George MacKie v. Katrin Rouse-Weir.

• Court: Massachusetts Appeals Court
• Decided: July 31, 2023
• Docket: 22-P-0268
• Status: Unpublished

Opinion

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.

2 800, 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

4 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,

5 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

6 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.

7 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

8 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.