Not for Publication in West's Federal Reporter
United States Court of Appeals For the First Circuit
No. 22-1166
DOUGLAS J. BACHE,
Plaintiff, Appellant,
v.
TOWN OF BOXBOROUGH; PHILLIP GATH,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Kayatta, Lipez, and Thompson, Circuit Judges.
Devin L. Hoffman, with whom Hoffman Law was on brief, for appellant.
Justin L. Amos, with whom John J. Davis, Adam Simms, and Pierce Davis & Perritano LLP were on brief, for appellees.
October 31, 2022 THOMPSON, Circuit Judge. After his romantic partnership
soured, Appellant Douglas Bache ("Bache") went to Massachusetts
Housing Court to have his ex, Lisa Oakes ("Oakes"), evicted from
his residence in Boxborough, Massachusetts. As part of those
proceedings, Bache and Oakes agreed in a joint stipulation that
Oakes would be permitted to return on two occasions to collect her
belongings. In handwritten text, the stipulation states in its
entirety:
A. Parties agree that [Oakes] will pick up small items, clothes, and shoes on February 3rd, 2019 between 12pm through 230pm. B. [Oakes] shall remove all large belongings on August 31st, 2019 between 11am through 4pm. C. Parties agree that all pickups shall be supervised by the local police department. D. Upon compliance this case shall be dismissed on or by September 15, 2019.
Bache and Oakes signed the stipulation agreement, as did the
Housing Court, which converted it into a court order (from here on
out, just "Order").
This dispute arises from the first retrieval day, when
Oakes arrived at the residence on February 3, 2019, with Officer
Phillip Gath ("Gath") from the Boxborough Police Department
("BPD"), per the Order's requirement that a police officer
supervise. Bache alleges that Oakes "began helping herself to
anything she wanted, including Mr. Bache's personal property, and
not just her clothes or shoes." Bache and his attorney protested
- 2 - to Gath, but Bache alleges that Gath did not stop Oakes from taking
anything and even assisted her in carrying some items outside.
The complaint does not allege that Gath himself took any of Bache's
property. Nor does the complaint allege that any of the items
Gath helped remove belonged to Bache.
Bache sued Gath and the Town of Boxborough (together,
"Appellees") for Negligence (count 1), violation of the
Massachusetts Civil Rights Act (count 2), violations of the 5th
Amendment to the U.S. Constitution, alleging both a Due Process
and a Takings Clause claim (count 3), Intentional Infliction of
Emotional Distress (count 4), Breach of Fiduciary Duty (count 5),
Conversion (count 6), Negligent Supervision and Training (count
7), and Negligent Infliction of Emotional Distress (count 8).1
Defendants moved to dismiss Bache's complaint for failure to state
a claim, which the district court granted, and Bache timely
appealed.
We review the grant of a motion to dismiss de novo.
Sonoiki v. Harvard Univ., 37 F.4th 691, 703 (1st Cir. 2022). After
carefully studying the record and the arguments Bache makes on
appeal, we find no basis to reverse. In that regard, we have often
stated that when "a trial court accurately takes the measure of a
1 Bache initially filed suit in Middlesex Superior Court and Appellees removed the suit to the District of Massachusetts. - 3 - case, persuasively explains its reasoning, and reaches a correct
result, it serves no useful purpose for a reviewing court to write
at length in placing its seal of approval on the decision below."
Moses v. Mele, 711 F.3d 213, 216 (1st Cir. 2013) (collecting
cases). We substantially agree with the district court's reasoning
and conclusions in its Memorandum & Order granting Defendants'
motion to dismiss, so we will be brief with our discussion of
Bache's arguments. To cut to the chase, we affirm the dismissal
for substantially all the reasons described by the district court,
adding one brief point in response to Bache's arguments before us.
The district court dismissed Bache's Negligence and
Negligent Infliction of Emotional Distress claims (counts 1 and 8)
on three bases: first, that the Massachusetts Tort Claims Act
("MTCA") bars personal liability for Gath's alleged conduct;
second, that common law immunity applied to Gath's enforcement of
the Order; and third, that § 10(b) of the MTCA, often called the
discretionary function exception, barred these claims against
Boxborough for the allegedly negligent acts of its employee in
carrying out discretionary functions, here Gath's enforcement of
the Order. On appeal, Bache only argues that the district court
erred in dismissing the negligence-based claims against Boxborough
pursuant to § 10(b) of the MTCA because Gath's enforcement of the
Order is not the type of conduct covered by this statutory bar.
- 4 - We agree with Bache that the discretionary function
exception is not the right fit for Gath's conduct here, but we
nevertheless affirm the dismissal of these two claims against
Boxborough. Since we can affirm the dismissal "on any basis made
apparent by the record," McCloskey v. Mueller, 446 F.3d 262, 266
(1st Cir. 2006), we lay out our own rationale below.
To start, we assess whether the discretionary function
exception applies. Assuming for argument's sake that Gath had
some discretion in deciding how to enforce the Order, for the
exception to apply we must determine that the discretion he
exercised "is that kind of discretion for which § 10(b) provides
immunity from liability." Harry Stoller & Co. v. City of Lowell,
587 N.E.2d 780, 782 (Mass. 1992). "The discretionary function
exception is narrow, providing immunity only for discretionary
conduct that involves policymaking or planning," but not the
implementation of a policy. Greenwood v. Town of Easton, 828
N.E.2d 945, 948 (Mass. 2005) (cleaned up). Here, Bache alleges
that Gath failed to act and stop Oakes from taking certain
property, despite the Order's requirement that she only take "small
items, clothes, and shoes." In other words, Bache complains of
how Gath implemented the Order. So, Bache has not alleged any
policymaking or planning conduct on Gath's part to bring his
conduct under the narrow discretionary function exception. See
id.; cf. A.L. v. Commonwealth, 521 N.E.2d 1017, 1024 (Mass. 1988) - 5 - (probation officer not making policy or planning decision when
deciding whether individual had complied with terms of their
probation); Irwin v. Town of Ware, 467 N.E.2d 1292, 1299 (Mass.
1984) (police officer not making policy or planning decision when
deciding whether to remove drunk driver from the road).
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Not for Publication in West's Federal Reporter
United States Court of Appeals For the First Circuit
No. 22-1166
DOUGLAS J. BACHE,
Plaintiff, Appellant,
v.
TOWN OF BOXBOROUGH; PHILLIP GATH,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Kayatta, Lipez, and Thompson, Circuit Judges.
Devin L. Hoffman, with whom Hoffman Law was on brief, for appellant.
Justin L. Amos, with whom John J. Davis, Adam Simms, and Pierce Davis & Perritano LLP were on brief, for appellees.
October 31, 2022 THOMPSON, Circuit Judge. After his romantic partnership
soured, Appellant Douglas Bache ("Bache") went to Massachusetts
Housing Court to have his ex, Lisa Oakes ("Oakes"), evicted from
his residence in Boxborough, Massachusetts. As part of those
proceedings, Bache and Oakes agreed in a joint stipulation that
Oakes would be permitted to return on two occasions to collect her
belongings. In handwritten text, the stipulation states in its
entirety:
A. Parties agree that [Oakes] will pick up small items, clothes, and shoes on February 3rd, 2019 between 12pm through 230pm. B. [Oakes] shall remove all large belongings on August 31st, 2019 between 11am through 4pm. C. Parties agree that all pickups shall be supervised by the local police department. D. Upon compliance this case shall be dismissed on or by September 15, 2019.
Bache and Oakes signed the stipulation agreement, as did the
Housing Court, which converted it into a court order (from here on
out, just "Order").
This dispute arises from the first retrieval day, when
Oakes arrived at the residence on February 3, 2019, with Officer
Phillip Gath ("Gath") from the Boxborough Police Department
("BPD"), per the Order's requirement that a police officer
supervise. Bache alleges that Oakes "began helping herself to
anything she wanted, including Mr. Bache's personal property, and
not just her clothes or shoes." Bache and his attorney protested
- 2 - to Gath, but Bache alleges that Gath did not stop Oakes from taking
anything and even assisted her in carrying some items outside.
The complaint does not allege that Gath himself took any of Bache's
property. Nor does the complaint allege that any of the items
Gath helped remove belonged to Bache.
Bache sued Gath and the Town of Boxborough (together,
"Appellees") for Negligence (count 1), violation of the
Massachusetts Civil Rights Act (count 2), violations of the 5th
Amendment to the U.S. Constitution, alleging both a Due Process
and a Takings Clause claim (count 3), Intentional Infliction of
Emotional Distress (count 4), Breach of Fiduciary Duty (count 5),
Conversion (count 6), Negligent Supervision and Training (count
7), and Negligent Infliction of Emotional Distress (count 8).1
Defendants moved to dismiss Bache's complaint for failure to state
a claim, which the district court granted, and Bache timely
appealed.
We review the grant of a motion to dismiss de novo.
Sonoiki v. Harvard Univ., 37 F.4th 691, 703 (1st Cir. 2022). After
carefully studying the record and the arguments Bache makes on
appeal, we find no basis to reverse. In that regard, we have often
stated that when "a trial court accurately takes the measure of a
1 Bache initially filed suit in Middlesex Superior Court and Appellees removed the suit to the District of Massachusetts. - 3 - case, persuasively explains its reasoning, and reaches a correct
result, it serves no useful purpose for a reviewing court to write
at length in placing its seal of approval on the decision below."
Moses v. Mele, 711 F.3d 213, 216 (1st Cir. 2013) (collecting
cases). We substantially agree with the district court's reasoning
and conclusions in its Memorandum & Order granting Defendants'
motion to dismiss, so we will be brief with our discussion of
Bache's arguments. To cut to the chase, we affirm the dismissal
for substantially all the reasons described by the district court,
adding one brief point in response to Bache's arguments before us.
The district court dismissed Bache's Negligence and
Negligent Infliction of Emotional Distress claims (counts 1 and 8)
on three bases: first, that the Massachusetts Tort Claims Act
("MTCA") bars personal liability for Gath's alleged conduct;
second, that common law immunity applied to Gath's enforcement of
the Order; and third, that § 10(b) of the MTCA, often called the
discretionary function exception, barred these claims against
Boxborough for the allegedly negligent acts of its employee in
carrying out discretionary functions, here Gath's enforcement of
the Order. On appeal, Bache only argues that the district court
erred in dismissing the negligence-based claims against Boxborough
pursuant to § 10(b) of the MTCA because Gath's enforcement of the
Order is not the type of conduct covered by this statutory bar.
- 4 - We agree with Bache that the discretionary function
exception is not the right fit for Gath's conduct here, but we
nevertheless affirm the dismissal of these two claims against
Boxborough. Since we can affirm the dismissal "on any basis made
apparent by the record," McCloskey v. Mueller, 446 F.3d 262, 266
(1st Cir. 2006), we lay out our own rationale below.
To start, we assess whether the discretionary function
exception applies. Assuming for argument's sake that Gath had
some discretion in deciding how to enforce the Order, for the
exception to apply we must determine that the discretion he
exercised "is that kind of discretion for which § 10(b) provides
immunity from liability." Harry Stoller & Co. v. City of Lowell,
587 N.E.2d 780, 782 (Mass. 1992). "The discretionary function
exception is narrow, providing immunity only for discretionary
conduct that involves policymaking or planning," but not the
implementation of a policy. Greenwood v. Town of Easton, 828
N.E.2d 945, 948 (Mass. 2005) (cleaned up). Here, Bache alleges
that Gath failed to act and stop Oakes from taking certain
property, despite the Order's requirement that she only take "small
items, clothes, and shoes." In other words, Bache complains of
how Gath implemented the Order. So, Bache has not alleged any
policymaking or planning conduct on Gath's part to bring his
conduct under the narrow discretionary function exception. See
id.; cf. A.L. v. Commonwealth, 521 N.E.2d 1017, 1024 (Mass. 1988) - 5 - (probation officer not making policy or planning decision when
deciding whether individual had complied with terms of their
probation); Irwin v. Town of Ware, 467 N.E.2d 1292, 1299 (Mass.
1984) (police officer not making policy or planning decision when
deciding whether to remove drunk driver from the road).
Still, we affirm the dismissal of Bache's negligence-
based claims because we agree with the alternative ground that
Boxborough offered in its brief, see Mass. Gen. Laws ch. 258,
§ 10(j) (2022), and to which Bache offered no rejoinder, not even
filing a reply brief. Section 10(j) applies to Gath's employer,
Boxborough, and "exclude[s] liability for an act or failure to act
to prevent or diminish [any] harmful consequences . . . including
the violent or tortious conduct of a third person.” Brum v. Town
of Dartmouth, 704 N.E.2d 1147, 1153 (Mass. 1999) (quoting ch. 258,
§ 10(j) and cleaned up). The Massachusetts Supreme Judicial Court,
whose lead we must follow here, has broadly read this statutory
language to provide "immunity [from] all consequences except where
the condition or situation was originally caused by the public
employer.” Id. (cleaned up); see also Stahr v. Lincoln Sudbury
Reg'l High Sch. Dist., 102 N.E.3d 995, 999 (Mass. App. Ct. 2018)
("10(j) confers significant protection from tort liability to
public employers."). To be "originally caused" by the employer,
and therefore outside of 10(j) immunity, the employer's conduct
must have "materially contributed to creating a condition or - 6 - situation that resulted in [the plaintiff's] injuries." Cormier
v. City of Lynn, 91 N.E.3d 662, 666-67 (Mass. 2018). Here, Bache's
complaint alleges that Oakes -- a third person -- took some of his
property on the collection day that he agreed to and made part of
the Order. The Order, which we reiterate was crafted by the
parties, required a police officer to be present. Once there,
Bache alleges, Gath failed to intervene and stop Oakes when she
helped herself to his property. In other words, Gath's allegedly
harmful conduct was a failure to act, but neither Gath nor
Boxborough originally created the circumstances by which Oakes
took his property, thus bringing these claims right under 10(j)'s
immunity shield. See id. at 667 (holding that "claims [were]
barred by § 10(j) because they originate[d] from a failure to act
rather than an affirmative act"); Stahr, 102 N.E.3d at 1000
(affirming dismissal under 10(j) because plaintiff's complaint was
"premised on the defendant's failure to act").
While we have not addressed all of Bache's arguments, we
have carefully considered each of them. For the reasons discussed
above and those given in the district court's thorough analysis of
all of Bache's claims, we affirm the dismissal. Costs to
Appellees.
- 7 -