Wolski v. Gardner Police Dep't, CIVIL ACTION NO. 18-12631-WGY

411 F.Supp.3d 187

Joseph WOLSKI and Christina Wolski, Plaintiffs,

v.GARDNER POLICE DEPARTMENT, Massachusetts State Police Department, Eric McAvene, Danial Wildgrube, Michael Travers, Matthew Prescott, Defendants.

CIVIL ACTION NO. 18-12631-WGY

United States District Court, D. Massachusetts.

Filed October 30, 2019

David C. Farrell, Stephen Semenza, The Cohen Law Group, Boston, MA, for Plaintiffs.

Gerard T. Donnelly, Courtney E. Mayo, Hassett & Donnelly, P.C., Austin M. Joyce, Reardon, Joyce & Akerson, P.C., Worcester, MA, Nicole A. Eldredge, Attorney General's Office, Boston, MA, Joseph P. Kittredge, Lorena Galvez, Rafanelli & Kittredge, P.C., Acton, MA, Daniel J. Moynihan, Jr., Emily S. Bush, Law Office of Daniel J. Moynihan, P.C., Stoneham, MA, for Defendants.

MEMORANDUM & ORDER

WILLIAM G. YOUNG, DISTRICT JUDGE

I. INTRODUCTION

Joseph and Christina Wolski (collectively, "the Wolskis") filed a complaint in this Court against individual officers of the Gardner City Police Department (the "Gardner Police") and the Massachusetts State Police Department (the "State Police"), as well as against the agencies themselves. See Verified Compl. Jury Demand ("Original Compl."), ECF No. 1; First Am. Verified Compl. Jury Demand ("Am. Compl."), ECF No. 30. The Wolskis alleged that the State Police are liable under section 2 of the Massachusetts Tort Claims Act (chapter 258 of the Massachusetts General Laws) for "fail[ing] to adequately [train or] supervise their respective employees" who then committed intentional torts against the Wolskis (count III). Id. ¶¶ 43-44, 48-49. The State Police also construe the Wolskis' amended complaint as alleging an intentional infliction of emotional distress claim against them (count V). See Mem. Law Supp. Def. Mass. State Police Dep't Mot. Dismiss Pls.' First Am. Verified Compl. ("Mem. Dismiss") 3 n.1, ECF No. 32.

The State Police seek dismissal under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) of all claims against them, arguing that they enjoy sovereign immunity and, moreover, that the Wolskis have failed to state actionable claims. See id. at 1-2. For the following reasons, the Court GRANTS the State Police's motion to dismiss for lack of subject matter jurisdiction, ECF No. 31. Accordingly, the Court does not reach the State Police's arguments about whether the Wolski's amended complaint states an actionable claim.

A. Factual Allegations

The plaintiff, Joseph Wolski ("Officer Wolski"), was at all relevant times "a police officer employed by the ... [Gardner Police]." Am. Compl. ¶ 9. On August 3, 2016, while "on duty and on patrol," Officer Wolski received a call from his co-worker, the defendant Eric McAvene ("Lieutenant McAvene"),¹ telling him "to return to the [Gardner Police] station for an urgent meeting." Id. ¶ 10. When he arrived at the station, the Lieutenant McAvene and defendants Daniel Wildgrube ("Trooper Wildgrube"), Michael Travers ("Trooper Travers"), and Matthew Prescott ("Trooper Prescott") (collectively, the "Trooper Defendants") met Officer Wolski.² Id. ¶ 13. They "escorted Officer Wolski ... into a windowless back room typically used for briefing officers prior to conducting raids (the ‘briefing room’)." Id. ¶ 14. Lieutenant McAvene represented to Officer Wolski that defense counsel for a suspect in a homicide investigation on which Officer Wolski worked had subpoenaed the Gardner Police for all "investigation-related communications." Id. ¶¶ 11-12, 16 (emphasis deleted). Though the individually named officer defendants never showed Officer Wolski the subpoena, id. ¶ 17, Lieutenant McAvene said that the subpoena requested the cellphone records of the officers involved in the investigation, including Officer Wolski's, id. ¶¶ 11-12, 16. The Wolskis allege, "[u]pon information and belief, [that] the subpoena does not exist and never did." Id. ¶ 18.

Under the pretext of the subpoena, "[Lieutenant] McAvene ... ordered [Officer] Wolski to turn over his personal, private cellular phone to [the Trooper Defendants], and permit the troopers to perform a ‘data dump’ ... for the purpose of collecting investigation-related communications from [his] ... cell phone." Id. ¶ 19 (emphasis deleted). Officer Wolski initially objected to the order because he maintained that his personal phone did not contain work-related communications. Id. ¶ 20. Lieutenant McAvene repeated the order. Id. ¶ 21.

Due to the defendant officers' representation that the [Gardner Police] officers involved in the aforementioned murder investigation were all under lawful subpoena, Officer Wolski reluctantly surrendered his personal cellphone to the defendant officers on the express condition that under no circumstances was [Officer] Wolski's personal and private media contained on the cell phone to be viewed, downloaded, copied, duplicated, transmitted or otherwise misappropriated or disseminated, and was to remain undisturbed and absolutely private.

Id. ¶ 22 (emphasis deleted).

Assuring Officer Wolski that they "were not collecting any of his personal private data," id. ¶ 23, "the defendant officers took [his] cell phone into an adjacent room and shut the door," id. ¶ 24. They re-emerged "[a]fter approximately 30-40 minutes ... and demanded that Officer Wolski disclose to them his personal and private ‘Apple I.D. and password.’ " Id. ¶ 25. Officer Wolski initially objected, but eventually provided the defendant officers his Apple I.D. and password after they reassured him that they were only looking for investigation-related communications. Id. ¶ 28. Within a few weeks of this encounter, the Wolskis "discovered (through multiple independent and credible sources) that their personal private media had been converted by the defendants and widely disseminated throughout the ranks of the Gardner Police Department and the [State Police]."³ Id. ¶ 30. The private media obtained from Officer Wolski's cell phone included video and still images of Officer Wolski and Mrs. Wolski "while being intimate." Id. ¶ 22 n.5.

B. Procedural History

On December 21, 2018, the Wolskis filed a complaint in this Court against individual the Gardner Police and State Police officers, as well as against the agencies themselves. Original Compl. On April 18, 2019, the State Police moved to dismiss the claims against it under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Def. Mass. State Police Dep't Mot. Dismiss ("Original Mot. Dismiss"), ECF No. 19.

With the permission of the Court, the Wolskis filed an amended complaint on May 9, 2019, see Pls.' Mot. Leave Am. Compl. ("Motion to Amend"), ECF No. 13; Electronic Order, ECF No. 29; Am. Compl., which mooted the State Police's original motion to dismiss, Electronic Order, ECF No. 35. In their amended complaint the Wolskis advance the same claims as they did in their original complaint. See Motion to Amend ("Plaintiffs do not seek to change the substance of the original Complaint nor do they seek to add, subtract, or amend the five (5) causes of action asserted in the original Complaint."). They allege claims against the individually named officers under Massachusetts law and under sections 1983 and 1985 of the Civil Rights Act (found in title 42 of the United States Code). Am. Compl. ¶¶ 31-41, 56-59. They bring claims under Massachusetts law for negligent training and supervision (count III) and intentional infliction of emotional distress (count V) against the State Police.⁴ Id. ¶¶ 42-49, 56-59.

The State Police renewed its motion to dismiss on May 10, 2019. See Def. Mass. State Police Dep't Mot. Dismiss Pls.' First Am. Verified Compl., ECF No. 31; Mem. Law Supp. Def.'s Mot. Dismiss Pls.' First Am. Verified Compl. ("Renewed Dismiss Mem."), ECF No. 32.

The Wolskis did not submit an opposition to the renewed motion to dismiss before the motion session on July 30, 2019. During that hearing, the Wolskis' counsel requested a continuance, Emergency Mot. Continue Hr'g Def. Mass. State Police Dep't Mot. Dismiss, ECF No. 51; Electronic Clerk's Notes, ECF No. 50, and the Court allowed the Wolskis to file a written opposition within 30 days. Id. The Wolskis' lawyer filed an opposition to the renewed motion to dismiss with an accompanying memorandum on August 13, 2019. Pls.' Mot. Opp. Def. Mass. State Police Dep't Mot. Dismiss, ECF. No. 47; Mem. Supp. Pls.' Opp. Def. Mass. State Police Dep't Mot. Dismiss ("Renewed Opp'n Mem."), ECF No. 48.

This Court advised the parties at the hearing and in its electronic order that it would rule on the papers. Electronic Clerk's Notes, ECF No. 50.

II. ANALYSIS

After careful consideration, the Court GRANTS the State Police's motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) because the Commonwealth and its agencies enjoy sovereign immunity. Consequently, the Court lacks subject matter jurisdiction over the claims against the State Police. It thus has no occasion to opine on whether those claims would otherwise entitle the Wolskis to relief.

A. Standard of Review

Jurisdictional questions are threshold issues which courts ought address first. See Ross v. Deutsche Bank Nat'l Tr. Co., 933 F. Supp. 2d 225, 229 (D. Mass. 2013) ("When presented with a motion to dismiss a claim under both Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), ‘a district court ... should ordinarily decide the 12(b)(1) motion first.’ " (quoting Northeast Erectors Ass'n of BTEA v. Secretary of Labor, Occupational Safety & Health Admin., 62 F.3d 37, 39 (1st Cir. 1995) )). The party invoking federal jurisdiction, here the plaintiffs, bears the burden of proving⁵ that the court from which they seek redress has jurisdiction over their claims. See Johansen v. United States, 506 F.3d 65, 68 (1st Cir. 2007) (citing Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995) ); see also Heinrich v. Sweet, 44 F. Supp. 2d 408, 412 (D. Mass. 1999) (citing Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir. 1998) ). For both the 12(b)(1) and 12(b)(6) motions to dismiss, the Court must "take as...