John Doe v. Spears

United States District Court

District of Massachusetts

)

John Doe, Father and Next Friend )

of A, B and C, )

)

Plaintiff, ) Civil Action No.

) 18-12547-NMG

v. )

)

Linda Spears et al., )

)

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 children, all of

whom were minors at the time, from the residence of their

father, Benjamin Tariri (“Tariri” or “plaintiff”). Plaintiff

claims in his amended complaint 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” and, collectively, “the

defendants”), intentionally violated his constitutional rights

during the DCF’s investigation into allegations of child abuse.

This Court previously dismissed plaintiff’s amended

complaint in its entirety based upon, inter alia, sovereign

immunity, qualified immunity and the Rooker-Feldman doctrine.

Plaintiff appealed to the First Circuit Court of Appeals (“the

First Circuit”), which affirmed, in part, and vacated, in part,

and the matter was remanded to this Court for further

proceedings. Now before the Court is defendants’ renewed motion

to dismiss plaintiff’s amended complaint. For the reasons set

forth below, defendant’s renewed motion to dismiss (Dkt. No. 49)

will be allowed, with the caveat that plaintiff will be granted

one final opportunity to correct the shortcomings of his amended

complaint.

I. Background

A. Facts

Plaintiff is the father of three children, identified as

“A”, “B” and “C”, who were 14, 12 and 9 years old when the child

abuse investigation at issue began. At the time, all three of

the children lived with plaintiff. In late October, 2014, Kelly

called plaintiff to ask if she could meet with him and his

children at his residence.

During her visit several days after the call, Kelly

informed plaintiff that she was investigating an allegation that

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

immediately denied the allegation. Kelly told plaintiff that

“A”, the oldest child, had confirmed that plaintiff hit “C”. In

his complaint, plaintiff contends that “C”’s mother prompted “C”

to fabricate the allegations of abuse and that “A” substantiated

the false allegations because he was a teenage boy who was upset

with his father. Plaintiff further contends that there were

never any bruises or other marks on “C” or either of the other

children.

Neither Plaintiff nor his children heard from DCF for more

than one month after Kelly’s November, 2014 visit. Kelly then

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

that the children were being removed from his residence and

placed in DCF custody. The next day, plaintiff was informed of

his right to a “72-hour hearing” during which the juvenile court

would hear evidence to determine whether temporary removal of

the children was justified. Plaintiff received a “petition”

that the DCF filed with the juvenile court alleging that

plaintiff had abused “C” by slapping and kicking him.

Plaintiff avers that defendants attempted to coach the

children to testify against him at the hearing and that he was

not permitted to be present during their testimony or to cross-

examine them. Plaintiff also alleges that, despite being

coached by the DCF, the children testified they were not afraid

of their father. In January, 2015, however, the juvenile court

determined that the DCF had satisfied its burden of proof,

removed the children from the custody of plaintiff and

temporarily placed the children with their mother.

Plaintiff next alleges that defendants prevented him from

seeing or communicating with his children for an extended period

of time despite the limited visitation rights that the juvenile

court had allowed him. Plaintiff also contends that Kelly

advised his children it would not be good for them to see their

father and that she never informed the children that plaintiff

had been asking to see them. Kelly, meanwhile, allegedly told

plaintiff that his children did not want to see him even when,

in fact, the contrary was true and they had already visited with

him surreptitiously.

In addition, plaintiff submits that defendants provided

false evidence in state court regarding his fitness and

readiness to see his children. In November, 2015, the DCF is

alleged to have submitted a false report to the state probate

court that plaintiff’s therapist had determined he was unfit to

see his children. Several months later, in June, 2016, the

therapist testified in open court that he never made any such

statement.

Plaintiff explains that the DCF closed its case involving

plaintiff and his family in February, 2016, and that the DCF was

then dismissed from the state probate court case in March, 2016.

The DCF never proved its charge of abuse against plaintiff, who

alleges that he and his three children have suffered multiple

and serious injuries as a result of their lengthy separation and

the extended proceedings.

B. Procedural History

In December, 2018, plaintiff filed a complaint and a motion

to impound and seal the information contained in the complaint.

Shortly thereafter, he filed an amended complaint in which he

asserts 16 claims.

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

amended complaint, asserting that plaintiff’s claims were barred

by various doctrines of immunity and otherwise lacked merit. In

July, 2019, this Court allowed the motion to dismiss in its

entirety. Plaintiff appealed to the First Circuit which, as

previously stated, affirmed, in part, vacated, in part, and

remanded. The claims now before the Court are as follows:

1. Plaintiff’s procedural due process claim under 42

U.S.C. § 1983 against an unspecified defendant (“DCF”), based

upon the alleged submission of a false report to the state

probate court.

2. Plaintiff’s constitutional familial integrity claim

under 42 U.S.C. § 1983 against Kelly in her individual capacity

based upon her alleged intentional sabotage of plaintiff’s

court-approved visitation rights.

3. Plaintiff’s claim for intentional infliction of

emotional distress against Kelly in her individual capacity for

the same alleged sabotage and deception.

II. Motion to Dismiss

A. Legal Standard

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

12(b)(6), the subject pleading must contain sufficient factual

matter to state a claim for relief that is actionable as a

matter of law and “plausible on its face.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). A claim is facially plausible if,

after accepting as true all non-conclusory factual allegations,

the court can draw the reasonable inference that the defendant

is liable for the misconduct alleged. Ocasio-Hernandez v.

Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011).

When considering the merits of a motion to dismiss, a court

may not look beyond the facts alleged in the complaint,

documents incorporated by reference therein and facts

susceptible to judicial notice. Haley v. City of Boston, 657

F.3d 39, 46 (1st Cir. 2011). A court also may not disregard

properly pled factual allegations even if actual proof of those

facts is improbable. Ocasio-Hernandez, 640 F.3d at 12. Rather,

the court’s inquiry must focus on the reasonableness of the

inference of liability that the plaintiff is asking the court to

draw. Id. at 13.

B. Application

i. The Procedural Due Process Claim

Plaintiff’s amended complaint asserts a due process

violation under § 1983 based upon the alleged presentation of a

false report to the state probate court in November, 2015. As

construed, that allegation sets forth a plausible violation of

the Fourteenth Amendment to the United States Constitution. The

knowing submission of false evidence to a court is, furthermore,

an obvious violation of clearly established due process rights

that does not afford the offending official the protection of

qualified immunity. See, e.g., Hardwick v. Cty. of Orange, 844

F.3d 1112, 1118-20 (9th Cir. 2017) (affirming the determination

of the district court that perjury by government-employed social

workers and the use of false evidence were incompatible with the

Fourteenth Amendment guarantee of due process in court and thus

defendants were not entitled to qualified immunity).

As it is currently set forth in his amended complaint,

however, plaintiff’s due process claim must be dismissed. See

Pease v. Burns, 719 F. Supp. 2d 143, 154-55 (D. Mass. 2010)

(dismissing plaintiffs’ procedural due process claim because it

failed “to demonstrate a causal relationship between the

deprivation asserted and any of the [] individual defendants

actually named in the Complaint”). The amended complaint fails

to identify which, if any, of the three individual defendants

allegedly submitted the false November, 2015 report to the

probate court. Instead, the relevant factual allegations in the

complaint refer generally to “Defendant DCF” or “DCF” as the

responsible party.

Plaintiff contends that, in November, 2015,

Defendant DCF then wrote a “report” to the Probate

court . . . DCF wrote to the Judge that according to

the therapist, Mr. Ferreira, [plaintiff] had been

“manipulative” and that “he was in no shape of

readiness to start family therapy or to see his

children."

Dkt. No. 7, ¶ 312. Plaintiff repeats that allegation, again

with respect to what “DCF” wrote, in an entirely separate

portion of the complaint. Id. at ¶ 436. The DCF is not,

however, a defendant in this action and none of the individual

DCF employees presently before the Court is subject to suit in

her official capacity.

Even when read in the context of the entire complaint,

plaintiff’s generalized claim against “Defendant DCF” or “DCF”

for submitting the false report lacks specific factual support

capable of establishing a basis for recovery against

Commissioner Spears, Kelly and/or Edwards in their individual

capacities. Leavitt v. Corr. Med. Servs., 645 F.3d 484, 502 (1st

Cir. 2011) (affirming the conclusion of the district court that

plaintiff’s group liability theory could not provide the basis

for recovery because it is “axiomatic” that persons sued in

their individual capacities under § 1983 may be held liable only

on the basis of that person’s particular actions or omissions).

In his opposition to the motion to dismiss, plaintiff

quotes from ¶ 436 of his amended complaint but he replaces the

subject “DCF” with “these Defendants” in an apparent attempt to

direct the allegations against the defendants Kelly and Edwards.

Compare Dkt. No. 7, ¶ 436 with Dkt. No. 71, at 6. That

substitution is not, however, supported by any facts alleged in

the amended complaint.

In a similar vein, plaintiff’s opposition to the motion to

dismiss states that “Defendant Kelly wrote” the report at issue.

Id. at 10. It is improper, however, for a plaintiff to “bolster

the allegations of the Amended Complaint through the late

addition of new facts in opposing a motion to dismiss.” Decoulos

v. Town of Aquinnah, No. 17-CV-11532-ADB, 2018 WL 3553351, at

*12 (D. Mass. July 24, 2018), aff'd, No. 18-1820, 2019 WL

11234357 (1st Cir. Dec. 10, 2019).

Plaintiff’s claim, therefore, is subject to dismissal

because the amended complaint does not identify who, if any, of

the three individual defendants was responsible for writing

and/or submitting the allegedly false report to the

Massachusetts Probate Court. See Iqbal, 556 U.S. 622 at 676

(holding that “a plaintiff must plead that each Government-

official defendant, through the official’s own individual

actions, has violated the Constitution.”); Redondo Waste Sys.,

Inc. v. Lopez-Freytes, 659 F.3d 136, 140 (1st Cir. 2011)

(holding that a plaintiff’s “complaint must allege facts linking

each defendant to the grounds on which that particular defendant

is potentially liable”). The Court is amenable to considering a

second amended complaint that addresses this deficiency if such

an amendment is warranted by the facts.

ii. The Constitutional Familial Integrity Claim

Plaintiff asserts a Fourteenth Amendment claim against

defendant Kelly under § 1983 based upon the alleged sabotage of

his court-approved visitation rights. Mr. Tariri’s allegations

are insufficient to overcome Kelly’s entitlement to the defense

of qualified immunity. The doctrine of qualified immunity

provides government officials immunity from suit

when an official’s conduct does not violate clearly

established statutory or constitutional rights of

which a reasonable person would have known.

White v. Pauly, 580 U.S. 73, 78-79 (2017) (cleaned up).

Courts in the First Circuit follow a two-prong analysis

when evaluating whether a defendant is entitled to qualified

immunity. A court may address the two prongs sequentially or it

may resolve a case based upon the second prong alone. Barton v.

Clancy, 632 F.3d 9, 22 (1st Cir. 2011). The first prong asks

whether the facts alleged by a plaintiff state a violation of a

constitutional right, and the second prong asks whether the

right was “clearly established” at the time of the alleged

violation. See, e.g., Díaz-Bigio v. Santini, 652 F.3d 45, 50

(1st Cir. 2011). The second prong of the analysis itself

consists of two parts:

(a) whether the legal contours of the right in

question were sufficiently clear that a reasonable

official would have understood that what he was doing

violated that right, and (b) whether the particular

factual violation in question would have been clear to

a reasonable official.

Id.

The Supreme Court has recognized a constitutional right to

familial integrity but that right is neither “absolute [n]or

unqualified.” Frazier v. Bailey, 957 F.2d 920, 929 (1st Cir.

1992). The fundamental rights of the child, as well as the

government’s interest in the health and welfare of children as

future citizens, must also be considered. Id. at 929-31. This

Court must, therefore, look to the specific allegations against

Kelly in light of the rest of the facts, and the rest of the

implicated interests, set out in the amended complaint.

In support of his familial integrity claim, Tariri avers

that Kelly 1) repeatedly told the children it would not be good

for them to visit with him, 2) informed plaintiff that “A” did

not want to visit with him when “A” was in fact visiting him

surreptitiously, 3) never told the children that plaintiff had

been asking to see them and 4) never told the plaintiff that his

children wanted to see him. It is unclear from the amended

complaint exactly what visitation rights plaintiff was granted

by the juvenile court or what the ultimate effect of Kelly’s

alleged sabotage was on those limited rights. It is reasonable

to infer that Kelly’s conduct disrupted at least some potential

visitations that otherwise would have occurred.

At the time of Kelly’s purported sabotage, however, the

children had been temporarily removed from plaintiff’s custody

by the juvenile court pursuant to an investigation into

allegations of child abuse. Based upon the facts submitted in

the amended complaint, including Kelly’s advisement to the

children that it would not be good for them to see the

plaintiff, it is reasonable to infer that Kelly had cause to

believe, and did believe, that plaintiff had physically abused

at least one of the children.

Under these circumstances, plaintiff’s limited

constitutional interest in familial integrity, although sincere,

must be balanced against the government’s interest in

investigating allegations of child abuse and taking remedial

action to protect children. See Connor B. ex rel. Vigurs v.

Patrick, 774 F.3d 45, 58 (1st Cir. 2014). Kelly, a social

worker intimately involved with the investigation at hand, had

some amount of leeway to act in the interest of what she had

reason to believe were imperiled children. See Hatch v. Dep't

for Child., Youth & Their Fams., 274 F.3d 12, 22 (1st Cir. 2001)

(recognizing that it is preferable for a case worker to err on

the side of caution rather than decline to protect a potentially

imperiled child). Thus, Kelly’s alleged conduct did not violate

any clearly established constitutional right and she is entitled

to qualified immunity.

iii. The Intentional Infliction Of Emotional Distress

Claim

Plaintiff also asserts a claim for intentional infliction

of emotional distress against Kelly based upon the same alleged

sabotage of communications and visitations between plaintiff and

his children. Even assuming plaintiff has averred a viable

claim for such emotional distress, that claim is barred by the

Massachusetts common law of qualified immunity. Under

Massachusetts common law,

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.

Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d 134, 146 (1st

Cir. 2016) (citation omitted). There is a presumption “in favor

of the honesty and sufficiency of the motives” for an official’s

conduct when she is ostensibly taking action “for the general

welfare.” Id. (citation omitted).

In view of the foregoing circumstances under which Kelly

allegedly interfered with plaintiff’s visitation rights, such a

presumption in favor of her motives is supported by the factual

allegations in the amended complaint. Although it can be

inferred that Kelly did not pass along every message or report

between the plaintiff and his children that the plaintiff would

have preferred, thereby forestalling some potential visits,

there are no non-conclusory allegations that suggest a malicious

or corrupt motive. Instead, it appears that Kelly’s actions

were good faith efforts to protect the welfare of the children.

Tariri’s claim for intentional infliction of emotional distress

against Kelly does not, therefore, overcome her defense of

qualified immunity under Massachusetts common law.

ORDER

For the foregoing reasons, the motion of defendants Linda

Spears, Patricia Kelly, and Judith Edwards to dismiss

plaintiff’s amended complaint (Dkt. No. 49) is ALLOWED, but

plaintiff is not foreclosed from seeking to file a second

amended complaint with respect to the procedural due process

claim if such an amendment is warranted by the facts.

So ordered.

/s/ Nathaniel M. Gorton_____

Nathaniel M. Gorton

United States District Judge

Dated: September 22, 2022