the Lab tested thousands of samples a year. For example,
in the 2011 fiscal year, three chemists working in the Lab
each tested an average of 2, 052 samples. The Lab's
chemists, as part of their analyses, regularly compared
testing results from the unknown samples against results from
known drug "standards" using a Gas
Chromatographer/Mass Spectrometer. After they completed their
analyses, the chemists created and signed drug certificates
certifying that the drug sample contained a controlled
substance. They also sometimes testified in court.
Farak was hired by DPH in July 2003 as a drug lab chemist. In
2004, she was transferred to the Amherst Lab where Hanchett
worked. That same year, she started stealing and abusing on a
near-daily basis the methamphetamine oil that the Lab kept in
an opaque bottle as a standard. The Lab's supervisor at
that time apparently did not catch these thefts by Farak.
Like Farak, Hanchett was also then a chemist employed at the
Amherst Drug Lab.
2008, Hanchett was promoted to be the Lab's supervisor.
As supervisor, he did not often engage in direct oversight of
the three other employees at the Lab. The complaint alleges
Hanchett did not retest samples to ensure the accuracy of
chemists' results, observe chemists during the testing
process, review chemists' notebooks, audit the evidence
stored at the Lab, or initiate any conversations with his
staff about Lab procedures. He also never gave Farak or the
other chemists any formal performance evaluations. The Lab
was understaffed and underfunded, and in these difficult
conditions, Hanchett relied on his "trusted
employees" to work largely unsupervised.
after Hanchett was promoted, Farak overheard him talking
about an audit he was planning to perform of the Lab's
supplies. She realized that, after her almost four years of
stealing, the Lab's supply of methamphetamine oil was
substantially depleted. Farak added water to the oil to cover
up her drug use. During the 2008 audit, Hanchett noticed the
sample's strange appearance but "surmised that the
drug was just degrading." After this, Farak started
stealing and using the Lab's other drug standards,
including amphetamine, phentermine, ketamine, cocaine,
ecstasy, marijuana, and LSD.
least April of 2009, Farak had expanded from stealing
standards to a new source of drugs. She started taking and
using a portion of the drugs from some of the samples that
had been submitted by law enforcement officers for testing.
To facilitate these thefts, she would sometimes partially
disable the machine in the Lab that heat-sealed evidence
bags, which allowed her to break the seals more easily and
steal from the drugs within.
least twice in 2010, she expressed concern to her therapist
that her co-workers might suspect her drug abuse. By the fall
of 2011, she was heavily addicted to crack cocaine, smoking
the drug more than ten times a day, including at the Lab.
during this period, the fall of 2011, that samples from the
substances Penate allegedly sold to an undercover police
officer were assigned to Farak for testing. She reported
testing the Penate drug samples on December 22, 2011, January
6, 2012, and January 9, 2012. She reported that they were
positive for the presence of a controlled substance and
signed the drug certificates in Penate's case. The
samples were returned to the state police on January 11,
2012. On February 1, 2012, prosecutors presented Farak's
drug certificates to the grand jury, which relied on them to
indict Penate. No one else, including Hanchett, reviewed or
confirmed her work on these samples.
not specifically alleged that Farak took any of the Penate
drug samples for her own use, but it appears she did use
other police-submitted drugs during the period in which she
was testing Penate's samples. On December 22, 2011, she
wrote on a diary card she was keeping as part of her
treatment for drug addiction: "tried to resist using @
work but ended up failing." Penate's § 1983
complaint alleges that on January 9, 2012 (the day of her
last test of the Penate samples), Farak smoked crack cocaine
in the morning, stole LSD from a police-submitted sample
(unrelated to Penate's criminal case), and then
"spen[t] the remainder of her work day
complaint further alleges that, because Farak was abusing
drugs, Farak handled Penate's samples improperly,
possibly resulting in the return of items Penate "was
not charged with distributing or possessing." When the
samples in Penate's case were returned to the officer who
brought them to the Lab, they no longer matched the
descriptions on the evidence tags. Most significantly, an
unexplained packet labeled "MOONWALK" was
improperly included among the materials that were returned.
after Farak had tested the Penate drug samples led to her
undoing. By April of 2012, months after she had done the
testing of the Penate samples, Farak was stealing from an
increasing number of police-submitted samples. In the summer
of 2012, she began stealing from samples assigned to other
chemists in the Lab, including Hanchett, who not only acted
as supervisor then but also had his own samples to test.
Several times that year, Farak manufactured crack cocaine
from powdered cocaine at the Lab for her personal use. At
unknown times throughout her employment at the Lab,
Farak's drug abuse caused her to hallucinate, "to
experience what she described as 'ridiculously intense
cravings,' to feel like her mind was racing, and to take
frequent breaks from work to use drugs."
the summer of 2012, the misconduct of another DPH chemist,
Annie Dookhan, employed at a different DPH drug lab, came to
light. In response, Hanchett did a second audit of the
Lab's standards and found that many were at much lower
levels than anticipated or were missing altogether. He spoke
with another chemist in the Lab about the possibility of
wrongdoing but did not otherwise act on his findings.
Although he had an obligation as the holder of a federal
license "to make a report of any missing narcotics at
his lab," he did not do so.
after the Penate tests, in early January 2013, Farak made
crack cocaine at the Lab. Hanchett found a leftover beaker
with a white residue on it. He confronted Farak, she denied
knowing anything about it, and he, in the face of that
denial, mistakenly "decided another coworker must ...