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Penate v. Hanchett

United States Court of Appeals, First Circuit

December 13, 2019

ROLANDO PENATE, Plaintiff, Appellee,


          Joshua D. Jacobson, Assistant Attorney General, with whom Maura Healey, Attorney General of Massachusetts, and Adam Hornstine, Assistant Attorney General, were on brief, for appellant.

          Luke Ryan, with whom Sasson, Turnbull, Ryan & Hoose was on brief, for appellee.

          Before Lynch, Selya, and Barron, Circuit Judges.


         This 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.

         We also 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 claim.

         I. A. Facts Alleged in the Complaint

         "We 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).

         From 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.

         Chemists 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.

         Sonja 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.

         In 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.

         Soon 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.

         By at 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.

         At 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.

         It was 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.

         It is 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 hallucinating."

         The 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.

         Events 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."

         Also in 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.

         A year 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 ...

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