Case 1:17-cv-12191-GAO Document 21 Filed 02/06/18 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

__________________________________________
)
RYAN N SCEVIOUR, )
)
Plaintiff )
) Case No. 17-12191
v. )
)
COLONEL RICHARD M. MCKEON, )
MAJOR SUSAN ANDERSON, )
AND A NUMBER OF JOHN DOES )
AND/OR JANE DOES, )
)
Defendants. )
__________________________________________)

MEMORANDUM IN SUPPORT OF
DEFENDANT COLONEL RICHARD M. MCKEON’S MOTION TO DISMISS
FIRST AMENDED COMPLAINT
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In keeping with his statutory obligations and with two court orders, Defendant Colonel

Richard M. McKeon (“Colonel McKeon”) ordered changes to a police report that contained

irrelevant and salacious statements purportedly made by a young woman struggling with drug

addiction, and ordered an observation report to be placed in the file of the officer responsible for

their inclusion. Nevertheless, the Massachusetts State Police officer responsible for the report,

Trooper Ryan Sceviour (“Plaintiff” or “Trooper Sceviour”), has brought suit against Colonel

McKeon, Major Susan Anderson (“Major Anderson”) and Doe defendants (collectively,

“Defendants”) seeking damages, although Trooper Sceviour lost no pay as a result of the report

issued with respect to him.1 The scurrilous allegations against Colonel McKeon fail to state a

claim upon which relief may be granted, Colonel McKeon respectfully requests that they be

dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).

Colonel McKeon asks that the Amended Complaint be dismissed in its entirety. In the

event that the Court dismisses Counts I and III but not all claims, Colonel McKeon also requests

that the Court decline to exercise pendant jurisdiction over Plaintiff’s remaining state law claims.

See Pease v. Burns, 719 F. Supp. 2d 143, 155 (D. Mass. 2010) (declining to exercise pendant

jurisdiction over state law claims after dismissing federal claims).

BACKGROUND

Trooper Sceviour is a Massachusetts State Police Troopers with the Massachusetts State

Police. Am. Compl. ¶ 4. Colonel McKeon and Major Anderson are, respectively, the

Superintendent and a Major with the Massachusetts State Police. Am. Compl. ¶¶ 5-6.

1
Trooper Sceviour’s First Amended Complaint (“Am. Compl.”) asserts claims for (1) violation of federal
constitutional rights pursuant to 42 U.S.C. § 1983, (2) violation of state constitutional rights pursuant to the
Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11H, (3) state and federal civil conspiracy, (4)
intentional infliction of emotional distress, and (5) defamation.

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On Monday, October 16, 2017, Trooper Sceviour responded to a call regarding an

automobile crash on Interstate 190 South. Am. Compl. ¶¶ 16-17. He found a woman driver and

male passenger at the scene of the accident. Am. Compl. ¶ 19. Trooper Scevious arrested the

driver after she failed field sobriety tests and made statements indicating she was using heroin.

Am. Compl. ¶¶ 20-23. The driver subsequently failed two breathalyzer tests. Am. Compl. ¶ 28.

Plaintiff also found drug paraphernalia during a search of the vehicle. Am. Compl. ¶ 24.

As Plaintiff transported the driver to the police barracks, she apparently told Plaintiff that

her father was a judge, a fact that was irrelevant to Trooper Sceviour’s investigation. Am.

Compl. ¶¶ 26-27. During the breathalyzer tests, the driver allegedly made irrelevant lewd

statements to Trooper Sceviour. Am. Compl. ¶ 29. Trooper Sceviour included these irrelevant

statements in his police report, which he prepared the morning of October 17, 2017 and which

was approved by his supervisor Sergeant Jason Conant (“Sergeant Conant”). Am. Compl. ¶¶ 36,

38-39.

Trooper Sceviour also called Trooper Ali Rei (“Trooper Rei”), a Drug Recognition

Expert who has filed a similar lawsuit,2 to the scene of the crash. Am. Compl. ¶ 24. Back at the

barracks, the driver allegedly indicated to Trooper Rei that she performed sexual acts to pay for

heroin. Am. Compl. ¶¶ 24, 31. Trooper Rei entered information concerning her observations of

the driver in the Administrative Log. Am. Compl. ¶ 37.

The driver was ultimately charged with Operating Under the Influence of Narcotics,

Operating Under the Influence of Liquor, Negligent Operation of a Motor Vehicle, Marked

Lanes Violation, and Failure to Inspect. Am. Compl. ¶ 34.

2
See Rei v. McKeon, Civil Action No. 17-12232, filed Nov. 10, 2017 (D. Mass.). Colonel McKeon has also filed a
motion to dismiss Trooper Rei’s complaint.

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Promptly upon receiving the police report on October 17, 2017, the driver’s defense

attorney filed a handwritten motion asking the Court to impound Trooper Sceviour’s report on

the grounds of “prejudicial pre-trial publicity,” and the Court granted the motion. Am. Compl.

¶ 86.

On October 19, 2017, Trooper Sceviour was summoned to the police barracks, where he

met with his supervisor Lieutenant James Fogarty (“Lieutenant Fogarty”), Sergeant Conant, and

a union representative. Am. Compl. ¶¶ 45-48, 51-53. At the meeting, Lieutenant Fogarty said

his supervisor, Major Anderson, had ordered him to issue a negative Supervisory Observation

Report against Trooper Sceviour and Sergeant Conant for including some of the driver’s

statements in the police report of the accident. Am. Compl. ¶ 54. The written Observation

Report against Trooper Sceviour stated that the report was being issued for “the negative and

derogatory statements including within the gist of [his] report. These statements were not

elements of the crime nor did they contribute to probable cause. Inappropriate commentary

should not be included in future reports.” Am. Compl. ¶ 55; Aff. of Counsel Ex. A.3

Trooper Sceviour and his union representative then met with Major Anderson, who

indicated that Colonel McKeon had ordered the action. Am. Compl. ¶ 61. She also ordered

Trooper Sceviour to edit his report to remove the offending statements, and indicated that the

order came from Colonel McKeon and Secretary of Public Safety Daniel Bennet (“Secretary

Bennet”). Am. Compl. ¶¶ 63-73. After Trooper Sceviour requested that he be allowed to

indicate that the revisions had been made due to an order by his supervisors, Major Anderson

ultimately permitted him to indicate that the report was “Revised on October 19, 2017.” Am.

3
Although Trooper Sceviour does not attach the Supervisory Observation Reports to his Amended Complaint, he
refers to and quotes from them, and they are appropriate for the Court to consider on a motion to dismiss. See Perry
v. New England Business Serv., Inc. (NEBS) Long-Term Disability Plan, No. 01-11508-RWZ, 2002 WL 31399132,
at *1 n.2 (D. Mass. Oct. 22, 2002).

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Compl. ¶¶ 75-79. Major Anderson also stated that she had been ordered to remove Trooper

Rei’s notes from the Administrative Log, and she did so. Am. Compl. ¶¶ 80-81.

Trooper Sceviour, at Major Anderson’s request, delivered the amended report to the

ADA assigned to the case. Am. Compl. ¶¶ 82-84. The next day, the ADA made an oral motion

to redact the inappropriate statements from the original, impounded police report. Am. Compl.

¶¶ 87-88. The Court granted the motion. Am. Compl. ¶ 88.

The Amended Complaint also alleges that a website published a report on October 26,

2017 indicating that the District Attorney had contacted Colonel McKeon to arrange to have the

report altered. Am. Compl. ¶ 95. Plaintiff further alleges that, as a result of the October 26

publication, Colonel McKeon ordered a spokesperson “to make false and derogatory statements

to the media regarding Trooper Sceviour, particularly that his report included improper

statements that violated the standards for report-writing and the required removal.” Am. Compl.

¶ 96. Neither the October 26 publication nor the exact statements purportedly attributed to

Colonel McKeon are quoted in or attached to the Amended Complaint.

ARGUMENT

I. Legal Standard

To survive a motion to dismiss for failure to state a claim upon which relief may be

granted under Federal Rule of Civil Procedure 12(b)(6), the complaint must “contain ‘enough

facts to state a claim to relief that is plausible on its face.’” A.G. ex rel. Maddox v. Elsevier,

Inc., 732 F.3d 77, 80 (1st Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). Although the Court will assume for the purposes of the motion that the factual

allegations of the complaint are true, the Court need not credit conclusory allegations. See

Maddox, 732 F.3d at 80. “Threadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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II. Count I Fails to State a Claim Because It Does Not Allege Colonel McKeon Worked
a Denial of Plaintiffs’ Constitutional or Federal Rights

Plaintiff cannot state a claim against Colonel McKeon under 42 U.S.C. § 1983 because

he fails to allege that Colonel McKeon caused a denial of Plaintiffs’ rights under the constitution

or federal law. To state a claim under § 1983, Plaintiff must allege “the challenged conduct [is]

attributable to a person acting under color of state law” and “the conduct must have worked a

denial of rights secured by the Constitution or by federal law.” Freeman v. Town of Hudson,

714 F.3d 29, 37 (1st Cir. 2013) (alteration in original) (quoting Soto v. Flores, 103 F.3d 1056,

1061 (1st Cir. 1997)). Although Colonel McKeon acted under the color of state law in

exercising his statutory obligation to set the rules for reports made by the Massachusetts State

Police, see Mass. Gen. Laws ch. 22C, § 3, Plaintiff identifies no constitutional or federal right he

was denied by Colonel McKeon’s actions.

First, the Amended Complaint contains nothing more than conclusory allegations that

Plaintiff’s constitutional rights were implicated by the reprimand Trooper Sceviour received.

Trooper Sceviour contends Defendants violated his property right in his employment, including

his “right to his employment free from interference aimed at achieving unlawful and unethical

ends, threats of suspension without pay, intimidation, and coercion into aiding in unlawful and

unethical acts, and without discipline for following the rule of law and opposing the defendants’

attempts to violate it.” Am. Compl. ¶¶ 102, 107. The Fourteenth Amendment requires that a

state must comply with due process before discharging a public employee who has a property

interest in continued employment. See Santana v. Calderon, 342 F.3d 18, 23 (1st Cir. 2003).

However, whether a public employee has such a property interest is a question of state law. Id.

Plaintiff has not alleged with particularity any state law which grants him a property

interest in employment free from interference, or free from threats of suspension or discipline.

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Trooper Sceviour does not allege that his employment was terminated or that he lost any amount

of pay. Employment actions short of termination or without a loss of salary, or the mere threat of

such action, do not implicate an employees’ property interests. See Phillips v. City of Metheun,

818 F. Supp. 2d 325, 332 (D. Mass. 2011) (no property interest in supervisory duties without

change in salary).

Second, even assuming Plaintiff does have a property interest in his employment that

applies to actions taken against Trooper Sceviour, the Amended Complaint alleges no facts

rendering it plausible that Defendants violated Plaintiff’s right against deprivation of that

property interest without due process. There are two types of due process: procedural and

substantive. Procedural due process requires that a deprivation of life, liberty, or property must

be “preceded by notice and opportunity for hearing appropriate to the nature of the case.”

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). Plaintiff does not allege any

procedural protections he was denied that he ought to have been afforded. The requirements of

procedural due process are “flexible” and depend on the particular demands of the situation.

Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Trooper Sceviour was given a written

Observation Report. He was not demoted, he did not lose pay, and he did not lose his job. A

full-blown hearing would have been excessive in light of the minimal consequences of the

actions taken against him. Trooper Sceviour acknowledges that he was represented by a union

representative, that supervisors met with him to discuss the reprimand, and that he had the

opportunity to express his views during that meeting. Although Trooper Sceviour disagrees with

the decision to issue an Observation Report, he alleges no facts suggesting he was subjected to a

procedurally deficient process.

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Similarly, Plaintiff does not allege facts making it plausible that Defendants deprived him

of his alleged property interest without substantive due process. A violation of substantive due

process requires action that is “egregiously unacceptable, outrageous, or conscience-shocking.”

Amsden v. Moran, 904 F.2d 748, 754 (1st Cir. 1990). A violation of substantive due process is a

high bar; even “bad faith violations of state laws” do not necessarily meet it. See id. at 757.

Plaintiff has not alleged any egregious, outrageous, or conscience-shocking actions by Colonel

McKeon. Here, a court determined the salacious and irrelevant statements Trooper Sceviour

included in his police report should be impounded after the arrestees’ attorney objected to the

prejudicial pre-trial publicity the report could cause. Colonel McKeon then ordered that the

police report be revised to reflect the court’s determination. The court, upon motion of the

prosecutor, subsequently confirmed that the statements at issue should not appear in the public

record, and ordered that they be redacted in the original police report. There is nothing

outrageous or shocking about Colonel McKeon’s actions, which helped implement the court’s

impoundment order.

III. Count II Also Fails to State a Claim Against Colonel McKeon Because Plaintiff Does
Not Allege Actionable Threats, Intimidation or Coercion By Colonel McKeon

In order to state a claim against Colonel McKeon under the Massachusetts Civil Rights

Act (the “MCRA”), Plaintiff must allege that he (1) interfered or attempted to interfere with

Plaintiff’s “exercise or enjoyment . . . of rights secured by the constitution or laws of the United

States, or of rights secured by the constitution or laws of the commonwealth” (2) “by threats,

intimidation or coercion.” Mass. Gen. Laws ch. 12, § 11H. The MCRA is narrower than § 1983

because “even a direct deprivation of a plaintiff’s rights would not be actionable under the act

unless it were accomplished” by threats, intimidation, or coercion. Nolan v. CN8, 656 F.3d 71,

76-77 (1st Cir. 2011) (internal quotation marks omitted).

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Plaintiff’s allegations in support of his MCRA claim are identical to his § 1983 claim

and, like that claim, must fail. As with Plaintiff’s § 1983 claims, he has not alleged any specific

right that was deprived by Colonel McKeon. Plaintiff fails to state a claim under the MCRA for

an additional reason: he does not allege any threats, intimidation, or coercion by Colonel

McKeon. The words “threats, intimidation or coercion” are given their normal connotation, i.e.,

that of “forcing submission by conduct calculated to frighten, harass or humiliate.” Smith v.

Town of Longmeadow, 29 Mass. App. Ct. 599, 603 (1990). “There must be something akin to

duress which causes the victim to relinquish [his] rights.” Butler v. RMS Techs. Inc., 741 F.

Supp. 1008, 1011 (D. Mass. 1990) (citing Layne v. Superintendent, Massachusetts Correctional

Inst., 406 Mass. 156 (1989)).

The allegations against Colonel McKeon fall far short of this standard. The sole “threat”

Trooper Sceviour alleges was actually issued by his union representative, Trooper Gilbert, who

informed Trooper Sceviour that the consequences of not following an order would include a

charge of insubordination and possible discharge. Am. Compl. ¶¶ 52, 71. And even this “threat”

does not rise to the level of actionable conduct under the MCRA. At most, Colonel McKeon

ordered that a negative Observation Report be issued against Trooper Sceviour, and that he be

required to correct the inappropriate comments Trooper Sceviour had previously included in his

initial report. Colonel McKeon is the official responsible for overseeing reports issued by State

Police. Mass. Gen. Laws ch. 22C, § 3. He would be remiss in that responsibility if he did not

take action against officers who included “negative and derogatory” information in police reports

that, as the Observation Report says, “were not elements of the crime nor did they contribute to

probable cause.” Aff. of Counsel Ex. A. Plaintiff alleges no threats, intimidation, or coercion

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that go above and beyond Colonel McKeon’s ordinary use of internal disciplinary mechanisms to

enforce appropriate report procedures.

IV. Colonel McKeon is Entitled to Qualified Immunity on Counts I and II

The law grants qualified immunity to government officials for performance of their

discretionary functions when “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). Qualified immunity is available to “all but the plainly incompetent or

those who knowingly violate the law.” Malley v, Briggs, 475 U.S. 335, 341 (1986). In

determining whether a government official is entitled to qualified immunity, courts apply a two-

prong analysis. First, the court decides “whether the facts alleged or shown by the plaintiff make

out a violation of a constitutional right.” Glik v. Cunniffe, 655 F3d 78, 81 (1st Cir. 2011).

Second, the court looks to whether that right was “clearly established at the time of the

defendant’s alleged violation.” Id. (internal quotation marks omitted). Whether a right was

“clearly established” turns on “(1) the clarity of the law at the time of the alleged civil rights

violation, and (2) whether, given the facts, of the particular case, a reasonable defendant would

have understood that his conduct violated the plaintiff[‘s] constitutional rights.” Id. (internal

quotation marks omitted, alteration in original). “[T]he salient question is whether the state of

the law at the time of the alleged violation gave the defendant fair warning that his particular

conduct was unconstitutional.” Id. (internal quotation marks omitted).

As discussed supra with respect to Counts I and II, Plaintiff has failed to identify a

constitutional right that was violated by Colonel McKeon. Even if Colonel McKeon had

violated Plaintiffs’ constitutional rights, Colonel McKeon is still entitled to qualified immunity

because, under the circumstances, a reasonable defendant would not have understood that

Colonel McKeon’s actions violated that right. Colonel McKeon’s actions were consistent with
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the court’s order that the salacious statements should be impounded, as confirmed by the

subsequent order requiring that the original report be redacted. Colonel McKeon’s order that the

police report be amended is also well within his statutory obligations as the official responsible

for making “all necessary rules and regulations for the government of the [state police]

department, for reports to be made by employees of the department and for the performance of

the duties of said employees.” Mass. Gen. Laws ch. 22C, § 3. Qualified immunity is appropriate

unless “every reasonable official would have understood that what [defendant] is doing violates”

plaintiff’s constitutional rights.” Diaz-Bigio v. Santini, 652 F.3d 45, 50-51 (1st Cir. 2011)

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (emphasis in original). Here, multiple

officials did in fact confirm that removing the offending statements from the report was

appropriate. Although Trooper Sceviour contends that multiple police officials saw nothing

wrong with his report, it is apparent from the face of the Amended Complaint that the driver’s

defense attorney, the prosecutor, and the court all agreed the improper statements should be

removed. See Cox v. Hainey, 391 F.3d 25, 32 (1st Cir. 2004) (finding qualified immunity

appropriate when police officer consulted with prosecutor who determined that actions were

reasonable).

V. Count III Fails to State a Claim Against Colonel McKeon for Civil Conspiracy

Plaintiff’s claims for federal and state conspiracy likewise fall flat. Although the

Amended Complaint does not say so, the claim for federal conspiracy is presumably intended to

be a claim under 42 U.S.C. § 1985(3), which prohibits, among other things, a conspiracy “for the

purpose of depriving, either directly or indirectly, any person or class of persons of the equal

protection of laws, or of equal privileges and immunities under the laws.” The “longstanding

rule” is that to state a conspiracy claim under Section 1985, Plaintiff must allege “a class or race-

based discriminatory animus.” See Therrien v. Hamilton, 849 F. Supp. 110, 115 (D. Mass. 1994)
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(citing Griffin v. Breckenridge, 403 U.S. 88, 91 (1971)). In addition to identifying no denial of

the equal protection of the laws, Plaintiff makes no attempt to allege any class or race-based

discriminatory animus that motivated the purported conspiracy. Plaintiff’s federal civil

conspiracy claim therefore “may be disposed of quickly.” Therrien, 849 F. Supp. at 115.

Plaintiff’s state civil conspiracy claim must also be dismissed. Massachusetts recognizes

two types of civil conspiracy. First, there is a “very limited cause of action” for a coercive

conspiracy. Aetna Cas. Sur. Co. v. P & B Autobody, 43 F.3d 1546, 1563 (1st Cir. 1994). To

prove this kind of conspiracy, Plaintiff must allege Defendants “acting in unison, had some

peculiar power of coercion over plaintiff that they would not have had if they had been acting

independently.” Id. “Evidence of joint activity, even tortious activity, is insufficient . . . .”

Grant v. John Hancock Mut. Life Ins. Co., 183 F. Supp. 2d 344, 363 (D. Mass. 2002). Outside of

the employment context, this first kind of conspiracy is a “rare” and “very limited” cause of

action. See id. at 362-63 (quoting Mass. Laborers’ Health & Welfare Fund v. Philip Morris, 62

F. Supp. 2d 236, 244 (D. Mass. 1999)). Plaintiff here alleges no “peculiar power of coercion”

that Defendants had that Colonel McKeon would not have had if acting alone. As the official in

charge of setting rules for police reports, Colonel McKeon had the authority to discipline

Trooper Sceviour for his improper report and order the amendment of the police report without

the need for any assistance from Major Anderson or any of the Doe defendants. The purported

“conspiracy” added nothing to the Colonel’s authority.

The second type of civil conspiracy under Massachusetts law is “more akin to a theory of

common law joint liability in tort.” Aetna, 43 F.3d at 1564. This type is not an “independent

action, but rather involves concerted action, whereby liability is imposed on one individual for

the tort of another.” Grant, 183 F. Supp. 2d at 363 (internal quotation marks omitted). The

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“key” to a joint liability conspiracy is “a defendant’s substantial assistance, with the knowledge

that such assistance is contributing to a common tortious plan.” Id. Plaintiff must prove “ a

common plan to commit a tortious act where the participants know of the plan and its purpose

and take affirmative steps to encourage the achievement of the result.” Id.

Plaintiff does not allege joint liability conspiracy for two reasons. First, Plaintiff does

not, as he must, allege anything more than conclusory allegations that the Defendants agreed to

an unspecified tortious act. Boyle v. Barnstable Police Dept., 818 F. Supp. 2d 284, 318 (D.

Mass. 2011) (“[A] claim of conspiracy must allege facts that suggest a conspiracy rather than set

out conclusory allegations that the defendants made an unlawful agreement.”). Plaintiff does not

identify any tortious act the Defendants allegedly agreed to commit. The Amended Complaint

states that Defendants, “knowing that their conduct was illegal, unethical, and unconstitutional,

acted in concert for improper and illegal purposes, and assisted and encouraged one another, in

violating the plaintiff’s rights and then disciplining him for opposing, and for having followed

the rule of law.” Am. Compl. ¶ 113. Conclusory allegations that Defendants’ conduct was

“illegal” or “unethical” does not, without more, state a claim. Twombly, 550 US. at 555. To the

extent Plaintiff alleges Defendants conspired to violate § 1983 and the MCRA, Count III fails for

the same reasons as Counts I and II. Plaintiff has alleged no rights that were violated, by a single

Defendant or by a group of Defendants acting in concert. Trooper Sceviour also contends

Defendants conspired to “arrange to have the original report surreptitiously removed from the

Court file and to replace it with the altered report,” Sceviour Am. Compl. ¶ 91, but Trooper

Sceviour identifies no basis for tort recovery, and no damages he suffered, on the basis of this

purported agreement.

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Second, the allegations of Trooper Sceviour’s Amended Complaint themselves

undermine the conclusion he asks the Court to draw. The essence of a conspiracy is an

agreement. As Trooper Sceviour himself acknowledges, there was no agreement between the

named Defendants. Trooper Sceviour maintains that Major Anderson told him she did not agree

with Colonel McKeon’s order, and was only acting in accordance with orders she had received.

Sceviour Am. Compl. ¶¶ 61-62, 69. Additionally, Defendants could not have “knowing[ly]”

acted in an illegal manner when they were, as the is apparent on the face of the complaint, acting

in accordance with a court’s determination that Trooper Sceviour’s report contained

inappropriate and irrelevant material. Sceviour Am. Compl. ¶¶ 86, 88-89, 113.

VI. Count IV Fails to State a Claim Against Colonel McKeon for Intentional Infliction
of Emotional Distress Because Plaintiff Fails to Allege Colonel McKeon Engaged in
Extreme or Outrageous Conduct

Plaintiff’s claim against Colonel McKeon for intentional infliction of emotional distress

should also be dismissed. To state a claim, Plaintiff must allege “(1) that the defendant intended

to inflict emotional distress, or new or should have known that emotional distress was the likely

result of his conduct, . . . (2) that the defendant’s conduct was extreme and outrageous, beyond

all possible bounds of decency and utterly intolerable in a civilized community; (3) the actions of

the defendant were the cause of the plaintiff’s distress, and (4) the emotional distress suffered by

the plaintiff was severe and of such a nature that no reasonable person could be expected to

endure it.” Emerson v. Mass. Port Authority, 138 F. Supp. 3d 73, 76 (D. Mass. 2015) (alteration

in original) (quoting Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 466 (1997)).

“The standard for making a claim of intentional infliction of emotional distress is very high.”

Emerson, 138 F. Supp. 3d at 76 (quoting Polay v. McMahon, 468 Mass. 379, 385 (2014)). It is

not enough for Plaintiff to allege “mere insults, indignities, threats, annoyances, petty

oppressions or other trivialities nor even is it enough that the defendant has acted with an intent
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which is tortious or even criminal, or that he has intended to inflict emotional distress, or even

that his conduct has been characterized by malice or a degree of aggravation which would entitle

the plaintiff to punitive damages for another tort.” Tetrault, 425 Mass. at 466 (internal quotation

marks omitted). Count IV must be dismissed against Colonel McKeon for two reasons.

First, Plaintiff alleges no extreme or outrageous conduct by Colonel McKeon. Conduct is

“extreme or outrageous” where it “go[es] beyond all possible bounds of decency, and [is]

regarded as atrocious and utterly intolerable in a civilized community.” Emerson, 138 F. Supp.

3d at 65 (alteration in original) (quoting Polay, 468 Mass. at 386). At most, Plaintiff has alleged

that Colonel McKeon exercised his statutory authority in enforcing rules governing State Police

reports. Routine disciplinary procedures by employers, never mind the mere specter of such

procedures, do not rise to the level of extreme and outrageous conduct. Emerson, 138 F. Supp.

3d at 76-77 (dismissing claim where employer alleged to have accused employee of misconduct

and requiring attendance at disciplinary hearing, among other things). Nor was it “outrageous”

or “intolerable” for Colonel McKeon to require that Trooper Sceviour’s police report be edited to

remove irrelevant and salacious material a court had already ordered impounded after the

arrestee’s attorney raised concerns of “prejudicial pre-trial publicity.” Am. Compl. ¶ 86.

Second, Count IV must also be dismissed because Plaintiff does not allege that he

suffered severe emotional distress that no reasonable person could be expected to endure, or that

Colonel McKeon should have known that such distress would have been the likely result of his

orders. “[M]ere hurt feelings” are not enough. Torosian v. Garabedian, 206 F. Supp. 3d 679,

683 (D. Mass. 2016) (quoting Agis v. Howard Johnson Co., 371 Mass. 140, 145 (1976)).

Plaintiff does not allege any particular suffering he endured, other than hurt feelings over an

Observation Report Trooper Sceviour disagreed with. His conclusory allegation that he suffered

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damage to his job security is unsupported by any fact. Indeed, Trooper Sceviour apparently

complied with the order to edit the police report, and was not terminated. Although Trooper

Sceviour asserts that he suffered reputational harm, he does not point to any specific factual

evidence that his reputation was harmed. For example, although he contends Colonel McKeon

damaged his reputation in a public statement issued by a spokesperson, Trooper Sceviour does

not provide or quote any such statement that actually identifies him.

VII. Count V Fails to State a Claim Against Colonel McKeon for Defamation Because it
Fails to Allege He Made Any Defamatory Statements

Plaintiff’s defamation claim likewise fails because Trooper Sceviour alleges no

defamatory statements made by Colonel McKeon. To state a claim for defamation in

Massachusetts, Plaintiff must allege “(1) the defendant published an oral (slander) or written

(libel) statement; (2) the statement was about, and concerned the plaintiff; (3) the statement was

defamatory; (4) the statement was false; and (5) the plaintiff suffered economic loss, or the claim

is actionable without proof of economic loss.” Noonan v. Staples, Inc., 707 F. Supp. 2d 85, 89

(D. Mass. 2010). Trooper Sceviour has failed to state a claim for defamation for four reasons.

First, Trooper Sceviour’s defamation claim should be dismissed because he does not, as

he must, set out the precise language of the statement he challenges as defamatory. See

Tuckerbrook Alternative Investments, LP v. Banerjee, No. 12-11643-GAO, 2014 WL 4965739,

at *2 (D. Mass. Sept. 30, 2014) (quoting Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d

724, 728 n.6 (1st Cir. 1992) (“[A] defendant is entitled to knowledge of the precise language

challenged as defamatory.”)). Trooper Sceviour contends that, in response to a report on a

website, Colonel McKeon directed the State Police media spokesperson to issue allegedly “false

and derogatory statements” regarding Trooper Sceviour, “particularly that his report included

improper statements that violated the standards for report-writing and that required removal.”

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Sceviour Am. Comp. ¶ 96. Nowhere does Trooper Sceviour identify the language of the

statement he deems defamatory.

Second, the Amended Complaint does not allege facts suggesting that Colonel McKeon,

or a spokesman, made any statement “of and concerning” Trooper Sceviour, never mind a

defamatory one. According to the Amended Complaint, the offending statement indicated that

the police report “included improper statements that violated the standards for report-writing and

that required removal.” Sceviour Am. Compl. ¶ 96. The Amended Complaint does not state that

Trooper Sceviour was identified by name in that statement, and it is apparent from the

allegations that the focus of the statement was on the need for amendments to the police report.

A statement is “of and concerning” an unidentified plaintiff if either “the defendant intended its

words to refer to the plaintiff and that they were so understood, or that the defendant’s words

reasonably could be interpreted to refer to the plaintiff and that the defendant was negligent in

publishing them in such a way that they could be so understood.” New England Tractor-Trailer

Training of Conn., Inc. v. Globe Newspaper Co., 395 Mass. 471, 483 (1985). If Trooper

Sceviour was not named in the statement, Plaintiff has alleged no facts suggesting that the

general public would have understood the statement to refer to him. The gist of the statement

was that an incorrect police report was corrected; the public would have no reason to believe that

the statement concerned any particular State Police Trooper.

Third, it is fundamental to defamation law that statements of opinion are not actionable.

“Under the First Amendment, opinions are constitutionally protected and cannot form the basis

of a defamation claim. An expression of opinion based on disclosed or assumed nondefamatory

facts is not itself sufficient for an action of defamation, no matter how unjustified or

unreasonable the opinion may be or how derogatory it is.” Feld v. Conway, 16 F. Supp. 3d 1, 3

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(D. Mass. 2014) (internal citations and quotation marks omitted). The statement Colonel

McKeon is alleged to have directed a spokesman to issue is a classic statement of opinion, in

which the police report is characterized as “improper” and that it “violated” report-writing

standards and “required removal.” See Marroquin v. Exxon Mobil Corp., No. 08-391, 2009 WL

1529455, at *9 (E.D. Va. May 27, 2009) (“improper” and “inappropriate” are statements of

opinion). Colonel McKeon’s opinion is well-founded; it comports with two court determinations

that the statements at issue did not belong in a police report.

Finally, Trooper Sceviour has alleged no economic loss he suffered as a result of any

statement by Colonel McKeon. Trooper Sceviour does not allege that he lost his job, or that he

lost any pay, as a result of this incident. Nor is this a case where a claim for defamation may be

sustained on purely non-economic damages. Statements that are actionable without proof of

economic loss including “statements that constitute libel, statements that charge the plaintiff with

a crime; statements that allege that the plaintiff has certain diseases; and statements that may

prejudice the plaintiff’s profession or business.” Ravnikar v. Bogojavlensky, 438 Mass. 627, 630

(2003) (internal citations omitted). Of these, the only type Trooper Sceviour arguably alleges is

statements that may prejudice his profession or business. But Trooper Sceviour’s own

allegations belie that theory. By the time the statement was allegedly issued, the Observation

Report had already been issued. Any reputational harm Trooper Sceviour suffered at his place of

employment had already occurred. Colonel McKeon’s statements, through a spokesperson, did

nothing to further that discipline. And Trooper Sceviour alleges no additional damage to his

profession that he suffered as a result of the statement.

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CONCLUSION

For the foregoing reasons, Defendant Colonel Richard M. McKeon respectfully requests

that the Court dismiss the Amended Complaint brought by Plaintiff Trooper Ryan M. Sceviour

for failure to state a claim upon which relief may be granted, pursuant to Federal Rule of Civil

Procedure 12(b)(6).

Respectfully submitted,

COLONEL RICHARD M. MCKEON

By his attorney,

/s/George C. McMahon
George C. McMahon
BBO # 338240
1147 Hancock Street, Suite 212
Quincy, MA 02169
(617) 770-0600

Dated: February 6, 2018

Certificate of Service

I hereby certify that the foregoing document was served by ECF on counsel for all parties
on February 6, 2018.

/s/George C. McMahon
George C. McMahon

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