Demayo v. Nugent, Civil Action No. 06-11510-WGY.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtYoung
Citation475 F.Supp.2d 110
PartiesChristopher DeMAYO, pro se, Plaintiff, v. Robert NUGENT and Jeffrey Lugas, Defendants.
Docket NumberCivil Action No. 06-11510-WGY.
Decision Date21 February 2007
475 F.Supp.2d 110
Christopher DeMAYO, pro se, Plaintiff,
Robert NUGENT and Jeffrey Lugas, Defendants.
Civil Action No. 06-11510-WGY.
United States District Court, D. Massachusetts.
February 21, 2007.

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Eugenia M. Carris, Barbara Healy Smith, United States Attorney's Office, Teresa J. Walsh, Office of the Attorney General, Boston, MA, Joseph P. Kittredge, Rafanelli & Kittredge, P.C., Acton, MA, Brian J. Rogal, Law Offices of Brian Rogal, Needham, MA, for Defendants.


YOUNG, District Judge.

This case presents the issue of whether two state police officers, acting under the color of federal law, ought be held individually liable for an alleged violation of the Fourth Amendment when they conducted a warrantless protective sweep of the plaintiff's house during a controlled delivery. The issue raises difficult and antipodal questions of the constitutional protection of the home and the safety of law enforcement officers acting in the good faith prosecution of their duties. The gravity of the issue weighed in favor of taking the matter under advisement.

Upon review of and reflection on this sparse record, however, any equiproportional tension is absent on the facts presented to the Court. Balancing the constitutional protections at stake here against the empty justification provided is like comparing "Hyperion to a satyr." Nevertheless, judgment must enter for the defendants. Here's why:


A. Procedural Posture

This case comes before the Court after significant procedural traffic. The plaintiff Christopher DeMayo ("DeMayo") initiated this action pro se in Massachusetts Superior Court sitting in and for the County of Middlesex on May 5, 2006, asserting violations of the federal and state constitutions, state statutory law, and state common law. Def. Notice of Removal [Doc. No. 1], Ex. 1 at 1 ("Compl."). The original defendants included state police officers Robert Nugent ("Nugent") and Jeffrey Lugas ("Lugas"), the Massachusetts State Police, and federal Drug Enforcement Agency agent Michael McCormick ("McCormick"). Id.

On August 25, 2006, McCormick removed the state lawsuit to this federal district court pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2679, that provided this Court with jurisdiction under the general removal statute, 28 U.S.C. § 1441(b). Id. at 1-2. In addition, the United States substituted itself for McCormick in his individual capacity for any tortious activity, though not for constitutional violations, pursuant to 28 U.S.C. § 2679(d)(1). Notice of Substitution [Doc. No. 2]. Three days later, Nugent and Lugas (collectively "the defendants") answered the complaint and raised twelve affirmative defenses, including qualified immunity. Defs. Answer [Doc. No. 4] ("Answer") at 7-8.

On September 7, 2006, the Massachusetts State Police entered a motion to remand the state statutory claim to state court. Def. Mot. to Remand [Doc. No. 5]. This Court allowed the remand of that

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claim after DeMayo failed to oppose the motion. This Court entered a second order of remand [Doc. No. 13] on November 15, 2006 — effectively remanding all remaining state law claims. In addition, on November 2, 2006, the United States and McCormick filed a motion to dismiss [Doc. No. 11], which this Court allowed by electronic order. Thus, as a result of this procedural activity, there remains before this Court only the alleged violation of DeMayo's Fourth Amendment rights under the United States Constitution asserted against Nugent and Lugas.

On November 17, 2006, DeMayo filed a motion for partial judgment on the pleadings as to liability. Pl. Mot. for Partial Summary Judgment [Doc. No. 15]. De-Mayo argued in his memorandum in support of this motion that the Court could, based solely on the pleadings and the admissions made by Nugent and Lugas in public records, hold them liable for their warrantless entry into his home. Pl. Mem. in Support of Mot. for Partial Judgment on the Pleadings [Doc. No. 16] ("Pl.Mem.") at 1. Nugent and Lugas opposed the motion by arguing three points: that the evidence proved no liability; that the pre-discovery evidence was insufficient to determine liability; and, even if the evidence was sufficient, qualified immunity bars any liability. Defs. Mem. in Opp'n to Motion for Partial Judgment on the Pleadings [Doc. No. 18] ("Defs.Mem.") at 1, 3-4, 9-10. This Court held oral argument on the motion on December 20, 2006 and took the matter under advisement. At the motion session, defense counsel was invited to supplement the opposition brief with any further factual support. To this date, neither Nugent nor Lugas have done so. It is this motion that the Court addresses today.

B. Uncontested and Properly Considered Facts

The facts germane to the issue before the Court are few, straightforward, and derived completely from public records that would be admissible under Federal Rule of Evidence 803(8).

On the morning of Thursday, May 6, 2004, members of the federal Drug Enforcement Administration ("DEA") Task Force at Logan Airport ("Task Force") received information from the Massachusetts State Police about a suspicious package held by the United Parcel Service ("UPS"). Pl. Mem., Ex. A ("Affidavit") at 1. Nugent, a Massachusetts state police officer assigned to the federal Task Force, along with other members of the Task Force responded to the information and immediately went to the UPS facility. Id.

The suspicious package was a brown cardboard box addressed to "Debbie Moore C/O Chris Demayo" and listed De-Mayo's address, as well as the name and California address of the sender. Id. at 2; Compl., Ex. D ("DEA Report") at 1, 6. The package was sent "UPS Next Day Air" and was scheduled for delivery the previous day, May 5, 2004. DEA Report at 1. The cardboard box contained excessive tape and a "no signature required" notation. Id. In addition, the state of the sender, California, is considered a narcotics source state. Affidavit at 2. Finally, a K-9 drug sniffing dog arrived and alerted to the package. DEA Report at 1-2.

Based on these indicators, a DEA agent, acting undercover as a UPS employee, called the sender and informed her of a "mix up" and presented her with the option to have someone pick up the package or to have UPS deliver it. Affidavit at 2. The sender stated, "I called several times about this package, it is a very important package," and, "Met me tell you, the package is for my sister who has terminal cancer and she will not be coming out anywhere to pick up the package." Id. at 3. The DEA agents decided to conduct a controlled delivery. See DEA Report at 2.

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The controlled delivery occurred on the same day at approximately 11:00 AM. Id. at 2; Affidavit at 3. A DEA agent, acting undercover as a UPS employee, rang the doorbell at DeMayo's house. DEA Report at 2; Affidavit at 3. A white male appeared and identified himself as Gary DeMayo, the father of the intended recipient of the package. DEA Report at 2-3; Affidavit at 3. The agent informed him that no signature was required but asked him to sign a signature sheet anyway. DEA Report at 2; Affidavit at 3. DeMayo's father agreed and began to comply. DEA Report at 2-3; Affidavit at 3. While DeMayo's father was signing his name, the DEA agent gave a pre-arranged signal for the arrest team to approach. DEA Report at 3; Affidavit at 3.

The events that followed are quoted directly from the DEA Report on the incident:

Gary DEMAYO was standing in the threshold of the house holding the front door open when members of the team approached with their badges displayed. TFOs Nugent and Lugas arrived to Gary DEMAYO first and passed by him in the open doorway of the residence and conducted a brief protective sweep of the house lasting approximately fifteen to twenty seconds. During the protective sweep, TFO Lugas encountered a frail looking woman exiting a bathroom on the second floor of the house. (Note: The woman was later identified to be Debbie MOORE, a listed recipient on the suspect parcel). TFO Lugas identified himself as a police officer, related that the officers were conducting a criminal investigation and then returned to the front of the house where the officers were interviewing Gary DEMAYO.

DEA Report at 3.

Prior to executing the controlled delivery, the officers involved did not seek or obtain a search warrant for the suspect package,1 a search warrant for the premises, or an arrest warrant for anyone living at the premises. Compl. ¶¶ 19-21; Answer ¶¶ 19-21.


A. Standard of Review

The standard for evaluating a judgment on the pleadings motion under Federal Rule of Civil Procedure 12(c) is essentially the same as that for deciding a Rule 12(b)(6) motion to dismiss. Pasdon v. City of Peabody, 417 F.3d 225, 226 (1st Cir. 2005). Courts "view the facts contained in the pleadings in the light most flattering to the nonmovants ... and draw all reasonable inferences therefrom in their favor." Aponte-Torres v. University of Puerto Rico, 445 F.3d 50, 54 (1st Cir.2006) (citation omitted). A court may enter judgment "only if the uncontested and properly considered facts conclusively establish the movant's entitlement to a favorable judgment." Id. Courts may "draw upon documents annexed to the ... complaint or incorporated into it, as well as matters subject to judicial notice." Id.; R.G. Financial Corp. v. Vergara-Nunez, 446 F.3d 178, 182 (1st Cir.2006). "[B]ald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like" are not credited. Aponte-Torres, 445 F.3d at 54 (citation omitted).

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B. Merits of the Fourth Amendment Claim

DeMayo asserts that the protective sweep conducted by Nugent and Lugas violated his rights under the Fourth Amendment of the United States Constitution. Compl. §§ 52-57. DeMayo pursues this claim as a federal cause of action under Bivens v. Six Unknown Named...

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