Hayes v. Town of Dalton

Decision Date17 February 2022
Docket Number3:21-cv-30055-KAR
PartiesPATRICIA HAYES, as Executor of the Estate of Sherilyn Hayes, Plaintiff, v. TOWN OF DALTON, JEFFREY E. COE, Dalton Chief of Police, in his individual and official capacities, JOHN MARLEY, Dalton Police Officer, in his individual and official capacities, FRANK M. SPETH, III, Dalton Dispatcher, in his individual and official capacities, DYLAN BENCIVENGA, Dalton Police Officer, in his individual and official capacities, TOWN OF PERU, KYLE NUTTING, Peru Police Officer, in his individual and official capacities, Defendants.
CourtU.S. District Court — District of Massachusetts

MEMORANDUM AND ORDER REGARDING MOTIONS TO DISMISS BY DEFENDANTS DALTON POLICE OFFICER JOHN MARLEY, TOWN OF PERU AND PERU POLICE OFFICER KYLE NUTTING IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES

KATHERINE A. ROBERTSON, U.S. MAGISTRATE JUDGE

I. Introduction

In the aftermath of her daughter Sherilyn's tragic suicide, Plaintiff Patricia Hayes ("Plaintiff") filed suit seeking damages from the Town of Dalton and members of its police department, as well as from Sherilyn's fiancé, Kyle Nutting, who was employed as a police officer by the Town of Peru, and the Town of Peru (collectively, "Defendants"). Plaintiff alleges that Defendants were notified that Sherilyn intended to kill herself and their failure to intervene to try to prevent her death violated Sherilyn's civil rights and various state laws. Now pending before the court are the motions to dismiss filed by Dalton police officer John Marley (Dkt. No. 20), the Town of Peru, and Nutting in his official capacity and personal capacity (Dkt. Nos. 39, 41). The parties have consented to this court's jurisdiction (Dkt. No. 45). See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. For the reasons set forth below, the court ALLOWS in part and DENIES in part Marley's motion, ALLOWS the motion of the Town of Peru and Nutting in his official capacity, and DENIES in part Nutting's motion to dismiss in his individual capacity.

II. Background

Because the court is ruling on motions to dismiss, the facts are recited in the light most favorable to Plaintiff, the non-moving party. See Gargano v. Liberty Int'l Underwriters, Inc., 572 F.3d 45, 48 (1st Cir. 2009) (citing Fitzgerald v. Harris, 549 F.3d 46, 52 (1st Cir. 2008)). Tyler Hamilton called the Dalton police department's communications center on November 23, 2019, at approximately 6:16 P.M. to report that his "buddy [Nutting] and his girlfriend [Sherilyn] just got into an argument" concerning Nutting's alleged infidelity (Dkt. No. 1 ¶¶ 9, 11, 16, 20). Hamilton notified Dalton police dispatcher Defendant Frank M. Speth, III, that Nutting was a Peru police officer who had left his North Street residence and was having dinner with the Peru police chief, but Sherilyn remained at the apartment that she shared with Nutting (Dkt. No. 1 ¶¶ 12, 14, 20, 23, 24). Hamilton indicated that Nutting "had '. . . been calling [him] and texting [him] saying that he's worried about [Sherilyn]'" who had threatened suicide during their argument (Dkt. No. 1 ¶¶ 18, 21). Hamilton requested a "wellness check" and urged the police to "hurry" because Sherilyn had failed to respond when Hamilton knocked at her door (Dkt. No. 1 ¶¶ 15, 16, 17, 20). After Hamilton reaffirmed that Sherilyn said she was going to harm herself, Speth told Hamilton that he would dispatch officers to her residence (Dkt. No. 1 ¶¶ 22, 23).

At 6:18 P.M., about two minutes after Hamilton's call came into the communications center, Speth dispatched Dalton police officers, Defendants Marley and Bencivenga, to Sherilyn's and Nutting's North Street residence (Dkt. No. 1 ¶¶ 24, 25). Speth's broadcast identified the call as a "'domestic'" and asked the responding officers to call the communications center for additional information (Dkt. No. 1 ¶ 26). Speth later indicated that he did not want to provide all of the information about a "domestic dispute" involving a police officer over an open radio channel (Dkt. No. 1 ¶ 28).

Marley told Speth that he was at the Dalton Police Department and would speak with Speth in the communications center (Dkt. No. 1 ¶ 27). During his conversations with Speth, Marley allegedly learned that Nutting was a Peru police officer and that Hamilton had requested a well-being check because Sherilyn had threatened suicide (Dkt. No. 1 ¶¶ 30, 31).[1] According to the Dalton police department's rules and regulations, any call for service that included a suicide threat required an immediate response (Dkt. No. 1 ¶ 32).

At 6:21 P.M., Marley called Bencivenga over the radio and instructed him to "'[j]ust stand by in the area'" of Sherilyn's apartment (Dkt. No. 1 ¶ 34). Marley indicated that he was going to make a phone call and would "'update [Bencivenga] in a minute'" (Dkt. No. 1 ¶ 34).

Marley attempted to reach Nutting by phone (Dkt. No. 1 ¶ 39). At 6:24 P.M., Marley called Peru police chief Jeffrey Henault in an attempt to determine Nutting's whereabouts (Dkt. No. 1 ¶ 40). Nutting spoke to Marley on Henault's personal cell phone (Dkt. No. 1 ¶ 41). According to Marley, Nutting told him that during his and Sherilyn's "verbal argument," she made "a comment about wanting to hurt herself," but Nutting did not "think she was going to hurt herself" and "there was no need for police to conduct a well-being check based on [her] statements" (Dkt. No. 1 ¶¶ 42, 46). Marley stated that Nutting told him that Sherilyn was "just upset" (Dkt. No. 1 ¶ 42).[2] Later, Marley allegedly indicated that Nutting told him that he believed Sherilyn "'wanted to die'" (Dkt. No. 1 ¶ 48).

Based on Nutting's "opinion" that a well-being check was not necessary, Marley neither responded to Sherilyn's apartment nor directed Bencivenga to respond (Dkt. No. 1 ¶ 52). Instead, Marley called Hamilton at 6:29 P.M. (Dkt. No. 1 ¶ 53). Hamilton told Marley that he had knocked on Sherilyn's door for about twenty minutes, but she had failed to answer (Dkt. No. 1 ¶ 54). In response to Marley's question, "so what you're asking us to do . . . is to go there and speak to her to make sure she's okay?", Hamilton responded, "I just don't want it to interfere with his [Nutting's] career" (Dkt. No. 1 ¶ 56). Marley continued:

[h]e's [Nutting's] not calling and asking us to do this. So you're the caller. So for us to go there and either force our way into that home or to take her into custody, we need someone to tell us that that's what they're asking us to do. . . . [I]t just . . . doesn't work that way with us. So we need you to INAUDIBLE you want us to go there and check on her or you're going to use some other means yourself to do that or we're going to go there and she doesn't answer the door, we're going to either break the door down or we're going to get . . . a key and go in and talk to her.[3]

(Dkt. No. 1 ¶ 56). Hamilton agreed to return to Sherilyn's residence (Dkt. No. 1 ¶ 56).

After Marley's conversation with Hamilton, Marley used his personal cell phone to call Bencivenga and told him to remain outside the apartment complex (Dkt. No. 1 ¶ 62). Neither Marley nor Bencivenga responded to Sherilyn's residence at that time (Dkt. No. 1 ¶ 63).

Notwithstanding the lack of a response by the Dalton police, Speth closed out Hamilton's call for service at 6:50 P.M. (Dkt. No. 1 ¶ 69).

At 6:40 P.M., Hamilton informed Marley that he and Nutting were going to the apartment to "check on" Sherilyn (Dkt. No. 1 ¶¶ 64, 65). Hamilton and Nutting discovered Sherilyn at approximately 7:00 P.M. and called the Dalton police to request emergency assistance "for a person who had just taken her life" (Dkt. No. 1 ¶¶ 70, 71).

An anonymous letter to a member of the Dalton Select Board about Dalton police officers' lack of response to Hamilton's call for service prompted the town to hire Tewksbury's former police chief to conduct an investigation (Dkt. No. 1 ¶¶ 76, 80). Plaintiff alleges that Marley "attempted to intimidate other officers from cooperating with the investigation" (Dkt. No. 1 ¶¶ 80, 81).

The Dalton Select Board voted to terminate Marley's employment as a police officer in or about May 2020 (Dkt. No. 1 ¶ 77). The board's decision was affirmed by an arbitrator in April 2021 (Dkt. No. 1 ¶ 78).[4]

Plaintiff's complaint, which she filed on May 7, 2021, makes the following claims against the Town of Dalton, Dalton police personnel, Nutting, and Nutting's employer, the Town of Peru: denial of due process, in violation of 42 U.S.C. § 1983 (Count I); denial of equal protection, in violation of 42 U.S.C. § 1983 (Count II); "failure to protect/violation of 'special duty'/violation of civil rights" (Count III); conspiracy by state actor, in violation of 42 U.S.C. §§ 1985(2) and (3) (Count IV); failure to prevent the § 1985 violation (Count V); gross negligence (Count VI); liability under Mass. Gen. Laws ch. 258 against the Town of Dalton (Count VII); wrongful death, in violation of Mass. Gen. Laws ch. 229, § 2A (Count VIII); and conspiracy, in violation of 42 U.S.C. § 1983 (Count IX).[5] Defendants Marley, the Town of Peru, and Nutting have moved to dismiss the claims against then pursuant to Fed.R.Civ.P. 12(b)(6) (Dkt. Nos. 20, 39, 41). The Town of Peru and Nutting have also moved for entry of final judgments under Fed.R.Civ.P. 54(b) (Dkt. Nos. 39, 41). Plaintiff has opposed the motions (Dkt. Nos. 32, 47, 49).[6]

III. Standard of Review

"A Rule 12(b)(6) motion to dismiss challenges a party's complaint for failing to state a claim." Ngomba v Olee, CIVIL ACTION NO. 18-11352-MPK, 2020 WL 107969, at *2 (D. Mass. Jan. 9, 2020). In ruling on the motion, a court must "treat all well-pleaded facts in the complaint as true and draw all reasonable inferences in favor of the plaintiff." In re Fin. Oversight & Mgmt....

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