The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_________________________________________
SHAWN DIVRIS, )
)
Plaintiff, )
)
v. ) CIVIL ACTION
) NO. 20-40017-TSH
ANNIE DOOKHAN, DELLA SAUNDERS )
PETER PIRO, CHARLES SALEMI, )
LINDA HAN, JULIANNE NASSIF and )
ELIZABETH O’BRIEN )
)
Defendants. )
_________________________________________ )
MEMORANDUM OF DECISION AND ORDER
ON DEFENDANT PETER PIRO’S MOTION TO DISMISS
March 11, 2022
HILLMAN, D.J.
Plaintiff Shawn Plaintiff (“Plaintiff”) alleges that Peter Piro (“Piro” or “Defendant Piro”)
violated his rights under 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act, Mass. Gen.
Laws c. 12, § 11H and I (MCRA) in both his individual and official capacity as a supervisor at a
state-run laboratory. Pursuant to Fed. R. Civ. P. 12(b)(6), Defendant moves to dismiss all claims
against him.
Piro argues that Plaintiff’s claims against him in his official capacity are barred because
they are claims are in fact claims against the Commonwealth which is not subject to suit under
either § 1983 or the MCRA, his claims against Piro in his personal capacity fail because he
makes no allegations that Piro engaged in any actionable conduct, and his claims against Piro are
barred by the doctrine of qualified immunity.
Background
For purposes of this motion, the Court must accept these factual allegations as true and
draw reasonable inferences therefrom in favor of Plaintiff. See Freeman v. Town of Hudson, 714
F.3d 29, 37 (1st Cir. 2013). In his Amended Complaint, Plaintiff alleges the following facts. On
May 22, 2007, Framingham police officers arrested Plaintiff and charged him with distribution
of cocaine. Annie Dookhan, a chemist at the Massachusetts Department of Public Health’s
William A. Hinton State Laboratory, issued a certification falsely stating that she analyzed the
substance and found it to be cocaine. In fact, Dookhan conducted no scientific testing on the
substance. On or about June 22, 2009, Plaintiff pleaded guilty to possession with intent to
distribute cocaine and was sentenced to three to five years of incarceration in state prison.
Plaintiff served a total of 1,420 days of incarceration and 237 days of parole.
In 2017, the Massachusetts Supreme Judicial Court informed Plaintiff that his conviction
was dismissed with prejudice in light of the discovery that Dookhan had “engaged in serious
misconduct involving her work at a state drug lab.” At that time, Dookhan was engaged in large-
scale criminal and fraudulent conduct, including falsifying results, dry labbing, perjury, and
forgery. A grand jury indicted Dookhan on seventeen counts of tampering with evidence, eight
counts of obstruction of justice, one count of perjury, and one count of falsely claiming to hold a
graduate degree; Dookhan pleaded guilty to all charges.
In addition to Dookhan’s serious misconduct, Plaintiff alleges that other Department of
Public Health (DPH) officials and personnel failed to properly supervise Dookhan and failed to
implement adequate safeguards in the operation of the Hinton lab. The specific allegations in
Plaintiff’s Amended Complaint against these defendants include the following. Defendants
Linda Han, the Director of the Hinton Lab, Julie Nassif, who oversaw the Division of Analytical
Chemistry at the Hinton Lab, Charles Salemi, the supervisor of operations at the Hinton Lab, and
Elizabeth O’Brien, a supervisory evidence officer at the Hinton Lab, “created, maintained or
implemented the policies, customs and practices of the Hinton Lab.” See Amended Complaint
(“AC”) at ¶¶ 27, 28, 21,32. Han, Nassif, Salemi and O’Brien “created, maintained and/or
implemented the policy, custom and practice of failing to conduct oversight, investigate
complaints, report violations, enforce safeguards or policies, and ensure the integrity of the
samples while stored at the Hinton Laboratory Evidence Room.” See id. at ¶¶34. Plaintiff further
alleges that Han and Nassif “failed to monitor Dookhan adequately, failed to alert their superiors
to problems, and allowed her to continue to have access to substances, to test substances, and to
testify in court even after the breach in June 2011.” Id. at ¶30, and that Han and Nassif
discovered that Dookhan had breached protocol by removing 90 samples from the evidence
room without authorization, but “did not properly investigate the specific breach of protocol, her
workload, her results, and/or her general lack of adherence to protocol.” Id. at ¶33(r), (s). Finally,
Plaintiff alleges that Salemi received reports of concerns regarding Dookhan’s conduct at the lab,
but he “only conducted an audit of paperwork for every tenth sample and no actual retesting was
performed.” See AC at ¶16(c).
Plaintiff’s allegations that reference Defendant Piro include a reference to him as “a
laboratory supervisor.” Id. at ¶6, and as the employee who “reported numerous concerns
regarding Dookhan’s conduct at the lab to his superior, Salemi.” but that Salemi did not
adequately investigate these concerns. Id. at ¶16(c)
Standard of Review
A defendant may move to dismiss, based solely on the complaint, for the plaintiff's
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a
Rule 12(b)(6) motion to dismiss, a complaint must allege “a plausible entitlement to relief.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007). Although detailed factual allegations are not
necessary to survive a motion to dismiss, the standard “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at
555. “The relevant inquiry focuses on the reasonableness of the inference of liability that the
plaintiff is asking the court to draw from the facts alleged in the complaint.” Ocasio-Hernandez
v. Fortuno-Burset, 640 F.3d 1, 13 (1st Cir. 2011).
In evaluating a motion to dismiss, the court must accept all factual allegations in the
complaint as true and draw all reasonable inferences in the plaintiff’s favor. Langadinos v.
American Airlines, Inc., 199 F.3d 68, 68 (1st Cir. 2000). It is a “context-specific task” to
determine “whether a complaint states a plausible claim for relief,” one that “requires the
reviewing court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009) (internal citations omitted). “[W]here the well-pleaded facts do not permit
the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it
has not ‘show[n]’—that the pleader is entitled to relief.” Id. (quoting Fed. R. Civ. P. 8(a)(2)). On
the other hand, a court may not disregard properly pled factual allegations, “even if it strikes a
savvy judge that actual proof of those facts is improbable.” Twombly, 550 U.S. at 556.) (quoting
Giragosian v. Ryan, 547 F.3d 59, 65 (1st Cir. 2008)).
Discussion
Section 1983 “creates a remedy for violations of federal rights committed by persons
acting under color of state law.” Haywood v. Drown, 556 U.S. 729 (20009). It requires three
elements for liability: deprivation of a right, a causal connection between the actor and the
deprivation, and state action. 42 U.S.C. § 1983.
Official Capacity
“[A] suit against a state official in his or her official capacity in his or her official
capacity is not a suit against the official but rather is a suit against the official’s office.” Will v.
Michigan Department of State Police, 491 U.S. 58, 71 (1989). “[N]either a State nor its official
acting in their official capacities are ‘persons’ under § 1983.” Will, 491 U.S. at 71.
Insofar as the Plaintiff’s claims against Defendant Piro can be interpreted as being
asserted against the Commonwealth of Massachusetts, such claims are barred by the Eleventh
Amendment. “The Court has held that, absent waiver by the State or valid congressional
override, the Eleventh Amendment bars a damages action against a State in federal court.”
Kentucky v. Graham, 473 U.S. 159, 169 (1985). Further, “[t]he Commonwealth has expressly
exercised its prerogative to waive its sovereign immunity only insofar as claims are brought
against it in its own judicial fora.” Rivera v. Commonwealth, 16 F. Supp. 2d 84, 87 (D. Mass.
1998). The Commonwealth has only waived its sovereign immunity under the Massachusetts
Tort Claims Act, which grants sole jurisdiction to the state Superior Court. Mass. Gen. Laws. C.
258, §§ 2, 3. However, “[t]he Commonwealth has not consented to be sued in federal courts.”
Nobile v. Commonwealth of Massachusetts, et al., 675 F. Supp. 2d 214, 216 (D. Mass. 2009).
Consequently, because Plaintiff’s Section 1983 claims against Defendant Piro in his official
capacity are claims against the Commonwealth of Massachusetts, his claims are barred by the
Eleventh Amendment.
Individual Capacity
Although “government officials may not be held liable for the unconstitutional conduct of
their subordinates under a theory of respondeat superior,” Iqbal, 556 U.S. at 676, “supervisory
officials may be liable on the basis of their own acts or omissions.” Sanchez v. Pereira-Castillo,
590 F.3d 31, 49 (1st Cir. 2009). Supervisory liability in the context of Section 1983 claims
usually arises in one of two ways: “either the supervisor may be a ‘primary violator or direct
participant in the rights-violating incident,’ or liability may attach ‘if a responsible official
supervises, trains, or hires a subordinate with deliberate indifference toward the possibility that
deficient performance of the task eventually may contribute to a civil rights deprivation.’” Id.
(quoting Camilo-Robles v. Zapata, 175 F.3d 41, 44 (1st Cir. 1999)). “In either case, the plaintiff
in a Section 1983 action must show ‘an affirmative link, whether through direct participation or
through conduct that amounts to condonation or tacit authorization,’ between the actor and the
underlying violation.” Sanchez, 590 F.3d at 49 (quoting Camilo-Robles, 175 F.3d at 44).
Because Plaintiff does not allege that Defendant Piro was a direct participant in
Plaintiff’s alleged harms, the later scenario is relevant here. Thus, the inquiry focuses on
“whether the supervisor’s actions displayed deliberate indifference toward the rights of third
parties and had some causal connection to the subsequent tort.” Camilo-Robles, 175 F.3d at 44.
Importantly, on a motion to dismiss, merely “[p]arroting our standard for supervisory liability in
the context of Section 1983 . . . is precisely the type of ‘the-defendant-unlawfully-harmed-me’
allegation that the Supreme Court has determined should not be given credence when standing
alone.” Sanchez, 590 F.3d at 49 (internal citations omitted).
Here, Plaintiff has provided no factual allegations that could plausibly establish that
Defendant Piro was deliberately indifferent to the fact that Dookhan would provide false analysis
reports as to Plaintiff’s criminal case presented a risk that federal rights would be violated.
Further, Plaintiff does not plead any facts that could lead to an inference that Defendant Piro was
causally connected to his harms in any way. Instead, Plaintiff has merely “parroted” the standard
for supervisory liability. Therefore, Defendant Piro is also not liable in his individual capacity.
Because Defendant Piro is not officially or individually liable for the claims against him,
the issue of qualified immunity need not be addressed.
Conclusion
For the reasons set forth above, Defendant Piro’s Motion to Dismiss (Docket No. 21) is
granted.
SO ORDERED.
/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
DISTRICT JUDGE