Opinion
Civil Action No. 00-CV-12086-GAO.
January 30, 2002
MEMORANDUM and ORDER
The Complaint alleges eleven counts of various federal and state civil rights violations stemming from the mistaken tear-gassing and seizure of Michelle Boulais' home. Three of the five defendants, the Commonwealth, the Massachusetts State Police, and Colonel John DiFava in his official capacity as the Superintendent of the Massachusetts State Police, have moved to dismiss the claims against them. Their motion is GRANTED.
Background
Michelle Boulais obtained an abuse prevention order against her husband from the Taunton District Court on October 16, 1998. She provided the Rehoboth Police with the order for service, along with the judge's instructions to seize any firearms in the Boulais home. The Rehoboth Police served Mr. Boulais with the restraining order on October 16 but failed to seize a loaded shotgun believed to be in the house. On October 17, Patrolman Ezyk went back to the Boulais home to seize the shotgun and any other weapons. When he arrived at the house, he reported seeing a male coming out of the house. According to Ezyk, the male saw the police cruiser and ran back into the house. The officer then sought assistance from the Seekonk Police and the Massachusetts State Police. Between 1:30 p.m. and 5:00 p.m. that day, the police attempted to contact Mr. Boulais, who they believed was in the family home. Meanwhile, they kept Mrs. Boulais at the Rehoboth Police Department. Around 5:00 p.m., the defendants fired chemical agents into the Boulais home, damaging the home and contents. Officers forcibly entered the home, but found no one present.
Discussion
Counts One through Five are not directed at the Commonwealth or Colonel DiFava. The state law claims against the Commonwealth in Counts Six, Eight, Nine, Ten, and Eleven are barred. The Eleventh Amendment bars actions in federal courts claiming damages against a state and its agencies unless the state has consented to be sued in federal court. See Pennhurst v. Halderman, 465 U.S. 89, 99 (1984) (holding that the state's consent to being sued must be express and unequivocal); Metcalf Eddy, Inc. v. Puerto Rico Aqueduct and Sewer Auth., 991 F.2d 935, 938 (1st Cir. 1993). Even if the plaintiff had named Colonel DiFava in his official capacity in these state law claims, the claims would still be barred because a suit for damages against a state official in his official capacity is a suit against the state. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). Pendant jurisdiction does not override the Eleventh Amendment bar to these state law claims. See Pennhurst, 465 U.S. at 121.
"The Commonwealth" includes the Massachusetts State Police, putatively named as a distinct Defendant, because state agencies and state officials in their official capacity are indistinguishable from the state for purposes of the Eleventh Amendment. See Pennhurst, 465 U.S. at 109, n. 17.
The state law claims in Counts Six, Nine, and Eleven are also barred under the principles of sovereign immunity. Sovereign immunity may only be abrogated explicitly by the consent of the State or by a valid act of Congress. See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 75-76 (2000). The only waiver of sovereign immunity in the relevant state law claims is in the Massachusetts Tort Claims Act in Count Six. However, the Tort Claims Act does not waive sovereign immunity in federal courts. See Irwin v. Commissioner of the Dep't of Youth Servs., 448 N.E.2d 721, 724 (Mass. 1983) (holding that the Act only waives sovereign immunity for a claim brought in Massachusetts Superior Court).
Counts Seven and Ten are dismissed as to the Commonwealth because the Commonwealth is not a "person" amenable to suit under the federal or state civil rights statutes. Count Seven alleges a federal civil rights violation against the Commonwealth based on gross negligence. To the extent that this claim seeks damages under 42 U.S.C. § 1983, it must be dismissed because the Commonwealth is not a "person" subject to suit under § 1983. See Will, 491 U.S. at 64. The plaintiff does not allege any ongoing violations of her civil rights; therefore, Ex Parte Young, 209 U.S. 123 (1908), does not provide a basis for prospective injunctive relief. Count Ten alleges that the Commonwealth violated the plaintiff's state civil rights under Mass. Gen. Laws ch. 12, § 11I. This claim is barred because the Commonwealth is not a "person" within the meaning of the state Civil Rights Act. See Commonwealth v. Elm Med. Labs., 596 N.E.2d 376, 379 (Mass.App.Ct. 1992).
All counts are dismissed as to Colonel DiFava because the plaintiff does not allege any facts regarding the conduct of Colonel DiFava, and he cannot be liable under § 1983 under principles of respondeat superior. The only reference to Colonel DiFava in the complaint is in paragraph three, where he is identified as a party. The plaintiff does not even allege that Colonel DiFava was present at the incident or had any knowledge of its occurrence. Supervisory liability under § 1983 may not be predicated only on the theory of respondeat superior. See Maldonado-Denis v. Castillo-Rodriquez, 23 F.3d 576, 581 (1st Cir. 1994).
Conclusion
For the foregoing reasons, the state defendants' motion to dismiss is GRANTED.
IT IS SO ORDERED.