George MacKie v. Katrin Rouse-Weir.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule
1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to
the parties and, therefore, may not fully address the facts of the case or the
panel's decisional rationale. Moreover, such decisions are not circulated to
the entire court and, therefore, represent only the views of the panel that
decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued
after February 25, 2008, may be cited for its persuasive value but, because of
the limitations noted above, not as binding precedent. See Chace v. Curran, 71
Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-268
GEORGE MACKIE
vs.
KATRIN ROUSE-WEIR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, George Mackie, has brought suit against the
defendant, Dr. Katrin Rouse-Weir, who is a clinical and forensic
psychologist hired by the district attorney for Worcester County
to examine documents provided by the district attorney and to
determine whether Mackie met the definition of a sexually
dangerous person under G. L. c. 123A, § 1, in order to assist
the district attorney's office in deciding whether to seek a
probable cause hearing in order to have the plaintiff civilly
committed. Rouse-Weir authored a thirty-nine-page report for
the district attorney, in which she determined that Mackie met
the criteria for a sexually dangerous person, and the district
attorney filed a petition alleging probable cause seeking
Mackie's civil commitment. See In re Johnstone, 453 Mass. 544,
546-547 (2009), citing G. L. c. 123A, § 12. At Mackie's
request, Rouse-Weir subsequently met with him, so that he could
explain his position that certain information contained in a
police report was inconsistent with the actual facts of the
case. Rouse-Weir submitted an updated report, testified at the
probable cause hearing, and the report was submitted as an
exhibit. The complaint alleges that Rouse-Weir failed to submit
an accurate and truthful report to the court, that the updated
report omitted twenty-seven paragraphs from the original report,
that Rouse-Weir falsely claimed that she had never reviewed the
information contained in the omitted paragraphs, and that these
omissions led to the deprivation of Mackie's liberty. The
plaintiff has alleged violations of G. L. c. 12, § 11I, the
Massachusetts Civil Rights Statute, 42 U.S.C. § 1983, medical
malpractice, and perjury.
Rouse-Weir filed a motion to dismiss pursuant to Mass. R.
Civ. P. Rule 12 (b) (6), 365 Mass. 754 (1974), which was allowed
by the motion judge on the ground that Mackie had failed to
state a claim upon which relief could be granted because Rouse-
Weir was entitled to absolute quasi-judicial immunity, or,
alternatively, qualified immunity because Mackie had not
"plausibly alleged facts that Dr. Rouse-Weir violated a
statutory or Constitutional right that was clearly established
at the time she made her report." See Rodriques v. Furtado, 410
Mass. 878, 882 (1991), quoting Harlow v. Fitzgerald, 457 U.S.
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800, 818 (1982); see also id. ("government officials performing
discretionary functions, generally 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").1 The plaintiff has
appealed. We affirm in part and reverse in part the order of
dismissal.
Discussion. In reviewing the allowance of a motion to
dismiss, we must take the allegations of the complaint as true
and "draw all reasonable inferences in favor of the
plaintiff[]." General Convention of the New Jerusalem in the
United States of Am., Inc. v. MacKenzie, 449 Mass. 832, 835
(2007). The pro se plaintiff argues that the judge erred in
concluding the defendant has immunity from suit. The defendant
defends solely on the ground that she has either absolute or
qualified immunity.
1 The verified complaint states Mackie was suing Rouse-Weir in
both her individual capacity and "in any official capacity she
may be entitled to." "[A]n official-capacity suit is, in all
respects other than name, to be treated as a suit against the
entity" "of which an officer is an agent," Kentucky v. Graham,
473 U.S. 159, 165-166 (1985). Mackie does not mention in his
brief that Rouse-Weir was sued in any but her individual
capacity, and makes no argument about immunity based on the suit
having named Rouse-Weir not only in her individual capacity, but
in any official capacity to which she was entitled. We
therefore express no opinion on the matter.
3
Any claim of absolute prosecutorial immunity the defendant
has is necessarily derivative of that belonging to the office
that hired her. Prosecutors have "quasi-judicial" absolute
prosecutorial immunity in some circumstances. Other executive
branch officials exercising executive functions have, at most,
only qualified immunity. Prosecutors, however, are entitled to
absolute immunity only when they undertake tasks in their
prosecutorial capacity, not when they act as witnesses, even as
complaining witnesses. See Kalina v. Fletcher, 522 U.S. 118,
129 (1997). Thus, even were the defendant entitled to the same
immunity as prosecutors in the district attorney's office that
hired her, a question on which we express no opinion, given her
role here -- she was an investigator and a witness, at most no
more than a complaining witness, so she would not be entitled to
absolute immunity.
In the alternative, the defendant argues that she is
entitled to qualified immunity. As the plaintiff notes, the
Supreme Court of the United States, however, has held that for
purposes of § 1983, a private individual engaged in a
governmental function does not always have qualified immunity.
See Richardson v. McKnight, 521 U.S. 399, 413 (1997). The
defendant makes no response.
In Filarsky v. Delia, 566 U.S. 377 (2012), however, not
cited by the plaintiff, the Court extended qualified immunity to
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a private lawyer retained by a city to participate in internal
affairs investigations. It distinguished McKnight as a case in
which the circumstances, "'a private firm, systematically
organized to assume a major lengthy administrative task
(managing an institution) with limited direct supervision by the
government, undertak[ing] that task for profit and potentially
in competition with other firms' . . . combined sufficiently to
mitigate the concerns underlying recognition of governmental
immunity under § 1983." Id. at 393. It said: "Nothing of the
sort is involved here, or in the typical case of an individual
hired by the government to assist in carrying out its work."
Id.
Although the question is not free from doubt, we think that
the defendant is sufficiently analogous to the private lawyer in
Filarsky that she is entitled to qualified immunity. The
plaintiff does not argue that the common-law immunity with
respect to his State claims differs from that under § 1983.
The question then is whether the plaintiff has alleged any
violations of a clearly established right. Three of the
plaintiff's arguments are easily addressed: First, the
Massachusetts Civil Rights Act, G. L. c. 12, § 11I, can be
violated only through interference with constitutional or
statutory rights by "by threats, intimidation or coercion." See
G. L. c. 12, § 11H. As the plaintiff has not alleged threats,
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intimidation or coercion, he has not alleged a violation of a
clearly established right under that statute.
Second, the plaintiff alleges medical malpractice. But it
is certainly not clearly established that a psychologist in the
position of the defendant is a "health care provider" to an
individual in the position of the plaintiff, which is the sine
qua non of a medical malpractice action. Vasa v. Compass Med.,
P.C., 456 Mass. 175, 179-180 (2010).
Third, there is no civil cause of action at all for
perjury, which is a crime and not a tort.
This brings us to the plaintiff's final claim, that there
was a violation of his Federal constitutional right to due
process in violation of 42 U.S.C. § 1983. The plaintiff argues
that the right to due process of law is clearly established.
That formulation, however, looks at the issue somewhat too
broadly. The primary allegation is that the defendant removed
twenty-seven paragraphs from her original report when that
removal was unwarranted, deliberately, in order to bolster the
case that there was probable cause to hold the plaintiff, and
that she lied about having seen the portion of the police report
from which those paragraphs were drawn.
There can be little doubt that lying under oath,
deliberately, as part of a successful strategy to have an
individual wrongly incarcerated would amount to a violation of a
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clearly established right under the due process clause.
However, the plaintiff has neither alleged nor explained how the
alleged excision of these paragraphs, or the alleged lying about
it, was material to the probable cause determination. Having
read the paragraphs, we conclude they are certainly not, as the
plaintiff at one point describes them, "exculpatory." In his
brief he argues that he told the defendant that he could not
have done some of the things described in those paragraphs. But
he does not explain why including even amended paragraphs would
have been more beneficial to him than the deletion of the
offending paragraphs. He has thus not alleged facts, rather
than asserting conclusions, showing the defendant's actions in
allegedly deleting these paragraphs and lying about it were
material to the finding of probable cause. And the plaintiff
has not demonstrated that the removal of immaterial paragraphs
from a report in such circumstances, and even lying about it,
violates a clearly established constitutional right redressable
under § 1983.
Finally, however, the plaintiff also argues that the
defendant made an inaccurate and untruthful diagnosis of
pedophilic disorder. If that were true, it would be material to
the probable cause determination, and, if done intentionally, it
would violate a clearly established right.
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The difficult question with which we are left is whether
this is alleged in the complaint. The complaint makes no
specific reference to a diagnosis or to pedophilic disorder. In
the "medical malpractice" section of the complaint, however, the
plaintiff does state: "The Defendant's actions and/or omissions
resulted in her failure to submit an accurate and truthful
report to the Court, after meeting with the Plaintiff."
We are a notice pleading jurisdiction, and so a complaint
need only "contain 'a short and plain statement of the claim,'
Mass. R. Civ. P. 8 (a) (1), 365 Mass. 749 (1974), which affords
fair notice to the defendant of the basis and nature of the
action against him." Berish v. Bornstein, 437 Mass. 252, 269
(2002). Under the rules of notice pleading we think that an
allegation that a report amounted to medical malpractice is
sufficient to put the defendant on notice that what is alleged
is that her report may have included medical conclusions,
including diagnoses, that were not truthful. To be sure, these
were pled as part of the medical malpractice count. But
"[u]nder the Massachusetts practice of notice pleading, there is
no requirement that a complaint state the correct substantive
theory of the case" (quotation and citations omitted). Id.Consequently, although in all other respects the dismissal
of the complaint is affirmed, with respect to this aspect of the
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plaintiff's due process claim, it must be reversed.
So ordered.
By the Court (Rubin,
Wolohojian & Brennan, JJ.2),
Clerk
Entered: July 31, 2023.
2 The panelists are listed in order of seniority.
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