Rogan v. Menino

Decision Date19 August 1997
Docket NumberCivil Action No. 97-10417-WGY.
Citation973 F.Supp. 72
PartiesShannon ROGAN, Plaintiff, v. Thomas MENINO, Individually and as Mayor of Boston; Dennis A. DiMarzio, Individually and as Chief Operating Officer of the City of Boston; Paul F. Evans, Individually and as Police Commissioner of the City of Boston; Robert Colburn, Individually and as a police officer for the City of Boston; John McDonough, Individually and as police Officer for the City of Boston; James McDonough, Assistant General Counsel to the MBTA; Peter Roy; David Albanese; Steven Salisbury, Patrol Officers of the MBTA; and The Massachusetts Bay Transit Authority, Defendants.
CourtU.S. District Court — District of Massachusetts

Sherman Rogan, Boston, MA, for Shannon Rogan.

Eve A. Piemonte Stacey, Asst. Corp. Counsel, City of Boston Law Dept., Boston, MA, for Thomas Menino, Dennis A. DiMarzio, Paul F. Evans, Robert Colburn, John McDonough.

Edward P. Harrington, MBTA Law Dept., Boston, MA, for James McDonough, Peter

Roy, David Albanese, Steven Salisbury, Massachusetts Bay Transp. Authority.

MEMORANDUM AND ORDER

YOUNG, District Judge.

Shannon Rogan ("Rogan") commenced this civil rights action against Thomas Menino, Dennis A. DiMarzio, Paul F. Evans, Robert Colburn, and John McDonough (collectively the "City of Boston Defendants"), as well as, James McDonough ("McDonough"), Assistant General Counsel to the Massachusetts Bay Transit Authority ("MBTA"), Peter Roy ("Roy"), David Albanese ("Albanese"), Steven Salisbury ("Salisbury"), unnamed patrol officers of the MBTA, and the MBTA (collectively the "MBTA Defendants") alleging various constitutional and statutory violations. The MBTA Defendants have now moved for judgment on the pleadings.1

I. Background

The Court gleans the following factual allegations from the Complaint:

On March 15, 1996 Rogan was injured when her vehicle was struck by a green line trolley car near Boston College. After the accident, both Boston police officers and MBTA police officers were dispatched to investigate. According to the Complaint, the MBTA police had primary authority for investigating Rogan's accident. The MBTA police eventually cited Rogan for failure to yield to a trolley and Rogan was required to pay a $50 fine after a hearing in the Brighton District Court.

Rogan has commenced several actions in the Massachusetts Superior Court sitting in and for the County of Suffolk to recover for the personal injuries she suffered as a result of this accident. In the present case, Rogan alleges that the above named City of Boston Defendants and the MBTA Defendants "conspired and maliciously collaborated" in order to "cover-up a probable crime committed by a[n MBTA] employee" thereby "hampering [Rogan's] effective and adequate access to the judicial process." Compl. ¶ 12.

In particular, the Complaint avers that the MBTA has created a special task force called "0700" which is "d[i]spatched by central radio to scenes of serious accidents to investigate, take measurements, photograph and patrol the area as necessary." Id. ¶ 16. Rogan maintains that this "Task Force 0700" places emphasis "on developing evidence to curtail the [MBTA's] liability for damages." Id. ¶ 17. According to the Complaint, McDonough, the Assistant General Counsel to the MBTA, is the head of "Task Force 0700."

Rogan maintains that, in this case, the City of Boston Police Department gave the MBTA the authority to investigate the accident scene. Rogan states that "[t]he custom and routine whereby the [MBTA] is invariably permitted to investigate itself has denied the plaintiff equal treatment under the law." Id. ¶ 47. The Complaint further states that "[a]s a member of a class who have experienced accidents with MBTA vehicles on public ways, Rogan has been deprived of an unbiased and neutral investigator who is without conflict of interest to discover the facts." Id. ¶ 48. Moreover, the Complaint alleges that the citation and subsequent fining of Rogan were part of the "cover-up," evidencing an intent "to divert attention from the [trolley] operator's responsibility for the disaster." Id. ¶ 52. In sum, Rogan asserts that the City of Boston, its police force, and the MBTA "have coordinated their policies and activities and by nonfeasance and bureaucratic avoidance of responsibility have joined in a successful endeavor in effect to create a transient corporation superior to and outside of the law, owing allegiance only to itself and ignoring safety in the interests of its annual financial report and budget." Id. ¶ 57.

The Complaint alleges that the MBTA Defendants violated 42 U.S.C. § 1983, 42 U.S.C. § 1985, the First and Fourteenth Amendments of the United States Constitution, Article IV of the United States Constitution the Massachusetts Civil Rights Act, Mass. Gen. L. ch. 12, §§ 11H, 11I, and Article XI of the Massachusetts Declaration of Rights.2 Accordingly, Rogan demands five million dollars in the form of "compensation and especially punitive damages [against] the MBTA and its employees ... [because] [t]he scheme effected by task force 0700 to `cover-up' MBTA negligence amounts to a serious abuse of process." Id. ¶ 62.

II. Discussion

The MBTA Defendants have moved pursuant to Fed.R.Civ.P. 12(c) for judgment on the pleadings. In ruling on a motion for judgment on the pleadings, this Court must evaluate the legal sufficiency of the Complaint pursuant to the same standard used in a Fed.R.Civ.P. 12(b)(6) motion to dismiss. Furtick v. Medford Housing Authority, 963 F.Supp. 64, 67 (D.Mass.1997).

A. 42 U.S.C. § 1983
1. The Individual Defendants

First, the MBTA Defendants maintain that McDonough, Salisbury, Albanese, and Roy are entitled to qualified immunity with respect to Rogan's section 1983 claims. Generally, "government officials performing discretionary functions ... are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The MBTA Defendants maintain that because the MBTA police officers were statutorily empowered to investigate Rogan's accident, see 1968 Mass. Acts ch. 664, they should be shielded by qualified immunity for their conduct in doing so. Qualified immunity, however, only protects officials who, while performing their lawful duties, do not violate known constitutional rights.

Here, the Complaint alleges that McDonough, Salisbury, Albanese, and Roy engaged in a cover-up of the facts while investigating Rogan's accident. If the MBTA officials did, in fact, actively attempt to conceal the truth about the cause of Rogan's accident, they may have deprived Rogan of some of the civil damages she would otherwise have been entitled to, and, more importantly, caused her wrongly to suffer the penalty of a citation and a $50 fine. In essence, therefore, Rogan is alleging that she was deprived of the right to fair and effective access to the judicial system. Contrary to the MBTA Defendant's assertions, this right was clearly established at the time of Rogan's accident. See Germany v. Vance, 868 F.2d 9, 11 (1st Cir.1989) (stating that intentionally withholding exculpatory evidence may violate right to adequate, effective, and meaningful access to courts); Williams v. City of Boston, 784 F.2d 430, 435 (1st Cir.1986) (stating that "[a]n official cover-up may violate section 1983 if it deprives the plaintiff of his right to access the courts"); see also Gonsalves v. City of New Bedford, 939 F.Supp. 921, 929 (D.Mass.1996) (Wolf, J.) (holding that intentional cover-up "in order to keep civil action from being filed, and if it were filed anyway, from succeeding ... violated federal law"). Accordingly, qualified immunity does not protect the individual MBTA Defendants with respect to the allegations in the Complaint.3

The Complaint also purports to allege a section 1983 claim against McDonough in his individual capacity. As the Complaint fails to allege any conduct whatsoever which would give rise to individual liability under section 1983, this Court dismisses any and all section 1983 claims against the MBTA Defendants in their individual capacities.4

2. The MBTA

Generally, a local government entity such as the MBTA "may not be sued under [section] 1983 for an injury inflicted solely by its employees or agents." Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). Rather, a governmental entity is liable under section 1983 only when the "government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Id. In defining what constitutes a custom and policy of a local governmental entity, the Supreme Court has stated "an act performed pursuant to a `custom' that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law." Board of the County Commissioners of Bryan County v. Brown, ___ U.S. ___, ___, 117 S.Ct. 1382, 1388, 137 L.Ed.2d 626 (1997) (emphasis added).

Here, the MBTA Defendants argue that Rogan may not maintain a section 1983 action against the MBTA because the Complaint fails sufficiently to allege an MBTA custom or policy which would subject it to liability. Rogan's Complaint, however, alleges that the MBTA created a special task force whose sole purpose was to cover-up instances of MBTA wrongdoing. Were this all Rogan alleged, the MBTA would surely be entitled to judgment on the pleadings because, "[a]s [section] 1983 municipal jurisprudence illustrates ... it is not enough for a [section] 1983 plaintiff merely to identify conduct properly attributable to the municipality." Id. Rather, Rogan must allege that the MBTA caused her...

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