Crete v. City of Lowell, 04-1891.

• Decision Date: 11 August 2005
• Docket Number: No. 04-1899.,No. 04-1891.,04-1891.,04-1899.
• Citation: 418 F.3d 54
• Parties: Eric R. CRETE, Plaintiff, Appellee/Cross-Appellant, v. CITY OF LOWELL, Defendant, Appellant, Edward Davis III, in his personal capacity and as Superintendent of the Lowell, Massachusetts Police Department; Brian J. Martin, in his official and personal capacities, Defendants, Cross-Appellees, Stephen Ciavola, in his official and personal capacities; Terrance Kane, in his personal capacity; Richard Johnson, Defendants.
• Court: U.S. Court of Appeals — First Circuit

418 F.3d 54

Eric R. CRETE, Plaintiff, Appellee/Cross-Appellant, v. CITY OF LOWELL, Defendant, Appellant, Edward Davis III, in his personal capacity and as Superintendent of the Lowell, Massachusetts Police Department; Brian J. Martin, in his official and personal capacities, Defendants, Cross-Appellees, Stephen Ciavola, in his official and personal capacities; Terrance Kane, in his personal capacity; Richard Johnson, Defendants.

No. 04-1891.

No. 04-1899.

United States Court of Appeals, First Circuit.

Heard June 6, 2005.

Decided August 11, 2005.

Daniel S. Sharp for Crete.

Christine P. O'Connor, City Solicitor, with whom Maria Sheehy, Assistant City Solicitor, was on brief, for City of Lowell.

Before TORRUELLA, LYNCH, and LIPEZ, Circuit Judges.

LYNCH, Circuit Judge.

Two issues are presented by this case, raising claims of negligent hiring by a city. The first is whether the district court was correct in entering summary judgment against plaintiff Eric Crete's federal civil rights claim, under 42 U.S.C. § 1983, that the City of Lowell was deliberately indifferent to Crete's rights when it hired Officer Steve Ciavola in the fall of 1995. Crete says Ciavola used excessive force when he arrested Crete in March of 1999.

The second question, under Massachusetts law, is whether the City's hiring of Ciavola is within the discretionary function exception to the Massachusetts Tort Claims Act, Mass. Gen. Laws ch. 258, § 10(b) (MTCA). Put differently, does the MTCA permit a negligent hiring claim against a city which hires a police officer under the Massachusetts Civil Service System?

We review both issues de novo. The district court was correct to dismiss the section 1983 claim but erred in not dismissing the MTCA claim. We vacate the MTCA verdict and direct entry of judgment for the City.

I.

We recite the facts in the plaintiff's favor as the summary judgment rule requires. Young v. City of Providence, 404 F.3d 4, 15 (1st Cir.2005).

Steve Ciavola was hired as a police officer with the City in the fall of 1995. In March 1999, Ciavola arrested Crete and during the course of the arrest Ciavola "threw [Crete] down onto the pavement" and "pushed [his] head onto the sidewalk three or more times." Crete alleged that he never "threatened or physically resisted" Ciavola in any way, so as to justify Ciavola's response.

Crete filed suit in federal court claiming violations of the federal constitution and Massachusetts law. As to Ciavola he alleged excessive force, malicious prosecution, assault and battery, and intentional infliction of emotional distress.¹ As to the City, he alleged two different theories of liability attacking the City's decision to hire Ciavola: (1) liability under 42 U.S.C. § 1983 for failing to adequately screen Ciavola during hiring and (2) liability under the MTCA for negligently hiring Ciavola.

The negligent hiring claim was based on the allegation that the City knew or reasonably should have known that Ciavola had a criminal history, including one conviction for assault and battery, and that the City failed to exercise reasonable care when it hired Ciavola as a police officer. As a result of the negligent hiring, Crete alleged that he suffered injuries at the hands of Ciavola and incurred expenses due to those injuries.

The City filed for summary judgment on both counts. On August 30, 2002, the district court granted the City and other defendants summary judgment as to the section 1983 claim² and denied summary judgment as to the negligent hiring claim. The MTCA negligent hiring claim proceeded to trial;³ the jury found the City liable and awarded damages of $143,000. This amount was subsequently reduced to $100,000 pursuant to Mass. Gen. Laws ch. 258, § 2.

We describe the undisputed record as to the hiring of Ciavola in the fall of 1995, noting there is no claim that his hiring violated any statute or regulation or did not comply with the City's hiring process in place at that time.

In Massachusetts, hiring of police officers is governed by state civil service laws and regulations. The civil service laws grant and restrict certain types of hiring authority and also set up procedural restrictions. As to substantive restrictions, the statute forbids the hiring of an individual who has been convicted of a crime within one year of the date of hiring. See Mass. Gen. Laws ch. 31, § 50. Nonetheless, the statute grants an exemption from that restriction. If an applicant has been convicted of any offense for which the "sole punishment imposed was (a) a fine of not more than one hundred dollars, (b) a sentence of imprisonment in a jail or house of correction for less than six months, with or without such a fine, or (c) a sentence to any other penal institution under which the actual time served was less than six months, with or without such fine," then the statute expressly gives the hiring authority "discretion" to hire that applicant. Id. Outside of this one-year period, this substantive restriction on the City's exercise of discretion does not apply.⁴ Sergeant Fleming, the director of recruitment and hiring for the City in the fall of 1995, testified that if the background check reveals something about the candidate's past which is not immediately disqualifying (either because the conviction fell outside of the one-year period or because it fell within the exception to the substantive restriction of Mass. Gen. Laws ch. 31, § 50), but is of concern, the appointing authority is allowed to look into the incident further.

There is no dispute that the City ran the required Massachusetts Criminal Offender Record Information (CORI) and the National Criminal Information System (NCIS) inquiries on Ciavola. Ciavola's CORI report revealed two citizen criminal complaints filed against him for assault and battery, arising out of the same incident. In August 1994, one complaint resulted in a misdemeanor assault and battery conviction and a sentence of one year of probation. His probation was terminated four months later in December 1994. The other complaint was dismissed. Thus under the civil service rules, the City was not precluded from hiring Ciavola.⁵ Indeed, as explained later, once the Massachusetts Human Resources Division (HRD)⁶ has certified a candidate on a ranked list, the city will, absent special considerations, ordinarily hire a candidate in rank order from the list.

The hiring process in place during the fall of 1995, the time of Ciavola's hiring, required the appointing authority of the municipality to request a certified list of eligible police officer candidates from the HRD. Mass. Gen. Laws ch. 31, § 6. City Manager Martin, the appointing authority for the City, considered the budget and determined that the City could hire two new police officers and the appropriate request to HRD was made. Upon receipt of such request, the HRD "certif[ied] from the eligible list sufficient names of persons for consideration of their qualifications for appointment by the appointing authority." Id.⁷

In accordance with Mass. Gen. Laws ch. 31, § 25, the City notified the individuals on the HRD list and asked them to pick up an application if they wanted to be considered for the available positions. Ciavola filled out an application. Once the department received the applications, a criminal history check was performed on each applicant. If the applicant was not ineligible under Mass. Gen. Laws 31, § 50 due to disqualifying entries in the report, then a background check was performed.

Michael Farnum, a court prosecutor in Lowell district court who was trained in conducting background checks, conducted Ciavola's background check. Farnum checked Ciavola's past employment and spoke with his references, all of whom were favorable.

Each candidate interviewed for the position. During Ciavola's interview, Officer Fleming made further inquiries into the events surrounding the conviction. Ciavola indicated that he pled guilty because he had no money and he could not afford a lawyer. Fleming followed up the interview with a call to Chief Probation Officer Gary McGee who stated that Ciavola was "level headed and would make an excellent police officer." Fleming noted that "McGee said he normally does not give job references but felt compelled in this situation in order that Ciavola get a fair deal."

Upon conclusion of the entire process, Fleming compiled all the information and made hiring recommendations to Superintendent Davis. Davis accepted the recommendation of Ciavola, and Ciavola was given a provisional offer of employment.⁸

Although the "ultimate selection [for appointment or promotion of civil service officers] is left to the discretion of the appointing authority," Burns v. Sullivan, 473 F.Supp. 626, 631 (D.Mass.1979), offers must be handed out in accordance with an individual's ranking on the list received from HRD unless the City has good reason to offer the appointment to a lower ranking individual. Mass. Gen. Laws ch. 31, § 27. If the City wants to do so, it must "bypass" or "remove" the higher ranking individual. If a candidate is "bypassed," he or she stays on the list, but is not hired for that position because the City has a good and credible reason not to hire the individual at that time. To be "removed" means that the City elects to take the candidate off the list because the City has no intention of ever hiring that person. To bypass or remove, the City must file a list of stated and legitimate reasons with the administrator of the HRD. See id. The administrator has a limited power to accept or reject the reasons given by the City for the bypass. See MacHenry v. Civil Serv. Comm'n, 40 Mass.App.Ct. 632, 666 N.E.2d 1029 (1996). Although the civil service laws cabin the discretion of the City as to which factors can be considered,⁹ the City can "remove" an individual on the list if it concludes the appointment of that person "would be detrimental to the public interest." Massachusetts Human...