SAYLOR, District Judge.
This is a civil rights action arising out of a body cavity search. In 2005, Shane Spencer was arrested by the Worcester Police for driving on a suspended license. Shortly thereafter, a confidential informant notified officer Gary Morris that he believed Spencer had placed crack cocaine in his rectum just before he was arrested. Officer Morris and Sergeant Stephen
Spencer has brought an action against Roche, Morris, the City of Worcester, and VHS Acquisition Subsidiary Number 7, Inc. ("VHS"), which operates Saint Vincent Hospital. The complaint includes claims for (1) violations of the Fourth, Fifth, Eighth, and Fourteenth Amendments of the U.S. Constitution, under 42 U.S.C. §§ 1983 and 1988 (2006); (2) violation of the Massachusetts Civil Rights Act ("MCRA"), Mass. Gen. Laws ch. 12, § 11I (2010); (3) assault and battery; (4) intentional infliction of emotional distress; (5) municipal/ supervisory liability; and (6) invasion of privacy.
On September 30, 2010, the Court entered an order granting defendants' motions for summary judgment in part, and granting defendants' motion to strike plaintiff's cross-motion as untimely. The order denied summary judgment as to the claims against Morris and Roche under section 1983 and for assault and battery and intentional infliction of emotional distress, and dismissed the MCRA claims, the municipal/supervisory liability claims against the City, and all claims against VHS.
On October 4, 2010, plaintiff filed a motion requesting the Court to reconsider three issues. First, plaintiff asks the Court to reconsider its reading of Longval v. Comm'r of Corr., 404 Mass. 325, 535 N.E.2d 588 (Mass.1989), on which it based its dismissal of the MCRA claims. Second, he contests the Court's determination that the nurse employees did not have a duty to question the restraints placed on him by Morris and Roche. Finally, plaintiff disputes the Court's dismissal of his invasion of privacy claims.
As reflected in the amended order below, the Court finds plaintiff's first request persuasive and has reconsidered its interpretation of Longval. It is not persuaded by plaintiff's other arguments. Accordingly, plaintiff's motion for reconsideration will be granted insofar as it seeks to preserve his MCRA claims against Morris and Roche and will otherwise be denied.
The facts are presented in the light most favorable to plaintiff.
On July 28, 2005, Shane Spencer was arrested in Worcester, Massachusetts, and charged with operating a motor vehicle after his license had been suspended. (Defs.' Facts Exs. 4, 5). Worcester police officer Gary J. Morris made the arrest, along with two officers named Lopez and Vo. (Id. Ex. 5). After Spencer was placed in the patrol wagon and transported to the station for processing, Morris received a
Later on the evening of July 28, the police filed an application for a search warrant. The application included an affidavit by Morris describing the circumstances of the arrest, the statements made by the confidential informant, and the unsuccessful visual search of the area. (Id.). A warrant was issued to search for cocaine "at Shane M. Spencer (d.o.b. x/x/xx) `anal cavity.'" (Id.). The warrant allowed for a search "on the person or in the possession of [Shane M. Spencer (d.o.b. x/x/xx) `anal cavity']." (Id.).
After the warrant was issued, Spencer was transported by Roche and Morris to Saint Vincent Hospital in Worcester. (Defs.' Facts Ex. 2 ¶ 10; Ex. 3 ¶ 10; Ex. 7 No. 3). At triage, the following was documented: "patient suspected heroin and cocaine inserted rectally here with police with warrant for cavity search." (Defs.' Facts Ex. 8).
Spencer was seen by John E. Scola, M.D., who noted: "20-year-old male enter [sic] for cavity search for suspected drug (crack cocaine) in package." (Id.). After the warrant was presented to Dr. Scola, he performed an anal cavity search. (Defs.' Facts Ex. 2 ¶ 11; Ex. 3 ¶ 11; Ex. 7 No. 3; Ex. 8).
Spencer refused to sign a conditions of treatment agreement or a release of medical records form. (Spencer Dep. 35).
After the digital search, Roche became upset and told Dr. Scola that there was a possibility that Spencer had orally swallowed the drugs. (Spencer Dep. 28). At the request of Roche and Morris, Dr. Scola ordered a "KUB [kidneys, ureters, and bladder] & upright" x-ray study. (Defs.' Facts Ex. 8; Pl.'s Facts Ex. 3). Spencer was handcuffed to a gurney and escorted by at least two nurses to radiology. (Spencer Dep. 25, 28-29, 31-33, 36, 38, 43).
The radiology results were negative for the presence of cocaine. (Defs.' Facts Ex. 8). An individual employed by the hospital presented the x-ray results and radiologist's report to Roche, Morris, and an unidentified officer. (Spencer Dep. 32-33). The individual also informed them that there was nothing found in Spencer's stomach area. (Defs.' Facts Exs. 17-18).
Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "Essentially, Rule 56(c) mandates the entry of summary judgment `against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Coll v. PB Diagnostic Sys., 50 F.3d 1115, 1121 (1st Cir.1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In making this determination, the Court views "the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir.2009).
As noted above, this order has been amended in response to plaintiff's motion for reconsideration. "[M]otions for reconsideration are appropriate only in a limited number of circumstances: if the moving party presents newly discovered evidence, if there has been an intervening change in the law, or if the movant can demonstrate that the original decision was based on a manifest error of law or was clearly unjust." U.S. v. Allen, 573 F.3d 42, 53 (1st Cir.2009). Plaintiff does not present any newly discovered evidence or intervening
Defendants have jointly moved to strike plaintiff's cross-motion for summary judgment, filed on November 30, 2009. They contend that at the status conference held on September 11, 2009, the Court set a due date for dispositive motions of September 30, 2009. They submit that, because plaintiff's cross-motion for summary judgment was filed on November 30 without leave of the Court to file a late submission, it was untimely and should be struck. Plaintiff contends that the Court granted him an extension until December 3, 2009 to file a cross-motion for summary judgment. The transcript from the September 11, 2009 status conference clearly indicates that plaintiff's cross-motion was due by November 6, 2009. The cross-motion was therefore filed late and will only be considered as an opposition to defendants' motions.
The complaint asserts a claim under 42 U.S.C. §§ 1983 and 1988 against Roche and Morris for violations of the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. (Amend. Compl. ¶¶ 13-15). Defendants have moved for summary judgment, contending that the searches conducted on plaintiff were supported by probable cause and under the authority of a valid search warrant. For the reasons stated below, the motion for summary judgment will be granted to the extent that the claim is based on the attempted visual search performed by the police officers at the police station and the digital search performed by Dr. Scola at the hospital, and denied to the extent that the x-ray search at the hospital exceeded that which was necessary to examine plaintiff's anal cavity.
A search of a person incident to a valid arrest does not normally require a warrant. United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) ("[I]n the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a `reasonable' search under that amendment."). Thus, if the arrest was lawful, a searching officer does not need to have any further justification for performing a search of an arrestee. See United States v. Bizier, 111 F.3d 214, 217 (1st Cir.1997). The search incident to arrest need not occur at the scene of the arrest, but "may legally be conducted later when the accused arrives at the place of detention." United States v. Edwards, 415 U.S. 800, 803, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974).
However, not all warrantless searches of an arrestee are automatically permissible; any such search must be reasonable. A strip and visual body cavity search thus requires independent analysis for reasonableness under the Fourth Amendment. Swain v. Spinney, 117 F.3d 1, 7-8 (1st Cir.1997). The evaluation of the constitutionality of a warrantless
Strip and visual body cavity searches of arrestees obviously involve a highly intrusive invasion of privacy. Such searches require an arrestee not only to strip naked in front of a stranger, but also to expose the most private areas of his body to others. The First Circuit has "recognize[d], as have all courts that have considered the issue, the severe if not gross interference with a person's privacy that occurs when guards conduct a visual inspection of body cavities." Id. (quoting Arruda v. Fair, 710 F.2d 886, 887 (1st Cir.1983)).
Courts must, however, accommodate the reasonable needs of law enforcement. Thus, some courts have held that a warrantless strip search may be justified by the need to discover and preserve concealed evidence of a crime. See, e.g., Justice v. Peachtree City, 961 F.2d 188, 193 (11th Cir.1992). But see Fuller v. M.G. Jewelry, 950 F.2d 1437, 1446 (9th Cir.1991) (prison visual body cavity search with less than probable cause only permitted to protect institutional safety and security; search for evidence must be justified by probable cause).
In balancing these interests, courts have generally concluded that strip and visual body cavity searches must be justified by at least a reasonable suspicion that the arrestee is concealing contraband or weapons. See, e.g., Swain, 117 F.3d at 5-7; Justice, 961 F.2d at 192; Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir.1989); Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986); Stewart v. Lubbock County, 767 F.2d 153, 156 (5th Cir.1985); Giles v. Ackerman, 746 F.2d 614, 615 (9th Cir.1984); Mary Beth G. v. City of Chi., 723 F.2d 1263, 1273 (7th Cir.1983).
Here, the officers had received information from a confidential informant that plaintiff was hiding narcotics in his anal cavity. This information provided the officers with reasonable suspicion sufficient to justify their visual search. Indeed, a warrant was later issued for a search of plaintiff's cavity based solely on this very evidence. Therefore, the visual search performed by officers Roche and Morris in the police station did not violate the Constitution.
Defendants contend that because the digital search performed by Dr. Scola at the hospital was conducted pursuant to a valid warrant, the search was lawful and did not violate plaintiff's constitutional rights. Accordingly, they argue that summary judgment should be granted to the extent that the § 1983 claim is based on the digital search.
As noted, Spencer has not challenged the validity of the search warrant. Therefore, the Court will assume that there was probable cause to conduct the search. Nor is there anything in the record to suggest that the manner in which the search was conducted was unreasonable. The search was performed by a physician at a hospital in a manner that appears to have been medically appropriate,
Accordingly, the Court finds as a matter of law that the digital cavity search was lawful. The motions for summary judgment will therefore be granted to the extent that Count 1 is based on the digital search.
After the digital search found nothing, Roche became upset and told Dr. Scola that perhaps plaintiff had swallowed the cocaine. At Roche's urging, Dr. Scola ordered an x-ray examination. Although the record is not entirely clear, it appears that the x-ray search in part targeted Spencer's stomach and thus went well beyond that which was necessary to ensure that there were no drugs in his anal cavity.
Under both the Fourth Amendment and Article 14 of the Massachusetts Constitution, "[s]earches and seizures conducted outside of the scope of a valid warrant are presumed to be unreasonable." U.S. CONST. amend. IV; MASS. CONST. PART 1, ART. XIV; Commonwealth v. Balicki, 436 Mass. 1, 8, 762 N.E.2d 290 (Mass.2002) (citing Commonwealth v. Antobenedetto, 366 Mass. 51, 57, 315 N.E.2d 530 (Mass.1974)). Here, the warrant specifically was limited to a search of Spencer's "anal cavity." The officers did not have a reasonable basis for believing that Spencer had a packet of cocaine in his stomach.
Counts 2, 3, and 4 allege state law claims: violation of the Massachusetts Civil Rights Act (Count 2); assault and battery (Count 3); and intentional infliction of emotional distress (Count 4). All three counts are brought against Roche, Morris, and VHS; VHS is sued as the employer and supervisor of Dr. Scola and the (unnamed) nurses who assisted in restraining Spencer and transporting him to radiology. Two threshold questions must be resolved as to all three counts: (1) whether VHS is responsible for the actions of Dr. Scola, as his employer; and (2) whether Dr. Scola
VHS contends that it cannot be vicariously liable for the tortious acts of Dr. Scola because he is an independent contractor, not an employee. Generally, employers of independent contractors are not subject to liability for harm caused to another by a tortious act or omission of the contractor. See Vertentes v. Barletta Co., 392 Mass. 165, 168, 466 N.E.2d 500 (Mass. 1984); Whalen v. Shivek, 326 Mass. 142, 149-50, 93 N.E.2d 393 (Mass.1950); Ferguson v. Ashkenazy, 307 Mass. 197, 200, 29 N.E.2d 828 (Mass.1940). In order to determine whether an employer-employee relationship actually exists, courts normally consider a number of factors. See Restatement (Second) of Agency § 220(2) (1958). These factors may include, among other things, how the person is paid (for example, whether the person has taxes withheld by the employer), whether the employer has the right to direct or control the person, and whether the parties themselves believe they have created an employer-employee relationship. Id.; See Dias v. Brigham Med. Assocs., Inc., 438 Mass. 317, 322, 780 N.E.2d 447 (Mass. 2002).
In the absence of evidence that a hospital reserved the right to direct and control a physician's decisions, a physician is usually considered to be an independent contractor. See Hohenleitner v. Quorum Health Res., Inc., 435 Mass. 424, 432, 758 N.E.2d 616 (Mass.2001) ("[T]he very nature of the medical profession suggests that, in most instances, a physician acts as an independent contractor," but "a physician may be deemed a servant where the hospital controls details of the physician's physical activities."); McNamara v. Honeyman, 406 Mass. 43, 48, 546 N.E.2d 139 (Mass.1989) ("While physicians exercise independent judgment, a physician can still be deemed a servant where the principal controls the details of the physician's activities."); Kelley v. Rossi, 395 Mass. 659, 662, 481 N.E.2d 1340 (Mass.1985). Here, Dr. Scola was employed subject to an "Emergency Department Panel Agreement" with the hospital. (Defs.' Facts Ex. 9). The contract states that his services will be "conducted under the direction of a physician Director ... appointed by [the] Hospital" and provides that he "shall provide [s]ervices referred to [him] by [the] Hospital" (Id.). Finally, the contract states that he "shall act at all times under this Agreement as an independent contractor. The parties agree that [the] Hospital shall not have and shall not exercise any control or direction over the manner or method by which [Dr. Scola] provides the [s]ervices." (Id.). Plaintiff has produced no evidence tending to suggest the contrary.
The Court accordingly finds that Dr. Scola was an independent contractor at the time of the incident in question and that VHS cannot be held vicariously liable for any torts that he may have committed.
Defendant VHS contends that its nurse employees are entitled to qualified immunity for their actions, and that it cannot be liable under a theory of vicarious or supervisory liability for actions that are protected by immunity.
The Supreme Court has held that federal public officials who exercise discretionary functions are generally entitled to qualified immunity from liability for damages. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ("[Federal] government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.") (internal quotations omitted). This have been construed to apply to § 1983 claims against state officials. Davis v. Scherer, 468 U.S. 183, 194 n. 12, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984) (applying Harlow's holding to § 1983 claims and stating "our cases have recognized the same qualified immunity rules apply in suits against state officers under § 1983 and in suits against federal officers"). When it enacted the MCRA, the Massachusetts legislature intended to adopt the standard of immunity for public officials developed under 42 U.S.C. § 1983. Duarte v. Healy, 405 Mass. 43, 46, 537 N.E.2d 1230 (Mass.1989). More recently, the Supreme Judicial Court of Massachusetts has extended the qualified immunity protection to private parties who perform duties customarily carried out by public officials. See Rodriques v. Furtado, 410 Mass. 878, 887, 575 N.E.2d 1124 (Mass. 1991) (holding that a police officer and doctor were entitled to qualified immunity for conducting a vaginal cavity search pursuant to a warrant). Therefore, the pivotal question is whether reasonable nurses under the same circumstances would have known that coercing plaintiff into submitting to x-rays of parts of his body other than his anal cavity violated plaintiff's clearly established constitutional rights. See Id. at 884, 575 N.E.2d 1124; Duarte, 405 Mass. at 48-49, 537 N.E.2d 1230.
There are three areas where such an inquiry must necessarily focus: (1) what degree of security, including the use of restraint, was appropriate under the circumstances; (2) whether the medical procedures (that is, the x-rays, including any necessary preparation) were performed properly; and (3) whether the medical procedure should have been performed at all.
As to the security issue, the nurses were acting at all times under the direction of uniformed police officers. It would be unreasonable to expect them to decide whether handcuffs were necessary or otherwise what degree of restraint was appropriate, or to interfere with the officers' judgment in that respect. Unless the security measures used were obviously improper, even to a lay person—for example, if the officers had been deliberately inflicting severe pain, or somehow endangering plaintiff's life—it was reasonable for the nurses to acquiesce to the request of the officers or to assist them in executing the
As to the issue of how the medical procedures were to be performed, the nurses (like other health-care professionals) were required to exercise their independent professional judgment. It was not the role of the police officers, for example, to decide how an x-ray should be performed. But here there is no issue as to whether the x-ray was performed in an improper or dangerous manner, or whether any other standard of medical care was violated; the issue is whether the x-ray search was unnecessarily extensive.
That leaves the question of whether the nurses reasonably should have known that performing an x-ray search of any area other than plaintiff's "anal cavity" would violate his clearly-established constitutional rights. In this context, the resolution of that question is relatively easy. Here, the Court need only consider the obligations of the nurses, not the physician who made the decision as to what procedures to employ. It is not reasonable to assume that every health-care professional who interacts with a patient subject to a search warrant will personally read and analyze the warrant and determine whether its scope might be exceeded.
Accordingly, summary judgment will be granted as to the claim against VHS for violations of the MCRA set forth in Count 2.
As a matter of logic, the qualified-immunity defense should also apply to any intentional tort arising out of the exercise of a discretionary function by a public official. However, the cases have instead generally addressed claims of assault, battery, and intentional infliction of emotional distress through a "reasonableness" inquiry similar to the analysis of the Fourth Amendment's protection against the use of excessive force. See Dean v. City of Worcester, 924 F.2d 364, 369 (1st Cir.1991) (where conduct was objectively reasonable under Fourth Amendment excessive force analysis, plaintiff's claims for assault, battery, and intentional infliction of emotional distress must fail). See also Smith v. Hitchcock, 27 F.3d 554 (1st Cir.1994) (where no unreasonable force was used by officers, claim for intentional infliction of emotional distress claim
Count 2 asserts a claim for violations of the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I. To establish a claim under the MCRA, plaintiff "must prove that (1) [his] exercise or enjoyment of rights secured by the Constitution or the laws of either the United States or the Commonwealth, (2) have been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by `threats, intimidation, or coercion.'" Bally v. Ne. Univ., 403 Mass. 713, 717, 532 N.E.2d 49 (Mass.1989).
Here, the constitutional right at issue is set forth in the Massachusetts Declaration of Rights, Article 14, which grants every person the right to be free from "unreasonable searches." MASS. CONST. PART 1, ART. XIV; Swain, 117 F.3d at 11-12. Plaintiff asserts that the x-ray search was not within the scope of the search warrant and therefore constituted an "unreasonable search" under Article 14.
Defendants assert that the x-ray search was reasonable and appropriate under the circumstances and that, as a result, the plaintiff has not properly alleged interference with a constitutional right.
Article 14 protections track Fourth Amendment protections. Swain, 117 F.3d at 12. As an arrestee, it is unclear whether the search of plaintiff's person is subject to the Fourth Amendment requirement of a search warrant and probable cause, a mere showing of "reasonable suspicion," or a bare "reasonableness" standard. See, e.g., Bell, 441 U.S. at 558, 99 S.Ct. 1861 (holding that visual cavity searches of inmates and pretrial detainees are subject to a test of reasonableness, rather than probable cause); Swain, 117 F.3d at 7 (arrestee visual body cavity searches for evidence require at least reasonable suspicion); Hartline v. Gallo, 546 F.3d 95, 100 (2d Cir.2008). But see Fuller, 950 F.2d at 1449 (holding that a visual body cavity search requires probable cause and a search warrant); Commonwealth v. Thomas, 429 Mass. 403, 408, 708 N.E.2d 669 (Mass.1999) (holding probable cause to be required for strip and visual body cavity searches). Even under the bare standard of reasonableness, however, plaintiff has presented sufficient evidence from which a jury could conclude that the x-ray search was not reasonable.
For the reasons discussed above, a reasonable jury could find from the facts presented that the x-ray search was not reasonable under the circumstances, taking into account the fact that, at the time that Morris and Roche urged the doctor to order an x-ray, the officers did not have any evidence suggesting that plaintiff had swallowed drugs. They also knew that a digital search had already been performed without any incriminating results, and therefore might have had reason to doubt the credibility of the confidential informant's information.
The officers' lack of reasonableness under the Fourth Amendment necessarily precludes a contrary finding under state law. Swain, 117 F.3d at 12; Rodriques, 410 Mass. at 884 n. 8, 575 N.E.2d 1124. Plaintiff has therefore put forth sufficient evidence of a violation of Article 14.
According to plaintiff, Roche and Morris handcuffed him to a gurney, rolled him on that gurney into a radiology room, uncuffed him—presumably so as to avoid any interference the metal handcuffs might have with the x-ray machine—and sat by his bed, thereby maintaining a presence in the room while the x-rays were taken. Plaintiff argues that this conduct was coercive under the MCRA, as he did not consent to the x-ray and was physically restrained during the transport process.
In response, defendants cite Longval v. Comm'r of Corr., 404 Mass. 325, 333, 535 N.E.2d 588 (Mass.1989). In Longval, a prisoner who was shackled and handcuffed
Id. (internal citations omitted). Morris and Roche argue that their restraint of plaintiff amounted to a "direct deprivation" under Longval and therefore does not constitute coercion under the meaning of the statute.
The MCRA contemplates a two-part sequence: liability may be found where (1) the defendant threatens, intimidates, or coerces the plaintiff in order to (2) cause the plaintiff to give up something that he has the constitutional right to do. Goddard v. Kelley, 629 F.Supp.2d 115, 128 (D.Mass.2009). Although the holding in Longval is somewhat ambiguous, subsequent authorities have held that normally lawful restraint may constitute coercion under the MCRA if the causation requirement is met—in other words, if such restraint is applied in order to cause the plaintiff to give up his constitutional rights. See Davis v. Rennie, 264 F.3d 86, 112 (1st Cir.2001) (restraint of mental health patient by employees was coercion where it furthered constitutionally prohibited beating); Bullock v. City of Bos., 1990 WL 150017, at *2 (D.Mass. Sep. 20, 1990) (refusal by nurse to treat sick inmate was coercion if in furtherance of constitutional deprivations); Langton v. Sec'y of Pub. Safety, 37 Mass.App.Ct. 15, 636 N.E.2d 299 (Mass.App.Ct.1994) (involuntary psychological examination of inmate satisfied coercive conduct element of MCRA if intended to compel his silence); LeMay v. Dubois, 1998 WL 151174, at *1 (Mass.Super.Ct. Mar. 23, 1998) (disciplinary action against prisoner satisfied coercive conduct element if meant to chill further complaint). Cf. Gallagher v. Commonwealth of Mass., 2002 WL 924243, at *1 (D.Mass. Mar. 11, 2002) (no violation of MCRA where excessive force against prisoner was not done in furtherance of violating some additional right).
Here, Morris and Roche used force against plaintiff that they would normally be authorized to use. If their restraint of plaintiff was applied in order to conduct an unreasonable x-ray search of plaintiff's body, however, then this restraint could qualify as "coercion" for the purposes of the MCRA. Because a reasonable jury
Count 3 asserts a claim for common-law assault and battery. Assault and battery is "the intentional and unjustified use of force upon the person of another, however slight, or the intentional doing of a wanton or grossly negligent act causing personal injury to another." Jesionowski v. Beck, 937 F.Supp. 95, 105 (D.Mass.1996) (quoting Commonwealth v. McCan, 277 Mass. 199, 203, 178 N.E. 633 (Mass.1932)). This amounts to the question of whether the "use of force was objectively reasonable in [F]ourth [A]mendment terms." Dean, 924 F.2d at 369; Jesionowski, 937 F.Supp. at 105. In applying this standard, plaintiff "must demonstrate that [defendants'] actions were not objectively reasonable, viewed in light of the facts and circumstances confronting [them] and without regard to [their] underlying intent and motivation." Jesionowski, 937 F.Supp. at 104.
For the reasons discussed above, the Court finds that any use of force by the police to accomplish the visual search, the digital search, and any x-ray search of plaintiff's anal cavity was reasonable, and therefore outside the scope of common-law assault and battery. See Dean, 924 F.2d at 369. However, to the extent that the use of force was for an x-ray that was outside the scope of the warrant, and without probable cause, there is sufficient evidence to sustain such a claim.
As to the hospital employees, the Court finds that any use of force to aid the police officers in obtaining an x-ray of plaintiff's abdomen was reasonable, whether or not that x-ray was outside the scope of the warrant. As noted, the "reasonableness" inquiry for intentional torts is closely related to the Fourth Amendment "reasonableness" inquiry for qualified immunity. As discussed above, private parties who perform duties customarily carried out by public officials are entitled to qualified immunity in Massachusetts. Rodriques, 410 Mass. at 887, 575 N.E.2d 1124. The Court can see no reason why private parties should not also be held to a reasonableness standard for intentional torts in the same circumstances.
Count 4 asserts a claim for intentional infliction of emotional distress. To maintain a cause of action for intentional infliction of emotional distress, plaintiff must establish that: (1) the defendants intended to inflict emotional distress or that they knew or should have known that emotional distress was the likely result of
A reasonable jury could conclude that Roche and Morris knew or should have known that their actions would cause plaintiff to suffer severe emotional distress. The officers were aware that plaintiff had already been subject to a visual and digital search of his anal cavity. They also knew that there was no evidence to suggest that an x-ray search of his stomach would result in any incriminating evidence, but they urged Dr. Scola to order one anyway. Moreover, plaintiff was repeatedly telling the nurses and the officers that he did not want to have the x-ray performed on him and that he wanted to speak to his lawyer. Taking all facts and inferences in the light most favorable to the plaintiff, a reasonable jury could find that the officers knew or should have known that subjecting the defendant to an x-ray search of his stomach would cause him to suffer severe emotional distress.
Defendants further assert that plaintiff cannot show that their actions were extreme and outrageous. "To be considered extreme and outrageous, the defendants' conduct must be beyond all bounds of decency and ... utterly intolerable in a civilized community. Liability cannot be founded upon mere insults, threats, or annoyances." Sena v. Commonwealth, 417 Mass. 250, 264, 629 N.E.2d 986 (Mass. 1994) (internal citations and quotations omitted).
As a matter of law, conduct that is legally required cannot be fairly called extreme, outrageous, or intolerable. See Sena, 417 Mass. at 264, 629 N.E.2d 986; Martin v. Heimlich, 2007 WL 2429702, at *8 (Mass.Super.Ct. Aug. 9, 2007). Therefore, for the reasons stated above, the visual and digital strip searches cannot be the basis of plaintiff's intentional infliction of emotional distress claims. However, a reasonable jury could find that the x-ray search of his stomach was beyond the permissible bounds of the warrant. Therefore, a reasonable jury could find that the actions taken by defendants Morris and Roche in effectuating the x-ray search of his stomach were extreme and outrageous.
With regard to the hospital employees, the Court finds that their conduct was not outrageous and that plaintiff's claim must fail as a matter of law. Where no unreasonable force is used under
Count 5 alleges that the City of Worcester maintained a policy, procedure, or custom of inadequately training its police officers, including Morris and Roche, on the proper justifications and limitations of strip and body cavity searches. Plaintiff brings this claim under both § 1983 and the MCRA. However, as a municipality, the city is not a "person" within the meaning of the MCRA. Howcroft v. City of Peabody, 51 Mass.App.Ct. 573, 591-92, 747 N.E.2d 729 (Mass.App.Ct.2001). Therefore, plaintiff's claim for municipal or supervisory liability arises, if at all, under § 1983.
To prevail on such a claim, plaintiff must show that "the municipality itself causes the constitutional violation at issue. Respondeat superior or vicarious liability will not attach under § 1983." City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Therefore, plaintiff must show both the existence of a policy or custom and a direct causal link between that policy and the alleged constitutional deprivation. City of Canton, 489 U.S. at 385, 109 S.Ct. 1197. See Santiago v. Fenton, 891 F.2d 373, 381-82 (1st Cir.1989).
Plaintiff does not point to any particular unconstitutional policy or practice, but rather contends that this incident, by itself, evidences such a policy. However, where a policy is not unconstitutional by its terms, "considerably more proof than the single incident will be necessary to ultimately establish at trial both fault on the part of the municipality and the causal nexus between the policy and the constitutional deprivation." McGrath v. MacDonald, 853 F.Supp. 1, 4 (D.Mass.1994) (internal quotation omitted); Okla. City v. Tuttle, 471 U.S. 808, 824, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). In such cases, the plaintiff must show that the municipality's policy is the "moving force of the constitutional violation." Monell, 436 U.S. at 694, 98 S.Ct. 2018.
Although plaintiff contends that the city has a policy or practice of failing to train its police officers on the limits of searches, he has presented no evidence to that effect.
Plaintiff has not sufficiently established that any violation of his constitutional rights was the fault of a deficient policy or custom on the part of the city. Even when taking all facts and inferences in the light most favorable to the plaintiff, a reasonable jury could not find the city liable for a § 1983 violation based on an unconstitutional policy or practice. Accordingly, the Court finds that plaintiff has "fail[ed] to reach the high standard the Supreme Court has set out for a finding of liability for inadequate training of police officers." Santiago, 891 F.2d at 381.
Plaintiff's final claim is against VHS for invasion of privacy under "both state and federal statutory and common law privacy requirements, including, but not limited to the Health Insurance Portability and Accountability Act...." (Amend. Compl. ¶¶ 26-23). The stated basis for the claim is that an unnamed hospital employee gave his x-ray results and the radiologist's report to the officers keeping him in custody. Plaintiff testified that he was asked to sign a waiver form for the release of his medical records to the officers, but that he refused to do so. Despite his clear objections, however, the employee provided the x-ray information to the officers.
The only statute that plaintiff explicitly identifies in Count 6 is the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). Pub. L. No. 104-191, 110 Stat. 1936 (1996). However, there is no private right of action for a violation of HIPAA's confidentiality provisions. Acara v. Banks, 470 F.3d 569, 571 (5th Cir.2006) ("Because HIPAA specifically delegates enforcement [to the Secretary of Health and Human Services], there is a strong indication that Congress intended to preclude private enforcement."). Rather, a patient must file a written complaint with the Secretary of Health and Human Services through the Office of Civil Rights. It is then within the Secretary's administrative discretion whether to investigate complaints and conduct compliance reviews to determine whether covered entities are in compliance. 45 C.F.R. §§ 160.306, 160.308 (2010). Therefore, any claim for invasion of privacy under HIPAA fails as a matter of law.
Massachusetts has never recognized a common-law cause of action for invasion of privacy. See Alberts v. Devine, 395 Mass. 59, 70, 479 N.E.2d 113 (Mass.1985). To the extent, therefore, that plaintiff's cause of action for invasion of privacy is based on state common law, it likewise fails as a matter of law.
Mass. Gen. Laws ch. 214, § 1B (2005) provides a right of action for invasion of privacy.
Plaintiff has not presented any evidence that the disclosing hospital employee's actions were unreasonable under the circumstances. It is true that plaintiff refused to sign a release, and that, despite his clear objections, the employee delivered the medical information to the officers. However, even taking the facts as plaintiff alleges, there is no evidence suggesting that the nurse knew that the warrant did not justify the disclosure of plaintiff's x-ray results, nor was such a disclosure unreasonable or unjustified under the circumstances.
For the foregoing reasons, defendants' motions for summary judgment are GRANTED as to Counts 5 and 6; GRANTED in favor of defendants Roche and Morris as to Counts 1, 2, 3, and 4 to the extent that the claims are based on the visual search, digital search, or x-ray search of plaintiff's "anal cavity"; GRANTED in favor of defendant VHS as to counts 2, 3, and 4; and otherwise DENIED.
Mass. Gen. Laws ch. 12, § 11H provides:
