Tedeschi v. Reardon, Civil Action No. 96-11317-RGS.

• Decision Date: 21 April 1998
• Docket Number: Civil Action No. 96-11317-RGS.
• Citation: 5 F.Supp.2d 40
• Parties: Robert A. TEDESCHI v. Charles H. REARDON, individually and as High Sheriff of Essex County and the County Commission for Essex County and its Commissioners, Christopher Casey, Marguerite P. Kane and John V. O'Brien.
• Court: U.S. District Court — District of Massachusetts

5 F.Supp.2d 40

Robert A. TEDESCHI v. Charles H. REARDON, individually and as High Sheriff of Essex County and the County Commission for Essex County and its Commissioners, Christopher Casey, Marguerite P. Kane and John V. O'Brien.

Civil Action No. 96-11317-RGS.

United States District Court, D. Massachusetts.

April 21, 1998.

Timothy H. Barnes, Honig & Barnes, Haverhill, MA, for Plaintiff.

John J. Davis, William P. Breen, Jr., Morrison, Mahoney & Miller, Boston, MA, for Defendants.

MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

STEARNS, District Judge.

Robert Tedeschi brought this action under the federal civil rights statute (42 U.S.C. § 1983), the Massachusetts Civil Rights Act (G.L. c. 12, § 11I), the Massachusetts Wiretap Statute (G.L. c. 272, § 99) and the Massachusetts Privacy Act (G.L. c. 214, § 1B). The named defendants are Charles Reardon, a former Essex County High Sheriff, and Christopher Casey, Marguerite Kane and John O'Brien, the County Commissioners of Essex County ("Commissioners").¹ Tedeschi alleges that he was a victim of political retaliation because of his support for a candidate who ran unsuccessfully against Reardon for Sheriff and because of his refusal to accede to Reardon's demand that he "shake down" County inmates. He contends that, as a result, Reardon rescinded his eligibility for street details, removed him as a firearms instructor, refused to appoint him as head of an inmate electronic monitoring program, illegally intercepted his office telephone calls, spied on his political activities, and refused to renew his commission as a deputy sheriff. Finally, Tedeschi maintains that the Commissioners, as a matter of custom and practice, ratified and encouraged Reardon's unlawful acts.

The defendants contend that the material events recited in the Second Amended Complaint are alleged to have occurred between mid-1989 and January 1993 and are thus time-barred.² As for the substance of the claims, Reardon argues that political loyalty is a legitimate employment criterion for a deputy sheriff, justifying the termination of Tedeschi's commission. Reardon contends that there is no evidence to support Tedeschi's allegations of wiretapping and political spying. Reardon also denies having ever instructed Tedeschi to extort money from inmates. The Commissioners maintain that because Tedeschi has failed to produce evidence of an Essex County "custom or policy" condoning illegal activity on Reardon's part, the Monell aspect of the Complaint fails as a matter of law.

FACTS

The material facts, taken in the light most favorable to Tedeschi as the non-moving party, are these. In 1985, Tedeschi was hired by Reardon as a correctional officer and appointed as a temporary Essex County deputy sheriff.³ Reardon told Tedeschi that by attending the North East Regional Police Institute ("NERPI") and by taking some additional classes at the Correctional Officer's Academy ("COA"), he could satisfy the eligibility requirements for a permanent appointment. The training regimen was confirmed in writing by Kevin Leach, at the time the Superintendent of the Sheriff's Field Services Bureau. Tedeschi completed the NERPI and COA classes.

On December 8, 1987, Reardon commissioned Tedeschi as a full-time deputy sheriff. In 1988, Tedeschi was appointed as a firearms instructor at the Sheriff's "gun school." In May of 1989, Reardon asked Tedeschi to design and implement an electronic monitoring program for inmates. Reardon told Tedeschi that he would be reimbursed for any overtime and personal expenses that he incurred in setting up and administering the program. On September 8, 1989, Tedeschi was promoted to the correctional rank of Captain. His duties included oversight of the Electronic Monitoring Program ("EMP"). Between May of 1989 and March of 1990, Tedeschi was the only Sheriff's Department employee working full-time in the EMP. Despite Tedeschi's singular experience, in October of 1989, Reardon named Richard O'Leary as Director of Electronic Monitoring. Tedeschi alleges that Reardon instructed him to "shake down" inmates who wanted to participate in the EMP. When he refused, Tedeschi claims that Reardon told him that "If you don't do this, I will get somebody who will." Second Amended Complaint ¶ 14.

In March of 1990, Tedeschi began volunteer work for Kevin Leach, now a candidate for Essex County Commissioner.⁴ In January and February of 1991, Reardon made several telephone calls to Tedeschi "expressing anger at his involvement in the Leach campaign." Tedeschi Aff. ¶ 30.⁵ In May of 1991, Tedeschi received the first of a series of letters ordering him to attend classes required of part-time correctional officers, despite his full-time status. Between March and May of 1991, Tedeschi met on at least three occasions with Commissioner Kane to complain about Reardon's handling of the EMP, his loss of street and overtime details, and the directives to attend remedial classes. Tedeschi also filed a grievance with his union demanding reimbursement for his unpaid EMP overtime and expenses. Tedeschi maintains that the union would not process his grievance because the EMP was not covered under the union contract.⁶ Tedeschi also filed a grievance with the Essex County Commission.⁷ While the Commissioners held a hearing on his grievance, they ultimately took no action on his behalf. Leach Aff. ¶¶ 16-17.⁸

In 1992, Tedeschi began serving as an assistant campaign manager for Kevin Leach, who had decided to run against Reardon for Sheriff. Shortly thereafter, Reardon terminated Tedeschi as a firearms instructor.⁹ In November of 1992, Reardon defeated Leach. On January 18, 1993, Reardon informed Tedeschi that he would not be reappointed as a deputy sheriff.¹⁰ Reardon acknowledged that he was terminating Tedeschi's commission because of his campaigning for Leach. Lastih Aff. ¶¶ 3-5.

In 1996, Joseph Bogigian, the Director of Training for the Sheriff's Office, told Tedeschi that Reardon had secretly wiretapped Tedeschi's office telephone conversations and had identified Tedeschi as an attendee at several political functions by "running" his license plates. Tedeschi Aff. ¶¶ 39—41; Bogigian Aff. ¶¶ 9 and 10; Bogigian Dep., at 82-83. Bogigian also told Tedeschi that Reardon had terminated Tedeschi as a firearms instructor and had revoked his eligibility for street details because of his affiliation with Leach.¹¹ Tedeschi Aff. ¶ 41; Bogigian Aff. ¶¶ 7, 8 and 10. Thereafter, on June 27, 1996, Tedeschi filed this lawsuit.

DISCUSSION

Summary judgment is appropriate when, based upon the pleadings, affidavits, and depositions, "there is no genuine issue as to any material fact, and [where] the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Gaskell v. Harvard Co-op. Society, 3 F.3d 495, 497 (1st. Cir.1993). A dispute of fact is only genuine if there is sufficient evidence to permit a reasonable jury to resolve the point in the nonmoving party's favor. NASCO, Inc. v. Public Storage, Inc., 29 F.3d 28, 32 (1st Cir.1994). While all reasonable inferences must be indulged in favor of the non-moving party, Oliver v. Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir.1988), a fact is considered material only when it has the "potential to affect the outcome of the suit under applicable law." Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir.1993). "Rule 56 may be used to determine the applicability of a statutory bar to a particular set of facts." Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 352 (1st Cir.1992).

Statute of Limitations

Claims under § 1983 are subject to a three year statute of limitations.¹² Johnson v. Rodriguez, 943 F.2d 104, 107 (1st Cir.1991). A § 1983 action accrues when the plaintiff "knows or has reason to know of the injury which is the basis of the action." Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 3 (1st Cir.1995). "The knowledge required `is not notice of every fact which must eventually be proved in support of a claim,' but rather `knowledge that an injury has occurred.'" Pagliuca v. Boston, 35 Mass.App.Ct. 820, 824, 626 N.E.2d 625 (1994) (citations omitted). "Thus the key question to be answered here is temporal: at what juncture did [Tedeschi] reliably know of the injury to which this [claim] relates?" Morris v. Government Development Bank of Puerto Rico, 27 F.3d 746, 749 (1st Cir.1994).

Tedeschi's § 1983 claim is based upon violations of his "liberty, right of political affiliation and his constitutional right of freedom of association and freedom of speech." Second Amended Complaint ¶ 2. The Complaint as amended alleges "systematic" (sic) political retaliation motivated by Tedeschi's refusal to comply with "Reardon's request to `shake down' inmates and Plaintiff's active participation in the campaign of Defendant Reardon's reelection opponent, Kevin J. Leach." Second Amended Complaint ¶ 22.

Defendants contend that because Tedeschi's commission was revoked on January 18, 1993, and because the extortion incident supposedly occurred in 1989, the lawsuit is barred by the statute of limitations. Tedeschi argues that he has alleged a "continuing violation," and therefore the statute of limitations closes only on the date of the last alleged retaliatory act (Reardon's 1995 directive to attend remedial training).

There are two varieties of continuing violations: serial and systemic. Serial violations are "composed of a number of discriminatory acts emanating from the same discriminatory animus, each act constituting a separate [actionable] wrong." ... Systemic violations, on the other hand, "need not involve an identifiable discrete act of discrimination transpiring within the limitation period." Rather what must be shown is that plaintiff has been harmed by the application of a discriminatory policy or practice and that such policy continues into the limitations period.

Muniz-Cabrero v. Ruiz, 23 F.3d 607, 610 (1st Cir.1994) (citing Jensen v....