John Doe v. Spears

United States District Court

District of Massachusetts

)

JOHN DOE, )

)

Plaintiff, )

)

v. ) Civil Action No.

) 18-12547-NMG

LINDA SPEARS, in her official )

and individual capacity, )

PATRICIA KELLY, in her official )

and individual capacity, JUDITH )

EDWARDS, in her official and )

individual capacity, )

)

Defendants. )

)

MEMORANDUM & ORDER

GORTON, J.

This case arises from a family law dispute in which

employees of the Massachusetts Department of Children and

Families (“the DCF”) temporarily removed three minor children

(identified as “A”, “B” and “C” in the amended complaint) from

the residence of the anonymous plaintiff who is their father

(identified as “D” or “Dad” in the amended complaint).

Plaintiff claims that Linda Spears, the Commissioner of the DCF

(“Commissioner Spears”), Patricia Kelly, a social worker

employed by the DCF (“Kelly”) and Judith Edwards, Kelly’s

supervisor (“Edwards”) (collectively “defendants”) have, inter

alia, intentionally violated his and his children’s

constitutional rights to liberty, freedom of association and

familial integrity by separating him from his children without

just cause or due process of law during the course of an

investigation into allegations of child abuse.

Before this Court is defendants’ motion to dismiss for lack

of jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and for

failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).

For the reasons that follow, this Court concludes that

plaintiff’s claims are barred by sovereign immunity, qualified

immunity and the Rooker-Feldman doctrine and otherwise lack

merit.1

I. Background

A. Facts

The pro se plaintiff is the father of “A”, “B” and “C” who,

when the relevant child abuse investigation first began, were

14, 12 and 9 years old, respectively. Until December, 2014, the

three minor children lived with plaintiff. He alleges that he

and the children’s mother were divorced and that she was not

materially involved in the children’s lives but did have

visitation rights.

1 Even if plaintiff could state a viable claim for relief, this Court would

dismiss the amended complaint for failure to comply with the pleading

requirements of Fed. R. Civ. P. 10(a). Id. (“Every pleading shall . . .

include the names of all the parties . . . .” (emphasis added)); see also Doe

v. Bell Atl. Bus. Sys. Servs., Inc., 162 F.R.D. 418, 422 (D. Mass. 1995) (“In

the civil context, the plaintiff instigates the action, and, except in the

most exceptional cases, must be prepared to proceed on the public record.”).

The plaintiff here did not seek leave of Court to proceed under a pseudonym.

In October, 2014, plaintiff received a call from Kelly (a

social worker employed with the DCF) asking if she could meet

with him and the children at his residence. In early November,

2014, Kelly came to the residence and spoke with each child

individually. She also spoke to plaintiff for about 30 minutes

and during that conversation he learned that before the visit

Kelly had met with the children’s mother several times. She

also informed “D” that she was investigating an allegation that

he had recently slapped and kicked “C”, the youngest child.

Plaintiff immediately denied the allegation. He explained that

“C” had a history of becoming physically aggressive and throwing

tantrums and that on the date in question, “C” had become

physically violent towards the family dog and his older brother,

“B”, and that plaintiff had grabbed him by the wrist and taken

him to his room to calm down. Plaintiff alleges that there were

never any bruises or markings on “C” or any of the other

children. Kelly told plaintiff, however, that “A”, the oldest

child, confirmed that plaintiff had hit “C” in the face.

Plaintiff contends that “C”’s mother prompted “C” to make

up the story of physical abuse which was then reported to the

DCF. He also asserts that “A” was lying because he was a

teenage boy rebelling against his father. He submits that

during “B”’s interview with Kelly, “B” told her that the

allegations of abuse were false and that his father had not hit

“C” or either of the other children.

After Kelly left the home, neither he nor his children had

any contact with the DCF for more than a month. In early

December, 2014, Kelly called plaintiff at his work and told him

that the three children were being removed from his house and

placed in DCF custody and that he was prohibited from contacting

them. The next day, plaintiff was informed that he had a right

to a “72-hour hearing” (a hearing to determine whether there was

sufficient evidence to support temporary removal) which was

scheduled for the following week. He received a copy of a

“petition” filed by the DCF with the Juvenile Court alleging

that plaintiff had abused C by slapping and kicking him. The

petition contained no allegations of physical abuse as to “A” or

“B”.

Plaintiff alleges that defendants coached the children to

testify against him at the 72-hour hearing and that the Judge at

the hearing did not permit plaintiff to be present or to cross-

examine his children. He alleges, nevertheless, that his

children testified that they were not afraid of their father and

had not been physically abused. During the proceedings, Edwards

also testified that

she knew nothing about the case and simply deferred

all questions to be asked of Defendant Kelly who was

“on vacation” and never testified.

In January, 2015, the Juvenile Court determined that the

DCF had satisfied its burden of proof and the children were

temporarily placed in the custody of their mother. The DCF and

the Juvenile Court allegedly never inquired into whether the

mother was fit to care for the children. Plaintiff alleges that

he was thereafter prevented by defendants from seeing or

communicating with his children for “almost 500 days” despite

being afforded restricted visitation rights by the Juvenile

Court. He claims that on numerous occasions Kelly informed him

that his children did not want to see him when, in fact, they

did want to see him or they were already visiting with plaintiff

surreptitiously. He specifies two such occasions in July, 2015,

and July, 2018, when Kelly had emailed plaintiff regarding

visitation with his children. Plaintiff alleges that throughout

this period of separation, he was able to see and communicate

with his children but only surreptitiously.

Plaintiff alleges that during the period of separation,

defendants submitted false reports to the Juvenile Court as to

the children’s health and well-being and their desire to see

their father. He alleges that in October, 2015, the DCF

reported that “A” was doing well academically and was happy but

he dropped out of high school shortly thereafter. In November,

2015, the DCF allegedly submitted a false report notifying the

court that plaintiff’s therapist had concluded that plaintiff

was unfit to see his children. In June, 2016, plaintiff’s

therapist testified in court that he had never made any such

statement about plaintiff.

Plaintiff alleges that

[i]n February of 2016, Defendant DCF ostensibly closed

its case on the children and the family . . . [and]

[i]n March of 2016, the Probate court dismissed

Defendant DCF from the case.

Elsewhere in the complaint, however, plaintiff alleges that the

DCF was involved in his children’s lives as recently as July,

2018, and thus it is unclear exactly when, and if, the

proceedings in the Juvenile Court and the DCF’s involvement with

plaintiff and his children were terminated. He also alleges

that he and his children have since been reunited but does not

specify when that reunification occurred or whether his

involvement with his children is in any way restricted by order

of the Juvenile Court.

B. Procedural History

In December, 2018, plaintiff filed the complaint with this

Court as well as a sealed motion to impound and seal the

information contained in the complaint. Shortly thereafter,

plaintiff filed an amended complaint.2

Plaintiff asserts sixteen claims against defendants, in

both their official and individual capacities, for the

2 The motion to impound and seal was filed only with respect to the original

complaint and thus is moot in light of the filing of the amended complaint.

following: 1) declaratory judgment that the “DCF and the other

defendants have waived their qualified immunity and are held

liable under the Federal laws” (Count I); 2) injunctive relief

to prevent defendants and their agents “from acting to interfere

with the rights of Dad, and from retaliating against Dad for

bringing this action” (Count II); 3) various constitutional

violations (including violations of the First, Fifth and

Fourteenth Amendments to the United States Constitution) under

42 U.S.C. § 1983 (Counts III, IV, V and VII); 4) “Waiver of the

11th Immunity” (Count VI); 5) attorneys’ fees and expert fees

pursuant to 42 U.S.C. § 1988 (Count VIII); 6) violation of

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794

(Count IX); 7) violation of the Massachusetts Torts Claims Act

(“the MTCA”), M.G.L. c. 258, § 2 (Count X); 8) violation of

M.G.L. c. 119, § 29C (Count XI); 9) fraud and misrepresentation

(Count XII); and 10) intentional infliction of emotional

distress (Counts XIII, XIV, XV and XVI).3

Plaintiff seeks significant damages for the allegedly

severe physical, mental, emotional and economic harm that he and

his children suffered as a result of defendants’ wrongful

3 Counts III, IV and V assert claims directly under the First, Fifth and

Fourteenth Amendments but they are construed by the Court as claims brought

under § 1983. See Tomaselli v. Beaulieu, 967 F. Supp. 2d 423, 433 n.3 (D.

Mass. 2013). Count VI asserts a legal argument that defendants have waived

their Eleventh Amendment sovereign immunity by accepting federal funds but

seeks no relief and will therefore be dismissed for failure to state a claim.

conduct, including 1) irreparable harm to the parent-child

relationship, 2) development of medical and mental issues,

including depression, anxiety and drug use, and 3) loss of

family, friends and business.

In January, 2019, defendants filed a motion to dismiss the

amended complaint, asserting that plaintiff’s claims are barred

by various immunity doctrines and otherwise lack merit.

II. Defendants’ Motion to Dismiss for Lack of Jurisdiction and

Failure to State a Claim

A. Legal Standard

A plaintiff faced with a motion to dismiss under Fed. R.

Civ. P. 12(b)(1) bears the burden of establishing that the court

has subject matter jurisdiction over the action. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992). If the

defendant mounts a “sufficiency challenge”, the court will

assess the sufficiency of the plaintiff’s jurisdictional

allegations by construing the complaint liberally, treating all

well-pled facts as true and drawing all reasonable inferences in

the plaintiff’s favor. Valentin v. Hospital Bella Vista, 254

F.3d 358, 363 (1st Cir. 2001).

If the defendant advances a “factual challenge” by

controverting the accuracy, rather than the sufficiency, of the

alleged jurisdictional facts, “the plaintiff’s jurisdictional

averments are entitled to no presumptive weight” and the court

will consider the allegations of both parties and resolve the

factual disputes. Id. The court has “broad authority” in

conducting the inquiry and can, in its discretion, order

discovery, consider extrinsic evidence or hold evidentiary

hearings in determining its own jurisdiction. Id. at 363-64.

To survive a motion to dismiss under Fed. R. Civ. P.

12(b)(6), 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. Sovereign Immunity

Sovereign immunity bars suits for damages in federal court

against the Commonwealth of Massachusetts, state agencies or

state officials acting in their official capacities unless the

Commonwealth has waived its sovereign immunity or Congress has

abrogated it. Kentucky v. Graham, 473 U.S. 159, 165-67 (1985).

Congress has not abrogated the states’ sovereign immunity under

§ 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71

(1989) (holding that “neither a State nor its officials acting

in their official capacities are ‘persons’ under § 1983” and

thus Congress did not override states’ sovereign immunity in

enacting that provision). The mere receipt of federal funds

does not constitute a waiver of sovereign immunity unless

Congress has explicitly conditioned the receipt of federal funds

on such waiver and the State has nevertheless accepted those

funds. Edelman v. Jordan, 415 U.S. 651, 673-74 (1974).

Nor has Massachusetts waived its sovereign immunity with

respect to intentional tort claims under the MTCA. See Wilmot v.

Tracey, 938 F. Supp. 2d 116, 143 (D. Mass. 2013) (explaining

that “under Section 10(c) of the MTCA, public employees remain

immune from any claim arising out of an intentional tort . . .

[and thus plaintiff] cannot maintain a claim against the DCF for

intentional infliction of emotional distress.” (internal

quotation marks omitted)); M.G.L. c. 258, § 10(c) (listing

misrepresentation and deceit as examples of intentional torts

for which public employees remain immune under the MTCA).

Insofar as plaintiff sues defendants, who are employees of

a state agency, in their official capacities for money damages

for civil rights violations under federal law or for fraud and

intentional infliction of emotional distress under state law,

those actions are treated as suits against the Commonwealth

itself and thus are barred by the doctrine of sovereign

immunity. Moreover, to the extent that plaintiff seeks to

compel the DCF or the Juvenile Court to comply with M.G.L. c.

119, § 29C (which requires the DCF to make reasonable efforts

prior to removing the child from the home to prevent or

eliminate the need for such removal) or seeks damages for an

alleged violation thereof, those claims are also barred by

sovereign immunity. See Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 105-06 (1984) (holding that sovereign

immunity bars an individual from suing a state official either

for prospective or retroactive relief on the basis of state

law). The claims against defendants in their official

capacities and Count X under the MTCA will therefore be

dismissed.

C. Qualified Immunity

Even where a government official does not enjoy sovereign

immunity, he or she may still benefit from qualified immunity

when engaged in the performance of a discretionary function. See

Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982).

[Q]ualified immunity protects government officials

from liability for civil damages insofar as their

conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person

would have known.

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal

quotation marks omitted) (quoting Harlow, 457 U.S. at 818).

Qualified immunity is applicable unless the official violated a

constitutional right that was clearly established at the time of

the alleged misconduct. Id. at 232 (citing Anderson v.

Creighton, 483 U.S. 635, 640 (1987)); see also Malley v. Briggs,

475 U.S. 335, 341 (1986) (commenting that the doctrine of

qualified immunity “provides ample protection to all but the

plainly incompetent or those who knowingly violate the law”).

The First Circuit Court of Appeals has held that social workers

employed by the government and other government employees and

contractors may raise qualified immunity as a defense to a

§ 1983 suit for conduct arising out of a child abuse

investigation. See Kauch v. Dep’t for Children, Youth & their

Families, 321 F.3d 1, 4 (1st Cir. 2003); Frazier v. Bailey, 957

F.2d 920, (1st Cir. 1992).4

4 Defendants contend that social workers enjoy absolute immunity but the First

Circuit has not expressly so held.

Plaintiff alleges that defendants violated his First and

Fourteenth Amendment rights to freedom of speech and freedom of

association and his Fifth and Fourteenth Amendment rights to due

process by interfering with his relationship with his children.

While there is certainly a constitutionally protected right to

the parent-child relationship, the exact contours of that right

are unclear. See Frazier, 957 F.2d at 929-30 (“The [Supreme]

Court . . . has never recognized the right to familial integrity

as absolute or unqualified. Within a family itself resides the

sometimes competing interests of a parent’s right to rear his or

her child and the fundamental rights of that child.” (internal

citations omitted)). Moreover, there is no constitutional right

to be free from child abuse investigations. Watterson v. Page,

987 F.2d 1, 8 (1st Cir. 1993) (citing Stanley v. Illinois, 405

U.S. 645, 649 (1972)).

Based on the facts alleged in the amended complaint, Kelly

had cause to believe that “C” had been physically abused and

thus had reason to investigate potential child abuse with

respect to all three children. Moreover, the Juvenile Court

ultimately determined that the DCF had sufficient cause to

remove temporarily all three children from plaintiff’s home and

to restrict his visitation rights. The mere investigation of

allegations of child abuse and removal of the children from his

custody does not violate a clearly established constitutional

right even if the investigation is not perfect. See Wilmot, 938

F. Supp. 2d at 138-39 (granting qualified immunity to DCF social

workers regardless of whether “their suspicion was ultimately

determined to be unfounded or that they were perhaps overzealous

in their investigation” (internal quotation marks omitted)

(quoting Hopkins v. Rhode Island, 491 F. Supp. 2d 266, 273-74

(D.R.I. 2007))); see also Watterson, 987 F.2d at 8-9; Frazier,

957 F.2d at 930-31.

Furthermore, neither Commissioner Spears nor Edwards can be

held liable for Kelly’s conduct under a theory of respondeat

superior and plaintiff has alleged no conduct specific to

Commissioner Spears or Edwards sufficient to hold them

personally liable. Whitfield v. Melendez-Rivera, 431 F.3d 1, 14

(1st Cir. 2005). Plaintiff’s constitutional claims against

defendants in their individual capacities for violation of his

rights to freedom of association and the parent-child

relationship will be dismissed.

To the extent that plaintiff is suing the defendants in

their individual capacities for fraud and for intentional

infliction of emotional distress under Massachusetts law, those

claims are barred by the common law of qualified immunity. See

Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d 134, 145-46

(1st Cir. 2016) (discussing how, in affirming dismissal of an

intentional tort claim, “a public official, exercising judgment

and discretion, is not liable for negligence or other error in

the making of an official decision if the official acted in good

faith, without malice, and without corruption”); Summers v. City

of Fitchburg, No. 15-cv-13358-DJC, 2016 WL 4926415, at *5 (D.

Mass. Sept. 15, 2016) (“Under Massachusetts common law,

government employees acting within their discretion as public

officials and in good faith are shielded from liability” for

intentional tort claims). Generalized and conclusory

allegations of bad faith or malice are insufficient to overcome

the presumption that government employees acted in good faith

and thus are entitled to qualified immunity under Massachusetts

common law. See Najas, 821 F.3d at 146; Summers, 2016 WL

4926415, at 5.

Plaintiff makes no non-conclusory allegations to suggest

that any of the individual defendants acted maliciously or in

bad faith. With respect to the claim for fraud and

misrepresentation, plaintiff alleges that

Defendants have committed fraud upon the Plaintiffs by

misrepresenting their true intentions, and by failing

to disclose what their true goals was, which was to

separate the children from their father causing

injury . . . .

He claims that the defendants or the DCF, collectively, lied to

him and to the Court on several occasions about the health and

well-being of his children. By failing to specify which of the

individual defendants made the allegedly false or misleading

statement or how he relied upon those statements to his

detriment, plaintiff has failed to comply with the pleading

requirements of Fed. R. Civ. P. 9(b). Id. (requiring that the

circumstances constituting fraud be stated with particularity).

As for the allegations of fraud specifically attributed to Kelly

(that she told plaintiff that his children did not want to see

him), he asserts no facts to indicate that Kelly acted in bad

faith for the purpose of interfering with the parent-child

relationship rather than in good faith on the belief that it was

in the children’s best interests not to see their father. In

addition to finding that qualified immunity applies to the claim

for fraud and misrepresentation, the Court also concludes that

plaintiff has failed to state a claim for fraud because he has

failed adequately to plead reliance or injury. Indeed, despite

Kelly’s statement that plaintiff’s children did not want to see

him, he managed to visit and communicate with them

surreptitiously.

With respect to the claims for intentional infliction of

emotional distress, plaintiff merely states that

Defendants intended to inflict emotional distress or

knew or should have known that emotional distress was

the likely result of their conduct . . . [and that

their] conduct was extreme and outrageous, was beyond

all possible bounds of human decency and was utterly

intolerable in a civilized community.

In addition to merely reciting the elements of the cause of

action (which is insufficient under Fed. R. Civ. P. 12(b)(6)),

see Iqbal, 556 U.S. at 678, plaintiff also provides no facts to

support his claim that defendants maliciously or in bad faith

intended to cause severe emotional distress to plaintiff and his

children. See Wilmot, 938 F. Supp. 2d at 143-44 (dismissing

claims for intentional infliction of emotional distress where

the defendant social workers were merely carrying out their

duties in investigating allegations of child abuse). While the

Court sympathizes with plaintiff’s deprivation, any emotional

harm caused to him or to his children was the product of an

investigation of child abuse and subsequent court proceedings

for which the Juvenile Court apparently determined the DCF had

cause to initiate. The Court has no reason to disregard the

presumption that those proceedings were conducted in good faith

by the DCF and defendants.

The Massachusetts common law of qualified immunity

therefore applies to plaintiff’s claims for fraud and for

intentional infliction of emotional distress and those claims

will be dismissed.

D. Rooker-Feldman Doctrine

In addition to plaintiff’s constitutional claims for

violations of his rights to freedom of speech and association

and his right to familial integrity, plaintiff asserts a due

process violation for the alleged conveyance of false

information to the Juvenile Court. Specifically, plaintiff

contends that the DCF (he does not allege a particular

defendant) submitted a report to the Juvenile Court falsely

asserting that plaintiff’s therapist had concluded that

plaintiff was unfit to see his children. That claim is

different from plaintiff’s other constitutional claims because

the knowing submission of false evidence to a court is a clear

violation of due process disqualifying the offending party from

the protection of qualified immunity. See, e.g., Hardwick v.

Cty. of Orange, 844 F.3d 1112, 1118-20 (9th Cir. 2017)

(affirming the district court’s determination that government-

employed social workers were not entitled to qualified immunity

where they used perjured testimony and fabricated evidence to

support the termination of a parent’s right to custody of her

child). Nevertheless, this Court finds that the claim is barred

by the Rooker-Feldman doctrine.

The Rooker-Feldman doctrine

precludes federal jurisdiction over a challenge to a

state court judgment to which the challenger was a

party.

Miller v. Nichols, 586 F.3d 53, 59 (1st Cir. 2009) (“Rooker-

Feldman bars jurisdiction whenever parties who lost in state

court . . . seek[] review and rejection of that judgment in

federal court.” (alterations in original) (internal quotation

marks omitted) (quoting Puerto Ricans for P.R. Party v. Dalmau,

544 F.3d 58, 68 (1st Cir. 2008))). The Rooker-Feldman doctrine

also prohibits a district court from adjudicating constitutional

claims that are “inextricably intertwined” with decisions made

in state court proceedings. Hill v. Town of Conway, 193 F.3d 33,

39 (1st Cir. 1999). A claim is “inextricably intertwined” with

a state court decision if the claim “succeeds only to the extent

that the state court wrongly decided the issues before it”. Id.

Here, plaintiff’s claim appears to be that he was injured

because the Juvenile Court entered an order upholding the

removal of his children or the restrictions on his visitation

rights on the basis of false information submitted to it by the

DCF. Plaintiff was able to rebut the allegedly false evidence

against him, however, because his therapist testified in that

court that he had never made the statement about plaintiff’s

unfitness to see his children. Plaintiff does not demonstrate

that the Juvenile Court made its removal and custody

determination on the basis of fabricated evidence. The

viability of his claim depends, therefore, on the conclusion

that the Juvenile Court wrongly concluded that there was

sufficient evidence to warrant the removal and continued

separation of his children. Because that claim succeeds only to

the extent that the Juvenile Court’s decision on removal and

continued separation was wrong, it is inextricably intertwined

with the state court proceedings and thus barred by the Rooker-

Feldman doctrine.

E. Failure to State a Claim

Finally, plaintiff’s claims for violations of Section 504

of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and M.G.L.

c. 119, § 29C will be dismissed because he has failed to state a

claim with respect to those statutes. First, to state a claim

under Section 504 of the Rehabilitation Act for discrimination

on the basis of disability under a program receiving federal

funds, plaintiff must demonstrate that his child was

intentionally discriminated against because he was disabled. See

Lesley v. Hee Man Chie, 250 F.3d 47, 53 (1st Cir. 2001).

Plaintiff has alleged absolutely no facts to support an

inference that defendants initiated the child abuse

investigation or judicial proceedings because of “C”’s alleged

learning disability, but rather the facts alleged indicate they

were initiated because of the allegations of abuse. Cf. Lebron

v. Commonwealth of P.R., 770 F.3d 25, 31 (1st Cir. 2014)

(affirming the dismissal of claims under Section 504 of the

Rehabilitation Act because the plaintiffs “provided no factual

allegations that would support any inference, let alone a

reasonable one, that the Commonwealth or any of its agents

intentionally discriminated against the child because he was

disabled”).

Second, M.G.L. c. 119, § 29C does not contain a private

cause of action and thus plaintiff must show that the

Legislature intended an implied private cause of action. See

Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 68 (1st Cir. 2002)

(noting the “presumption against reading an implied right of

action into a statute”). Plaintiff has not shown that the

Massachusetts Legislature intended to authorize such a cause of

action. In fact, the language of the statute is directed to the

courts which make the determination of whether “reasonable

efforts” have been made before granting custody of the child to

the DCF and the Supreme Judicial Court, in interpreting that

provision, never mentions a private action for monetary damages

as a vehicle for enforcing the statute. See Care & Prot. of

Walt, 84 N.E.3d 803, 817-19 (Mass. 2017) (holding that where the

DCF has been awarded temporary custody after failing to fulfill

its duty to make reasonable efforts to prevent or eliminate the

need for removal, a judge has the equitable authority to order

the DCF to take reasonable measures to remedy the adverse

consequences of that breach of duty). Because plaintiff has not

demonstrated that the Legislature intended an implied cause of

action under M.G.L. c. 119, § 29C, the claim asserted thereunder

will be dismissed for failure to state a claim.

Finally, because all of plaintiff’s substantive allegations

fail on jurisdictional grounds or for failure to state a claim,

his claims for declaratory and injunctive relief will also be

dismissed.

ORDER

For the foregoing reasons,

1) plaintiff’s sealed motion to impound or seal the

information contained in the original complaint (Docket

No. 2) is DENIED as moot; and

2) defendants’ motion to dismiss the amended complaint

(Docket No. 17) is ALLOWED.

So ordered.

/s/ Nathaniel M. Gorton______

Nathaniel M. Gorton

United States District Judge

Dated July 17, 2019