DONALD M v. Matava, Civ. A. No. 84-1212-W.

668 F. Supp. 714

DONALD M¹ and Annette M, Plaintiffs, v. Marie A. MATAVA, individually and in her official capacity as Commissioner of the Massachusetts Department of Social Services, et al., Defendants.

Civ. A. No. 84-1212-W.

United States District Court, D. Massachusetts.

July 13, 1987.

Marjorie Heins, Massachusetts Civ. Liberties Foundation, Keith Halpern, Silverglate, Gertner, Fine, & Good, Boston, Mass., for plaintiffs.

Suzanne E. Durrell, Asst. Atty. Gen., Government Bureau, John Eklund, Sloane & Walsh, Boston, Mass., for defendants.

ORDER

WOLF, District Judge.

Upon consideration of the memoranda and oral arguments of the parties, it is hereby ORDERED that:

1. The motions of defendants Marie A. Matava and Massachusetts General Hospital to dismiss the plaintiffs' complaint for failure to state a federal claim upon which relief can be granted are DENIED. Based on the facts alleged, the plaintiffs have viable claims that their federal constitutional Fourth Amendment and family privacy rights have been violated. See, e.g., Darryl H. v. Coler, 801 F.2d 893 (7th Cir.1986).

2. Defendant Matava's motion to dismiss plaintiffs' complaint on Eleventh Amendment grounds is DENIED. Included in the plaintiffs' third amended complaint is a request for injunctive relief in the form of the expungement of all the Department of Social Services records relating to the plaintiff. Pursuant to M.G.L. c. 119, §§ 51E and 51F, the records indicating that a § 51A Report of child abuse had been substantiated against the M will be on file until the youngest of the M's children, who was two years old when the complaint was filed, is eighteen years old. Thus, the material in the records, including the substantiation decision, constitutes a form of injury for which relief can be granted if a meritorious claim is established. More specifically, the request that defendant Matava, a state official, expunge the records is the type of prospective injunctive relief that the Supreme Court has found not to violate the Eleventh Amendment. See Green v. Mansour, 474 U.S. 64, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). See also deLeiris v. Scott, 642 F.Supp. 1552, 1570, n. 12 (D.R.I.1986) ("Likewise, the Eleventh Amendment in no way prevents this court from considering the request for expungement of records"); Elliot v. Hinds, 786 F.2d 298, 302 (7th Cir.1986) ("The injunctive relief requested here, reinstatement and expungement of personnel records, is clearly prospective in effect and thus falls outside the prohibitions of the Eleventh Amendment"); Bohn v. County of Dakota, 772 F.2d 1433, 1435 (8th Cir.1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1192, 89 L.Ed.2d 307 (1986); Brown v. Jones, 473 F.Supp. 439, 453 (N.D.Tex.1979).

3. Massachusetts General Hospital's uncontested motion to dismiss those complaints against it arising out of the activities of Michael Mancusi for which the court granted absolute immunity to Mancusi is ALLOWED. See Whelehan v. County of Monroe, 558 F.Supp. 1093 (W.D.N.Y.1983).

4. Massachusetts General Hospital's motion to dismiss based on qualified immunity arising out of the qualified immunity of its employees is DENIED. See generally Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) (Court rejected idea of extending "to municipalities a qualified immunity based on the good faith of their officers."). The related request for dismissal by Massachusetts General Hospital based on the absence of respondeat superior liability is also DENIED because the alleged facts go beyond respondeat superior liability. Although perhaps more implicit than explicit, the plaintiffs are alleging that Massachusetts General Hospital had an unconstitutional policy or custom of engaging in the acts complained of in the instant case. See Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 2429, 85 L.Ed.2d 791 (1985); Voutour v. Vitale, 761 F.2d 812, 819-20 (1st Cir.1985), cert. denied, 474 U.S. 1100, 106 S.Ct. 879, 88 L.Ed.2d 916 (1986). This decision is, of course, without prejudice to a possible motion for summary judgment on this issue at the conclusion of discovery.

5. The court has not been presented with the question whether Massachusetts General Hospital has Eleventh Amendment immunity arising out of its "agency" relationship to the state, and therefore does not now address this issue. It too may be raised at the completion of discovery.

6. The defendants' motion to dismiss the pendent state claims against those employees of Massachusetts General Hospital that have been found to have immunity against plaintiffs' federal civil rights claims is DENIED. The state and federal claims derive from a "common nucleus of operative fact" and the claims are such that a plaintiff "would ordinarily be expected to try...