McClure v. Town of East Brookfield

9 Mass. L. Rptr. 680
CourtMassachusetts Superior Court
DecidedMarch 11, 1999
DocketNo. 972004B
StatusPublished
Cited by2 cases

This text of 9 Mass. L. Rptr. 680 (McClure v. Town of East Brookfield) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McClure v. Town of East Brookfield, 9 Mass. L. Rptr. 680 (Mass. Ct. App. 1999).

Opinion

Hillman, J.

The matter is before the court on the defendants’ motion summary to Mass.R.Civ.P. 56. For the reasons discussed below, defendants’ motion for summary judgment is ALLOWED in part and DENIED in part.

BACKGROUND

The plaintiffs have sued the defendants seeking monetary damages for the alleged failure of the chief of police and the town to protect them from physical and mental abuse that was visited upon them by Thomas McClure the husband and father of the plaintiffs. The plaintiffs’ five-count complaint seeks relief under G.L.c. 12, §§11H and 111 (the Massachusetts Civil Rights Act); G.L.c. 93, §102 (the Massachusetts Equal Rights Act); the Massachusetts Declaration of Rights, specifically Articles I, X, XI, XII, andXVI; G.L.c. 209A (the domestic abuse prevention statute); and, G.L.c. 258 (the Massachusetts Tort Claims Act).

The defendants have filed a motion for summary judgment alleging that the plaintiffs’ complaints are barred by the applicable statutes of limitations, that the complaints fail to state a claim upon which relief may be granted, that the defendant Chief of Police Hunderup is entitled to qualified immunity, and that the alleged failure of the town to protect the plaintiffs is specifically barred by the immunity provision of G.L.c. 258, §§ 10(b) and 10(j).

DISCUSSION

This court grants summary judgment where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community Nat’l. Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating that there is no genuine issue of material fact on every relevant [681]*681issue. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts establishing the existence of a genuine issue of material fact. Id. at 17. For purposes of judging whether summary judgment should be granted, the existence of disputed facts is consequential only if those facts have a material bearing on disposition of the case. Norwood v. Adams-Russell Co., 401 Mass. 677, 683 (1988).

I. Is plaintiffs’ action barred by the applicable statute of limitations?

It is undisputed that the applicable statute of limitations with respect to the claims made in this case is three years. G.L.c. 260, §2A (1992 ed.). Five of the six plaintiffs are minors and thus their claims will not begin to run until their 18th birthdays. G.L.c. 260, §7. Plaintiff Donna McClure is of the age of majority and her claims must have arisen within three years preceding the date of the filing of the complaint, i.e. September 1997. She alleges a continuing course of conduct commencing in February 1993 and terminating upon the sale of her home in 1998. It is a question of fact whether the conduct attributed to the defendants was indeed continuing or whether it ended prior to September 1994. Pagliuca v. City of Boston, 35 Mass.App.Ct. 820, 824 (1994).

II. Failure to state a claim under Count I and Count III of the plaintiffs’ first amended complaint

The first count of plaintiffs’ first amended complaint makes a claim for relief under the Massachusetts Civil Rights Act (G.L.c. 12, §§11H and 111) (the "MCRA”). The third count makes a claim directly under the Massachusetts Declaration of Rights. Under the MCRA, the remedy is specifically limited to those instances where a defendant interfered with a plaintiffs rights by “threats, intimidation or coercion.” Bell v. Mazza, 394 Mass. 176, 182 (1985). The MCRA requires an intentional act, in the sense that the actor desires to cause the consequences of his act or he believes that the consequences are substantially certain to result from it. Breault v. Chairman of the Bd. of Fire Comm’rs of Springfield, 401 Mass. 26, 36 n.12 (1987).

Taken in the light most favorable to plaintiffs, there are, in the opinion of this court, material issues of fact as to whether the defendant Hunderup interfered with rights secured to the plaintiffs by the United States and/or the Commonwealth through threats, intimidation, or coercion and whether he violated rights secured directly under the Massachusetts Declaration of Rights. Accordingly, summary judgment is inappropriate for defendant Hunderup on Counts I and III.

Massachusetts’ courts have not yet determined the standard of proof necessary to hold a municipality liable under either the MCRA or the Massachusetts Declaration of Rights. Our Supreme Judicial Court has indicated that it would follow the holding of Monell v. Dep’t of Social Servs. of the City of New York, 436 U.S. 658 (1978). Monell held that a municipality may be liable for civil rights violations committed by its employees “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” Id. at 694. It therefore follows that in order to have municipal liability under the MCRA there must be an allegation of a deprivation of a right secured by the Commonwealth or United States through the “execution of a government’s policy or custom” by threats, intimidation or coercion. Rodrigues v. Furtado, 410 Mass. 878, 889, n. 14 (1991).

It appears from the exhibits submitted by the plaintiffs in opposition to the motion, that the Town of East Brookfield has adopted the so called “weak chief’ statute, G.L.c. 41, §97 (1994 ed.),3 in which the board of selectmen of the town are the head of the police department (as opposed to the “strong chief’ statute, G.L.c. 41, §97A, which places the police chief as the policy maker of the police department). Since the defendant Hunderup is not the chief law enforcement policy-making official of the town, his conduct cannot be said to represent official policy or custom. Plaintiffs do not allege that they communicated their problems to the selectmen, or that the selectmen executed a policy aimed at threatening, intimidating or coercing plaintiffs from executing their rights.

Here, plaintiffs’ allegation that the town had an “official policy" or “custom" of failing to train, discipline or supervise its employees, without more, fails to state a claim under the MCRA. Rodrigues v. Furtado, 410 Mass. 878, 889 (1991); Andujar v. City of Boston, 760 F.Supp. 238, 241 (D.Mass. 1991); Elizabeth M. Fahey, Municipal Torts and Civil Rights Claims, 80-81 (1998). But see Nashoba Valley Christian Fellowship, Inc. v. Town of Ayer, 623 F.Supp. 542 (D.Mass. 1985) (allegations sufficient to state claim under MCRA for direct, as opposed to vicarious, liability where policy-making police chiefs decision to use police harassment to prevent a “public street ministry” from distributing religious pamphlets).

Moreover, although no Massachusetts case has clearly denied liability under the MCRA on the ground of respondeat superior, interpretations of the federal civil rights act are generally applied by Massachusetts courts in interpreting and applying the MCRA. Duarte v. Healy, 405 Mass. 43, 47 (1989). There is no respondeat superior liability under federal civil rights law, Monell v. Department of Social Services, supra

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9 Mass. L. Rptr. 680, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclure-v-town-of-east-brookfield-masssuperct-1999.