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Opposition to Motion to Dismiss by Christopher Salt
and
Supporting Memorandum
and
Supporting Affidavit
A social worker appointed by the court to perform an investigation of an unwed mother and father and their child brought a Motion to Dismiss a Complaint. As grounds for the dismissal, he contended that he had absolute quasijudicial immunity. Below is the Opposition and the supporting memorandum.
* * *
Read the pleadings below. Everyone who is outraged by judges abrogating their responsibilities, please
blow your horns continuously as you pass the location of each and every courthouse, particularly in Massachusetts,
write to each and every representative and senator, particularly in Massachusetts,
write Letters to the Editors, particularly in Massachusetts,
call each radio and television station, particularly in Massachusetts,
call each judge's lobby, particularly in Massachusetts, and ask, "Have you earned your paycheck, benefits, and future pension.
UNITED STATES DISTRICT COURT
FOR THE
EASTERN DISTRICT OF MASSACHUSETTS
CIVIL ACTION: 00-CV-11048-REK<>Eli Newberger
---------------------------------------------------
Theodore S. Brown
James Linnehan
Jane & John Does
Plaintiffs
v.
Children's Hospital
Amy C. Tishelman
Barbara Cohen
Brockton Division of the
District Court Department
of the Trial Court of Massachusetts
Mass. Dept. of Social Services
Eileen Kern
Sandra Fyfe
Christopher Salt
Jack McCarthy, Jr.
John and Jane Smiths
Defendants
------------------------------------------------------
<>OPPOSITION TO MOTION TO DISMISS BY CHRISTOPHER SALT
<>(Both a supporting memorandum and supporting affidavit
<>accompany this opposition.)
Now come the Plaintiffs Theodore Brown, James Linnehan, and Jane & John Does to oppose Defendant Christopher Salt's Motion to Dismiss the Complaint pursuant to Rule 12(b)(6).1,2 1The counts against Christopher Salt are the following: (1) negligence, (2) interference with parental rights, (4) violation of 42 U.S.C. 1983 (against Linnehan) (6) state civil rights (against Linnehan) (M.G.L. c. 12, sec. 11I) , (7) defamation, (8) civil RICO, (10) negligent infliction of emotional distress, (11) intentional infliction of emotional distress, (12) violation of G.L. c. 93A.As grounds, Brown brought no claims against Salt to dismiss, Jane and John Does have not yet been identified, and Linnehan states the following:2Although Salt's motion is so broadly written that it appears to seek dismissal of the entire complaint as to all the defendants, the plaintiffs believe he intends it to apply only to the claims against Salt himself.
1.Where Salt knowingly violated Linnehan's clearly established rights -- deprivation of constitutional due process and deprivation of parental rights -- Christopher Salt has neither absolute nor qualified immunity;Both a supporting memorandum setting out the above issues in some detail and a supporting affidavit by Plaintiff James Linnehan accompany this opposition.2. Where Salt's conduct was not policy-related, Salt's conduct was nondiscretionary, and procedural safeguards were absent, Christopher Salt has neither absolute nor qualified immunity as a shield to his civil RICO and common-law tort claims;.
3. Where Salt has neither absolute nor quasijudicial nor qualified immunity, and immunity was the only basis upon which he claimed that Linnehan failed to state a claim upon for which relief could be granted, the Rule 12(b)(6) prong of his motion must fail:
a. as to Counts 6, 7, 10, and 11 -- respectively, Linnehan's claims for violations of state civil rights claims (M.G.L. c. 12, sec. 11I), defamation, and negligent and intentional infliction of emotional distress, and4. Linnehan has averred the elements of each of the claimsb. as to Count 8, civil RICO (conspiracies); and
filed and brought against Salt.Respectfully submitted,
PLAINTIFFS,
By their attorney,
28 November 2000 Barbara C. Johnson
Barbara C. Johnson, Esq.
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
UNITED STATES DISTRICT COURT
FOR THE
EASTERN DISTRICT OF MASSACHUSETTS
CIVIL ACTION: 00-CV-11048-REK---------------------------------------------------
Theodore S. Brown
James Linnehan
Jane & John Does
Plaintiffs
v.Eli Newberger
Children's Hospital
Amy C. Tishelman
Barbara Cohen
Brockton Division of the
District Court Department
of the Trial Court of Massachusetts
Mass. Dept. of Social Services
Eileen Kern
Sandra Fyfe
Christopher Salt
Jack McCarthy, Jr.
John and Jane Smiths
Defendants
------------------------------------------------------
MEMORANDUM IN SUPPORT OF
OPPOSITION TO MOTION TO DISMISS BY CHRISTOPHER SALT
In support of their opposition to Christopher Salt's's Motion to Dismiss, Plaintiffs submit this memorandum.1 1Because Theodore Brown has not made any claims against Christopher Salt, it is assumed that Salt's motion to dismiss refers only to those causes of action asserted by James Linnehan against Salt.This memorandum argues that Christopher Salt is not shielded by absolute or qualified immunity from Linnehan's statutory claims for interference with and deprivation of his clearly established constitutional rights, and that Salt is not shielded by absolute or qualified immunity from Linnehan's common-law claims.That Linnehan's clearly established rights have been interfered with or that he was deprived of them is not disputed or controverted by Salt. Salt argues only that is shielded by absolute immunity because he performed a quasijudicial function.
FACTS
James Linnehan's son Brenden was born on 9 February 1985. Around two years later, the boy's mother, Robyn Gerry a/k/a Robyn Gerry Sylvia and Robyn Gerry-Sylvia ["Robyn"], left Maine with the boy while a Maine court order allowing Linnehan visitation was in effect.
But for two supervised visits with the child when he was around five years of age, Linnehan last saw his son, Brenden, when the boy was three years of age. Brenden is now 15 years of age. Brenden likely has no independent memory of James Linnehan.
How Things Went Down. As of 1988, James Linnehan had a temporary order from the State of Maine allowing him visitation with his child. Linnehan wanted more visitation. Mediation was ordered to resolve his request. Robyn steadfastly refused to agree to more visitation. In March 1988, after a two-hour session, the mediation came to a stalemate.
A day after the Maine mediation stalemated, Robyn called the New Bedford Child Family Services, and a day later brought the child in to see Eileen Kern for an initial assessment of Brenden and his mother, Robyn.
In the meantime, notwithstanding the Maine temporary order for visitation, Robyn sought and obtained a temporary restraining order from the District Court in New Bedford, Massachusetts. That restraining order was ultimately extended indefinitely.
There was no "home state" hearing to determine which state had the authority to exercise jurisdiction. (M.G.L. c. 209B.)
Shortly thereafter Kern both recommended to Judge Harper that a sexual-abuse assessment be done, and filed with DSS a complaint (pursuant to G.L. c. 119, sec. 51A), alleging that Linnehan had emotionally, physically, and sexually abused Brenden.
Christopher Salt Enters the Picture. The court then ordered both the Collis Center to perform the assessment and Christopher Salt to perform an investigation. These two efforts were being undertaken simultaneously with the assessments of DSS and all the caseworkers were in constant communication with each other.
Salt filed his report on 1 July 1988. He drew no negative conclusion from Robyn having left Maine with Brenden while a court order allowing Linnehan visitation was in effect [CS depo at 13-17],2 and insisted that Robyn had "justification" to disobey the Maine court order [id. at 15, lines 7 and 4] by fleeing and hiding with Brenden in Massachusetts [id. at 16].
2NOTE: All deposition and report pages cited herein this opposition are hereto attached.To Christopher Salt, Robyn claimed to have "no live-in boyfriend" [CS 7/1/88 report at 25], but Salt knew this to be untrue, viz., Salt knew that Robyn and Brenden shared an apartment for about three months with Joseph Fitzgerald, who was the tenant of record [id. at 17]. Robyn and the divorced Fitzgerald, Salt wrote, "dated a few times and have remained good friends" [id.] and with the exception of Mr. Fitzgerald who baby-sat Brenden, "there appears to be no significant males in [Brenden's] life other than Mr. Linnehan" [id. at 25].Thus Salt's conclusion that Linnehan had to be the per- petrator of the suspected sexual abuse because there was no male around except Linnehan and because Brenden feared men was specious [CS 7/1/88 report at 25; CS depo at 28].3
3In fact, Robyn and Brenden lived in a multifamily building where three other males also lived, one of whom lived next door with her best girlfriend.Salt further insisted that even though "there was no diagnosis of sexual abuse, the possibility is not to be eliminated. His fear and anxiety about his father had been confirmed[;] he had undergone a traumatic experience and now suffered from post- traumatic stress" [id. at 34].There was no reliable data either in Salt's report or in the case as a whole to support his conclusion that the child had been sexually abused; the only data were the self-serving notes of the mother, Robyn [id. at 34-35].
Notwithstanding the absence of any proof of sexual abuse, Salt recommended that Linnehan be denied visitation with his son [CS 7/1/88 report at 26]. The court accepted Salt's recommendation. Linnehan had no opportunity to cross-examine Salt or to rebut any adverse or erroneous material.
In 1991, the court ordered Salt to provide an updated report -- a "parenting" assessment -- to the court; this report was submitted to the court in January 1992. Again Salt recommended that Linnehan be denied visitation with his son [CS 1/5/92 report at 16]. The court accepted Salt's recommendation.
Although Linnehan knew that the Salt reports were bogus, Linnehan could not prove a negative. He also did not have until now corroborative evidence of his position [see note 5, infra], which was and still is that Robyn was not the stable, sincere, honest, excellent caregiving mother Salt was saying she was: Robyn's accusations of continual child sexual abuse by Linnehan were false and motivated by revenge for his unwillingness to marry her.
Robyn's ultimate goal was to win sole physical and legal custody of the child Brenden and permanently deprive Linnehan of a relationship with their son.4
4Linnehan learned only this Spring that within a few years of accusing him, she also falsely accused her then-husband, Michael Sylvia, of child sexual abuse.Salt's goal, it appears, was to continue to win favor with a judge (now retired) from whom he had received 30 or 40 assignments for reports [CS depo at 8-9]. Of the 60 court investigations that Salt had performed in two-and-a-half years [id. at 8], he found abuse in all but three [id. at 10] and all were done for the Bristol County Juvenile Court "except for one or two" [id. at 8].Specifically, the complaints allegedly made by Brenden were communicated to Salt by Robyn and not by Brenden. Salt irrationally accepted as truth Robyn's assertion that Brenden at 6 years of age believed that his therapist (Ferreira) conspired with Linnehan so that Linnehan could take him to his house. And given that his assignment was to investigate the parents, it was grossly negligent to accept without a visit to Robyn and Brenden's home environment Robyn's assertion that "her husband Michael is very important to Brenden and that Michael treats her son as if he were his own" [CS 1/5/92 report at 2; also 15].
Because of his failure to perform competently the investigation, that which is NOT in Salt's 5 January 1992 report to the court is that Robyn and Michael Sylvia had been separated in 1991 because their marital relationship was stormy and the home environment damaging to all the children [Robyn's affidavit, paragraph 8, and Michael Sylvia's affidavit, unnumbered paragraphs on pages 1-3].5 (As in Redgrave, infra, acquiescence to third-party pressure is not a defense to a civil rights claim.)
5The two affidavits were filed in Bristol County Probate & Family Court Docket No. 94D-1058-D1, Robyn Gerry-Sylvia v. Michael R. Sylvia. The divorce, filed on 28 June 1994, is still active and pending.Specifically Salt himself lied in that report of 5 January 1992 to Judge Harper: he wrote that Reuben Ferreira acknowledged that Brenden's visiting Linnehan "might well be detrimental." Salt's statement was false because Salt never spoke to Ferreira, and Ferreira was in favor of visitation.At no time before being deprived of his parental rights and due process did James Linnehan have an opportunity to confront his accusers or to test the evidence against him.
ARGUMENTS
1. Where Salt knowingly violated Linnehan's clearly established rights
-- deprivation of constitutional due process and deprivation of
parental rights6 -- Christopher Salt has neither absolute nor
qualified immunity.6 Counts 2 and 4, interference with parental rights, and violation of 42 U.S.C. 1983, respectively.Christopher Salt contends that because his duties "were closely associated with the judicial process," he is entitled to absolute quasijudicial immunity. That contention must fail. Salt suggests that Cok v. Cosentino, 876 F.2d 1 (1st Cir. 1989) supports his contention. Cok does not. Salt also suggests a similarity between LaLonde v. Eissner, 405 Mass. 207 (1989) and the instant case. There is none.Neither in Cok nor in LaLonde was the plaintiff denied, as was Linnehan, an opportunity to cross-examine the preparer of the subject report. Aime v. Com., 414 Mass. 667, 683 (1993): "The core of procedural due process is the adequacy of the hearing provided before a deprivation of liberty or property occurs." See Mathews v. Eldridge, 424 U.S. 319, 332-333 (1976).
Neither in Cok nor in LaLonde was the plaintiff denied, as was Linnehan, an opportunity to rebut adverse or erroneous materials.
Neither in Cok nor in LaLonde did the plaintiff claim, as did Linnehan, that the defendants deprived her of or interfered with any of her clearly established constitutional rights.
"A parent's liberty interest in her relationship with her child is grounded in art. 10 of the Massachusetts Declaration of Rights and the Fourteenth Amendment to the United States Constitution. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Opinion of the Justices, 427 Mass. 1201, 1203 (1998).E.N.O. v. L.M.M., 429 Mass. 824, 832 (1999).In addition to those significant distinguishing factors, Salt's suggestions must fail also because of his own conduct: he knew that he was causing Linnehan to be deprived of his clearly established and fundamental rights -- deprivation of due process and deprivation of parental rights. That knowledge is sufficient to divest Salt of any immunity to which he may otherwise have been entitled.
The question is not whether some right has been established clearly at a highly abstract level . . . the question is whether, under the circumstances that confronted the official, "a reasonable official would understand that what he is doing violate[d] that right.Berthiaume v. Caron, Clark, Bivins, and O'Donohue, 142 F.3d 12, 15 (1st Cir. 1999), citing Anderson v. Creighton, 483 U.S. 635, 640 (1987); see also Hunter v. Bryant, 502 U.S. 224, 228-29 (1991) (per curiam); Brown v. Ives, 129 F.3d 209, 211-12 (1st Cir. 1997), cert. denied, __ U.S. __, 66 U.S.L.W. 3531 (Mar. 23, 1998). See also Robichaud v. Ronan, 351 F.2d 533 (1965), reversing the immunity-based dismissal of the action against a county attorney and his deputy, on the grounds that it was inappropriate to protect the defendants if they deprived the plaintiff of her rights, privileges, or immunities secured by the Federal Constitution and laws.77When citing Robichaud to support his absolute-immunity defense, Salt failed to point to the disposition of that case and the rationale upon which it was based.Not only were Salt's acts not of the nature and quality that were intended to be shielded from liability, Salt is not shielded by absolute immunity also because Salt was improperly appointed, causing Linnehan to be deprived of constitutional, procedural due process both on its face and in practice. Specifically, section 24 of chapter 119 provides:Upon the issuance of the precept and order of notice, the court shall appoint a person qualified under section 21 to make a report to the court under oath of an investigation into conditions affecting the child. The report shall then be attached to the petition and be a part of the record.And section 21 of chapter 119 provides:"Evidence", shall be admissible according to the rules of the common law and the General Laws and may include reports to the court by any person who has made an investigation of the facts relating to the welfare of the child and is qualified as an expert according to the rules of the common law or by statute or is an agent of the department or of an approved charitable corporation or agency substantially engaged in the foster care or protection of children. Such person may file with the court in a proceeding under said sections a report in full of all the facts obtained as a result of such investigation. The person reporting may be called as a witness by any party for examination as to the statements made in the report. Such examination shall be conducted as though it were on cross-examination. Evidence . . . may include the testimony of the child if the court determines that the child is competent and willing, after consultation with counsel, if any, to testify. [Emphasis supplied.]In the two state cases,8 Salt was never qualified as an expert, and was not an agent of the department or of an approved charitable corporation or agency substantially engaged in the foster care or protection of children. Linnehan was not allowed to call him for examination, and his son Brenden never testified, being but a 3-year-old toddler at the time of Salt's first report.98 The two cases were a care and protection of Brenden in Juvenile Court and Linnehan's action for paternity and custody in Bristol County Probate and Family Court. They were not consolidated. Juvenile Court Justice Harper was, instead, assigned to sit both as a Probate and Family Court justice over the paternity and custody action and as a Juvenile Court justice over the care and protection case.Because Christopher Salt claims in his Answer to the Complaint in the instant case that he was appointed as an investigator pursuant to G.L. c. 119, secs. 21 and 24, Linnehan assumes that if there were such an appointment, it occurred in the Juvenile Court action. However, Salt failed to produced with his Motion to Dismiss any proof, such as an order, that he was, in fact, so appointed under that chapter or any other.
9M.G.L. c. 119 is not implicated in LaLonde, supra, which was relied upon by Salt. Nor does it appear that Eissner's credentials were questioned or objected to by the plaintiff LaLonde. Another significant difference between Eissner and Salt also existed: Eissner was a psychiatrist, while Salt was but a social worker with only one-and-one-half years of experience plus a few years work at DSS. The focus of Salt's higher education was Spanish, the language, not social work or sociology or psychology or learning how to question children.
Assuming arguendo, however, that Salt was properly appointed as an investigator pursuant to Massachusetts General Laws c. 119, secs. 24 and 21, "government officials performing discretionary functions are shielded from liability for civil damages unless their conduct violates 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 (1982). Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039 (1986) (a plaintiff's allegation of a violation of clearly established law precludes dismissal before the commencement of discovery).Even if the procedure in M.G.L. c. 119, secs. 24 and 21 is constitutional on its face, the procedure was not carried out in a constitutional manner. A denial in practice constitutes a deprivation of constitutional due process. Frizado v. Frizado, 420 Mass. 592, 596-597 (1995) (a court must fill in procedural elements if statute lacks them on its face), citing Aime, 414 Mass. at 683, for the proposition that where the legislature has eliminated constitutional safeguards, judges cannot save the statute from constitutional attack. SeeMathews, supra.
2. Where Salt's conduct was not policy-related, Salt's conduct was
nondiscretionary, and procedural safeguards were absent,
Christopher Salt has neither absolute nor qualified immunity as a
shield to his civil RICO and common-law tort claims.The reviewing court must first look at the nature and quality of the official's conduct to determine whether it is discretionary or nondiscretionary. Shansky v. United States of America, 164 F.3d 688, 690-691 ((1st Cir. 1999).
If the conduct is discretionary, the court must ask, is the discretion susceptible to policy-related judgments? Id., citing United States v. Gaubert, 499 U.S. 315, 322-323 (1991); Berkovitz v. United States, 486 U.S. 531, 536-37 (1988), the seminal case in this area of law; and Irving v. United States, 162 F.3d 154, 162 (1st Cir. Dec. 18, 1998) (No. 96-2368, slip op. at 15-16).
If it is nondiscretionary, however, it is not excepted from the waiver of sovereign immunity. Too, if it is nondiscretionary, the discretionary function exception to absolute immunity cannot protect the conduct or shield Salt from tort liability. Irving, 162 F.3d at 177, citing Berkowitz, at 536, 108 S.Ct. 1954.
The so-called discretionary function exception . . . does not protect all governmental activities involving an element of choice.Gaubert, 499 U.S. at 335 (Scalia, J., concurring), citing Berkovitz, 486 U.S. at 536-37.Even assuming arguendo that his conduct was discretionary, i.e., that it involved an element of judgment or choice on Salt's part, Salt's judgment was not based on political, social, or economic policy. See Irving, 162 F.3d at 173, 180 (dissent, Bownes, by Senior Circuit Judge, and Lipez, Circuit Judge)
. . . Congress intended to "protect only governmental actions and decisions based on considerations of public policy."Irving 162 F.3d at 180, citing Gaubert, 499 U.S. at 323 (quoting Berkovitz, 486 U.S. at 537). "And any discretion [Salt] might have enjoyed to negligently carry out a commanded [investigation] `can hardly be said to be grounded in regulatory policy.'" Irving at 180, quoting Gaubert at 325 n. 7.If the conduct is discretionary, it might fall under the discretionary function exception or it might not. Shansky, 164 F.3d at 691. Recognizing that all acts in life require some judgment or choice by the actor, it depends on the level and context in which the discretion is at play.10
10 Salt fails to state which conduct he contends is shielded by immunity, or which action was a matter of choice for him.For instance, in Shansky, Justice Selya, quoting from Berkovitz, 486 U.S. at 545, wrote "discretion involving application of `objective scientific standards' is not policy-based discretion."Too, in Collazo v. United States, 850 F.2d 1, 3 (1st Cir. 1988), the court "held that a claim of negligent medical treatment by a government actor, unaccompanied by any discretionary, policy based conduct, falls outside the parameters of the discretionary function exception." Magee v. United States of America, 121 F.3d 1, 5 (1st Cir. 1997), citing Collazo, supra.
We distinguished conduct made on purely medical grounds from conduct made pursuant to governmental policy, pointing out that where "only professional, nongovernmental discretion is at issue, the discretionary function exception does not apply." Id. at 3 (internal quotation omitted).Magee, 121 F.3d at 5.Given that Salt's investigative duties required the same objectivity as other professionals, he is not shielded by the discretionary function exception. See Jobson v. Henne, 355 F.2d 129 (2d Cir. 1966), state-employed psychiatrists were refused immunity.
Negligence in carrying out any investigation would, of course, not be part of any policy, so under Irving, 162 F.3d at 180, the First Circuit Court of Appeals deemed an official's negligence not protected by immunity. Also, In Demoran v. Witt, 781 F.2d 155, 157 (9th Cir. 1985), a case cited by Salt, the Ninth Circuit Court of Appeals agreed that absolute immunity fails to attach to judicial officers if and when they act clearly and completely outside the scope of their jurisdiction. Under Irving, Salt's negligence would be outside the scope of his jurisdiction.
Further, the appointing court lacked procedural safeguards surrounding the investigator's decisions: Salt was not independent, Linnehan had a right but was given no opportunity to cross-examine Salt or other witnesses, Linnehan was allowed no discovery and given no transcript of hearings, and hearsay evidence was freely admitted. Demoran, 781 F.2d at 157, where there was a plethora of procedural safeguards for the probation officers but not for the Prison Discipline Committee, only qualified immunity was extended to the Committee members. Id.11
11Adoption of Sean, 36 Mass.App.Ct. 261 (1994), a case relied upon Salt, is distinguishable from Brenden Linnehan's care and protection case, for in Sean, the affected party was given opportunity (1) to distinguish between statements of the guardian ad litem's opinion which she considered inadmissible and statements of fact which were admissible and (2) to have a hearing. No such opportunities or indicia of due process were afforded Linnehan.Adoption of Astrid, 45 Mass.App.Ct. 538, 546 (1998) (admission of of report reversible error if no opportunity to cross-examine preparer of report); Adoption of George, 27 Mass.App.Ct. 265, 274 (1989) (same); Custody of Michel, 28 Mass.App.Ct. 260, 263-264 (1990) (same). Custody of Michel, supra at 266 (reversible error if no opportunity to rebut any adverse or erroneous material).Even assuming arguendo that under Irving and Demoran, Salt would have qualified immunity, dismissal now would be precluded and Linnehan would be allowed to proceed with discovery.In still another case relied upon by Salt, Jones v. Jones, 349 Mass. 259, 263-264 (1965), the investigator's reports pursuant to G.L. c. 119, sec. 24, containing multiple level hearsay (and clinical evaluations) were admissible, but providing that the preparer be available to testify at trial and that the source of the material be sufficiently identified so that the affected party has an opportunity to rebut any adverse or erroneous material contained therein. No such opportunities or indicia of due process were afforded Linnehan.
In Burkes v. Callion, et al, 413 F.2d 318 (9th Cir. 1970), upon which Salt relied, court-appointed psychiatrists were given absolute immunity, but at 318 n. 2, the court in Burkes noted that in Jobson v. Henne, 355 F.2d 129 (2d Cir. 1966), state-employed psychiatrists were refused immunity.
In Robichaud v. Ronan, 351 F.2d 533, 537-538 (9th Cir. 1965), another case wrongly relied upon by Salt as supporting his argument, the court cited several cases for the proposition that "[t]he title of [an] office, quasi-judicial or even judicial, does not, of itself, immunize the officer from responsibility for unlawful acts which cannot be said to constitute an integral part of judicial process." Those cases are Corsican Productions v. Pitchess, 338 F.2d 441 (9th Cir. 1964) and Lewis v. Brautigam, 227 F.2d 124 5 A.L.R.second 505 (5th Cir. 1955).
Salt is entitled, however, neither to sovereign, absolute, or qualified immunity, for he knowingly violated Linnehan's clearly established rights, nor to the shield afforded by the discretionary function exception, given that any discretion Salt might have had was so-called professional, nongovernmental discretion which falls outside the protection of the discretionary function exception. See Collazo, 850 F.2d at 3.
In the absence of a statutory exception, the FTCA imposes liability on the government for conduct of its employees within the scope of their employment "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place" where the conduct occurred.Magee, 121 F.3d at 6. Thus Salt is also not immune from suit under Massachusetts' little FTC (Count 12).1212 Count 12 is set out in some detail in the Complaint.Salt also knew that Linnehan was being deprived of due process by which he could protect his constitutional rights: being denied both the opportunity to an evidentiary hearing at which he could cross-examine Salt on his performance and his reports, and the opportunity to rebut any adverse or erroneous material. Adoption of Sean, 36 Mass.App.Ct. 261, 263-264 (1994), a case relied upon by Salt, on page 5 for a distorted perception of the proposition of law for which the case stands.In fact, Salt's Motion to Dismiss does not meet the standards for such a motion, given that it does not describe the functions or conduct of his job, does not identify any guidelines or standards by which he was to perform the alleged investigation which he claimed he performed.
3. Where Salt has neither absolute nor quasijudicial nor qualified
immunity, and immunity was the only basis upon which he claimed
that Linnehan failed to state a claim upon for which relief could be
granted, the Rule 12(b)(6) prong of his motion must fail.a. As to Counts 6, 7, 10, and 11-- respectively, Linnehan'sGeneral Laws c. 12, sec. 11I provides a remedy coextensive with 42 U.S.C. sec. 1983. Batchelder v. Allied Stores Corp., 393 Mass. 819, 822-823 (1985). Unlike its Federal counterpart, the State statute does not require State action. Thus, should Christopher Salt be deemed not a state actor, then his claim for violation of his fundamental liberty rights -- the deprivation of his parental rights and of due process -- could proceed under Count 6, for violation of state civil rights. See E.N.O. v. L.M.M., 429 Mass. 824, 832 (1999).13
claims for violations of state civil rights claims (M.G.L. c.
12, sec. 11I), defamation, and negligent and intentional
infliction of emotional distress.13 A parent's liberty interest in her relationship with her child is grounded in art. 10 of the Massachusetts Declaration of Rights and the Fourteenth Amendment to the United States Constitution.E.N.O., 429 Mass. at 832, citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208 (1972); Opinion of the Justices, 427 Mass. 1201, 1203 (1998).But "whereas Sec. 1983 provides relief for direct violations of one's rights, relief under Sec. 11I is available only where one's rights are interfered with or attempted to be interfered with by threats, intimidation, or coercion." Sena v. Com., 417 Mass. 250, 262 (1994). See Redgrave v. Boston Symphony Orchestra, Inc., 557 F.Supp. 230 (D.C.Mass. 1983), in which the threats of third parties to the defendant orchestra satisfied this element of the cause of action. After a jury verdict on the question, however, the court ruled that "acquiescence, unaccompanied by conduct and intent, . . . [does not amount] to `threats, intimidation, or coercion.'" Redgrave v. Boston Symphony Orchestra, 602 F.Supp. 1189, 1192 (D.Mass.1985), vacated & remanded, 831 F.2d 339 (1st Cir.1987), reh'g en banc, 855 F.2d 888 (1st Cir.1988) (the MCRA does not provide a third-party pressure defense), cert. denied, 488 U.S. 1043, 109 S.Ct. 869 (1989).
Nevertheless, in Com. v. ELM Medical Laboratories, Inc., 33 Mass.App.Ct. 71, 79 (1992), quoting Batchelder v. Allied Stores Corp., 393 Mass. at 822; and Redgrave v. Boston Symphony Orchestra, Inc., 399 Mass. 93, 99 (1987), it is written: "We recognize that the State Civil Rights Act, being remedial, `is entitled to liberal construction of its terms. . . . '"
Linnehan makes claim to that liberal construction. For example, here, in a courtroom closed to the public, Linnehan was first intimidated by Salt's report, which insidiously infected the minds of those in court against him -- particularly and significantly the mind of the judge whose judicial responsibility had been, by the Massachusetts legislature, abrogated unconscionably to an ill-trained novice social worker, Christopher Salt. While reading Salt's report, Linnehan could not talk, literally: he lost the use of his vocal chords (hyperfunctional voice disorder, maladaptive vocal and respiratory habits; vocal chord nodules, depending on which doctor's report is quoted). To this day, he must and still does utilize his speech therapy exercises.
Here, Christopher Salt had made no reasonable effort to learn the truth of what, if anything happened, between Linnehan and his son, Brenden. Salt merely parroted what the mother told him, failed to question mother adequately, and although Salt became aware that mother and child were living with another man, Joseph Fiztgerald, Salt outrageously and untruthfully wrote that because no other man was around, Linnehan was the perpetrator of abuse against his son, Brenden. It was beyond all bounds of human decency to accuse an innocent man of such a crime and to cause him to lose all contact with his son based on no evidence other than that the words of a woman who sought only revenge for his failure to marry her.
Disregarding two therapists' opinions14 to the contrary, Salt's second report four years later was no less extreme and outrageous and beyond all possible bounds of decency.15
14 Those opinions were from Dr. Kevin Chase and Dr. Reuben Ferriera.15 The elements of intentional infliction of emotional distress are set forth in Redgrave, 557 F.Supp. at 235-236, quoting Agis v. Howard Johnson Company, 371 Mass. 140, 145 (1976). The claim of negligent infliction of emotional distress requires evidence of physical symptomatology.
Stunned by Salt's report again, Linnehan's counsel advised him to stipulate to having an evaluation performed by Children Hospital's Eli Newberger and his team. Newberger and his team kept Salt's report alive. Jack McCarthy kept Newberger's team's report alive. Continuing torts and a systematic continuing deprivation of fundamental rights clearly established by both federal and state constitutions define this case . . . because each rubber-stamped Salt's findings.The disparaging reports had further consequences: they ultimately defamed and damaged Linnehan's reputation amongst family and friends when he no longer could see or communicate with his son in any manner or take his son to visit with them at any time, including holidays and other special occasions. It was not unlike the statement, true or not, in Boston Symphony Orchestra, Inc. v. Commercial Union Ins. Co., 406 Mass. 7, 11 (1989):
in the circumstances, [the BSO's cancellation] was a statement about Redgrave which damaged her reputation and caused others not to hire her. . . . Redgrave thought that the cancellation subjected her to public ridicule and embarrassment.Id. at 11.The pain of losing his son has endured these many years -- as evidenced by his retaining seven lawyers (including the present one) and multiple attempts at "review and redetermination," pursuant to to M.G.L. c. 119, in always closed courtrooms.
Linnehan continues to suffer anew the obloquy of everyone involved or who came to be involved with his case, to suffer the inevitable doubt of even unidentified family members, friends, colleagues, and acquaintances -- given the imprimatur of the court's blessing of Salt's two reports -- and to suffer the loss of any relationship with his son.
To this day he must confront that doubt when a woman he dates asks, "Does your son ski?" or "Does your son snowboard?" He can only answer, "I don't know" and then inevitably must explain why he does not know. "It all started with a little Day-Glo dinosaur from a cold cereal box. . . . Oh, yes, and let's not forget Batman and Robin and Batmobile and the Batcave!"
It's been a living nightmare.
In furtherance of their object, Christopher Salt participated with some of the other defendants in two or more predicate acts against Linnehan. They communicated by telephone and letter their biased presumptions, their flawed and specious conclusions and opinions to each other, as well as to third parties not named in this action, that Linnehan had sexually abused his child. They suggestively and improperly questioned the child until Brenden allegedly accused Linnehan, and rubber-stamped each other's decisions that Linnehan had sexually abused his child.
b.As to Count 8, civil RICO.1616 This count might have been properly entitled merely "conspiracy" to encompass both statutory (Secs, 1985(3), 1986, and RICO) and common-law conspiracies.
Nevertheless, as stated in note 14 of the Complaint, the elements of a civil conspiracy are: (1) two or more persons; (2) an object to be accomplished; (3) an agreement on the object or course of action; (4) one or more unlawful overt acts; and (5) damages that are a direct result of those acts. Breach of a duty of loyalty satisfies the unlawful act element of a civil conspiracy claim.
Here, if any of the defendants are deemed to be state actors, then Secs. 1985(3) and 1986 would come into play.
The pattern was to receive income from future services which had been made mandatory when sexual abuse -- true or not -- was found. To Salt, a finding of sexual abuse meant more court appointments and referrals by other local area, so-called mental health workers, who would recommend counseling or the continuation of counseling by their respective agencies for the children, counseling for the parents, batterer or anger-management programs, sex-offender programs, testing, multiple evaluations, repeated testing, and so on -- out of which has grown a multi-billion-dollar sex abuse industry, and of which Christopher Salt's own cottage industry was a part.
The defendants agreed on the object or course of action.
The opinions of competent collateral mental-health professionals, i.e., those who were not in the loop, were deliberately and intentionally ignored in Linnehan's underlying case.
Linnehan was not allowed to confront the accusing Salt in a court of law before he was deprived of his relationship with his son Brenden, and he suffered damages that are a direct result of those acts.
WHEREFORE Linnehan prays that Christopher Salt's Motion to Dismiss be DENIED.
Respectfully submitted,
PLAINTIFFS,
By their attorney,
28 November 2000 Barbara C. Johnson
Barbara C. Johnson, Esq.
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833