#21, Drano Series
Memorandum in Support of Opposition to Eileen Kern's Motion for Judgment on the Pleadings
In this opposition, there were some interesting legal issues presented. The first was about the failure of the social worker to plead immunity and/or statutory protection as affirmative defenses. A defendant MUST plead an affirmative defense or it is lost: that is, the defense is waived and must be excluded from the case.
The second involved pointing out the difference between a motion to dismiss and a motion for judgment on the pleadings.
The third was about the failure of the social worker to set out in her motion the collection of facts which are the basis of a reasonable cause to form a belief that sexual abuse or neglect occurred . . . and where there is no physical evidence of injury, there must be reasonable cause to form a belief that there is a substantial risk of future injury.
The fourth was whether one of the plaintiff's judgment was altered, and if so, the statute of limitations was tolled until . . .
The fifth was whether writing a demand letter for the little FTC claim (for unfair and deceptive acts) was necessary before fiing suit and conducting discovery, given that to have written them prior to filing suit and conducting discovery would have been an exercise in futility and that defendants have suffered no prejudice.
UNITED STATES DISTRICT COURT
FOR THE
EASTERN DISTRICT OF MASSACHUSETTS---------------------------------------------------
Theodore S. Brown
James Linnehan
Jane & John Does
Plaintiffs
v.
CIVIL ACTION: 00-CV-11048-REK
Eli Newberger
Children's Hospital
Amy C. Tishelman
Barbara Cohen
Brockton Division of the
District Court Department
of the Trial Court of Massachusetts
Mass. Dept. of Social Services
Eileen Kern
Sandra Fyfe
Christopher Salt
Jack McCarthy, Jr.
John and Jane Smiths
Defendants
------------------------------------------------------OPPOSITION and MEMORANDUM IN SUPPORT OF OPPOSITION
TO EILEEN KERN'S MOTION FOR JUDGMENT ON THE PLEADINGS(A supporting affidavit is attached as Exh. A to this opposition.)
Now come the Plaintiffs Theodore Brown, James Linnehan, and Jane & John Does to oppose and submit a memorandum in support of their opposition to Eileen Kern's Motion for Judgment on the Pleadings pursuant to Fed.R.Civ.P. 12(c).1,2 1Because Theodore Brown has not made any claims against Eileen Kern, it is assumed that Kern's motion for judgment on the pleadings refers only to those causes of action asserted by James Linnehan against Kern. Similarly, where the Jane and John Does have not yet been identified, it is assumed Kern's motion is also not against those potential claimants.2 For clarification purposes, Linnehan states that he brought the following counts against Kern: Counts 1, 2, 4, 6-8, 10-12, i.e., (1) negligence, (2), interference with parental rights; (4), violation of 42 U.S.C. 1983, (6), state civil rights (M.G.L. c. 12, sec. 11I), (7) defamation, (8) civil RICO, (10) negligent infliction of emotional distress, (11) intentional infliction of emotional distress, and, if allowed, (12) unfair and deceptive business practice.As grounds, Linnehan state that (1) where Kern failed to plead immunity and/or or statutory protection as affirmative defenses, she waived the defenses and they must be excluded from the case, (2) where all Linnehan's facts are to be taken as true, Kern cannot raise any affirmative defenses (such as limitations and immunity issues) by demurrer, and that her motion for judgment on the pleadings cannot be treated as another type of motion, (3) where Kern presented in her brief or by affidavit no basis to conclude that she had reasonable cause to believe the allegations, she does not have the statutory protection afforded by M.G.L. c. 119, sec. 51A, (4) where Kern knowingly violated Linnehan's clearly established rights -- deprivation of constitutional due process and deprivation of parental rights -- she does not have under federal or state law immunity or statutory protection from his constitutional, statutory, or common-law claims.33 In footnote 2 of her motion, Kern contends that she has "statutory protection" for filing a report pursuant to M.G.L. c. 119, sec. 51A. Nowhere in her motion does Kern use the word "immunity". Nor does she plead it or statutory protection pursuant to M.G.L. c,. 119, sec. 51A, as affirmative defenses.This memorandum further argues (5) that the running of the statutory limitations periods for the respective causes of action should be deemed tolled and not a bar to his claims because (a) Linnehan's judgment was altered and (b) Kern's assessment had a "half-life" which has not yet expired, i.e., reference to her assessment was repeated in Christopher Salt's report, in Sandra Fyfe's report, and in Eli Newberger's 1992 report, which was kept alive and well by Defendant Jack McCarthy in each of his reports, the last of which was in 1998 . . . and then again in 1999 (in his parents' "grandparents' case."And lastly, in (6) Linnehan discusses his chapter 93 claims.
FACTS AS TO LINNEHAN AS THEY RELATE TO KERN [Compl. pars. 114-160]
James Linnehan's son Brenden was born out of wedlock on 9 February 1985. By 1986, the unwed couple was in court over custody and visitation. When Brenden was a little over two years old, his mother, Robyn Gerry, left Maine with him while a Maine- court order allowing Linnehan visitation was in effect. After 10 months, Linnehan found them in New Bedford, Massachusetts.
Soon thereafter, Linnehan moved to Massachusetts to be near his son, but the Maine action was still pending. Maine never declined jurisdiction over Linnehan and Robyn. No home-state hearing occurred in Massachusetts. No judges conferred. Massachusetts never declared it would exercise jurisdiction. Massachusetts did not have subject-matter jurisdiction and there was no emergency to assert jurisdiction under M.G.L. c. 209B, the Massachusetts Child Custody Jurisdiction Act (MCCJA).
In the months that followed, Linnehan, mother, and child drove together from Massachusetts to Maine to participate in a court-ordered mediation and back again to Massachusetts. Abuse was not alleged in Maine.
Literally one day after the mediation in Maine stalemated as to the visitation issue, Robyn made an appointment at New Bedford Child and Family Services with Defendant Eileen Kern [Complaint, par. 12], who shortly thereafter filed with DSS a 51A report of suspected emotional, physical, and sexual abuse of Brenden. [Compl, par. 128.] Kern's role as a reporter was unknown to Linnehan, for, as Kern wrote, DSS never reveals who the mandated reporter is [Kern Mot. at n. 2], making Kern's identity unknown to Linnehan and available only upon accidental discovery.
DSS reports are also always redacted when and if given to the accused, thereby secreting information as to who his accusers are and what information was passed. For instance, Linnehan's half-dozen prior attorneys did not get the DSS reports, unredacted or redacted, and Linnehan himself simply got a letter saying the accusation had been substantiated (now called "supported").
It was not not until 25 May 1999, after he wrote the Attorney General's office as well as DSS that he got his first copy of the 1988 DSS report . . . and that report was redacted.
Nevertheless, eleven years earlier, at DSS, an investigator, Robert Mendez, supported Kern's suspicion, albeit that it was formed without any reasonable cause to believe that an incident of sexual abuse had occurred. 110 C.M.R. sec. 4.32(2).
Soon after receiving Kern's report, DSS brought a care and protection action in New Bedford Juvenile Court, and Linnehan brought a paternity and custody action in Bristol County Probate & Family Court. One Juvenile Court justice (Judge Harper, now retired) sat simultaneously in both courts over the unconsolidated cases. Ultimately the judge ordered Linnehan to withdraw his case in Maine.
It was during the care and protection case that Eileen Kern of New Bedford Child & Family Services recommended to Judge Harper that a sexual-abuse assessment be conducted at the Collis Center.4 The record does not appear to show that Harper accepted Kern's recommendation to appoint the Collis Center to conduct the assessment,5 but the record does show, however, that the court ordered Christopher Salt to perform an investigation.
4Sandra Fyfe's take on the referral is different: she wrote that the court requested Kern to refer Brenden to Fyfe's agency. [Fyfe's report at 1] Though that explanation seems unlikely, if true, it creates a genuine dispute over whether Fyfe was not a state actor when she performed and wrote the report of the sex-abuse assessment, and whether Fyfe became a state actor when she filed the report in court.5 It is known, however, that at the Collis Center, during May and June 1988, Sandra Fyfe, a then-unlicensed caseworker, met with Brenden and Robyn, while the Executive Director, Thomas Tanguay, a licensed social worker, met with Linnehan. [Fyfe's involvement is discussed more fully in the FACTS section of Linnehan's Opposition to Fyfe's Motion for Judgment on the Pleadings.] Perhaps out of friendship or loyalty to Kern or to the women's movement, even though Fyfe found no basis for Kern's belief that Brenden had been sexually abused [Fyfe's report at 3], she, nevertheless, overrode her Executive Director Tanguay's opinion and recommended that Linnehan not be allowed to visit with his son.After reading Salt's report around two months later, Linnehan was asked a question by his then-lawyer in the court hallway. Linnehan could, literally, not respond: so traumatized was he that he had spontaneously lost the use of his vocal chords.6 To this day, he remembers the tears in his eyes when he could not articulate. Also to this day, he must and does utilize his speech therapy exercises.6 Over the years many diagnoses were rendered: hyperfunctional voice disorder, maladaptive vocal and respiratory habits, vocal chord nodules. . . .Subsequently, Linnehan suffered a potpourri of physical and psychological symptomatologies: agoraphobia, depression, insomnia, headaches, nightmares, appetite loss, weight loss, inability to concentrate, no trust in anyone (public officials, the judiciary, mental-health workers),\7/ extreme mental distress, anxiety.7This was particularly distressing inasmuch as Linnehan had to work on a daily basis with mental-health and social workers.Coupled with the incessant secrecy by the defendants, the pain of not seeing his son, the stress of hurdle-jumping, and the ongoing illnesses gnawed at him and altered his judgment for years. His custody case became so labyrinthine that six lawyers were unable to unravel what was happening: reports by countless biased persons were peppering the Juvenile Court docket, and decisions emanating from Juvenile Court were yet being entered into the Probate & Family Court docket up until 1995 in Linnehan's case8 and in March 1999 in Linnehan's enneagenarian's parents' "grandparents" case.8The record shows that some of Linnehan's lawyers took his case in for periodic review and redetermination pursuant to M.G.L. c. 119 sec. 26, rather than appealing adverse, baseless decisions; some attempted to get the case heard in Probate & Family Court; and another accepted money for an appeal and then left to practice in another state. Whichever way they went, they were stymied.Linnehan, of course, had no understanding of the complicated legal maneuvering and was advised to comply with whatever advise was given him by officers of the court or whatever order issued from whichever court. Remarkably, he never gave up trying to see his son . . . which has brought him to his seventh lawyer, who upon having been met with more systemic games in the probate and family court by a judge who had already been publicly censured for exalting personal friendship over justice -- and who is a member in APSAC, of which Eli Newberger is one of the leaders [Exh. B] -- decided to bring the instant case.He had knowledge that he and his son were being harmed, but he never had sufficient notice of what the cause of the harm was,9 nor who was causing it. The players changed so rapidly and frequently that the effect of the input of each of them was impossible to assess. The only thing which was recognizable was the accumulative effect of the successive reports and opinions.
9 He had not met some of these people. Nor had he been given an oppor-The "system" was like a runaway train crushing Linnehan and his child in its path.10
tunity to confront them. To this day, he has never seen any evidence of the
basis or bases of these reports: no therapy notes, no progress/process notes.Linnehan was not given the opportunity to rebut and cross-examine Kern on her report.11 Adding insult to the deprivation of constitutional due process is that Kern never interviewed Linnehan and never met him before or after she recommended that he be denied visitation with his son. Kern's sources were Brenden's mother and the 3-year-old toddler, who spoke of kitties and toy dinosaurs and Batman and Robin and to whom Kern irresponsibly and outrageously read a sex-abuse-filled comicbook named "Spiderman."10 The sign on the side of the system's train read America's Secret Holocaust: The system was not protecting children. It was destroying father-child relationships with the help of neo-feminists like Eileen Kern and Sandra Fyfe, and Christopher Salt, Eli Newberger and his team, and Jack McCarthy, who marched into the sexual-abuse war for the easy and fast-flowing money.11 Duro v. Duro, 392 Mass. 574, 574-575, 580, 581 (1984).Kern's conclusion was considered by Newberger, and has been given credence to this day. [Newberger report, par. 6, attached to the Motion to Dismiss filed by Jack McCarthy, who relied on the Newberger report and everything in it as late as 1999.But for two supervised visits with the child when he was around five years of age, Linnehan last saw his son, Brenden, when the boy was three years of age. He will be 16 on 9 February 2001.
Linnehan tried repeatedly to no avail to get visitation, if not custody, and at no time before being deprived of his parental rights and due process was Linnehan afforded by either court an evidentiary hearing, where he could have had an opportunity to confront his accusers or to test the alleged evidence against him.
ARGUMENTS
1. Where Kern did not plead immunity or statutory protection as an affirmative defense, pursuant to Mass.R.Civ.P. 8(c), the defenses are waived and must be excluded from the case.
The failure to comply with Mass.R.Civ.P. 8(c), is, without more, sufficient reason for holding that the defense of immunity or statutory protection are not now open to Eileen Kern. See Anthony's Pier Four, Inc. v. HBC Assoc., 411 Mass. 451, 471 (1991) (waiver and estoppel excluded). "Generally, a failure to plead an affirmative defense results in the waiver of that defense and its exclusion from the case." Id., quoting 5 Wright & Miller, Federal Practice & Procedures. 1278 at 477 (2d ed. 1990). As in Anthony's, at 471, there is no reason not to follow the rule here.
2. Where the statute of limitations and immunity issues are affirmative defenses, they must be raised at the pleading stage by a motion to dismiss pursuant to Rule 12(b)(6) rather than by a motion for judgment on the pleadings pursuant to Rule 12(c). It would also be unlawful for the court to convert the 12(c) motion to any other type of motion.
While testing the legal sufficiency of the plaintiffs' pleadings, all well-pleaded allegations of the plaintiffs' complaint must be accepted as true. Jarosz v. Palmer, 49 Mass.App.Ct. 834, 835-836 (2000), citing Sampson v. Lynn, 405 Mass. 29, 30 (1989). Therefore at law, an affirmative defense cannot be raised by demurrer. New England Merchants Natl. Bank of Boston v. Old Colony Trust, 356 Mass. 612, 613 n. 1 (1970), citing Gallo v. Foley, 299 Mass. 1, 3 (1937). J.W. Smith & H.B. Zobel, Rules Practice, sec. 821, 6 Mass. Practice Series 462, citing Gallo, supra.
Given also that a motion which raises a question of pleading rather than process should be treated as a demurrer rather than as a motion to dismiss [Carmel Credit Union v. Lesser, 344 Mass. 623, 624 (1962)], Kern's limitations and immunity (or statutory protection) issues cannot be raised by a motion for judgment on the pleadings.
Further, where the plaintiffs do not need plead the statute of limitations or immunity or statutory protection, the defendants cannot raise the statute of limitations or immunity or statutory protection in a motion for judgment on the pleadings. Rules Practice, sec. 821. 6 Mass. Practice Series 462, citing Gallo, supra.
Without waiving the defenses upon which he specifically relies, Linnehan submits herewith as Exhibit A an affidavit. Cf. Pupecki v. James Madison Corp., 376 Mass. 212, 215 n. 2 (1978). Pupecki also illustrates that the distinction which the rules make between a motion to dismiss and a motion for judgment on the pleadings is both important and followed.
Based on the above, the defendant's motion should be denied without consideration of any other argument.
3. Where Kern has presented in her brief or by affidavit no basis to conclude that she had reasonable cause to believe the allegations, she does not have the statutory protection afforded by M.G.L. c. 119, sec. 51A.
[T]here must be a `collection of facts, knowledge or observations which tend[ed] to support or [were] consistent with the allegations,' See 110 Code Mass. Regs. 4.32.Cobble v. Commissioner of Dept. of Social Services, 430 Mass. 385, 394 (1999). If that collection was insufficient to support the allegations or were not consistent with the allegations, the statute, M.G.L. c. 119, sec. 51A, upon which Kern is relying, cannot protect her! Cobble, 430 Mass. at 394 (the record was found not to support a rational inference by DSS that a substantial risk of physical injury was present).Significantly, here, Kern failed to set forth that set of facts (a) which would comprise a "4.32 collection," (b) from which would arise a "reasonable cause to believe" and (c) which "when viewed in light of the surrounding circum- stances and credibility of persons providing information, would lead one to conclude that a child has been abused or neglected. 110 C.M.R. s 4.32(2)." Minnehan v. Dept. of Social Services, No. 98-4687, 1999 WL 706653, at 2 (Mass.Super. Aug. 14, 1999) (McHugh, J.).
Absent that set of facts which are needed to form a belief that Linnehan's child had been sexually abused or was at substan-tial risk for future abuse, she cannot claim statutory protection from M.G.L. c. 119, sec. 51A. Cf. Cobble, 430 Mass. at 394. Further, where, as here, there was no substantiated claim of actual physical injury, there had to be a reasonable cause for Kern to believe that there was a substantial risk that injury would occur. Cf. Cobble, at 394. That, too, Kern has not claimed there was.
Her failure to include any set of undisputed facts whatsoever in her motion or in a supporting affidavit (there was none) would preclude her from prevailing even were the motion converted to one for summary judgment. Cf. Suckow Borax Mines Consol. v. Borax Consol., 185 F.2d 196, 205 (9th Cir. 1950), cert. denied 340 U.S. 943 (1951). Thus one can only conclude that Kern had no reasonable cause to believe that sexual abuse had occurred or would occur and that statutory protection would not be applicable to her even were the waiver not an issue.
Kern's failure to discuss in her motion the basis of the conclusions reached in her sex-abuse assessment is, therefore, Linnehan contends, fatal to her motion. Minnehan v. Dept. of Social Services, No. 98-4687, 1999 WL 706653, 5 n. 5 (Mass.Super. Aug. 14, 1999).12
12 In Minnehan, Judge James McHugh explored in microscopic detail the DSS process upon receiving a 51A report and the ensuing faulty investigation performed by DSS. Linnehan contends that the sex abuse assessment by Eileen Kern was not much better. The similarity in the names of Linnehan and Minnehan is purely coincidental.Minnehan. at 13.. . . the DSS investigation in this case purported to achieve that low threshold by accentuating the inculpatory and overlooking or ignoring the exculpatory. The investigators accepted conclusory, judgmental information provided to them by others without pausing to consider the basis upon which those judgments rested or whether those who provided the judgments had access to all material facts on which to base a judgment. The hearing picked up where the investigators ended, once again accentuating the inculpatory and finding ways both to dismiss the exculpatory and to resolve all ambiguities against Minnehan.
Particularly when the burden of proof is on the alleged perpetrator, an investigatory system simply cannot produce fair results if those conducting the investigation blind themselves to areas pointing away from guilt and create a record consisting of whatever is minimally necessary to support the conclusion they propose. An investigatory system cannot produce fair results if the post-investigation hearing simply builds on the investigation's skeletal outlines and accepts unthinkingly and uncritically the conclusory judgments supporting the investigators' proposed outcome.
4. Where Kern knowingly violated Linnehan's clearly established constitutional rights--deprivation of constitutional due process and deprivation of parental rights--she does not have under federal or state law immunity or statutory protection from Linnehan's constitutional, statutory, or common-law claims.Lest the protection afforded by M.G.L. c. 119, sec. 51A be construed as a type of immunity, Plaintiffs briefly comment below.
[a] state-conferred immunity cannot shield a state actor from liability under section 1983. See Martinez v. California, 444 U.S. 277, 284 n. 8 (1980) ("Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. sec. 1983 ... cannot be immunized by state law.") [cite omitted]. Indeed, a regime that allowed a state immunity defense to trump the imposition of liability under section 1983 would emasculate the federal statute. See id. We therefore reject the proposition that absolute immunity entitled the psychiatrists to summary judgment.Camilo-Robles v. Hoyos, 151 F.3d 1, 10 (1st Cir. (Puerto Rico) 1998) (Selya, J.) (nonemployee contract psychiatrists were not entitled to absolute or qualified immunity). Yet, "[a] private party's conduct is attributable to the state if the state `has so far insinuated itself into a position of interdependence with [the private party] that it must be recognized as a joint participant in the challenged activity.'" Id.And even assuming arguendo that Kern or her employer was some sort of government official, "government officials performing discretionary functions are shielded from liability for civil damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Anderson v. Creighton, 483 U.S. 635, 640 (1986) (a plaintiff's allegation of a violation of clearly established law precludes dismissal before the commencement of discovery).
"A parent's liberty interest in [his] relationship with [his] child is grounded in art. 10 of the Massachusetts Declaration of Rights and the Fourteenth Amendment to the United States Constitution. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Opinion of the Justices, 427 Mass. 1201, 1203 (1998).E.N.O. v. L.M.M., 429 Mass. 824, 832 (1999).Kern's suggestions must also fail because of her own conduct: she knew or should have known that she was causing Linnehan to be deprived of his clearly established and fundamental rights -- deprivation of due process and deprivation of parental rights. That knowledge is sufficient to divest Kern of any immunity to which she may otherwise have been entitled. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled sub nom. on other grounds; Muniz Souffront v. Alvarado, 115 F.Supp.2d 237 (D.Puerto Rico, 2000).
The question is not whether some right has been established clearly at a highly abstract level . . . the question is whether, under the circumstances that confronted the official, "a reasonable official would understand that what he is doing violate[d] that right.Berthiaume v. Caron, Clark, Bivins, and O'Donohue, 142 F.3d 12, 15 (1st Cir. 1999), citing Anderson v. Creighton, 483 U.S. 635, 640 (1987); see also Hunter v. Bryant, 502 U.S. 224, 228-29 (1991) (per curiam); Brown v. Ives, 129 F.3d 209, 211-12 (1st Cir. 1997), cert. denied, __ U.S. __, 66 U.S.L.W. 3531 (Mar. 23, 1998). See also Robichaud v. Ronan, 351 F.2d 533 (1965), reversing the immunity-based dismissal of the action against a county attorney and his deputy, on the grounds that it was inappropriate to protect the defendants if they deprived the plaintiff of her rights, privileges, or immunities secured by the Federal Constitution and laws.Additionally, the defendants' conduct or inaction must have been intentional, see Simmons v.Dickhaut, 804 F.2d 182, 185 (1st Cir.1986), grossly negligent, or must have "amounted to a reckless or callous indifference to the constitutional rights of others." Gutierrez-Rodriguez [v. Cartagena], 882 F.2d [553,] 562 [(1st Cir. 1989)]. Thus, a plaintiff must plead that each defendant acted to deprive him of a legally cognizable right under federal law.Muniz, 115 F.Supp.2d at 241. This the Plaintiffs did.In her motion, Kern does not discuss the nature and quality of her acts. In fact, she has assiduously avoided discussing them. As allowed by Federal and Massachusetts Rule of Civil Procedure 12(c), we can conclude that whatever Kern would state her acts were, those facts are false.
In considering a Rule 12(c) motion, "all of the well pleaded factual allegations in the adversary's pleadings are assumed to be true and all contravening assertions in the movant's pleadings are taken to be false."Sampson v. Lynn, 405 Mass. 29, 30 (1989), quoting Minaya v. Massachusetts Credit Union Share Ins. Corp., 392 Mass. 904, 905 (1984); 5 C.A. Wright & A.R. Miller, Federal Practice and Procedure, sec. 1368, at 691 (1969). Patel v. Searles, 2000 WL 1731338 (D.Conn. 2000) ("Patel stated a cognizable claim for violation of his constitutional right to intimate association with his family and the Officers are not entitled to qualified immunity from that claim"), quoting Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998).Therefore, we can conclude that Kern's conduct was not of the nature and quality that were intended to be shielded from liability, and that she is not shielded by any form of immunity because she interfered with Linnehan's fundamental liberty interest in his relationship with his child. Youmans v. Ramos, 429 Mass. 774, 784 (1999), citing Opinion of the Justices, 427 Mass. 1201, 1203 (1998), and cases cited. "That interest is protected by art. 10 of the Massachusetts Declaration of Rights and the due process clause of the Fourteenth Amendment to the United States Constitution. Id., citing Dept. of Pub. Welfare v. J.K.B., 379 Mass. 1, 3 (1979).
And we can conclude that her acts were intentionally or recklessly and callously indifferent to the constitutional rights of Linnehan.
. . . the deliberate indifference standard has both an objective and subjective component. . . . The objective prong asks whether the deprivation was sufficiently serious, whereas the subjective prong inquires whether a wanton disregard of the [plaintiff's] rights motivated the deprivation. . . . A plaintiff can prove the subjective element of [the defendants'] deliberate indifference by showing that they were aware of an excessive risk to the plaintiff's health or safety, or that the risk was obvious, and that they failed to act despite the awareness. . . . Determining the wantonness of a defendant's conduct depends not upon its effects on the [plaintiff], but rather on the practical constraints facing the [defendants].Muniz, 115 F.Supp.2d at 242-243 (cites omitted).Kern neither interviewed Linnehan nor observed him and his son together . . . and she knew that she was doing would lead to being deprived of his parental rights . . . and at no time did she consider the effect upon the child of being deprived his father for the rest of his childhood.13
13 Kern's report reveals she mindlessly accused Linnehan of an unconscionable sin simply because the woman he declined to marry said he did. Experienced, she knew that her report would enter the court record and influence the sitting judge, and that she would share her opinions with DSS and future caseworkers. The consequences of her acts on Linnehan were foreseeable, and Kern was deliberately indifferent to their effect on his life and on that of his child, of his instant fatherlessness. And now coldly, she admits she never spoke to or saw Brenden ever again . . . nor made any attempt to do so.Nor was Linnehan allowed to call her to the witness stand for examination, and his son Brenden never testified, being but a 3-year-old toddler at the time of Kern's report.5. Where Linnehan's judgment was altered in some way, such altered judgment became the standard, and his cause of action did not accrue until he discovered not only the damage but who caused it.
Under Massachusetts law, the court applies a "discovery rule," under which the limitation period does not begin to run until the plaintiff has "(1) knowledge or sufficient notice that [he] was harmed and (2) knowledge or sufficient notice of what the cause of the harm was." Bowen v. Eli Lilly & Co., 408 Mass. 204, 557 N.E.2d 739, 742 (1990).Armstrong v. Lamy, 938 F.Supp. 1018, 1038 (1996). "The statute of limitation starts to run `when an event or events have occurred that were reasonably likely to put the plaintiff on notice that someone may have caused her injury.'" Id., quoting Bowen, 557 N.E.2d at 741. But as the court in U.S. v. Kubrick, infra, stated, one must know who caused the harm in order to bring suit. That was Linnehan's problem, given the secrecy inherent in the policies of those natural and state entities involved in "Linnehan's" state cases.Even at this writing, the details of the conduct of the defending players are unknown. Those details are in their process, or progress, notes. The licensed workers must maintain those to keep their licenses in active status. Whether or not Kern kept such notes is still not known. Whether New Bedford Child & Family had a policy that all its employees had to keep them is also not yet known. These policies, some private and some public, kept the cause of Linnehan's injury opaque. See Attalah v. United States, 955 F.2d 776, 780 (1st Cir. 1992) (where cause and injury are not "immediately apparent," accrual does not occur until the reasonable diligent claimant could have discovered it).
Where Kern's conduct could have, in an ordinary reasonable person, caused injury which by its very nature prevented discovery of its cause, Linnehan's action cannot be said to have accrued. See Armstrong, 938 F.Supp. at 1038-1039. Repeatedly he was subjected to an "experience" that injured him, but he could not sort out who it was who was causing the injury.14
14 Linnehan repeatedly sought reviews and redeterminations, pursuant to M.G.L. c. 119, went to the requested parenting class, went to therapists, did whatever was demanded of him. Then, instead of resolution, upon the scene would come still another worker -- a total of perhaps a dozen or more, from assorted "therapists" to Children's Hospital and Eli Newberger's team -- to further confuse and clutter the situation, leaving Linnehan in doubt as to who of them was causing him the injury. Was it the court or the workers or the system as a whole? The last blow was in 1999, when his enneagenarian parents were denied visitation with their grandchild before they passed. After that, he knew he had to "sue them all" to force the disclosure of the necessary information to determine "what" and "who" caused him to be deprived of his son.In particular, what and who caused the harm was not apparent because of the policies of the diverse entities -- DSS, New Bedford Child & Family Services, the Collis Center, the independent contractors: they kept all documents and all the information in them secret, as well as the names of the people who allegedly supplied the information. Clearly these documents contained, for all intents and purposes, only the information Linnehan needed to be informed, to wit, of what he was being accused and who was doing the accusing.1515 The irony is that in a criminal case, a defendant can access exculpatory evidence, but in a civil case, such evidence remains undisclosed to the party because the accusers hide behind specious notions of privacy which have crept into statutes: typically, the person claiming privacy, such as a social worker, is not protecting his or her own private matters or those of anyone else, but only accusations by the accusing parent.Armstrong, at 1032, quoting Lavellee v. Listi, 611 F.2d 1129, 1131 (5th Cir. 1980), citing United States v. Kubrick, 444 U.S. 111, 122, 100 S.Ct. 352, 359 (1979).
In [a] sec. 1983 action, "until the plaintiff is in possession of the 'critical facts that he has been hurt and who has inflicted the injury,' ... the statute of limitations does not commence to run."
The standard in Massachusetts is the same: "The accrual of the cause of action occurs when the reasonable person who had been subject to the experience would have discovered that the injury was caused by that experience." Armstrong, at 1038-1039, quoting Riley v. Presnell, 409 Mass. 239, 565 N.E.2d 780, 786 (1991).
"[A]n injury to the mind could interfere with the discovery of the cause of action," and that a "reasonable fact finder ... could find that Riley did not make the causal link and that his failure to do so was reasonable" . . .Riley, 565 N.E.2d at 786.In a case not involving "repressed memory," accrual of the action does not occur until a "reasonable person who had been subject to the experience would have discovered that injury was caused by that experience." Riley, 565 N.E.2d at 786.Armstrong, at 1039.Although the case at bar is not a repressed memory case, it may as well have been. The result is the same: The defendants in-tentionally kept Linnehan in the dark. No reports made by the defendants were given voluntarily to Linnehan and his counsel, although they were shared with the mother's counsel and every other caseworker whether licensed or not. The court-appointed attorney for the child shared and shares information to this day with only the mother's attorney and the caseworkers of any stripe. The presumption of innocence was a constitutional right that belonged only to history while Linnehan's paternity and custody and the C&P cases were active. No evidentiary hearing was held by either of the two courts. No opportunity to rebut any adverse materials or to cross-examine any accusers or authors of the divers reports. Due process was also only some vague concept lost to history.
The controlling question is whether a plaintiff's knowledge, actual or attributed, of both harm to it and the likely cause of such harm is sufficient to stimulate further inquiry which was likely to alert it to a cause of action against a defendant.Hanson Housing Authority v. Dryvit System, Inc., 29 Mass.App.Ct. 440, 446 (1990). "At that point, the plaintiff must itself undertake to investigate available sources of information, or suffer the consequences. RohmTech, Inc. v. Taylor, 1997 WL 778669 at 8 (Mass.Super.Ct. 1997), citing American Glue & Resin v. Air Products and Chem., 835 F.Supp. 36, 45 (D.Mass. 1993), and Friedman v. Jablonski. 371 Mass. 482, 486 (1976).Given the intentional secrecy or withholding of information, and the intricate if not unconstitutional machinations of the two state courts, Linnehan could do nought but bring this case, to sue everyone in sight, all of whom shared the elusive information between themselves to the exclusion of Linnehan and all his counsel. Thus the statute cannot be anything but tolled.
Under the Massachusetts discovery rule, "The delayed knowledge may be either the fact of the injury ... or the cause of the injury." Cambridge Plating Co., Inc. v. Napco, Inc., 991 F.2d 21, 25 (1st Cir.1993).Armstrong, at 1039.Like the defendants in Armstrong, the defendants here "have not shown the absence of a genuine dispute of material fact as to whether a reasonable person who was subjected to the experience of [James Linnehan] would have discovered that injury was caused by [defendants'] conduct. Id.
For that reason, the statutes of limitations do not bar any of Linnehan's causes of action, whatever the limitations period.
6. Where discovery was and is still needed in order to write chapter 93A demand letters to address the claims against each of the defendants, Plaintiffs concede that no 93A claim letter was sent to any of the defendants, but intend to seek permission to conduct discovery, to write the letters, and then amend the last count if and as necessary.
Until the issues of immunity and the statute of limitations were decided, the writing of demand letters pursuant to M.G.L. c. 93A would have been an exercise of futility. "[T]he law does not require the doing of a useless act." Loomer v. Dionne, 338 Mass. 348, 353 (1959), citing Mowry's Case, 112 Mass. 394, 400, and Schayer v. Commonwealth Loan Co., 163 Mass. 322, 323-324.
The defendants have and will have not suffered any prejudice by receiving the letters after their motions to dismiss or for judgment on the pleadings are decided. Cf. Geary v. Herman's Sporting Goods, Inc.,et al, (Lawyers Weekly No. 05-055-00) (Collings, U.S.M.J.) (Civil No. 98-10318-RBC) (29 M.L.W. 957, December 25, 2000).
In fact, it will have been less costly for those defendants who might prevail on their motions. They would not have had to spend time in replying to letters which they clearly would have thought of as nuisance letters. As in Geary, supra, the allegations of wilful and knowing violations are not so lacking as to render an amendment futile after the letters are written to the surviving defendants.
CONCLUSION
Where Kern is not entitled to protection by statutory protection, or immunity, the divers statutes of limitations are not applicable to this case, and there is a genuine issue of material fact, judgment under Federal and Massachusetts Rule of Civil Procedure 12(c) or 56(b) cannot be properly granted. Greenberg v. General Mills Fund Group, Inc., 478 F.2d 254, 256 (5th Cir. 1973).
WHEREFORE Linnehan prays that Eileen Kern's Motion for Judgment on the Pleadings be DENIED.
Respectfully submitted,
PLAINTIFFS,
By their attorney,
2 February 2001 Barbara C. Johnson
Barbara C. Johnson, Esq.
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
CERTIFICATE OF SERVICE
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Barbara C. Johnson, Attorney at Law
6 Appletree Lane, Andover, Massachusetts 01810-4102 Phone 978-474-0833