United States Court of Appeals For the First Circuit
No. 19-1187
ROLANDO PENATE,
Plaintiff, Appellee,
v.
JAMES HANCHETT,
Defendant, Appellant,
ANNE KACZMAREK; KRIS FOSTER; RANDALL E. RAVITZ; JOSEPH BALLOU; ROBERT IRWIN; RANDY THOMAS; SONJA FARAK; SHARON SALEM; JULIE NASSIF; LINDA HAN; ESTATE OF KEVIN BURNHAM; STEVEN KENT; JOHN WADLEGGER; GREGG BIGDA; EDWARD KALISH; and CITY OF SPRINGFIELD,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Katherine A. Robertson, U.S. Magistrate Judge]
Before
Lynch, Selya, and Barron, Circuit Judges.
Joshua D. Jacobson, Assistant Attorney General, with whom Maura Healey, Attorney General of Massachusetts, and Adam Hornstine, Assistant Attorney General, were on brief, for appellant. Luke Ryan, with whom Sasson, Turnbull, Ryan & Hoose was on brief, for appellee. December 13, 2019 LYNCH, Circuit Judge. This appeal raises issues under
the clearly established law prong of the qualified immunity test
for supervisory state officials. A magistrate judge concluded
that a state drug lab supervisor, defendant-appellant James
Hanchett, is not entitled to qualified immunity from a claim
brought by plaintiff-appellee Rolando Penate under 42 U.S.C.
§ 1983. The claim alleged that Hanchett's inadequate supervision
of a drug lab chemist constituted deliberate indifference to
Penate's constitutional rights. The magistrate judge denied
Hanchett's motion to dismiss that claim. Penate v. Kaczmarek, No.
3:17-30119-KAR, 2019 WL 319586, at *12-13 (D. Mass. Jan. 24, 2019).
This ruling was in error, and we reverse and direct entry of
dismissal on the § 1983 claim.
We also vacate and remand the denial of Hanchett's motion
to dismiss an intentional infliction of emotional distress state
law claim, as our qualified immunity ruling eliminates the sole
basis for asserting federal jurisdiction over that claim.
I.
A. Facts Alleged in the Complaint
"We accept all well-pleaded facts as true and draw all
reasonable inferences in favor of the non-moving party." Starr
Surplus Lines Ins. Co. v. Mountaire Farms Inc., 920 F.3d 111, 114
(1st Cir. 2019) (alterations and internal quotation marks omitted)
(quoting Fantini v. Salem State Coll., 557 F.3d 22, 26 (1st Cir.
- 3 - 2009)). Facts are drawn from the complaint, and, where not in
conflict with the complaint's factual allegations, from the
decision in Commonwealth v. Cotto, No. 2007770, 2017 WL 4124972
(Mass. Super. Ct. June 26, 2017), which was referenced in the
complaint and relied on by the magistrate judge and both parties
in this appeal. See San Gerónimo Caribe Project, Inc. v. Acevedo-
Vilá, 687 F.3d 465, 471 & n.2 (1st Cir. 2012) (en banc).
From the 1960s until July 2012, the Massachusetts
Department of Public Health ("DPH") operated the Amherst Drug Lab
(the "Lab") on the campus of the University of Massachusetts.
Massachusetts State Police assumed operation of the Lab from July
2012 until the Lab closed on January 18, 2013. The Lab analyzed
samples submitted by law enforcement agencies in the Commonwealth
to determine whether the samples contained controlled substances.
Chemists at the Lab tested thousands of samples a year.
For example, in the 2011 fiscal year, three chemists working in
the Lab each tested an average of 2,052 samples. The Lab's
chemists, as part of their analyses, regularly compared testing
results from the unknown samples against results from known drug
"standards" using a Gas Chromatographer/Mass Spectrometer. After
they completed their analyses, the chemists created and signed
drug certificates certifying that the drug sample contained a
controlled substance. They also sometimes testified in court.
- 4 - Sonja Farak was hired by DPH in July 2003 as a drug lab
chemist. In 2004, she was transferred to the Amherst Lab where
Hanchett worked. That same year, she started stealing and abusing
on a near-daily basis the methamphetamine oil that the Lab kept in
an opaque bottle as a standard. The Lab's supervisor at that time
apparently did not catch these thefts by Farak. Like Farak,
Hanchett was also then a chemist employed at the Amherst Drug Lab.
In 2008, Hanchett was promoted to be the Lab's
supervisor. As supervisor, he did not often engage in direct
oversight of the three other employees at the Lab. The complaint
alleges Hanchett did not retest samples to ensure the accuracy of
chemists' results, observe chemists during the testing process,
review chemists' notebooks, audit the evidence stored at the Lab,
or initiate any conversations with his staff about Lab procedures.
He also never gave Farak or the other chemists any formal
performance evaluations. The Lab was understaffed and
underfunded, and in these difficult conditions, Hanchett relied on
his "trusted employees" to work largely unsupervised.
Soon after Hanchett was promoted, Farak overheard him
talking about an audit he was planning to perform of the Lab's
supplies. She realized that, after her almost four years of
stealing, the Lab's supply of methamphetamine oil was
substantially depleted. Farak added water to the oil to cover up
her drug use. During the 2008 audit, Hanchett noticed the sample's
- 5 - strange appearance but "surmised that the drug was just degrading."
After this, Farak started stealing and using the Lab's other drug
standards, including amphetamine, phentermine, ketamine, cocaine,
ecstasy, marijuana, and LSD.
By at least April of 2009, Farak had expanded from
stealing standards to a new source of drugs. She started taking
and using a portion of the drugs from some of the samples that had
been submitted by law enforcement officers for testing. To
facilitate these thefts, she would sometimes partially disable the
machine in the Lab that heat-sealed evidence bags, which allowed
her to break the seals more easily and steal from the drugs within.
At least twice in 2010, she expressed concern to her
therapist that her co-workers might suspect her drug abuse. By
the fall of 2011, she was heavily addicted to crack cocaine,
smoking the drug more than ten times a day, including at the Lab.
It was during this period, the fall of 2011, that samples
from the substances Penate allegedly sold to an undercover police
officer were assigned to Farak for testing. She reported testing
the Penate drug samples on December 22, 2011, January 6, 2012, and
January 9, 2012. She reported that they were positive for the
presence of a controlled substance and signed the drug certificates
in Penate's case. The samples were returned to the state police
on January 11, 2012. On February 1, 2012, prosecutors presented
Farak's drug certificates to the grand jury, which relied on them
- 6 - to indict Penate. No one else, including Hanchett, reviewed or
confirmed her work on these samples.
It is not specifically alleged that Farak took any of
the Penate drug samples for her own use, but it appears she did
use other police-submitted drugs during the period in which she
was testing Penate's samples. On December 22, 2011, she wrote on
a diary card she was keeping as part of her treatment for drug
addiction: "tried to resist using @ work but ended up failing."
Penate's § 1983 complaint alleges that on January 9, 2012 (the day
of her last test of the Penate samples), Farak smoked crack cocaine
in the morning, stole LSD from a police-submitted sample (unrelated
to Penate's criminal case), and then "spen[t] the remainder of her
work day hallucinating."
The complaint further alleges that, because Farak was
abusing drugs, Farak handled Penate's samples improperly, possibly
resulting in the return of items Penate "was not charged with
distributing or possessing." When the samples in Penate's case
were returned to the officer who brought them to the Lab, they no
longer matched the descriptions on the evidence tags. Most
significantly, an unexplained packet labeled "MOONWALK" was
improperly included among the materials that were returned.
Events after Farak had tested the Penate drug samples
led to her undoing. By April of 2012, months after she had done
the testing of the Penate samples, Farak was stealing from an
- 7 - increasing number of police-submitted samples. In the summer of
2012, she began stealing from samples assigned to other chemists
in the Lab, including Hanchett, who not only acted as supervisor
then but also had his own samples to test. Several times that
year, Farak manufactured crack cocaine from powdered cocaine at
the Lab for her personal use. At unknown times throughout her
employment at the Lab, Farak's drug abuse caused her to
hallucinate, "to experience what she described as 'ridiculously
intense cravings,' to feel like her mind was racing, and to take
frequent breaks from work to use drugs."
Also in the summer of 2012, the misconduct of another
DPH chemist, Annie Dookhan, employed at a different DPH drug lab,
came to light. In response, Hanchett did a second audit of the
Lab's standards and found that many were at much lower levels than
anticipated or were missing altogether. He spoke with another
chemist in the Lab about the possibility of wrongdoing but did not
otherwise act on his findings. Although he had an obligation as
the holder of a federal license "to make a report of any missing
narcotics at his lab," he did not do so.
A year after the Penate tests, in early January 2013,
Farak made crack cocaine at the Lab. Hanchett found a leftover
beaker with a white residue on it. He confronted Farak, she denied
knowing anything about it, and he, in the face of that denial,
- 8 - mistakenly "decided another coworker must have brought her
daughter to the lab and did a science experiment."
Within a few weeks of the beaker incident, on January
18, 2013, another employee at the Lab told Hanchett that two
cocaine samples assigned to Farak were missing. That employee and
Hanchett found the samples, cut open, in a manila envelope.
Hanchett called the state police that day, setting off a rapid
investigation that ultimately led to the termination of Farak's
employment and state criminal charges against Farak. Farak pleaded
guilty on January 6, 2014 to multiple counts of evidence tampering,
larceny of controlled substances from a dispensary, and unlawful
possession of a Class B substance.
On July 15, 2013, after knowledge of Farak's drug abuse
became public but before she was convicted, Penate moved to dismiss
the charges against him. The Hampden County Superior Court denied
Penate's motion, finding, based on the evidence available at the
time, that Farak's misconduct postdated her testing of Penate's
samples.
Penate's state criminal case went to trial on December
9, 2013. His lawyer tried to make government misconduct a central
part of Penate's defense, but he was limited in his ability to do
so by a series of unfavorable rulings. The Commonwealth did not
rely on Farak's test results and instead introduced test results
done on August 8, 2013 by a chemist at a different lab that showed
- 9 - that the substances Penate allegedly sold to undercover police
officers were, in fact, heroin. On December 13, 2013, Penate was
convicted of a single count of distributing a Class A substance.
He was sentenced to five to seven years in state prison.
When the fuller scope of Farak's drug abuse came to
light, Penate moved for a new trial on May 21, 2015. On June 26,
2017, Penate's conviction was vacated, his indictment was
dismissed with prejudice,1 and he was released from prison the next
day. See Cotto, 2017 WL 4124972, at *46-47.
B. History of the Federal § 1983 Suit
Penate brought this lawsuit on September 5, 2017 under
§ 1983 against the City of Springfield and officials from DPH, the
Massachusetts State Police, the Attorney General's Office of the
Commonwealth, and the Springfield Police Department, along with a
pendent state law claim against all the individual defendants for
1 The full scope of Farak's drug abuse was not discovered until October 30, 2014. A Superior Court judge had previously determined that there was no evidence Farak engaged in misconduct prior to July 2012. At that time, Assistant Attorney Generals Anne Kaczmarek and Kris Foster had withheld exculpatory evidence that strongly suggested Farak's drug abuse went back at least six months prior to July 2012, including the time period in which Farak tested Penate's drug samples. See Penate v. Kaczmarek, 928 F.3d 128, 131-34 (1st Cir. 2019). The Superior Court order that vacated the conviction found that Kaczmarek and Foster's misconduct, apart from Farak's misconduct, provided three independent bases for dismissing Penate's indictment with prejudice: they committed a "fraud upon the court," caused Penate to be "irremediably prejudiced," and caused Penate "irremediable harm." Cotto, 2017 WL 4124972, at *47.
- 10 - intentional infliction of emotional distress. Most of the
defendants moved to dismiss, and the magistrate judge2 granted some
of the motions.3
Specifically as to Hanchett, Penate alleged that
Hanchett had supervisory liability under § 1983 because he was
"deliberately indifferent" to Penate's constitutional due process
rights by "providing insufficient training, failing to properly
supervise chemists, . . . failing to implement policies to ensure
quality of work product and compliance with chain of custody
measures, and failing to safeguard the evidence submitted to the
lab for chemical analysis." Penate also alleged that Hanchett,
along with all of the other defendants, engaged in "extreme and
outrageous" conduct that qualified as intentional infliction of
emotional distress.
The magistrate judge denied Hanchett's motion to dismiss
the § 1983 claim on the basis that the law was clearly established
that state lab chemists and their supervisors have a duty under
Brady v. Maryland, 373 U.S. 83 (1963), to disclose exculpatory
evidence to the prosecutor. Penate v. Kaczmarek, 2019 WL 319586,
2 All parties consented to the case being assigned to a magistrate judge for all purposes including entry of final judgment. See 28 U.S.C. § 636(c). 3 Another one of the defendants, Anne Kaczmarek, also appealed the magistrate judge's denial of her motion to dismiss. This court decided Kaczmarek's appeal in Penate's favor. See generally Kaczmarek, 928 F.3d 128. That appeal did not involve qualified immunity issues.
- 11 - at *7-9. The magistrate judge extrapolated from that that
Hanchett, as Farak's supervisor, "should have been on notice" that
"willfully turning a blind eye to indications of evidence tampering
by a lab chemist could be a basis for liability [under § 1983] to
a defendant whose due process rights were violated." Id. at *12.
The magistrate judge found that this same behavior --
characterized as showing a disregard for "repeated red flags" --
was enough to state a claim for intentional infliction of emotional
distress under state law because it was evidence of a "deliberate
disregard of a substantial probability that his actions [would]
produce severe emotional distress." Id. at *15 (alteration in
original) (quoting Limone v. United States, 579 F.3d 79, 95 (1st
Cir. 2009)). This timely appeal ensued.
II.
A. Jurisdiction and Standard of Review
"[A] district court's order rejecting qualified immunity
at the motion-to-dismiss stage of a proceeding is a 'final
decision' within the meaning of [28 U.S.C.] § 1291" and is
immediately appealable. Ashcroft v. Iqbal, 556 U.S. 662, 672
(2009) (quoting Behrens v. Pelletier, 516 U.S. 299, 307 (1996));
see also Air Sunshine, Inc. v. Carl, 663 F.3d 27, 32 (1st Cir.
2011). We review the denial of a motion to dismiss de novo. Air
Sunshine, Inc., 663 F.3d at 32. There are no material facts in
dispute precluding the exercise of appellate jurisdiction on the
- 12 - qualified immunity issue. McCue v. City of Bangor, 838 F.3d 55,
61-62 (1st Cir. 2016).
B. Qualified Immunity Framework
Qualified immunity provides defendant public officials
"an immunity from suit rather than a mere defense to liability."
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); see also Maldonado
v. Fontanes, 568 F.3d 263, 268 (1st Cir. 2009).
The qualified immunity inquiry proceeds with a now-
familiar two-part test: "(1) whether the facts alleged or shown by
the plaintiff make out a violation of a constitutional right; and
(2) if so, whether the right was 'clearly established' at the time
of the defendant's alleged violation." Rocket Learning, Inc. v.
Rivera-Sánchez, 715 F.3d 1, 8 (1st Cir. 2013) (quoting Maldonado,
568 F.3d at 269).
Courts need not engage in the first inquiry and may
choose, in their discretion, to go directly to the second. See,
e.g., Eves v. LePage, 927 F.3d 575, 584 (1st Cir. 2019) (en banc).
We do so here.
The "clearly established" inquiry itself has two
elements. MacDonald v. Town of Eastham, 745 F.3d 8, 12 (1st Cir.
2014). "The first focuses on the clarity of the law at the time
of the violation. The other aspect focuses more concretely on the
facts of the particular case and whether a reasonable defendant
would have understood that his conduct violated the plaintiff's
- 13 - constitutional rights." Drumgold v. Callahan, 707 F.3d 28, 42
(1st Cir. 2013) (internal citation omitted). The inquiry is
context-dependent; rights cannot be established "as a broad
general proposition." Reichle v. Howards, 566 U.S. 658, 665 (2012)
(quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per
curiam)).4
This test is refined further in supervisory liability
cases. The "clearly established" inquiry as to supervisors is
bifurcated and is satisfied only when "(1) the subordinate's
actions violated a clearly established constitutional right, and
(2) it was clearly established that a supervisor would be liable
for constitutional violations perpetrated by his subordinates in
that context." Camilo-Robles v. Hoyos, 151 F.3d 1, 6 (1st Cir.
1998). If the constitutional right and the availability of
supervisory liability that underlie a plaintiff's § 1983 claim are
both clearly established, the qualified immunity analysis "reduces
to the test of objective legal reasonableness." Id. at 6. Under
this latter test, we ask "whether, in the particular circumstances
confronted by [the] appellant, [the] appellant should reasonably
4 The parties disagree about the date we should use for determining whether the law with respect to the Brady obligations of lab chemists and the attendant potential liability of lab supervisors was clearly established. Hanchett submits that we should look to the state of the law in 2012, while Penate would have us examine the legal landscape as of his trial in December 2013. That dispute is immaterial to our analysis.
- 14 - have understood that his conduct jeopardized those rights,"
whether through deliberate indifference or otherwise. Id. at 7.
This question involves merits-like analysis but is analytically
distinct and confined to the qualified immunity inquiry. Id. at
6-7.
Although we harbor grave doubts about both propositions,
we will assume, without deciding, that it was clearly established
as early as 2012 that lab chemists could be held liable for
withholding exculpatory evidence under Brady and that a
deliberately indifferent lab supervisor could be held liable for
Brady violations perpetrated by subordinate chemists.5 As in
Camilo-Robles, then, our inquiry centers on whether Hanchett,
under the specific facts alleged in this case, should have
"understood that his conduct jeopardized" Penate's constitutional
rights. Id. at 7. We hold that Hanchett is entitled to qualified
immunity because, under the circumstances alleged, an objectively
reasonable lab supervisor would not have discerned that his acts
and omissions threatened to violate the constitutional rights of
5 The magistrate judge, in holding that it was clearly established at the time of the alleged violation that lab chemists had disclosure obligations under Brady and that deliberately indifferent lab supervisors could be held liable for chemists' Brady violations, relied heavily on non-binding decisions and decisions that postdate the alleged violation. See Penate, 2019 WL 319586, at *7-9. The focus of the clearly established law inquiry, however, must remain on "controlling authority" that existed at the time of the alleged constitutional violation. See Eves, 927 F.3d at 583.
- 15 - criminal defendants whose suspected narcotics were being tested at
the Lab.
C. Supervisory Liability
By 2013, certain general principles of where supervisory
liability could and could not be imposed were clearly established.
Supervisors cannot be held liable under a theory of respondeat
superior. Iqbal, 556 U.S. at 676; Maldonado-Denis v. Castillo-
Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994). Liability cannot
rest on a defendant's position of authority alone. Ocasio-
Hernández v. Fortuño-Burset, 640 F.3d 1, 16 (1st Cir. 2011). Nor
is alleging mere negligence by a supervisor enough. Ramos v.
Patnaude, 640 F.3d 485, 490 (1st Cir. 2011).
As of 2013, several First Circuit cases had said
liability for supervisors is only triggered under § 1983 if "a
plaintiff can establish that his or her constitutional injury
resulted from the direct acts or omissions of the official, or
from indirect conduct that amounts to condonation or tacit
authorization." Grajales v. P.R. Ports Auth., 682 F.3d 40, 47
(1st Cir. 2012) (quoting Ocasio-Hernández, 640 F.3d at 16).
A plaintiff must allege a strong causal connection, or
"an 'affirmative link between the behavior of a subordinate and
the action or inaction of his supervisor . . . such that the
supervisor's conduct led inexorably to the constitutional
violation.'" Feliciano-Hernández v. Pereira-Castillo, 663 F.3d
- 16 - 527, 533 (1st Cir. 2011) (omission in original) (quoting Soto-
Torres v. Fraticelli, 654 F.3d 153, 158 (1st Cir. 2011)).
A supervisor "may be liable for the foreseeable
consequences" of a subordinate's conduct if the supervisor "would
have known of it but for his deliberate indifference or willful
blindness."6 Camilo-Robles, 151 F.3d at 7 (quoting Maldonado-
Denis, 23 F.3d at 582). To establish deliberate indifference, a
plaintiff must show "(1) grave risk of harm, (2) the defendant's
actual or constructive knowledge of that risk, and (3) his failure
to take easily available measures to address the risk." Id.
This test for liability draws on the long-established
principle that "[n]otice is a salient consideration in determining
the existence of supervisory liability." Id. (emphasis added).
D. Application of the Supervisory Liability Qualified Immunity Standard
Penate argues that Hanchett is liable for Farak's
actions because Farak's behavior, coupled with Hanchett's general
lack of supervision in the Lab, must have given him constructive
notice that there was a substantial risk that Farak was abusing
drugs while testing the drug samples in Penate's case. His
complaint points to three discrete events which, according to
6 As we said in Maldonado, we do not need to resolve here whether the Supreme Court's decision in Iqbal, 556 U.S. at 677, has altered these or other pre-Iqbal supervisory liability standards. Maldonado, 568 F.3d at 274 n.7.
- 17 - Penate, should have put Hanchett on notice. We disagree that these
events, singly or in combination, provided sufficient warning to
Hanchett to constitute constructive notice that his actions or
inactions amounted to a violation of Penate's rights, so as to
make him deliberately indifferent to Penate's constitutional
rights.
First, during a 2008 audit, Hanchett noticed that the
methamphetamine oil the Lab kept as a standard was not in the
condition he expected it to be. He "surmised the drug was just
degrading," and did not realize that Farak had added water to the
standard. Next, four years later, chemist Annie Dookhan's
misconduct at a different DPH lab came to light, and Hanchett, in
the late summer or early fall of 2012, while the Amherst Lab was
very busy, did another audit of the Lab's standards and found that
many of them were at far lower levels than he anticipated. He
suspected possible wrongdoing but did not act on that suspicion.
Finally, in January 2013, Hanchett found a beaker with some unknown
liquid and white residue on its edge. He asked Farak about it.
After Farak denied knowing anything about it, Hanchett "decided
another coworker must have brought her daughter to the lab and did
a science experiment."7
7 There is no allegation in the complaint that a co-worker did not have a daughter or that the co-worker never brought her daughter to the Lab.
- 18 - Hanchett's failure to investigate further in response to
these three incidents, singly or collectively, did not rise to the
level of "deliberate indifference." While this court has said
that a "known history of widespread abuse [can be] sufficient to
alert a supervisor to ongoing violations," Maldonado-Denis, 23
F.3d at 582, there are no allegations of such a "known history"
here, nor do the facts alleged come close to that. Indeed, we
have repeatedly cautioned that knowledge of "isolated instances"
of even confirmed unconstitutional activity is ordinarily
insufficient to show deliberate indifference. See Estate of
Bennett v. Wainwright, 548 F.3d 155, 178 n. 7 (1st Cir. 2008)
(quoting Maldonado-Denis, 23 F.3d at 582). These particular
incidents, far from being instances of known unconstitutional
activity, were all plausibly subject to explanations which would
not reasonably trigger further investigation.
Penate counters that these incidents should not be read
on their own but should be interpreted in light of the later-
acquired knowledge that Farak was either actively abusing drugs or
suffering from withdrawal for virtually the entire time she was
employed at the Lab. Without accepting the premise, we note that
Farak kept her drug abuse a secret and took steps to cover up her
thefts. When directly questioned about the beaker with the
residue, she lied and denied any knowledge of it. There is no
allegation that anyone in the Lab, not Hanchett, not his
- 19 - predecessor, and not Farak's co-workers, thought Farak was abusing
drugs, much less that any such abuse led to her falsifying results.
Supervisors are expected to draw reasonable inferences, but
Hanchett was not in a better position to deduce what many others
also did not. The allegations here do not even claim that there
was a record of prior discipline of Farak based on any failures to
follow lab regulations.
Penate pleads many facts about the Lab's lax security
protocol and Hanchett's failure to oversee meaningfully the
chemists under his supervision. But even if Hanchett were
negligent in his supervisory duties, that does not suffice. These
general allegations do not show Hanchett was on notice that his
supervisory failings amounted to a violation of "the
constitutional rights of others."8 Gutierrez-Rodriguez v.
Cartagena, 882 F.2d 553, 562 (1st Cir. 1989) (emphasis added);
accord Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir.
2006) (affirming that a complaint claiming supervisory liability
against lab supervisors should be dismissed when the plaintiff
8 We also reject Penate's argument that the pleading standards for qualified immunity in a supervisory liability case should be relaxed at the motion to dismiss stage. We rejected a similar argument in Saldivar v. Racine, 818 F.3d 14, 19-20 (1st Cir. 2016), a motion to dismiss case which held the plaintiff to the pleading standards set forth in Iqbal, 556 U.S. at 678, that the claim must be "plausible on its face." We note that this § 1983 complaint was brought only after Penate had the facts from extensive investigations into Farak's misconduct and the Amherst Lab and the findings by the Massachusetts courts.
- 20 - only alleges that they "failed to review their subordinates'
work").
In sum, Penate has not shown that, under the facts
alleged, Hanchett clearly acted with deliberate indifference to
Farak's alleged Brady violations or otherwise should have
understood that his acts or omissions jeopardized Penate's
constitutional rights. Accordingly, Hanchett is entitled to
qualified immunity, and we reverse the district court's denial of
Hanchett's motion to dismiss the § 1983 claim.
E. Intentional Infliction of Emotional Distress
Hanchett also argues that we should reverse the district
court's denial of his motion to dismiss the state law claim for
intentional infliction of emotional distress because Penate failed
to state a claim. There is, though, a predicate question of
whether there is exercisable federal jurisdiction, both at the
appellate and district court level.
"Generally, interlocutory review of a decision denying
qualified immunity under § 1983 'does not in and of itself confer
[appellate] jurisdiction over other contested issues in the
case.'" Hunt v. Massi, 773 F.3d 361, 371 (1st Cir. 2014) (quoting
Suboh v. Dist. Att'y's Office of Suffolk Dist., 298 F.3d 81, 97
(1st Cir. 2002)). "The Supreme Court has outlined two instances
in which pendent appellate jurisdiction may be appropriate: when
an issue is 'inextricably intertwined' with a denial of immunity,
- 21 - and if review of the pendent issue 'was necessary to ensure
meaningful review' of immunity." Lopez v. Massachusetts, 588 F.3d
69, 81-82 (1st Cir. 2009) (quoting Swint v. Chambers Cty. Comm'n,
514 U.S. 35, 51 (1995)). All circuits have adopted this test. See
id. at 82 (collecting cases).
Hanchett argues that, as framed by the magistrate judge,
the conduct that makes him potentially liable for intentional
infliction of emotional distress is essentially the same as that
which would make him liable under § 1983, and so the two issues
are "inextricably intertwined." See id. at 83.
This argument goes to the merits of the § 1983
supervisory liability claim and not to the second prong of
qualified immunity. Hanchett does not separately argue that any
ruling on our part on the clearly established prong of qualified
immunity is "inextricably intertwined," and so he has waived such
argument. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990). Regardless of that waiver, the qualified immunity issue is
not "inextricably intertwined" with the merits of the state law
claim.
The claim which provides the sole basis for federal
jurisdiction has now been dismissed. As we said in Suboh: "We
fully expect that the district court . . . will reevaluate its
earlier rulings in light of this opinion." 298 F.3d at 97. When
all federal-law claims are eliminated before trial, usually "the
- 22 - balance of factors [from United Mine Workers of America v. Gibbs,
383 U.S. 715, 726 (1966)] will point toward declining to exercise
jurisdiction over the remaining state-law claims." Eves v. LePage,
842 F.3d 133, 146 (1st Cir. 2016) (quoting Rivera-Díaz v. Humana
Ins. of P.R., Inc., 748 F.3d 387, 392 (1st Cir. 2014)), vacated in
part and reinstated in part by Eves, 927 F.3d at 589.
We also comment that a dismissal without prejudice may
enable the state courts, which are often better suited than are
federal courts to resolve questions of state law, to address these
malfunctions by the state drug testing labs.9
III.
We reverse and order the entry of dismissal of the § 1983
claim, and we vacate and remand the judgment on the intentional
infliction of emotional distress state law claim for further
consideration in light of this opinion. No costs are awarded.
9 State law has been rapidly developing since both the Farak and Dookhan crimes came to light. See Commonwealth v. Sutton, No. SJ-2019-0316 (Mass. Oct. 17, 2019) (single justice decision) (discussing what obligations members of the "prosecution team" have to defendants under state law); Commonwealth v. Ware, 27 N.E.3d 1204, 1212 (Mass. 2015) (same); Commonwealth v. Scott, 5 N.E.3d 530, 541-43 (Mass. 2014) (same); cf. Comm. for Pub. Counsel Servs. v. Attorney General, 108 N.E.3d 966, 986 (Mass. 2018) (distinguishing between misconduct by a lab chemist and misconduct by a prosecutor or investigator).
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