Case 1:17-cv-12191-GAO Document 26 Filed 02/20/18 Page 1 of 21

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

Civil Action No. 17-12191

RYAN N. SCEVIOUR,

Plaintiff,

v.

COLONEL RICHARD M. MCKEON,

MAJOR SUSAN ANDERSON,
AND A NUMBER OF JOHN DOES
AND/OR JANE DOES,

Defendants.

PLAINTIFF’S OPPOSITION
TO DEFENDANT MCKEON’S MOTION TO DISMISS

Defendant Colonel Richard McKeon (“McKeon”) has filed a Motion to Dismiss

[Docket No. 20] and an accompanying Memorandum of Law [Docket No. 21]

(collectively, “Motion”). Rather than proceed according to the Rules governing pleadings

and Rule 12, which call for him to accept the facts as pleaded in the complaint as true and

to limit his argument to those facts, he has written the Memorandum as if it was a press

release, giving his version of the story and ignoring the facts presented by the plaintiff.

McKeon’s argument boils down to this: if you believe my version of events, I win. His

Motion invades the province of the jury and fails to conform to the standard of Rule 12.

In his Memorandum, McKeon claims that his actions were legal and that he acted

in “keeping with his statutory obligations” when he ordered the police report written by

the plaintiff to be altered. However, the facts as pleaded in the Complaint allege that

McKeon was a participant in a nefarious plot to coerce the plaintiff, Trooper Ryan

Sceviour (hereinafter “Sceviour” or “plaintiff”), to participate in a felonious plan to alter

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and destroy official documents in order to bestow unwarranted favor on the daughter of a

district court judge. In his Motion, McKeon has accused the plaintiff of making

“scurrilous” allegations against him. However, the actual events underlying this case

demonstrate that the plaintiff’s allegations are based in fact.

The facts as pleaded are straightforward: the plaintiff made an arrest on October

16, 2017, and wrote a corresponding report that included all relevant statements in

conformance with his training and experience, including statements of the arrestee

relating to how she had obtained heroin through sexual acts and offering to trade sexual

acts for leniency. The report was approved by the supervising Sergeant, was reviewed by

the Trooper assigned to Court duty, and was accepted by the Clerk Magistrate, who

issued a criminal complaint. That should have been the end of the story; however,

McKeon and his cohorts ensured that it was just the beginning.

Thereafter, a series of suspicious events occurred as a result of the fact that the

person arrested was the daughter of a district court judge who had previously worked at

the office of the Worcester County District Attorney, and whose father was a former co-

worker and friend of the DA and McKeon. Curiously, on the scheduled day of the

arraignment, Tuesday, October 17, 2017, a lawyer was appointed to represent the

criminal defendant, even though the defendant was not there. A judge at the Worcester

District Court then allowed the lawyer’s atypical motion to impound the original report

until the rescheduled arraignment date, purportedly in order to avoid “prejudicial pre-trial

publicity”, and the lawyer’s motion to continue the arraignment was also allowed.

The Worcester District Court also determined that the case should be transferred

to another county because of the conflict of interest that Worcester County judges and the

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District Attorney would have in handling the matter. However, two days later, despite the

fact that the report had already been impounded, the plaintiff was ordered to leave his

residence immediately, travel over 90 miles to the State Police Barracks, and to create a

new “original” report, which was to be hand-delivered to the First Assistant District

Attorney in Worcester. McKeon also ordered defendant Major Susan Anderson to destroy

the official log containing the statements of Alli Bibaud and to order Trooper Ali Rei to

alter her corresponding report.

The plaintiff has alleged that the events of October 19th and 20th were the result

of a criminal conspiracy between McKeon and others, both inside and outside the State

Police, to commit a series of illegal acts, to discipline him, and, reprehensively, to order

the plaintiff to jeopardize his career by participating in an illegal scheme to bestow

unwarranted favor on the daughter of a judge. The plaintiff has alleged that McKeon, and

others, ordered the destruction of the original arrest report, the creation of an alternative

“original” report, and planned that the original report would be illegally replaced in the

Court file with the report that the plaintiff was ordered to create.

As a result of McKeon’s actions, the plaintiff will be forever linked with a

corruption scandal that was not of his doing. He will always work in fear that the

conspirators and their allies will seek retribution. Prior to October 16, 2017, he was a

proud member of the Massachusetts State Police. As a result of the actions of McKeon

and others, his ability to do his job has been severely affected. The plaintiff is entitled to

hold McKeon and his miscreant brethren accountable before a judge and jury.1

1
It is noteworthy, for purposes of context, that McKeon retired promptly after the alleged conspiracy came
to light. His actions have been condemned publicly by the State Police Association of Massachusetts and
even the Governor of Massachusetts has publicly stated that McKeon acted improperly. The actions of

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Procedurally, McKeon’s Motion is simply deficient and improper. First, he has

included facts outside of the four corners of the Complaint in his Memorandum.

Accordingly, his Motion should be converted to one for summary judgment under Rule

56. Under the latter Rule, the plaintiff should be afforded sufficient time to conduct

discovery on his claims before the summary judgment standard is applied. See

Fed.R.Civ.P. 56(d). Insofar as the Court considers McKeon’s Motion under Rule 12, the

plaintiff’s facts as pleaded, and all reasonable inferences, must be accepted as true and

construed in the light most favorable to the plaintiff.2 Here, when the requisite standard of

review under Rule 12 is properly applied, McKeon’s Motion fails outright.

I. ARGUMENT3

In his complaint, the plaintiff alleges five counts: (1) Section 1983 claim for

violation of the plaintiff’s constitutional rights under the Fourteenth Amendment

substantive due process clause;4 (2) Massachusetts Civil Rights Act, Chapter 12, Section

11H, 11I, claim for violation of the plaintiff’s constitutional right to substantive due

McKeon and his co-conspirators are also being investigated by the Attorney General, the State Ethics
Commission, and a special investigator hired by the Colonel of the State Police.
2
The plaintiff trusts that this Court is well versed in the applicable standard of review as defined by the
Supreme Court in Twombley and Iqbal. Rather than recite it in an entire section of this brief, the plaintiff
summarizes the requisite standard to be applied here: A complaint need only state a claim that is
“plausible” on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In other words, the “[f]actual
allegations must be enough to raise a right to relief above the speculative level, ... on the assumption that all
the allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (citations omitted). “The
plausibility standard is not akin to a ‘probability requirement’…” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 556).
3
The plaintiff need not regurgitate the entirety of the facts of his detailed complaint here. Rather, the facts
will be addressed in tandem with argument. Additionally, because of the similarity in the facts between this
case and a companion case before the court, Rei v. McKeon, et al., 1:17-cv-12232-GAO, and for the sake of
judicial economy, the plaintiff incorporates the arguments made by undersigned counsel in the plaintiff’s
brief filed in opposition [Dkt. No. 25] to Defendant Major Anderson’s Motion to Dismiss in the Rei case.
4
McKeon devotes a portion of his brief to a discussion of procedural due process. There are no allegations
in the complaint that would invoke the procedural due process clause, nor did the plaintiff plead such a
claim.

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process; (3) Civil Conspiracy pursuant to Section 1983; (4) intentional infliction of

emotional distress; and (5) defamation.

A. The plaintiff has pleaded sufficient facts to sustain Count I of his

complaint.

The Fourteenth Amendment prohibits a state from depriving any person of “life,

liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “The

touchstone of this due process guarantee is the ‘protection of the individual against

arbitrary action of government.’” DePoutot v. Raffaelly, 424 F.3d 112, 117-18 (1st Cir.

2005), quoting Wolff v. McDonnell, 418 U.S. 539, 558 (1974). The Due Process Clause

has both procedural and substantive components. In its substantive aspect, due process

safeguards individuals against certain offensive government actions, notwithstanding the

procedures used to implement them. Daniels v. Williams, 474 U.S. 327, 331 (1986). This

case involves only the substantive dimension of the Due Process Clause.

In order to properly allege a substantive due process violation, the plaintiff need

only plead sufficient facts to plausibly support that he “suffered a deprivation of life,

liberty, or a property interest and that such deprivation occurred through governmental

action that shocks the conscience.” Zavatsky, 902 F. Supp. 2d 135, 140 (2012). Here,

McKeon concedes the element of state action. [Dkt. No. 21 at p. 5]. However, McKeon

argues that the plaintiff’s Fourteenth Amendment claim for the violation of his

substantive due process rights, brought under the procedural vehicle of 42 U.S.C. § 1983,

fails because, according to McKeon, he was exercising his “statutory obligation to set the

rules for reports made by the Massachusetts State Police, see Mass. Gen. Laws. Ch. 22C,

§ 3.” [Dkt. No. 21 at p. 5]. McKeon’s reliance on his statutory authority as

Superintendent to set rules is misplaced.

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First, the Complaint does not challenge McKeon’s rule-making authority; rather,

the plaintiff alleges that co-defendant Major Anderson acted on orders given by McKeon

as part of a conspiracy between members of the Worcester District Attorney’s Office,

McKeon, Major Anderson, and others, to illegally replace the plaintiff’s police report,

which was on file in the Worcester District Court, with a doctored version. McKeon

issued orders that attempted to force the plaintiff to participate in multiple felonies,

including violations of M.G.L. c. 268, § 13E (tampering with records) and M.G.L. c. 268,

§ 13B (obstruction of justice and witness intimidation). Specifically, the plaintiff alleges

“Colonel McKeon, Major Anderson and others agreed to arrange to have the [plaintiff’s]

original report surreptitiously removed from the Court file and [replaced] with the altered

report.” (Compl. ¶¶ 90-91). When they were unable to achieve their conspiratorial

purpose because (1) the plaintiff refused to change the report without noting that it had

been revised, and (2) the clerk of the court refused to swap the reports because such

conduct is illegal, see Compl. ¶¶ 93-94, the Worcester First Assistant District Attorney –

without even notifying the criminal defendant or her counsel, made an oral motion to

redact the original, impounded report the very day before the case was transferred from

Worcester County due to a conflict of interest that had already been recognized by that

court. (Compl. ¶ 88).

The aforementioned allegations neither relate to nor invoke McKeon’s rule-

making authority. Regardless, it is undeniable that McKeon does not have the authority,

statutory or otherwise, to order his subordinates to commit criminal acts. Such is alleged

here. (See Compl. ¶¶ 45-105).

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1. Property Interest

McKeon argues that “the plaintiff has not alleged with any particularity any state

law which grants him a property interest in employment free from interference, or free

from threats of suspension or discipline.” [Dkt. No. 21 at. p. 5]. McKeon cites to Phillips

v. City of Methuen, 818 F.Supp. 2d 325, 332 (D. Mass. 2011) to support that the action of

McKeon, because it did not result in termination or a loss of pay, cannot implicate the

plaintiff’s property interest. First, Phillips does not stand for that proposition. In Phillips,

the court held that “[S]upervisory duties, conferred on a discretionary basis, do not

qualify as a property interest.” Id. at 332 (citations omitted). The interference with the

plaintiff’s property interest here does not concern the loss of any particular discretionary

job duties to which he is not entitled. Rather, the alleged interference in this case

concerns McKeon ordering the plaintiff to participate in a conspiracy to commit a felony.

It is inconceivable that an order to commit a felony given in a paramilitary organization,

where the plaintiff’s continued employment is conditioned on obedience (as pleaded

here), does not implicate his property interest in his job. Phillips does not hold

otherwise. 5 On these facts, a reasonable inference can be made that the plaintiff’s

employment has been adversely impacted in a significant manner, extending far beyond

5
To the extent that McKeon questions whether the plaintiff has a property interest in his employment
generally, there are sufficient facts in the Complaint to support the element of constitutionally protected
property interest. In Harrah Independent School District v. Martin, 440 U.S. 194 (1979), the Supreme
Court held that a public employee with a protected property interest in his employment had a substantive
due process right to be free from arbitrary and capricious state action. Id. at 197-220. Here, the complaint
alleges that at all times relevant the plaintiff was a trooper of the MSP. (Compl. ¶ 4). Because the plaintiff’s
employment relationship is governed by a collective bargaining agreement permitting interference for
cause only5, which for purposes of this brief is a public record5, he has a protected property interest in being
free from unconstitutional interference with his employment – including any arbitrary or capricious state
action. Id. See, e.g., Wojcik v. Mass. State Lottery Com’n, 300 F.3d 92, 102 (1st Cir. 2002) (“this Court has
said that, ‘ordinarily, one who can be removed only for ‘cause’ has a constitutionally protected ‘property’
interest.’”), quoting Perkins v. Bd. of Dirs., 686 F.2d 49, 51 (1st Cir. 1982). See also Clukey v. Town of
Camden, 717 F.3d 52, 56 (1st Cir. 2013) (citations omitted).
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the unwarranted reprimand that he received as part of McKeon’s and his miscreants’

iniquitous machinations.

The plaintiff, a young state trooper who had worked tirelessly his entire life to

become a member of the MSP and who aimed to adhere to the highest moral standards in

the exercise of his duties and to obey his oath, was publicly criticized and reprimanded by

the McKeon regime as part of their conspiracy to conceal their criminal acts. (Compl. ¶¶

95-96). The plaintiff will forever be associated with the very public and sudden

retirement of McKeon, the highest ranking officer of the MSP, as well as Deputy

Superintendent Lieutenant Colonel Hughes (the second highest ranking officer of the

MSP). Those two conspirators abruptly retired shortly after the press began covering their

illegal conspiracy. The plaintiff then became the public and private scapegoat for high-

ranking officials, including McKeon, to explain away their felonious conduct.

2. Deprivation through conduct that shocks the conscience.

Despite McKeon’s opinion to the contrary, there are sufficient facts pleaded to

support that his conduct shocks the conscience. In fact, there is already ample evidence to

support that his conduct has actually shocked the contemporary conscience of the citizens

of the Commonwealth, which resulted in his abrupt retirement and ongoing criminal and

ethical investigations by the Attorney General, State Ethics Commission, and the State

Police, respectively. 6 McKeon’s unconscionable commands, and reprimanding the

6
As a threshold matter, the plaintiff must address two statements of fact made in McKeon’s brief. First,
McKeon argues that “a court determined that the salacious and irrelevant statements Trooper Sceviour
included in his police report should be impounded after the arrestee[’]s [sic] attorney objected to the
prejudicial pre-trial publicity the report could cause. [Dkt. 21 at p. 7]. Not only does the aforementioned
statement contain facts and inferences that are not part of the pleadings, it is also inaccurate. The original
report was impounded after an attorney – who was appointed under suspicious circumstances to defend Ms.
Bibaud without her consent – moved to impound it. The motion to impound said nothing about the
incriminating statements made by Ms. Bibaud relating to having performed sexual acts in order to obtain
the heroin, or offering to trade sexual favors for leniency.

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plaintiff to excuse his and his conspirators’ criminal conduct, shake the very core of our

criminal justice system.

An abuse of power sinks to a level cognizable under the Due Process Clause

“when it is so extreme and egregious as to shock the contemporary conscience.”

DePoutot, 424 F.3d at 118, citing County of Sacramento v. Lewis, 523 U.S. 833, 846

(1998). “[T]he requisite arbitrariness and caprice” for a conscience-shocking action

“must be stunning, evidencing more than humdrum legal error.” Amsden v. Moran, 904

F.2d 748, 754, n.5 (1st Cir. 1990). The conspiratorial, criminal, and coercive conduct of

law enforcement officers undertaken to strip impartiality from the administration of

justice – as alleged here – is “entirely at odds with our constitutional system.” See U.S. v.

Shepherd, 857 F. Supp. 105, 109 (D.D.C. 1994) (holding that the discretionary conduct of

law enforcement used to enhance a criminal defendant’s sentence “to enormous degree

strikes at the very heart of our system of justice” and “shocks the conscience of the

Court.”).

Here, McKeon ordered the plaintiff to alter his report for the benefit of a criminal

defendant and her father, a judge, and disciplined him in order to cover up the criminal

conspiracy in which McKeon was engaged. In the State Police, as pleaded, disobedience

of a command carries with it consequences extending to termination of employment.

Second, McKeon also argues that “[t]he 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.” [Dkt. 21 at p. 7]. This statement also contains purported facts that
are outside of the pleadings, in addition to inferences in McKeon’s favor, and entirely misconstrues the
truth. Moreover, the plaintiff has pleaded that the inclusion of the statements in his report, according to his
supervisors, was proper. (Compl. ¶¶ 57, 62, 72). Troopers are trained to include all extraordinary
statements made by criminal defendants when writing a report after an arrest for “Operating a Motor
Vehicle While Under the Influence”. Massachusetts Rule of Criminal Procedure 14 mandates that the
Commonwealth provide the criminal defense with “the substance of any oral statements made by the
defendant”. (Compl. ¶¶ 12-13). It was only after McKeon and his co-conspirators’ plan to illegally swap
the reports failed that the First Assistant District Attorney made an oral motion without the knowledge of
defense counsel, and one day before the case was physically transferred to another county.

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(Compl. ¶¶ 63-73). For a superior government official, in a deliberate effort to obstruct

justice for the benefit of a judge’s daughter, to order a subordinate member of a

paramilitary organization to participate in the commission of a felony is utterly

conscience shocking. This is particularly true where the order was given at the behest of

top officials in the Commonwealth responsible for public safety in an illegal effort to

bestow unwarranted privileges on the daughter of a judge in a criminal proceeding.

The state police are tasked with enforcing the laws of the Commonwealth. To that

end, the citizens have entrusted them to execute the laws fairly and impartially.

Transparency is the foundation of a fair and just society. McKeon and his co-conspirators

sought to alter, conceal, and destroy evidence about crimes committed by a favored

individual because of her status. The plaintiff was forced to participate in the felonious

conspiracy and was reprimanded as part of McKeon’s and his cohorts’ efforts to cover up

their crimes. The coordinated criminal efforts of the high-ranking government officials

described in the Complaint, including McKeon, in obstructing justice, tampering with

evidence, the intimidation of a witness, and publicly shaming the plaintiff for acting

inappropriately when he conducted himself lawfully and admirably, constitutes

corruption that chills to the bone.7

To the extent that McKeon contends that the reprimand of the plaintiff does not

7
McKeon continues to argue that the statements made by a criminal defendant that were included in the
original report were improper. It is baffling that McKeon, a well trained and high-ranking official of the
MSP, continues to maintain with a straight face that a comment made by a potential criminal defendant
relating to how she obtained heroin (a crime for which she was being charged), and having participated in
unlawful solicitation to obtain illegal drugs, is “irrelevant”. McKeon alleges to have been concerned with
Alli Bibaud’s well-being, but it is apparent from the facts pleaded that McKeon and his criminal colleagues
tried to conceal evidence regarding a female suspect performing sexual favors in exchange for narcotics,
which only served to protect her supplier and expose Ms. Bibaud to potential further exploitation. (Compl.
¶¶ 27-31; 54-73). Commercial sexual exploitation is a widespread epidemic in the Commonwealth.
McKeon chose favoritism and his own self-interest over public safety and the rights of the accused and the
plaintiff, and used his position of power to attempt to coerce the plaintiff into participating in a felony that
has jeopardized his career.

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constitute a “plausible tangible injury of sufficient consequence to warrant denial of the

defendant’s motion”, the plaintiff refers the Court to its recent decision in Baez v. City of

Brockton, 2018 WL 324714, at *1, rejecting that a reprimand causing reputational harm

does not constitute a plausible tangible injury of sufficient constitutional consequence. Id.

(citing Bhatti v. Trs. Of Bos. Univ., 659 F.3d 64, 73 (1st Cir. 2011); Billings v. Town of

Grafton, 515 F.3d 39, 54-55 (1st Cir. 2008)). Here, “as a result of the defendants’

unconstitutional and unlawful conduct, the plaintiff was reprimanded, threatened with

suspension without pay, intimidated, and coerced into committing acts to which he

objected because those acts were illegal and unethical. The plaintiff was disciplined, and

suffered damage to his job security, his reputation, and severe emotional distress, as a

result of the defendants’ outrageous conduct.” (Compl. ¶¶ 104-105). Notably, McKeon

also publicly shamed the plaintiff. The aforementioned conduct is described in detail in

the Complaint.

The facts as alleged in the Complaint support that it is more than plausible that the

plaintiff has suffered constitutionally cognizable harm as a result of conduct that shocks

the conscience. For these reasons, McKeon’s Motion fails as to Count I.

B. The plaintiff has pleaded sufficient facts to sustain Count II of his

complaint.

In Count II, the plaintiff alleges a claim brought under the Mass. Civil Rights Act

based on McKeon and his co-conspirators’ violation of his constitutional rights. The

requisite analysis is the same as the federal inquiry but for the added element of “threats,

intimidation, or coercion”. See, e.g., Wynne v. Tufts University School of Medicine, 932

F.2d 19, 28–29 (1st Cir.1991) (en banc); Barbosa v. Colon, 962 F.Supp.2d 316, 331-332

(D.Mass. 2013). There is also no requirement of government action. Barbosa, supra, 962

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F.Supp.2d at 332. McKeon’s argument that the plaintiff has not sufficiently pleaded the

element of “threats, intimidation, or coercion” is disingenuous, even on its very best day.

General Laws c. 12, § 11I allows for a private right of action to vindicate the

rights established in § 11H. “To state a claim under the MCRA, a plaintiff must show that

(1) his exercise or enjoyment of rights secured by the constitution or laws of either the

United States or the Commonwealth of Massachusetts (2) has been interfered with, or

attempted to be interfered with, and (3) that the interference or attempted interference

was by threats, intimidation or coercion.” Farrah v. Gondella, 725 F.Supp.2d 238, 247

(D.Mass. 2010). Prongs one and two of the inquiry have already been discussed in detail,

above.

As to prong 3, the Supreme Judicial Court of the Commonwealth has specifically

defined the terms “threats, intimidation, and coercion.” Id. Only one of the three must be

pleaded. Id. In evaluating the sufficiency of a complaint, the court applies an objective

standard of whether a reasonable person might have felt threatened, intimidated, or

coerced. See Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, 474–

475, cert. denied, 513 U.S. 868 (1994). Here, the plaintiff has properly pleaded all three

courses of conduct, as he was threatened, intimidated, and coerced by McKeon and his

co-conspirators.

A “threat” is “the intentional exertion of pressure to make another fearful or

apprehensive of injury or harm.” Haufler v. Zotos, 446 Mass. 489, 505 (2006), quoting

from Planned Parenthood League of Mass., Inc., supra, 417 Mass. at 474. The threatened

harm need not be physical. See Buster v. George W. Moore, Inc., 438 Mass. 635, 647–

648, 783 (2003). Here, the plaintiff alleges that McKeon gave an order to Major

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Anderson to reprimand the plaintiff without cause, and to give him a direct order to

commit a crime, to wit, delete statements from his report so that a new report purporting

to be the original could be surreptitiously swapped with the report that was already

contained in the court file. (Compl. ¶¶ 61-89). The plaintiff recognized that the order was

illegal; however, he was told in the presence of his supervisor that disobeying of a direct

order constituted insubordination, which carried with it suspension without pay or

termination. (Compl. ¶ 68-71). Any objectively reasonable person would have felt

threatened or apprehensive in the aforementioned instance.

“Intimidation” is “putting [one] in fear for the purpose of compelling or deterring

conduct.” Haufler v. Zotos, supra, 446 Mass. at 505, quoting from Planned Parenthood

League of Mass., Inc., supra, 417 Mass. at 474. Here, not only was the element of

intimidation directly pleaded, the only reasonable inference on the allegations contained

in the Complaint is that the plaintiff was intimidated by the illegal orders he was given,

which is why he reluctantly deleted certain statements despite opposing the order.

(Compl. ¶ 61-79). On the facts alleged in the Complaint, the notion that the plaintiff was

not put in fear for the purpose of compelling certain conduct is nonsensical.

Finally, “‘coercion’ is ‘the application to another of such force, either physical or

moral, as to constrain him to do against his will something he would not otherwise have

done.’” Buster v. George W. Moore, Inc., supra, 438 Mass. at 646, quoting Planned

Parenthood League of Mass., Inc., supra. See also Freeman v. Planning Bd. of W.

Boylston, 419 Mass. 548, 565, cert. denied, 516 U.S. 931 (1995), quoting Webster’s New

Third Int’l Dictionary 439 (1981) (defining ‘[c]oercion’ under the act as ‘the use of

physical or moral force to compel [another] to act or assent’).” Haufler, supra, 446 Mass.

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at 505. Here, the very essence of the plaintiff’s claim is that he was coerced, i.e. that

moral force was applied by McKeon and his co-conspirators to constrain the plaintiff to

do against his will something that he would not have otherwise done. The plaintiff knew

when Major Anderson gave him the order to alter official documents and destroy relevant

evidence that it was “morally vacant” and he opposed participating in the conspiracy.

(Compl. ¶ 61-79). For these reasons, Count II of the plaintiff’s claim survives dismissal

with relative ease.

C. The plaintiff has pleaded sufficient facts to sustain Count III of his
complaint.

McKeon argues that the plaintiff’s conspiracy claim fails because the plaintiff

failed to allege that his rights were deprived by some racial or otherwise class-based

discriminatory animus. [Dkt. No. 21 at pp. 10-11]. McKeon cites to Griffin v.

Breckinridge, 403 U.S. 88, 102 (1971) to support this proposition. Griffin discusses

conspiracy claims brought under Section 1985(3) (the Ku Klux Klan Act). Of course, no

such claim was alleged here, rendering McKeon’s citation to Griffin wholly ill

considered. The plaintiff’s conspiracy claim arises under Section 1983, not 1985 and it

was sufficiently pleaded.

A conspiracy claim based on a violation of constitutional rights is actionable

under § 1983. Landrigan v. City of Warwick, 628 F.2d 736, 742 (1st Cir.1980). Two

requisites must be satisfied: “plaintiff must allege…both a conspiracy and an actual

deprivation of rights…” Id., quoting Hampton v. Hanrahan, 600 F.2d 600, 622 (7th Cir.

1979) (reversed on other grounds). “The gist of the Section 1983 action is the deprivation

and not the conspiracy. Conspiracy is merely the mechanism by which to obtain the

necessary state action, or to impose liability on one defendant for the acts of the others

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performed in pursuance of the conspiracy.” Landrigan, 628 F.2d at 742 (internal

quotations and citations omitted). The plaintiff has already addressed at great length and

with sufficient support the constitutional deprivation element of his conspiracy claim.

Accordingly, the plaintiff now focuses solely on the conspiracy dimension.

To properly allege a conspiracy claim, the plaintiff must allege facts setting forth

both “the existence and scope of the conspiracy.” Slotnick v. Staviskey, 560 F.2d 31, 33

(1st Cir. 1977). In this instance, the plaintiff alleges that the defendants and others8

entered into “an agreement” to threaten, intimidate, and coerce him into amending his

report to delete relevant statements so that it could be improperly swapped in the court

file. The defendants aimed to accomplish their conspiracy by giving the plaintiff a direct

order from a superior officer to commit multiple felonies in an effort to elevate one

privileged citizen’s status in the criminal process above others. The elements of

conspiracy have been properly pleaded with specificity. The defendants and others,

including the co-defendant and individuals identified by Major Anderson, knowingly

agreed to an illegal and unethical plan to favor a judge’s daughter, which involved the

attempted interference with, and a direct violation of, the plaintiff’s constitutional rights,

including ordering him to participate in a felony and publicly shaming him to cover-up

the reason for their criminal activity.

McKeon also argues that Major Anderson’s hesitation in giving the order

somehow absolves McKeon of liability under a conspiracy theory. McKeon’s premise is

utterly ridiculous. If Major Anderson agreed with McKeon to shoot someone, but

subsequently told the victim just prior to shooting him that she did not think it was right,

8
According to Major Anderson, District Attorney Joseph Early, Lieutenant Colonel Daniel Risteen, and
Secretary of Public Safety Daniel Bennett, participated in the conspiracy. The plaintiff expects that
discovery will lead to the naming of additional members of the conspiracy.

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but shoots him anyway, that fact does absolutely nothing to absolve any of the

participants from conspiratorial liability. In this case, Major Anderson simply expressed

recognition that the tampering with the report was illegal; however, she gave the orders

anyway because she lacked the same courage demonstrated by the plaintiff.

Finally, McKeon again argues that he was acting consistent with a court order

when he ordered that the plaintiff be reprimanded and change his report. Notwithstanding

the questionability of the court impoundment, at the time the plaintiff was disciplined and

ordered to remove statements from his report, the court had done nothing but impound

the report due to alleged “pretrial publicity.” Moreover, the court never determined that

the report contained “inappropriate and irrelevant material”; rather, in a shocking move,

the Worcester DA’s office moved to redact the report after the fix was already in. For

these reasons, McKeon’s Motion fails as to Count III.

D. The plaintiff has pleaded sufficient facts to sustain Count IV of his

complaint.

The plaintiff’s argument for dismissal of the plaintiff’s intentional infliction claim

warrants little consideration. In short, the elements of the tort of intentional infliction of

emotional distress are well settled in Massachusetts. “A properly pleaded claim alleges:

“(1) that the actor intended to inflict emotional distress or that he knew or should have

known that emotional distress was the likely result of his conduct; (2) that the conduct

was ‘extreme and outrageous,’ was ‘beyond all possible bounds of decency’ and ‘was

utterly intolerable in a civilized community;’ (3) that the actions of the defendant were

the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the

plaintiff was ‘severe’ and of a nature ‘that no reasonable man could be expected to

endure it.’”Agis v. Howard Johnson Co., 371 Mass. 140, 144–45 (1976) (internal citation

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omitted). See also Doyle v. Hasbro, Inc., 103 F.3d 186, 195 (1st Cir. 1996); Tetrault v.

Mahoney, Hawkes & Goldings, 425 Mass. 456, 466, (1997); Payton v. Abbott Labs, 386

Mass. 540, 555 (1982).

The defendant argues that McKeon ordering the plaintiff, who is a sworn law

enforcement official, to commit a felony by altering official reports and evidence to show

unwarranted favor to a judge’s daughter is not “extreme or outrageous conduct.” [Dkt.

No. 21 at p. 13]. The plaintiff disagrees, as do the citizens of Massachusetts, as

demonstrated by the public outrage over McKeon’s actions and his abrupt retirement

after he admitted to giving the illegal orders and was admonished by the Governor.

McKeon is now the subject of a criminal investigation by the Attorney General. To

classify McKeon’s conduct as failing to rise to the level of “outrageous” would entirely

undercut the bedrock principle of our criminal justice system: equitable treatment under

the law. For these reasons, McKeon’s Motion fails as to Count IV.

E. The plaintiff has pleaded sufficient facts to sustain Count V of his

complaint.

McKeon argues that the plaintiff’s claim for defamation fails because the

Complaint fails to allege that McKeon made any defamatory statements and that the

statements made did not concern the plaintiff. Consistent with most of McKeon’s Memo,

McKeon’s argument is simply untrue. The Complaint states: “McKeon ordered the State

Police media spokesperson to make false and derogatory statements to the media

regarding Trooper Sceviour, particularly that his report included improper statements that

violated the standards of report-writing and that required removal.” (Compl. ¶ 96). The

statements are alleged to have been published in the media after an October 26, 2017

news report broke. (Compl. ¶ 95). As a result, the plaintiff alleges that McKeon “caused

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the plaintiff damage to his reputation.” (Compl. ¶ 97). The statement made by the MSP,

as alleged in the Complaint, that the plaintiff’s report included improper statements that

violated the standards of report writing is false and defamatory. It is also identified

sufficiently for purposes of the pleading standard. Regardless, the Complaint sufficiently

refers to the comments made by the MSP spokesperson in response to a news article,

referenced by date in the Complaint, that broke the story. As such, the news report

containing the statements was sufficiently incorporated by reference into the Complaint.

On November 8, 2017, MSP spokesperson Dan Procopio, at the behest of

McKeon (as alleged), told the media that “the revision consisted only of removal of a

sensationalistic, directly-quoted statement by the defendant, which made no contribution

to proving the elements of the crimes with which she was charged…”9 Of course, that

statement is untrue and was published in response to inquiries about the plaintiff’s initial

report. The plaintiff’s name was also mentioned in the news report. The MSP went

further, stating:

Inclusion of an unnecessary sensationalistic statement does not meet the

report-writing standards required by the department. The revised report –
which is clearly marked as having been revised – includes all observations
made by troopers, all descriptions of physical evidence found in the
defendant’s possession, and summaries of statements made by the
defendant relative to her possession and use of heroin, all of which
constitute clear evidence against her. Furthermore, both versions of the
report were submitted to the court. The removal of the inflammatory and
unnecessary quotation did not change the substance of the trooper’s
narrative, did not remove any elements of probable cause from the report,
and, most importantly, had no impact on the charges against the defendant.

See FN 10. Again, the statements contained in the spokesperson’s comments to the media

directly refer to “the trooper’s narrative”. For McKeon to argue that the statements do not

9
Available at http://boston.cbslocal.com/2017/11/08/massachusetts-state-police-report-lawsuit-trooper-
ryan-sceviour/.

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concern the plaintiff and maintain that the plaintiff did not plead defamation with enough

particularity is insincere. The statement is also directly related to the plaintiff’s

employment and constitutes libel, both of which render it actionable per se. See Sharratt

v. Housing Innovations, Inc., 365 Mass. 141, 147 (1974).

F. Colonel McKeon is not entitled to Qualified Immunity.

McKeon argues that he is entitled to qualified immunity. His position is

unsubstantiated by law. “[Q]ualified immunity protects government officials 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.”

MacDonald v. Town of Eastham, 745 F.3d 8, 11-12 (1st Cir. 2014), citing Pearson v.

Callahan, 555 U.S. 223, 231 (2009). In Pearson, the Supreme Court reiterated that the

qualified immunity inquiry is a two-part test in which a court must decide: (1) whether

the facts alleged or shown by the plaintiff make out a violation of a constitutional right;

and (2) if so, whether the right was “clearly established” at the time of the defendant's

alleged violation. Pearson, supra, at 815-16.10 While further discovery is warranted on

this question, the allegations contained in the Complaint are more than sufficient to defeat

any qualified immunity defense.

The second part of the inquiry (relating to whether the right was clearly

established) has its own two elements. MacDonald, supra, at 11-12. The first element

“focuses on the clarity of the law at the time of the alleged civil rights violation,” and

turns on whether the contours of the relevant right were clear enough to signal to a

reasonable official that his conduct would infringe that right. Id. The second element is

10
It is not mandatory that courts follow the two-step analysis sequentially. Pearson, supra, at 236.

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more particularized; it turns on “whether a reasonable defendant would have understood

that his conduct violated the plaintiff[’s] constitutional rights.” Id.

McKeon was the highest-ranking official of the State Police and was well versed

in the law. He knowingly gave orders coercing the plaintiff into committing multiple

felonies and ethical violations, and reprimanded him without any justifiable basis.

McKeon was fully aware of the policies and procedures of the State Police regarding

insubordination when he ordered that the plaintiff be reprimanded and given an order to

change his report, and McKeon knew that the plaintiff would feel extreme pressure to

comply. McKeon knowingly violated the law by ordering a subordinate to commit

crimes. Indeed, any objectively reasonable police officer would know that the

commission of a crime, and ordering a subordinate to assist, violates the law. Qualified

immunity does not protect those who knowingly violate the law. Malley v. Briggs, 475

U.S. 335, 341 (1986). To say that the plaintiff’s constitutional right in his protected

employment to be free from interference in the form of direct orders to commit felonies is

not clearly established would be wholly injudicious.

For these reasons, qualified immunity does not shield McKeon from liability for

his felonious conduct.

III. CONCLUSION

For the reasons stated herein, McKeon’s Motion must be denied in its entirety.

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Respectfully submitted,
The Plaintiff,
By his attorneys,

/s/ Michael Stefanilo, Jr.

Leonard H. Kesten, BBO# 542042
Michael Stefanilo, Jr., BBO# 684500
BRODY, HARDOON, PERKINS & KESTEN, LLP
699 Boylston Street, 12th Floor
Boston, MA 02116
(617) 880-7100
lkesten@bhpklaw.com
mstefanilo@bhpklaw.com

DATED: February 20, 2018

CERTIFICATE OF SERVICE

I hereby certify that this document was filed through the ECF system and will
therefore be sent electronically to the registered participants as identified on the Notice of
Electric Filing (NEF) and paper copies will be sent to those participants indicated as non-
registered participants.
/s/ Michael Stefanilo, Jr.
Michael Stefanilo, Jr., BBO# 684500

Dated: February 20, 2018

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