441 Mass. 311 | Mass. | 2004
Lead Opinion
In November, 1992, State Trooper Ramon L. Rivera, Jr., stopped the plaintiff’s motor vehicle on Route 495 in Middleborough. During the course of the stop, Rivera illegally strip searched the plaintiff, Mary Jane Clancy, and made lewd
The plaintiff’s supervisory liability complaint against Mc-Cabe asserts a single count of civil rights violation. 42 U.S.C. § 1983 (2000). She alleges McCabe acted with deliberate indifference to the constitutional rights of female motorists by not recommending that Rivera be terminated in 1988. McCabe moved for summary judgment, claiming he was entitled to qualified immunity. McCabe further argued that the plaintiff could not prove that his allegedly negligent supervision of Rivera proximately caused her to be abused by Rivera.
A Superior Court judge determined that there was “sufficient evidence” to reach a jury on the question whether McCabe’s discipline of Rivera amounted to deliberate indifference, and denied McCabe’s motion.
1. Facts. The background facts are set out at length in the Appeals Court decision, Clancy v. McCabe, supra at 500-502, and need not be repeated here. We recite only those facts on which the motion judge relied to support his denial of summary judgment on the question of qualified immunity, supplemented by uncontroverted evidence from the record below.
On February 22, 1988, Captain Wayne Harding of the State police internal affairs unit reported the results of the unit’s investigation of Rivera.
Colonel Thomas J. Fitzgerald, then deputy superintendent of the State police, reviewed the report and submitted it to Mc-Cabe.
McCabe did not have the authority to terminate Rivera directly, only to recommend to the trial board that such action be taken. See Clancy v. McCabe, supra at 501 n.10. The three-member trial board would have decided the accused trooper’s guilt or innocence, and could recommend punishment up to and including discharge. If found guilty and terminated, Rivera could have appealed from the board’s decision to the District Court. G. L. c. 22, § 9A (see St. 1971, c. 521), repealed by St. 1991, c. 412, § 19.
Rivera’s attorney contacted McCabe and “a plea bargaining session” ensued. They discussed the fact — uncovered during a
_
McCabe testified at his deposition that he thought the punishment imposed “would be in the best interest of the department [and] the public, and give the officer an opportunity to straighten out his life.” He acknowledged that the fact that Rivera was Cape Verdean weighed in his decision not to recommend termination, based on the department’s previous experience with a civil rights suit by a minority officer.
Rivera waived his right to a trial board hearing and was suspended from duty from August 1, 1988, through January 31, 1989. The suspension resulted in a loss to Rivera of about $25,000, based on an average trooper’s salary plus overtime, court time and details. After returning to duty, Rivera received counselling, as ordered, from the State police department’s psychological services unit, commonly known as “the stress unit.”
The stress unit assisted employees with personal problems such as emotional or mental illness, alcohol abuse, or domestic problems. The members of the stress unit, including one who possessed a master’s degree in social work, functioned as a “crisis intervention team” and provided counselling to State police employees. If the members were unqualified to handle an employee’s particular issue, they referred the employee to outside professionals such as psychologists or psychiatrists.
Following his return to work, Rivera saw Richard Kelly, a member of the stress unit. Kelly possessed a bachelor of science degree in psychology and a master’s degree in counselor education. Kelly estimated he counselled more than 1,200 people during his twelve years working in the stress unit.
McCabe acknowledged in his deposition that he believed the stress unit was inadequate to address Rivera’s needs, but he believed the unit had “outsourced” Rivera for appropriate treatment. McCabe, however, did not order the unit to do so. Once McCabe had approved the six-month suspension and the order for Rivera to report to the stress unit, it became the deputy superintendent’s responsibility to see that the punishment was carried out. McCabe himself did not follow up with the stress unit or otherwise monitor Rivera’s behavior after Rivera returned to active duty.
2. Discussion. The doctrine of qualified immunity shields government officials, in the course of performing discretionary tasks, from liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “On a motion for summary judgment, ‘the relevant question is whether a reasonable official could have believed his actions were lawful in light of clearly established law and the information the official possessed at the time of his allegedly unlawful conduct.’ ” FebusRodriguez v. Betancourt-Lebron, 14 F.3d 87, 91 (1st Cir. 1994), quoting McBride v. Taylor, 924 F.2d 386, 389 (1st Cir. 1991). First, however, the plaintiff must demonstrate that McCabe violated her federally protected rights under § 1983. See FebusRodriguez v. Betancourt-Lebron, supra. We must determine, therefore, whether the plaintiff has introduced sufficient evidence to create a genuine issue of material fact that McCabe violated her constitutional rights, and if so, whether he is otherwise entitled to qualified immunity. See id.; Mass. R. Civ. P. 56, 365 Mass. 824 (1974).
a. Deliberate indifference. To establish her claim of supervisory liability, the plaintiff must show that the relevant law was clearly established, such that McCabe knew or should have known that Rivera’s conduct would violate a constitutional right of a third person. See Dobos v. Driscoll, 404 Mass. 634, 646-647, cert. denied sub nom. Kehoe v. Dobos, 493 U.S. 850 (1989). In addition, she must also prove that McCabe acted with “reckless or callous indifference” to those constitutional rights of third persons. See Febus-Rodriguez v. Betancourt-Lebron, supra at 92. Finally, “there must be an ‘affirmative link’ between the supervisory official’s acts or omissions and his subordinate’s violation of the plaintiff’s constitutional rights.” Id., citing Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir. 1989), and Lipsett v. University of P .R., 864 F.2d 881, 902 (1st Cir. 1988).
A supervisor may be liable under § 1983 if his “conduct or inaction amounted to a reckless or callous indifference to the constitutional rights of others.” Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 48 (1st Cir. 1999), quoting Gutierrez-Rodriguez v. Cartagena, supra at 562. “An official displays such reckless or callous indifference when it would be manifest to any reasonable official that his conduct was very likely to violate an individual’s constitutional rights.” Germany v. Vance, 868 F.2d 9, 18 (1st Cir. 1989). We note that there is no significant difference between cases that utilize the standard of “gross negligence amounting to deliberate indifference” and those that employ “reckless or callous indifference.” See Gutierrez-Rodriguez v. Cartagena, supra. “Indifference that rises to the level of being defiberate, reckless, or callous suffices to establish [supervisory] liability under § 1983.” FebusRodriguez v. Betancourt-Lebron, supra at 92 n.4, quoting Gutierrez-Rodriguez v. Cartagena, supra.
“To demonstrate defiberate indifference a plaintiff must show (1) a grave risk of harm, (2) [McCabe’s] actual or constructive knowledge of that risk, and (3) his failure to take easily available measures to address the risk.” Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir. 1998), cert. denied, 525 U.S. 1105 (1999), citing Manarite v. Springfield, 957 F.2d 953, 956 (1st Cir.), cert. denied, 506 U.S. 837 (1992). “ ‘[Deliberate indifference’ is a stringent standard of fault, requiring proof that a [State] actor disregarded a known or obvious consequence of his action.” County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 410 (1997).
To demonstrate the triability of the defiberate indifference
However, even if McCabe’s failure to take these or similar steps could be seen as negligent, it does not rise to the level of callous indifference. “Although . . . [McCabe] might have done more, such a rule is not the standard by which we judge [his] conduct.” Shaw v. Stroud, 13 F.3d 791, 801 (4th Cir.), cert. denied, 513 U.S. 813, and 513 U.S. 814 (1994). After conferring with Rivera’s attorney and considering the best interests of all those involved, including the State police department, McCabe imposed a six-month suspension, a financially weighty punishment that cost Rivera an estimated $25,000. In addition, McCabe ordered Rivera to receive treatment through the department’s stress unit for what he believed to be Rivera’s emotional problems. We do not view these disciplinary actions as a “failure to take easily available measures” to address the risk that Rivera would reoffend.
In our view, as a matter of law, McCabe “simply did not exhibit the . . . ‘deliberate indifference’ to constitutional injuries” required to impose liability under § 1983. Shaw v. Stroud, supra at 801, quoting Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir. 1983). See Rogers v. Little Rock, 152 F.3d 790, 800 (8th Cir. 1998) (holding that ten-day suspension for prior sexual misconduct of officer accused of rape did not demonstrate “deliberate indifference”); Jones v. Wellham, 104 F.3d 620, 626-627 (4th Cir. 1997) (holding that one month unpaid suspension of officer for alleged rape, coupled with transfer to desk duty and order to attend counselling, while perhaps imprudent or even negligent, did not constitute “deliberate indifference”). Cf. Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 49 (1st Cir. 1999) (deeming evidence sufficient to show deliberate indifference where officer had been disciplined thirty times, including six incidents leading to recommendations of dismissal; supervisor imposed fifteen-day suspension despite investigator’s recommendation for dismissal, and later reduced another thirty-day suspension to two days). There is no evidence
Clancy also has failed to show that McCabe’s action or omission was affirmatively linked to her injuries. See Camilo-Robles v. Hoyos, supra at 7 (stating that in addition to showing defendant’s deliberate indifference, plaintiff must demonstrate causation). “[M]ere cause-in-fact does not suffice to establish the required affirmative link. If that were the test, every depredation of this sort would give rise to [supervisory] liability, for every § 1983 claimant harmed by such employee conduct could ‘point to something the [supervisor] “could have done” to prevent the unfortunate incident.’ ” Jones v. Wellham, supra at 627, quoting Canton v. Harris, 489 U.S. 378, 392 (1989). Rather, this affirmative connection requires something more, such as “tacit approval of, acquiescence in, or purposeful disregard of, rights-violating conduct.” Camilo-Robles v. Hoyos, supra, citing Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir. 1994).
Here, the six-month unpaid suspension, while obviously a lesser punishment than termination, was sufficiently onerous to make clear that the department did not condone Rivera’s conduct. In light of the department’s initial pursuit of termination, it also signified that any further infraction would result in more severe discipline. This is not a case where the sanction imposed was so slight as to communicate the impression that Rivera could continue harassing female motorists without consequence. Cf. Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 563 (1st Cir. 1989) (despite concerns about officer’s behavior and knowledge of numerous civilian complaints against officer, supervisor gave him positive performance evaluations and continued to send him out on active duty; on “one or two occasions” he assigned officer to desk duty, officer demanded to be returned to street and supervisor complied); Lipsett v. University of P.R., 864 F.2d 881, 914 (1st. Cir. 1988) (supervisors’ reliance on biased complaints against plaintiff could amount to “encouragement or condonation of or
b. Qualified immunity. Although we conclude that summary judgment might have been granted solely on the plaintiff’s inability to prove the essential elements of reckless indifference and causation, see Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991), Federal case law suggests the need to inquire into McCabe’s asserted defense of qualified immunity as well. See, e.g., Camilo-Robles v. Hoyos, supra at 7 (“The inquiry into qualified immunity is separate and distinct from the inquiry into the merits [of the plaintiff’s case]. ... In some circumstances, however, these inquiries overlap”). See also Clancy v. McCabe, 58 Mass. App. Ct. 498, 502 (2003).
As we stated at the outset of our discussion, the relevant inquiry on summary judgment as to the defense of qualified immunity is whether a reasonable official could have believed his actions were lawful, in light of clearly established law and the information possessed by the official at the time he acted. See Anderson v. Creighton, 483 U.S. 635, 641 (1987); FebusRodriguez v. Betancourt-Lebron, 14 F.3d 87, 92 (1st Cir. 1994). When so inquiring, we think it important to bear in mind the policy that informs the qualified immunity doctrine, namely “the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982), quoting Butz v. Economou, 438 U.S. 478, 506 (1978).
In Harlow v. Fitzgerald, supra, the Supreme Court removed the subjective aspect, i.e., the actor’s intent, from the qualified immunity standard it had articulated in Wood v. Strickland, 420 U.S. 308, 322 (1975).
Denying summary judgment in order to permit inquiries into McCabe’s subjective state of mind contravenes the Supreme Court’s intent to restrict the question of qualified immunity to “an objective inquiry into the legal reasonableness of the official action.” Anderson v. Creighton, supra at 645, citing Harlow v. Fitzgerald, supra at 815-820. Thus, although “reasonableness” is often a classic question for the finder of fact, in cases such as this the reasonableness of the official’s action should be treated as a question of law. See Hunter v. Bryant, supra.
Clancy complains that Rivera reported to the stress unit only a few times on his return and received grossly inadequate treatment and supervision, and furthermore that McCabe failed to monitor Rivera’s treatment or performance once he returned to active duty. Our focus, however, is confined to the reasonableness of McCabe’s order. First, as previously noted, McCabe imposed a lengthy and financially costly suspension on Rivera for behavior that clearly violated existing law. Recognizing that Rivera needed treatment, McCabe also directed him to the stress unit to seek such treatment, and delegated to Fitzgerald, the deputy superintendent, the responsibility of overseeing Rivera’s return. There is no requirement that McCabe, who oversaw the entire Department of Public Safety, including the 1,200 to 1,400 employees of the State police department alone, personally supervise each subordinate over the course of that subordinate’s discipline. See Camilo-Robles v. Zapata, 175 F.3d 41, 46 n.2 (1st Cir. 1999) (“For bureaucratic structures [or any other form of social organization] to function, the ability to delegate responsibility and to trust the judgments of others is essential”). Nor is there any basis for claiming that delegation of such
We do not wish to minimize the severe trauma and humiliation that Rivera caused the plaintiff to suffer, which she described in graphic detail in a written statement contained in the record. However, as a matter of law, the plaintiff has failed to introduce sufficient evidence to create a triable issue that Mc-Cabe violated her constitutional rights. See Febus-Rodriguez v. Betancourt-Lebron, supra at 94. Moreover, McCabe “acted reasonably under settled law in the circumstances,” Hunter v. Bryant, supra at 228, and thus he was entitled to summary judgment on the basis of qualified immunity.
The order denying summary judgment for McCabe is reversed. Judgment is to enter for the defendant McCabe.
So ordered.
State Trooper Ramon L. Rivera, Jr., was convicted in 1995 of violating the plaintiff’s State civil rights, attempted extortion, and open and gross lewdness. The Appeals Court affirmed the convictions. Commonwealth v. Rivera, 44 Mass. App. Ct. 1118 (1998). Rivera, who was terminated from the State police in 1995, was sentenced to from six to ten years at the Massachusetts Correctional Institution, Cedar Junction, and one year in a house of correction from and after the prison sentence.
McCabe also moved for summary judgment on the ground that Rivera did not act “under color of state law” when he abused the plaintiff and thus his behavior did not violate her constitutional rights. The judge denied the motion on this ground as well, and McCabe does not argue the issue on appeal.
While the judge did not explicitly address the causation issue in his memorandum of decision and order on McCabe’s motion for summary judgment, he noted that “ [statements made by the parties regarding what a trial board may have done or what the courts may have done on appeal ... are purely speculative and not relevant to the motion for summary judgment.” The Appeals Court, however, concluded there was “a sufficient showing on this record to establish an affirmative causal link between McCabe’s acts and omissions and [the plaintiff’s] injuries.” Clancy v. McCabe, 58 Mass. App. Ct. 498, 511-512 (2003).
The internal affairs investigation was triggered by a November, 1987, complaint by a female motorist to the State police. The complainant told investigators that during a stop of her vehicle on October 28, 1987, Rivera made “personal advances” toward her, including touching her arm and asking her out to dinner. He also allegedly asked her what she was like “in bed.” The complainant, who was then eighteen years old, said Rivera asked her out for a drink, and when she said she was not old enough, he told her not to worry and that “he could get her in.”
Three of the four motorists had made no formal complaint to the State police but were identified during the internal affairs investigation.
The deputy superintendent headed the division of State police. As Commissioner of Public Safety, McCabe oversaw the State police division, the division of fire prevention, and the division of inspections, as well as the bureau of administrative services.
Fitzgerald testified at his deposition that he recommended Rivera be fired “[b]ecause [his behavior] wasn’t in true accordance with the rules and regulations of a police officer in my opinion.”
The motion judge stated that “internal affairs investigators” recommended these options.
The letter was addressed to Lieutenant Colonel Paul E. Lambalot of the office of field operations, ordering him to direct troop commander Captain Andre Lavoie to summon Rivera and advise him of the contemplated charges and possible disciplinary actions. It is unclear from the record whether a copy of the letter was sent to Rivera.
Rivera is Cape Verdean.
McCabe testified that if the case “went to a trial board and [Rivera] was found guilty, he had a right of appeal to his own district court. If the district court overturned it, he was back on. It was as if it never happened. . . . [T]his thing had drawn on, but this is a way of bringing it to closure and to initiate progressive discipline so that notwithstanding any race or ethnic issues later on. If he had been punished and he had been counseled, there would be no standing of [minority] status on any further litigation.”
The relevant portion of the deposition transcript reads:
Q.: “Sir, as Commissioner of Public Safety in 1988, did you believe that you had an obligation to protect the public from the misconduct of State [p]olice [o]fficers?”
A.: “Yes, sir.”
Q.: “And did you believe that you would exercise that obligation irrespective of a threat of litigation by the State [p]olice [o]fficer against whom the allegations had been lodged or that [S]tote trooper’s attorneys?”
A.: “Yes. And I would like to clarify that. That was one of my considerations. I was not and am not in fear of any threat of a lawsuit. I was looking — I was evaluating what was on the table. And in addition to having an obligation to protect the public, I have an obligation to protect the department. And I have an obligation to protect the individual. He was one of my employees.”
The dissent, post at 326 (Ireland, J., dissenting), citing Dobos v. Driscoll, 404 Mass. 634, 657-658, cert. denied sub nom. Kehoe v. Dobos, 493 U.S. 850 (1989), asserts that there was sufficient evidence for a jury to conclude that McCabe “failed to take easily available measures to correct the problem.” That case, however, is distinguishable. In Dobos, the court determined that four police supervisors were deliberately indifferent largely because they “chose to ignore” the officer’s history of misconduct before disciplining and
On the contrary, McCabe testified he thought that Rivera’s “unstable emotional attitude,” so described in Harding’s report, “seemed to be part of the problem that could be fixed” by ordering Rivera to report to the stress unit.
Previously, “qualified immunity would be defeated if an official ‘knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury’ ” (emphasis in original). Harlow v.
Dissenting Opinion
(dissenting). I respectfully dissent from the court’s opinion, because, in my view, the plaintiff has introduced sufficient evidence to reach a jury on the question whether the defendant’s supervision of Rivera was so insufficient as to amount to deliberate indifference to the constitutional rights of female motorists. As the court correctly notes, ante at 318, to prove that a particular supervisor’s actions or inactions amounted to deliberate indifference, the plaintiff must show that (1) there existed a grave risk of harm, (2) the supervisor had actual or constructive knowledge of the circumstances that created that risk, and (3) the supervisor failed to take easily available measures to correct the problem. Figueroa-Torres v. Toledo-Davila, 232 F.3d 270, 279 (1st Cir. 2000). In addition, the plaintiff must show that the supervisor’s action or inaction
On this record, the plaintiff has presented sufficient evidence that Rivera’s behavior created a grave risk of harm to female motorists. Furthermore, it is undisputed that in 1988 the defendant had actual notice of both a pattern of Rivera’s menacing conduct toward female motorists and the severe sanctions recommended by the internal affairs unit. Specifically, on February 22, 1988, the defendant was presented with a report by the internal affairs unit of its investigation of Rivera’s behavior. The report included detailed descriptions of complaints made by four female motorists against Rivera for inappropriate conduct, and mentioned that Rivera had been warned several times that his conduct could jeopardize his future employment with the State police.
Contrary to the court’s assertion, ante at 314-316, the record,
Furthermore, there is sufficient evidence to create a genuine issue of material fact regarding the existence of an affirmative causal link between the defendant’s conduct toward Rivera and Rivera’s subsequent violation of the plaintiff’s constitutional rights. See Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir. 1994) (“A causal link may ... be forged if there exists a known history of [a subordinate’s] widespread abuse sufficient to alert a supervisor to ongoing violations [and] the supervisor . . . fails to take [adequate] corrective action, [such as] by . . . closer oversight . . . ”). On this record, a jury could have concluded that, with “even the minimal amount of proper supervision and discipline,” Rivera would not have been in the position to illegally strip search the plaintiff in November of 1992. See Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 564 (1st Cir. 1989). A jury may have found that had
Finally, it goes without saying that police work, like teaching and medicine, is a line of work that intersects with many, if not all, sectors of society. The police perform a variety of roles: they serve the community by protecting life and property, preventing crime, enforcing the law, and upholding order for all citizens. One of the most important police functions is to create and maintain a feeling of security in communities. To that end, it is extremely important for the police to gain and preserve the public trust, maintain public confidence in the integrity of police officers, and avoid an abuse of power by law enforcement officials. In the context of this case, motorists, while anticipating the possibility of being stopped by the police for a traffic violation, trust that they will not then be subjected to extreme abuse and humiliation. Although Rivera’s behavior alone betrayed that trust, the defendant’s failure to “show the victims of these incidents and the general public that the Massachusetts State Police will not tolerate these types of activities” undermined that trust even more. Cf. Brum v. Dartmouth, 428 Mass. 684, 709 (1999) (Ireland, J., concurring, with whom Abrams and Marshall, JJ., joined) (“Underlying ... the entire relationship between school and family is the parents’ basic assumption that school officials will do all they can to protect the children who they entrust to the school’s care”). In my opinion, police officials should, at the very least, “be expected to take reasonable measures to protect [the public] when they have advance notice of danger,” id. at 710, especially when that danger comes from their own subordinates.
The third element of a supervisory liability claim, namely the requirement that the relevant law be clearly established so that the supervisor knew or should have known that his actions or inactions would lead to violation of constitutional rights of others, is not in dispute. See ante at 318.
While “the failure of a police department to discipline in a specific instance” has been held insufficient to support a claim of deliberate indifference, Santiago v. Fenton, 891 F.2d 373, 382 (1st Cir. 1989), supervisors have been found liable for failing to take remedial action against subordinates after multiple complaints, especially for use of inadequate disciplinary systems effectively permitting officers to continue to violate citizens’ rights. See Shaw v. Stroud, 13 F.3d 791, 800 (4th Cir.), cert. denied, 513 U.S. 813, and 513 U.S. 814 (1994) (supervisor’s inaction in light of three complaints concerning subordinate’s use of excessive force raised genuine issue of material fact whether supervisor acted with deliberate indifference); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 563-564 (1st Cir. 1989).
Rivera was never required to acknowledge any wrongdoing.
Lou Reiter, a retired deputy chief for the Los Angeles police department and an expert consultant and instructor on police practices, stated in his affidavit that any discipline of Rivera short of discharge should have incorporated easily available police supervisory practices and techniques to curb similar misconduct by Rivera in the future. According to Reiter, some of such easily available and reasonable measures that the defendant could have