# Jakuttis v. Town of Dracut

> District Court, D. Massachusetts · February 14, 2023

URL: https://www.frixlaw.com/law-library/cases/10200927

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** February 14, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10200927. Public record. Not legal advice.