Plaintiff Linnehan's Opposition and Memorandum in Support of Opposition to Motion to Dismiss  by John J. McCarthy, Jr.

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 ------------------------------------------------------ Linnehan's Opposition and Memorandum in Support of Opposition to  John J. McCarthy, Jr.'s Motion to Dismiss

 

Now come the Plaintiffs Theodore Brown, James Linnehan, and Jane & John Does to oppose Defendant John J. McCarthy, Jr.'s Motion to Dismiss the Complaint pursuant to Rule 12(b)(6).1 1  The counts against John McCarthy are the following: (1) negligence, (2)  interference with parental rights, (4) violation of 42 U.S.C. 1983 (against Linnehan), (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, (12) violation of G.L. c. 93A. In support of their opposition to John J. McCarthy, Jr.'s Motion to Dismiss, Plaintiffs submit this memorandum.\2/ This memorandum argues that McCarthy is not shielded by absolute or qualified immunity from Linnehan's statutory claims for interference with and deprivation of his parental and clearly establish constitutional rights, and that McCarthy is not shielded by absolute or qualified immunity from Linnehan's common-law claims. 2  Because Theodore Brown has not made any claims against John J. McCarthy, Jr., it is assumed that McCarthy's motion to dismiss refers only to those causes of action asserted by James Linnehan against McCarthy. That Linnehan's clearly established rights have been interfered with or that he was deprived of them is not disputed or controverted by McCarthy. McCarthy argues only that is shielded by absolute immunity because he performed a quasijudicial function.   FACTS AS TO LINNEHAN AS THEY RELATE TO JOHN J. McCARTHY, JR. [Compl. pars. 142-160] NOTE Details of the FACTS related to the role of Defendants Christopher Salt, DSS/Trial Court, Eileen Kern, Sandra Fyfe,  Chilren's Hospital, Amy Tishelman, AND Eli Newberger appear  in Linnehan's oppositions to the defendants' respective motions to dismiss and for judgment on the pleadings.        Details related to Linnehan's altered judgment and the harm, injury, damages he suffered are also in his oppositions. Common to all defendants: Linnehan had no opportunity to  present evidence, to cross-examine them, or to rebut any adverse or erroneous material Background. 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 month shy of 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. 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.  Eileen Kern. Literally one day after the Maine mediation stalemated on the visitation issue, Robyn made an appointment at New Bedford Child and Family Services with Kern [Comp., par. 12], who shortly thereafter filed with DSS a 51A report of suspected emotional, physical, and sexual abuse of Brenden. [Comp., par. 128.] Abuse was not alleged in Maine. DSS. DSS supported Kern's suspicion, albeit that it was formed without any reasonable cause to believe that an incident of sexual abuse had occurred. DSS then 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. Ultimately the judge ordered Linnehan to withdraw his case in Maine.  Sandra Fyfe. While the Collis Center executive director based his conclusions on multiple interviews with Linnehan and recommended supervised visitation, Fyfe met only with mother and child, introduced the idea of sexual abuse without a clear allegation [7/1/88 report], and wrote that the assessment did not confirm a diagnosis of sexual abuse, but then recommended no visitation. [Comp. par. 118.] Christopher Salt. Despite an abundance of evidence to the contrary and the absence of proof of sexual abuse, Salt concluded speciously that the child had been sexually abused, that Brenden allegedly feared men, and that Linnehan had to be the perpetrator of the suspected sexual abuse. [CS 7/1/88 report at 25; CS depo at 28].3  Then Salt recommended to the court that Linnehan be denied visitation [CS 7/1/88 report at 26], and the court accepted the recommendation.  3 NOTE: All deposition and report pages cited herein this opposition are  attached to Linnehan's opposition to Salt's motion to dismiss. Next three years. For the next three years, the court and the caseworkers held carrots on a stick in front of Linnehan to get him to go to a therapist.  It was promised, If you go, you'll get visitation with Brenden. In retrospect, these games were nothing but obscenely cruel, malevolent jokes.  1992. Salt updated his "parenting" assessment in 1992 and again recommended that Linnehan be denied visitation [CS 1/5/92 report at 16], and again the court accepted his recommendation.4  Salt irrationally accepted as truth Robyn's assertion that Brenden at 6 years of age believed that his therapist (Ferreira) conspired with Linnehan so that Linnehan could take him to his house.  4  Of the 60 court investigations Salt had performed in two-and-a-half years [Id. at 8], he found abuse in all but three [id. at 10], and all but one or two [id]. at 8] were done for the same Bristol County Juvenile Court judge. Also in 1992, Linnehan's case manager at New Bedford Child & Family Services and Dr. Ferreira recommended supervised visits, but the court did not listen. Eli Newberger, Amy Tishelman, and Children's Hospital.  In February 1992, under duress, Linnehan stipulated to a third evaluation by Newberger's team at the hospital.  Because Brenden had already been interviewed excessively, Brenden was not to be re-interviewed; instead, the parents were to be psychologically evaluated.  The ultimate goal was to restore the relationship between father and son.  Remarkably, four months before the report issued, Newberger wrote to the child's attorney that Linnehan was not to see the child, and the team did interview the boy, whose memory was likely irreversibly contaminated by that time. Newberger's team not only went beyond the scope of its authority, but did not perform the evaluation it was asked to conduct.  In 1993, another chapter 119, sec. 26, review and redetermination sought by Linnehan was dismissed, mother stipulated she would provide Linnehan updates about the child's health and welfare, school report cards, school papers, photos, and a short narrative of his interests. Mother did not comply.  Jack McCarthy. In the Complaint at paras. 15, 142-145, Plaintiffs referred to McCarthy as a court-appointed evaluator. That was error.  Linnehan's counsel was alerted to the error when McCarthy in his Answer admitted writing reports, but denied the remainder of the paragraphs [Ans., pars. 142-145].  In February 1993, the parties stipulated that McCarthy5 would be the child's therapist and would provide the Juvenile Court Probation Department with a report every six months.  In May 1995, Brenden was allegedly unwilling to attend any sessions with McCarthy, so an order issued stating that the child no longer had to attend therapy, but all previous orders would remain in effect.  5  McCarthy was on a list of possible therapists for the child, Brenden. Attorney Sobral, counsel for Eileen Kern's employer, recommended McCarthy.  No reference of appointment issued from the court.  On 28 March 1994, McCarthy sent one report-type letter to the child's attorney. In it, McCarthy relied upon the Newberger-team report as the basis for recommending that Linnehan be denied visitation with his son. McCarthy met five times with the mother and one time with mother and child together. [Exh. A, hereto attached, Am.Comp. par. 142]. On 3 August 1994 he sent a letter to Robyn's attorney.6 [Exh. B].   [Am.Comp. par. 142].  Since the previous report/letter, he had met with Robyn four times, and anticipated meeting with Robyn and Brenden one time together. Clearly, anything McCarthy attributed to Brenden was from his mother.  6  Robyn had filed for divorce but two months earlier, in June 1994. Linnehan learned this last year, in Spring 2000.  McCarthy continued to communicate only with Robyn's and Brenden's attorneys, and did not meet with Linnehan's counsel until 26 January 1995 (two years after his selection), when McCarthy again relied on the Newberger report as the basis for recommending that Linnehan be denied visitation.  [Exh. C, Attorney Fleury's notes memorializing his meeting with McCarthy]. [Am..Comp. par. 143].  And in 1998, Jack McCarthy yet again relied on the Newberger report and recommended that Linnehan not be allowed visitation with his son [Am.Comp. par. 144]. On 10 March 1999, McCarthy did it again: he relied on the Newberger report to recommend that Linnehan's parents, enneagenarians, be denied permission to see their grandson [Exh. D].   [Am.Comp. par. 145].  That same letter, addressed "To Whom It May Concern," reveals that McCarthy met with Robyn 21 times over the 1-1/2 years between September 1993 and April 1995 and that Brenden attended "some" sessions [Exh. D].  Contrast that assertion with that in Exh. C, where it was reported he never saw Brenden alone, and with the bills Exh. E, which show no individual sessions with Brenden. The judge, having been assigned to sit as Probate & Family Court Justice, accepted McCarthy's recommendation at all times [Am.Comp. par. 146] and never gave Linnehan an opportunity to confront McCarthy. During these years, Robyn has been embroiled in her divorce. [Am.Comp. par. 149].  Neither Newberger nor McCarthy recognized and/or acknowledged Robyn's two out-of-wedlock pregnancies or her lifestyle during the critical times after the end of her relationship with Linnehan.  McCarthy's reports suggest that he was unaware that Robyn also accused her husband of sexually abusing his two children and the child she and Michael had together, Justin. [Am.Comp. par. 150-151]. But was he unaware? McCarthy, who rubber-stamped Newberger's deficient evaluation and predetermined conclusions, was mute about Robyn's separation and stormy marriage, and used Newberger's report as the basis for his recommendation that Linnehan not be allowed to visit with or have any communication with his son. [Am.Comp. par. 154].  ARGUMENTS STANDARD OF REVIEW "In ruling on a motion to dismiss, `the allegations of the complaint [and annexed exhibits], as well as such inferences as may be drawn therefrom in the plaintiff's favor, are to be taken as true.'" Whitinsville Plaza, Inc. v. Kosteas, 378 Mass. 85, 87 (1979), quoting Nader v. Citron, 372 Mass. 96, 98 (1977).  A "complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Citron v. Nader, 372 Mass. 96, 98 (1977), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Mass.R.Civ.P. 8(f). "A complaint is not subject to dismissal if it could support relief on  Any theory of law," Whitinsville, 378 Mass. at 89, "even though the particular relief [which plaintiff] has demanded and the theory on which he seems to rely may not be appropriate." Nader, 372 Mass. at 104 (citations omitted).   1. Where McCarthy was incompetent, acted in bad faith, and violated Linnehan's constitutional fundamental liberty right,  McCarthy's qualified-immunity defense for Counts 2, 4, and 6  must fail. a. Linnehan alleged a violation of a constitutional right. Contrary to McCarthy assertion in his "Issue A," Linnehan did allege a federal or state constitutional right, for parents have a fundamental liberty interest in their children under both the state and federal constitutions. Even as an unwed parent, Linnehan has one: for, as Stanley, infra, required, he had "maintained [a] strong parental relationship" with his son until the boy was secreted away by the mother to Massachusetts.  Stanley v. Illinois, 405 U.S. 645 (1972) (unwed father has fundamental right in the care and custody of children born out of wedlock with whom he maintained strong parental relationship); Prince v. Massachusetts, 321 U.S. 158 (1944) (parents have fundamental interest in the religious upbringing of children); Meyer v. Nebraska, 262 U.S. 390 (1923) (parents have fundamental interest in the education of their children). Frazier v. Bailey, 957 F.2d 920, 929 (C.A.1 (Mass.),1992).  Given that the Supreme Court held at least as early as 1923 that parents have a fundamental interest in the education and 1972 in the care and custody of their children, McCarthy, presumably a reasonable person, must be deemed to have known that Linnehan had a fundamental liberty interest in his son, Brenden.  The Supreme Judicial Court and the Supreme Court of the United States have recognized that parents have a fundamental interest in their relationships with their children that is constitutionally protected. See Santosky v. Kramer, 455 U.S. 745, 753 (1982); Custody of Two Minors, 396 Mass. 610, 617 (1986), citing Little v. Streater, 452 U.S. 1, 1 (1981); Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 587 (1981). This interest is one of the "liberty" interests protected by art. 10 of the Massachusetts Declaration of Rights, and the due process clause of the Fourteenth Amendment to the United States Constitution. See Dep't of Pub. Welfare v. J.K.B., 379 Mass. 1, 3 (1979), citing Quilloin v. Walcott, 434 U.S. 246 (1978). Opinion of the Justices to the Senate, 427 Mass. 1201, 1203 (1998).  And although  the Justices explained that a parent's interest in his relationship with his child is not absolute, because the "overriding principle" in determining the right of a parent to custody "must be the best interest of the child,". . . [a] parent's "desire for and right to 'the companionship, care, custody, and management of his or her children' is an important interest that 'undeniably warrants deference and, absent a powerful countervailing interest, protection.'"  Youmans v. Ramos, 429 Mass. 774, 784 (1999) (cites omitted). In Youmans, the mother of the out-of-wedlock child had died, the maternal aunt had been appointed the child's guardian and had brought up the child while the father was stationed abroad with the military, and upon his return, custody was given to the father and the aunt was allowed to contact the child. The court determined that it was not constitutionally impermissible interference with  father's rights to allow the aunt to have contact with the child.  Id. at 785. The countervailing interest was "the integrity of [the child's] family."  Id. at 784 (emphasis supplied).  Here, too, family integrity is the countervailing interest.  It has, thus far, been impermissibly interfered with by the natural defendants in this case primarily because due process was denied Linnehan, significant judicial decisions were abrogated to untrained or ill-trained, incompetent and biased persons, and societal hysteria was allowed to reign: (1) there was no evidence whatsoever of child abuse, (2) those who reported to the court were  incompetent and based their recommendations solely on hearsay from  Robyn, and were recklessly indifferent to Linnehan's constitutional rights because of their bias in favor of women, (3) Linnehan was denied an opportunity to confront his accusers, and (4) the countervailing interest of family integrity was ignored.   b. McCarthy was incompetent, and therefore is not entitled to immunity. Given the evidence of McCarthy's incompetence, to which his reports give testament, even were he to have had qualified immunity, it would not protect him. "Qualified immunity protects `all but the plainly incompetent OR those who knowingly violate the law.'" Anderson v. Creighton, 483 U.S. 635, 638 (1987), quoting Malley v. Briggs, 475 U.S. 335, 341 (1986). Emphasis supplied. Exhibits A-E are not only sufficient evidence to deem McCarthy incompetent but also to prove that he never performed any therapeutic task! He was to give Brenden therapy, not have coffee klatches with the beautiful and exotic Robyn. This is sufficient under Anderson and Malley to prove that McCarthy is not protected by his qualified immunity defense.  Then, after having coffee-klatch consultations with Robyn, clearly angry at Linnehan for not marrying her and angry that her then ongoing divorce was not proceeding as she hoped, he recommended that Linnehan not be given visitation. That repeated recommendation by McCarthy over a period of five years was clearly in bad faith.  Under Harlow, McCarthy's bad faith is sufficient to preclude him from protection by qualified immunity.  Cases cited by McCarthy.  Unlike the psychologists in Watterson v. Page, 987 F.2d 1 ((1st Cir. (N.H.) 1993), McCarthy was not duly appointed.7 Unlike Seymour, McCarthy did not testify on the witness stand. Id. at 8. Unlike Linnehan, the Watterson plaintiffs also did not argue in the district court any constitutional claim: they waited until they appealed to make such a claim.   Id.   at 7 notes 3 and 4. "Damage to reputation alone does not constitute a violation of a substantive due process right." Id. at n. 4.  7   McCarthy is, however, a "state actor" for purposes of suit under section  1983. "A private party who conspires with a state actor ... may act under color of state law." Myers v. Morris, infra, at 1467, citing Dennis v. Sparks, 449 U.S. 24, 27-29 (1980). See also discussion below of Camilo-Robles v. Hoyos, 151 F.3d 1, 10 (1st Cir. (Puerto Rico) 1998). Unlike the plaintiffs in Myers v. Morris,8 810 F.2d 1437 (8th Cir. (Minn.) 1987), Linnehan pled, in accordance with Harlow and Anderson, the deprivation of a particular constitutional right which was violated. The Myers plaintiffs pled violations of abstract rights.9 8  This case appears under "Myers," not "Meyers." 9  Myers was a consolidation of "eight civil rights lawsuits which grew out of a child sexual abuse investigation in Jordan, Minnesota, during 1983-84. Thirteen of the fifteen plaintiffs in these cases were charged . . . with criminal sexual activity including one or more minor children." Myers v. Mor-ris, 810 F.2d at 1440. The plaintiffs' complaints were "phrased in terms of conspiracy, fraud, malice, coercion and violation of constitutional rights and state law." Id. at 1444. In Manzano v. South Dakota DSS, 60 F.3d 505 (8th Cir. 1995), the state child-abuse investigator failed to interview Manzano. Here, McCarthy was allegedly the child's therapist, but saw him with the mother only once10 and never interviewed the child alone. Brown v. Ives, 127 F.3d 209 (1st Cir. (Maine) 1997), bears no resemblance to the instant case. It is simply one more case thrown into the pot where professionals or court-appointed persons do not need to be accountable to anyone.11  One more opinion where Hysteriocracy scarred society. [See Linnehan's opposition to Newberger's Motion to Strike Affidavit of Johnson, p. 3, n. 3.] 10   It is unclear if McCarthy saw the child twice with the mother. 11   McCarthy argues that "any procedural unfairness in the proceedings involving Linnehan cannot be attributed to McCarthy," but Linnehan did not assert that McCarthy was responsible for judicial acts. The only similarity to Brown v. Ives is that McCarthy, like the workers in Brown, points a finger to the court. For instance, "Hey, our job might have been negligent, but we didn't separate granddad from the children, the courts did. It was the court who denied procedural due process." The First Circuit's response was, Maine's judge are absolutely immune from damage claims based on their judicial decisions. . . . Nor can we review decisions of the Maine courts even for constitutional error; only the Supreme Court can do that. Brown, at 212.  By statute, however, Massachusetts allows the judiciary to abrogate its responsibility to lightweight caseworkers. The problem arises when the judges rubber-stamp the reports of those appointed to produce them. "Judges tend to overly rely on GAL reports," said Boston attorney Gerald L. Nissenbaum. "In fact, I'd but you'd find about a 97 percent correlation between the GAL's report and judge's custody decisions." 25 M.L.W. 2707 (August 25, 1997). Nissenbaum is on the Editorial Board of the Lawyers Weekly (1986-present) and is former Massachusetts chapter president of the American Academy of Matrimonial Lawyers.  It was error for Judge Harper to rely solely on the report of the so-called mental-health workers. Delmolino v. Nance, 14 Mass.App.Ct. 209, 214 (1982).  For instance, a judge may request a guardian ad litem to make a custodial recommendation but that judge must also draw his own conclusions and make his decision independent of the guardian. Adoption of Paula, 420 Mass. 716, 724 (1995). The judge "should draft his order from his own conclusions and not merely parrot the views or conclusory recommendations contained in an investigator's report." Adoption of Arthur, 34 Mass.App.Ct. 914, 916 (1993).  In sum, although McCarthy can produce a stipulation of the parties to choose a therapist, he cannot produce a reference by the court to that position. He was simply a private party. Given that he was to produce reports to the Probation Department of Juvenile Court, his conduct is, nevertheless, attributable to the state. 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). "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.  Further, all the cases cited violate the spirit of Harlow, supra. Harlow narrowed the requirement from "constitutional right" to "clearly established constitutional right."  The purpose was to minimize frivolous cases. In 1982, when the SJC decided Harlow, the day-care sex-abuse cases had not yet taken the country by storm and the hysteria had not yet spread to the family courts. After many day-care workers were released from prison based upon misconduct of prosecutors and others assisting the prosecution, the false accusations moved into the family courts. Since then, the states have been paid a bounty to tear families apart, and angry unwed mothers or divorcing women are using false allegations to make fathers unnecessary -- except for child-support payments.   There are few if any due-process safeguards in the modern legislation. leaving the judiciary fearful of exercising discretion and abrogating serious discretionary functions to ill-trained or untrained workers in the so-called mental-health professions. None of the cases cited by McCarthy is a frivolous case of the type the Supreme Court was trying to lessen. The standard for separating parent from child is clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769 (1982).  Adoption of Vito, 431 Mass. 550 (2000). That standard is markedly different from that used in the cases which defendants cited and which allow separation of parent from child even if person recommending the  separation has been negligent . . . and then the courts with lack of wisdom deny any relief to the devastated parent because the person who caused the damage does not need to be accountable to society or even to themselves. This is not the justice in the America to which I pledged allegiance in grade school.             c. McCarthy acted in bad faith. Exhibits A, B, and D are the work of someone who performed no therapy of the child. It must be concluded that the letter-type reports were issued in bad faith. Reasonable good faith is necessary in order to be protected by either qualified or absolute immunity. Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982).12 "Good faith" is, in fact, a synonym for "qualified immunity."  Harlow, at 815. See n. 9. 12 "Qualified or `good faith' immunity is an affirmative defense that must be pleaded by a defendant official. Id. at 815, citing Gomez v. Toledo, 446 U.S. 635 (1980).  Good faith or qualified immunity has two aspects, an objective and a subjective aspect.  Harlow, at 815.  "The objective element involves a presumptive knowledge of and respect for `basic, unquestioned constitutional rights.'"  Harlow, at 815, quoting Wood v. Strickland, 420 U.S. 308, 322 (1975). Therefore, if we assume arguendo that McCarthy was an official, to be protected by qualified immunity, he would have to prove that he did not know or could not have known that the "reports" he wrote would violate Linnehan's constitutional rights.  "The subjective component refers to `permissible intentions.'" Harlow, at 815, quoting Wood v. Strickland, 420 U.S. at 322. If McCarthy's intentions were not permissible -- e.g., if McCarthy had a malicious intent to injure Linnehan or had had faith, or "`if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury [to Linnehan]' [ibid.]," his qualified immunity defense is defeated. Harlow, at 815. Clearly, Linnehan contends, McCarthy's twenty-one visits with Robyn alone -- and none with Brenden alone -- when she was not the subject of his work,13 are the source of McCarthy's bad faith and/or malicious intention to deprive Linnehan of his constitutional rights or other injury. 13   Exhibit D, McCarthy's bills, acknowledge that his services were allegedly for Brenden, but Linnehan asks, How can a therapist pretend his services were for a client when he never met with the client, only the client's mother? The answer: only when the therapist is committing fraud . . . or something else. Something was quite awry with McCarthy's alleged services.  "By defining the limits of qualified immunity essentially in objective terms, we provide no license to lawless conduct [Harlow, at 819] . . . and a person who suffers injury caused by such conduct may have a cause of action. Id.      d. McCarthy violated Mass. Civil Rights Act. McCarthy's admission of his recommendations to the court evidence his power over Linnehan, but there was never any direct contact between them. Linnehan could not have anticipated McCarthy's interference with or attempt to interfere with the exercise and enjoyment of his parental rights secured by the constitutions or laws of the United States and/or the Commonwealth. McCarthy's weapon for interference: his pen, to wit, his reports to the Probation Department. Linnehan has not seen them. Linnehan has seen only those documents attached hereto as Exhs. A-E. There was nothing Linnehan could do when McCarthy did not perform as required. In fact, because Linnehan had been in litigation for five years before McCarthy appeared on the scene, there was little, if anything, Linnehan could afford to do. McCarthy  acted under the alleged color of state law, and Linnehan was threatened, intimidated, and coerced into not enforcing . . . and was unable to exercise . . . his constitutional right to a relationship with his child. Based on the above, the defendant's motion should be denied without consideration of any other argument.    2. Qualified immunity does not shield McCarthy from liability. a. Whether or not the parent-child relationship is a clearly established right, McCarthy is not shielded by qualified immunity. Twenty years ago, when the opinion in Harlow was written, its two-step analysis was more viable than it has been since Anderson, which mellowed the harshness of Harlow a bit by carving out the "incompetent" exception, addressed in the previous section.  For instance, the court in Harlow, attempting to whittle down the number of frivolous suits, heightened the hurdle of qualified immunity over which a plaintiff had to vault. The court did that by metamorphosizing a "fundamental right" into a "clearly established constitutional right." Indeed, instead of having to prove that his or her fundamental right had been violated in order to overcome qualified immunity, a plaintiff after Harlow had to prove that his or her "clearly established constitutional right" had been violated. And a fundamental right, the high court said, did not become clearly established until the high court says they are. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, . . . but it is to say that in the light of pre-existing law the unlawfulness must be apparent. Anderson, at 640 (cites omitted).  Then, in the First Circuit, along came Frazier v. Bailey, 957 F.2d 920 (1992). There, the appeals court explained that if a governmental interest competed with "familial integrity," there had to be a balancing test, and if there had to be a balancing test, then the constitutional right was not clearly established.  Common sense and Berthiaume, infra, seem to have made Frazier short-lived. Linnehan, too, contends that while acknowledging the need to define rights so as to do away with popular misconceptions as to what is a fundamental right, the court in Frazier was in error regarding familial integrity, for its opinion is Orwellian.   The right of having children and having a loving and caring relationship with them is inherent in Man, making governmental interference with that natural right appropriate only in the most egregious conditions. Department of Revenue v. C.M.J., 432 Mass. 69, 76-77 (2000). Such egregious conditions did not exist here. And but for Robyn, the very deficient Newberger report, and the parrot McCarthy's report, there is no evidence that such conditions existed here to make governmental interference appropriate. In conflict with the standard in Frazier is the clear and convincing standard of Santosky v. Kramer, 455 U.S. 745, 769 (1982). Adoption of Vito, 431 Mass. 550 (2000). The "clear and convincing" standard is to be used when finding a parent unfit, and despite the words unfit or unfitness not being used in the domestic relations arena, that is what is being impliedly declared when precluding parent-child relationships . . . and the reason for avoiding those words is to avoid having to use the clear and convincing standard. It is tantamount to fraud upon parents and children.  A rose is a rose is a rose.  And, of course, that standard requires a hearing in accordance with due process.  As mentioned above, the First Circuit appears to have taken another look at the issue of rights: 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). Given that McCarthy knew what he was doing, under Berthiaume, McCarthy cannot rely on qualified immunity as a shield from liability.    b. Where McCarthy is a private party, albeit also a state actor, he is not entitled to qualified immunity. The question has become, Is McCarthy a court-appointed psychologist? Without a reference, the answer must be No. The problem arose because the stipulation required him to file reports with the Probation Office and the letters contained recommendations for visitation, which, counsel had believed, would not have been made unless he had the authority to do so.  Therefore, although McCarthy can produce a stipulation of the parties to choose a therapist, he cannot produce a reference by the court to that position.  He was simply a private party. Given that he was to produce reports to the Probation Department, his conduct is, nevertheless, attributable to the state.  As a private party, the applicable standard is in 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).  "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.    c. Where McCarthy's discretionary conduct was not related to public policy, it is not protected by qualified immunity. If McCarthy's conduct is nondiscretionary, McCarthy is not shielded from tort liability. Irving, 162 F.3d at 177, citing Berkowitz, at 536, 108 S.Ct. 1954. If McCarthy's conduct is discretionary, the court must ask, Is the discretion susceptible to policy-related judgments? Id., citing United States v. Gaubert, 499 U.S. 315, 322-323 (1991); Berkovitz v. United States, 486 U.S. 531, 536-37 (1988) (seminal case); and Irving v. United States, 162 F.3d 154, 162 (1st Cir. Dec. 18, 1998) (No. 96-2368, slip op. at 15-16). The so-called discretionary function exception . . . does not protect all governmental activities involving an element of choice. Gaubert, 499 U.S. at 335 (Scalia, J., concurring), citing Berkovitz, 486 U.S. at 536-37. Shansky, 164 F.3d at 691.  Even assuming arguendo that his conduct was discretionary, i.e., that it involved an element of judgment or choice on McCarthy's part, McCarthy's judgment was not based on political, social, or economic policy.  See Irving, 162 F.3d at 173, 180 (dissent, Bownes, by Senior Circuit Judge, and Lipez, Circuit Judge). . . . Congress intended to "protect only governmental actions and decisions based on considerations of public policy."  Irving 162 F.3d at 180, citing Gaubert, 499 U.S. at 323 (quoting Berkovitz, 486 U.S. at 537). "And any discretion [McCarthy] might have enjoyed to negligently carry out a commanded [investigation] can hardly be said to be grounded in regulatory policy.'" Irving at 180, quoting Gaubert at 325 n. 7. Recognizing that all acts in life require some judgment or choice by the actor, it depends on the level and context in which the discretion is at play.14   For instance, in Shansky, supra, Justice Selya, quoting from Berkovitz, 486 U.S. at 545, wrote "discretion involving application of `objective scientific standards' is not policy-based discretion."  14   McCarthy fails to state which conduct he contends is shielded by immunity, or which action was a matter of choice for him.  3. Where McCarthy was not duly appointed, was incompetent, and did nothing except meet with the mother, there is no basis for the application of absolute immunity. None of the cases cited by McCarthy contemplated extending absolute immunity to a functionary who did nothing but visit with mother -- rather than interview the child as the stipulation required -- and adopt a report previously written by someone else, to wit, Newberger.  Given that Brenden did not want to participate in therapy with McCarthy, the proper course of conduct would have been to notify the parties and the court and decline to produce a report against Linnehan based solely on Robyn's chitchat.  Under these circumstances, it should be demeaning to any court to dignify McCarthy's performance by deeming it worthy of judicial or quasijudicial immunity.   4. As to Count 8, civil RICO.15 15 This count might have been properly entitled merely "conspiracy" to encompass both statutory (Secs, 1985(3), 1986, and RICO) and common-law conspiracies. Nevertheless, as stated in note 14 of the Complaint, the elements of a civil conspiracy are: (1) two or more persons; (2) an object to be accomplished; (3) an agreement on the object or course of action; (4) one or more unlawful overt acts; and (5) damages that are a direct result of those acts. Breach of a duty of loyalty satisfies the unlawful act element of a civil conspiracy claim.. Here, if any of the defendants are deemed to be state actors, then Secs. 1985(3) and 1986 would come into play. In furtherance of their object, McCarthy participated with some of the other defendants in two or more predicate acts against Linnehan. They communicated by telephone and letter their biased presumptions, their flawed and specious conclusions and opinions to each other, as well as to third parties not named in this action, that Linnehan had sexually abused his child. They suggestively and improperly questioned the child until Brenden allegedly accused Linnehan, and rubber-stamped each other's decisions that Linnehan had sexually abused his child. The pattern was to receive income from future services which had been made mandatory when sexual abuse -- true or not -- was found. To McCarthy, a finding of sexual abuse meant more court appointments and referrals by other local area, so-called mental health workers, who would recommend counseling or the continuation of counseling by their respective agencies for the children, counseling for the parents, batterer or anger-management programs, sex-offender programs, testing, multiple evaluations, repeated testing, and so on -- out of which has grown a multi-billion-dollar sex abuse industry, and of which McCarthy's own cottage industry was a part.  The defendants agreed on the object or course of action.  The opinions of competent collateral mental-health professionals, i.e., those who did not play the game were deliberately and intentionally ignored in Linnehan's underlying case. Linnehan was repeatedly not given the opportunity to confront the accusing McCarthy in a court of law before he was deprived again and again of his relationship with his son Brenden, and he suffered damages that are a direct result of those acts.    5. McCarthy is not entitled to absolute immunity on Linnehan's state claims. McCarthy did nothing but meet with mother, services he did not provide the child, unlawfully charged the insurance company and Linnehan for chatting with Robyn, and conducted no evaluation or assessment or therapy. WHEREFORE Linnehan prays that McCarthy's Motion to Dismiss be DENIED.

 

Respectfully submitted,                                            PLAINTIFFS,                                            By their attorney, 16 March  2001                    Barbara  C. Johnson                                            Barbara C. Johnson, Esq.                                            6 Appletree Lane                                            Andover, MA 01810-4102                                            978-474-0833     CERTIFICATE OF SERVICE