Bolton

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 25-13537-RGS

ANGELA BOLTON, et al.

v.

DEPARTMENT OF CHILDREN AND FAMILIES, et al.

MEMORANDUM AND ORDER

May 15, 2025

STEARNS, D.J.

Angela Bolton and her mother Anne Parent (“Plaintiffs”) who are

representing themselves, bring this action arising from the removal of

Bolton’s minor son JF from her custody by the Commonwealth’s Department

of Children and Families (“DCF”) on November 28, 2022. Bolton states that

she is also bringing this action on behalf of JF. For the reasons set forth

below, court will require Plaintiffs to file an amended complaint if they wish

to proceed with this action.

I. JF Must Be Represented by Counsel

Federal law provides that “[i]n all courts of the United States the

parties may plead and conduct their own cases personally or by counsel.” 28

U.S.C. § 1954. This statute “bar[s] a non-lawyer from representing anyone

but himself.” O'Diah v. Volkswagen of Am., Inc., 91 Fed. App’x 159, 160 (1st

Cir. 2004). This means that, unless Bolton is a licensed attorney, she cannot

represent JF. JF is a minor1 and therefore needs a representative. See Fed.

R. Civ. P. 17(c). But, even assuming that Bolton is a proper representative

for JF in this case, a non-attorney parent must still be represented by counsel

when bringing an action on behalf of their child, see O’Diah, 91 Fed. App’x at

160.

Accordingly, if Plaintiffs wish to proceed with this action, they must file

a second amended complaint that does not include any claim asserted on

behalf of JF or based on his injuries. Failure to do so within 35 days will

likely result in dismissal of this action. If counsel appears for Plaintiffs and

JF, the parties may file a second amended complaint with all of their claims.

II. Review of the Amended Complaint

Because the court granted Bolton’s in forma pauperis motion, the

court may review the pleading and dismiss any claims that are frivolous or

malicious, fail to state a claim upon which relief may be granted, or seek

monetary damages from a defendant who is immune from such relief. See

28 U.S.C. § 1915(e)(2). In addition, the court has discretion to sua sponte

1 According to the amended complaint, JF was born on August 9, 2008.

Amend. Compl. ¶ 33.

consider whether the Commonwealth has Eleventh Amendment immunity

with regard to any of Plaintiffs’ claims. See Parella v. Ret. Bd. of Rhode

Island Employees' Ret. Sys., 173 F.3d 46, 55 (1st Cir. 1999) (stating that

“courts have the discretion to raise Eleventh Amendment questions sua

sponte”). If Plaintiffs choose to file a second amended complaint, they must

cure the deficiencies discussed below.

A. Plaintiff’s Factual Allegations and Claims2

Plaintiffs bring claims under 42 U.S.C. § 1983 for violations of their

rights under the First, Fourth, and Fourteenth Amendments and under

Massachusetts law “arising from the constitutional seizure [of JF],

retaliatory removal, fabrication of evidence, denial of due process, and

interference with familial integrity perpetrated by [DCF], its employees,

supervisors, attorneys, and related officials.” Amend. Compl. ¶ 1.

According to Plaintiffs, on November 27, 2022, Bolton had an

altercation with her boyfriend Colin Traver, which led to the arrest of the

Traver. JF, who was fourteen at the time, witnessed the argument. Neither

Bolton nor Traver were intoxicated.

2 For purposes of this review, the court credits Plaintiff’s well-pled

allegations.

Bolton posted bail for Traver that same night. Emergency response

workers from DCF spoke to Bolton at the police station, and stated that

emergency response workers from DCF who had already been called to the

station needed to view and speak with JF. The DCF workers followed Bolton

and Traver back to Bolton’s residence. The DCF workers spoke with and

viewed JF, and they did not note any concerns with the safety of the home or

JF. Id. The DCF workers informed Bolton that the “only requirement was

that [Traver] leave the home for the night,” which he did.” ¶ 81.

The next day, Plaintiff spoke with “ongoing social worker” Kristie

Giancola. During the call, Bolton stated that she “found it hard to believe

that [Giancola] was judging her on parenting skills when [Giancola] comes

to [Bolton]’s house high as a kite.” Id. ¶ 4. Giancola “did not like this and

hung up the phone.” Id. In retaliation for that statement, Giancola called

the Attleboro Police to perform a welfare check. Giancola lied to the police

and told them that JF had not been at school. The police arrived at Bolton’s

residence and spoke with Bolton and JF, who told the officers that JF had

indeed been at school, but he had been a couple minutes late. The police

officer noted, “Mother was not intoxicated and felt safe leaving the child in

care of his mother and cleared the scene.” ¶ 5.

However, later that evening, Giancola and Attleboro police officers

arrived at Bolton’s home to do an emergency removal of JF. Bolton objected,

stating JF could not be removed without a warrant because no exigent

circumstances existed and that removal under the circumstances

“constituted kidnapping.” ¶ 101. Travel called the Massachusetts State

Police, reporting “that DCF workers and individuals in unmarked vehicles

were attempting to seize [JF] unlawfully.” ¶ 102. The State Police contacted

the Attleboro Police Department, and “within minutes” the Attleboro police

and Giancola left the premises. ¶ 103.

Giancola went back to the police station and asked if Bolton would be

charged with kidnapping. An officer responded, “[Y]ou and I both know that

would never happen.” ¶ 7. Not happy with this response, Giancola “badgered

the lieutenant to get the chief on the phone with the [DCF] area director

[Joseph Rucker].” Id. The police chief stated, “[N]o matter how long you

stay here we will not be going back to the residence tonight.” Id.

The next morning, Giancola “filed a false 29C affidavit, knowingly

misrepresenting facts including school attendance, drinking, and the

presence of Mr. Traver in the home,” and JF was removed from his home.

¶ 10.

Bolton’s “statutorily required 72-hour hearing” concerning the

removal “was unlawfully delayed and not concluded more than 880 hours

passed.” ¶ 11. While JF was in the custody of DCF, Bolton and JF were

granted one hour a week of visitation—which was supervised and in a small

room. “At DCF’s direction and under coercive conditions, Anne [Parent]

became JF’s ‘kinship foster placement.’” Amend. Compl. ¶ 42. DCF

allegedly “misrepresented requirements to Anne, prevented her from

obtaining counseling for JF, forced her into compliance with foster

mandates, and placed her under severe emotional and practical stress.” ¶ 43.

Both Plaintiffs tried to make appointments for JF to receive counseling

services. DCF told the Plaintiffs that they could not book the appointments

because they were not JF’s legal guardians at the time. DCF said the agency

would arrange services and even promised JF a “Big Brother” mentor, but

never followed through with these representations.

Bolton “repeatedly asked” her court-appointed attorney David Tibbets

“to file motions,” including one “she drafted personally” and a motion “to

compel DCF compliance.” ¶ 138. Tibbets allegedly told Bolton he would file

the motion, but “never did.” Id. Tibbets also allegedly failed to appear for a

court hearing and “ignored [Bolton]’s text messages.” ¶ 140. Bolton filed a

formal complaint concerning Tibbetts’ alleged misconduct with

Massachusetts Board of Bar Overseers, including thirty-two pages of

evidence. In response to the complaint, attorney D’Andre Fernandez of the

Board of Bar Overseers stated, “That is Tibbetts’ trial tactic.” ¶ 147.

Fernandez “refused to intervene, saying only: “If the court ever overturns the

decision, then we can revisit it.” ¶ 148.

The amended complaint does not clearly state how long JF was in the

custody of DCF. At some point, DCF made a formal finding of neglect by

Bolton. Bolton sought judicial review of that finding, and, in August 2025,

the Massachusetts Superior Court overturned that finding.

Plaintiffs name as defendants DCF, DCF Commissioner Linda Spears

(sued “in her official capacity for injunctive and declaratory relief,” ¶ 58,

Giancola, Rucker, certain other DCF employees (Kristie Giancola, Paulina

Bazile, Melissa Davidson, Darelene Tonucci, Rosalie Kern, Allison Pessoa,

Mary Cantin, “John Does 1-10”), Tibbets, the court-appointed attorney for

JF (Christine Doherty), Fernandez, “DCF-affiliated attorney” Jenna

Fernandes, and attorney Carol Frisoli, who represented DCF in the Superior

Court.

B. Standard of Review

Under the Federal Rules of Civil Procedure, a complaint must contain

a “short and plain statement of the claim showing that the pleader is entitled

to relief.” Fed. R. Civ. P. 8(a). The “short and plain” statement of the claim

must provide a defendant with “fair notice of what the . . . claim is and the

grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 540,

555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47

(1957)).

To “show that the [plaintiff] is entitled to relief,” the complaint must

“contain sufficient factual matter, accepted as true” to state a plausible claim

for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Id. at 678. “A claim

has facial plausibility 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. The plausibility standard “asks for more than a

sheer possibility that a defendant has acted unlawfully.” Id. “A pleading that

offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a

cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555).

Similarly, “‘naked assertion[s]’ devoid of ‘further factual enhancement’” do

not suffice. Id. (quoting Twombly, 550 U.S. at 557). Further, the well-

pleaded allegations must “sustain recovery under some actionable legal

theory.” N.R. by & through S.R. v. Raytheon Co., 24 F.4th 740, 746 (1st Cir.

2022) (quoting Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008)).

C. Discussion

1. DCF and DCF Commissioner Spears

Plaintiffs have failed to state a claim under § 1983 against DCF. Section

1983 allows a plaintiff to bring a claim against any “person” who, while acting

“under color” of state law, violates the federal rights of the plaintiff. But the

Supreme Court has held that a state, including its agencies and departments

and officials acting in their official capacity, does not constitute a “person”

subject to suit under § 1983. See Will v. Michigan Dep’t of State Police, 491

U.S. 58, 71 (1989) (“We hold that neither a State nor its officials acting in

their official capacities are ‘persons’ under § 1983”); Segrain v. Duffy, 118

F.4th 45, 72 n.16 (1st Cir. 2024). As an agency that is an arm of the

Commonwealth of Massachusetts, DCF is not a “person” that may be sued

under § 1983 for damages or injunctive relief.

Any claims under § 1983 against Commissioner Spears in her official

capacity are only cognizable to the extent Plaintiffs seek prospective

injunctive relief. See Will, 491 U.S. at 71 n.10 (“Of course a state official in

his or her official capacity, when sued for injunctive relief, would be a person

under § 1983 because “official-capacity actions for prospective relief are not

treated as actions against the State.” (quoting Kentucky v. Graham, 473 U.S.

159, 167, n. 14 (1985) and citing Ex parte Young, 209 U.S. 123, 159–160

(1908))).

Any state law claims against DCF and Commissioner Spears are

foreclosed by the Eleventh Amendment to the United State Constitution. The

Eleventh Amendment affords states and their agencies immunity from suit

in federal court, unless Congress has validly abrogated that immunity or the

state has waived its immunity by consenting to suit. See Virginia Off. for

Prot. & Advocacy v. Stewart, 563 U.S. 247, 253 (2011) (“[A]bsent waiver or

valid abrogation, federal courts may not entertain a private person’s suit

against a State.”)3; McKenna by & through McKenna v. Maine Dep't of

Health & Hum. Servs., 152 F.4th 14, 18 (1st Cir. 2025). Massachusetts did

not waive its Eleventh Amendment immunity in passing the Massachusetts

Tort Claims Act (“MTCA”) or the Massachusetts Civil Rights Act. See Caisse

v. DuBois, 346 F.3d 213, 218 (1st Cir. 2003); Isijola v. Grasso, 768 F. Supp.

3d 166, 178 (D. Mass. 2025); Irwin v. Comm’r of Dep’t of Youth Servs., 388

Mass 810, 821 (Mass. 1983)).

3 The sovereign immunity of a state is often referred to as “Eleventh

Amendment immunity” because the Eleventh Amendment to the United

States Constitution “confirm[ed] the structural understanding that States

entered the Union with their sovereign immunity intact.” Va. Off. For Prot.,

563. U.S. at 253.

2. DCF Supervisors

Plaintiffs allege that Davidson “was employed by DCF in a supervisory

decision-making capacity and contributed to and failed to correct the

misconduct.” Amend. Compl. ¶ 65. She was also allegedly “involved in the

processing, review, or oversight of the removal and hearing procedures and

contributed to the violations.” Id. Tonucci “was involved in the processing,

review, or oversight of the removal and hearing procedures and contributed

to the violations.” ¶ 66. Similarly, Plaintiffs allege that Kern “is a DCF

employee who was involved in oversight, case review, or decision making,

whose acts and omissions contributed to plaintiffs’ injury,” and who was

“involved in the processing, review, or oversight of the removal and hearing

procedures and contributed to the violations.” ¶ 67. Pessoa allegedly “acted

under color of law in reviewing, processing, and affirming actions related to

the 29C filing, visitation restrictions, and reunification delays,” and was

“involved in the processing, review, or oversight of the removal and hearing

procedures and contributed to the violations.” ¶ 68. Plaintiffs’ only

allegation against Cantin is that she “is a DCF employee involved in

supervising, authorizing, and ratifying the challenged conduct.” ¶ 69.

a. § 1983 Claims

Plaintiffs’ allegations against DCF Supervisors fail to state § 1983

claims. “It is well-established that ‘only those individuals who participated

in the conduct that deprived the plaintiff of his rights can be held liable.’”

Velez-Rivera v. Agosto-Alicea, 437 F.3d 146, 156 (1st Cir. 2006) (quoting

Cepero-Rivera v. Fagundo, 414 F.3d 124, 129 (1st Cir. 2005)). For a

supervisor to be liable under § 1983 based on a constitutional violation

committed by a subordinate, a plaintiff must show that the “supervisor’s

(in)action was affirmatively linked” to the unlawful action of the subordinate

“in the sense that that it could be characterized as gross negligence

amounting to deliberate indifference.” Justiniano v. Walker, 986 F.3d 11, 20

(1st Cir. 2021) (internal quotation marks and alterations omitted). Plaintiffs

broad and vague allegations of wrongdoing of these supervisory defendants

are essentially formulaic recitations of the elements of a cause of action and

do not plausibly plead that they were directly involved in the violation of the

constitutional rights of Plaintiffs. Further, Plaintiffs’ “umbrella” allegations

in Count VI, in which Plaintiffs bring a claim under § 1983 all “Supervisory

Defendants,” do not cure this pleading deficiency.4

4 In Count VI of the amended complaint, Plaintiffs bring a claim under § 1983

against “Supervisory Defendants,” alleging that “Defendants had actual

knowledge of the false statements, the retaliation, the unlawful removal

b. State Law Claims

Similarly, the broad and vague allegations against Davidson, Tonucci,

Kern, Pessoa, and Cantin fail to state claims under state law. In addition, a

claim against the Commonwealth under the MTCA is the exclusive remedy

for “injury or loss of property or personal injury or death caused by the

negligent or wrongful act or omission of any public employee while acting

within the scope of his office or employment.” M.G.L. ch. 258 § 2. Thus, to

the extent Plaintiffs bring claims against the DCF Supervisors (or any other

employee of the Commonwealth) for injuries within the purview of the

MTCA, the proper defendant for said claims is the Commonwealth.5

However, as noted above, in passing the MTCA, the Commonwealth did not

waive its Eleventh Amendment immunity and therefore cannot be required

to litigate claims under the MTCA in this court.

attempt, the fabricated evidence, the over 880-hour delay of the hearing and

the lack of counseling.” Amend. Compl. ¶ 189. Plaintiffs further allege that

these defendants “had the power and duty to intervene” but “failed and

refused to do so.” ¶¶ 189-191.

5In addition, a civil action cannot be brought under the MTCA “unless the

claimant shall have first presented his claim in writing to the executive officer

of such public employer within two years after the date upon which the cause

of action arose.” M.G.L. ch. 258, § 4.

3. Attorney Fernandez

Plaintiffs have failed to state a claim upon which relief may be granted

against Board of Bar Overseer attorney Fernandez. His decision not to take

further administrative action on Bolton’s complaints concerning her

attorney’s alleged misconduct does not plausibly plead that he directly

participated in a violation of Plaintiffs’ constitutional rights. In addition,

under the rules of the Commonwealth’s Supreme Judicial Court, Fernandez

has immunity with regard to any state law claims. See S.J.C. Rule 4:01 § 9(3)

(“The Board [of Bar Overseers], members of the Board and its staff, members

of hearing committees, special hearing officers, and the bar counsel and

members of his or her staff shall be immune from liability for any conduct in

the course of their official duties.”).

4. Claims Concerning Parent

Plaintiffs’ limited allegations concerning Parent fail to state a claim

upon which relief may be granted. Without more, allegations that DCF

“coerced” Parent in to accepting the foster placement of JF or

“misrepresented” the requirements of the placement do not permit the court

to make a reasonable inference that the defendants are liable to her under a

cognizable theory of relief.

ORDER

In accordance with the foregoing, the court hereby orders:

If Plaintiffs wish to proceed with this action, they must file a second

amended complaint that (1) does not include any claim asserted on behalf of

JF or based on his injuries; and (2) cures the above-discussed pleading

deficiencies. Failure to do so within 35 days will likely result in dismissal of

this action. If counsel appears for Plaintiffs and JF, the parties may file a

second amended complaint with all of their claims.

The second amended complaint will completely replace the amended

complaint, and it will be subject to an initial screening pursuant to 28 U.S.C.

§ 1915(e)(2). Summonses will not issue except upon order of the court.

SO ORDERED.

/s/ Richard G. Stearns

UNITED STATES DISTRICT JUDGE