Thomas v. Town of Salisbury, CIVIL ACTION NO. 14-13726-JGD

134 F.Supp.3d 557

Mark Thomas, Plaintiff,

v.Town of Salisbury, David J. L'Esperance, Cornelius J. Harrington, Kevin Sullivan, Robert St. Pierre, Daniel McNeil, Richard Merrill Jr., Eugene Scione, Steven Sforza, Michael Adler and Thomas Fowler, Defendants.

CIVIL ACTION NO. 14-13726-JGD

United States District Court, D. Massachusetts.

Filed September 28, 2015

Cary P. Gianoulis, John F. Tocci, Tocci & Lee, LLC, Boston, MA, for Plaintiff.

Adam Simms, John J. Davis, Pierce, Davis & Perritano, LLP, Douglas I. Louison, Joseph A. Padolsky, Louison, Costello, Condon & Pfaff, LLP, Boston, MA, for Defendants.

MEMORANDUM OF DECISION AND ORDER ON INDIVIDUAL DEFENDANTS' MOTION TO DISMISS

DEIN, United States Magistrate Judge

I. INTRODUCTION

The plaintiff, Mark Thomas, is a police officer with the Town of Salisbury. He has brought this action alleging numerous violations of his constitutional and state law rights in connection with an internal investigation brought against him, his resulting termination as a police officer, and his subsequent reinstatement. This court has issued a Memorandum of Decision and Order on the Motion to Dismiss filed by the Town of Salisbury and the Town Manager, Cornelius (Neil) Harrington (the "Town Decision") (Docket No. 48). This matter is presently before the court on the Motion to Dismiss, brought pursuant to Fed. R. Civ. P. 12(b)(6), by police officers Richard Merrill, Jr., Eugene Scione, Steven Sforza and Michael Alder; Robert St. Pierre (the former Chief of the Salem Police Department who conducted the investigation); and Thomas Fowler (the current Chief of the Salisbury Police Department) (collectively, the "Individual Defendants"). For the reasons detailed herein, and in the Town Decision, which is incorporated herein by reference, the Individual Defendants' Motion to Dismiss (Docket No. 23) is ALLOWED. This court concludes that the plaintiff has failed to state a constitutional claim against any of the Individual Defendants, and declines to exercise supplemental jurisdiction over the state law claims.

II. STATEMENT OF FACTS

When ruling on a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6), the court must accept as true all well-pleaded facts, and give the plaintiff the benefit of all reasonable inferences. See Cooperman v. Individual, Inc. , 171 F.3d 43, 46 (1st Cir.1999). Applying this principle, a synopsis of the facts as alleged against each of the Individual Defendants follows. A more detailed summary of the facts can be found in the Town Decision.

Robert St. Pierre

St. Pierre is the former Chief of the Salem Police Department, and was a long-time friend of the Town Manager, Neil Harrington. (Compl. (Docket No. 1) ¶¶ 8, 101). In or about December 2010, Harrington appointed St. Pierre to conduct an internal investigation of the then-Chief of Police, David L'Esperance. (Id. ¶ 101). Thomas alleges that the hiring of St. Pierre to conduct this investigation was improper for a number of reasons, including the fact that the Board of Selectmen had not given permission to conduct the investigation. (Id. ¶¶ 101-09). Moreover, the decision to proceed with St. Pierre was allegedly done so that Harrington would be protected from exposure and could direct the investigation. (Id. ¶ 105). According to Thomas, while L'Esperance was the focus of the investigation, the plaintiff, too, was a "target" from the outset. (Id. ¶¶ 122-27). Thus, Thomas was instructed by St. Pierre to "bring a lawyer" to his interview in connection with the L'Esperance investigation. (Id. ¶¶ 124-26)

L'Esperance resigned on January 18, 2011 and Kevin Sullivan was appointed Acting Chief. (Id. nn.1 & 2, ¶ 88). On January 24, 2011, St. Pierre issued a report (the "L'Esperance Report"), which detailed serious violations of state law and the Police Department's Code of Conduct on the part of L'Esperance. (Id. n.3). The L'Esperance Report also contained allegations concerning Thomas, and Harrington independently authorized St. Pierre to begin a new investigation of Thomas in late February 2011. (Id. ).

Thomas was placed on administrative leave on May 25, 2011. (Id. n.8). Thomas alleges that because of jealousy and personal animosity, many SPD employees submitted false and defamatory statements to St. Pierre about him. (Id. ¶¶ 129-54). St. Pierre was allegedly biased against Thomas and would coach witnesses to provide negative information. (Id. ). St. Pierre allegedly kept Harrington "apprised of the investigation during its pendency." (Id. ¶ 158).

On or about September 1, 2011, St. Pierre issued a report (the "Thomas Report"), which was mailed to Thomas on September 28, 2011. (Town Mem. (Docket No. 22) at 3; Compl. ¶ 155). In the report, St. Pierre found that there were grounds to discharge Thomas, namely: (1) that during the period October 1, 2007 through March 1, 2008, Thomas studied for the Bar Exam while on duty as a police officer, and (2) that Thomas knowingly allowed "then-Chief David L'Esperance to submit false information concerning [the plaintiff's] work history, including but not limited to the position [he] held and as to disciplinary action that had been taken against [him,]" in order to gain admission to the FBI National Academy. (Compl. Ex. 1 at 1). Thomas contends that these charges are patently false. A disciplinary hearing was held on February 1, 2012 before Harrington, at which time Thomas was represented by counsel. (Compl. ¶ 157). His employment with the SPD was terminated on February 8, 2012. (Id. ¶ 160). Thomas filed a grievance, which was denied, and then appealed to an arbitrator. (Id. ¶¶ 162-64, 167). After a hearing, on October 31, 2012, the arbitrator issued written findings, "which concluded that Thomas committed no wrongdoing, completely exonerating him." (Id. ¶ 172).

Meanwhile, on or about February 23, 2011, Thomas had filed what he characterizes as a "whistle blowing" letter with the then-Chairman of the Board of Selectmen, Donald Beaulieu, and with Harrington. (Id. ¶¶ 111-12). Therein, Thomas alleged that Acting Chief of Police, Kevin Sullivan, had sexually harassed female dispatchers working with the Police Department. (Id. ¶¶ 111-12, 114). In response to Thomas' complaint, Harrington again hired St. Pierre who, in turn, hired Police Lt. Mary Butler of the Salem Police Department to assist in a new investigation. (Id. ¶¶ 117-20). Lt. Butler found the charges against Sullivan to be substantiated. (Id. ¶¶ 119-20). Sullivan resigned, or was relieved of his duties, on March 1, 2011. (Id. n.4; Town Mem. at 3). Defendant Richard Merrill was named Acting Chief (Compl. n.4), and Thomas Fowler was subsequently appointed Chief. (Id. ¶ 180 & n.12).

Richard Merrill, Jr.

As noted above, Richard Merrill, Jr. was named Acting Chief following Sullivan's departure from the SPD on or about March 1, 2011. (Id. n.4; Town Mem. at 3). Thomas has alleged that previously, on or about September 24, 2010, Merrill and other police officers congratulated Thomas on his promotion to the rank of Sergeant, consistent with the fact that L'Esperance had told several officers that he was being promoted. (Compl. ¶¶ 68-71). However, Thomas never received the promotion. (Id. ¶ 72).

According to Thomas, Merrill knowingly provided false information about him to St. Pierre during the investigation of Thomas. Specifically, Merrill reported that Thomas had told him, and L'Esperance had confirmed, that Thomas had studied for the Bar Exam while on duty during the period of September 2008 through December 2008. (Id. ¶¶ 132-33). The falsity of this statement, according to Thomas, is apparent from the fact that Thomas took and passed the Bar Exam in February 2008. (Id. ¶ 134).¹ According to Thomas, Merrill later admitted that Sullivan had made him make the report of Thomas' studying while on duty, and that the St. Pierre investigation was a set-up to get Thomas. (Id. ¶¶ 135-36).

Eugene Scione

Eugene Scione is a Sergeant in the SPD. (Id. ¶ 11). St. Pierre interviewed Scione on January 7, 2011 in connection with the L'Esperance investigation, and on March 21, 2011 in connection with the Thomas investigation. (Id. ¶ 143). On both occasions, Scione reported that Thomas had told him that he (Thomas) had seen L'Esperance steal property from an impounded vehicle, and that Thomas had paid or offered to pay the owner for the missing items. (Id. ). Thomas denies both ever having made such statements and the truth of the statements. (Id. ¶¶ 144-47).

Scione was also the president of the Police Supervisors' Union. (Id. ¶ 163). In that capacity, Scione apparently appropriately advised Thomas on how to arrange for the Union to file a grievance challenging his termination, after the Union initially refused to do so. (Id. ¶¶ 163-64).

Steven Sforza

Steven Sforza is a Sergeant with the SPD. (Id. ¶ 12). Sforza was interviewed in connection with Thomas' efforts to become an FBI task force officer in 2010, as part of Thomas' background check. (Id. ¶ 64). Thomas passed the background check, and was informed by L'Esperance that his passing must mean that Sforza told the investigator that Thomas was trustworthy. (Id. ¶ 65). At some point, however, according to Thomas, Sforza became his adversary. (Id. ¶ 162). Sforza allegedly assisted Sullivan in wiretapping Thomas inside the police department offices. (Id. ¶ 89). Sforza was on the executive board of the Union, along with President Leavitt and Michael Alder. (Id. ¶ 162). When Thomas wanted the Union to file a grievance relating to his termination, he was told "that the executive board of the police union could not talk to Thomas nor file a grievance on his behalf." (Id. ). This decision was rescinded after Thomas approached the Union's directors, and the grievance was filed. (Id. ¶¶ 162-64). Sforza was also allowed by Fowler to own and operate a firearm safety training company while Thomas' ability to practice law while serving as a police officer was curtailed by Fowler, as discussed below. (Id. ¶¶ 189-91).

Michael Alder

Alder is a...