Jakuttis v. Town of Dracut

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

JOSEPH A. JAKUTTIS, )

)

)

Plaintiff, ) CIVIL ACTION NO.

) 16-12643-DPW

v. )

)

TOWN OF DRACUT, MASSACHUSETTS, )

DAVID J. CHARTRAND, JR., )

MICHAEL V. O’HANLON, )

DEMETRI MELLONAKOS, )

RICHARD P. POIRIER, JR., )

and UNITED STATES OF AMERICA, )

)

Defendants. )

MEMORANDUM AND ORDERS

February 14, 2023

TABLE OF CONTENTS

I. BACKGROUND.................................................. 5

A. The Parties ............................................. 5

1. The Plaintiff .......................................... 5

2. The Defendants ......................................... 5

a. The Dracut Defendants ................................ 5

i. The Town of Dracut (the “Town” or “Dracut”) ......... 5

ii. David J. Chartrand, Jr ............................. 5

iii. Demetri Mellonakos [John Doe 1] .................... 5

b. The Federal Defendants ............................... 6

i. Michael V. O’Hanlon ................................. 6

ii. Richard P. Poirier, Jr. [John Doe 2] ................ 6

iii. United States ...................................... 7

B. The Procedural Posture .................................. 7

1. Travel of the Case ..................................... 7

2. Procedural Approach ................................... 10

a. The Doctrine of Qualified Immunity .................. 11

b. Summary Judgment and Qualified Immunity ............. 13

c. Motion to Dismiss and Qualified Immunity ............ 14

d. District Court’s Procedural Control over Discovery .. 16

C. Mr. Jakuttis’s Professional Background ................. 17

D. Duties Associated with Dracut Police Department Roles Held

by Mr. Jakuttis, and Information about the Dracut Police

Department .................................................. 18

E. The 2002 Marijuana Theft ............................... 21

F. 2006-2012: Mr. Jakuttis’s Medical Leave and Return to

Dracut Police Department .................................... 22

G. Mr. Jakuttis at the DEA Task Force ..................... 23

H. CS’s Disclosure to Mr. Jakuttis and Related ..............

Circumstances ............................................... 24

I. Events Following Mr. Jakuttis’s Report of CS’s ...........

Disclosure .................................................. 26

J. Mr. Jakuttis’s Removal from the DEA Task Force ...........

and Return to Dracut Police Department Patrol Assignment .... 28

K. Mr. Jakuttis’s Departure from the Dracut Police ..........

Department .................................................. 29

II. MOTION TO STRIKE.......................................... 30

A. Nature of Work During DEA Assignment ................... 31

B. Threats, Intimidation, and Coercion .................... 32

III. SUMMARY JUDGMENT MOTIONS APART FROM RICO CLAIMS.......... 34

A. Count I: 42 U.S.C. § 1983, First Amendment Claim as to

Dracut, Mr. Chartrand, and Mr. Mellonakos ................... 35

1. Matter of Public Concern .............................. 37

2. Speaking as a Citizen ................................. 38

B. Count II: MASS. GEN. LAWS ch. 12, §§ 11H and 11I,

Massachusetts Civil Rights Act Free Speech Claim as to Mr.

Chartrand and Mr. Mellonakos ................................ 44

C. Count III: MASS. GEN. LAWS ch. 149, § 185, Massachusetts

Whistleblower Act as to Dracut .............................. 50

1. Section 185(b)(1) ..................................... 52

2. Section 185(b)(3) ..................................... 54

3. Section 185(b)(2) ..................................... 55

D. Count IV: Intentional Interference with Advantageous

Economic Relationship as to Mr. Chartrand and Mr. Mellonakos 60

1. Mr. Jakuttis’ Claim Against Mr. Chartrand ............. 61

2. Mr. Jakuttis’ Claim Against Mr. Mellonakos ............ 63

E. Count VI: Intentional Infliction of Emotional Distress as

to Mr. Chartrand and Mr. Mellonakos ......................... 64

F. Count VII: Civil Conspiracy as to Mr. Chartrand and Mr.

Mellonakos .................................................. 66

IV. FEDERAL RICO CLAIMS....................................... 68

A. Motion to Dismiss Standard ............................. 69

B. Count VIII: 18 U.S.C. §§ 1962(c) and 1964(c), Civil RICO

as to All Defendants Except Dracut .......................... 71

1. Racketeering Activity ................................. 73

2. Enterprise ............................................ 74

3. Conduct ............................................... 79

4. Requisite Injury ...................................... 82

5. Pattern of Activity ................................... 83

C. Count IX: 18 U.S.C. §§ 1962(d) and 1964(c) Civil RICO

Conspiracy as to All Defendants Except Dracut ............... 88

V. PUBLIC DISCLOSURE.......................................... 90

VI. CONCLUSION................................................ 95

Joseph A. Jakuttis, a quondam member of the Dracut Police

Department, says a confidential source made him aware of

potential illegal theft and use of controlled substances by

other members of the Dracut Police Department. Shortly after

Mr. Jakuttis brought these allegations to the attention of

members of the United States Drug Enforcement Agency (“DEA”) and

the Dracut Police Department itself, he was removed from the DEA

Task Force to which he had been assigned and placed back in the

Dracut Police Department patrol unit, despite years of

experience with the detective unit. Mr. Jakuttis contends that

his efforts to expose misconduct by those sworn to uphold the

law resulted in harassment from fellow officers and a demotion.

He has since taken an indefinite leave from the Department.

This case has been pleaded with a broad brush and in a less

than rigorous fashion, but after discovery as to claims against

certain of the Defendants and upon careful examination of the

operative First Amended Complaint (the “operative Complaint”) in

light of the summary judgment record developed, I am satisfied

that no genuine issues as to material facts have been identified

to prevent entry of final judgment for all remaining Defendants

left after the travel of the case to date.

I. BACKGROUND

A. The Parties

1. The Plaintiff

Joseph A. Jakuttis is a resident of Deerfield, New

Hampshire. At the time he filed this action, and as alleged in

the operative Complaint in this matter, Mr. Jakuttis was a

police officer for the Town of Dracut, Massachusetts.

2. The Defendants

a. The Dracut Defendants

i. The Town of Dracut (the “Town” or “Dracut”)

is a municipal corporation duly incorporated under the laws of

Massachusetts. During all relevant periods described in the

operative Complaint, the Town was Mr. Jakuttis’s employer.

ii. David J. Chartrand, Jr. is an individual

residing in Dracut, Massachusetts. At all material times

referenced in the operative Complaint, Mr. Chartrand was

employed by the Dracut Police Department. He served as the

Deputy Chief of the Dracut Police Department.

iii. Demetri Mellonakos [John Doe 1],1 is an

1 Although I allowed [Dkt. No. 116] a joint motion [Dkt. No. 115]

to file under seal submitted by Defendants Town of Dracut,

Mellonakos and Chartrand, Mr. Mellonakos, who was identified as

John Doe 1 in Mr. Jakuttis’ original Complaint did not file his

separate Motion for Summary Judgment [Dkt. No. 121] under seal.

Mr. Chartrand, who was not identified by pseudonym, also did not

file his motion for summary judgment under seal. Thus, Mr.

individual residing in Dracut, Massachusetts. At all times

material to the operative Complaint, he was employed as a member

of the Dracut Police Department.

b. The Federal Defendants2

i. Michael V. O’Hanlon is an individual residing

in Andover, Massachusetts. At all times material to the

operative Complaint, he was employed by the United States

Department of Justice as a DEA agent.

ii. Richard P. Poirier, Jr. [John Doe 2],3 is an

Mellonakos, who was identified as John Doe 1 in the original

Complaint, will no longer be identified by pseudonym in this

Memorandum, or in the docket caption. I note, however, Dracut

did file its own motion [Dkt. No. 117] under seal. The Town of

Dracut, Mr. Mellonakos, and Mr. Chartrand are each represented

by different counsel, which may explain the disparate sealed and

unsealed filings by each Defendant. I will treat all the Dracut

Defendants in the same fashion, identified by name in this

Memorandum and in the docket’s caption.

2 The Amended Notice of Removal filed by the United States

Department of Justice [Dkt. No. 5] submitted on behalf of these

Defendants, stated that both Mr. O’Hanlon and Mr. Poirier “were

at all relevant times employed by the Drug Enforcement Agency,

an agency of the United States,” and “[t]he acts complained of,

if they occurred at all, were acts by Defendants O’Hanlon and

Poirier within the scope of their employment as employees of the

United States.” [Id. at ¶¶ 3-4] The operative Complaint, which

gave rise to the removal of the case, also identifies Mr.

Poirier by name as a member of the DEA Cross-Borders Initiative

unit in Lowell. [Dkt. No. 70 at 30] In my Order of

Substitution of the United States as Defendant [Dkt. No. 50], I

dismissed several claims against these Defendants, “having been

apprised that the Attorney General’s designee has certified that

the individual defendants Michael V. O’Hanlon and Richard

Poirier (‘John Doe 2’) were acting within the scope of their

federal employment at the time of the incident(s) alleged in

this action.”

individual residing in Lowell, Massachusetts. At all times

material to the operative Complaint, he was formally employed by

the Massachusetts State Police and also served on detail to the

DEA Task Force.

iii. United States. As a result of certification

pursuant to 28 U.S.C. § 2679(d) in connection with removal of

the case to this Court [Dkt. No. 5], this lawsuit became in

relevant part an action against the United States and the United

States was substituted as the formal party defendant for the

federal Defendants. Following the lead of counsel for the

United States and in the interest of clarity, I have identified

the claims against the United States as involving conduct of the

individual named federal Defendants. Thus, the discussion of

claims against the United States specifically addresses the

actions of the relevant certified employees of the United States

— Messrs. O’Hanlon and Poirier — whose conduct provides the

basis for the claims against the United States.

B. The Procedural Posture

1. Travel of the Case

This litigation began its journey to this court after Mr.

3 The motion to dismiss before me [Dkt. No. 51] submitted on

behalf of Mr. Poirier and Mr. O’Hanlon was not filed under seal.

Consequently, although identified as John Doe 2 in the original

Complaint, as with the individual Dracut Defendants, Mr. Poirier

will be identified by name in this Memorandum and in the

docket’s caption.

Jakuttis filed the operative Complaint on December 19, 2016 in

Middlesex Superior Court and thereafter on December 30, 2016,

the United States removed the case on the basis that certain of

the claims concerned acts by federal employees acting within the

scope of their employment as such. See 28 U.S.C. §§ 1442(a)(1);

1443; 2679(d)(2). [Dkt. No. 5 at ¶¶ 8-10]

Following removal, Mr. Jakuttis voluntarily dismissed his

Massachusetts state civil rights act claim, said to be

“cognizable through the Federal Tort Claims Act,” as to the

federal Defendants (included in Count II) and other Federal Tort

Claims Act claims (included in Counts IV, V, VI, and VII) [Dkt.

Nos. 48 and 49]. I, in turn, ordered [Dkt. No. 50] all such

claims dismissed as to the federal Defendants (Counts II, IV-

VII) certified pursuant to 28 U.S.C. § 2679(d).

Messrs. O’Hanlon and Poirier, the individual certified

federal Defendants, then moved to dismiss [Dkt. No. 51] Mr.

Jakuttis’s remaining civil rights claims and his civil Racketeer

Influenced and Corrupt Organizations (“RICO”) Act claims against

them. I dismissed Mr. Jakuttis’s 42 U.S.C. § 1983 civil rights

and Bivens claims against the federal Defendants. But I took

under advisement the federal Defendants’ motion [Dkt. No. 51] to

dismiss Mr. Jakuttis’s remaining federal civil RICO and RICO

conspiracy claims under 18 U.S.C. §§ 1962(c) and (d) and

1964(c). Meanwhile, I granted a motion to stay discovery as to

the federal Defendants pending the resolution of their motion to

dismiss. [Dkt. No. 82]

For their part, following completion of discovery, the

Dracut Defendants — Messrs. Chartrand and Mellonakos, and the

Town of Dracut — moved for summary judgment on the remaining

counts naming those Defendants. [Dkt. Nos. 117, 121, 123] A

Joint Statement of Undisputed Material Facts was filed by these

Defendants [Dkt. No. 119] and Mr. Jakuttis responded with a

Statement of Disputed Material Facts [Dkt. No. 126].

Consequently, now before me are the motions of Mr.

Chartrand, Mr. Mellonakos, and the Town of Dracut for summary

judgment variously as to Mr. Jakuttis’s First Amendment

retaliation claims, free speech claims, whistleblower claims,

Massachusetts tort claims, civil conspiracy claims, and civil

RICO and RICO conspiracy claims.4

4 Mr. Jakuttis’s remaining claims as to the individual Dracut

Defendants Mr. Chartrand and Mr. Mellonakos include: a 42 U.S.C.

§ 1983 claim for violation of his First Amendment right to free

speech (Count I), a claim under the Massachusetts Civil Rights

Act also on free speech grounds (Count II), claims regarding

Intentional Interference with Advantageous Economic Relationship

(Count IV) and Intentional Infliction of Emotional Distress

(Count VI), a Civil Conspiracy claim (Count VII), a Civil RICO

claim pursuant to 18 U.S.C. §§ 1962(c) and 1964(c) (Count VIII),

and a Civil RICO Conspiracy claim pursuant to 18 U.S.C.

§§ 1962(d) and 1964(c) (Count IX).

The remaining counts as to the Town of Dracut include: a 42

U.S.C. § 1983 claim for violation of Mr. Jakuttis’s First

Amendment right to free speech (Count I) and a claim under the

I also take up at this time the joint motion of the

individual federal Defendants O’Hanlon and Poirier to dismiss

Mr. Jakuttis’s federal civil RICO claims, further consideration

of which had been stayed pending development of the summary

judgment record with respect to Mr. Chartrand, Mr. Mellonakos,

and the Town of Dracut.

2. Procedural Approach

As is evident from the complex and circuitous narrative of

the travel of the case concisely recited supra Section I.B.1,

this matter has been structured as a matter of case management

in a layered procedural posture. That layering juxtaposes

claims against state Defendants and federal Defendants, a

context requiring at this point, respectively, analysis under

summary judgment standards regarding the state Defendants and

under motion to dismiss standards regarding the federal

Defendants.

The respective claims arrived at this point for

consideration because the procedural posture of the case is

overlaid with recognized principles of qualified immunity that

shape how and why claims against official actors should be taken

up. After summarizing qualified immunity principles, infra

Section I.B.2.a., I will outline, infra Section I.B.2.b.,

Massachusetts Whistleblower Act, MASS. GEN. LAWS ch. 149, § 185

(Count III).

summary judgment standards in light of those immunity principles

and then, infra Section I.B.2.c., I will outline the motion to

dismiss standards in light of those principles. Finally, in

Section I.B.2.d., I will address the sequencing of consideration

of the respective claims, which the procedural standards and

qualified immunity principles caused me to address in connection

with the particularities of this case.

a. The Doctrine of Qualified Immunity

Qualified immunity provides public officials with an

affirmative defense to liability and a means of avoiding the

“‘costs of trial or . . . the burdens of broad-reaching

discovery’ in cases where the legal norms the officials are

alleged to have violated were not clearly established at the

time.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (quoting

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

doctrine provides “immunity from suit rather than a mere defense

to liability, meaning it is effectively lost if a case is

erroneously permitted to go to trial.” Justiniano v. Walker,

986 F.3d 11, 27 (1st Cir. 2021) (internal quotations and

citations omitted). Accordingly, the Supreme Court and the

First Circuit have often emphasized the importance of addressing

issues of qualified immunity “at the earliest possible stage in

litigation,” to protect officials from unnecessary litigation

burdens. Haley v. City of Boston, 657 F.3d 39, 47 (1st Cir.

2011) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per

curiam)).

To evaluate a claim of qualified immunity, “[a] court must

decide: (1) whether the facts alleged or shown by the plaintiff

make out a violation of a constitutional right; and (2) if so,

whether the right was ‘clearly established’ at the time of the

defendant's alleged violation.” Maldonado v. Fontanes, 568 F.3d

263, 269 (1st Cir. 2009) (citing Pearson v. Callahan, 555 U.S.

223, 232 (2009)). Unless both questions are answered in the

affirmative, the defendant is immune from suit. A district

court has considerable discretion to address these questions

however “best facilitate[s] the fair and efficient disposition

of each case.” See Pearson, 555 U.S. at 242.

Where the court can conclude at the outset that the right

allegedly violated was not clearly established at the time of

the violation, it may grant a motion to dismiss or motion for

summary judgment on qualified immunity grounds, sparing the

court and the parties the “substantial expenditure of scarce

judicial resources on difficult questions that have no effect on

the outcome of the case.” Eldredge v. Town of Falmouth, 662

F.3d 100, 106 (1st Cir. 2011) (quoting Pearson, 555 U.S. at 236-

37). In other cases, the court will need to decide the

objective reasonableness of a defendant’s conduct, based on the

information in the defendant’s possession at the time, to

resolve the issue of qualified immunity. Kelley v. LaForce, 288

F.3d 1, 7 (1st Cir. 2002). Factual disputes or undeveloped

facts relevant to qualified immunity may preclude an early

decision in such cases. Id.

However, courts must maintain a balance between a

defendant-official’s interest in the early dismissal of claims

as to which he is immune, and a plaintiff’s interest in

benefiting from the favorable standards afforded to him on a

motion to dismiss or a motion for summary judgment. See

Chamberlain Est. of Chamberlain v. City of White Plains, 960

F.3d 100, 110 (2d Cir. 2020) (“To be sure, qualified immunity

should be resolved at the earliest possible stage in litigation.

But there is an obvious, if rarely expressed, corollary to that

principle: The immunity question cannot be resolved before the

earliest possible stage, i.e., prior to ascertainment of the

truth of the plausible factual allegations on which a finding of

qualified immunity is premised.” (internal citations and

quotations omitted)); see also Morelli v. Webster, 552 F.3d 12,

18–19 (1st Cir. 2009) (describing an “inherent tension” between

the summary judgment and qualified immunity standards);

Justiniano, 986 F.3d at 27.

b. Summary Judgment and Qualified Immunity

When a defendant moves for summary judgment on qualified

immunity grounds, a “tug-of-war” ensues, “between who gets the

benefit of the doubt: summary judgment ‘requires absolute

deference to the nonmovant's factual assertions,’ while

qualified immunity ‘demands deference to the reasonable, if

mistaken, actions of the movant.’” Justiniano, 986 F.3d at 27

(quoting Morelli, 552 F.3d at 18-19). ”Plotting” the “doctrinal

intersection” between summary judgment and qualified immunity

“can present thorny analytic problems — problems that are

magnified because of the desire to resolve claims of qualified

immunity at the earliest practicable stage of litigation.”

Morelli, 552 F.3d at 18. The First Circuit has held that a

district court deciding such a motion for summary judgment

should (1) ”identify[] the version of events that best comports

with the summary judgment standard,” and then (2) determine,

“whether, given that set of facts, a reasonable officer should

have known that his actions were unlawful.” Id. at 19; see

Justiniano, 986 F.3d at 27; Mlodzinski v. Lewis, 648 F.3d 24, 28

(1st Cir. 2011).

c. Motion to Dismiss and Qualified Immunity

When a defendant moves to dismiss a complaint on qualified

immunity grounds, the court faces even greater tension created

by the Rule 12(b)(6) plausibility standard: that between the

need to “develop[] the requisite facts for a well-informed

qualified immunity determination and [the need to] preserv[e] a

government official's right to avoid the burdens of pretrial

matters, including discovery.” Brown v. Cumberland Cnty., 557

F. Supp. 3d 169, 177 (D. Me. 2021) (quoting Reed v. Palmer, 906

F.3d 540, 548 (7th Cir. 2018)). As a result, “advancing

qualified immunity as grounds for a motion to dismiss is almost

always a procedural mismatch,” Chamberlain Est. of Chamberlain,

960 F.3d at 111 (citing Jacobs v. City of Chicago, 215 F.3d 758,

775 (7th Cir. 2000) (Easterbrook, J., concurring)), and the

court will often lack the “robust factual record” it needs to

decide whether an official is entitled to qualified immunity at

this stage, Reed, 906 F.3d at 548. The Second Circuit has gone

so far as to caution that generally, “the defense of qualified

immunity cannot support the grant of a [Rule] 12(b)(6) motion.”

Chamberlain Est. of Chamberlain, 960 F.3d at 110 (alteration in

original) (quoting Green v. Maraio, 722 F.2d 1013, 1018 (2d Cir.

1983)).

The First Circuit has acknowledged, however, that a

qualified immunity claim “can be raised and evaluated on a

motion to dismiss,” Haley, 657 F.3d at 47, when it is clear on

the face of the complaint, accepting all of the plaintiff’s

well-pleaded factual allegations, that either the right

allegedly violated was not clearly established or the

defendant’s alleged actions were objectively reasonable under

the circumstances. See id.; Brown, 557 F. Supp. 3d at 176-77.5

d. District Court’s Procedural Control over

Discovery

The Supreme Court suggested in Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982) and again in Crawford-El v. Britton that

“the district court should resolve th[e] threshold question [of

qualified immunity] before permitting discovery.” Crawford-El

v. Britton, 523 U.S. 574, 598 (1998) (citing Harlow, 457 U.S. at

818).

Pursuant to FED. R. CIV. P. 26, a district court has “broad

discretion to tailor discovery narrowly and to dictate the

sequence of discovery” to resolve the qualified immunity issue

without subjecting the defendant-official to the burdens of

5 Although I address the competing summary judgment, motion to

dismiss, and qualified immunity standards at the onset of this

Memorandum to situate the doctrines governing the matter now

before me, where a plaintiff fails to state a claim or identify

an issue of material fact in dispute, courts have determined

that reaching the question of qualified immunity is unnecessary.

See Thomas v. Harrington, 909 F.3d 483, 493 n.18 (1st Cir. 2018)

(stating that a court need not address qualified immunity where

summary judgment affirmed on Massachusetts Civil Rights Act

claim); Cruz-Erazo v. Rivera-Montañez, 212 F.3d 617, 624 (1st

Cir. 2000) (explaining that a court need not reach the question

of qualified immunity because it determined that plaintiff

failed to plead a violation of Section 1983). I take the same

approach here. As explained in the forthcoming Sections, Mr.

Jakuttis has not adequately pleaded his claims as to the federal

Defendants, nor has he raised an issue of material fact as to

the state Defendants. As a result, I need not discuss whether

Defendants are entitled to qualified immunity.

discovery when he may ultimately be found immune from suit.

Crawford-El, 523 U.S. at 598-99. The court may “set the timing

and sequence of discovery,” and may “postpone all inquiry

regarding [qualified immunity] until discovery has been had on

objective factual questions such as whether the plaintiff

suffered any injury or whether the plaintiff actually engaged in

protected conduct that could be the object of unlawful

retaliation.” Id. at 599; see also Mihos v. Swift, 358 F.3d 91,

105 (1st Cir. 2004).

I have, broadly stated, permitted the travel of the

litigation of the claims against the state Dracut Defendants and

those against the federal Defendants to proceed along parallel

tracks. Developing the railhead metaphor further, I would

characterize my exercise of discretion as a choice to permit

necessary discovery regarding the state claims to proceed

unimpeded to their destination for purposes of summary judgment

practice. I also chose to place claims against the federal

Defendants on a siding before bringing them to their destination

as a matter of motion to dismiss practice; I am able to do that

now as well with this Memorandum.

C. Mr. Jakuttis’s Professional Background

The Dracut Police Department hired Mr. Jakuttis as a

patrolman in 1998. Within the year, he was assigned to the

detective unit, though he was still ranked as a patrolman.

Detective assignments are made at the discretion of the Chief of

Police.

Mr. Jakuttis served in the detective unit until 2006. In

January of 2006, he was disciplined regarding at least one

incident of misconduct, for which he was returned to a patrol

assignment.

D. Duties Associated with Dracut Police Department Roles Held

by Mr. Jakuttis, and Information about the Dracut Police

Department

I briefly summarize evidence, derived from the summary

judgment record before me, regarding the organizational

structure of the Dracut Police Department and the roles

available to its officers during the relevant time period.

The officers in the Dracut Police Department appear to have

been organized by their rank (e.g. patrolman, sergeant,

lieutenant, deputy chief, chief) and their assignment to a

specific functional unit (e.g. patrol unit, detective unit).

Officers advanced in rank by passing a Civil Service exam and

obtaining a formal promotion, but they received assignments at

the discretion of the Chief of the Department. An officer’s

duties appear to have been determined both by his rank and his

assignment. Officers with the rank of patrolman, like Mr.

Jakuttis, could be assigned to various duties, such as the

patrol division or the detective division.

As described by Mr. Jakuttis, the professional

responsibilities of a patrolman assigned to the patrol unit

included “answering calls for service and patrolling the

streets; maintaining public safety;” as well as

“[e]stablish[ing] crime scenes; [conducting] field interview[s

of] individuals; interview[ing] suspects; arrest[ing]

individuals for various crimes against the Commonwealth; a lot

of motor vehicle, speeding, registrations and so forth; [and]

transporting prisoners to different locations.”

The responsibilities of an officer assigned to the

detective unit, again according to Mr. Jakuttis, included

“investigat[ing] various crimes committed against the

Commonwealth; . . . investigat[ing] crime scenes; interview[ing]

suspects; prepar[ing] and execut[ing] search warrants; [and]

perform[ing] mobile and stationary surveillance.” For his part,

Deputy Chief Chartrand has described the cases that a detective

works as more complex than those of a patrol officer.

How and how much an officer was paid depended on his

assignment. Apart from the base pay associated with the rank of

patrolman, those assigned as detectives could receive as much as

a $50 weekly stipend.6 Mr. Jakuttis also contends, and supports

6 In an affidavit of record, Deputy Chief Chartrand reports that

detectives earned a weekly stipend of $40 per week from 2012 to

2014. This stipend increased to $50 per week in 2015. Had he

with payroll records, that there is more overtime available to

detectives.

According to an organizational assessment of the Dracut

Police Department conducted by Municipal Resources, Inc. (“MRI

Report”) and completed in October 2015,7 “all effective

operational control of the department was found to be exercised”

by Deputy Chief Chartrand8. The report found that, as a

practical matter, Mr. Chartrand “was the principal force behind

the day-to-day operations of the department” while “the chief

[Kevin Richardson] [was] largely absent . . . having abrogated

many of his duties and responsibilities to the deputy chief.”

The MRI Report found as a formal matter that the duties of the

been assigned to the detective unit upon his return from the

Task Force in 2015, Mr. Jakuttis could have received the $50

stipend. Mr. Jakuttis, however, apparently never received this

stipend, at either rate.

7 The operative Complaint at ¶¶ 39-40, recites that the Town of

Dracut commissioned a risk assessment of the Dracut Police

Department, which was conducted by Municipal Resources, Inc. and

completed in October of 2015. Initially, Mr. Jakuttis filed

four of the narrative pages of the report in an Exhibit to his

brief opposing summary judgment. I directed Defendant Dracut to

submit the entirety of the 166 pages of the report to complete

the summary judgment record, which I have reviewed in resolving

the motions for summary judgment now before me. [See Dkt. No.

137] I afforded Defendant Dracut, in response to certain

security concerns unrelated to Mr. Jakuttis’s claims, to present

an unredacted version of the MRI Report under seal and a public

redacted version, which they have filed with a publicly

available explanatory memorandum [Dkt. No. 136] as Dkt. Nos.

136-1 (unredacted report) and 136-2 (redacted report).

8 At the time of the MRI Report, Kevin Richardson was the Dracut

Police Chief and David Chartrand was the Deputy Chief. [Dkt.

No. 136-2 at 10-11]

deputy chief included “budgeting, staffing, performance reviews,

and general administrative duties” (emphasis added) and “the

chief and deputy chief essentially share the role of

administering all program areas.” Mr. Chartrand’s operational

control appears to have extended to the assignment of officers

to each unit.

The MRI Report found that “employees who disagree with the

deputy chief or object in any way fear retribution.” In its

analysis of reasons for departures from Police Department

employment, the MRI Report reported that 76% of survey

respondents felt that the Dracut Police Department was not well

managed and that there were inconsistencies “in regards to

discipline, accountability, expectations, support, feedback, and

standards.” The MRI Report reported that “[m]any respondents

equated these inconsistencies to favoritism and personal bias by

command staff using such references to a particular group of

people as ‘cronies, friends, favorites, the team, or the palace

guards.’”

E. The 2002 Marijuana Theft

In May 2002, Mr. Chartrand and Mr. Jakuttis assisted the

State Police with a narcotics seizure of thirty-five pounds of

marijuana. The seized marijuana was stored in an outside

evidence trailer behind the Dracut Police Department. In April

2003, Mr. Chartrand discovered that the padlocks on that outside

storage container had been cut and the marijuana seized the year

before was missing. Mr. Chartrand told Mr. Jakuttis, which led

them to turn the area into a crime scene and call upon the State

Police to take over, at least preliminarily, the investigation

into the missing marijuana. Mr. Jakuttis and Mr. Chartrand were

tasked to assist the State Police in this investigation, as the

only two officers who volunteered to take and pass a lie

detector test.

F. 2006-2012: Mr. Jakuttis’s Medical Leave and Return to

Dracut Police Department

On or about November 2006, Mr. Jakuttis suffered an injury,

which placed him on injured-on-duty leave. In 2009, he was

involuntarily retired at the request of Chief of Police

Richardson. By 2012, Mr. Jakuttis had recovered sufficiently to

return to duty, a return which Mr. Chartrand supported.

Meanwhile, during Mr. Jakuttis’s absence, Mr. Mellonakos had

achieved the rank of lieutenant and was therefore a superior to

Mr. Jakuttis. Mr. Mellonakos was assigned to the detective

unit.

When he returned to work, Mr. Jakuttis was assigned to the

patrol unit. The parties disagree about the timing, but at some

point within a year of his return, Mr. Jakuttis began working

with the detective unit on evenings and on his days off,

although he was never formally assigned there. Following his

return from medical leave, Mr. Jakuttis was never rostered as a

detective and never received the $40 weekly stipend due at that

time to a patrolman in the detective unit.9 Statements in the

evidence, however, do describe him as “Detective Jakuttis,” and

he had alarm code and key access to the detective area within

the Dracut Police Department.

G. Mr. Jakuttis at the DEA Task Force

In August of 2013, Mr. Jakuttis was assigned to the Cross

Borders Initiative unit, a task force which operated through the

DEA. He was assigned as a “non-funded task force officer.”

Though the formalities of employment associated with a

Dracut police officer’s assignment to the DEA Task Force are

difficult to discern from the record before me, the following

appears to be undisputed.

When assigned to the DEA Task Force, Mr. Jakuttis remained

rostered as a Dracut Police Department patrolman and collected

wages from the Town of Dracut. As Mr. Jakuttis characterized

that arrangement, “[t]hat means that I basically worked for the

DEA. On loan from the Dracut police.” Mr. Jakuttis and Mr.

Chartrand both considered Mr. Jakuttis to fall under the DEA

chain of command, not that of the Dracut Police Department.

Within the DEA, Mr. Jakuttis reported to DEA Agent O’Hanlon as

9 See supra note 6.

his supervisor. Mr. Jakuttis did report outside of the chain of

command to Mr. Chartrand on occasion.

Funded and non-funded members of the DEA Task Force had the

same duties, which included, by Mr. Jakuttis’s description,

“investigat[ion of] high-level narcotics trafficking and drug

distribution organizations in the area.” The difference between

the two types of officers lay in who controlled and paid their

overtime. A non-funded Task Force officer could not receive

overtime compensation from the DEA, except when the work was for

specific Organized Crime Drug Enforcement Task Force overtime.

In all other cases, the officer’s Police Department would

determine whether the officer would be paid overtime and set all

limitations on that overtime. A funded Task Force officer, by

contrast, was eligible for $18,000 of overtime compensation from

the DEA. As a non-funded officer, Mr. Jakuttis’s overtime

appears to have been paid by the Dracut Police Department,

though the parties dispute who, if anyone, controlled his

eligibility for overtime during this period.

H. CS’s Disclosure to Mr. Jakuttis and Related

Circumstances

During his assignment to the DEA Task Force, Mr. Jakuttis

worked with a confidential informant, CS, who had also worked

with various law enforcement personnel on prior occasions.

Sometime around January 16, 2015, CS disclosed to Mr. Jakuttis a

series of events that CS claims occurred while Mr. Jakuttis had

been on medical leave. CS said that between 2006 and 2012, CS

would use illegal drugs with Mr. Mellonakos, who had been one of

CS’s former handlers. On some occasions, Mr. Mellonakos would

bring other officers with him, but assured CS that they were

“safe.” One of those officers was DO3 [Officer Gregg Byam10].

CS offered two reasons for belatedly providing this

information to Mr. Jakuttis: (1) retribution — CS was arrested

by another police department for an unrelated crime, and CS

believed Mr. Mellonakos provided the basis for that arrest; and

(2) remorse — CS felt badly for Mr. Jakuttis because CS believed

that Mr. Mellonakos had been involved with the marijuana theft

that Mr. Jakuttis had been investigating prior to his medical

leave. CS believed Mr. Mellonakos had been steering Mr.

Jakuttis away from discovery of Mr. Mellonakos’s involvement in

the theft. CS’s desire for retribution weighed much more

heavily (95%) in his decision than his remorse.

After CS’s disclosure, Mr. Jakuttis first confided in his

colleague and fellow DEA Task Force officer, Ray Cormier. Mr.

10 Mr. Jakuttis chose not to name Dracut Police Officer Gregg

Byam as a party defendant in this litigation. He did, however,

name Officer Byam as “DO3” in his unsealed Consolidated

Memorandum of Law in Opposition to the Defendants’ Several

Motions for Summary Judgment, Dkt. No. 125. [See Dkt. No. 125

at 38] As explained in greater detail infra Section V., I see

no reason to continue to use a pseudonym to mask Officer Byam’s

identity in this matter.

Jakuttis and Mr. Cormier ultimately agreed that they should tell

their DEA supervisor, Mr. O’Hanlon, of CS’s allegations; they

did so a couple days later. Mr. Jakuttis did not prepare any

written report or other formal submission, he says, because he

was not asked to and it “wasn’t [his] investigation.” Following

Mr. Jakuttis’s disclosure, Mr. O’Hanlon informed Mr. Poirier,

another member of the DEA Task Force and former handler of CS,

of CS’s allegations. Mr. Poirier and Mr. Jakuttis then

scheduled a formal interview with CS for February 18, 2015.

I. Events Following Mr. Jakuttis’s Report of CS’s

Disclosure

At some point after his disclosure to Mr. Jakuttis, CS

received a phone call from Mr. Poirier, asking him where he was

located at that moment. CS gave Mr. Poirier his location and

approximately fifteen minutes later three individuals with

badges approached him, pulled him into their vehicle, put a gun

in his face and told him not to “rat on cops.”

On January 30, 2015, Mr. Jakuttis attended a proffer

session at the United States Attorney’s Office. There he heard

another individual allege illegal drug use by Dracut Police

Officer Gregg Byam. Mr. Jakuttis reported these allegations to

Mr. O’Hanlon as well. CS appeared for his formal interview with

the Task Force on February 18, 2015, and repeated the substance

of his allegations to Mr. Jakuttis, Mr. Poirier, and DEA Special

Agent Gregg Willoughby. Though all three officers were present

throughout the interview, Mr. Poirier alone drafted the Report

of the interview.11 In that Report, Mr. Jakuttis was generally

described by Mr. Poirier in the following passage: “[Agent note:

TFO Jakuttis and D[e]mitri Mellonakos are both police officers

that work for Dracut Police Department and prior to TFO

Jakuttis’s injury both were detectives utilizing CS as a

confidential informant].” When Mr. Poirier asked CS why he had

waited for years to come forward with this information, CS

stated that he had not told Mr. Poirier because he believed him

to be a friend of Mr. Mellonakos.

On or about February 18, 2015, Mr. Chartrand met with Mr.

O’Hanlon to discuss the allegations. They decided to forward

the information to a DEA unit tasked with investigating

allegations of public corruption. The DEA special investigative

unit declined to open an investigation. Thereafter, Mr.

Chartrand forwarded the information to the FBI, and it also

declined to open an investigation, though the agency offered

support should the Dracut Police Department investigate the

allegations. Mr. Chartrand attempted his own investigation but

was unsuccessful because CS refused to meet with him or be

interviewed.

11 According to Mr. Jakuttis, Mr. Poirier demanded that he be the

only person in the room to take notes.

J. Mr. Jakuttis’s Removal from the DEA Task Force

and Return to Dracut Police Department Patrol Assignment

Some eight months later, on October 20, 2015, Mr. Jakuttis

was removed from the DEA Task Force and returned to the Dracut

Police Department. Upon that return, Mr. Chartrand informed Mr.

Jakuttis that he was assigned to patrol, not detective, detail.

The parties dispute the reason for Mr. Jakuttis’s

assignment to patrol. Mr. Chartrand maintains that he based his

recommendation that Mr. Jakuttis not be assigned to the

detective unit on reports from the only two detectives in the

unit at that time, Detectives Buote and Pike. Mr. Chartrand, at

the suggestion of Mr. Mellonakos — who was out on medical leave

at the time — asked those detectives how they thought Mr.

Jakuttis would fit into the detective unit. Both Detectives

Buote and Pike expressed a preference not to work with Mr.

Jakuttis because they felt he did not value their work and

contributions to the unit. According to Deputy Chief Chartrand,

when he advised Police Chief Richardson regarding Detectives

Buote and Pike’s preference, “[Chief Richardson] said ‘Dave, I

have no intention of authorizing [Mr. Jakuttis] back into the

Detective Bureau,’ and [Mr. Chartrand] left it at that.”

(emphasis added).

By contrast, Mr. Jakuttis claims that Mr. Chartrand told

him that Mr. Mellonakos did not want Mr. Jakuttis back in the

detective unit, and that this was the reason for Mr. Chartrand’s

decision. Mr. Jakuttis claims that Mr. Chartrand told him that

he did not “want to kick sand in [Mr. Mellonakos’] face” by

putting Mr. Jakuttis in the detective unit.

Mr. Chartrand testified that Mr. Jakuttis “definitely had

the skillset to do the job” of a detective. In fact, he was a

more experienced narcotics investigator than either Detectives

Buote or Pike. The only more experienced officer in the

detective unit at the time, Mr. Mellonakos, was out on medical

leave from September or October of 2015 to April or May of 2016.

In a September 30, 2016 memorandum about Mr. Jakuttis, Mr.

Chartrand cited “current low staffing issues” as the reason for

assigning Mr. Jakuttis to patrol.

After his return to the Dracut Police Department, Mr.

Jakuttis was assigned a department car that had previously been

used by Mr. Mellonakos and Mr. Buote. It was the department’s

only undercover vehicle at the time. There is some dispute as

to how severe the issues were with the car, but it is undisputed

there were at least HVAC and electrical issues. Mr. Jakuttis

used the car for less than a week.

K. Mr. Jakuttis’s Departure from the Dracut Police

Department

Mr. Jakuttis took leave from the Dracut Police Department

shortly following his assignment back to patrol. Thereafter, he

met with the Town Manager for the Town of Dracut, Jim Duggan,

who decided to forward the information he received from Mr.

Jakuttis about illegal drug use by Dracut police officers to the

Massachusetts Attorney General’s Office. Mr. Duggan and Mr.

Jakuttis met with officials at the Attorney General’s Office at

some point prior to the filing of this action. Mr. Jakuttis

also states he took the claims to the District Attorney. Mr.

Jakuttis has remained on leave since 2015.

II. MOTION TO STRIKE

Defendants Dracut, O’Hanlon, and Mellonakos move to strike

[Dkt. No. 128] portions of Mr. Jakuttis’s opposition to their

motions for summary judgment and his corresponding affidavit,

because they say it is derived from materials contradicting

evidence Mr. Jakuttis had earlier provided in discovery. The

allegedly conflicting statements at issue here concern (1) the

nature of Mr. Jakuttis’s work during his DEA assignment; and (2)

whether he was threatened, intimidated, or coerced.

Courts must be vigilant to guard against a party attempting

to evade summary judgment by filing an affidavit that

contradicts his prior statement given under oath, at least

unless there is a sufficient explanation provided for the

contradiction. See Pena v. Honeywell Int’l, Inc., 923 F.3d 18,

30 (1st Cir. 2019) (citing Cleveland v. Policy Mgmt. Sys. Corp.,

526 U.S. 795, 806 (1999)). Genuine disputes of material fact,

for example, may not be created through later developed

contradictory testimony. See id. (citing Colantuoni v. Alfred

Calcagni & Sons, 44 F.3d 1, 4–5 (1st Cir. 1994)).

I turn now to whether any of these statements must be

stricken.

A. Nature of Work During DEA Assignment

As I discuss more fully, infra, there is arguably a factual

dispute presented in the record before me regarding the

formalities and relevant logistics associated with Mr.

Jakuttis’s employment – particularly while he was assigned as a

DEA Task Force Officer – apart from consideration of Mr.

Jakuttis’s affidavit. However, I do not find Mr. Jakuttis’s

affidavit and prior deposition testimony (as a whole, rather

than in the one statement cherry-picked by Defendants) directly

contradictory regarding the dispute. In fact, the only

conclusion I can reasonably draw from either is that Mr.

Jakuttis did work for both the DEA Task Force and the Dracut

Police Department, and that he did not completely understand the

complicated administrative formalities associated with his

assignment. This conclusion is supported by other documents in

the record as well.

In addition, the person for whom Mr. Jakuttis “considered”

he was working at relevant times is not a material fact. His

subjective interpretation does not change the outcome of any of

his pending claims. Accordingly, I find no need to strike

paragraphs 8 and 10 of his affidavit, nor the corresponding

narrative in his opposition to the motions for summary judgment.

B. Threats, Intimidation, and Coercion

The question whether Defendants’ actions were threatening,

intimidating, or coercive is relevant as to Count II of the

operative Complaint, the Massachusetts Civil Rights Act Claim

under MASS. GEN. LAWS ch. 12, §§ 11H and 11I. As discussed more

fully, infra Part III.B., I will grant the moving Defendants’

motion for summary judgment on that Count, ultimately making the

motion to strike moot. I would do so regardless of the outcome

of the motion to strike. In the interest of completeness, I

briefly address the merits of the pending motion to strike.

At the hearing in May 2019, I granted Defendants’ motion to

strike Mr. Jakuttis’s deposition errata sheet. Inexplicably,

Mr. Jakuttis thereafter resubmitted the stricken errata sheet as

an exhibit to his opposition to the current motion to strike. I

reiterate that the errata sheet is no longer a part of the

record in this case, and I do not rely on it as such in making

these findings.

However, many of the explanations contained in the errata

sheet were separately repeated in Mr. Jakuttis’s affidavit and

opposition memorandum. At the May 2019 hearing, I told the

parties that Mr. Jakuttis could not testify on these subjects

again unless specifically asked to do so by Defendants.

Defendants decided thereafter to ask Mr. Jakuttis about whether

he was threatened. Having chosen to pursue the matter,

Defendants cannot now have stricken the affidavit paragraph

summarizing Mr. Jakuttis’s deposition testimony because they did

not like the answers they received. Given defense counsel’s

decision to re-open the door by asking further questions about

threats on the second day of Mr. Jakuttis’s deposition

testimony, I find his affidavit not to be, in the context of the

developed record before me, directly contradictory of prior

statements he made under oath.

That said, I also observe I do not find his testimony on

this topic to be material to the remaining issues in this case.

Defense counsel attempted to use the deposition to corner Mr.

Jakuttis into making a statement about a legal element of one of

his claims. Mr. Jakuttis is not a lawyer. Although it might be

interesting to explore what Mr. Jakuttis, to the degree he might

be considered a reasonable police officer, perceived about the

actions taken against him, his subjective perception is not the

kind of evidence to which significant weight would be given on

that topic. Consequently, I find no need to strike paragraph 19

of Mr. Jakuttis’s affidavit or the corresponding section of his

opposition to the motions for summary judgment.

III. SUMMARY JUDGMENT MOTIONS APART FROM RICO CLAIMS

A party is entitled to summary judgment when “the movant

shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”12

FED. R. CIV. P. 56(a). “An issue is genuine if a reasonable jury

could resolve the point in favor of the nonmoving party. A fact

is material if its existence or nonexistence has the potential

to change the outcome of the suit.” Tropigas de Puerto Rico,

Inc. v. Certain Underwriters at Lloyd’s of London, 637 F.3d 53,

56 (1st Cir. 2011) (internal citations and quotations omitted).

In evaluating a motion for summary judgment, a court “must

construe the record in the light most favorable to the nonmovant

and resolv[e] all reasonable inferences in that party’s favor

while safely ignoring conclusory allegations, improbable

inferences, and unsupported speculation.” Collins v. Univ. of

N.H., 664 F.3d 8, 14 (1st Cir. 2011) (alteration in original)

(internal quotations and citation omitted). To oppose a motion

for summary judgment successfully, “the nonmoving party must set

forth specific facts showing that there is a genuine issue for

12 Counts VIII and IX against Defendants O’Hanlon and Poirier are

governed by a different standard of review since they are

contested at the motion to dismiss stage of litigation. I

discuss the proper standard of review for those Counts

specifically in greater detail infra Section IV.

trial.” Barry v. Moran, 661 F.3d 696, 703 (1st Cir. 2011)

(internal quotations and citation omitted).

A. Count I: 42 U.S.C. § 1983, First Amendment Claim as to

Dracut, Mr. Chartrand, and Mr. Mellonakos

Section 1983 allows individuals to bring claims for money

damages against government actors who violate the United States

Constitution or a federal statute. 42 U.S.C. § 1983. In his

Section 1983 claim, Mr. Jakuttis alleges that Mr. Chartrand, Mr.

Mellonakos, and the Town of Dracut violated his First Amendment

rights by effectively demoting him in retaliation for his

reporting the drug use of his colleagues. Defendants contend

there was no violation of the First Amendment. Defendants

Chartrand and Mellonakos contend that even if there were,

qualified immunity standards would prevent Mr. Jakuttis from

recovering any damages.

Section 1983 provides that any person who, under color of

state law, “subjects, or causes to be subjected, any . . .

person within the jurisdiction [of the United States] to the

deprivation of any rights, privileges, or immunities secured by

the Constitution and laws” is liable to the injured party. Id.

The statute “creates no independent substantive rights, but

rather provides a cause of action by which individuals may seek

money damages for governmental violations of rights protected by

federal law.” Cruz-Erazo v. Rivera-Montañez, 212 F.3d 617, 621

(1st Cir. 2000) (citing Albright v. Oliver, 510 U.S. 266, 271

(1994)).

The First Amendment has been read to prohibit government

officials from retaliating against an employee for

constitutionally protected speech. See Decotiis v. Whittemore,

635 F.3d 22, 29–30 (1st Cir. 2011). The First Circuit has

developed a three-part inquiry to determine whether a First

Amendment retaliation claim alleges a constitutional violation:

The first part concerns whether the public

employee “spoke as a citizen on a matter of

public concern.” The second part concerns

whether, if the employee did so, “the relevant

government entity had an adequate justification

for treating the employee differently from any

other member of the general public.” The third

part concerns whether, if that government entity

did not have an adequate justification, “the

protected expression was a substantial or

motivating factor in the adverse employment

decision.” Even then, “the employer must have

the opportunity to prove that it would have made

the same decision regardless of the protected

expression.”

Bruce v. Worcester Reg'l Transit Auth., 34 F.4th 129, 135 (1st

Cir. 2022) (citations omitted). The first two inquiries present

questions of law; the third presents a question for the

factfinder. Lewis v. City of Boston, 321 F.3d 207, 219 (1st

Cir. 2003).

If a plaintiff meets his prima facie burden on all three

elements, defendants are nevertheless entitled to summary

judgment if they can establish a “so-called Mt. Healthy

defense,” Rodríguez-García v. Miranda-Marín, 610 F.3d 756, 765-

66 (1st Cir. 2010)(citing Mt. Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 287 (1977)), by demonstrating to a

preponderance of the evidence that they “would have reached the

same decision regardless of [plaintiff]’s speech,” Lewis, 321

F.3d at 220. When the employer provides “a non-retaliatory

reason for the action,” the burden then returns to plaintiff to

demonstrate that retaliation “was more likely than not a

motivating factor.” Salmon v. Lang, 57 F.4th 296, 309 (1st Cir.

2022) (citations and internal quotations omitted).

This settled analytical approach directs me at the outset

to determine whether Mr. Jakuttis was speaking on (1) a matter

of public concern as (2) a citizen. See Decotiis, 635 F.3d at

29 (citing Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)).

1. Matter of Public Concern

The Decotiis court characterized speech about “official

malfeasance or the neglect of duties” as “speech relate[d] to a

matter of inherent public concern.” Id. at 30. Certainly, an

allegation that members of law enforcement are misappropriating

and using illegal narcotics is a matter falling squarely within

the realm of official malfeasance and is, therefore, a matter of

inherent public concern. This dimension of the first element is

met as to all moving Defendants.

2. Speaking as a Citizen

The more difficult question is whether Mr. Jakuttis spoke

as a citizen in reporting the alleged misconduct of his fellow

officers. When public employees speak regarding matters within

their official duties, their speech is not specially protected

by the First Amendment “and the Constitution does not insulate

their communications from employer discipline.” Garcetti, 547

U.S. at 421. “Restricting speech that owes its existence to a

public employee’s professional responsibilities does not

infringe any liberties the employee might have enjoyed as a

private citizen. It simply reflects the exercise of employer

control over what the employer itself has commissioned or

created.” Id. at 421-22. Moreover, “[r]efusing to recognize

First Amendment claims based on government employees’ work

product does not prevent them from participating in public

debate. The employees retain the prospect of constitutional

protection for their [personal] contributions to civic

discourse.” Id. at 422. Thus, public employees are to receive

First Amendment protection when they partake in “the kind of

activity engaged in by citizens who do not work for the

government,” but not when they “speak[] pursuant to employment

responsibilities.” Id. at 423-24.

The First Circuit has identified a non-exhaustive list of

factors to guide analysis of whether a public employee was

speaking as a citizen or pursuant to official duties:

whether the employee was commissioned or paid to

make the speech in question; the subject matter

of the speech; whether the speech was made up the

chain of command; whether the employee spoke at

her place of employment; whether the speech gave

objective observers the impression that the

employee represented the employer when she spoke

(lending it “official significance”); whether the

employee’s speech derived from special knowledge

obtained during the course of her employment; and

whether there is a so-called citizen analogue to

the speech.

Decotiis, 635 F.3d at 32 (internal citations omitted). By

applying these factors, a court will essentially be answering

two questions that reside at the core of the inquiry, “both of

which are highly context-sensitive”: “(1) what are the

employee’s official responsibilities? and (2) was the speech at

issue made pursuant to those responsibilities?” Mercado-Berrios

v. Cancel-Alegría, 611 F.3d 18, 26 (1st Cir. 2010) (citing Foley

v. Town of Randolph, 598 F.3d 1, 7, 9 (1st Cir. 2010)). In

answering these questions, courts must keep in mind that

employers cannot “restrict employees’ rights by creating

excessively broad job descriptions.” Garcetti, 546 U.S. at 424.

Rather, ”[t]he proper inquiry is a practical one,” focused on

the “duties an employee actually is expected to perform.” Id. at

424-25; see Lane v. Franks, 573 U.S. 228, 240 (2014) (“The

critical question under Garcetti is whether the speech at issue

is itself ordinarily within the scope of an employee’s duties,

not whether it merely concerns those duties.”).

Mr. Jakuttis contends, citing language from decisions

issued by two of my colleagues, that he should not be stripped

of his First Amendment protections “just because a garden-

variety rule requires him to tell a supervisor” of fellow

officers’ misconduct. Taylor v. Town of Freetown, 479 F. Supp.

2d 227, 237 (D. Mass. 2007); see Stuart v. Town of Framingham,

301 F. Supp. 3d 234, 240 (D. Mass. 2018) (quoting Taylor, 479 F.

Supp. 2d at 237).13 The First Circuit has more recently

clarified, however, that reporting concerns up the chain of

command “is the quintessential example of speech that owes its

existence to a public employee’s official responsibilities and

thus is not protected under the First Amendment.” Gilbert v.

City of Chicopee, 915 F.3d 74, 83 (1st Cir. 2019); cf. Decotiis,

635 F.3d at 32 (observing that plaintiff was “not literally

authorized or instructed to make the speech at issue,” and

accordingly, the speech was “not made pursuant to her job duties

13 Stuart v. Town of Framingham traveled further both before

Judge Talwani and then in the First Circuit in years following

the opinions cited in the text above. See, e.g., Stuart v. City

of Framingham, No. 1:16-cv-12559-IT, 2020 WL 360552, at *5 (D.

Mass. Jan. 22, 2020), aff'd, 989 F.3d 29 (1st Cir. 2021). None

of that subsequent case law, however, provides guidance as to

the motions now before me.

in the most literal sense” (internal quotations omitted)

(quoting Mercado-Berrios, 611 F.3d at 27)).14

In finding that the officer in Gilbert was speaking

pursuant to his official duties, the First Circuit observed that

the subject matter of the speech was work-related, his knowledge

of the subject was obtained through his employment, the speech

occurred at work, the speech was made up the chain of command,

and the communications were internal, not public. 915 F.3d at

83-84. The same can be said of Mr. Jakuttis’s speech at issue

here.

As an initial matter, Mr. Jakuttis was duty-bound to

disclose CS’s allegations in his role as a Dracut Police

investigator assigned to the DEA Task Force. Generally, the

purpose of Mr. Jakuttis’s job as a law enforcement officer was

14 Setting aside the fact that Gilbert was decided more recently,

the facts of Stuart v. Town of Framingham, 301 F. Supp. 3d 234

(D. Mass. 2018) and Taylor v. Town of Freetown, 479 F. Supp. 2d

227 (D. Mass. 2007) provide no refuge for Mr. Jakuttis. In

Stuart, Judge Talwani explained that the at-issue speech

included a letter signed by plaintiff and his union, which “was

not paid or commissioned by [p]laintiff’s employer,” “was not

internal speech,” and “could in no way be viewed as speech made

representing [p]laintiff’s employer.” 301 F. Supp. 3d at 240–

41. Likewise, in Taylor, plaintiff’s allegations touched upon

the actions of a union, and Judge Saris explained that the

plaintiff “who was not a supervisor, lack[ed] broad official

responsibilities for ensuring that other officers are not

engaged in misconduct,” though a department manual directed

officers to report misconduct. 479 F. Supp. 2d at 237. In the

matter before me, officers testified that reporting misconduct

was within the known duties of the Dracut police.

to respond to criminal activity to stop or reduce it. Mr.

Jakuttis summarized his official responsibilities as a non-

funded DEA Task Force officer as the “investigat[ion of] high-

level narcotics trafficking and drug distribution organizations

in the area.” Although he was not a member of an internal

affairs unit charged with investigating fellow law enforcement

officers, he appears to have been required to report misconduct

of fellow officers as part of his official duties.15

Even if he was not specifically required to report officer

misconduct, the subject matter of the speech — illegal drug use

and distribution by fellow officers — was certainly related to

Mr. Jakuttis’s work as a narcotics investigator. Mr. Jakuttis

acknowledges that he learned of CS’s allegations through that

work. Though this alone does not decide the question, it

certainly demonstrates that Mr. Jakuttis’s disclosure arose out

of his law enforcement duties. Mr. Jakuttis’s speech appears to

fall squarely within the scope of his duties as a Dracut Police

investigator and DEA Task Force officer.

Mr. Jakuttis claims that he spoke as a citizen because, he

contends, he did not report the information up the chain of

command. That is not so. Though he did not immediately notify

15 Multiple officers, including Mr. Jakuttis, testified that DEA

Task Force officers and Dracut police investigators should

report informant allegations of police corruption.

his Dracut police shift supervisor or Mr. Chartrand, Mr.

Jakuttis did report the drug use to his DEA Task Force

supervisor Mr. O’Hanlon and participated in related interviews

in his capacity as a Task Force officer. Mr. Jakuttis testified

that in his DEA work he reported to Mr. O’Hanlon and was

“outside of the chain of command” of the Dracut Police

Department. Moreover, Mr. Jakuttis did not prepare a written

report or widely publicize the information from CS. Because the

disclosures were internal to the police department and DEA,

where Mr. Jakuttis worked on assignment, I find that he reported

his concerns up the relevant chain of command.16 There is no

citizen speech analogue here; Mr. Jakuttis’s speech was internal

to the police department, a forum out of reach for most

citizens.

These factors all weigh in favor of classifying Mr.

Jakuttis’s speech as pursuant to his official duties. Because

Mr. Jakuttis was required to disclose misconduct by other

officers, the misconduct he reported involved illegal drug use

that he learned about in his work as a narcotics investigator,

16 Mr. Jakuttis also contends that he went outside the chain of

command by communicating with the District Attorney and the

Massachusetts Attorney General’s Office. But Mr. Jakuttis did

not take his concerns outside the DEA and Dracut Police

Department chain of command until after the alleged adverse

employment action in 2015. These later conversations thus could

not have influenced any retaliatory employment action and are

not relevant to whether Mr. Jakuttis was speaking as a citizen.

and he only disclosed the misconduct internally prior to the

alleged demotion, I conclude as a matter of law that Mr.

Jakuttis was speaking pursuant to his official duties instead of

as a citizen. His speech is therefore not protected by the

First Amendment and Messrs. Chartrand and Mellonakos are

entitled to summary judgment.

As to Defendant Dracut, Mr. Jakuttis brings his claim under

Monell v. Department of Social Services, 436 U.S. 658, 692

(1978), which “imposes liability on a government” when its

“official policy . . . ‘causes’ an employee to violate another’s

constitutional rights.” Foundational to a Monell claim is a

violation of a constitutional right. See Monell, 436 U.S. at

692. Mr. Jakuttis bases his claim against Dracut on the same

conduct alleged against Messrs. Chartrand and Mellonakos, namely

retaliation following protected First Amendment conduct. Given

the summary judgment record now before me, Mr. Jakuttis has

failed to demonstrate a violation of a constitutional right, let

alone one caused by an “official policy” of Dracut.

Accordingly, I will grant Defendant Dracut’s motion [Dkt. No.

117] on this Count.

B. Count II: MASS. GEN. LAWS ch. 12, §§ 11H and 11I,

Massachusetts Civil Rights Act Free Speech Claim as to Mr.

Chartrand and Mr. Mellonakos

The Massachusetts Civil Rights Act (“MCRA”) provides a

cause of action to redress circumstances where “any person or

persons, whether or not acting under color of law, interfere [or

attempt to interfere] by threats, intimidation or coercion . . .

with the exercise or enjoyment by any other person or persons of

rights secured by the constitution or laws of the United States”

or Massachusetts. MASS. GEN. LAWS ch. 12, § 11H(a)(1); see also

id. § 11I (providing cause of action). The Massachusetts

legislature passed the MCRA “to provide a State remedy for

deprivations of civil rights . . . . coextensive with 42 U.S.C.

§ 1983.” Batchelder v. Allied Stores Corp., 473 N.E.2d 1128,

1131 (Mass. 1985). Although § 1983 and the MCRA provide

coextensive relief, the MCRA is in fact broader substantively

insofar as it reaches private conduct; it is also narrower

substantively insofar as it only reaches constitutional

deprivation caused by threats, intimidation, or coercion. See

id.

MCRA liability attaches when the following two conditions

are met: “(1) the defendant threatens, intimidates, or coerces

the plaintiff in order to (2) cause the plaintiff to give up

something that [he] has the constitutional right to do.” McLeod

v. Fessenden Sch., 113 Fed. R. Serv. 3d 1299, 1306 (D. Mass.

2022); see MASS. GEN. LAWS ch. 12, § 11H(a)(1). As my discussion

of Count I concluded, there was no underlying free speech

violation.17 Even if there had been, however, Mr. Jakuttis’s

MCRA claim fails on the merits because there is no evidence in

the record that either Mr. Chartrand or Mr. Mellonakos

threatened, intimidated, or coerced Mr. Jakuttis within the

statutory definitions of those terms. See Turkowitz v. Town of

Provincetown, 914 F. Supp. 2d 62, 76 (D. Mass. 2012) (“The

direct violation of a constitutional right does not establish a

MCRA violation because it is not an attempt to force someone to

do something the person is not lawfully required to do.”

(internal quotations and citation omitted)).

17 Massachusetts courts have not identified any substantive

difference between free speech protection under the Federal

constitution and the Massachusetts constitution. The

Massachusetts Supreme Judicial Court (“SJC”) has observed in the

past that “the criteria which have been established by the

United States Supreme Court for judging claims arising under the

First Amendment . . . are equally appropriate to claims brought

under cognate provisions of the Massachusetts [c]onstitution.”

Smith v. Comm'r of Mental Retardation, 567 N.E.2d 924, 928-29

(Mass. 1991)(quoting, in the context of free speech claims, Colo

v. Treasurer & Receiver Gen., 392 N.E.2d 1195, 1200 (Mass.

1979)). Further, Massachusetts courts have not held that

article 16 of the Massachusetts Declaration of Rights offers

broader protection than the First Amendment in this context.

See Cristo v. Evangelidis, 62 N.E.3d 94, 101 n.6 (Mass. App. Ct.

2016) (“We have no occasion and decline to express an opinion

whether under the Massachusetts Declaration of Rights a public

employee's right to be protected against discipline by his

public employer that is based on the employee's workplace speech

is broader than the protections recognized by the Supreme Court

in Garcetti.”). To that end, Mr. Mellonakos also asserts

qualified immunity as to this count. [Dkt. No. 122 at 14 n.11]

The Massachusetts Supreme Judicial Court (“SJC”) has

provided the following definitions for threat, intimidation, and

coercion:

“Threat” in this context involves the intentional

exertion of pressure to make another fearful or

apprehensive of injury or harm. “Intimidation”

involves putting in fear for the purpose of

compelling or deterring conduct. [And coercion

involves] “the application to another of such

force, either physical or moral, as to constrain

him to do against his will something he would not

otherwise have done.”

Planned Parenthood League of Mass., Inc. v. Blake, 631 N.E.2d

985, 990 (Mass. 1994) (citations omitted). “Whether conduct

constitutes coercion is examined from an objective, reasonable

person standard.” Currier v. Nat’l Bd. of Med. Exam’rs, 965

N.E.2d 829, 838 (Mass. 2012). The statute does not require

proof of a “specific intent to threaten, intimidate, or coerce

for the purpose of interfering with [the] secured right” at

issue. Sarvis v. Bos. Safe Deposit & Tr. Co., 711 N.E.2d 911,

918 (Mass. App. Ct. 1999) (citing Redgrave v. Bos. Symphony

Orchestra, Inc., 502 N.E.2d 1375, 1378 (Mass. 1987)); see also

O’Connell v. Chasdi, 511 N.E.2d 349, 353-54 (Mass. 1987).

The MCRA should be liberally construed, and in certain

circumstances certain types of economic coercion may be

sufficient to establish the threats, intimidation, or coercion

required by the statute. Buster v. George W. Moore, Inc., 783

N.E.2d 399, 409–11 (Mass. 2003); see Redgrave, 502 N.E.2d at

1379 (determining, in context of certified question from the

First Circuit, that cancelling an employment contract based upon

third-party pressure regarding plaintiff’s political views

could be illegal conduct under the MCRA). Even so, “the

exception for claims based on non-physical coercion remains a

narrow one.” Thomas v. Harrington, 909 F.3d 483, 492–93 (1st

Cir. 2018) (quoting Nolan v. CN8, 656 F.3d 71, 77-78 (1st Cir.

2011)). The SJC has held that threatening the loss of an at-

will employment position is not coercive conduct actionable

under the MCRA. Webster v. Motorola, Inc., 637 N.E.2d 203, 206

(Mass. 1994); Nolan, 656 F.3d at 77-78 (describing the

differences between the SJC’s treatment of contractual and at-

will employees under the MCRA).

The SJC has yet to address explicitly the issue of when, if

ever, adverse employment actions can be coercive under the MCRA.

Nolan, 656 F.3d at 78. At the very least, however,

“Massachusetts courts have required ‘a pattern of harassment and

intimidation’ to support a finding of non-physical coercion

under the MCRA.” Thomas, 909 F.3d at 493 (quoting Howcroft v.

City of Peabody, 747 N.E.2d 729, 746 (Mass. App. Ct. 2001)); see

Mason v. Cent. Mass Transit Mgmt./Worcester Reg'l Transit Auth.,

394 F. Supp. 3d 166, 174 (D. Mass. 2019). Those rare cases in

which termination of or changes to employment have led to MCRA

liability involved “the sort of physical, moral, or economic

pressure” that could induce the plaintiff to do something

against his will. See Meuser v. Fed. Express Corp., 564 F.3d

507, 519 (1st Cir. 2009)(quoting Meuser v. Fed. Express Corp.,

524 F. Supp. 2d 142, 147 (D. Mass. 2007), aff’d, 564 F.3d 507

(1st Cir. 2009)).18

Here, neither Mr. Chartrand nor Mr. Mellonakos terminated

or threatened to terminate Mr. Jakuttis’s employment with the

Dracut Police Department. Nor were they responsible for Mr.

Jakuttis’s prior removal from the DEA Task Force. Rather,

pursuant to his discretion (or discretion delegated to him by

the Chief of Police), Mr. Chartrand decided where to assign Mr.

Jakuttis upon his full-time return — Mr. Jakuttis was not

entitled to his position in the detective unit. See Amirault v.

18 The SJC’s responses to certified questions in Redgrave v.

Boston Symphony Orchestra, Inc., 502 N.E.2d 1375, 1378-79 (Mass.

1987) “ha[ve] generally been accepted as establishing a

foundation for the proposition that actual or prospective

‘breach of contract’ constitutes ‘coercion’ under the act.”

Buster v. George W. Moore, Inc., 783 N.E.2d 399, 410 n.17 (Mass.

2003). The SJC found liability where pervasive sexual

harassment against a plaintiff made continuing her employment

impossible. See O’Connell v. Chasdi, 511 N.E.2d 349, 353-54

(Mass. 1987). Other forms of non-physical harassment have been

found sufficient for liability, too. See Howcroft v. City of

Peabody, 747 N.E.2d 729, 746 (Mass. App. Ct. 2001) (evidence

that defendants deliberately exposed the plaintiff to second-

hand smoke at work, reassigned him, and attempted to suspend him

without pay raised a sufficient evidentiary basis to demonstrate

a pattern of harassment and intimidation); Broderick v. Roache,

803 F. Supp. 480, 485–87 (D. Mass. 1992) (a campaign of

harassment and retaliation against a police officer, involving

disciplining him without cause, could satisfy requirement of

threats, intimidation, or coercion).

City of Malden, 241 F. Supp. 3d 288, 304–05 (D. Mass. 2017)

(officer’s reassignment, from detective unit to administrative

position, “was [not] coercive within the meaning of the MCRA”).

Even if it was Mr. Chartrand’s hope or intent in refusing

Mr. Jakuttis’s return to the detective unit that Mr. Jakuttis

would abandon his pursuit of the claims CS made regarding Mr.

Mellonakos — a theory that is not adequately supported by the

record before me — the subjective intent of a defendant is not

strictly part of the inquiry I must conduct. Likewise, if a

jury were to credit Mr. Jakuttis’s claims that Mr. Chartrand

wrongfully “demoted” him at Mr. Mellonakos’s insistence, the

behavior was not of the relentless and pervasive nature found in

those rare instances of MCRA liability based on harassment. Cf.

O’Connell, 511 N.E.2d at 353-54; Howcroft, 747 N.E.2d at 746.

Consequently, I will grant Mr. Chartrand and Mr. Mellonakos

summary judgment on Mr. Jakuttis’s MCRA claim against them.

C. Count III: MASS. GEN. LAWS ch. 149, § 185, Massachusetts

Whistleblower Act as to Dracut

The Massachusetts Whistleblower Act prohibits an employer

from retaliating against an employee for engaging in certain

whistleblowing activities. MASS. GEN. LAWS ch. 149, § 185. “In

the summary judgment context,” a “burden shifting approach”

applies to evaluation of claims under § 185. Smith v. Town of

West Bridgewater, 184 N.E.3d 805 (Table), 2022 WL 727045, at *5

(Mass. App. Ct. Mar. 11, 2022). Mr. Jakuttis “ha[s] the initial

burden of proof as to all elements of his retaliation claim”;

only after he “make[s] a prima facie showing” will the burden

shift to Dracut to demonstrate a nonretaliatory purpose for its

actions. Id. To meet his burden, Mr. Jakuttis must show that

(1) he “engaged in an activity protected by the act; (2) the

protected activity was the cause of an adverse employment

action, such that the employment action was retaliatory; and (3)

the retaliatory action caused [Mr. Jakuttis] damages.” Edwards

v. Commonwealth, 174 N.E.3d 1153, 1166 (Mass. 2021).

An employer is proscribed from taking retaliatory action

against an employee who does any of the following:

(1) Discloses, or threatens to disclose to a supervisor

or to a public body an activity, policy or practice

of the employer . . . that the employee reasonably

believes is in violation of a law, or a rule or

regulation promulgated pursuant to law, or which the

employee reasonably believes poses a risk to public

health, safety or the environment;

(2) Provides information to . . . any public body

conducting an investigation, hearing or inquiry into

any violation of law, or a rule or regulation

promulgated pursuant to law, or activity, policy or

practice which the employee reasonably believes

poses a risk to public health, safety or the

environment by the employer . . .;

(3) Objects to, or refuses to participate in any

activity, policy or practice which the employee

reasonably believes is in violation of a law, or a

rule or regulation promulgated pursuant to law, or

which the employee reasonably believes poses a risk

to public health, safety or the environment.

MASS. GEN. LAWS ch. 149, § 185(b) (emphasis added). Mr. Jakuttis

contends that his disclosure of CS’s allegations and his

involvement in the subsequent DEA Task Force investigation

constitutes all three forms of protected activity set forth in §

185(b).

1. Section 185(b)(1)

Section 185(b)(1) protects the employee who discloses or

threatens to disclose the misconduct of his employer. The

statute defines an employer as “the commonwealth, and its

agencies or political subdivisions, including, but not limited

to, cities, towns, counties and regional school districts, or

any authority, commission, board or instrumentality thereof.”

MASS. GEN. LAWS ch. 149, § 185(a)(2). By defining an employer as

the Commonwealth and its agencies, the statute effectively

directs that actions of a plaintiff’s fellow employees should

not be attributed to the employer. See Tyron v. Mass. Bay

Transp. Auth., No. SUCV201402654, 2016 WL 5874408, at *3 (Mass.

Super. Ct. Aug. 17, 2016) (holding that plaintiff failed to

state a claim under § 185(b)(1) because he blew the whistle on

fellow employees, not employer); Felix v. Town of Kingston, No.

15-CV-14022-DLC, 2019 WL 7565449, at *7 (D. Mass. July 8, 2019)

(finding no employer action when employer did not know about

employee misconduct before plaintiff’s disclosure), aff’d, No.

19-1774, 2021 WL 6102085 (1st Cir. Dec. 23, 2021). This narrow

definition stands in contrast to a broader definition adopted in

other sections within the same chapter. Compare MASS. GEN. LAWS

ch. 149, § 185(a)(2), with id. § 1 (defining “employer” in

certain sections as “any person acting in the interest of an

employer directly or indirectly”).

Here, Mr. Jakuttis disclosed CS’s allegations to his then-

supervisor, Mr. O’Hanlon, who also qualifies as a public body

through his employment at the DEA. See MASS. GEN. LAWS ch. 149,

§ 185(a)(3). Eventually Mr. Jakuttis’s Dracut Police Department

supervisor, Mr. Chartrand, became aware of the allegations.

However, the allegations do not fit squarely within the

statutory text of § 185(b)(1) because the violations were

alleged to have been committed by his fellow employees, rather

than by his employer. See Estock v. City of Westfield, 806 F.

Supp. 2d 294, 309 (D. Mass. 2011) (”The only defendants who

could be liable under the statute [as plaintiff’s employers] are

the City of Westfield and the School Board, yet [p]laintiff

alleged no facts pertaining to any conduct, wrongful or

otherwise, on the part of the City or any Board members.”).

Although it is the case, as Plaintiff argues, that entities

act through individuals, I cannot conclude, as a matter of law,

that the potential illegal actions of one individual, even if

coupled with the complicity of a handful of others, is enough to

qualify as illegal activity by the employing entity. Cf.

Edwards, 174 N.E.3d at 1162 (holding that the actions of the

Governor of Massachusetts are attributable to the employing

entity of the Commonwealth when he exercised “a power conferred

on his office” as the “supreme executive magistrate” (citations

omitted)).19 Accordingly, I conclude that there was no protected

activity under subsection (b)(1).20

2. Section 185(b)(3)

Mr. Jakuttis’s disclosure also does not meet the

requirements of subsection (b)(3). This subsection protects a

plaintiff’s conduct when he “[o]bjects to, or refuses to

participate in” the illegal activity. MASS. GEN. LAWS ch. 149,

§ 185(b)(3). Though Section 185(b)(3) does not contain language

19 I observe that, even if Mr. Jakuttis could be found to have

engaged in conduct protected under subsection b(1) of the

Massachusetts Whistleblower Act, he has not demonstrated, as he

must to preclude summary judgment, that his protected conduct

could be found to be the determinative cause of his patrol

assignment, “even if it was not the only cause.” See Edwards v.

Commonwealth, 174 N.E.3d 1153, 1168 (Mass. 2021) (internal

quotations and citation omitted). As more fully discussed

infra, Mr. Jakuttis raises only conclusory allegations and his

own self-serving testimony as evidence that he was assigned to

the patrol unit because of his whistleblowing activity.

20 This conclusion is not based on lack of written notice.

Although § 185(c)(1) requires an employee to provide written

notice to their supervisor of a possible violation of §

185(b)(1), here no written notice was required because Mr.

Jakuttis disclosed the drug use “for the purpose of providing

evidence of what [he] reasonably believe[d] to be a crime.”

MASS. GEN. LAWS ch. 149, § 185(c)(2)(C). His actions thus fit

within the exception to the written notice requirement for

disclosures to a public body under subsection (b)(1). I do not

reach Mr. Jakuttis’s claims that he feared for his safety and

did not file a written report for that reason.

limiting claims to those against an employee’s employer, Tyron,

2016 WL 5874408, at *3, courts have interpreted mere disclosure

as not constituting objection for purposes of this Section, see

Stuart v. City of Gloucester, No. 18-cv-11877-ADB, 2021 WL

4477476, at *12 (D. Mass. Sept. 30, 2021). In any event, a

plaintiff must have some level of personal involvement to state

a claim under Section 185(b)(3). Stuart, 2021 WL 4477476, at

*12. Because Mr. Jakuttis does not allege he was ever

personally involved with (or “asked to participate” in) the

misappropriation and use of illegal drugs, he cannot claim

protection under (b)(3). Id. (citation omitted).

3. Section 185(b)(2)

Section 185(b)(2) protects, in relevant part, employees who

“[p]rovide[] information to, or testif[y] before, any public

body conducting an investigation, hearing or inquiry into any

violation of law.” MASS. GEN. LAWS ch. 149, § 185(b)(2). Mr.

Jakuttis’s initial report of CS’s allegations to Mr. O’Hanlon

cannot be the basis for a whistleblower action under

§ 185(b)(2); the report predated any DEA or other investigation

into the officers’ drug activity.21 However, Mr. Jakuttis’s

21 Reaching further back, I note that Mr. Jakuttis has not

alleged that the 2003 marijuana theft investigation was still

ongoing at the time he made his disclosure, or that Mr.

Chartrand or the DEA had any remaining role in that case. Any

potential connection to the 2003 theft investigation is far too

later participation in the DEA investigation of CS’s allegations

may constitute protected action as defined by subsection

(b)(2).22

Mr. Jakuttis’s subsequent participation in the DEA

investigation of Dracut Police Officers’ drug use, limited

though it may have been, did occur within the scope of a current

investigation. See Edwards, 174 N.E.3d at 1166 (explaining, in

(b)(3) context, that there is “no reason why even a single event

could not constitute [protected] ‘activity’ for purposes of the

attenuated to provide a foundation for a whistleblower claim.

22 I find no evidence in the record before me to suggest that the

DEA Task Force was investigating drug use by Dracut police

officers before Mr. Jakuttis first reported CS’s allegations to

Mr. O’Hanlon. It was Mr. Jakuttis’s initial disclosure that

initiated the public body’s investigation. If Mr. Jakuttis is

found to have participated in the DEA Task Force’s investigation

after his initial disclosure, however, he may be found to have

provided information to a public body conducting an

investigation.

According to the operative Complaint, Mr. Jakuttis “revealed

the information that CS had told him” to Mr. O’Hanlon, Special

Agent Willoughby, and Mr. Poirier on February 2, 2015. [Dkt.

No. 70 at 31 at ¶ 98] A review of the full record on summary

judgment before me, however, reveals the undisputed fact that

Mr. Jakuttis first reported CS’s allegations to Mr. O’Hanlon

within a few days of hearing the allegations on January 16,

2015. See Dkt. No. 119 (Defs.’ Joint Rule 56 Statements of

Undisputed Material Facts at ¶ 48). Making all reasonable

factual inferences in favor of Mr. Jakuttis as the nonmoving

party, I can conclude that the DEA Task Force investigation of

Dracut police officers’ drug use began within days of January

16, 2015, when Mr. Jakuttis first disclosed CS’s allegations to

Mr. O’Hanlon. Mr. Jakuttis’s subsequent participation in the

Task Force investigation on February 2 and February 18,

therefore, may constitute protected activities.

act”). Mr. Jakuttis testified that on January 30, 2015, during

a proffer session with the United States Attorney’s Office, he

heard another individual allege that DO3 (Dracut Police Officer

Gregg Byam) was involved in the use and sale of narcotics, in an

allegation mirroring that of CS. Mr. Jakuttis then provided

this information to Mr. O’Hanlon and the DEA Task Force members

as part of their then-ongoing investigation into illicit

narcotics activity in the Dracut Police Department. This

continued involvement in the DEA Task Force investigation may be

found to be protected activity under subsection (b)(2).

A showing of protected activity alone, however, will not

allow Mr. Jakuttis to proceed on his whistleblower claim. Mr.

Jakuttis must make some showing of a causal connection between

his involvement in the DEA Task Force investigation and his

assignment to the patrol unit. See Smith, 2022 WL 727045, at *5

(explaining that, to prevail on summary judgment, plaintiff

“must . . . present facts that raise a genuine issue as to

whether he can show causation”).

The SJC recently clarified in Edwards that the causation

standard applicable to claims for retaliation under the

whistleblower act is the “determinative cause” standard used to

evaluate employment discrimination claims. 174 N.E.3d at 1168.

In Edwards, the SJC differentiated the determinative cause

standard applied to MASS. GEN. LAWS ch. 149, § 185(b) claims from

the causation standard utilized in First Amendment retaliation

claims brought under 42 U.S.C. § 1983, articulated in Mt.

Healthy City Sch. Dist. Bd. of Educ., 429 U.S. at 286–287. See

174 N.E.3d at 1168. Protected activity must be a determinative

cause — in other words a “but for” cause — of the employer’s

decision to take adverse employment action against the

plaintiff, although the protected activity “need not be ‘the

only cause’” of the employer’s decision. Id. at 1169 (quoting

Lipchitz v. Raytheon Co., 751 N.E.2d 360, 371 n.19 (Mass. 2001)

(protected activity may be a determinative cause when “it was a

material and important ingredient in causing [retaliation] to

happen,” even if it was not “the only cause of that action”)).

To survive the Defendant’s motion for summary judgment, Mr.

Jakuttis must make a showing that “is more than merely

colorable.” Faiella v. Fed. Nat'l Mortg. Ass'n, 928 F.3d 141,

145 (1st Cir. 2019) (internal quotations and citations omitted).

Even as to issues of motive or intent, Mr. Jakuttis cannot

”rest[] merely upon conclusory allegations, improbable

inferences, and unsupported speculation.” Medina-Munoz v. R.J.

Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

Here, Mr. Jakuttis does not make a colorable prima facie

showing that he was assigned to the patrol unit for a

retaliatory purpose – in other words, he cannot show that his

protected conduct was a “but for” cause of his patrol

assignment. See Edwards, 174 N.E.3d at 1169.

Mr. Jakuttis offers no evidence beyond his own speculative

testimony and the timing of his assignment to patrol to support

his contention that, but for his role in the DEA Task Force

investigation into police drug use, he would have been assigned

as a detective. Mr. Jakuttis has not satisfied his burden with

his own testimony that Mr. Chartrand mentioned a desire not to

“kick sand” in Mr. Mellonakos’s face when Mr. Chartrand assigned

him to the patrol unit. See Irobe v. U.S. Dep't of Agric., 890

F.3d 371, 381 (1st Cir. 2018) (“A court need not ‘take at face

value’ a party's ‘subjective beliefs,’ even if offered in the

form of testimony, if those subjective beliefs are ‘conclusory,’

‘self-serving,’ and lack factual support in the record” (quoting

Torrech-Hernández v. Gen. Elec. Co., 519 F.3d 41, 47 n.1 (1st

Cir. 2008)).

Even if Mr. Jakuttis could make a prima facie showing of

retaliation, the Town of Dracut has “proferr[ed] a legitimate,

nonretaliatory reason for [his reassignment].” Stuart, 2021 WL

4477476, at *13 (citation omitted). The Town of Dracut contends

that Mr. Jakuttis was assigned to the patrol unit because of

specific personnel challenges. Mr. Chartrand testified that he

recommended against assigning Mr. Jakuttis to the detective unit

because Detectives Buote and Pike, the only other officers

assigned to the detective unit at the time, expressed reluctance

to work with Mr. Jakuttis due to his on-the-job behavior. Mr.

Chartrand’s testimony is corroborated by consistent testimony

from Detectives Buote and Pike, as well as from Mr. Mellonakos.

Detectives Buote and Pike confirmed that they told Mr. Chartrand

that they preferred not to work with Mr. Jakuttis. Neither

suggested that it was Mr. Jakuttis’s role in investigating Mr.

Mellonakos or other officers that made Mr. Jakuttis an

undesirable colleague. Instead, both testified that they found

Mr. Jakuttis difficult to work with, dismissive of fellow

officers’ concerns, and demeaning of others’ work. Mr.

Mellonakos, too, testified that he never expressed the view that

Mr. Jakuttis should be excluded from the detective unit.

Consequently, Mr. Jakuttis cannot sustain a whistleblower

claim on this basis, and I will grant the Town of Dracut’s

motion for summary judgment.23

D. Count IV: Intentional Interference with Advantageous

Economic Relationship as to Mr. Chartrand and Mr.

Mellonakos

Massachusetts courts have articulated four elements

23 Because Mr. Jakuttis fails to show that his protected conduct

was a determinative factor in his assignment to patrol, I need

not decide whether assigning Mr. Jakuttis to the same unit to

which he was assigned before joining the DEA Task Force could

constitute damaging retaliatory action. I also need not decide

if his assignment to a vehicle with electrical issues was

retaliatory.

necessary to prove intentional interference with advantageous

economic relations: “(1) [the plaintiff] had an advantageous

relationship with a third party (e.g., a present or prospective

contract or employment relationship); (2) the defendant

knowingly induced a breaking of the relationship; (3) the

defendant's interference with the relationship, in addition to

being intentional, was improper in motive or means; and (4) the

plaintiff was harmed by the defendant's actions.” Blackstone v.

Cashman, 860 N.E.2d 7, 12–13 (Mass. 2007). When a plaintiff

brings a claim against an employer, he “must satisfy an

additional element: that the supervisor acted with actual

malice.” Gregg v. Northeastern Univ., 599 F. Supp. 3d 9, 16 (D.

Mass. 2022) (internal quotations and citations omitted). Actual

malice requires “a spiteful, malignant purpose unrelated to a

legitimate corporate interest” of the employer. Blackstone, 860

N.E.2d at 19; see also Kelleher v. Lowell Gen. Hosp., 152 N.E.3d

126, 133 (Mass. App. Ct. 2020) (“[T]he plaintiff needed to show

that the defendant’s purpose was unrelated to any corporate

interest. . . .” (internal quotations and citation omitted)).

Mr. Jakuttis’s claim at summary judgment is separately

against Mr. Chartrand and Mr. Mellonakos.

1. Mr. Jakuttis’ Claim Against Mr. Chartrand

As to Mr. Chartrand, an individual official of the Dracut

Police Department acting within the scope of his

responsibilities,24 Mr. Jakuttis must show that he acted with

improper motive or means driven by actual malice. Weber, 752

N.E.2d at 715 (citing Gram v. Liberty Mut. Ins. Co., 429 N.E.2d

21, 24 (Mass. 1981)). Mr. Jakuttis contends Mr. Chartrand

improperly acquiesced to or was motivated by Mr. Mellonakos’s

malicious urging when he assigned Mr. Jakuttis to the patrol

unit. Mr. Jakuttis also contends that summary judgment should

be denied on the grounds that Mr. Chartrand’s intent in

“demoting” him is a question for the trier of fact.

“Even in cases where elusive concepts such as motive or

intent are at issue, summary judgment may be appropriate if the

24 Mr. Jakuttis does not meaningfully dispute that Mr. Chartrand

is entitled to be considered under the actual malice standard.

The parties do, however, seem to dispute whether the actual

malice standard applies to Mr. Mellonakos. Mr. Mellonakos

appears to assert that it does. See Dkt. No. 122 at 18

(“[N]othing in the discovery record supports the notion that

Mellonakos acted with actual malice.”). To contest this

assertion, Mr. Jakuttis points to Mr. Mellonakos’ deposition

testimony stating he “would have been [Mr. Jakuttis’]

supervisor” but was not because he “was out on injury,” showing,

Mr. Jakuttis contends, that the malice standard does not apply.

Dkt. No. 125 at 32–33; see Mellonakos Dep. Tr. at 71:8–19, Dkt.

No. 119 at 126. Actual malice is required only “when an

employee is claiming a supervisor has intentionally interfered

with the employee's advantageous relationship with the employer

or a corporate official is acting in an official capacity.”

Fountain v. City of Methuen, __F. Supp. 3d__, No. 21-CV-11046-

AK, 2022 WL 4382386, at *9 n.4 (D. Mass. Sept. 22, 2022)

(emphasis added). Here, the record does not suggest that Mr.

Mellonakos was Mr. Jakuttis’ supervisor. In any event, the

application of the malice standard is inconsequential to the

motion for summary judgment now before me because Mr. Jakuttis

has not provided facts sufficient to show causation.

nonmoving party rests merely upon conclusory allegations,

improbable inferences, and unsupported speculation.” Medina-

Munoz, 896 F.2d at 8. Mr. Jakuttis presents no facts sufficient

to allow a reasonable inference that Mr. Chartrand acted by

improper means or motive, let alone malice, in assigning Mr.

Jakuttis to the patrol unit.

Beyond his own speculation, Mr. Jakuttis proffers no

evidence to suggest he was placed in the patrol unit to punish

him for his disclosure of CS’s allegations. See Stonewood Cap.

Mgmt., Inc. v. Giner, Nos. 11–11422–RWZ, 12–11271–RWZ, 2013 WL

49771, at *5 (D. Mass. Jan. 3, 2013) (summary judgment proper

when plaintiff failed to show any evidence of the official’s

requisite ill-will or improper means). At most, Mr. Jakuttis

raises evidence of the type of “sloppy and unfair business

practices” which do not constitute improper means motivated by

actual malice. Gram, 429 N.E.2d at 25 (describing malice in

context of tortious interference with employment contract).

2. Mr. Jakuttis’ Claim Against Mr. Mellonakos

As to Mr. Mellonakos, Mr. Jakuttis fails to proffer

sufficient facts to support a reasonable inference that Mr.

Mellonakos caused or was even involved in Mr. Jakuttis’s removal

from the DEA Task Force or assignment to the patrol unit.

According to Mr. Chartrand’s testimony, Chief Richardson stated

that he ”ha[d] no intention of authorizing” Mr. Jakuttis to work

in the detective unit. There is no evidence before me that Mr.

Mellonakos’s preferences played any role in the assignment

decision. Moreover, the record contains no testimony, beyond

Mr. Jakuttis’s own speculation, that Mr. Mellonakos demanded Mr.

Jakuttis’s exclusion from the detective unit or pressured others

to punish Mr. Jakuttis for investigating CS’s allegations.

Consequently, I can find no triable issue as to this count.

E. Count VI: Intentional Infliction of Emotional Distress as

to Mr. Chartrand and Mr. Mellonakos

Massachusetts courts have imposed a “very high” standard

for plaintiffs bringing claims for intentional infliction of

emotional distress. Doyle v. Hasbro, Inc., 103 F.3d 186, 195

(1st Cir. 1996) (citing Agis v. Howard Johnson Co., 355 N.E.2d

315, 319 (Mass. 1976)).

To sustain a claim of intentional infliction of

emotional distress, a plaintiff must show (1) that the

defendant intended to cause, or should have known that

his conduct would cause, emotional distress; (2) that

the defendant’s conduct was extreme and outrageous;

(3) that the defendant’s conduct caused the

plaintiff’s distress; and (4) that the plaintiff

suffered severe distress.

Sena v. Commonwealth, 629 N.E.2d 986, 994 (Mass. 1994) (citing

Agis, 355 N.E.2d at 318-19).

The “extreme and outrageous” conduct element requires more

than a showing of tortious or even malicious intent and conduct.

Doyle, 103 F.3d at 195. As outlined in the Restatement (Second)

of Torts § 46 and frequently reiterated by the SJC, the

plaintiff must show that the defendant’s conduct was “so

outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.”

Foley v. Polaroid Corp., 508 N.E.2d 72, 82 (Mass. 1987) (quoting

RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (AM. L. INST. 1965)).

Whether the defendant’s conduct can be deemed extreme and

outrageous may be decided as a matter of law when the record is

sufficiently developed. See Sena, 629 N.E.2d at 994.

Even crediting each of Mr. Jakuttis’s factual allegations

against Messrs. Chartrand and Mellonakos, their alleged conduct

does not rise to the level of atrocious behavior required to

support a claim for intentional infliction of emotional

distress. Assigning Mr. Jakuttis to the patrol unit of the

Dracut Police Department, the same unit to which he was assigned

before he joined the DEA Task Force, does not amount to extreme

and outrageous conduct under the circumstances. Accordingly,

summary judgment is appropriate on this count.25

25 Even if Messrs. Chartrand and Mellonakos had engaged in

extreme and outrageous behavior, Mr. Jakuttis’ claim could also

be barred by the Worker’s Compensation Act, MASS. GEN. LAWS ch.

152, § 24. That provision “bars the use of [intentional

infliction of emotional distress] by an employee (or former

employee) against coworkers or employers acting within the scope

of their employment.” McArdle v. Town of Dracut/Dracut Pub.

Schs., 732 F.3d 29, 37 (1st Cir. 2013).

F. Count VII: Civil Conspiracy as to Mr. Chartrand and Mr.

Mellonakos

Massachusetts law recognizes two forms of civil conspiracy:

(1) joint agreement “based on the defendants’ allegedly unique

ability to exert a peculiar power of coercion when acting in

unison,” Snyder v. Collura, 812 F.3d 46, 52 (1st Cir. 2016)

(citation and internal quotations omitted); and (2) joint

agreement anticipating concerted action by defendants, “whereby

liability is imposed on one individual for the tort of another,”

Kurker v. Hill, 689 N.E.2d 833, 836–37 (Mass. App. Ct. 1998).

Mr. Jakuttis asserts the second form of civil conspiracy.

Under the second approach, also outlined in the Restatement

(Second) of Torts § 876, liability is imposed on a defendant for

tortious actions of another when the defendant substantially

assists the other in accordance with a common plan. See Kurker,

689 N.E.2d at 837 (“Though not explicitly adopted in

Massachusetts, this section of the Restatement has been cited in

appellate decisions and, in some instances, has provided the

basis for recovery.”). To prove this type of conspiracy,

“plaintiff must show that defendants either (1) acted in concert

with or pursuant to a common design with the tortfeasor or (2)

gave substantial assistance to the tortfeasor's conduct.”

Thomas, 909 F.3d at 490 (internal quotations, footnote, and

citations omitted). The common plan or agreement need not be

express when “an inference of an implied agreement c[an]

properly be drawn from the conduct of two or more parties.”

Kyte v. Philip Morris Inc., 556 N.E.2d 1025, 1028 (Mass. 1990);

see Att’y Gen. v. Tufts, 132 N.E. 322, 328 (Mass. 1921) (“Common

purpose may be inferred from concerted action converging to a

definite end.”).

I leave to one side the inquiry whether the conduct at

issue is, in fact, tortious in nature. The summary judgment

record does not support finding the kind of concerted action

involving a common design or agreement sufficient for liability

under common law civil conspiracy against either Mr. Mellonakos

or Mr. Chartrand. Even if Mr. Chartrand were found to have

expressed the sentiment that he did not want to “kick sand” in

Mr. Mellonakos’s face, this statement does not evidence an

express or implied agreement between Mr. Mellonakos and Mr.

Chartrand or any kind of “common plan.” Bettencourt v. Town of

Mendon, 334 F. Supp. 3d 468, 487 (D. Mass. 2018) (“[P]laintiff

must establish a common plan to commit a tortious act where the

participants know of the plan and its purpose and take

affirmative steps to encourage the achievement of the result.”

(quoting Grant v. John Hancock Mut. Life Ins. Co., 183 F. Supp.

2d 344, 363 (D. Mass. 2002)).

To the extent that Mr. Chartrand may have felt social

pressure to act according to Mr. Mellonakos’s preferences, there

is no evidence in the record connecting Mr. Mellonakos to that

action. Mr. Mellonakos was on indefinite medical leave at the

time Mr. Jakuttis was assigned to the patrol unit. Mr.

Chartrand and Mr. Mellonakos testified that Mr. Mellonakos never

asked that Mr. Jakuttis be excluded from the detective unit.

Even if Mr. Mellonakos believed Mr. Jakuttis should be excluded

from the detective unit, that two officers in the same unit came

to the same conclusion regarding a discretionary personnel

decision is not the kind of concerted action covered by common

law civil conspiracy liability. Summary judgment will also

enter as to this count.

IV. FEDERAL RICO CLAIMS

Mr. Jakuttis alleges that all Defendants except the Town of

Dracut violated RICO (Count VIII) and engaged in a federal civil

RICO conspiracy (Count IX). Mr. Chartrand and Mr. Mellonakos,

move for summary judgment on these counts. [Dkt. Nos. 121, 123]

The individual federal Defendants, Mr. O’Hanlon and Mr. Poirier,

move to dismiss these counts for lack of subject matter

jurisdiction and failure to state a claim.26 [Dkt. No. 51]

Because the counts against each Defendant arise from the same

26 As explained supra note 5, I need not address Messrs. O’Hanlon

and Poirier’s qualified immunity argument, because Mr. Jakuttis

has failed to plead his RICO claims adequately.

facts as alleged, I outline the relevant standards of review

before turning to the substance of the underlying contentions.

The standard of review for the RICO counts against

Defendants Chartrand and Mellonakos is the summary judgment

standard, described supra Section III. Relevant elements of the

standard of review for the joint motion to dismiss brought by

the federal Defendants Messrs. O’Hanlon and Poirier are set

forth below in Subsection IV.A. I begin by evaluating the

pleadings as to the RICO counts under the motion to dismiss

standard before moving on to the claims separately considered as

to all Defendants.

A. Motion to Dismiss Standard

Pursuant to Federal Rule of Civil Procedure 12(b)(1), to

survive dismissal, a claim must be presented to a court having

jurisdiction to adjudicate such a claim. Federal courts have

limited jurisdiction and “possess only that power authorized by

Constitution and statute.” Kokkonen v. Guardian Life Ins. Co.

of Am., 511 U.S. 375, 377 (1994). Messrs. O’Hanlon and Poirier

do not seem to argue that Mr. Jakuttis lacks Article III

Constitutional standing in their 12(b)(1) motion; rather, they

appear to argue that Mr. Jakuttis fails to establish statutory

RICO standing. See HCB Fin. Corp. v. McPherson, 8 F.4th 335,

339 (5th Cir. 2021) (“Although statutory standing involves an

inquiry into alleged injury, it is not synonymous with Article

III standing.”). To establish standing under RICO, a plaintiff

must “demonstrate (1) a violation of section 1962, and (2) harm

‘by reason of’ the violation.” Willis v. Lipton, 947 F.2d 998,

1000 (1st Cir. 1991) (quoting Sedima, S.P.R.L. v. Imrex Co., 473

U.S. 479, 495–96 (1985)).

As noted, Messrs. O’Hanlon and Poirier have not contested

Article III standing and “the question of statutory standing is

to be resolved under Rule 12(b)(6), once Article III standing

has been established.” Canyon Cnty. v. Syngenta Seeds, Inc.,

519 F.3d 969, 974 n.7 (9th Cir. 2008). Accordingly, both the

12(b)(1) and 12(b)(6) motions to dismiss are evaluated under the

12(b)(6) standard.

To resolve a 12(b)(6) motion to dismiss, a court must

follow a two-step process: first, the factual allegations must

be separated from the legal conclusions; factual allegations are

entitled the presumption of truth, while legal conclusions are

not. Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 10 (1st

Cir. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

Second, the remaining factual allegations in the complaint must

be evaluated to determine “whether, taken as a whole, they state

a facially plausible legal claim.” Id. at 10-11 (citing Iqbal,

556 U.S. at 679). A legal claim is plausible “when the

plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. at 11 (quoting Iqbal, 556 U.S. at

678). In sum, a complaint is adequate when it “provide[s] fair

notice to the defendants and states a facially plausible legal

claim.” See id. at 12.

B. Count VIII: 18 U.S.C. §§ 1962(c) and 1964(c), Civil RICO as

to All Defendants Except Dracut

Mr. Jakuttis’ operative Complaint alleges [Dkt. No. 70 at

84 at ¶ 408] that the federal Defendants and individual Dracut

Defendants violated 18 U.S.C.§ 1962(c), which prohibits: “(1)

conduct (2) of an enterprise (3) through a pattern (4) of

racketeering activity.” Doyle, 103 F.3d at 190 (quoting Sedima,

473 U.S. at 496 ). Additionally, as explained supra, “the

plaintiff only has standing if, and can only recover to the

extent that, he has been injured in his business or property by

the conduct constituting the violation.” Sedima, 473 U.S. at

496. Section 1964(c), which Mr. Jakuttis also cites, provides a

civil cause of action for “[a]ny person injured in his business

or property by reason of a violation of section 1962.” 18

U.S.C. § 1964(c).

Congress adopted RICO for the purpose of “seek[ing] the

eradication of organized crime in the United States.” Beck v.

Prupis, 529 U.S. 494, 496 (2000) (quoting Organized Crime

Control Act of 1970, Pub. L. 91-452, 84 Stat. 923) (alteration

in original)). To further this purpose, Congress used

“expansive language” and expressly directed that the statute be

“liberally construed.” Sedima, 473 U.S. at 497-98 (citation

omitted). Although the RICO legislation was principally passed

to combat organized crime, “Congress for cogent reasons chose to

enact a more general statute, one which . . . was not limited in

application to organized crime.” Nat’l Org. for Women, Inc. v.

Scheidler, 510 U.S. 249, 260 (1994) (quoting H.J. Inc. v. Nw.

Bell Tel. Co., 492 U.S. 229, 248 (1989)).

However, “[c]ivil RICO is an unusually potent weapon—the

litigation equivalent of a thermonuclear device.” Miranda v.

Ponce Fed. Bank, 948 F.2d 41, 44 (1st Cir. 1991), abrogated on

other grounds by United States v. Velazquez-Fontanez, 6 F.4th

205, 213 n.2 (1st Cir. 2021)). Accordingly, “it would be unjust

if a RICO plaintiff could defeat a motion to dismiss simply by

asserting an inequity attributable to a defendant's conduct and

tacking on the self-serving conclusion that the conduct amounted

to racketeering.” Id. at 44. It is against this backdrop that

I outline each of the requisite elements of a well-pleaded and

supported RICO claim.

For sake of clarity in analysis, I address the RICO

elements out of order, starting with the elements that concern

the underlying activities and entities in this matter before

expanding my scope to consider how these components interact.

Mr. Jakuttis stretches the fabric of RICO but manages to plead

and develop facts sufficient to satisfy certain elements.

However, as to all Defendants, he fails to set out the pattern

of racketeering, which is at “the heart of any RICO complaint.”

Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S.

143, 154 (1987). In addition, he fails to satisfy the injury

element as to all individual Defendants. He also fails to

satisfy the conduct element as to the individual Dracut

Defendants.

1. Racketeering Activity

As relevant here, the racketeering activity targeted by

RICO includes acts “indictable” under enumerated federal

criminal laws, “or drug-related activities. . . ‘punishable’

under federal law.” Sedima, 473 U.S. at 481-82 (quoting 18

U.S.C.§ 1961(1)). The racketeering activity need not have been

criminally charged or resulted in conviction to satisfy the

statutory civil RICO requirements. See Sedima, 473 U.S. at 481-

88 (citing S. Rep. No. 91-617, at 158 (1969)). The racketeering

activity provision requires only “a failure to adhere to legal

requirements,” and “[the Supreme Court is] not at all convinced

that the predicate acts must be established beyond a reasonable

doubt in a proceeding under § 1964(c).” Id. at 489, 491. They

simply must be indictable, chargeable, or punishable. See id.

at 488.

The conduct Mr. Jakuttis has pleaded could be “racketeering

activity,” because it involves acts potentially indictable under

(1) 18 U.S.C. § 1513(e), which “provide[s] criminal sanctions

for retaliation against anyone giving truthful information to

law enforcement officers relating to the commission of any

federal offense.” Carnero v. Bos. Sci. Corp., 433 F.3d 1, 10

(1st Cir. 2006). The same acts could also plausibly support an

indictment under (2) 18 U.S.C. § 1512(b)(3), which criminalizes

conduct of those who act or attempt to “hinder, delay, or

prevent the communication to a law enforcement officer or judge

of the United States of information relating to the commission

or possible commission of a Federal offense.” And given the

allegations of illicit drug use, the facts alleged could support

(3) an indictment under the Controlled Substances Act, 21 U.S.C.

§ 801, et seq.

2. Enterprise

Section 1961 defines an “enterprise” as “any individual,

partnership, corporation, association, or other legal entity,

and any union or group of individuals associated in fact

although not a legal entity.” 18 U.S.C. § 1961(4). An

association-in-fact enterprise under RICO must have three

characteristics: (1) “a purpose”; (2) “relationships among those

associated with the enterprise”; and (3) “longevity sufficient

to permit th[o]se associates to pursue the enterprise’s

purpose.” Boyle v. United States, 556 U.S. 938, 946 (2009).

Unlike a legal entity, which may be a legitimate

organization, an association-in-fact must have “a common illegal

purpose.” Ezell v. Lexington Ins. Co., 335 F. Supp. 3d 91, 96-

97 (D. Mass. 2018) (dismissing complaint where plaintiffs

“failed to plead adequately that the defendants and non-party

brokers associated together for a common illegal purpose”),

aff’d, 926 F.3d 48 (1st Cir. 2019).27 Where the association-in-

27 As noted by my colleague Judge Saris, “[t]here has been

considerable confusion as to whether [the association-in-fact’s]

common purpose needs to be illegal,” which “[t]he First Circuit

has not yet squarely addressed,” In re Neurontin Mktg., Sales

Pracs., & Prods., 433 F. Supp. 2d 172, 179, 180 (D. Mass. 2006),

though in passing it has suggested the purpose must be illegal,

see United States v. Connolly, 341 F.3d 16, 25 (1st Cir. 2003)

(explaining that an enterprise must ”only be a group of persons

associated together for a common purpose of engaging in a

criminal course of conduct” (internal quotations and citation

omitted)). However, other Circuits have answered the question

in the affirmative. See Al-Rayes v. Willingham, 914 F.3d 1302,

1308 (11th Cir. 2019) (“[T]he relevant ‘purpose’ in an

association-in-fact enterprise is the members’ shared purpose of

engaging in illegal activity—not the purpose for which they

initially became acquainted.”); Cruz v. FXDirectDealer, LLC, 720

F.3d 115, 120 (2d Cir. 2013) (“[F]or an association of

individuals to constitute an enterprise, the individuals must

share a common purpose to engage in a particular fraudulent

course of conduct and work together to achieve such purposes.”

(alteration in original) (quoting First Cap. Asset Mgmt., Inc.

v. Satinwood, Inc., 385 F.3d 159, 174 (2d Cir. 2004)). Here,

Mr. Jakuttis alleges that the purpose of the association-in-fact

is to “perpetuate the predicate acts” and cover them up as

alleged in the operative Complaint, which appears to indicate a

common illegal purpose. [Dkt. No. 70 at 85 at ¶ 410] In the

final analysis, however, whether Mr. Jakuttis has pleaded

fact “animated by an illicit common purpose” includes both

individuals and a municipal entity, it is sufficient for the

plaintiff to show that the individual members “exploit[]” the

entity “to carry out that purpose.” United States v. Cianci,

378 F.3d 71, 83 (1st Cir. 2004).

Further, “the same entity cannot do ‘double duty’ as both

the RICO defendant and the RICO enterprise,” Libertad v. Welch,

53 F.3d 428, 442 (1st Cir. 1995), abrogated on other grounds by

Velazquez-Fontanez, 6 F.4th at 213 n.2, meaning a defendant

alleged to be engaged in racketeering activity must be “distinct

from the ‘enterprise.’” Odishelidze v. Aetna Life & Cas. Co.,

853 F.2d 21, 23 (1st Cir. 1988) (per curiam).

The enterprise must also be “engaged in, or [include]

activities of which affect, interstate or foreign commerce.” 18

U.S.C. § 1962(c). However, this requirement can be sustained

“without [the enterprise] having its own profit-seeking

motives,” because it “surely can have a detrimental influence on

interstate . . . commerce” in other ways. Scheidler, 510 U.S.

at 258.

sufficiently (or the summary judgment record reflects) a common

illegal purpose is immaterial because, as explained infra

Section I.V. B.5, Mr. Jakuttis has not demonstrated a pattern of

racketeering activity, as required by 18 U.S.C. § 1962(c).

Here, Mr. Jakuttis pleaded, and summarized in opposition to

summary judgment, three alternative groupings that could

constitute the RICO enterprise:

(A) . . . (i) Defendant John Doe 1 (Mellonakos),

Defendant John Doe 2 (Poirier), Defendant

Chartrand, Defendant O’Hanlon, and DO3 (Officer

Byam), or (ii) Defendant John Doe 1 (Mellonakos),

[Defendant] John Doe 2 (Poirier), and DO3 (Officer

Byam), and (B) either one of the association-in-

fact enterprises stated in parts (A)(i) or (ii)

. . . and the Town of Dracut Police Department

. . . ; and (C) the Town of Dracut Police

Department.

[Dkt. No. 125 at 38] (emphasis added). The latter two options

(Groups B and C), as pleaded and substantiated in the record,

are sufficient for RICO purposes, while the first option (Group

A) presents a closer question that I address last in taking up

the groupings in reverse order.

Group C comprises the Dracut Police Department, as distinct

from the Town of Dracut, and is an entity that satisfies the

text of the RICO statute on its face. See 18 U.S.C. § 1961(4)

(defining “enterprise” to include “any individual, partnership,

corporation, association, or other legal entity”).

Groups B and C are specifically “association-in-fact”

enterprises. Mr. Jakuttis pleaded that the “purpose” of the

association-in-fact enterprises “is to perpetuate the predicate

acts of engaging in the unlawful distribution, sale, use,

buying, handling, or otherwise dealing in a controlled

substance” and/or to “cover[] up” the predicate acts and their

investigation or disclosure; both these alleged purposes are

unlawful and are sufficient. Group B comprises the Dracut

Police Department with some combination of the Defendants and

DO3 (Dracut Police Officer Byam). This grouping satisfies the

structural requirements for an association-in-fact — purpose,

relationships, and longevity.

Group A comprises only the individual Defendants in this

RICO action, together with DO3 (Dracut Police Officer Gregg

Byam), who was — as alleged and shown in the record — an active

participant in the scheme but not named as a defendant by Mr.

Jakuttis for unexplained reasons. This grouping comes very

close to describing impermissibly an enterprise that is

indistinguishable from Defendants, save for the inclusion of DO3

(Officer Byam). The Eleventh Circuit has explained that the

“prohibition against the unity of person and enterprise applies

only when the singular person or entity is defined as both the

person and the only entity comprising the enterprise,” such that

“a defendant can clearly be a person under the statute and also

be part of the enterprise.” United States v. Goldin Indus.,

Inc., 219 F.3d 1271, 1275 (11th Cir. 2000); see also Al-Rayes v.

Willingham, 914 F.3d 1302, 1310 (11th Cir. 2019) (suggesting

that married couple, where wife was defendant, could constitute

association-in-fact enterprise). Although I am not fully

satisfied that Group A could be a valid association-in-fact,

because I find Groups B and C meet the RICO enterprise

requirement, I set aside the question whether Group A does.

Groups B and C fully satisfy RICO’s interstate commerce

requirement because RICO’s definition of enterprise is “flexible

enough to include a police department.” See Cardarelli v. Mass.

Bay Transp. Auth., No. 09-CV-11253-RGS, 2010 WL 1416464, at *8

(D. Mass. Apr. 7, 2010) (citing United States v. Ambrose, 740

F.2d 505, 512 (7th Cir. 1984), abrogated on other grounds by

United States v. Pino-Perez, 870 F.2d 1230 (7th Cir. 1989);

United States v. Karas, 624 F.2d 500, 504 (4th Cir. 1980);

United States v. Brown, 555 F.2d 407, 415-16 (5th Cir. 1977)).

The Dracut Police Department and the individuals that Mr.

Jakuttis lists here have all been part of investigating the drug

trade, and indeed the Department has systematically worked with

federal agencies at the nexus of drug trade in Massachusetts and

northern New England.

3. Conduct

The conduct element is established when a defendant has

“some part in directing [the RICO enterprise’s] affairs,” though

“RICO liability is not limited to those with primary

responsibility.” Reves v. Ernst & Young, 507 U.S. 170, 179

(1993); see also id. at 184 (“An enterprise is ‘operated’ not

just by upper management but also by lower rung participants in

the enterprise who are under the direction of upper

management.”). The Supreme Court has explained that “‘to

conduct or participate, directly or indirectly, in the conduct

of [an] enterprise's affairs,’ § 1962(c), one must participate

in the operation or management of the enterprise itself.” Id.

at 185.

All named individual Defendants are law enforcement

officers, whether with the Dracut Police Department or DEA.

With respect to Group B, the remaining association-in-fact, Mr.

Jakuttis’ allegations that all named individual Defendants took

various actions in connection with the changes to his employment

status and his treatment at the Dracut Police Department are

adequate to demonstrate “conduct” of the association-in-fact,

though I observe Mr. Jakuttis has not substantiated those claims

with evidence obtained through discovery as to the individual

Dracut Defendants Chartrand and Mellonakos. Nevertheless, I

find this element satisfied as to his opposition to the

individual federal Defendants’ motion to dismiss.

Group C, however, names a legal entity, the Dracut Police

Department, as the enterprise. As with Group A, the summary

judgment record does not substantiate Mr. Jakuttis’s claims as

to the individual Dracut Defendants. As to the individual

federal Defendants, Messrs. Poirier and O’Hanlon were not

employed by the Dracut Police Department, though under Reves,

Mr. Jakuttis must show that they “participate[d] in [its]

operation or management.” 507 U.S. at 185. Whether Mr.

Jakuttis’s allegations are sufficient to meet the standard under

Reves as to the individual federal Defendants, I set to the

side, because Mr. Jakuttis has sufficiently alleged that the

individual federal Defendants “participate[d] in the operation

or management” of the Group A association-in-fact. Id.; see id.

at 179 (“In order to ‘participate, directly or indirectly, in

the conduct of such enterprise's affairs,’ one must have some

part in directing those affairs.”). Mr. Jakuttis need only

establish one enterprise. Cf. Aetna Cas. Sur. Co. v. P&B

Autobody, 43 F.3d 1546, 1558 (1st Cir. 1994) (explaining, in

RICO conspiracy context, that “plaintiff needed only to prove

some kind of enterprise of that scope, not necessarily an

association-in-fact enterprise”), abrogated on other grounds by

Velazquez-Fontanez, 6 F.4th at 213 n.2. In summary, Mr.

Jakuttis sufficiently alleged that the individual federal

Defendants “participate[d] in the operation or management,”

Reves, 507 U.S. at 185, of Group A, an association-in-fact, but

he has failed to demonstrate the same through the summary

judgment record now before me as to the individual Dracut

Defendants.

4. Requisite Injury

The injury must be related to the plaintiff’s business or

property in order for him to have standing under RICO. See

Sedima, 473 U.S. at 496. The predicate racketeering activities

must form both factual “but for” causation and proximate

causation. Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 265-

68 (1992).

Mr. Jakuttis has pleaded, and the summary judgment record

appears to present, evidence sufficient to satisfy the injury

requirement. The injury alleged is financial because Mr.

Jakuttis’s opportunity to work and receive overtime has been

affected by the changes to his employment assignment. Further,

if Mr. Jakuttis demonstrates that he was retaliated against by

Defendants, the predicate act of retaliation against Mr.

Jakuttis can be said to be the direct cause of the injury he

suffered. See DeGuelle v. Camilli, 664 F.3d 192, 199-201 (7th

Cir. 2011) (finding proper RICO injury where the plaintiff’s

employer had retaliated against him for reporting a tax fraud

scheme).

With respect to the individual federal Defendants, the

operative Complaint is inadequately pleaded on this point. With

respect to the individual Dracut Defendants, as discussed supra

Section III, Mr. Jakuttis has not raised a colorable claim that

these defendants retaliated against him by assigning him to the

patrol unit. Even with the benefit of discovery as to the

individual Dracut Defendants, Mr. Jakuttis is able only to offer

his own speculative conclusions that Messrs. Chartrand and

Mellonakos retaliated against him. They cannot be said to have

caused the requisite RICO injury.

5. Pattern of Activity

I now reach the pattern requirement that is at “the heart

of any RICO complaint.” Agency Holding Corp., 483 U.S. at 154.

A “pattern of racketeering activity” under RICO “requires at

least two acts of racketeering activity.” 18 U.S.C. § 1961(5).

Although two predicate acts are required by statute, “they may

not be sufficient unless they are both ‘related’ and ‘amount to

or pose a threat of continued criminal activity.’” Schultz v.

R.I. Hosp. Tr. Nat’l Bank, N.A., 94 F.3d 721, 731 (1st Cir.

1996) (citation omitted). “In other words, a RICO pattern

consists of ‘continuity plus relationship.’” Id. (quoting Sousa

v. BP Oil, Inc., No. 83–4046–DPW, 1995 WL 842003, at *13 (D.

Mass. Sept. 12, 1995)); see also H.J. Inc., 492 U.S. at 237

(noting that § 1961 “does not so much define a pattern of

r

This text is long and has been trimmed here. Open the source document for the complete record.