Fitzgerald v. Town of Kingston, Civ.A. 96-10666-MEL.

• Decision Date: 25 June 1998
• Docket Number: No. Civ.A. 96-10666-MEL.,Civ.A. 96-10666-MEL.
• Citation: Fitzgerald v. Town of Kingston, 13 F.Supp.2d 119 (D. Mass. 1998)
• Parties: David D. FITZGERALD and Cynthia A. Fitzgerald, d/b/a Kingston Coach, Plaintiffs, v. TOWN OF KINGSTON and Michael Decapua, Defendants.
• Court: U.S. District Court — District of Massachusetts

Page 119

13 F.Supp.2d 119

David D. FITZGERALD and Cynthia A. Fitzgerald, d/b/a Kingston Coach, Plaintiffs, v.TOWN OF KINGSTON and Michael Decapua, Defendants.

No. Civ.A. 96-10666-MEL.

United States District Court, D. Massachusetts.

June 25, 1998.

John T. Landry, Glynn & Landry, Braintree, MA, for plaintiffs.

Joseph L. Bierwirth, Hemenway & Barnes, Boston, MA, Robert P. Sherman, Joseph C. Marrow, Hutchins, Wheeler & Dittmar, Boston, MA, John J. Davis, Elizabeth M. Fahey, Morrison, Mahoney & Miller, for defendants.

MEMORANDUM AND ORDER

LASKER, District Judge.

This case arises from former Town of Kingston Police ChiefMichael DeCapua's temporary suspension of plaintiffDavid Fitzgerald's license to operate a taxi cab.Fitzgerald presses two claims under 42 U.S.C. § 1983: first, that DeCapua failed to provide him with notice and a hearing prior to the suspension (Count I), and second, that the process afforded him was constitutionally flawed because it involved an ex parte receipt of information about his driving record by the Town's Board of Selectmen(Count III).Fitzgerald also asserts defamation claims stemming from alleged statements by DeCapua related to the suspension and subsequent events (Count II).Finally, Fitzgerald's wife sues DeCapua under state law for intentional interference with contractual relations (Count IV).DeCapua and the Town move for summary judgment on all counts.The motions are granted.

I.

In March and early April, 1993, Fitzgerald and his wife Cynthia owned and operated the Kingston Coach taxi cab business in Kingston, Massachusetts.Each was licensed by the Town of Kingston to operate a taxi.Fitzgerald was also a Town official at the time, serving as Chairman of the Board of Public Health.DeCapua was the Town's Acting Chief of Police.

In late March, 1993, DeCapua was approached by Daniel Sapir, a local reporter.Sapir asked DeCapua whether he was aware of two recent automobile accidents involving Fitzgerald.He also informed DeCapua that he and Fitzgerald were opposing one another in a local political race.DeCapua answered that he had not been aware of the accidents, but would look into them.DeCapua subsequently interviewed both Fitzgerald and the mother of a child injured in the second of the two accidents.

DeCapua's investigation revealed that on March 22, 1993, Fitzgerald had been involved in a motor vehicle accident in Kingston, while he was operating a Kingston Coach taxi.DeCapua also learned the undisputed facts that two days after the accident, on March 24, 1993, in Pembroke, the vehicle Fitzgerald was driving collided with an oncoming vehicle in the other driver's lane, and that several of Fitzgerald's passengers were injured.One passenger, a child, required hospitalization and reconstructive surgery on his face.

DeCapua states that Fitzgerald "indicated" to him during an interview that both of the March accidents were Fitzgerald's fault.Fitzgerald firmly denies either that he accepted responsibility for the accidents, or that he actually was responsible.

Following DeCapua's inquiry of her, the mother of the child who required surgery submitted a written statement to the police detailing the seriousness of her son's injuries.She also reported the "erratic" manner in which Fitzgerald had driven up her driveway when picking up her son just prior to the accident.

On April 6, 1993, upon completion of his investigation, DeCapua notified Fitzgerald by letter that, pursuant to Section 31 of the Town of Kingston Regulations for the Operation of Taxis, he was suspending Fitzgerald's taxi license for a period of 30 days.The letter stated:

This suspension results from the motor vehicle accidents on March 2[2] and March 24, 1993, wherein you were cited or admitted fault on both occasions.Further, the March 24, 1993, accident in Pembroke resulted in treatment or hospitalization of several minors you were transporting.These accidents as well as statements of witnesses describing your driving habits cause me serious concern as to your suitability to drive for hire in Kingston.¹

Section 31 of the taxi regulations state that "any driver's license granted under the ... regulations may be suspended or revoked by the Chief of Police or by the Board of Selectmen at any time for cause."DeCapua's letter further informed Fitzgerald of his right to appeal the suspension to the Board of Selectmen.Fitzgerald did appeal to the Board, and subsequently appeared, with counsel, at a hearing before the Board on April 20, 1993.At the conclusion of the hearing, the Board voted to take the matter under advisement.

On April 23, 1993, in response to an oral request by Board Chairman Ronald Maribett, DeCapua wrote a letter to Maribett in which he provided what he called a "synopsis of Mr. Fitzgerald's known driving record."²DeCapua did not represent that he had searched all available sources of driving record information; he merely reported on "known" incidents.Neither DeCapua nor the Board ever informed Fitzgerald or his attorney that DeCapua had, at Maribett's request, furnished the synopsis.

Fitzgerald complains that he should have had an opportunity before the Board to rebut the assertions made in DeCapua's letter.He contends that the assertions were false, and that had he had a chance, his rebuttal would surely have been effective, considering what he claims to be his "real" driving record — a Department of Motor Vehicles"record."The DMV "record" is not at all consistent with the DeCapua letter, and in fact contains considerably fewer entries.

Although Fitzgerald's prospects for rebutting the DeCapua letter are inconsequential (see determination below that receipt of the letter was not unconstitutional), because counsel relied so heavily on it at oral argument, it is worth noting that the DMV record in no way raises doubt as to the accuracy of the information DeCapua provided to the Board.Fitzgerald did not file an affidavit or other explanation of the DMV's record-keeping procedures or accuracy.Moreover, the fact that the DMV record fails to note even the March, 1993 accidents diminishes any authority one might be inclined to assign such an agency's records.

On May 3, 1993, the Board informed Fitzgerald that it had found sufficient cause to support DeCapua's 30-day suspension.It further stated that its vote "was based on information provided at [the April 20th hearing]."

* * * * * *

DeCapua acknowledges that on some unspecified date, he told Kimberly Keyes, a reporter for the Kingston Reporter, that:

he had suspended Fitzgerald's taxi license for thirty days;

he based the suspension on public safety concerns after conducting an investigation into two recent automobile accidents;

Fitzgerald was cited for the March 24, 1993 accident, on a charge of failure to keep to the right;

at the time of the second accident, Fitzgerald was operating a van which he was driving as a limousine;

an eight-year old boy underwent reconstructive surgery to his face as a result of the second accident;

two days before the second accident, Fitzgerald was involved in a rear-end collision while operating a vehicle registered with the Town as a taxi;

Fitzgerald was not cited for the first accident, but had indicated to DeCapua that he was at fault;

Clive Beasley informed him about the two accidents; and

Daniel Sapir provided additional information to police.

Fitzgerald does not dispute the veracity of what was said to Keyes, except for the statement that Fitzgerald had indicated to DeCapua that he was at fault for the first accident.

The subsequent events concern what Chief DeCapua states that he observed at approximately 7:39 p.m. on the evening of April 7, 1993.According to DeCapua, while traveling in an unmarked police car, he observed what he perceived to be a white male who was short and balding, with grey, fuzzy hair, operating a Kingston Coach taxi.It is undisputed that such a description matches that of Fitzgerald.DeCapua says that at the time he observed the taxi speeding, and promptly clocked it at 45 m.p.h. in a 30 m.p.h. zone.³DeCapua then immediately directed a Sergeant Schilling to go to the Fitzgerald home to discuss the speeding.Schilling did so, and met Cynthia Fitzgerald at her door.Mrs. Fitzgerald has blonde hair.She told Schilling that she, rather than her husband, had been driving the car at the time in question.No charges or citations were brought against either husband or wife.At approximately 8:05 p.m., Fitzgerald himself telephoned the police station, and stated, among other things, that he felt he had been harassed and would soon be filing a law suit.

Directly after the above events, DeCapua radioed his observations to the police dispatcher on duty, Susan Macy.He asked Macy to make a record of his observations and the subsequent events — that is, to complete a form known as the "police log."The form, Defendants' Exhibit I, contains a "narrative report"section which DeCapua agrees accurately reflects what he told Macy to include.It also contains a field entitled "incident narrative," which reads "viol. bylaw/ordinance."No one disputes that this means "violation of a by-law or an ordinance."DeCapua denies that he ever directed Macy to make the entry in the "incident narrative" field.He further denies that he told Macy to complete the "action taken" field with the words "departmental action taken," which DeCapua says was undoubtedly a reference to Schilling's brief investigation.

Fitzgerald argues that DeCapua's testimony that he directed the making of the log entry should be Interpreted as an admission that DeCapua specifically told Macy to write the words "viol. bylaw/ordinance" in the "incident narrative" field.The argument is without merit.DeCapua's having directed Macy to complete a log form simply does not give rise to an inference that he told her precisely what to put in every field on the form.Considering both DeCapua's firm...