# Johnson v. Town of Duxbury

> District Court, D. Massachusetts · October 23, 2018

URL: https://www.frixlaw.com/law-library/cases/10197138

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** October 23, 2018
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10197138

## How later opinions describe it (automated extraction)

- holding that the officers’ reasonable belief that defendant’s girlfriend had joint access to the apartment provided valid consent to the search

## Opinion text

United States District Court
District of Massachusetts
)
Brian Johnson, Kelley O’Neil, )
Christopher Johnson, Minor )
Child, )
)
Plaintiffs, )
) Civil Action No.
v. ) 16-12578-NMG
)
Town of Duxbury, Matthew Clancy, )
)
Defendants. )
MEMORANDUM & ORDER
GORTON, J.
This suit, brought under 18 U.S.C. § 1983, arises out of a
dispute in which retired Duxbury police officer Brian Johnson
(“plaintiff” or “Johnson”) alleges that the Town of Duxbury
(Massachusetts) and Chief of Police Matthew Clancy
(“defendants”) violated plaintiff’s federal and state rights
under the Fourth Amendment to the United States Constitution and
the Massachusetts Civil Rights Act, M.G.L. c. 12, §§ 11H, 11I.
Plaintiff asserts that defendants violated his civil rights by
ordering him to produce his personal phone records pursuant to
an internal affairs (“IA”) investigation. Plaintiff brings this
suit on behalf of himself and his family members whose phone
records were produced as part of the IA investigation.
I. Background
Brian Johnson is a retired police officer of the Duxbury
Police Department. Following his resignation in 2016, he
brought a suit under § 1983 on behalf of himself and three
family members, alleging that the Town of Duxbury (“the Town”)

and its Chief of Police Matthew Clancy (“the Chief”)
(collectively referred to as “defendants”) violated his civil
rights under federal and state law.1
In November, 2013, following an earlier IA finding of
misconduct against plaintiff, he and his union signed an
agreement with the Town, known as a Last Chance Agreement (“LCA”
or “the Agreement”), whereby plaintiff was demoted and agreed
that there was just cause to dismiss him from the Duxbury Police
Department. The LCA further states that if Johnson engages in
any future serious misconduct, the Chief of Police has just
cause to dismiss him. Termination pursuant to the LCA was to be
unreviewable under the grievance and arbitration procedures of

the current collective bargaining agreement between the police
union and the Town. The actions of the Town were, however, to
remain reviewable on arbitrary, capricious or substantial
evidence grounds.

1 Plaintiff brings the Massachusetts Civil Rights Act (“MCRA”)
claim against Chief Clancy only.
During the Fall of 2015, Johnson was contacted by a
potential witness who claimed to have incriminating evidence
with respect to an ongoing murder/robbery investigation in
Marshfield, Massachusetts. Johnson disputes that he spoke to
the witness but does not dispute that he failed to report to his

commanding officer or to any other law enforcement agency that
he received voicemail and text messages from the witness.
Plaintiff thereafter was subpoenaed to testify before a grand
jury regarding the murder investigation but again failed to
report that fact to his superiors. Upon learning of Johnson’s
reticence, the Chief instructed his Deputy to open an
investigation into the actions of Johnson and another officer.
During this new IA investigation, plaintiff was represented by
union counsel Kareem Morgan of the law firm Sandulli Grace, PC.
In February, 2016, Chief Clancy issued an order for Johnson
to produce phone records as part of the IA investigation.
Attorney Morgan told the Chief that Johnson would comply with

the order only if it were narrowed in scope to records
“reasonably related and germane” to the investigation. The
Chief delayed issuing the order and his retained counsel,
Fernand Dupere (“Attorney Dupere”), negotiated with Attorney
Alan Shapiro of the same Sandulli Grace law firm with respect to
the scope of the phone records to be produced.2 Shapiro agreed
to produce redacted records of Johnson and another officer as
part of the investigation. Chief Clancy issued the revised
order for phone records with which plaintiff complied, albeit
“under protest”. The phone records encompassed information

relating to Johnson and members of his family but Johnson was
the account subscriber for all relevant lines. In July, 2016,
during the pendency of the investigation, Johnson retired from
the Duxbury Police Department. Following his retirement, he
filed this § 1983 suit.
Pending before this Court is defendant’s motion for summary
judgment.
II. Legal Analysis
A. Legal Standard for Summary Judgment
The role of summary judgment is to assess the proof in
order to see whether there is a genuine need for trial. Mesnick
v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991). The

burden is on the moving party to show, through the pleadings,
discovery and affidavits, that there is “no genuine dispute as
to any material fact and that the movant is entitled to judgment
as a matter of law”. FED. R. CIV. P. 56(a). A fact is material if
it “might affect the outcome of the suit under the governing

2 Shapiro testified at his deposition that the entire firm had
been retained to represent the union and union members.
law”. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A genuine issue of material fact exists where the evidence with
respect to the material fact in dispute “is such that a
reasonable jury could return a verdict for the nonmoving party”.
Id.

If the moving party has satisfied its burden, the burden
shifts to the nonmoving party to set forth specific facts
showing that there is a genuine, triable issue. Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). The Court must view the
entire record in the light most favorable to the nonmoving party
and indulge all reasonable inferences in that party’s favor.
O’Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993). Summary
judgment is appropriate if, after viewing the record in the
nonmoving party’s favor, the Court determines that no genuine
issue of material fact exists and that the moving party is
entitled to judgment as a matter of law. Celotex Corp., 477 U.S.
at 322–23.

B. Defendants’ Motion for Summary Judgment
1. Reasonable Search of Phone Records
Plaintiff contends that defendants’ search of his personal
phone records violated his Fourth Amendment rights because
defendants did not have probable cause for the search.
Defendants respond that the standard of review with respect to a
work-related investigation of an employee’s personal phone
records is one of reasonableness, not probable cause.
Defendants aver that the search was, in fact, reasonable in
inception and scope because the records were 1) specifically
related to an IA investigation, 2) redacted and 3) limited to
nine phone numbers, all of which were germane to the

investigation.
Public employer intrusions of the constitutionally
protected privacy interest of government employees for
legitimate investigations of work-related misconduct are
analyzed under a standard of reasonableness, not probable cause.
O'Connor v. Ortega, 480 U.S. 709, 725 (1987). The subject
search must be reasonable in its inception and scope. Id. at 26.
It is “justified” at inception when there are reasonable grounds
to suspect that the search will reveal evidence that the
employee has engaged in work-related misconduct. Id. Whether a
search is reasonable in scope requires that the search be
related to the objectives of the search and not excessively

intrusive in light of the nature of the misconduct. Id.
Chief Clancy ordered Johnson to produce his personal phone
records as part of an IA investigation. He was informed that
Johnson may have 1) had information relating to an ongoing
murder and robbery investigation and 2) testified at a grand
jury pursuant to a subpoena without notifying his superiors.
Because the Chief had reason to believe that Johnson’s phone
records contained evidence of suspected work-related misconduct,
the search was reasonable in its inception. As to its scope,
the Chief, after some pushback from Johnson’s union counsel,
agreed to limit the scope of the records search. As such, the
resulting intrusion into plaintiff’s personal records was

commensurate with his alleged misconduct and the Court concludes
that the search was reasonable under the Fourth Amendment.
2. Plaintiff Voluntarily Consented to the Search
Defendants submit that plaintiff voluntarily consented to
the search rendering the reasonableness inquiry under the Fourth
Amendment moot. Defendants contend that plaintiff was
represented by two attorneys at the law firm of Sandulli Grace,
PC (which was retained by plaintiff’s union) at all material
times and that counsel negotiated on plaintiff’s behalf as to
the production of the redacted phone records. Defendants
further aver that union counsel had actual and apparent
authority to negotiate for plaintiff and that even if they did

not have such authority, plaintiff ratified their actions by
complying with the agreed production of his records. Finally,
defendants contend that plaintiff’s consent to produce the phone
records was binding on all parties because plaintiff had common
authority over the cell phones of his family members and the
home landline that were subpoenaed.
Johnson does not squarely respond to defendants’ argument
but in a footnote claims that the Chief at one point doubted
whether union counsel had “legal standing” to make
representations on behalf of Johnson. Plaintiff is equivocal as
to whether counsel acted on his behalf and further claims that

his conversations with union counsel related only to his fear of
termination.
Notwithstanding the fact that employer searches of employee
property is subject to a reasonableness standard, voluntary
consent to a warrantless search is a well-recognized exception
to the Fourth Amendment warrant requirement. Schneckloth v.
Bustamonte, 412 U.S. 218, 222 (1973). Consent must be freely
and voluntarily given and courts look at the totality of the
circumstances. Id. at 228. At all material times during the
investigation, Johnson was represented by union counsel who
negotiated with defendants to narrow the scope of the search.
Pursuant to that negotiation, union counsel and Johnson produced

the redacted records. While plaintiff protests that he agreed
to produce his records only because he believed that his job
security was threatened, he proffers no evidence apart from the
LCA itself to support the alleged coercion. Moreover, to the
extent Johnson claims that union counsel had no authority to
consent on his behalf, that argument is moot in light of
defendant’s reasonable belief to the contrary as addressed
below.
Finally, with respect to the privacy interests of the other
named plaintiffs (Johnson’s family members), this Court agrees
that Johnson’s consent to produce relevant phone records is

binding on them. U.S. v. Matlock, 415 U.S. 164, 170 (1974)
(where a third party has common authority, usually through
mutual use, joint access or control over premises or effects,
one party’s consent legitimizes the warrantless search).
Defendants have shown that Johnson was the subscriber for all
relevant lines and thus had common authority over them. As
such, his consent is binding on his other family members.
Accordingly, this Court concludes that no reasonable juror
could find that consent was invalid.
3. Defendant’s Reasonable Belief
Johnson asserts that the Chief had no reasonable belief
that Johnson consented to the search because 1) the Chief

decided to investigate him based on hearsay and rumors and 2)
the Chief questioned whether union counsel had authority to
consent to the search on Johnson’s behalf.
Defendants contend that the Chief reasonably believed that
counsel had authority to consent to the search on Johnson’s
behalf based on the following facts: 1) union counsel stated in
writing that he would be representing plaintiff in the IA
investigation, 2) union counsel assisted in composing Johnson’s
report about his communications with the alleged robbery
witness, 3) union counsel confirmed that Johnson was willing to
provide redacted records, 4) the Chief’s counsel (Dupere)
negotiated the redaction process with a partner from the law

firm retained by the union (Shapiro), 5) the Chief revised his
order for production of Johnson’s records with Attorney
Shapiro’s approval and 6) Johnson complied with that order.
To the extent that plaintiff claims that his lawyer had
neither actual nor apparent authority to consent on his behalf,
consent is nevertheless valid where the officer, under an
objective standard, reasonably believed that the third party had
authority to consent. Illinois v. Rodriguez, 497 U.S. 177, 188
(1990); see also U.S. v. Meada, 408 F.3d 14, 21 (2005) (holding
that the officers’ reasonable belief that defendant’s girlfriend
had joint access to the apartment provided valid consent to the
search). Defendants have demonstrated that attorneys from the

Sandulli Grace firm made written and oral representations that
they represented Johnson as part of the IA investigation.
Johnson complied with the revised order, negotiated by counsel,
and thus ratified counsel’s apparent authority. Accordingly,
this Court concludes that Chief Clancy was reasonable in his
belief that Johnson consented to the search.
4. Qualified Immunity for Defendant Clancy
Johnson contends that qualified immunity does not apply
because no reasonable chief or municipality would have
understood that he willingly consented to search of the subject
phone records.

Defendants respond that the Chief is entitled to qualified
immunity because 1) there is no underlying constitutional
violation and 2) even if the search had violated a
constitutional right by limiting the scope of the order and
accepting the redacted records, no reasonable officer would
believe that the Chief had violated plaintiffs’ constitutional
rights.
To determine whether a law enforcement officer is entitled
to qualified immunity, courts consider whether: 1) plaintiff’s
allegations establish a constitutional violation, 2) the
constitutional right was clearly established at the time of the
alleged violation and 3) a reasonable officer would have

understood the act or omission to contravene a constitutional
right. Limone v. Condon, 372 F.3d 39. This Court finds that
defendant did not violate plaintiff’s constitutional rights by
ordering the search because it was relevant and germane to the
work-place investigation of plaintiff’s alleged misconduct.
Furthermore, assuming arguendo that a violation did occur by
virtue of the negotiated production of redacted records, no
reasonable officer under the circumstances would believe that he
violated plaintiff’s constitutional rights. Johnson’s
alternative claim that the underlying constitutional violation
was the coercion of his consent (due to the LCA) is without
merit and, accordingly, Chief Clancy is entitled to a qualified

immunity defense.
5. Monell Claim
Johnson argues that the Town is liable under a Monell
theory of liability because the Chief was the final decision
maker with respect to the investigation and his decisions
intentionally deprived Johnson of his civil rights.
Defendants deny that a viable Monell claim exists because
plaintiff cannot show that 1) the Chief committed an underlying
constitutional violation or 2) the Town engaged in any
unconstitutional custom, policy or practice. Moreover,
defendants note that, by claiming that the Chief breached the
Town’s policy of observing constitutional rights of the parties

with respect to internal investigations, Johnson concedes that
the Town’s policy is constitutional and thus no Monell claim
survives.
To establish a Monell claim against a municipality,
plaintiff must show 1) plaintiff’s harm was caused by a
constitutional violation and 2) the municipality is responsible
for that violation. Oklahoma City v. Tuttle, 471 U.S. 808, 817
(1985). Johnson cannot establish that the search of his records
or the circumstances surrounding it constituted a constitutional
violation because it was reasonable in its inception and scope.
Nor can plaintiff show that the LCA was inherently coercive.
Those facts alone eliminate plaintiff’s Monell claim.

6. Threats, Intimidation or Coercion under the MCRA
Johnson submits that defendants interfered with his federal
and state rights because the Chief undertook the unreviewable
actions of demoting him in 2013, removing him from patrol to
desk duty in 2016 and ordering him to produce phone records
under threat of termination.
Defendants respond that Johnson was not coerced because he
entered into the LCA voluntarily and thus the potential
disciplinary action resulting from the 2015 IA investigation did
not render the request for records a “threat”. Furthermore,
defendants note that Johnson’s resignation carries a presumption
of voluntariness which he has not overcome.

Parties may sue under the Massachusetts Civil Rights Act
(“MCRA”) when their federal or state rights have been interfered
with through threats, intimidation or coercion. M.G.L. c. 12, §§
11H, 11I. Johnson has not, however, adequately informed the
Court of what constitutional or statutory violation is being
alleged under the MCRA. To the extent that he claims that the
underlying constitutional violation relates to the search, his
claim is deficient for the reasons set forth above. The same is
true to the extent his argument hinges on the supposition that
the LCA is inherently coercive. Courts have upheld disciplinary
agreements such as a “Last Chance Agreement” as “part and
parcel” of collective bargaining agreements (“CBAs”). Connolly

v. Boston Edison Co., No. CIV.A.00-11849-PBS, 2001 WL 575868, at
*4 (D. Mass. May 15, 2001); see, e.g., Int’l Union of Operating
Eng'rs Local 351 v. Cooper Natural Res., Inc., 163 F.3d 916,
919–20 (5th Cir. 1999) (last chance agreement “formed a binding
contract pursuant to the CBA” and must be treated as a
supplement to the CBA); Bakers Union Factory No. 326 v. ITT
Cont’l Baking Co., 749 F.2d 350, 354–55 (6th Cir. 1984)
(agreements reached as part of disciplinary process constitute
formal contractual settlements of labor disputes and should be
construed as part of the CBA).
Moreover, plaintiff entered into the LCA to avoid dismissal
for just cause pursuant to a negative finding in an earlier IA

investigation. Johnson has at times suggested that there was
not “substantial evidence” to support the 2013 IA findings but
at no time has he claimed that the 2013 findings or the
subsequent LCA were invalid or retaliatory. He cannot now
retroactively allege coercion because he faced imminent
disciplinary action in 2016. As such, this Court concludes
there is no valid MCRA claim.
7. Constructive Discharge and Provoked Insubordination
Johnson now proffers a different theory of coercion under
the LCA. He submits that he believed he would lose his pension
or health insurance if he opposed the order to produce phone
records because any adverse decision by the Chief was

unreviewable under the LCA. This, plaintiff asserts, amounts to
a constructive discharge. He also avers that the Chief tried to
provoke him and that but for the Chief’s provocation, he would
not have resigned. In support of that claim, he alleges that
the Chief imposed more severe sanctions than necessary and
insisted on the “warrantless” search in an effort to chill
opposition to the IA investigation and to coerce plaintiff into
early retirement.
Defendants reply that Johnson did not previously allege the
unconstitutionality of the LCA, constructive discharge or
provoked insubordination in his complaint and thus this Court
should not consider such claims under summary judgment. Even if

the new claims were before this Court, defendants submit they
are untenable because plaintiff voluntarily entered into the LCA
and his resignation created a presumption of voluntariness.
This Court has previously declined to consider arguments
raised for the first time in opposition to a motion for summary
judgment. Carroll v. City of Quincy, 441 F. Supp. 2d 215, 224
(D. Mass. 2006). Such a declination is warranted here but, in
the interest of completeness and because plaintiff has alleged
plausible theories of constructive termination and provoked
insubordination, his latter day arguments will be considered.
Under a constructive discharge claim, plaintiff must show
that a reasonable person in his position would have felt

compelled to resign and that he did actually resign. Cherkaoui
v. City of Quincy, 877 F.3d 14, 29 (1st Cir. 2017). The working
conditions must be so onerous, abusive or unpleasant as to leave
a reasonable person with no choice. Id. While plaintiff did in
fact resign, he has failed to proffer any evidence that the
“coerced” circumstances were not of his own doing. Johnson was
found to have violated department policy in 2013 and stipulated
that the Chief had just cause to terminate him. Rather than
being terminated, he agreed to enter into the LCA (with his
union’s approval) and to be subject to higher scrutiny with
respect to future discipline. Plaintiff was demoted as a result
of the 2013 disciplinary action and has proffered no evidence,

other than his own self-serving affidavit, that the subsequent
disciplinary action was retaliatory in any way.
While specifically subject to the LCA, plaintiff failed to
report contact from a person who purported to have information
relating to an ongoing murder and robbery investigation or that
he had been subpoenaed to testify before a grand jury. As a
result, the Chief ordered an IA investigation and the production
of relevant records. Because no reasonable juror could find
that defendants acted in a retaliatory or coercive manner, this
Court concludes that plaintiff was not subject to onerous,
abusive or unpleasant conditions during his employment and that
he has no viable constructive discharge claim.

As to the remaining claim of provoked insubordination, the
First Circuit has recognized that an employer cannot rely on its
employee’s adverse reaction to the employer’s provocation to
justify termination. Trustees of Boston Univ. v. N.L.R.B., 548
F.2d 391, 393 (1st Cir. 1977). Plaintiff has not, however,
demonstrated how his own misconduct of not reporting information
regarding an ongoing murder investigation relates to any
wrongful reaction by the Chief. The IA investigation emanated
from Johnson’s personal conduct. Because he has failed to show
how the Chief provoked him, this Court concludes there is no
viable claim for provoked insubordination.
ORDER

For the foregoing reasons, defendants’ motion for summary
judgment (Docket No. 42) is ALLOWED.
So ordered.
_/s/ Nathaniel M. Gorton____
Nathaniel M. Gorton
United States District Judge
Dated October 23, 2018

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10197138. Public record. Not legal advice.