Strunk v. City of Beverly Police Department

United States District Court

District of Massachusetts

)

DONALD STRUNK, )

)

Plaintiff, )

)

v. ) Civil Action No.

) 18-11007-NMG

CITY OF BEVERLY POLICE )

DEPARTMENT and RYAN P. HEGARTY, )

)

Defendants. )

)

MEMORANDUM & ORDER

GORTON, J.

This case arises out of a claim for discrimination under

Title II of the Americans with Disabilities Act (“the ADA”), 42

U.S.C. § 12131 et seq.

Donald Strunk (“Strunk” or “plaintiff”) alleges that the

City of Beverly Police Department (“the Beverly Police

Department”) and Officer Ryan Hegarty (“Officer Hegarty”)

(collectively “defendants”) violated his rights under the ADA by

1) forcing him to undertake (and failing to make reasonable

accommodations for) standard field sobriety tests after he was

pulled over for suspected drunk driving and 2) thereafter

arresting him for and charging him with operating under the

influence after he failed those tests. Strunk maintains that he

failed the field sobriety tests because of his alleged

disabilities rather than as a result of being intoxicated.

Nevertheless, he was convicted by a jury of operating under the

influence and other related offenses. He subsequently brought

this ADA claim.

Before the Court is defendants’ motion to dismiss for

failure to state a claim on the basis that 1) there is no

individual liability under the ADA, 2) the claims are precluded

by the principle announced by the Supreme Court in Heck v.

Humphrey, 512 U.S. 477, 484 (1994), 3) the claim is barred by

issue preclusion, 4) the individual officer defendant is

entitled to qualified immunity and 5) the Beverly Police

Department is not a governmental entity amenable to suit under

the ADA. For the following reasons, the Court finds that

plaintiff’s ADA claim is barred by the doctrine of issue

preclusion and thus will be dismissed.

I. Background

A. The Incident

Strunk is a resident of Danvers, Massachusetts. He submits

that he is “a 100% handicapped, disabled veteran” with the

following alleged disabilities: 1) “a large ventral hernia”, 2)

“bilateral flat feet”, 3) “bilateral shoulder osteoarthritis”,

4) “bilateral knee osteoarthritis (bone on bone)”, 5) a “right

foot cyst”, 6) “hearing loss” and 7) “others”.

In January, 2018, Officer Hegarty stopped Strunk while he

was traveling late at night in his vehicle. Officer Hegarty

suspected Strunk of driving under the influence after he saw the

passenger in the vehicle throw a glass bottle out the window.

After providing Officer Hegarty with his identification, Strunk

was asked to get out and step to the rear of the vehicle.

Strunk allegedly informed the officer that he was disabled and

could not walk well.

Nevertheless, Officer Hegarty instructed plaintiff to

perform various standard field sobriety tests. He was first

asked to perform the so-called “walk and turn test”. Strunk

allegedly repeated that he was disabled and could not walk well

but complied with the officer’s command. Strunk failed that

test which he submits was a result of his various disabilities.

Next, Strunk was directed to stand on one leg which he

protested he was unable to perform because of his disabilities.

Officer Hegarty apparently accepted that explanation and moved

on to the third test which was the “Horizontal Gaze Nystagmus

Test”. Strunk believes that he passed that final test. Officer

Hegarty concluded, however, that plaintiff was intoxicated and

placed him under arrest.

While on the way to the Beverly Police Station, Strunk

began to experience chest and leg pain and believed that he was

having a heart attack. He was taken immediately to the local

hospital. Strunk contends that he was never offered a

breathalyzer test at the hospital but that the Beverly Police

Department falsely charged him with refusing a breathalyzer. He

also alleges that he requested a blood alcohol test at the

hospital to prove that he was not intoxicated but that the

hospital refused to administer the test because it was “not

medically indicated”. No other tests were performed that night

to establish plaintiff’s blood alcohol level.

The Beverly Police Department subsequently charged Strunk

with operating under the influence and other related violations.

B. The State Court Conviction

In April, 2018, Strunk was tried by jury in Salem District

Court. Officer Hegarty testified that plaintiff had failed the

walk and turn test. When asked what consideration, if any, he

had given to Strunk’s alleged disabilities with respect to his

ability to perform the field sobriety tests, Officer Hegarty

testified that he simply moved on to the next test. The jury

found Strunk guilty of operating under the influence and other

related violations and his driver’s license was suspended.

In May, 2018, Strunk filed a notice of appeal which is

apparently still pending.1 Shortly thereafter he filed the

1 In his most recent status report filed with this Court, Strunk indicates

that he has just recently filed a motion for a new trial and a request for an

evidentiary hearing in the Salem District Court which has not yet been

responded to by the Commonwealth or acted upon by the District Court.

present civil action claiming that the Beverly Police Department

and Officer Hegarty violated his rights under Title II of the

ADA.

II. Motion to Dismiss

A. Legal Standard

To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to “state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). In considering the merits of

a motion to dismiss, the Court may look only to the facts

alleged in the pleadings, documents attached as exhibits or

incorporated by reference in the complaint and matters of which

judicial notice can be taken. Nollet v. Justices of Trial Court

of Mass., 83 F. Supp. 2d 204, 208 (D. Mass. 2000), aff’d, 248

F.3d 1127 (1st Cir. 2000). Furthermore, the Court must accept

all factual allegations in the complaint as true and draw all

reasonable inferences in the plaintiff's favor. Langadinos v.

Am. Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000). Although a

court must accept as true all of the factual allegations

contained in a complaint, that doctrine is not applicable to

legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662 (2009).

B. Issue Preclusion

Under Massachusetts law, the doctrine of issue preclusion

applies to bar the relitigation of the same issue in a

subsequent lawsuit where

(1) there was a final judgment on the merits in the

prior adjudication; (2) the party against whom

preclusion is asserted was a party (or in privity with

a party) to the prior adjudication; and (3) the issue

in the prior adjudication was identical to the issue

in the current adjudication . . . [and was] essential

to the earlier judgment.

In re Sonus Networks, Inc. Shareholder Derivative Litig., 499

F.3d 47, 57 (1st Cir. 2007). Issue preclusion does not apply

unless the particular issue “was actually litigated and decided

in the first litigation”. Id. at 56.

Moreover, it is well established that the doctrine

“precludes raising issues in a civil case already decided in a

prior criminal trial”. Glantz v. United States, 837 F.2d 23, 25

(1st Cir. 1988). Issue preclusion applies even where an appeal

of the prior judgment is pending. O’Brien v. Hanover Ins. Co.,

692 N.E. 2d 39, 44 (Mass. 1998) (“The Federal rule, followed by

a majority of the States, is that a trial court judgment is

final and has preclusive effect regardless of the fact that it

is on appeal.”); see also Federacion de Maestros de P.R. v.

Junta de Relaciones del Trabajo de P.R., 410 F.3d 17, 27 n.13

(1st Cir. 2005) (citing O’Brien); In re Kane, 254 F.3d 325, 328

(1st Cir. 2001).

C. Application

Strunk is precluded from relitigating the issue of whether

he was intoxicated. There was a final judgment on the merits in

a prior adjudication to which plaintiff was a party, namely a

criminal conviction for operating under the influence. It is

irrelevant for purposes of issue preclusion that the conviction

is currently under appeal. Furthermore, plaintiff is the party

against whom issue preclusion is being asserted and the issue in

the prior adjudication was identical to that in the current

litigation: whether Strunk failed the field sobriety tests as a

result of his disabilities or because he was intoxicated. That

issue was actually litigated in the criminal case which is

evidenced by the fact that Strunk asserts in his civil complaint

that he was not intoxicated on the night of the incident and

that Officer Hegarty was questioned at the criminal trial as to

what consideration he gave to plaintiff’s alleged disabilities

during the field sobriety tests.

Finally, determination of the issue of intoxication was

presumably essential to the jury’s decision in the criminal case

because the only evidence of Strunk’s condition was allegedly

his failure to perform the field sobriety tests. Thus the jury

apparently found that Strunk had not failed the field sobriety

tests because of his alleged disabilities but rather because he

was intoxicated. Because the jury found beyond a reasonable

doubt that Strunk was drunk on the night of the incident, he

cannot now assert that he was discriminated against on the basis

of his alleged disabilities when he was arrested and charged

after failing the field sobriety tests.

ORDER

For the foregoing reasons, defendants’ motion to dismiss

(Docket No. 28) is ALLOWED.

So ordered.

/s/ Nathaniel M. Gorton______

Nathaniel M. Gorton

United States District Judge

Dated May 6, 2019