Tierney v. Town of Framingham

• Decision Date: 13 February 2018
• Docket Number: Civil Action No. 17–11657–FDS
• Citation: 292 F.Supp.3d 534
• Parties: Thomas TIERNEY, et al., Plaintiffs, v. TOWN OF FRAMINGHAM, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

292 F.Supp.3d 534

Thomas TIERNEY, et al., Plaintiffs,

v.TOWN OF FRAMINGHAM, et al., Defendants.

Civil Action No. 17–11657–FDS

United States District Court, D. Massachusetts.

Signed February 13, 2018

Thomas Tierney, Framingham, MA, pro se.

Joann M. Tierney, Framingham, MA, pro se.

Stephen C. Pfaff, Louison, Costello, Condon & Pfaff, LLP, Sarah–Elizabeth Cloutier, Katherine L. Kenney, John J. O'Connor, Peabody & Arnold LLP, Mark P. Sutliff, Attorney General's Office, Anna E. Lumelsky, Massachusetts Attorney General's Office, Boston, MA, Joseph S. Bussiere, Litchfield Cavo LLP, Lynnfield, MA, Timothy M. Burke, Sheila E. McCravy, Law Offices of Timothy M. Burke, Needham, MA, for Defendants.

MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS TO DISMISS AND MOTIONS FOR SANCTIONS

SAYLOR, J.

This is an action alleging a variety of claims for relief under 42 U.S.C. § 1983. The pro se complaint contends that the Town of Framingham, two police detectives, the Massachusetts Division of Children and Families, two social workers, an extended family member, five private attorneys, a state judge, the Middlesex County District Attorney, and an Assistant District Attorney unlawfully attempted to deprive plaintiffs Thomas and Joann Tierney of custody of their grandson.

Nearly all defendants have moved to dismiss the complaint for a multitude of reasons.¹ Among them are lack of subject-matter jurisdiction, failure to state a claim upon which relief can be granted, and failure to provide a short and plain statement of plaintiffs' theory of relief. In addition, three defendants have requested that the Court award them reasonable costs and attorney's fees. For the reasons stated below, the motions to dismiss will be granted, and the requests for costs and attorney's fees will be denied.

I. Background

A. Factual Background

The facts are set forth as described in the complaint, supplemented by certain official public records.²

Thomas and Joann Tierney (collectively, the "Tierneys") are grandparents and legal guardians of minor child T. (Compl. at 1).³ In early 2015, the Tierneys brought T. to Framingham Union Hospital tied in cords. See generally Commonwealth v. Tierney , Docket No. 1581–cr–00016 (Middlesex Superior Court).⁴ Medical personnel reported the incident to the Massachusetts Department of Children and Families ("DCF") and the Framingham police. (Compl. at 4–5). The complaint suggests that detectives Stacey Macaudda and Phillip Hurton were the investigating officers. (Id. at 1).⁵ The Tierneys were then charged by the Middlesex District Attorney's office with assault and battery and child endangerment. See Commonwealth v. Tierney. Attorney John Daly was initially appointed to defend the Tierneys in Middlesex Superior Court. (Compl. at 5). He was eventually replaced by attorney Michael Brennan. (Id. ). It appears that the prosecuting Assistant District Attorney was Kate Cimini. (Id. at 1).

T. was then removed from the custody of the Tierneys by DCF for 96 days while he was hospitalized. (Id. at 7). The complaint suggests that Justice Gloria Tan of the Massachusetts Juvenile Court presided over a hearing involving the Tierneys. (Id. at 5). The complaint alleges that Justice Tan "enforced a state scheduling law [‘the 72–hour rule’]" during this hearing. (Id. ). Attorneys Belle Soloway, Judith Hyatt, and Cynthia Pucillo were appointed to represent Thomas, Joann, and T., respectively, at the hearing. (Id. at 1).

B. Procedural Background

Plaintiffs filed the complaint in this action on September 1, 2017. A letter was filed with the Court on September 12, 2017, requesting that certain minor changes be made to the complaint. The Court construed the letter as a motion to amend the complaint, which was granted on September 14, 2017.

The complaint purports to assert claims against 15 different individuals and entities: (1) the Town of Framingham, (2) Detective Stacey Macaudda, (3) Detective Phillip Hurton, (4) the DCF, (5) DCF social worker Chad Cronin, (6) DCF social worker Debra Connors, (7) John Lapinski, (8) attorney Belle Soloway, (9) attorney Judith Hyatt, (10) attorney Cynthia Pucillo, (11) Justice Gloria Tan, (12), attorney John Daly, (13) attorney Michael Brennan, (14) Middlesex District Attorney Marian Ryan, and (15) Middlesex Assistant District Attorney Kate Cimini.⁶ The complaint appears to assert a legal malpractice claim against the private attorney defendants, and a § 1983 claim against all defendants. The complaint requests that this Court (1) dismiss pending criminal charges against the Tierneys in state court, (2) declare the "72–hour rule" unconstitutional, and (3) award approximately $3 million in damages.

Eleven defendants have filed motions to dismiss the complaint for a variety of reasons.⁷ In addition, in their motions to dismiss, defendants Daly, Hyatt, and Soloway have requested that this Court award them their reasonable costs and attorney's fees.⁸

II. Analysis

A. Defendants' Motions to Dismiss Under Rules 12(b)(1) and 12(b)(6)

Defendants have moved to dismiss the complaint for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) and failure to state a claim pursuant to Rule 12(b)(6).⁹ The complaint states that "[n]o diversity claim is being made" and that the basis for federal-question jurisdiction is the "right to a speedy trial and the right to counsel under the Sixth Amendment" and "due process and equal protection rights under the Fourteenth Amendment." (Compl. at 4) (internal quotation marks omitted). It appears that the complaint purports to allege claims under 42 U.S.C. § 1983, and therefore federal-question jurisdiction exists.

1. Legal Standard on a Motion to Dismiss

On a motion to dismiss, the court "must assume the truth of all well-plead[ed] facts and give ... plaintiff the benefit of all reasonable inferences therefrom." Ruiz v. Bally Total Fitness Holding Corp. , 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino , 175 F.3d 75, 77 (1st Cir. 1999) ). To survive a motion to dismiss, the complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In other words, the "[f]actual allegations must be enough to raise a right to relief above the speculative level, ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555, 127 S.Ct. 1955 (citations omitted). "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). Dismissal is appropriate if the complaint fails to set forth "factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory." Gagliardi v. Sullivan , 513 F.3d 301, 305 (1st Cir. 2008) (quoting Centro Medico del Turabo, Inc. v. Feliciano de Melecio , 406 F.3d 1, 6 (1st Cir. 2005) ).

A document filed by a pro se party "is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle v. Gamble , 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ) (internal quotation marks omitted); see also Fed. R. Civ. P. 8(e) ("Pleadings must be construed so as to do justice."). However, while pro se complaints "are accorded ‘an extra degree of solicitude’ ... even a pro se plaintiff is required to ‘set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.’ " Wright v. Town of Southbridge , 2009 WL 415506, at *2 (D. Mass. Jan. 15, 2009) (quoting Adams v. Stephenson , 1997 WL 351633, at *1 (1st Cir. June 23, 1997) ).

2. Section 1983 Claims against Private Attorney Defendants (Daly, Hyatt, Brenn, Ryan, and Soloway)

Section 1983 provides a remedy for the deprivation of "any rights, privileges, or immunities secured by the Constitution and laws [of the United States]" by an individual acting under color of state law. 42 U.S.C. § 1983. "To state a valid cause of action under 42 U.S.C. § 1983, a plaintiff must show that she was deprived of a secured right by a person acting on behalf of (or in concert with) state officials." Runge v. Kelly , 2006 WL 167497, at *2 (D. Mass. Jan. 23, 2006) (citation omitted).

Because of the state-action requirement, section 1983 rarely creates a right of action against private persons. See Aldrich v. Ruano , 952 F.Supp.2d 295, 301 (D. Mass. 2013).¹⁰ The complaint appears to suggest that because the attorney defendants were court-appointed, they acted under color of state law. (See Compl. at 5–6). However, the mere fact that private attorneys were appointed to represent civil litigants or criminal defendants does not implicate state action. See Aldrich , 952 F.Supp.2d at 301 ("It is well-settled that a lawyer (even a court-appointed one) does not act under the color of state law in performing a lawyer's traditional function as counsel to a party."). Accordingly, there is no valid section 1983 claim against the private attorney defendants.¹¹

3. Claims against Defendant Lapinski

As noted, there are no claims in the complaint against defendant Lapinski. Furthermore, because he is also a private party, it is almost certain that there is no valid section 1983 claim against him. The claims against Lapinski, if any, will be dismissed unless plaintiffs show cause to the contrary in writing within 14 days.

4. Claims against Official State Defendants (Tan, Ryan, and Cimini)

Defendants Tan, Ryan, and Cimini contend that sovereign immunity bars any claims for damages against them. Under the Eleventh Amendment, "states are immune ... from private suit in ...