Chute v. Walker

• Decision Date: 27 February 2002
• Docket Number: No. 01-2189.,01-2189.
• Citation: 281 F.3d 314
• Parties: James A. CHUTE, Plaintiff, Appellant, v. George WALKER, Defendant, Appellee, City of Cambridge and Cambridge Rent Control Board, Robert W. Healy, City Manager, Ronnie Watson, as Police Commissioner, City of Cambridge, Unknown Police Officers of the City of Cambridge, Individually and in their Official Capacity, George Walker, Police Officer, City of Cambridge, in his Official Capacity, Defendants.
• Court: U.S. Court of Appeals — First Circuit

281 F.3d 314

James A. CHUTE, Plaintiff, Appellant, v. George WALKER, Defendant, Appellee, City of Cambridge and Cambridge Rent Control Board, Robert W. Healy, City Manager, Ronnie Watson, as Police Commissioner, City of Cambridge, Unknown Police Officers of the City of Cambridge, Individually and in their Official Capacity, George Walker, Police Officer, City of Cambridge, in his Official Capacity, Defendants.

No. 01-2189.

United States Court of Appeals, First Circuit.

Heard February 4, 2002.

Decided February 27, 2002.

Valeriano Diviacchi for appellant.

Thomas J. Urbelis with whom Urbelis, Fieldsteel & Bailin, LLP was on brief for appellee.

Before BOUDIN, Chief Judge, LYNCH, Circuit Judge, and GERTNER,^* District Judge.

LYNCH, Circuit Judge.

James A. Chute, a man of Irish descent, filed a nine-count complaint against the City of Cambridge, the city's police commissioner, and several of the city's police officers in both their individual and official capacities, alleging that defendant, officer George Walker, directed ethnic slurs toward him, hit him on the head, handcuffed him too tightly, and then falsely arrested, imprisoned, and charged him with various crimes.

Walker, appearing through counsel, filed a motion to dismiss one of Chute's nine counts and an answer to Chute's complaint. On the next day, the city, and all of the other defendants, including Walker, in their official capacities only, filed a motion to dismiss counts two through four. Chute responded to none of these motions. Although no party moved to dismiss eight of the claims against Walker individually, the district court nonetheless dismissed Chute's complaint in its entirety for failure to state a claim, Fed.R.Civ.P. 12(b)(6), and denied Chute's motion for relief from judgment, Fed.R.Civ.P. 60(b).

Chute appeals the dismissal of seven of the nine counts, only as they apply to Walker in his individual capacity. He concedes the dismissal of two of the counts in their entirety. He also concedes the dismissal of all of the counts against Walker in his official capacity as well as the dismissal of all of the counts against all of the other defendants.¹ As to the remaining counts against Walker individually, Chute says the district court erred by, sua sponte, dismissing those counts without providing him notice or an opportunity to be heard. In addition, Chute says the district court's conclusion that all of his claims against Walker must be dismissed, because he never served Walker with process, is incorrect because Walker waived this objection. We agree that the district court erred and so we reverse the district court's dismissal of counts one, two, and five through nine of Chute's complaint, against Walker individually, and reinstate the case for further proceedings.

I.

On August 2, 2000, Chute filed a nine-count complaint in the district court seeking money damages against the City of Cambridge, the city's police commissioner, and several police officers, including officer Walker, in their individual and official capacities. The complaint stated that on August 7, 1997, officer Walker called Chute a "mick bastard" and said to him "I'm an American, why don't you scum go back to where you came from." According to Chute, Walker then hit him on the head several times and, with the help of other unknown officers, falsely arrested him and used excessive force in doing so. Chute's complaint also asserted that Walker and the other unknown officers falsely charged him with "several criminal and motor vehicle violations" and falsely imprisoned him. According to the signed Return of Service, on August 3, 2000, a constable served the summons and complaint by handing copies to Lieutenant Walsh, who signed as an authorized agent for officer Walker.

In counts one, four, and five, Chute claimed that these acts violated, in different ways, his Fourth, Eighth, and Fourteenth Amendment rights under color of state law in violation of 42 U.S.C. § 1983. In counts two and six, he also claimed that these acts constituted interference, by threat, intimidation, and coercion, with the exercise of his Massachusetts constitutional and statutory rights, in violation of the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, §§ 11H and 11I (2000). In count three, he alleged a violation of the Massachusetts Tort Claims Act, id. ch. 258, and, in counts seven through nine, state tort law prohibiting assault and battery, false arrest, and false imprisonment. Counts five through eight were explicitly against Walker in his individual capacity and counts one, two, and nine might also fairly be read to assert claims against Walker individually.

Approximately one month later, on September 5, Walker filed a Rule 12(b)(6) motion to dismiss count three — Chute's state Tort Claims Act count — and an answer to the complaint. In neither filing did Walker object to the manner in which he had been served or otherwise purport to limit the appearance by his counsel. On the next day, September 6, the city, and all of the other defendants, including Walker, in their official capacities only, filed a motion to dismiss counts two through four and an answer to the complaint. Chute did not respond to any of these filings.

On February 15, 2001, the district court dismissed Chute's complaint, in its entirety and with prejudice. The court based its dismissal on the official capacity defendants' September 6 motion to dismiss counts two through four, which the district court incorrectly characterized as a motion to dismiss "all" counts other than count one (the § 1983 claim). The district court dismissed count one once it dismissed all of the other counts because it characterized count one as derivative of those other counts.

Almost two weeks later, on February 28, Chute filed a motion for relief from final judgment, under Fed.R.Civ.P. 60(b), arguing (1) that Walker had never, in his individual capacity, moved to dismiss,² and (2) that the official capacity defendants' motion to dismiss only sought dismissal of counts two through four. Chute's counsel admitted having failed to respond to the official capacity defendants' motion to dismiss, but argued that the motion did not seek dismissal of any counts against the individual capacity defendants and that it did not even seek dismissal of all counts against the city and the official capacity defendants.

Without addressing Chute's claim that no party had ever filed a motion to dismiss all counts against the individual capacity defendants, all defendants responded to Chute's 60(b) motion by arguing that Chute's counsel had not provided a legally sufficient excuse for failing to respond to the earlier-filed motions to dismiss counts two through four and count three.

Around this time, Chute's counsel withdrew and new counsel appeared for him. Chute's new counsel, who represents him on appeal, waived the portion of Chute's 60(b) motion that sought vacation of the dismissal of the claims against the city and all official capacity defendants; he only sought vacation of the judgment dismissing counts one, two, and five through nine, against the individual capacity defendants. Counsel explained that neither Walker, nor any of the "unknown officers," in their individual capacities, had ever filed a motion to dismiss these counts and that there was no basis for a sua sponte dismissal.

On June 12, 2001, the district court entered an order deferring its ruling on Chute's 60(b) motion and inviting him to show good cause for relief from judgment. The district court reasoned that it properly dismissed Chute's complaint, in its entirety, because the complaint did not assert any individual capacity claims. This was not so. The district court also offered a new justification for dismissal: it said that Chute had never served Walker with process in his individual capacity and that Walker had only participated in the litigation in his official capacity.

Chute's new counsel accepted the district court's invitation to show cause and filed a memorandum stating that Chute's complaint did, in fact, assert counts against Walker individually. In response to the district court's insufficient service rationale, the memorandum noted that, contrary to the district court's June 12 conclusion, separate counsel had represented Walker in his individual capacity. Chute also explained that Walker, in his individual capacity, had not moved to dismiss the entire complaint and that Walker had waived any objection to service of process by not objecting in his answer.

Again, this time in response to Chute's memorandum to show cause, Walker advanced the inapposite argument that Chute's counsel had failed to provide a legally sufficient excuse for failing to respond to the earlier-filed motion to dismiss counts two through four. Walker argued, without ever addressing Chute's claim that no motion to dismiss all counts against Walker individually had ever been filed, and without rebutting Chute's claim that Walker had waived any service of process objection, that Chute's failure to respond to the earlier-filed motions to dismiss did not constitute excusable neglect.

Finally, on July 30, 2001, the district court denied Chute's 60(b) motion. The district court deleted its previous conclusion that Walker had only been represented by a single attorney, but noted that Walker's attorney had never claimed that he had been authorized to represent Walker individually. The district court, in defending its dismissal of the individual capacity claims against Walker, relied on its view that Walker had never been served in his individual capacity.

II.

We review de novo a district court's dismissal of a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6).³ Clorox Co. P.R. v. Proctor & Gamble Commercial Co., 228 F.3d 24, 30 (1st Cir.2000).

Here, the district court dismissed Chute's complaint sua sponte. The complaint set out nine counts against several different defendant...