Gerakaris v. Champagne, Civil A. No. 94-12341-RGS.

• Decision Date: 30 January 1996
• Docket Number: Civil A. No. 94-12341-RGS.
• Citation: 913 F. Supp. 646
• Parties: Andrew GERAKARIS v. Robert CHAMPAGNE, Martin Cohan, Charles Werner, J. Stephen Begley, Dean Armstrong, Charles Reardon, Harry Coppola, and Nicholas Mavroules.
• Court: U.S. District Court — District of Massachusetts

913 F. Supp. 646

Andrew GERAKARIS v. Robert CHAMPAGNE, Martin Cohan, Charles Werner, J. Stephen Begley, Dean Armstrong, Charles Reardon, Harry Coppola, and Nicholas Mavroules.

Civil A. No. 94-12341-RGS.

United States District Court, D. Massachusetts.

January 30, 1996.

COPYRIGHT MATERIAL OMITTED

Thomas S. Francis, The Law Offices of Thomas S. Francis, Boston, MA, for Andrew Gerakaris.

Andrew Gerakaris, Peabody, MA, pro se.

Daniel B. Kulak, Office of City Solicitor, Peabody, MA, for Robert Champagne, Martin Cohan, Charles Werner, Stephen Begley, Officer Armstrong, City of Peabody.

Elizabeth M. Fahey, Joseph L. Bierwirth, Morrison, Mahoney & Miller, Boston, MA, for Charles Reardon and Harry Coppola.

Michael L. Altman, Charles J. Speleotis, Rebecca L. Tepper, Rubin & Rudman, Boston, MA, for Nicholas Mavroules.

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS

STEARNS, District Judge.

The plaintiff, Andrew Gerakaris, is the erstwhile son-in-law of defendant Nicholas Mavroules, a former Mayor of Peabody and United States Congressman. Following his separation from Mavroules's daughter, Gerakaris became a cooperating witness in an FBI investigation into Mavroules's official conduct. In this civil action, Gerakaris alleges that:

as a result of Gerakaris's knowledge of Mavroules's criminal activities and his cooperation with federal law enforcement officers investigating Mavroules, Mavroules engaged in, and conspired with the other defendants to engage in, a systematic campaign to threaten, intimidate, and coerce Gerakaris to prevent him from testifying freely, fully, and truthfully against Mavroules.

Second Amended Complaint, at 3. The Second Amended Complaint is in three counts alleging violations of 42 U.S.C. § 1983, 42 U.S.C. § 1985(2), and M.G.L. c. 12 § 11I. Jurisdiction is based on the federal claims presented in counts I and II.

FACTS

The facts alleged in the Second Amended Complaint, which for present purposes must be deemed true, are these. In May of 1991, seeking to dissuade Gerakaris from cooperating in the Mavroules investigation, the defendants embarked on a concerted campaign of intimidation. On November 27, 1991, Gerakaris visited his mother in Peabody. A restraining order was in effect enjoining Gerakaris from approaching the residence of his ex-wife (Mavroules's daughter). At approximately 2:30 p.m., defendants Martin Cohan and Dean Armstrong, who are Peabody police officers, arrested Gerakaris at his mother's home for allegedly violating the restraining order.¹ Gerakaris informed the officers that he suffered from several illnesses, including Krohn's Disease, for which he was taking prescription medicines. The officers refused to permit Gerakaris to retrieve his medications before transporting him to the Peabody police station.

Defendants Cohan, Armstrong, Chief Robert Champagne, Stephen Begley and Charles Werner (all Peabody police officers), were present at Gerakaris's booking. Gerakaris again complained about his medical and dietary needs. The officers deliberately delayed Gerakaris's booking until after the Peabody District Court had closed. Gerakaris was as a result denied an immediate appearance before a judge. Bail was set at $15,000 later that night at the station by a Clerk Magistrate associated with Mavroules.

Gerakaris was unable to make bail. Champagne told Gerakaris that he had informed defendant Charles Reardon, the Sheriff of Essex County, and/or defendant Harry Coppola, a Special Sheriff and Reardon's chief assistant, that Gerakaris would be sent to the Middleton House of Correction. Reardon and Coppola were responsible for the administration at Middleton. Both were friends of Mavroules and knew Gerakaris because of his past family relationship with Mavroules (and because Gerakaris had at one time worked with them), and both were aware of Gerakaris's medical condition.

Gerakaris was transported to Middleton at 8:00 p.m. on November 27, 1991, and remained there until approximately noon on November 29, 1991. Gerakaris alleges that, "upon information and belief, Reardon and Coppola, with deliberate indifference to Gerakaris's rights, directly or indirectly, directed certain jail personnel to abuse and harass him...." Second Amended Complaint, at 7. The alleged abuse included the following: requiring Gerakaris to wear jail issue pants, a short sleeve shirt, and sandals, while other prisoners were allowed to wear warm clothing; placing Gerakaris in a small, cold solitary confinement cell that lacked a mattress, pillow, or blanket; denying Gerakaris's request for additional blankets or clothing; denying him visitation rights by misleading visitors about his location; denying him his prescription medication; and providing Gerakaris with no food during his forty hour incarceration other than a plate of mashed potatoes soaked in urine.

On November 29, 1991, Gerakaris was taken to Peabody District Court. In setting a $2,500 bail, the judge relied in part on a false written statement by Werner accusing Gerakaris of an attempted arson. The judge ordered Gerakaris not to travel to Massachusetts without prior court permission. The judge also ordered the Peabody Police to preserve records of the telephone call of November 27, 1991, allegedly reporting Gerakaris's violation of the restraining order. (The records, if they existed, were destroyed.)

Thereafter, the defendants conspired to cause Gerakaris's bail to be revoked. To that end, in December of 1991, Cohan, Werner, Begley, and/or Champagne, contacted the Aroostock County Maine Sheriff's Department and asked the Sheriff to obtain a warrant to search Gerakaris's residence for illegal drugs and guns. The request was based on an unnotarized copy of a false affidavit reciting "facts" from a year earlier. The defendants further sought permission to be present during the search. Gerakaris alleges "upon information and belief, that Cohan, Werner, Begley, and Champagne requested to be present during the search for the purpose of planting illegal items."

At the time the defendants made their request to the Sheriff, Gerakaris had begun cooperating with federal authorities in the investigation of Mavroules. The Aroostock Sheriff's Department never searched Gerakaris's residence, but in light of the defendants' allegations, the FBI did so, although without finding any illegal items.

On October 15, 1992, Gerakaris appeared in the Peabody District Court on a routine pretrial matter. Mavroules, who at the time was the subject of intense media attention, encouraged reporters to attend the hearing because something "interesting" was going to occur. Gerakaris learned for the first time in court that Werner and Cohan had falsely alleged that he had violated his conditions of bail by traveling to Massachusetts without permission on May 10, 1992, and on September 30, 1992. Gerakaris's bail was not revoked, however, because of the witnesses who claimed to have seen Gerakaris in Massachusetts, only Werner was willing to give a sworn statement. Gerakaris was able to show that at the time of Werner's alleged "sighting," Gerakaris was in a doctor's office in northern Maine.

Gerakaris also alleges that, in part because of this pattern of threats, intimidation, and coercion by defendants, he was forced to enter the Federal Witness Protection Program on December 10, 1992, "at great financial and emotional cost to himself and his family." Second Amended Complaint, at 12.

DISCUSSION

Although Gerakaris alleges a broad and continuing conspiracy involving all of the defendants, the acts alleged in the Second Amended Complaint place the defendants in three distinct groups. The first includes Champagne, Cohan, Werner, Begley and Armstrong, the officers allegedly involved in Gerakaris's illegal arrest and detention; the second includes Reardon and Coppola, who are allegedly responsible for Gerakaris's mistreatment at the Middleton House of Correction; and finally, Mavroules, who allegedly orchestrated the activities of the other defendants.

The first two groups of defendants have filed motions to dismiss that are alternatively styled as motions for summary judgment. As discovery has yet to take place, the motions for summary judgment are premature. (Mavroules has properly filed only a motion to dismiss). I point this out because all of the defendants dispute the substance of the facts alleged in the Amended Complaint. The defendants' claims of qualified immunity, for example, are based in part on Gerakaris's perceived inability to prove facts, such as the "intentionality" of the officers' conduct and the existence of an "affirmative link" between the supposedly inhumane jail conditions and the actions of defendants Reardon and Coppola. At this early stage there is no question but that the allegations of the Amended Complaint are sufficient to describe conduct, if proved, that "violates clearly established statutory or constitutional rights of which a reasonable person would have then known." See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).

Gerakaris argues that the motions filed by the first two groups of defendants, treated as motions to dismiss, suffer from two technical defects. First, he complains that Reardon and Coppola filed their answers to the Second Amended Complaint on July 12, 1995, and their motion to dismiss two days later, while Fed.R.Civ.P. 12(b) requires that "if a defendant decides to assert a Rule 12(b) defense by motion, then he must do so before filing his answer." 5A C. Wright and A. Miller, Federal Practice and Procedure, § 1361 (1990). Second, Gerakaris claims that the first two groups of defendants failed to comply with Local Rule 7.1(A)(2), which requires counsel to confer prior to filing an adversary motion. The defendants have not responded to either argument, but neither warrants much by way of discussion. First, in their answers to the Second Amended Complaint, the defendants...