Sabey v. Butterfield

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

JOSHUA SABEY, SARAH PERKINS, )

JOSHUA SABEY and SARAH PERKINS on )

behalf of C.S. 1 and C.S. 2, )

minors, )

)

Plaintiffs, )

) Civil Action

v. ) No. 23-10957

)

KATHERYN BUTTERFIELD, AARON )

GRIFFIN, CAROLYN KALVINEK, )

BONNIE ARRUDA, ANTHONY SCICHILONE, )

RICHARD COUTURE, ELIAS MAKRIGIANIS,)

STEFANO VISCO, and CITY OF WALTHAM,)

MASSACHUSETTS, )

)

Defendants. )

___________________________________)

MEMORANDUM AND ORDER

March 14, 2024

Saris, D.J.

Joshua Sabey and Sarah Perkins are the parents of two young

children who were removed from their home at 1:00 A.M. on a

Saturday morning by the Massachusetts Department of Child and

Family Services (“DCF”) with the assistance of police officers

from the City of Waltham. The forced removal took place without a

warrant three days after an emergency room doctor discovered that

the youngest child had two healing rib fractures, the cause of

which was uncertain. Sabey and Perkins, individually and on behalf

of their two children, brought suit against the City of Waltham,

the four police officers who were present at the removal, and the

DCF employees involved in the removal in their personal capacities.

Both the DCF Defendants and the City of Waltham have moved to

dismiss. After review of the briefing and oral argument, the Court

ALLOWS the City of Waltham’s Motion to Dismiss (Dkt. 39) and ALLOWS

the DCF Defendants’ Motion to Dismiss (Dkt. 30) with respect to

Count VIII only; the latter motion is otherwise DENIED.

BACKGROUND

The facts below are taken from the Complaint and are assumed

to be true.

I. Hospital Visit on July 12-13, 2022

At the time of the events, the older child (“C.S. 1”) was

three years old and the younger child (“C.S. 2”) was three months

old. On July 12, 2022, C.S. 2 began vomiting and developed a fever.

At around 2:00 A.M., Perkins took him to the emergency room at

Newton Wellesley Hospital with a 103.5 degree fever. Sabey remained

home with C.S. 1. At the hospital, it was determined that C.S. 2

had low oxygen levels and a respiratory infection. In order to

check his lungs for possible pneumonia, C.S. 2 was given an x-ray.

The x-ray revealed a healing rib fracture, which was estimated

to be between ten days and six weeks old. This discovery prompted

an internal hospital investigation. Perkins was informed of the

fracture at 8:00 A.M. on July 13, and was questioned about the

source of the injury. She responded that neither she nor her

husband knew about the rib fracture and did not know what could

have caused it. The hospital then ordered more detailed imaging

and further testing of C.S. 2, including a full skeletal exam,

which showed that the rib injury actually comprised two adjacent

healing rib fractures. The hospital requested permission to

conduct a brain scan, which Perkins initially declined. The brain

scan did not reveal any cause for concern.

As part of the hospital investigation, social worker Jill

Saks conducted interviews with Perkins at the hospital that day.

When pressed by the social worker to speculate, Perkins suggested

that the injuries may have been caused by C.S. 2’s short fall from

bed several weeks before, which had not resulted in any apparent

injury. Perkins denied any physical or substance abuse in the home.

Hospital officials also spoke with the family’s pediatrician, Dr.

Kristen Haddon, who reported that she had no concerns about C.S.

2’s safety and well-being. At the hospital’s request, C.S. 1 was

brought to the pediatrician to be medically cleared. After a

thorough examination, the pediatrician found no signs of abuse,

mistreatment, or injury. That same day, the social worker sent a

report to DCF alleging physical abuse of C.S. 2 by his parents.

The report outlined the injuries to C.S. 2’s ribs and stated that

Perkins’s “affect” was “flat” and that she “rolled her eyes” when

questioned. The report also indicated that the rib fractures were

not consistent with a fall from a bed.

Shortly after receiving the report from the hospital, DCF

sent emergency response workers Axel Rivera and Ana Piedade to the

hospital to further investigate whether there were indications of

abuse or neglect. The hospital officials informed them that, with

the exception of the rib fractures, there were no signs of physical

abuse, no signs of substance abuse, and that the family’s

pediatrician had told hospital officials that she had no concerns

about the children’s wellbeing. After speaking with hospital

officials, Rivera and Piedade individually interviewed Sabey,

Perkins, and C.S. 1. After the interviews, Sabey and C.S. 1

returned home while Perkins and C.S. 2 were required to stay at

the hospital overnight. That night, Piedade and Rivera went to the

family’s home in Waltham, where they reported no concerns.

II. The Investigation Continues on July 14-15

The next morning, at about 9:30 A.M. on July 14, Rivera spoke

with Dr. Haddon. Dr. Haddon reported no concerns and was surprised

to hear of the injuries. Additionally, Dr. Haddon told Rivera that

C.S. 2 was medically up to date and that his parents take him to

monthly pediatrician visits, none of which had revealed any

concerns of abuse, injury, or neglect. In addition to speaking

with the family’s pediatrician, Rivera also spoke with Dr. David

Dominguez, who had completed the medical clearance on C.S. 1 the

previous day. Dr. Dominguez reported no concerns with C.S. 1.

Rivera also contacted the Waltham Police Department to request

background checks on Sabey and Perkins. Their background checks

showed that there had been no police calls to the home and revealed

no concerns with either parent.

At about 3:00 P.M. on July 14, DCF officials allowed Perkins

and C.S. 2 to leave the hospital and return home. That same day,

around 5:00 P.M., Rivera spoke with Sabey over the phone about a

safety plan for the family, which he subsequently emailed. The

family agreed to sign the safety plan and to have a home visit on

July 18.

Defendant Katheryn Butterfield, an Area Program Manager for

DCF, was informed of the C.S. 2 investigation the following day,

July 15. Soon after learning of the investigation, Butterfield

ordered Rivera to go to the Sabey home and to provide her with an

update after the visit. At about 5:15 P.M. that day, Rivera

conducted an unannounced home visit. He spoke with the family,

observed both children, and ultimately reported no concerns.

Rivera reported that C.S. 1 “was walking around and was smiling,”

while C.S. 2 “looked presentable” while being held by his visiting

grandmother. Dkt. 1 at 11. During this unannounced home visit,

Rivera and the family agreed to also move forward with the

previously scheduled July 18 home visit.

III. Removal of the Two Children

At 6:00 P.M. that same day, a Friday, after receiving

confirmation from Rivera that he had completed his unannounced

visit to the home, Butterfield made the decision to remove the

children from the home. She made this determination based on the

hospital’s discovery of C.S. 2’s healing rib fractures and not on

any new evidence or information found during DCF’s investigation.

At approximately 8:00 P.M., Defendant Butterfield called Defendant

Aaron Griffin, a supervisor with DCF, to discuss a plan for the

removal. About an hour later, at 9:00 P.M., Defendants Carolyn

Kalvinek and Bonnie Arruda, officers with DCF, were contacted and

asked to proceed with the removal of the children from the home.

After a conversation with Defendant Griffin to gather more

information about the case and removal plan, Defendants Kalvinek

and Arruda went to the Waltham Police Department (“WPD”) station

at around 12:30 A.M. to request assistance in removing the Sabey

children. At approximately 1:00 A.M., Kalvinek and Arruda from

DCF, together with three police officers from WPD -- Defendants

Anthony Scichilone, Elias Makrigianis, and Stefano Visco --

arrived at the Sabey home.

The Sabey home was a rented ground-floor apartment in a shared

building. It shared a common entryway, or breezeway, with a closed

outer front door that faced the street and was usually locked. The

family accessed their apartment through this front door since their

apartment door was located just inside the front door within the

breezeway. The stairs within the breezeway led to the upstairs

tenants’ apartment, but those tenants rarely used the front door

and preferred to enter their unit through a separate external door.

As a result, the family used the breezeway as an extension of their

home, often locking the outer door and using the space to store

personal property, such as car seats and strollers.

When the DCF and WPD officers arrived at the Sabey home, the

police officers, Defendants Makrigianis and Visco, opened and

entered through the outer front door into the breezeway. While

standing within the breezeway, Defendant Makrigianis knocked on

the inner door to the home. Sabey answered the inner door and asked

the officials if they had a warrant; they informed him they did

not. In response, Sabey refused to allow the DCF workers and WPD

officials to enter the apartment, telling them to leave and return

with a warrant or other court order. The officials remained on the

property, including the breezeway, despite Sabey’s repeated

requests that they leave and return with a warrant or other court

order. One police officer stood against the front outer door,

intentionally jutting his elbow into the threshold to prevent any

attempt to close the outer door. Another officer stood on the

bottom step of the stairs within the breezeway, flanking the door

to the home on the left.

Eventually, the police officers told the family that DCF was

taking emergency custody of both children. None of the officials

had any paperwork on them. Instead, they claimed repeatedly (and

falsely) to have an “emergency order” that authorized them to take

the children. Dkt. 1 at 16. Concerned about the lack of paperwork,

Defendant Scichilone contacted his supervisor, Defendant Richard

Couture, to seek guidance about the removal. Sabey called the

family’s lawyer, who then spoke with Defendant Couture and other

officials from DCF and WPD. Defendant Couture and WPD officers

informed the lawyer that if the parents did not surrender the

children, then the officers would break into the home and seize

the children by force. Faced with this alternative, the parents

woke their children up and placed them, crying, into the DCF

vehicle.

After removing the children at about 2:30 A.M. on Saturday,

July 16, Defendants Kalvinek and Arruda placed them in the care of

a foster parent. Later that day the children were placed in the

care of their paternal grandparents.

The following Monday, July 18, at approximately 4:15 P.M.,

almost three days after the removal of the Sabey children from the

home, DCF filed a petition with the Juvenile Court seeking

permission to continue its custody of both C.S. 1 and C.S. 2. The

court granted that petition, gave emergency custody of the children

to DCF, and scheduled a temporary custody hearing.

The temporary custody hearing began on August 8, and lasted

three days. At the conclusion of the hearing, temporary custody of

the children was returned to their parents, subject to conditions.

DCF proceeded with an almost four-month investigation, which

ultimately failed to uncover any evidence of abuse, neglect, or

maltreatment of the children by their parents. For the next three

months the parents did not have full custody of their children.

LEGAL STANDARD

To survive a motion to dismiss for failure to state a claim

under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the

factual allegations in a complaint must “possess enough heft” to

set forth “a plausible entitlement to relief.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 557, 559 (2007). “Factual allegations must

be enough to raise a right to relief above the speculative level.”

Id. at 555. “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In addressing a motion

to dismiss, the Court must accept all allegations in the complaint

as true except legal conclusions. Id.

A preliminary issue is whether the Court should consider DCF’s

“Section 51B” investigative report of Sabey and Perkins, which was

not annexed to the Complaint but was referenced in it. Defendants

argue that the report, and certain audio recordings, should be

considered. A court may consider the allegations contained in the

complaint and materials “fairly incorporated into the complaint.”

Rodi v. S. New Eng. Sch. of L., 389 F.3d 5, 12 (1st Cir. 2004).

Defendants point out that the Complaint refers to information in

the report, particularly with respect to the sequence of events.

They ask the Court to consider the eighteen-page report in its

entirety, including conclusions by DCF that the injuries were non-

accidental. Though the report will likely be considered at summary

judgment, I do not agree that it was fairly incorporated in its

entirety into the Complaint. Defendants’ reliance on Goodall v.

Worcester School Committee is misplaced because the District Court

there ultimately declined to rely on the extraneous exhibits. 405

F. Supp. 3d 253, 259-60 (D. Mass. 2019).

DISCUSSION

I. Claims Against DCF Defendants in Violation of Fourth and

Fourteenth Amendments (Count I)

Plaintiffs allege in Count I that the DCF Defendants conducted

an unreasonable search and seizure of their house and curtilage in

violation of the Fourth and Fourteenth Amendments. They assert

there were no exigent circumstances justifying the warrantless

entry, that they did not consent to the search, and the entry was

by threat of force. The DCF Defendants argue that exigent

circumstances justified the warrantless entry.

The Fourth Amendment provides that “[t]he right of the people

to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated.” U.S.

Const. amend. IV. The core of the Fourth Amendment is the right of

a family to retreat into their own home and “there be free from

unreasonable governmental intrusion.” Florida v. Jardines, 569

U.S. 1, 6 (2013) (quoting Silverman v. United States, 365 U.S.

505, 511 (1961)) (“But when it comes to the Fourth Amendment, the

home is first among equals”). Absent exigent circumstances, the

threshold of a home “may not reasonably be crossed without a

warrant.” Payton v. New York, 445 U.S. 573, 590 (1980). This

protection includes the “curtilage” which is the area “immediately

surrounding and associated with the home.” Collins v. Virginia,

584 U.S. 586, 592 (2018) (quoting Jardines, 569 U.S. at 6). The

“Fourth Amendment requires government officials, including social

workers, who go to a home to investigate reported child abuse or

neglect allegations for the purpose of assuring the well-being of

the child to obtain a warrant unless an exception to the warrant

requirement applies.” Goodall, 405 F. Supp. 3d at 273 (citing

Andrews v. Hickman Cnty., 700 F.3d 845, 861 (6th Cir. 2012)).

The exigent circumstances exception to the warrant

requirement applies when the exigency of the situation makes the

need of law enforcement so compelling that a warrantless search is

“objectively reasonable.” Lange v. California, 141 S. Ct. 2011,

2017 (2021). For example, an officer may enter a home without a

warrant to render emergency assistance to an injured occupant. Id.

The exigent circumstances exception must be analyzed on a case-

by-case basis by looking at the “totality of circumstances”

confronting the officer. Id. at 2018.

In addition to the exigency exception, the First Circuit has

held that an officer’s entry into a home may be exempted from the

warrant requirement under the so-called “special need” exception.

See McCabe v. Life-Line Ambulance Serv., Inc., 77 F.3d 540, 545

(1st Cir. 1996). In McCabe, the First Circuit permitted warrantless

entry into a home when police officers executed a “pink paper,”

which is an order authorized by a licensed psychiatric physician

for involuntary commitment for a medical psychiatric examination.

Where there is an “important administrative or regulatory purpose

. . . which would be undermined systematically by an impracticable

warrant or probable-cause requirement,” no warrant is necessary.

Id. However, the First Circuit has declined to extend the special

need exception beyond the “pink sheets” context. See Hill v. Walsh,

884 F.3d 16, 22 n.2 (1st Cir. 2018).

Defendants’ reliance on Wilmot v. Tracey is misplaced. In

Wilmot the Court rejected a Fourth Amendment challenge to the

warrantless entry into a home by DCF. 938 F. Supp. 2d 116, 128 (D.

Mass. 2013) (involving a family member alleging ongoing physical

and sexual child abuse). The key distinction is that the wife

consented to entry of DCF. Id. at 137-38. Moreover, the court found

that the warrantless entry into the home fell within the exigent

circumstances exception because of the information of past and

ongoing abuse. Id. at 138.

Here, Plaintiffs allege they did not consent and the entry at

1:00 A.M. was by threat of force. Though the youngest child was

found to have two rib fractures, the injuries here were not new

and were healing. The DCF investigation revealed that the

children’s pediatrician had no concerns about either child. The

parents were cooperative at the home visit and the children seemed

happy. Importantly, there was no warrant or court order –- and

plenty of time to get one. When all reasonable inferences are drawn

in favor of the moving party, Plaintiffs state a viable Fourth

Amendment claim.

As a backstop, the DCF officers contend that they are not

liable for the alleged search and seizure because it was the police

officers, not they, who entered the property. However, the First

Circuit has held that in such circumstances liability may arise

through a joint tortfeasor theory when each defendant has

“intentionally engaged in a series of acts that would foreseeably

result in some member of the team inflicting constitutional

injury.” Eldrege v. Town of Falmouth, 662 F.3d 100, 105-06 (1st

Cir. 2011). According to the Complaint, the decision to remove the

children was a team effort. It was made in the first instance by

Defendant Butterfield. She discussed the case and the process of

removal with Defendant Griffin, who in turn discussed the removal

with Defendants Kalvinek and Arruda. Kalvinek and Arruda appeared

with WPD officers at Plaintiffs’ home without a warrant at 1:00

A.M. and took the children without a court order. At the very

least, these alleged actions are enough to give rise to a plausible

inference that each of the DCF Defendants understood that their

affirmative actions would foreseeably result in a violation of the

family’s Fourth Amendment rights.

II. Unreasonable Seizure of the Children in Violation of the

Fourth Amendment (Count II) and Deprivation of Parental

Rights in Violation of Fourteenth Amendment (Count III)

The DCF Defendants move to dismiss Count II for unreasonable

seizure of the children and Count III for deprivation of parental

rights in violation of the Fourteenth Amendment.

“The interest of parents in the care, custody, and control of

their children is among the most venerable of the liberty interests

embedded in the Constitution.” Hatch v. Dep’t for Child., 274 F.3d

12, 20 (1st Cir. 2001) (citing Troxel v. Granville, 530 U.S. 57,

65 (2000)). “As such, it is protected by the Due Process Clause.”

Id. However, “[i]n cases where the safety of the child is at risk,

there are competing liberty interests, and so the parents’ rights

are not absolute.” Suboh v. Dist. Att’y’s Off., 298 F.3d 81, 91

(1st Cir. 2002).

Generally, “the question of what process is due involves a

weighing of the different interests of the child, the parents, and

the state.” Id. at 92 (citing Hatch, 274 F.3d at 20). Accordingly,

“[d]ue process protects a parent’s rights even when a state

temporarily removes a child before obtaining a court order,” and

“the state may place a child in temporary custody only when it has

evidence giving rise to a suspicion that the child has been abused

or is in imminent danger.” Id.

Defendants argue that DCF had a reasonable basis for believing

removal was necessary. By statute, DCF may take a child into

temporary custody when it “has reasonable cause to believe that

removal is necessary to protect a child from abuse or neglect.”

Mass. Gen. Laws ch. 119, § 51B(e). By regulation, a “child may be

immediately taken into custody if, after viewing the child, the

Department’s response worker finds reasonable cause to believe

. . . [t]he nature of the emergency is such that there is

inadequate time to seek a court order for removal.” 110 Mass. Code

Regs. § 4.29(2).

Here, an emergency physician diagnosed two broken ribs in a

three-month-old boy. The ribs had been broken days or weeks before

and were healing. The pediatrician saw no signs of abuse in either

child. Defendants point to information in the 51B report which

supported a reasonable suspicion that the broken ribs were a sign

of child abuse in the three-month-old, but this information is

outside the four corners of the Complaint and more properly

addressed at summary judgment. Moreover, there is no information

about child abuse concerning the three-year-old. When all

reasonable inferences are drawn in Plaintiffs’ favor, the

Complaint states a plausible claim that DCF Defendants lacked a

reasonable suspicion of child abuse.

III. Claims Against DCF Defendants Alleging Violation of Article

14 of the Massachusetts Declaration of Rights (Counts

VI, VII)

Plaintiffs assert constitutional claims under state law:

Count VI (unreasonable search and seizure of the house and

curtilage in violation of the Massachusetts Declaration of Rights)

and Count VII (unreasonable seizure of the children in violation

of the Massachusetts Declaration of Rights). To state a claim under

state law, plaintiffs must plausibly allege that there was

interference of their rights through “threats, intimidation, or

coercion,” which Defendants argue the Complaint fails to do. Bally

v. Ne. Univ., 532 N.E.2d 49, 51-52 (Mass. 1989).

As alleged in the Complaint, Plaintiffs only handed their

children over to DCF after being told that if they refused to do

so, the children would be taken by force. Accordingly, Counts VI

and VII have been adequately pled.

IV. Qualified Immunity

“Determining whether qualified immunity is available to a

particular defendant at a particular time requires a trifurcated

inquiry.” Hatch, 274 F.3d at 20. First, it must be determined

“whether the plaintiff has alleged the violation of a

constitutional right.” Id. Next, if a constitutional right

violation is identified, then the Court evaluates “whether the

contours of the right were sufficiently established at the time of

the alleged violation.” Id. This step consists of two sub-

questions: the Court must determine whether (1) “the contours of

the right, in general, were sufficiently clear,” and (2) if, under

the specific facts of the case, an objectively reasonable official

would have believed that the action taken or omitted violated the

right at issue. Hunt v. Massi, 773 F.3d 361, 367 (1st Cir. 2014)

(quoting Ford v. Bender, 768 F.3d 15, 23 (1st Cir. 2014)). These

three inquiries are made in a sequence, “mindful that a single

negative answer suffices to defeat the plaintiff’s claim for

damages.” Hatch, 274 F.3d at 20.

Plaintiffs have alleged violations of constitutional rights

that are sufficiently established, the contours of which are clear,

and which a reasonable official would understand themselves to be

violating if they engaged in the alleged conduct: the Fourth and

Fourteenth Amendment right to be free of warrantless searches in

the home and seizures absent exigent circumstance, a court order,

warrant, or consent; and the Fourteenth Amendment right to due

process before the State impinges on the right to family integrity.

The Defendants vigorously assert that they had a reasonable belief

that child abuse had occurred. However, the Court must draw all

reasonable inferences in favor of Plaintiffs. Qualified immunity

on all constitutional counts is more properly addressed at summary

judgment when the court will consider a full record. Accordingly,

DCF Defendants’ motion to dismiss Count I is DENIED without

prejudice.

V. Claims Against DCF Defendants Alleging Violation of the

Massachusetts Privacy Act

The Massachusetts Privacy Act provides parties with a private

right of action to defend against “unreasonable, substantial or

serious interference” with privacy. Mass. Gen. Laws ch. 214, § 1B.

Defendants argue that this claim should be dismissed because (1)

the DCF Defendants are protected by the common law doctrine of

immunity, and (2) because the DCF Defendants did not engage in

“unreasonable, substantial or serious” interference with

Plaintiffs’ rights.

Common law immunity is broader than qualified immunity. “At

common law, . . . a public official, exercising judgment and

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

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

without malice, and without corruption.” Chaney v. City of

Framingham, No. 18-10413, 2019 WL 6496842, at *7 (D. Mass. Dec. 3,

2019) (quoting Nelson v. Salem State Coll., 845 N.E.2d 338, 348

(Mass. 2006)). Though the Complaint alleges a substantial invasion

of privacy, it does not allege that those violations were the

result of bad faith, malice, or corruption. Accordingly, DCF

Defendants’ motion to dismiss Count VIII is ALLOWED.

VII. Monell Claims Against the City of Waltham for Violation of

Due Process (Counts IV and V)

Municipalities become liable for the constitutional

violations of their employees when those violations are

attributable to a custom or practice of the municipality. Bordanaro

v. McLeod, 871 F.2d 1151, 1156 (1st Cir. 1989). Courts routinely

require evidence of a pattern of similar past violations to support

a municipal liability claim. See Connick v. Thompson, 563 U.S. 51,

62 (2011). When a Monell claim is pursued under a failure to train

theory, “the unconstitutional consequences of failing to train

could be so patently obvious that a city could be liable under

§ 1983 without proof of a pre-existing pattern of violations.” Id.

at 64.

The Complaint does not allege any specific facts suggesting

that the City of Waltham has any policy, custom, or established

practice of depriving persons of their constitutional rights

through illegal searches and seizures of the home (Count IV) or by

stripping them of their parental rights without due process (Count

V). Plaintiffs argue that their Monell claims are well pled because

the egregiousness of the alleged constitutional violations

demonstrates that either the police were conforming with an

unconstitutional policy or established practice, or that the City

failed to train the officers to respect Plaintiffs’ constitutional

rights.

These arguments are unavailing. The violations alleged --

that the police officers, informed by DCF that there was reason

for emergency removal, effectuated the removal -- do not rise to

the level of egregiousness that has allowed courts to infer Monell

liability in the absence of allegations of specific failures to

train. See, e.g., Connick, 563 U.S. at 63-64 (holding that a

district attorney’s office cannot be held liable under a § 1983

claim based on a single Brady violation). Accordingly, the City of

Waltham’s Motion to Dismiss Count IV and Count V (Dkt. 39) is

ALLOWED.

ORDER

For the foregoing reasons, Defendants City of Waltham’s

Motion to Dismiss (Dkt. 39) is ALLOWED. The DCF Defendants’ Motion

to Dismiss (Dkt. 30) is ALLOWED with respect to Count VIII only,

and is otherwise DENIED. The Court also denies the motion to

dismiss based on qualified immunity.

SO ORDERED.

/s/ Patti B. Saris_______________

Hon. Patti B. Saris

United States District Judge