Davis v. Coakley , 802 F.3d 128 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-2306
WILLIAM H. DAVIS,
Plaintiff, Appellant,
v.
MARTHA COAKLEY and DEVAL PATRICK,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Thompson and Lipez, Circuit Judges,
and Barbadoro,* District Judge.
Christopher M. Perry, with whom Terance P. Perry, Brendan J.
Perry & Associates, P.C., and Datsopoulos, MacDonald & Lind, P.C.
were on brief, for appellant.
Hélène Kazanjian, Assistant Attorney General, with whom
Andrew W. Koster, Assistant Attorney General, and Maura Healey,
Attorney General of Massachusetts, were on brief, for appellees.
September 18, 2015
* Of the District of New Hampshire, sitting by designation.
LIPEZ, Circuit Judge. Appellant William H. Davis
("William"), in his capacity as the personal representative of the
estate of Jason H. Davis ("Jason"), brings this action against
former Massachusetts Governor Deval Patrick and former Attorney
General Martha Coakley, in their personal capacities, seeking
monetary damages under 42 U.S.C. § 1983. In 1998, Jason received
a punitive damages award in a federal civil rights action that he
brought against six individual state employees who were held
responsible for restraining and beating him in a state mental
hospital.
Appellant contends that Patrick and Coakley violated the
Davis estate's equal protection and due process rights because
they, on behalf of the Commonwealth of Massachusetts, refused to
indemnify the punitive damages award, while at the same time
agreeing to settle the civil rights claims of another individual,
Joshua Messier, who died at another state mental facility years
later while he was being subdued by corrections officers. The
district court granted Patrick and Coakley's motion to dismiss.
Finding no merit in appellant's arguments, we affirm.
I.
Because this appeal follows the grant of a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), we
recite the facts of appellant's claim as alleged in the complaint
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and documents incorporated into the complaint. See SEC v. Tambone,
597 F.3d 436, 438 (1st Cir. 2010) (en banc).
A. The Davis litigation
At all relevant times, Jason Davis suffered from a
variety of acute psychiatric disorders, including schizo-affective
and bipolar disorders. In May 1993, when he was 28 years old,
Jason was involuntarily committed to Westborough State Hospital
("Westborough"), a public mental health care facility. About three
months later, on August 12, Jason was severely beaten by a mental
health care worker at Westborough while five others physically
restrained him and a nurse looked on and encouraged the beating.1
In August 1996, Jason filed suit under 42 U.S.C. § 1983
and the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12,
§ 11I, alleging that the mental health care workers (and their
supervisors) violated his civil rights. The jury found for Davis
against the six mental health care workers and the nurse,2 and
awarded Davis a total of $100,000 in compensatory damages. Those
defendants were jointly and severally liable for the compensatory
1 We have previously described Jason's beating in detail when
we upheld the jury's verdict and damages award in his case. See
Davis v. Rennie, 264 F.3d 86, 93-95 (1st Cir. 2001). Appellant
has incorporated much of our accounting of these facts in the
complaint.
2 The six healthcare workers were Phillip Bragg, Paul Rennie,
Richard Gillis, Thomas Michael Hanlon, Leonard Fitzpatrick, and
Nicholas Tassone. The nurse was Joyce Weigers.
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damages. The jury also awarded punitive damages against all but
one of those same defendants (Nicholas Tassone), based on a finding
that they "'harbored . . . ill will towards [Jason].'" Davis v.
Rennie, 264 F.3d 86, 115 (1st Cir. 2001). After the district court
reduced the punitive damages amount through remittitur, Davis was
owed $1.025 million in punitive damages. On appeal, we affirmed
the jury's verdict and the damages award. See id. at 117.
Because Tassone was not subject to the punitive damages
award, the Massachusetts Department of Mental Health ("DMH")
indemnified him and paid Davis the entire $100,000 compensatory
damage award. However, DMH refused to indemnify the other
defendants because the Commonwealth argued that Massachusetts law
prohibits state employers from indemnifying their employees for
punitive damages awards arising out of civil rights actions. See
Mass. Gen. Laws ch. 258, § 9. Jason died on June 14, 2004. None
of the defendants subject to the punitive damages award have paid
their share.3 Appellant alleges that the entire outstanding
judgment (including attorneys' fees, costs, and interest)
currently stands at $2.1 million.
3 In June 2014, the Massachusetts legislature passed a joint
appropriation to pay Davis $500,000 of the outstanding judgment
owed to him. In July 2014, Patrick vetoed the joint appropriation,
stating that "state law . . . prohibits indemnifying employees
under these circumstances." According to appellant, the
Massachusetts legislature overrode the veto, but the joint
appropriation has not been paid.
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B. The Messier litigation
Joshua Messier was an acutely ill patient who was
involuntarily committed at the Bridgewater State Hospital. On May
4, 2009, Messier was killed while being restrained by multiple
corrections officers. Using the "hog-tieing" technique, the
corrections officers placed Messier on a restraint table (back
down), securing his legs in two leg restraints and then folding
his body over his knees. This technique caused Messier to suffer
heart failure and die.
On April 26, 2012, Kevin Messier, as personal
representative of the estate of Joshua Messier, filed a civil
lawsuit in Suffolk Superior Court against Bridgewater State
Hospital, the Commonwealth of Massachusetts, its Department of
Corrections, and nine Bridgewater corrections officers. The
complaint included civil rights claims, intentional torts
(assault, battery, and intentional infliction of emotional
distress), negligence and gross negligence claims, wrongful death,
conscious pain and suffering, and loss of consortium claims. The
Messier case settled on July 31, 2014, resulting in the payment of
$2 million from Massachusetts.
C. The current lawsuit
Soon after Jason's former counsel became aware of the
Messier settlement, he sent demand letters to Patrick, then-
Governor of Massachusetts, and Coakley, then-Attorney General of
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Massachusetts, requesting that the Commonwealth pay the punitive
damages award in Jason's case because it had agreed to settle the
Messier case. The requests were denied. On August 21, 2014,
Jason's father William H. Davis, in his capacity as the personal
representative of Jason's estate, filed a complaint in the district
court, bringing claims under 42 U.S.C. § 1983 against Patrick and
Coakley in their personal capacities. The complaint alleges that
Patrick and Coakley violated the Davis estate's due process and
equal protection rights by agreeing to settle the Messier case
while, at the same time, refusing to pay for the outstanding
punitive damages award owed to the Davis estate.
Patrick and Coakley moved to dismiss the complaint for
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). On November 19, 2014, the district court held a hearing
on the motion. At the hearing, the court orally granted the motion
to dismiss. The district court accepted the government's argument
that the Messier and Davis cases "are quite different because Mr.
Messier's lawyers accepted the settlement offer whereas Mr. Davis
did not, his lawyers did not accept the settlement offer and went
to trial." The court added that "drawing all intendments in favor
of the well-pleaded facts in this complaint, I simply do not rule
that [those facts] create[] a cause of action . . . under the
federal Constitution on any of the theories advanced." William
timely appealed the district court's ruling.
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II.
We review de novo a district court’s grant of a motion
to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
Bessette v. Avco Fin. Servs., Inc., 230 F.3d 439, 443 (1st Cir.
2000). We must accept as true the factual allegations of the
complaint and draw all reasonable inferences in favor of the non-
moving party. Id. We will affirm the dismissal "only if, under
the facts alleged, the plaintiff cannot recover on any viable
theory." Id. (internal quotation marks omitted) (citation
omitted).
Appellant argues that Patrick and Coakley violated the
Davis estate's due process and equal protection rights because
they "paid the Messier [e]state for conduct which was intent based,
even though expressly prohibited from doing so . . . while
depriving the similarly circumstanced Davis [e]state of this same
benefit." Appellant's Br. at 19. We address the Davis estate's
equal protection and due process arguments in turn.
A. Equal Protection
"The Equal Protection Clause contemplates that similarly
situated persons are to receive substantially similar treatment
from their government." Tapalian v. Tusino, 377 F.3d 1, 5 (1st
Cir. 2004) (citation omitted). To establish an equal protection
claim, a plaintiff needs to allege facts showing that "(1) the
person, compared with others similarly situated, was selectively
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treated; and (2) that such selective treatment was based on
impermissible considerations such as race, religion, intent to
inhibit or punish the exercise of constitutional rights, or
malicious or bad faith intent to injure a person." Rubinovitz v.
Rogato, 60 F.3d 906, 910 (1st Cir. 1995) (quoting Yerardi's Moody
St. Restaurant & Lounge, Inc. v. Bd. of Selectmen, 878 F.2d 16, 21
(1st Cir. 1989)).
An individual is "similarly situated" to others for
equal protection purposes when "a prudent person, looking
objectively at the incidents, would think them roughly equivalent
and the protagonists similarly situated." Barrington Cove Ltd.
P'ship v. Rhode Island Hous. & Mortgage Fin. Corp., 246 F.3d 1, 8
(1st Cir. 2001) (quoting Dartmouth Review v. Dartmouth Coll., 889
F.2d 13, 19 (1st Cir. 1989)). As we have explained, "[e]xact
correlation is neither likely nor necessary, but the cases must be
fair congeners. In other words, apples should be compared to
apples." Id.
Appellant contends that the Davis and Messier estates
were similarly situated because Massachusetts law -- specifically
Massachusetts General Laws chapter 258, § 9 ("§ 9") -- prohibited
the Commonwealth from indemnifying what Davis refers to as "intent
based civil rights claims" (e.g., assault, battery, intentional
infliction of emotional distress, and the like) that were asserted
against state employees of Massachusetts mental health facilities
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in both the Davis and Messier cases. Appellant's Br. at 38. He
argues that the Davis estate was treated differently from the
Messier estate because, while the statute did not permit
indemnification, appellees, using their power "under the Executive
Branch Custom and the Executive Fiat Custom,"4 chose to indemnify
Messier's claims (by authorizing the $2 million settlement
payment) while rejecting the Davis estate's request that appellees
indemnify its punitive damages award. See id. at 41.
Appellant's argument is premised on a fundamental
misunderstanding of Massachusetts law. He contends that, under
§ 9, "only negligent conduct is subject to indemnification" and
"intentional torts and civil rights violations committed by public
employees . . . are not subject to indemnification." Appellant's
Reply Br. at 6, 9. Appellant is incorrect. In fact, the statute
explicitly authorizes public employers to indemnify public
employees who have committed "an intentional tort" or have
committed "any act or omission which constitutes a violation of
the civil rights of any person under any federal or state law."
Mass. Gen. Laws ch. 258, § 9.5 See also Venuti v. Riordan, 702
4 Appellant does not cite any authority for these concepts,
nor does he explain what they mean. We have found no legal
authority explaining them.
5 Section 9 states in relevant part:
Public employers may indemnify public
employees . . . from personal financial loss,
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F.2d 6, 8 (1st Cir. 1983) (recognizing that § 9 provides for the
"indemnification of public employees by public employers for civil
rights liability") (emphasis added); Triplett v. Town of Oxford,
791 N.E.2d 310, 315 (Mass. 2003) (noting that § 9 provides "public
employers with the discretion to indemnify public employees for
financial loss and expenses arising from certain civil actions
(intentional torts and civil rights violations)") (second emphasis
added).6
Because § 9 does not broadly prohibit the
indemnification of "intent based civil rights claims," appellant
all damages and expenses, including legal fees
and costs . . . arising out of any claim,
action, award, compromise, settlement or
judgment by reason of an intentional tort, or
by reason of any act or omission which
constitutes a violation of the civil rights of
any person under any federal or state law, if
such employee . . . at the time of such
intentional tort or such act or omission was
acting within the scope of his . . .
employment. No such employee . . . shall be
indemnified under this section for violation
of any such civil rights if he acted in a
grossly negligent, willful or malicious
manner.
Mass. Gen. Laws ch. 258, § 9.
6 Even the case that appellant claims supports the Davis
estate's proposition confirms that § 9 provides for
indemnification of intentional torts and civil rights actions. In
City of Boston v. Boston Police Patrolmen's Ass'n, Inc., the court
expressly states that the statute permits indemnification for
certain "liabilities arising out of intentional torts or civil
rights violations." 717 N.E.2d 667, 668 (Mass. App. Ct. 1999).
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wrongly asserts that the Davis and Messier estates were similarly
situated. The Commonwealth did not indemnify the Davis estate's
punitive damages award because § 9 bars indemnification for
employees who have "acted in a grossly negligent, willful or
malicious manner," Mass. Gen. Laws ch. 258, § 9, and the punitive
damages were premised on the jury's finding that Westborough staff
members acted in just this way because they harbored ill will
toward Jason.7
No such finding or admission was made in the Messier
case, which was settled before trial. Even assuming that the
Messier estate asserted "intent based civil rights claims," as
alleged in the complaint, we have no basis in this record to
conclude that any such torts were committed in a grossly negligent,
willful, or malicious manner. In the absence of such a finding,
appellant provides no legitimate argument why § 9 would prohibit
the Commonwealth from settling those claims for $2 million. Hence,
because the statute prohibits payment of the Davis punitive damages
award, but does not prohibit payment of the Messier settlement,
appellant has failed to sufficiently allege that the two estates
are similarly situated.
7Because the parties agree, we assume, without deciding, that
§ 9 prohibits indemnification of the punitive damages award.
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To the extent appellant argues that the Messier and Davis
cases are similar because the Messier defendants were alleged to
have "acted in a grossly negligent, willful or malicious manner,"
Mass. Gen. Laws ch. 258, § 9, the Davis estate's argument has no
merit. Unlike the Davis case, where a jury had determined that
state employees deprived Jason of his civil rights and awarded him
punitive damages, in the Messier settlement agreement (which
appellant incorporated into the complaint), the state employee
defendants "expressly den[ied] any violation of rights, and . . .
any liability or wrongdoing in connection with the allegations
and/or legal claims made by" the Messier estate.
B. Due Process
To establish a due process claim under the Fifth and
Fourteenth Amendments, a plaintiff must first assert "a legally
plausible allegation of a protected property interest." Caesars
Mass. Mgmt. Co., LLC v. Crosby, 778 F.3d 327, 332 (1st Cir. 2015)
(internal quotation marks omitted). The plaintiff must identify
a "legitimate claim of entitlement to the property in question --
a claim of entitlement created and defined by existing rules or
understandings that stem from an independent source such as state
law." Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406
F.3d 1, 8 (1st Cir. 2005) (internal quotation marks omitted). For
this purpose, "'an abstract need or desire' or a 'unilateral
expectation' are not sufficient to cement a constitutionally
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protected interest." Id. (quoting Bd. of Regents v. Roth, 408
U.S. 564, 577 (1972)).
Appellant's due process claim fails because he has not
made an allegation sufficient to establish a protected property
interest. Appellant argues that "[t]he [s]tate created property
interest at issue here consists of the indemnification benefit
which the Messier [e]state received under the Executive Branch and
Executive Fiat Customs." Appellant's Br. at 47.
Appellant's due process argument is premised on the same
mistaken understanding of Massachusetts law as the Davis estate's
equal protection argument. He contends that the Commonwealth was
prohibited under § 9 to pay the Messier settlement. Therefore, he
argues, appellees created a protected property interest by using
their "executive fiat" to indemnify the Messier claims. Appellant
adds that the Davis estate was deprived of this property right
because appellees refused to use their executive fiat to indemnify
its punitive damages award.
However, as explained above, appellant has provided no
valid argument for why § 9 barred the Commonwealth from paying the
Messier settlement. Contrary to appellant's contention, the
statute clearly does not prohibit the indemnification of "intent
based civil rights claims." See, e.g., Triplett, 791 N.E.2d at
315. Thus, appellant has not sufficiently alleged the creation of
a property interest through payment of the Messier settlement by
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means of "executive fiat." Nor has appellant provided any other
argument as to how appellees created a protected property interest
for the Davis estate by agreeing to settle the Messier case.8
Because appellant has failed to allege any protected property
interest at stake, the Davis estate's due process claim has no
foundation and was correctly dismissed by the district court.9 See
Caesars Massachusetts Mgmt. Co., 778 F.3d at 335.
Affirmed.
8 Appellant cites no authority for the general proposition
that if a state settles a civil matter with one party it somehow
creates a protected property interest for another party seeking a
similar outcome. At most, it appears that appellant holds nothing
more than a "unilateral expectation" that the Commonwealth will
indemnify the Davis estate's punitive damages award because it
settled the Messier case. Centro Medico del Turabo, Inc., 406
F.3d at 8.
9 Appellant also argues that the district court violated the
Davis estate's Seventh Amendment rights when it "unilaterally
proclaimed, without the empanelment of a jury or the introduction
of any evidence, that the Messier [defendants] acted only
'negligently' and that the Davis [e]state had actually only
asserted claims under the [i]ndemnification [s]tatute."
Appellant's Br. at 19. Appellant's argument has no merit. The
district court never made such proclamations. After hearing
argument from both parties, the court granted appellees' motion to
dismiss because the complaint had failed to state a claim upon
which relief could be granted.
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