Sabey v. Butterfield, Dist. Court, D. Massachusetts 2024:
“Joshua Sabey and Sarah Perkins are the parents of two young children
who were removed from their home at 1:00 A.M. on a Saturday morning by
the Massachusetts Department of Child and Family Services (“DCF”) with
the assistance of police officers from the City of Waltham. The forced
removal took place without a warrant three days after an emergency room
doctor discovered that the youngest child had two healing rib fractures,
the cause of which was uncertain. Sabey and Perkins, individually and
on behalf of their two children, brought suit against the City of
Waltham, the four police officers who were present at the removal, and
the DCF employees involved in the removal in their personal capacities.
Both the DCF Defendants and the City of Waltham have moved to dismiss.
After review of the briefing and oral argument, the Court ALLOWS the
City of Waltham’s Motion to Dismiss (Dkt. 39) and ALLOWS the DCF
Defendants’ Motion to Dismiss (Dkt. 30) with respect to Count VIII only;
the latter motion is otherwise DENIED.
BACKGROUND
The facts below are taken from the Complaint and are assumed to be true.
I. Hospital Visit on July 12-13, 2022
At the time of the events, the older child (“C.S. 1”) was three years
old and the younger child (“C.S. 2”) was three months old. On July 12,
2022, C.S. 2 began vomiting and developed a fever. At around 2:00 A.M.,
Perkins took him to the emergency room at Newton Wellesley Hospital with
a 103.5 degree fever. Sabey remained home with C.S. 1. At the hospital,
it was determined that C.S. 2 had low oxygen levels and a respiratory
infection. In order to check his lungs for possible pneumonia, C.S. 2
was given an x-ray.
The x-ray revealed a healing rib fracture, which was estimated to be
between ten days and six weeks old. This discovery prompted an internal
hospital investigation. Perkins was informed of the fracture at 8:00
A.M. on July 13, and was questioned about the source of the injury. She
responded that neither she nor her husband knew about the rib fracture
and did not know what could have caused it. The hospital then ordered
more detailed imaging and further testing of C.S. 2, including a full
skeletal exam, which showed that the rib injury actually comprised two
adjacent healing rib fractures. The hospital requested permission to
conduct a brain scan, which Perkins initially declined. The brain scan
did not reveal any cause for concern.
As part of the hospital investigation, social worker Jill Saks
conducted interviews with Perkins at the hospital that day When pressed
by the social worker to speculate, Perkins suggested that the injuries
may have been caused by C.S. 2’s short fall from bed several weeks
before, which had not resulted in any apparent injury. Perkins denied
any physical or substance abuse in the home. Hospital officials also
spoke with the family’s pediatrician, Dr. Kristen Haddon, who reported
that she had no concerns about C.S. 2’s safety and well-being. At the
hospital’s request, C.S. 1 was brought to the pediatrician to be
medically cleared. After a thorough examination, the pediatrician found
no signs of abuse, mistreatment, or injury. That same day, the social
worker sent a report to DCF alleging physical abuse of C.S. 2 by his
parents. The report outlined the injuries to C.S. 2’s ribs and stated
that Perkins’s “affect” was “flat” and that she “rolled her eyes” when
questioned. The report also indicated that the rib fractures were not
consistent with a fall from a bed.
Shortly after receiving the report from the hospital, DCF sent
emergency response workers Axel Rivera and Ana Piedade to the hospital
to further investigate whether there were indications of abuse or
neglect. The hospital officials informed them that, with the exception
of the rib fractures, there were no signs of physical abuse, no signs of
substance abuse, and that the family’s pediatrician had told hospital
officials that she had no concerns about the children’s wellbeing. After
speaking with hospital officials, Rivera and Piedade individually
interviewed Sabey, Perkins, and C.S. 1. After the interviews, Sabey and
C.S. 1 returned home while Perkins and C.S. 2 were required to stay at
the hospital overnight. That night, Piedade and Rivera went to the
family’s home in Waltham, where they reported no concerns.
II. The Investigation Continues on July 14-15
The next morning, at about 9:30 A.M. on July 14, Rivera spoke with
Dr. Haddon. Dr. Haddon reported no concerns and was surprised to hear of
the injuries. Additionally, Dr. Haddon told Rivera that C.S. 2 was
medically up to date and that his parents take him to monthly
pediatrician visits, none of which had revealed any concerns of abuse,
injury, or neglect. In addition to speaking with the family’s
pediatrician, Rivera also spoke with Dr. David Dominguez, who had
completed the medical clearance on C.S. 1 the previous day. Dr.
Dominguez reported no concerns with C.S. 1 Rivera also contacted the
Waltham Police Department to request background checks on Sabey and
Perkins. Their background checks showed that there had been no police
calls to the home and revealed no concerns with either parent.
At about 3:00 P.M. on July 14, DCF officials allowed Perkins and C.S.
2 to leave the hospital and return home. That same day, around 5:00
P.M., Rivera spoke with Sabey over the phone about a safety plan for the
family, which he subsequently emailed. The family agreed to sign the
safety plan and to have a home visit on July 18.
Defendant Katheryn Butterfield, an Area Program Manager for DCF, was
informed of the C.S. 2 investigation the following day, July 15. Soon
after learning of the investigation, Butterfield ordered Rivera to go to
the Sabey home and to provide her with an update after the visit. At
about 5:15 P.M. that day, Rivera conducted an unannounced home visit. He
spoke with the family, observed both children, and ultimately reported
no concerns. Rivera reported that C.S. 1 “was walking around and was
smiling,” while C.S. 2 “looked presentable” while being held by his
visiting grandmother. Dkt. 1 at 11. During this unannounced home visit,
Rivera and the family agreed to also move forward with the previously
scheduled July 18 home visit.
III. Removal of the Two Children
At 6:00 P.M. that same day, a Friday, after receiving confirmation
from Rivera that he had completed his unannounced visit to the home,
Butterfield made the decision to remove the children from the home. She
made this determination based on the hospital’s discovery of C.S. 2’s
healing rib fractures and not on any new evidence or information found
during DCF’s investigation. At approximately 8:00 P.M., Defendant
Butterfield called Defendant Aaron Griffin, a supervisor with DCF, to
discuss a plan for the removal. About an hour later, at 9:00 P.M.,
Defendants Carolyn Kalvinek and Bonnie Arruda, officers with DCF, were
contacted and asked to proceed with the removal of the children from the
home. After a conversation with Defendant Griffin to gather more
information about the case and removal plan, Defendants Kalvinek and
Arruda went to the Waltham Police Department (“WPD”) station at around
12:30 A.M. to request assistance in removing the Sabey children. At
approximately 1:00 A.M., Kalvinek and Arruda from DCF, together with
three police officers from WPD — Defendants Anthony Scichilone, Elias
Makrigianis, and Stefano Visco — arrived at the Sabey home.
The Sabey home was a rented ground-floor apartment in a shared
building. It shared a common entryway, or breezeway, with a closed outer
front door that faced the street and was usually locked. The family
accessed their apartment through this front door since their apartment
door was located just inside the front door within the breezeway. The
stairs within the breezeway led to the upstairs tenants’ apartment, but
those tenants rarely used the front door and preferred to enter their
unit through a separate external door. As a result, the family used the
breezeway as an extension of their home, often locking the outer door
and using the space to store personal property, such as car seats and
strollers.
When the DCF and WPD officers arrived at the Sabey home, the police
officers, Defendants Makrigianis and Visco, opened and entered through
the outer front door into the breezeway. While standing within the
breezeway, Defendant Makrigianis knocked on the inner door to the home.
Sabey answered the inner door and asked the officials if they had a
warrant; they informed him they did not. In response, Sabey refused to
allow the DCF workers and WPD officials to enter the apartment, telling
them to leave and return with a warrant or other court order. The
officials remained on the property, including the breezeway, despite
Sabey’s repeated requests that they leave and return with a warrant or
other court order. One police officer stood against the front outer
door, intentionally jutting his elbow into the threshold to prevent any
attempt to close the outer door. Another officer stood on the bottom
step of the stairs within the breezeway, flanking the door to the home
on the left.
Eventually, the police officers told the family that DCF was taking
emergency custody of both children. None of the officials had any
paperwork on them. Instead, they claimed repeatedly (and falsely) to
have an “emergency order” that authorized them to take the children.
Dkt. 1 at 16. Concerned about the lack of paperwork, Defendant
Scichilone contacted his supervisor, Defendant Richard Couture, to seek
guidance about the removal. Sabey called the family’s lawyer, who then
spoke with Defendant Couture and other officials from DCF and WPD.
Defendant Couture and WPD officers informed the lawyer that if the
parents did not surrender the children, then the officers would break
into the home and seize the children by force. Faced with this
alternative, the parents woke their children up and placed them, crying,
into the DCF vehicle.
After removing the children at about 2:30 A.M. on Saturday, July 16,
Defendants Kalvinek and Arruda placed them in the care of a foster
parent. Later that day the children were placed in the care of their
paternal grandparents.
The following Monday, July 18, at approximately 4:15 P.M., almost
three days after the removal of the Sabey children from the home, DCF
filed a petition with the Juvenile Court seeking permission to continue
its custody of both C.S. 1 and C.S. 2. The court granted that petition,
gave emergency custody of the children to DCF, and scheduled a temporary
custody hearing.
The temporary custody hearing began on August 8, and lasted three
days. At the conclusion of the hearing, temporary custody of the
children was returned to their parents, subject to conditions. DCF
proceeded with an almost four-month investigation, which ultimately
failed to uncover any evidence of abuse, neglect, or maltreatment of the
children by their parents. For the next three months the parents did
not have full custody of their children.
LEGAL STANDARD
To survive a motion to dismiss for failure to state a claim under
Rule 12(b)(6) of the Federal Rules of Civil Procedure, the factual
allegations in a complaint must “possess enough heft” to set forth “a
plausible entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 559 (2007).
“Factual allegations must be enough to raise a right to relief above
the speculative level.” Id. at 555. “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In addressing a motion to dismiss, the Court must accept all
allegations in the complaint as true except legal conclusions. Id.
A preliminary issue is whether the Court should consider DCF’s
“Section 51B” investigative report of Sabey and Perkins, which was not
annexed to the Complaint but was referenced in it. Defendants argue that
the report, and certain audio recordings, should be considered. A court
may consider the allegations contained in the complaint and materials
“fairly incorporated into the complaint.” Rodi v. S. New Eng. Sch. of L., 389 F.3d 5, 12 (1st Cir. 2004).
Defendants point out that the Complaint refers to information in the
report, particularly with respect to the sequence of events. They ask
the Court to consider the eighteen-page report in its entirety,
including conclusions by DCF that the injuries were nonaccidental.
Though the report will likely be considered at summary judgment, I do
not agree that it was fairly incorporated in its entirety into the
Complaint. Defendants’ reliance on Goodall v. Worcester School Committee
is misplaced because the District Court there ultimately declined to
rely on the extraneous exhibits. 405 F. Supp. 3d 253, 259-60 (D. Mass.
2019).
DISCUSSION
I. Claims Against DCF Defendants in Violation of Fourth and Fourteenth Amendments (Count I)
Plaintiffs allege in Count I that the DCF Defendants conducted an
unreasonable search and seizure of their house and curtilage in
violation of the Fourth and Fourteenth Amendments. They assert there
were no exigent circumstances justifying the warrantless entry, that
they did not consent to the search, and the entry was by threat of
force. The DCF Defendants argue that exigent circumstances justified the
warrantless entry.
The Fourth Amendment provides that “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated.” U.S. Const.
amend. IV. The core of the Fourth Amendment is the right of a family to
retreat into their own home and “there be free from unreasonable
governmental intrusion.” Florida v. Jardines, 569 U.S. 1, 6 (2013) (quoting Silverman v. United States, 365 U.S. 505, 511 (1961))
(“But when it comes to the Fourth Amendment, the home is first among
equals”). Absent exigent circumstances, the threshold of a home “may not
reasonably be crossed without a warrant.” Payton v. New York, 445 U.S. 573, 590 (1980). This protection includes the “curtilage” which is the area “immediately surrounding and associated with the home.” Collins v. Virginia 584 U.S. 586, 592 (2018) (quoting Jardines, 569 U.S. at 6).
The “Fourth Amendment requires government officials, including social
workers, who go to a home to investigate reported child abuse or neglect
allegations for the purpose of assuring the well-being of the child to
obtain a warrant unless an exception to the warrant requirement
applies.” Goodall, 405 F. Supp. 3d at 273 (citing Andrews v. Hickman Cnty., 700 F.3d 845, 861 (6th Cir. 2012)).
The exigent circumstances exception to the warrant requirement
applies when the exigency of the situation makes the need of law
enforcement so compelling that a warrantless search is “objectively
reasonable.” Lange v. California, 141 S. Ct. 2011, 2017 (2021).
For example, an officer may enter a home without a warrant to render
emergency assistance to an injured occupant. Id. The exigent
circumstances exception must be analyzed on a caseby-case basis by
looking at the “totality of circumstances” confronting the officer. Id.
at 2018.
In addition to the exigency exception, the First Circuit has held
that an officer’s entry into a home may be exempted from the warrant
requirement under the so-called “special need” exception. See McCabe v. Life-Line Ambulance Serv., Inc., 77 F.3d 540, 545 (1st Cir. 1996).
In McCabe, the First Circuit permitted warrantless entry into a home
when police officers executed a “pink paper,” which is an order
authorized by a licensed psychiatric physician for involuntary
commitment for a medical psychiatric examination. Where there is an
“important administrative or regulatory purpose . . . which would be
undermined systematically by an impracticable warrant or probable-cause
requirement,” no warrant is necessary Id. However, the First Circuit has
declined to extend the special need exception beyond the “pink sheets”
context. See Hill v. Walsh 884 F.3d 16, 22 n.2 (1st Cir. 2018).
Defendants’ reliance on Wilmot v. Tracey is misplaced. In Wilmot the
Court rejected a Fourth Amendment challenge to the warrantless entry
into a home by DCF. 938 F. Supp. 2d 116, 128 (D. Mass. 2013) (involving a
family member alleging ongoing physical and sexual child abuse). The
key distinction is that the wife consented to entry of DCF. Id. at
137-38. Moreover, the court found that the warrantless entry into the
home fell within the exigent circumstances exception because of the
information of past and ongoing abuse. Id. at 138.
Here, Plaintiffs allege they did not consent and the entry at 1:00
A.M. was by threat of force. Though the youngest child was found to have
two rib fractures, the injuries here were not new and were healing. The
DCF investigation revealed that the children’s pediatrician had no
concerns about either child. The parents were cooperative at the home
visit and the children seemed happy. Importantly, there was no warrant
or court order — and plenty of time to get one. When all reasonable
inferences are drawn in favor of the moving party, Plaintiffs state a
viable Fourth Amendment claim.
As a backstop, the DCF officers contend that they are not liable for
the alleged search and seizure because it was the police officers, not
they, who entered the property. However, the First Circuit has held that
in such circumstances liability may arise through a joint tortfeasor
theory when each defendant has “intentionally engaged in a series of
acts that would foreseeably result in some member of the team inflicting
constitutional injury.” Eldrege v. Town of Falmouth, 662 F.3d 100, 105-06 (1st Cir. 2011).
According to the Complaint, the decision to remove the children was a
team effort. It was made in the first instance by Defendant Butterfield.
She discussed the case and the process of removal with Defendant
Griffin, who in turn discussed the removal with Defendants Kalvinek and
Arruda. Kalvinek and Arruda appeared with WPD officers at Plaintiffs’
home without a warrant at 1:00 A.M. and took the children without a
court order. At the very least, these alleged actions are enough to give
rise to a plausible inference that each of the DCF Defendants
understood that their affirmative actions would foreseeably result in a
violation of the family’s Fourth Amendment rights.
II. Unreasonable Seizure of the Children in Violation of the
Fourth Amendment (Count II) and Deprivation of Parental Rights in
Violation of Fourteenth Amendment (Count III)
The DCF Defendants move to dismiss Count II for unreasonable seizure
of the children and Count III for deprivation of parental rights in
violation of the Fourteenth Amendment.
“The interest of parents in the care, custody, and control of their
children is among the most venerable of the liberty interests embedded
in the Constitution.” Hatch v. Dep’t for Child., 274 F.3d 12, 20 (1st Cir. 2001) (citing Troxel v. Granville, 530 U.S. 57, 65 (2000)).
“As such, it is protected by the Due Process Clause.” Id. However,
“[i]n cases where the safety of the child is at risk, there are
competing liberty interests, and so the parents’ rights are not
absolute.” Suboh v. Dist. Att’y’s Off., 298 F.3d 81, 91 (1st Cir. 2002).
Generally, “the question of what process is due involves weighing of
the different interests of the child, the parents, and the state.” Id.
at 92 (citing Hatch, 274 F.3d at 20).
Accordingly, “[d]ue process protects a parent’s rights even when a
state temporarily removes a child before obtaining a court order,” and
“the state may place a child in temporary custody only when it has
evidence giving rise to a suspicion that the child has been abused or is
in imminent danger.” Id.
Defendants argue that DCF had a reasonable basis for believing
removal was necessary. By statute, DCF may take a child into temporary
custody when it “has reasonable cause to believe that removal is
necessary to protect a child from abuse or neglect.” Mass. Gen. Laws ch.
119, § 51B(e). By regulation, a “child may be immediately taken into
custody if, after viewing the child, the Department’s response worker
finds reasonable cause to believe . . . [t]he nature of the emergency is
such that there is inadequate time to seek a court order for removal.”
110 Mass. Code Regs. § 4.29(2).
Here, an emergency physician diagnosed two broken ribs in a
three-month-old boy. The ribs had been broken days or weeks before and
were healing. The pediatrician saw no signs of abuse in either child.
Defendants point to information in the 51B report which supported a
reasonable suspicion that the broken ribs were a sign of child abuse in
the three-month-old, but this information is outside the four corners of
the Complaint and more properly addressed at summary judgment.
Moreover, there is no information about child abuse concerning the
three-year-old. When all reasonable inferences are drawn in Plaintiffs’
favor, the Complaint states a plausible claim that DCF Defendants lacked
reasonable suspicion of child abuse.
III. Claims Against DCF Defendants Alleging Violation of Article 14 of the Massachusetts Declaration of Rights (Counts VI, VII)
Plaintiffs assert constitutional claims under state law Count VI
(unreasonable search and seizure of the house and curtilage in violation
of the Massachusetts Declaration of Rights and Count VII (unreasonable
seizure of the children in violation of the Massachusetts Declaration of
Rights). To state a claim under state law, plaintiffs must plausibly
allege that there was interference of their rights through “threats,
intimidation, or coercion,” which Defendants argue the Complaint fails
to do. Bally v. Ne. Univ., 532 N.E.2d 49, 51-52 (Mass. 1989).
As alleged in the Complaint, Plaintiffs only handed their children
over to DCF after being told that if they refused to do so, the children
would be taken by force. Accordingly, Counts VI and VII have been
adequately pled.
IV. Qualified Immunity
“Determining whether qualified immunity is available to a particular
defendant at a particular time requires a trifurcated inquiry.” Hatch, 274 F.3d at 20.
First, it must be determined “whether the plaintiff has alleged the
violation of a constitutional right.” Id. Next, if a constitutional
right violation is identified, then the Court evaluates “whether the
contours of the right were sufficiently established at the time of the
alleged violation.” Id. This step consists of two subquestions: the
Court must determine whether (1) “the contours of the right, in general,
were sufficiently clear,” and (2) if, under the specific facts of the
case, an objectively reasonable official would have believed that the
action taken or omitted violated the right at issue. Hunt v. Massi, 773 F.3d 361, 367 (1st Cir. 2014) (quoting Ford v. Bender, 768 F.3d 15, 23 (1st Cir. 2014)).
These three inquiries are made in a sequence, “mindful that a single
negative answer suffices to defeat the plaintiff’s claim for damages.” Hatch, 274 F.3d at 20.
Plaintiffs have alleged violations of constitutional right that are
sufficiently established, the contours of which are clear, and which a
reasonable official would understand themselves to be violating if they
engaged in the alleged conduct: the Fourth and Fourteenth Amendment
right to be free of warrantless searches in the home and seizures absent
exigent circumstance, a court order, warrant, or consent; and the
Fourteenth Amendment right to due process before the State impinges on
the right to family integrity The Defendants vigorously assert that they
had a reasonable belief that child abuse had occurred. However, the
Court must draw all reasonable inferences in favor of Plaintiffs.
Qualified immunity on all constitutional counts is more properly
addressed at summary judgment when the court will consider a full
record. Accordingly, DCF Defendants’ motion to dismiss Count I is DENIED
without prejudice.
V. Claims Against DCF Defendants Alleging Violation of the Massachusetts Privacy Act
The Massachusetts Privacy Act provides parties with a private right
of action to defend against “unreasonable, substantial or serious
interference” with privacy. Mass. Gen. Laws ch. 214, § 1B. Defendants
argue that this claim should be dismissed because (1) the DCF Defendants
are protected by the common law doctrine of immunity, and (2) because
the DCF Defendants did not engage in “unreasonable, substantial or
serious” interference with Plaintiffs’ rights.
Common law immunity is broader than qualified immunity. “At common
law, . . . a public official, exercising judgment and discretion, is not
liable for negligence or other error in the making of an official
decision if the official acted in good faith, without malice, and
without corruption.” Chaney v. City of Framingham, No. 18-10413, 2019 WL
6496842, at *7 (D. Mass. Dec. 3, 2019) (quoting Nelson v. Salem State Coll., 845 N.E.2d 338, 348 (Mass. 2006)).
Though the Complaint alleges a substantial invasion of privacy, it does
not allege that those violations were the result of bad faith, malice,
or corruption. Accordingly, DCF Defendants’ motion to dismiss Count VIII
is ALLOWED.
VII. Monell Claims Against the City of Waltham for Violation of Due Process (Counts IV and V)
Municipalities become liable for the constitutional violations of
their employees when those violations are attributable to a custom or
practice of the municipality. Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir. 1989). Courts routinely require evidence of a pattern of similar past violations to support a municipal liability claim. See Connick v. Thompson, 563 U.S. 51, 62 (2011).
When a Monell claim is pursued under a failure to train theory, “the
unconstitutional consequences of failing to train could be so patently
obvious that a city could be liable under § 1983 without proof of a
pre-existing pattern of violations.” Id. at 64.
The Complaint does not allege any specific facts suggesting that the
City of Waltham has any policy, custom, or established practice of
depriving persons of their constitutional rights through illegal
searches and seizures of the home (Count IV) or by stripping them of
their parental rights without due process (Count V). Plaintiffs argue
that their Monell claims are well pled because the egregiousness of the
alleged constitutional violations demonstrates that either the police
were conforming with an unconstitutional policy or established practice,
or that the City failed to train the officers to respect Plaintiffs’
constitutional rights.
These arguments are unavailing. The violations alleged — that the
police officers, informed by DCF that there was reason for emergency
removal, effectuated the removal — do not rise to the level of
egregiousness that has allowed courts to infer Monell liability in the
absence of allegations of specific failures to train. See, e.g., Connick, 563 U.S. at 63-64
(holding that a district attorney’s office cannot be held liable under a
§ 1983 claim based on a single Brady violation). Accordingly, the City
of Waltham’s Motion to Dismiss Count IV and Count V (Dkt. 39) is
ALLOWED.
ORDER
For the foregoing reasons, Defendants City of Waltham’s Motion to
Dismiss (Dkt. 39) is ALLOWED. The DCF Defendants’ Motion to Dismiss
(Dkt. 30) is ALLOWED with respect to Count VIII only, and is otherwise
DENIED. The Court also denies the motion to dismiss based on qualified
immunity.
SO ORDERED.