Judge v. City of Lowell

Decision Date09 September 1998
Docket NumberNo. 98-1248,98-1248
Citation160 F.3d 67
PartiesRebecca JUDGE, Plaintiff, Appellant, v. CITY OF LOWELL, et al., Defendants, Appellees. . Heard
CourtU.S. Court of Appeals — First Circuit

David J. Fine, with whom Dangel, Donlan and Fine was on brief for appellant.

Thomas E. Sweeney, City Solicitor, for appellee City of Lowell.

Neil Sherring, Assistant Attorney General with whom Michelle A. Kaczynski, Assistant Attorney General and Scott Harshbarger, Attorney General, were on brief for appellee Gerald Feigin, M.D.

Joseph G. Donnellan for appellees Daniel R. Brady, Barry Chevalier and Lewis Hunter.

Austin M. Joyce, with whom Michael J. Akerson and Reardon & Reardon were on brief for appellees William M. Taylor and William F. Busby.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and STAHL, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

Rebecca Judge brought this action pursuant to 42 U.S.C. § 1983 against the City of Lowell, Officers John J. Sheehan, Daniel R. Brady, William M. Taylor, William F. Busby Lewis Hunter, Barry Chevalier, David Tousignant, and Garrett Sheehan of the Lowell Police Department (in their individual capacities), and Medical Examiner Gerald Feigin, M.D. (in his individual capacity), for alleged violations of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Judge also brought claims under state law against Dr. Feigin and Officer Chevalier for intentional infliction of emotional distress. Defendants moved to dismiss the section 1983 claims in Judge's Third Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to set forth a claim for relief. The court granted defendants' motions to dismiss the section 1983 claims and declined to exercise supplemental jurisdiction over the remaining state law claims. Judge appeals from the order granting defendants' motions to dismiss. We affirm.

I. BACKGROUND

We summarize the facts and allegations set forth in the Third Amended Complaint. 1 Judge, who is black, is the sister of Gary Weems, who died on November 6, 1993. Weems was also black. On the date of Weems's death, both Judge and Weems resided at 7 Walter Terrace in Somerville, Massachusetts. Weems married Denise Richardson Weems in 1980, but they had been separated for several years at the time of Weems's death.

The Lowell Police Department discovered Weems's body on or about November 6, 1993. At that time, Weems had on his person various forms of identification that indicated that he lived at 7 Walter Terrace. He also had a bank passbook indicating that he and Judge jointly held a savings account. Notwithstanding the discovery of these items, the Lowell Police Department did not contact Judge or any other member of Weems's family to inform them of Weems's death. As a result, Judge did not learn of her brother's death until approximately six weeks after it occurred. In the interim, Weems was buried in Lowell as an "unknown person."

After the Lowell Police Department discovered Weems's body, it conducted a homicide investigation. Police officers took witness statements from three individuals. Those statements indicated that Weems may have died as a result of an injection of narcotics administered by another person. In their statements, the witnesses contradicted one another as to the identity of the person or persons who administered the injection. The witnesses also indicated that (1) Weems had received over $90 in cash around 4:00 p.m. on November 5, 1993, but had no cash on his person when his body was discovered the next day, and (2) at some point during the night of November 5, 1993, Weems's pockets were turned inside out. Notwithstanding this evidence, the officers did not investigate Weems's death further. The officers did not interview additional persons who may have been present at the time of Weems's death. They did not seek out and interview any of Weems's family members.

Judge learned of Weems's death sometime in December, 1993. Shortly after learning that Weems had died, Judge, along with Denise Weems and Jestina Richardson, Denise Weems's mother (both of whom are also black), went to the office of Gerald Feigin, the Medical Examiner who had performed an autopsy on Weems's body. Initially, Dr. Feigin resisted meeting with the women. After Dr. Feigin agreed to meet with them, Judge asked Feigin to show the women something to demonstrate that the body that had been buried approximately six weeks earlier was that of Gary Weems. Dr. Feigin "reacted angrily and shoved a photograph of the dead man so far into Ms. Judge's face that she could not see it." (Third Amended Complaint, p 22.) When Judge requested further information concerning the circumstances of Weems's death, Dr. Feigin "started yelling at the three women that he had showed [sic] them the photograph, that the photograph should be good enough for them and that he did not have time 'for this.' " See id.

Judge alleges on information and belief that at the time Dr. Feigin prepared his autopsy report concerning Weems, he was aware of the "suspicious circumstances" discovered by the police, yet failed to include this information in his report. Dr. Feigin did not make any recommendation to the district attorney's office that Weems's death be further investigated.

Judge, Denise Weems and Ms. Richardson also visited the Lowell Police Department. The women spoke to an officer, believed to be Officer Chavalier, who, during their conversation, used the street names of certain drugs. When Judge indicated that she did not understand what the officer was referring to, "the officer responded in a manner which insinuated that because she was Black, she must know what he was referring to, and her claim that she did not know was disingenuous." When Judge asked the officer whether the police had found any forms of identification on Weems's person, the officer replied that they had not. When Judge asked for the return of Weems's personal belongings, the officer stated that the only item found on Weems's person was a knife. In response to questions concerning the circumstances of Weems's death, the officer "provided misleading and incomplete information."

In her Third Amended Complaint, Judge asserted four claims for relief. In Count I, brought pursuant to 42 U.S.C. § 1983, 2 she alleged that the officer defendants and Dr. Feigin violated the Equal Protection Clause of the Fourteenth Amendment. Judge alleged that Dr. Feigin and the officer defendants "violated their constitutional duty by discriminating against Rebecca Judge on the basis of her race and the race of her deceased brother Gary Weems and his wife Denise Weems," in that they failed to: (1) notify Weems's wife and next of kin of Weems's death; (2) deliver in a timely fashion to Weems's wife and next of kin Weems's personal belongings; (3) carefully inquire into the cause and circumstances of Gary Weems's death; (4) respect the right of Gary Weems's wife and next of kin to dispose of his body as they wished; (5) respond truthfully to requests for information regarding Gary Weems's death made by members of Gary Weems's family; (6)investigate the circumstances of Gary Weems's death with due regard to the possibility that the death may have resulted from criminal acts; (7) pursue carefully evidence of suspicious circumstances regarding Gary Weems's death; and (8) notify the district attorney's office of evidence warranting the attention of that office.

Judge alleged "on information and belief" that the above conduct "would not have been characterized by the gross deficiencies with which it was characterized had [she], her deceased brother Gary Weems and his wife Denise Weems been White, instead of Black." Judge further alleged that these circumstances

were part and parcel of a pattern and practice, pursuant to which one level of care is used by defendants in the investigation of the deaths of White persons, and another, inferior level of care is used by defendants in the investigation of the death of Black persons, particularly if the Black persons in question are ostensibly of a low economic class and the cause of death is ostensibly a drug overdose.

Id., p 33. As support for this "pattern and practice" allegation, Judge cited the case of Kasha Blount, a black woman from Dorcester, Massachusetts, who died in February 1990 under allegedly suspicious circumstances. According to newspaper articles appended to the Third Amended Complaint, a man was tried in the Blount case on homicide charges, but was acquitted by a jury. The articles indicate that Dr. Feigin was the medical examiner in the Blount case. Relying upon statements made by Blount's mother to the press, Judge alleges that Dr. Feigin failed to properly investigate Ms. Blount's death because she was black.

In Count II, Judge alleged that the City of Lowell had exhibited "deliberate indifference" by failing to "establish a custom and policy that prohibited discrimination on the basis of race in the discharge of the legal obligations at issue," and by failing to recruit and train its police officers "in such a way as to ensure that they would not discriminate on the basis of race in the discharge of the legal obligations at issue." In Counts III and IV, Judge alleged state law claims for intentional infliction of emotional distress against Dr. Feigin and Officer Chevalier.

After Judge filed her initial complaint, she amended it three times. The defendants filed motions to dismiss the Second Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim for relief under section 1983. At a scheduling conference held after those motions were filed, the court expressed skepticism that the Second Amended Complaint set forth sufficient factual support for Judge's allegation of racial animus. Nevertheless, the court denied the motions to dismiss without prejudice to their being renewed at a later date. Judge...

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