Ahern v. O'Donnell, 96-1528

• Decision Date: 11 October 1996
• Docket Number: No. 96-1528,96-1528
• Citation: 109 F.3d 809
• Parties: Jeremiah P. AHERN, Plaintiff, Appellant, v. Philip O'DONNELL, Patricia McBride, Tonie Moran, David Cella, Individually and in their Official Capacities, and The University of Massachusetts, Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 809

109 F.3d 809

Jeremiah P. AHERN, Plaintiff, Appellant, v. Philip O'DONNELL, Patricia McBride, Tonie Moran, David

Cella, Individually and in their Official

Capacities, and The University of

Massachusetts, Defendants, Appellees.

No. 96-1528.

United States Court of Appeals,

First Circuit.

Heard Oct. 11, 1996.

Decided March 31, 1997.

Thomas Gilbert Massimo, Boston, MA, for appellant.

Terence P. O'Malley, Boston, MA, with whom Joyce A. Kirby was on brief for defendants, appellees Philip O'Donnell, Patricia McBride, David Cella, and University of Massachusetts.

Janet Nally Barnes with whom William J. Dailey, Jr., Robert G. Eaton, and Sloane and Walsh were on brief for appellee Tonie Moran.

Before BOUDIN, Circuit Judge, BOWNES, Senior Circuit Judge, and SKINNER, ^* Senior District Judge.

PER CURIAM.

Plaintiff-appellant Jeremiah P. Ahern brought suit in federal court against five individuals and three entities, seeking declaratory relief and damages for a variety of civil rights violations and common-law torts. The complaint alleged that the defendants violated Ahern's rights under the Fourth and Fourteenth Amendments and asserted pendent state-law claims for, inter alia, false arrest, false imprisonment, and infliction of emotional distress. The claims were based upon events that resulted in Ahern's involuntary admission to a psychiatric facility and the subsequent termination of his employment as a police officer with the University of Massachusetts at Boston ("UMB") Department of Public Safety ("DPS").

The complaint named as defendants, in both their individual and official capacities, Captain Philip O'Donnell, acting director of the UMB DPS at the time of Ahern's involuntary admission to the Arbour Hospital ("Arbour"); David Cella, director of the UMB DPS at the time Ahern's employment was terminated; Sergeant Patricia McBride of the UMB police force; Dr. Tonie Moran, consulting psychologist to the UMB DPS; and Dr. Michael Malick, the physician who evaluated Ahern at Arbour and who effected his involuntary admission to that facility. The three entities named as defendants were UMB, Arbour, and Ahern's union, the UMB Patrolmen's Association ("the Union").

Following dismissal of the counts against the Union and Dr. Malick, the remaining parties filed cross motions for summary judgment. The district court entered summary judgment for the defendants on all counts. Ahern now appeals from that portion of the district court's order entering summary judgment in favor of Dr. Moran and the UMB defendants. We affirm.

I.

We view the record evidence in the light most favorable to Ahern, the party against whom summary judgment has entered, drawing all reasonable competing inferences in his favor. See Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir.1996). Most of the predicate facts are not in dispute, although Ahern strenuously disputes the significance of some of the facts. The salient events are as follows.

In the early morning of September 19, 1991, shortly after midnight, Deborah Cate's telephone answering machine recorded the following message: "Hey. Guess what? We took care of that crybaby old fuck of yours. The niggers splattered his face all over Dorchester. He's gone. He's gone. That fucking crybaby's all gone." Ms. Cate, a UMB student and employee, was not at home at the time of the call and did not hear the message until approximately 6:15 that evening. Cate recognized the voice as that of Ahern, a former boyfriend, and understood the message to mean that Ahern had caused James Igoe, another of Cate's former boyfriends, to be killed.

At the time of the September 19th message, Ahern had been a member of the UMB police force for approximately four years. Cate had dated and become intimate with Ahern during the spring and summer of 1990. Before, during, and after that same period, Cate also dated James Igoe, who was married and had children. At the time these relationships were going on concurrently, Ahern knew of Cate's relationship with Igoe. Ahern also knew where Igoe worked.

Cate dated Ahern through the Fourth of July weekend of 1990, at which time she told him that she wanted to end their relationship. Ahern was upset by this and for the remainder of the summer of 1990 he attempted to convince Cate to resume the relationship. According to Cate, he constantly stopped by uninvited to her workplace, interrupting her work, giving her unwanted gifts, and upsetting her. Ahern repeatedly told Cate that he hated Igoe; that if it were not for Igoe, Cate would love Ahern; and that he would "take care of" Igoe.

Ahern began a campaign of telephone calls to Cate in which he threatened, among other things, to tell Igoe's wife and children of the relationship between Cate and Igoe, and to send Igoe's wife photographs of Cate and Igoe together. In mid-August 1990, Ahern told Cate that he had obtained Igoe's home address from the UMB police computer and that he was going to go there to tell Igoe's wife and children about Igoe's affair with Cate. Ahern also stalked Cate and called her to let her know that he had been following her. On one occasion, Ahern called Cate while Igoe was visiting at her apartment. When Cate answered the phone, Ahern said, "He's there, isn't he?" and told her to look out the window. When she did, she saw Ahern in a phone booth across the street from her house, looking up at her and displaying what appeared to her to be a gun. Ahern does not dispute these allegations but states that by the fall of 1990 he had ceased his efforts to convince Cate to return to him and had begun dating another woman.

Beginning in the summer of 1990, after she ended her relationship with Ahern, Cate also began to receive obscene and threatening phone calls. In late September or October 1990, Igoe began to receive harassing and threatening calls at work. In the calls to Igoe, a male caller referred to an unnamed woman with whom the caller and Igoe both had relationships.

The sexually explicit calls to Cate and Igoe continued through March 1991. Ahern denied making the calls, though he admitted that he had been "a little crazy" over his break-up with Cate. In mid-March, Cate told Ahern that Igoe was still receiving harassing calls and that she believed that he was the caller. According to Cate, Ahern became nervous and suggested that the caller might be a friend of his who was upset with Cate and Igoe for the way they had treated Ahern. In April 1991, Cate received another sexually explicit message, the content of which was the same as a message left in January.

In early July 1991, against Igoe's wishes, Cate ended their relationship. In mid-July, Igoe received another call, in the course of which he exclaimed, "Look, you got what you wanted. You split Debi and I up." At the end of July, Cate received more threatening, sexually explicit messages. She was certain that the caller was Ahern.

In August 1991, Cate reported the obscene and threatening phone calls to the Boston Police Department, but did not supply any information about the suspected caller. She also contacted the telephone company, which placed a "trap" on her phone for three weeks. The telephone company then advised Cate that the calls she reported during the three-week period were made from local telephone booths, some from the MBTA station near UMB. Cate continued to receive hang-up calls after the trap was removed.

After listening to the September 19th message, Cate became frightened and concerned for Igoe's safety because she thought that the message could be "the real thing." She called Igoe at work, at home, and at his wife's home, but was unable to reach him. Panicked, she called the Boston Police Department. She told a detective about the message and asked if any serious incidents had been reported that day. The detective ultimately recommended that Cate call Patricia McBride, a sergeant on the UMB police force.

At approximately 6:30 p.m., Cate called McBride to report the threatening and harassing phone calls. McBride offered to interview Cate at her apartment, rather than at the DPS station, because the complaint involved a fellow officer. At Cate's apartment, Cate suggested that McBride listen to the disturbing message herself. After listening for a short time, McBride was convinced that the caller was Ahern. Cate then told McBride that she was certain that Ahern was the caller for three reasons: she recognized the caller's voice as Ahern's; the caller related the same information in his calls to Cate and to Igoe; and the information related by the caller was known only to Cate and Ahern.

While at Cate's apartment, McBride listened to other recorded messages and to a tape of calls to Igoe that Igoe had recorded beginning in February 1991. McBride also collected information from Cate concerning the events of the past eighteen months. Cate then made two tapes for McBride--one contained obscene and threatening messages that had been left on her answering machine, including the September 19th message and other threats to have Igoe killed; the second tape was a copy of a tape of phone calls to Igoe, featuring graphic accounts of the caller's sexual interludes with Cate and various threats, including threats to have Igoe killed.

Cate spoke to Igoe that evening, while McBride was with her, and learned that he was fine. McBride then called Captain Philip O'Donnell, acting director of the UMB DPS, and told him that she needed him to listen to some tape recordings. McBride brought the two tapes to O'Donnell's home. After listening to both tapes, O'Donnell agreed that the caller was Ahern. McBride and O'Donnell were very familiar with Ahern's voice, both in person and on the telephone, from having worked closely with him on a regular basis. There is no suggestion that either officer, or any other defendant, bore any animosity toward Ahern.

Concerned about Ahern's potential dangerousness and the safety of Cate...