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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
KATELYN LUCIA, as administrator                                                                   )
of the estate of John W. Lucia,                                                                   )
                                                                                                  )   Civil Action No.
Plaintiff,                                                                                        )   10-11228-FDS
)
v.                                                                                                )
)
CITY OF PEABODY; PEABODY POLICE                                                                   )
DEPARTMENT; MAYOR MICHAEL J.                                                                      )
BONFANTI; CHIEF ROBERT L.                                                                         )
CHAMPAGNE; OFFICERS GREGORY                                                                       )
PICKERING and RICHARD KENNEY, JR.;                                                                )
LIEUTENANT SCOTT WLASUK; and                                                                      )
SERGEANT ARTHUR YEO, in their                                                                     )
individual and official capacities,                                                               )
)
Defendants.                                                                                       )
)
MEMORANDUM AND ORDER ON DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
SAYLOR, J.
This is a suit to recover damages for the allegedly wrongful death of John W. Lucia while
in the custody of the Peabody Police Department.  Plaintiff Katelyn Lucia is the decedent’s
daughter and the administrator of his estate.  Defendants include the City of Peabody and its
mayor, as well as the Peabody Police Department, its chief, and four other individual officers.
The complaint alleges claims under 42 U.S.C. § 1983 for violations of the Fourth, Fifth,
Eighth, and Fourteenth Amendments of the U.S. Constitution and claims of negligence and false
imprisonment under state law.  Defendants have now moved for summary judgment as to all
claims.  For the reasons set forth below, the Court will grant the motion.




I.                                                                                                   Background
A.                                                                                                   Lucia’s Death
John W. Lucia was a chronic alcoholic who resided in Peabody, Massachusetts.  During
the period of approximately twenty years before his death, the Peabody police officers responded
to more than twenty documented instances involving Lucia’s intoxication by alcohol.  The night
of his death began with such an episode.
Around 10:00 p.m. on April 26, 2008, Officers Justin Cecil and Nancy Hart of the
Peabody Police Department responded to a call about a disturbance on Lynnfield Street.  They
observed two men, one of whom was Lucia, acting extremely intoxicated.  Cecil decided to take
the individuals into protective custody.  Hart, who was familiar with Lucia, transported him to
the station in her cruiser without placing him in handcuffs.
Upon arriving at the station, Lucia got out of the cruiser and was escorted to the booking
area.  He was then partially booked by Officer Gregory Pickering before being given a blanket
and led to a holding cell.  During the booking process, the officer-in-charge, Sergeant Arthur
Yeo, observed that Lucia was unsteady on his feet and slow and lethargic in his movements, but
nonetheless able to understand and communicate with the officers.  Sergeant Yeo was familiar
with Lucia and knew that he had an alcohol problem, but did not know him to be a user of illegal
drugs.  Yeo did not contact, and did not instruct any of the other officers to contact, a
detoxification treatment facility in the area to determine if there was space available for Lucia.
Pickering did not complete the booking process when Lucia first arrived at the station,
because there had been an influx of other arrestees.  When Pickering was ultimately ready to
complete the booking of Lucia, he discovered that he had fallen asleep in his holding cell.
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Pickering decided to let him be.
At midnight, Lieutenant Scott Wlasuk took over as the officer-in-charge and Officer
Richard Kenney, Jr., took over as the booking officer.  Yeo informed Wlasuk that Lucia was
partially booked and in protective custody.  During their shift, neither Wlasuk nor Kenney made
an effort to determine the availability of a detoxification treatment facility for Lucia.
During the course of the night, officers Pickering and Kenney observed Lucia on a
closed-circuit television and through an acrylic window during visual cell checks, which
occurred every thirty minutes.  The officers observed him sleeping, breathing, and snoring
loudly, but made no attempt to wake him or communicate with him.1
Around 7:10 a.m. on April 27, Kenney entered Lucia’s cell with the intention of releasing
him from protective custody.  Kenney observed, however, that Lucia was not breathing, was cold
to the touch, and had a “blotchiness” to his face.  Kenney immediately returned to the control
room to call an ambulance.
Although an ambulance arrived at the station, and paramedics performed CPR, their
efforts were not successful.  Lucia was pronounced dead shortly thereafter.
An autopsy concluded the cause of Lucia’s death was acute and chronic substance
abuse—specifically, acute methadone intoxication, acute opiate intoxication, acute ethanol
intoxication, and recent cocaine intoxication.
1 A paragraph in plaintiff’s Concise Statement of Material Facts asserts that snoring loudly can indicate
dangerous levels of intoxication.   That statement is based on the testimony of Dr. Michael Levy, Vice President of
Clinical Services for the Center for Addictive Behaviors.   Defendants have moved to strike the paragraph on the
ground that it is based upon inadmissible opinion testimony.   Because the Court can resolve the motion for summary
judgment without deciding the issues presented in the motion to strike, it will deny the motion to strike as moot.
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B.                                                                                                  The Massachusetts Protective Custody Statute
Massachusetts General Laws ch. 111B, § 8 gives police officers the authority to place
intoxicated individuals in protective custody.  It provides, in relevant part, as follows:
Any person who is incapacitated may be assisted by a police officer with
or without his consent to his residence, to a facility or to a police station. To
determine for purposes of this chapter only, whether or not such person is
intoxicated, the police officer may request the person to submit to reasonable tests
of coordination, coherency of speech, and breath.
If any incapacitated person is assisted to a police station, the officer in
charge or his designee shall notify forthwith the nearest facility that the person is
being held in protective custody.  If suitable treatment services are available at a
facility, the department shall thereupon arrange for the transportation of the
person to the facility.
No person assisted to a police station pursuant to this section shall be held
in protective custody against his will; provided, however, that if suitable
treatment at a facility is not available, an incapacitated person may be held in
protective custody at a police station until he is no longer incapacitated or for a
period of not longer than twelve hours, whichever is shorter.
A “facility” is defined as “any public or private place, or portion thereof, providing
services especially designed for the detoxification of intoxicated persons or alcoholics.”  Mass.
Gen. Laws ch. 111B, § 3.
C.                                                                                                  The Peabody Police Department Policy and Internal Investigation
Chapter 55.0 of the Peabody Police Department Manual concerns the lockup and holding
facility.  It states in part:                                                                       “[t]he Booking Officer or other assigned officer shall make a physical
check of the holding facility at least once every thirty minutes whenever there is a prisoner or
prisoners held.  Any prisoner having special or unusual circumstances of custody may have to be
checked more frequently or may require continuous monitoring.  Special attention should also be
paid to individuals who have apparent medical or physical difficulties.”
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Chapter 100.0 of the Manual is the department’s Protective Custody Policy.  It is
consistent with Mass. Gen Laws ch. 111B, § 8.  It limits the use of protective custody only to
those individuals who are incapacitated from consuming alcohol (not drugs alone).  It further
states in part:
If the situation does not warrant an arrest, but action is necessary, a police
officer has the authority to assist an incapacitated person, with or without his
consent, to his residence, to a treatment facility, or to the police station.
If an incapacitated person is assisted to the police station, the
Officer-in-Charge or his designee shall notify forthwith the nearest treatment
facility that such person is being held under protective custody.  If suitable
treatment services are available at a facility, the Massachusetts Department of
Public Health shall thereupon arrange for the transportation of the person to the
facility.
Nothing in these procedures shall be construed to require or permit a
police officer to hold a person in protective custody against his will unless
suitable treatment at a facility is not available.  If such treatment is not available,
the person may be held in protective custody at the station for the following
periods, whichever is shorter:   (a) up to twelve hours; or (b) until he is no longer
incapacitated.
The Officer-in-Charge, or his designee, shall take every precaution to
ensure that all persons held in protective custody are prevented from harming
themselves in any way by carefully observing them at intervals of not more than
thirty (30) minutes. A record shall be maintained of the time of such observations
in accordance with departmental procedures.
The Police Department conducted an internal investigation into Lucia’s death.  The
investigation report ultimately found no fault by any of the officers or civilians employed by the
Peabody Police Department, and no violations of the department’s rules and regulations.2
However, in reviewing the report, Chief Champagne found that there was a “technical violation”
of the rules and regulations for failure to make a telephone call to a treatment facility.  He
2 The Massachusetts State Police also conducted an investigation into Lucia’s death and concluded that the
case should be closed.
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ordered informal retraining to address the violation.
D.                                                                                                                          Center for Addictive Behaviors
The Center for Addictive Behaviors (“CAB”) operates a treatment facility at 111
Middleton Road, Danvers, Massachusetts.  That facility is a detoxification facility that offers
various services and programs.  The facility’s staff includes a combination of registered nurses
and licensed practical nurses.  The facility also employs a physician who is always on call.  The
facility is open 24 hours a day, seven days a week to admit new patients.3
If a patient consents to treatment and is admitted to the facility, the treatment that the
patient would receive while he is still under the influence of alcohol would normally consist of
observing the individual and waiting for his system to clear.  The staff also performs checks of
such patients on an hourly basis.  If a patient’s health or safety is determined to be at immediate
risk, the nursing staff of the facility would call 911 for emergency services.
The record does not indicate whether the facility was full on the night of April 26, 2008.
II.                                                                                                                         Procedural History
On July 12, 2010, Katelyn Lucia, as administrator of the estate of John Lucia, initiated this
action in the Superior Court of the Commonwealth of Massachusetts.  The complaint alleges
claims under 42 U.S.C. § 1983 for violations of the Fourth, Fifth, Eighth, and Fourteenth
3 Defendants have moved to strike various portions of plaintiff's Concise Statement of Material Facts
concerning the operation of the CAB.   Among other things, defendants have moved to strike references to (1) the
administration of prescription medications in CAB detoxification programs; (2) the frequency with which intoxicated
individuals are admitted to the facility (“routinely,” according to plaintiff); (3) the “continuous” nature of the
treatment at the facility; and (4) the fact that nurses at the facility would look for specific signs of dangerous levels
of intoxication, including “low blood pressure, slow pulse, slow respiration, heavy sleep, and heavy snoring.”
Defendant objects to these statements on the grounds that they are unsupported by the record and include
inadmissible opinion testimony.   Again, because the Court can resolve the motion for summary judgment without
deciding the issues presented in the motion to strike, it will deny the motion to strike as moot.
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Amendments, and negligence and false imprisonment under Massachusetts law.  Defendants
removed the case to this Court on the basis of federal question jurisdiction.  Defendants have now
moved for summary judgment as to all claims.
III.                                                                                                    Standard of Review
The role of summary judgment is to “pierce the pleadings and to assess the proof in order
to see whether there is a genuine need for trial.”  Mesnick v. General Elec. Co., 950 F.2d 816, 822
(1st Cir. 1991) (internal quotation omitted).  Summary judgment is appropriate when “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue of material fact and that the moving party is
entitled to a judgment as a matter of law.”  Fed. R. Civ. P. 56(c).  A genuine issue is “one that
must be decided at trial because the evidence, viewed in the light most flattering to the
nonmovant . . . would permit a rational fact finder to resolve the issue in favor of either party.”
Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).  The Court must view
the entire record in the light most hospitable to the non-moving party and indulge all reasonable
inferences in that party’s favor.  O’Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993).
IV.                                                                                                     Analysis
A.                                                                                                      Section 1983 Claims
Plaintiff alleges claims under § 1983 for violations of the Fourth, Fifth, Eighth, and
Fourteenth Amendments.  However, it is well-established that constitutional claims arising out of
protective custody under Mass. Gen. Laws ch. 111B, § 8 should be analyzed under the Fourth
Amendment and the Due Process Clause of the Fourteenth Amendment.    See Ringuette v. City of
Fall River, 888 F.Supp. 258, 261 (D. Mass. 1995) (“the Fourth Amendment governs the seizure of
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plaintiff taken into civil protective custody under Mass. G.L. ch. 111B, and . . . the substantive
due process clause of the Fourteenth Amendment governs the conditions of the protective
custody.”).4  Accordingly, this Court will proceed under that framework.
1.                                                                                                                    Alleged Constitutional Violations
Proof of plaintiff’s § 1983 claims requires proof of a constitutional violation.  Plaintiff
does not contend that the initial decision to place Lucia in protective custody was
unconstitutional, or even contrary to Mass. Gen. Laws ch. 111B, § 8.  Instead, plaintiff contends
that holding Lucia without attempting to contact a treatment facility on his behalf violated his
Fourth Amendment right to be free from unreasonable seizure and his Fourteenth Amendment
substantive due process rights.  Plaintiff further contends that the failure to properly monitor and
care for Lucia while he was in custody also violated his Fourteenth Amendment substantive due
process rights.
a.                                                                                                                    Whether the Officers Violated Lucia’s Constitutional Rights by
                                                                                                                      Failing to Call a Treatment Facility and Holding Him
Thereafter
It is uncontested that defendants failed to contact a treatment facility to inquire as to
whether space was available for Lucia.  It is also undisputed that their failure to do so violated
Mass. Gen. Laws ch. 111B, § 8 and police department policy.  In substance, plaintiff contends
that although the initial placement of Lucia into protective custody was lawful, it became
unlawful when the police failed to call a treatment facility and continued to hold him thereafter.
The first question is whether that action (or, more accurately, inaction) amounted to an
4 See also id. at 264, quoting Jones v. Chicago, 856 F.2d 985, 994 (7th Cir. 1988) (Posner, J.) (“At some
point after a person is arrested, the question whether his continued confinement or prosecution is unconstitutional
passes over from the Fourth Amendment to the due process clause (and after conviction to the Eighth Amendment's
cruel and unusual punishment clause . . .” ).
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unconstitutional seizure.
The First Circuit addressed a related set of issues in a case involving an individual who
suffered severe injuries while in protective custody as a result of intoxication.  Ringuette v. City of
Fall River, 146 F.3d 1, 5 (1st Cir. 1998).    As in this case, the police took Ringuette into
protective custody under Mass. Gen. Laws ch. 111B, § 8.  As here, the police did not call the
local treatment facility; the evidence suggested that such a call would have been fruitless, as there
was likely no space available.5  Ringuette was held for approximately 12 hours, after which he
was asked if he wanted to leave; at that point, he was still intoxicated, and told police, “I’ve got
nowhere to go and I’m still half in the bag.”  The police then “renewed” the 12-hour period of
confinement, during which Ringuette suffered serious injury.
The dispute focused on the second detention period, which Ringuette contended was an
unconstitutional seizure.  The First Circuit held that “while not every violation of a state statute
bearing on detention would necessarily constitute an ‘unreasonable’ seizure under the Fourth
Amendment . . . the statute’s twelve-hour limitation on protective custody was intended as a
fundamental limitation on state authority to detain Ringuette.”   146 F.3d at 5.  Notably, the court
did not address the question of whether the failure of the police to contact the facility rendered
5   The District Court’s opinion stated as follows:
The City proffers much undisputed evidence showing that the one detoxification facility in the
area was not subject to municipal control, rarely had vacant beds available on short notice,
generally had a wait list of seven days, and never maintained empty beds for police use.   Rita
Bertoncini of the detoxification facility testified that the center “rarely had a bed available,”
but that the center does attempt to place patients in other facilities.   Moreover, if a bed is not
available, a patient is placed on a wait list.   The undisputed testimony of Nancy Paull was that
in the nine years in which she has been executive director she is “unaware of any occasion” in
which a person was admitted to the detox program on the same day as the request.
Ringuette, 888 F.Supp. at 265-66.
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further detention illegal under the statute; instead, it held that it became illegal when the twelve-
hour period had passed.
Arguably, the First Circuit implicitly found that the period of detention between (1) the
point at which the police should have called, but did not, and (2) the expiration of the twelve-hour
cap on detention was not unconstitutional.6  That, however, does not necessarily resolve the issue.
At the very least, the constitutional authority of the police to detain a person who has not been
arrested for committing a crime, and in apparent violation of the state protective-custody statute,
is open to question.
Complicating matters further is the fact that Lucia was both intoxicated and asleep at the
point when the alleged violation began to occur (that is, the point at which the duty arose to call
the treatment facility, which was at some point reasonably soon after he was detained).  There is
no evidence that Lucia asked to be taken home, or for that matter protested his continued
detention.  It is therefore doubtful that he was being held against his will.  Furthermore, it hardly
seems sensible to conclude that the police—having failed to contact a treatment facility—became
obligated at that point by the United States Constitution to arouse Lucia and put him back out on
the street.7  Put another way, Lucia’s continued detention was not entirely unreasonable under the
6   The issue had been raised in the District Court, albeit in a slightly different form.   See Ringuette, 888
F.Supp. at 265 (“Plaintiff does contend . . . that the defendants violated his Fourth Amendment rights by not taking
reasonable steps to transport him home or to a facility.”).   Although the District Court’s opinion noted that “[t]he
Fourth Amendment regulates the duration of confinement between the time of seizure and the time appropriate
administrative steps incident to seizure are taken,” citing Gerstein v. Pugh, 420 U.S. 103 (1975), it disposed of the
matter on qualified immunity grounds.   Id.
7  As the First Circuit noted in Ringuette:
Ringuette was not a citizen demanding to be released from confinement.   He was, from all
appearances, still drunk or otherwise incapacitated, and—according to the district court
findings—he rebuffed two offers to release him, one made shortly before the end of the
twelve-hour period and one made not long thereafter.   Nor did he later ask to leave.   The
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circumstances.
Finally, it is a disputed issue of fact as to whether a suitable detoxification treatment
facility was available to care for Lucia on the night in question.8  The record evidence includes no
definitive answer as to question of whether CAB would have been able to admit Lucia.  Indeed,
Dr. Michael Levy of the CAB testified in his deposition that he did not know what CAB’s
capacity was on that evening.  Dr. Levy also testified, however, that he had no recollection of any
person who was being held in protective custody from any police department ever being admitted
to CAB.  Compare Ringuette, 146 F.3d at 3 (noting that the center had not admitted anyone from
the police station on short notice in the previous seven years.).  Sergeant Yeo testified that he
would not have thought to call a treatment facility on behalf of Lucia because it was “common
knowledge” that no beds were ever available.
Under the circumstances, the Court will defer resolving the difficult question of whether
the police violated Lucia’s Fourth Amendment rights, and will address instead the issue in the
context of qualified immunity.
b.                                                                                                     Whether the Officers Violated Lucia’s Constitutional Rights by
Failing to Monitor Him and Provide Proper Care
Plaintiff also contends that the officers’ failure to monitor and provide proper care for
Lucia violated his Fourteenth Amendment substantive due process rights.  Police “have a duty
under the constitution to protect persons who are taken into protective custody because of
notion that police officers should simply have put Ringuette out on the street against his will
in his then-apparent condition is implausible.
146 F.3d at 5.
8 It is also disputed whether admission to such a facility would have prevented Lucia’s death.
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incapacitation and who lack the capacity to give knowing, intelligent and voluntary consent to
protective custody.”  Ringuette, 888 F. Supp.  at 268.  However, it is clearly established that §
1983 imposes liability for serious physical harm or death only where the defendant acts
intentionally or with “deliberate indifference” to the deprivation of the victim's constitutional
right.  Manarite v. City of Springfield, 957 F.2d 953, 955 (1st Cir. 1992), citing use of “deliberate
indifference” standard in Wilson v. Seiter, 111 S. Ct. 2321, 2323 (1991) (Eighth Amendment
prison conditions); Canton v. Harris, 489 U.S. 378, 388-90 (1989) (Fourteenth Amendment
municipal liability, police denial of medical treatment); Estelle v. Gamble, 429 U.S. 97, 104-06
(1976) (Eighth Amendment prison medical treatment).
When liability for death is at issue in a § 1983 action, “a plaintiff must demonstrate
‘deliberate indifference’ by showing (1) an unusually serious risk of harm (self-inflicted harm, in
a suicide case); (2) defendant’s actual knowledge of (or, at least willful blindness to) that elevated
risk; and (3) defendant’s failure to take obvious steps to address that known, serious risk.”
Manarite, 957 F.2d at 956.
Here, it is undisputed that Lucia faced an unusually serious risk of harm due to the
combination of alcohol, methadone, opiates, and cocaine that he ingested.  Whether the officers
actually knew (or were willfully blind to) that elevated risk is much less clear.  It is uncontested
that the officers did not know whether Lucia ingested drugs on the night in question—or, in fact,
during any of the numerous interactions over the years between him and the police department.
Plaintiff contends that the police were nonetheless willfully blind to the elevated risk.  However,
it is undisputed that the officers attempted to, and successfully did, communicate with Lucia; that
he was able to understand them; and that he was able to move around under his own power.  The
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officers had observed many individuals, including Lucia himself on prior occasions, who were
intoxicated by alcohol, but faced no unusually serious risk of death.  The officers concluded that
Lucia was intoxicated by alcohol and treated him as such.
Again, rather than resolve the constitutional issue directly, the Court will defer on the
question of whether the police failed to monitor and provide proper care for Lucia in violation of
his Fourteenth Amendment rights, and will instead address the issue in the context of qualified
immunity.
2.                                                                                                    Qualified Immunity of Individual Officers
Summary judgment in favor of the defendant officers as to the § 1983 claims may be
warranted if the officers are entitled to qualified immunity.  The doctrine of qualified immunity
protects public employees “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.”  Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).  The Supreme Court has
articulated a two-part test for determining qualified-immunity.  Pearson v. Callahan, 555 U.S.
223 (2009).  See Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009).  The relevant
inquiries are (1) whether the facts alleged or shown by the plaintiff make out a violation of a
constitutional right, and (2) whether the right at issue was clearly established at the time of the
defendant’s alleged misconduct.  Id.
Although conducting this two-step analysis in sequence is sometimes advisable because
doing so “promote[s] the development of constitutional precedent,” courts have discretion to
avoid the direct constitutional question when a matter may be resolved at the second step.
Maldonado, 568 F.3d at 270.  For purposes of the second step of that analysis, whether the right
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in question was “clearly established” depends on “(a) whether the legal contours of the right in
question were sufficiently clear that a reasonable officer would have understood that what he was
doing violated the right, and (b) whether in the particular factual context of the case, a reasonable
officer would have understood that his conduct violated the right.”  Mlodzinski v. Lewis, 648 F.3d
24, 33 (1st Cir. 2011).
a.                                                                                                                       Claims Arising Out of Detention
As set forth above, the Fourth Amendment right in question is the right of a person not to
be held in continued protective custody when a suitable treatment facility has not been sought, in
violation of state law.  The first question under the qualified immunity inquiry is whether that
right was clearly established in late April 2008, at the time of the relevant events.
The First Circuit’s opinion in Ringuette, establishing that the twelve-hour limitation on
protective custody was as a “fundamental limitation” on the constitutional authority to detain
individuals in protective custody, preceded the officers’ actions at issue here by ten years.
Ringuette, 146 F.3d at 5.9  Ten years later, a reasonable police officer would certainly be expected
to know that holding a person in protective custody, against his will, for longer than twelve hours
violated both the Massachusetts statute and the Fourth Amendment.  However, as explained
above, the court in Ringuette did not address whether the statutory obligation to call a treatment
facility amounted to a constitutional prerequisite to protective custody detention.  Furthermore, it
9 Furthermore, early in that case, another court in this district took up the issue of qualified immunity with
respect the Fourth Amendment claim.   Though it was a close determination, that court awarded the officers the
protection of qualified immunity, finding that although it was undisputed that a reasonable officer would have
known that holding the individual for more than twelve hours was a violation of ch. 111B, “he would not necessarily
have known that such a violation of Massachusetts law would amount to a deprivation of constitutional rights.”
Ringuette v. City of Fall River, 906 F. Supp. 55, 58 (D. Mass. 1995).   By its very terms, this reasoning applies only
in the years before Ringuette was ultimately decided by the First Circuit.
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was also well-established that it is reasonable under the Fourth Amendment to detain
arrestees—who are presumptively innocent—for up to 48 hours without a judicial hearing.
Ringuette, 888 F. Supp. at 265 (citing Gerstein v. Pugh, 420 U.S. 103 (1975) (holding that the
Fourth Amendment generally requires a prompt judicial determination of probable cause
following an arrest made without a warrant and ensuing detention); County of Riverside v.
McLaughlin, 500 U.S. 44 (1991) (holding that “prompt” generally means within 48 hours of the
warrantless arrest).
Under the circumstances, a reasonable officer could have concluded that the Fourth
Amendment’s primary restriction on protective custody was temporal, and that detaining an
individual in protective custody, for his own safety, for less than 12 hours would not violate the
Constitution.  At a minimum, if the Fourth Amendment requires otherwise, the “legal contours”
of that constitutional right were not then (and are not now) clearly established.  Accordingly, the
Court finds that a reasonable officer would not have known that determining that a suitable
treatment facility was not available was a Fourth Amendment prerequisite to his ability to
constitutionally detain an intoxicated individual who is not charged with any crime.
Furthermore, in the “particular factual context” of this case, a reasonable officer would not
have understood that his specific conduct violated the Constitution.  There is no evidence that
anyone who had been placed in protective custody of the Peabody Police Department due to
intoxication by alcohol had ever been accepted by a treatment facility.  It is further undisputed
that the Vice President of CAB did not know whether CAB had ever admitted a patient directly
from the protective custody of any police department.  Plaintiff has produced no specific evidence
concerning the availability of a treatment facility on the night in question or whether a reasonable
15




officer would have known which facility that was.  Under the circumstances, a reasonable officer
could have concluded that there were no beds available, without making the call, and would not
have concluded that simply neglecting to make the call would lead to a constitutional violation.
b.                                                                                                    Claims Arising Out of Alleged Failure to Provide Care
In Ringuette, the district court correctly held that the police “have a duty under the
constitution to protect persons who are taken into protective custody because of incapacitation
and who lack the capacity to give knowing, intelligent and voluntary consent to protective
custody.” 888 F.Supp. at 268.  However, it is clearly established that § 1983 imposes liability for
serious physical harm or death only where the defendant acts intentionally or with “deliberate
indifference” to the deprivation of the victim's constitutional right.  Manarite v. City of
Springfield, 957 F.2d 953, 955 (1st Cir. 1992).
Again, the relevant inquiry for the purposes of qualified immunity is whether, “in the
particular context of the case,” a reasonable officer would have understood that his conduct
violated Lucia’s constitutional rights.  As noted above, the officers knew that Lucia was a chronic
alcoholic, and the police department had encountered him on multiple occasions in the past when
he was inebriated by alcohol.  The officers did not know on the night of April 26 that he had also
ingested drugs, including opiates, which substantially increased the level of danger he presented
to himself.  There is no evidence in the record that he presented unusual symptoms (that is,
symptoms different from or inconsistent with alcohol intoxication) or expressed unusual distress.
And there is no evidence that the police found drug paraphernalia, or had some other reason to
believe drugs were involved.  The officers assumed, not unreasonably, that he was drunk and
16




needed to sleep it off.10
In short, a reasonable police officer under the circumstances presented here would not
have understood that his conduct violated Lucia’s constitutional right to proper monitoring and
care while incarcerated.  Accordingly, the Court finds that Officer Pickering, Officer Kenney,
Lieutenant Wlasuk, and Sergeant Yeo are entitled to qualified immunity and will grant them
summary judgment on the plaintiff’s § 1983 claims on that basis.
3.                                                                                                                   Claims Against the Municipality
Plaintiff further contends that the City of Peabody, the Peabody Police Department, Mayor
Michael Bonfanti, and Police Chief Robert L. Champagne are liable under § 1983 for engaging in
a custom and practice of failing to follow Mass. Gen. Laws ch. 111B, § 8, and failing to train the
members of the Peabody Police Department on the statute.
As a preliminary matter, it is uncontested that the City of Peabody and the Peabody Police
Department are municipal entities subject to potential liability under § 1983.  It is also
uncontested that Mayor Bonfanti and Chief Champagne are municipal officials with “final
policymaking authority.”  Pembaur v. Cincinnati, 475 U.S. 469, 483 (1986).
To establish municipal liability, a 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, 387 (1989); Monell v. Department of Soc.
10 It also bears mentioning that Lucia himself had created the situation, by ingesting multiple substances to
the point of dangerous intoxication.   He alone knew exactly what he had ingested.   As noted, despite his
intoxication, he was able to communicate with the police during the arrest and initial booking stages; there is no
evidence that he said anything to the police about what drugs he had taken.
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Servs., 436 U.S. 658, 694-95 (1978).11  Thus, the plaintiff is required to demonstrate both the
existence of a policy or custom and a “direct causal link” between that policy and the alleged
constitutional deprivation.  Harris, 489 U.S. at 385; see also Monell, 436 U.S. at 694 (policy must
be the “moving force [behind] the constitutional violation”); Santiago v. Fenton, 891 F.2d at 373,
381-82.   “Official municipal policy includes the decisions of a government’s lawmakers, the acts
of its policymaking officials, and practices so persistent and widespread as to practically have the
force of law.”  Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011).
The claim for municipal liability rests principally on the city’s alleged failure to train,
supervise, and discipline its police officers.  A claim against a municipality under § 1983 is “most
tenuous where [it] turns on a failure to train.”  Id. at 1359.  To give rise to liability in such an
action, “a municipality’s failure to train its employees in a relevant respect must amount to
“deliberate indifference to the rights of persons with whom the [untrained employees] come into
contact.’”  Id. (quoting Canton, 489 U.S., at 388).  See also Young v. City of Providence, 404 F.3d
4, 26-27 (1st Cir. 2005) (holding that, under Monell, “any proper allegation of failure to train . . .
must allege that [the officer’s] lack of training caused him to take actions that were objectively
unreasonable and constituted excessive force” and that “the identified deficiency in [the training
program was] closely related to the ultimate injury.”).
As evidence of the alleged failure to train officers to call treatment facilities on behalf of
persons in protective custody, plaintiff points to two pieces of evidence.  First, Chief Champagne
testified that he did know whether or not a copy of ch. 111B, § 8 was provided to officers as part
of their training.  Second, Sergeant Yeo testified that he had never received in-service training on
11 For the purposes of this analysis, the City of Peabody and the Peabody Police Department both constitute
the “municipality” of Peabody.
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the protective-custody statute.  However, the record also includes the department’s Protective
Custody Policy, which is included in the department manual.  That policy comports with ch.
111B, § 8, and, in particular, requires officers to contact treatment facilities to inquire as to
whether they have space for any intoxicated individual taken into protective custody and brought
to the station.  Not only is that policy included in the department’s manual, officers have access to
the statute itself electronically.
The bar for establishing “deliberate indifference” in connection with a failure-to-train
claim is quite high, and plaintiff does not meet it here.  The official policy of the department
required the officers to call a treatment facility, and officers were provided a copy of that policy
in their department manuals.  Such a method of training, while perhaps not an ideal practice, does
not constitute deliberate indifference to the constitutional rights of those in protective custody.
See, e.g., Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001) (finding that although
“police officers received no formal training specifically directed [to the situation at issue], they
did have the guidance of the policy manual, and we believe a reasonable trier of fact could not
conclude that the need for further guidance was so obvious as to indicate deliberate
indifference”);  Nance v. Griffin, 1991 U.S. App. LEXIS 15036 (6th Cir. 1991) (finding that “a
negligent deviation from the clear directive” did not amount to deliberate indifference); Burns v.
Galveston, 905 F.2d 100, 104 (5th Cir. 1990) (finding no deliberate indifference where training
on suicide prevention consisted only of requiring the officers to “read and familiarize themselves
with the revised manual”).
Plaintiff also contends that the customary practice of the department ran directly
contradictory to its written policy.  As support for this proposition, plaintiff points to the
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testimony of Chief Champagne, Sergeant Yeo, and CAB Vice President Levy.  All three testified
that they were not aware of any individual ever being admitted to a treatment facility from
protective custody in the Peabody Police Department.  However, Chief Champagne and Sergeant
Yeo also testified that, in their experience, their have never been any beds available at the
detoxification treatment facilities.  Chief Champagne testified that he believed that his officers
nonetheless called the facilities each time a person was brought into protective custody.  Sergeant
Yeo testified that because it was “common knowledge” that no beds were ever available, it
“wasn’t paramount in [his] mind” to call a detoxification facility on the night in question.  He also
testified that placing individuals in protective custody in the holding cell, rather than a
detoxification facility, was the “common practice.”  However, even if most of the officers of the
Peabody Police Department followed that practice most of the time, such a practice is not
necessarily the official policy of the municipality with the “force of law.”  Connick v. Thompson,
131 S.Ct. 1350, 1359 (2011).  It is undisputed that the policymakers’ instructions and the official
policy of the department were to have the officers call treatment facilities, and there is nothing in
the record that could lead a reasonable juror to conclude that the failure to make such calls was
“so persistent and widespread as to practically have the force of law.”  Id. at 1359.
Accordingly, the Court will grant summary judgment in favor of the City of Peabody and
the Peabody Police Department on the plaintiff’s § 1983 claims.
4.                                                                                                      Claims Against Mayor Bonfanti and Chief Champagne
The Court interprets plaintiff’s claims against Mayor Bonfanti and Chief Champagne to be
based on a theory of supervisory liability, as neither person was directly involved with the
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incidents in question involving Lucia.12
Like liability for the municipality itself, supervisory liability under § 1983 cannot be
predicated on a respondeat superior theory.  Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 48
(1st Cir. 1999).  See also Monell, 436 U.S. at 691 (1978).  Rather, any liability incurred by a
supervisor must be “on the basis of his own acts or omissions.”  Maldonado-Denis v.
Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994).  Supervisory liability for alleged
constitutional deprivations attaches only if the supervisor is a “primary violator or direct
participant in the rights-violating incident” or “if a responsible official supervises, trains, or hires
a subordinate with deliberate indifference toward the possibility that deficient performance of the
task eventually may contribute to a civil rights deprivation.”  Sanchez v. Pereira-Castillo, 590
F.3d 31, 49 (1st Cir. 2009) (quoting Camilo-Robles v. Zapata, 175 F.3d 41, 44 (1st Cir. 1999)).
There is nothing in the record to suggest that either Mayor Bonfanti or Chief Champagne
acted with “deliberate indifference” in supervising the officers who neglected to call a treatment
facility on the night in question.13  Chief Champagne testified that he, in fact, believed that his
officers followed the department’s policy and made calls to treatment facilities despite the
common knowledge that beds were rarely, if ever, available.  Furthermore, it is undisputed that
after Lucia’s death, Chief Champagne ordered an internal investigation.  Although the
investigation did not find fault on the part of the officers, Chief Champagne nonetheless
determined that a violation of department policy had occurred and ordered that further training
12 To the extent that plaintiff’s claims against Mayor Bonfanti and Chief Champagne are based on their
roles as officials with “final policymaking authority,” the Court will grant summary judgment as to those claims, in
light of the failure of the claim against the municipality.    Pembaur v. Cincinnati, 475 U.S. 469, 483 (1986).
13 The plaintiff makes no claim on the basis of the hiring decisions of the mayor or the chief.
Consequently, the Court will confine its analysis to the supervising and training prongs.
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take place.  Under the circumstances, no reasonable jury could conclude that Chief Champagne
acted with “deliberate indifference” in supervising the officers under his command.  As to Mayor
Bonfanti, there is no evidence that suggests he had any involvement in supervising the defendant
officers at all, let alone as to the protective-custody policy.  Accordingly, the Court finds that no
reasonable jury could conclude that Mayor Bonfanti acted with “deliberate indifference” in
supervising those under his command.
To the extent that the plaintiff’s claims against Mayor Bonfanti and Chief Champagne are
based on their failure to train the officers involved, the Court finds that they did not act with
“deliberate indifference” for substantially the same reasons articulated above with respect to the
failure-to-train claim against the municipality.
Accordingly, the Court will grant summary judgment to Mayor Bonfanti and Chief
Champagne on the plaintiff’s § 1983 claims.
B.                                                                                                       State-Law Tort Claims
1.                                                                                                       Negligence
Plaintiff contends that the City of Peabody and the Peabody Police Department acted
negligently towards Lucia.  Specifically, plaintiff contends the department is liable for the
negligence of its officers in not calling a treatment facility and in not providing a reasonable level
of care to him while he was detained.  Plaintiff further contends that city is liable for the
negligence of its employees in the training of the defendant officers.
The Massachusetts Tort Claims Act provides that “[p]ublic employers shall be liable for
injury or loss of property or personal injury or death caused by the negligent or wrongful act or
omission of any public employee while acting within the scope of his office or employment.”
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Mass. Gen. Laws ch. 258, § 2 (2005); see also Spring v. Geriatric Auth. of Holyoke, 394 Mass.
274, 283, 285 (1985) (noting that the MTCA effectively removes the defense of immunity in
certain tort actions against public employers).14
Defendants contend that the negligence claim is barred by section 10(j) of the MTCA.
That section provides that a public employer cannot be liable for
any claim based on an act or failure to act to prevent or diminish the harmful
consequences of a condition or situation, including the violent or tortious conduct
of a third person, which is not originally caused by the public employer or any
other person acting on behalf of the public employer.
Mass. Gen. Laws. ch. 258 § 10(j).  It is undisputed that the department’s actions were not the
“original cause” of the harm to Lucia.
Plaintiff seems to rely on the exception to the above provision provided by § 10(j)(1),
which excludes
any claim based upon explicit and specific assurances of safety or assistance,
beyond general representations that investigation or assistance will be or has been
undertaken, made to the direct victim or a member of his family or household by a
public employee, provided that the injury resulted in part from reliance on those
assurances.  A permit, certificate or report of findings of an investigation or
inspection shall not constitute such assurances of safety or assistance.
Mass. Gen. Laws. ch. 258 § 10(j)(1).  There is no evidence in the record, however, that any
officer made any “explicit and specific assurances of safety or assistance.”  Even assuming that
the decision to take him into protective custody could be deemed such an “assurance,” there is no
evidence that Lucia’s injury resulted in part from “reliance on those assurances.”  Neither Lucia,
14 There is no dispute that the City of Peabody and the Peabody Police Department were public employers.
A condition precedent to bringing suit against a public employer under the statute is the presentment of a claim “in
writing to the executive officer of such public employer within two years after the date upon which the cause of
action arose.”   Mass. Gen. Laws ch. 258 § 4.   Here, it appears to be undisputed that plaintiff made such a
presentment on September 23, 2009.
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nor any family member, failed to seek medical care in reliance on the fact that the Peabody police
were going to arrange for the necessary care.  As a result, the City fo Peabody and the Peabody
Police Department are immune from negligence liability pursuant to the statutory exclusion of
Mass. Gen. Laws. ch. 258 § 10(j).
Accordingly, the Court will grant summary judgment to the City of Peabody and the
Peabody Police Department on the plaintiff’s negligence claims.
2.                                                                                                       False Imprisonment
Plaintiff contends that the defendant officers are liable for the tort of false imprisonment
for the continued confinement of Lucia without calling a treatment facility as required by the
statute and department policy.  Again, plaintiff does not dispute that the officers’ initial placement
of Lucia into protective custody was lawful.
Under Massachusetts law, the tort of “[f]alse imprisonment consists of ‘(1) intentional and
(2) unjustified (3) confinement of a person, (4) directly or indirectly (5) of which the person
confined is conscious or is harmed by such confinement.’”  Sietins v. Joseph, 238 F. Supp. 2d
366, 381 (D. Mass. 2003) (quoting Ball v. Wal-Mart, 102 F. Supp. 2d 44, 55 (D. Mass. 2000)).
Police officers are subject to liability for false imprisonment “unless the police officer had a legal
justification” for the restraint.  Rose v. Town of Concord, 971 F. Supp. 47, 51 (D. Mass. 1997)
(citing Wax v. McGrath, 255 Mass. 340, 342 (1926)).  Plaintiff concedes that the officers had a
legal justification for initially placing Lucia in protective custody, but nonetheless contends that
the officers’ continued holding of Lucia, without calling a treatment facility, amounted to false
imprisonment under Massachusetts law.
Massachusetts courts have cited approvingly the Restatement (Second) of Torts when
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interpreting the elements of the tort of false imprisonment.  See, e.g., Sarvis v. Boston Safe
Deposit & Trust Co., 47 Mass. App. Ct. 86, 98 (Mass. App. Ct. 1999).  As to the element of
intent, the Restatement (Second) of Torts § 37 (1965) provides that “If an act is done with the
intent to confine another, and such act is the legal cause of confinement to another, it is
immaterial whether the act directly or indirectly causes the confinement.”  There is no evidence to
suggest that the defendant officers decided not to call a treatment facility with the intent to
confine Lucia.  Indeed, the undisputed record evidence suggests that, at least with respect to
Sergeant Yeo, the motivation behind the failure to call a treatment facility, to the extent that it
was a conscious decision at all, was the “common knowledge” that such a facility would not have
space for Lucia.  The Court finds that no reasonable juror could conclude, on the basis of that
evidence, that the defendant officers neglected not to call a treatment facility with the intent to
confine Lucia.
Accordingly, the Court will grant summary judgment to Officer Gregory Pickering,
Officer Richard Kenney, Jr., Lieutenant Scott Wlasuk, and Sergeant Arthur Yeo on the plaintiff’s
claim of false imprisonment.
V.                                                                                                    Conclusion
For the reasons set forth herein defendants’ motion for summary judgment is GRANTED.
So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
Dated:  January 30, 2013                                                                              United States District Judge
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