HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/PLYM.ASC

Text File | 1993-01-14 | 42KB | 815 lines

/* This case is reported in 825 F.Supp. 1102 (D.Mass. 1993). This
is a case with unique facts. Doe called the police as the victim
of a trespass. The police who responded noted that Doe had a
prescription for AZT. Although Doe was the victim the police
decided to see if they could trick Doe into confirming that she
had AIDS. Thereafter, Doe alleges that the police revealed her
HIV status to third parties. The Court here finds that there are
several theories under which such conduct could be the basis for
a suit. */

Jane DOE, Plaintiff,

v.

TOWN OF PLYMOUTH and Paul A. Tibbetts, Defendants.

United States District Court, D. Massachusetts.

July 2, 1993.



ORDER RE: MOTION OF THE DEFENDANTS, PAUL TIBBETTS AND TOWN OF
PLYMOUTH FOR SUMMARY JUDGMENT

(DOCKET ENTRY #29)

BOWLER, United States Magistrate Judge.



The above styled civil rights action is referred to the
undersigned for trial pursuant to 28 U.S.C.   636(c).  (Docket
Entry # 27). Pending before this court is a motion for summary
judgment (Docket Entry # 29) filed by defendants Paul Tibbetts
("Tibbetts") and the Town of Plymouth ("the town") (collectively:
"defendants").  Plaintiff Jane Doe ("plaintiff') opposes the
motion. (Docket Entry # 33).

On June 2, 1993, this court held a hearing and took the motion
for summary judgment (Docket Entry # 29) under advisement.



BACKGROUND

Plaintiff, who resides in an apartment in Plymouth,
Massachusetts,  filed  this  civil rights complaint on November
20, 1991. She brings the following five counts for relief: (1)
violation of 42 U.S.C. 1983 and 1988 against Tibbetts for the
alleged violation of plaintiffs right to privacy (count I); (2)
violation of Massachusetts General Laws chapter 214, section 1B
("chapter 214"), against Tibbetts for wantonly and/or recklessly
disregarding plaintiff's right to privacy (count II); (3)
violation of Massachusetts General Laws chapter  12,  section
111  ("chapter  12"), against Tibbetts for violation of
plaintiff's right to privacy (count II I); (4) intentional
infliction of emotional distress against Tibbetts (count IV); and
(5) violation of Massachusetts General Laws chapter 258 ("chapter
258") against the town for its alleged failure to adequately
train and supervise Tibbetts in the protection of privacy rights
of individuals with AIDS (count V).  (Docket Entry # 1).

/* Count V was dismissed all the remaining theories were upheld.
*/



On February 16, 1993, defendants filed a motion for summary
judgment, asserting various arguments in favor of dismissing this
action on the merits.  (Docket Entry # 29). For purposes of
summary judgment, this court finds the following facts. [footnote
1]

On or about November 20, 1988, plaintiff was in her apartment
with her sister.  Plaintiff's  upstairs neighbor, Anita
Magnificio ("Magnificio") and her daughter, entered plaintiff's
apartment with Magnificio "chanting about evil things." According
to plaintiff, Magnificio deposited the contents of her pocketbook
on the coffee table in plaintiff's apartment where plaintiff's
medication, AZT, was located in a bottle. [footnote 2]  (Docket
Entry #33, Ex. 1).

Tibbetts and "Officer Abbott" ("Abbott") arrived at plaintiff's
apartment at approximately 2:00 p.m. and removed Magnificio.
Plaintiff, Tibbetts and Abbott agreed to leave Magnificio's
daughter in plaintiff's care and custody until a relative could
be located. (Docket Entry # 30, Ex. 1; Docket Entry #33, Ex. 1).

Tibbetts transported Magnificio initially to the Plymouth police
station and thereafter to Jordan Hospital.  At Jordan Hospital,
Tibbetts reviewed the contents of Magnificio's purse.  Therein,
he discovered a container of prescription medication, retrovir,
[footnote 3] bearing plaintiff's name.  Tibbetts read the label
aloud.  A doctor standing a few feet from Tibbetts told Tibbetts
that the medication was used for AIDS, according to Tibbetts.
Tibbetts then spoke with a number of nurses at the hospital about
plaintiff's medication. One or more of the nurses told Tibbetts
that, for health reasons, it would be wise to remove Magnificio's
daughter from plaintiff's care.  (Docket Entry # 30, Ex. 1;
Docket Entry #33, Ex. 2).

Approximately  one  hour  after  leaving plaintiff's  apartment,
Tibbetts  telephoned plaintiff at her apartment.  (Docket Entry #
33, Ex. 1 & 2).  According to plaintiff's version of the
conversation, Tibbetts told her that "they" had found a bottle of
plaintiff's prescription medication in Magnificio's purse. Me
asked plaintiff to confirm that the medication belonged to her.
When plaintiff refused to explicitly identify the medication,
Tibbetts told plaintiff that he knew what the medication was.
Although plaintiff initially stated that she took the medication
for a blood disease, she eventually identified the medication as
AZT and as belonging to her. (Docket Entry # 33, Ex. 1).

Tibbetts then asked plaintiff if she was "HIV positive."
Believing that she would not get her medication if she did not
answer Tibbetts' questions, plaintiff stated "yes." Tibbetts then
advised plaintiff that "they" would remove Magnificio's daughter
from her care because of her illness.  He also informed plaintiff
that her medication would be returned, according to plaintiff.
(Docket Entry #33, Ex. 1).

/* Why was this necessary? The medicine could just have been
returned without the need for the cops to conduct an
investigation on the victim of the crime. */

According to Tibbetts' version of the conversation, he described
the medication to plaintiff and told her that the bottle had her
name on it.  Tibbetts further testified that plaintiff then
replied that it was her medication.  Tibbetts also asked
plaintiff what she used the medication for and plaintiff
initially replied for blood pressure.  Tibbetts then told
plaintiff that a doctor had informed him about the nature of the
medication. Plaintiff then told Tibbetts she was HIV positive and
asked him to keep the information confidential.  Tibbetts told
plaintiff that no one would know about her situation. (Docket
Entry # 33, Ex. 2). The information is not contained in the
incident report. (Docket Entry # 30, Ex. 2).

After speaking on the telephone with plaintiff, Tibbetts spoke
with Abbott at the hospital. Tibbetts told Abbott to return the
medication to plaintiff and to remove Magnificio's daughter from
plaintiff's care.  (Docket Entry # 33, Ex. 2).  Abbott returned
plaintiff's medication to plaintiff approximately one hour after
plaintiff's telephone conversation with Tibbetts.  (Docket Entry
# 33, Ex. 1).

On February 1, 1989, Bosari and Magnificio were involved in an
altercation, according to plaintiff who witnessed the event.
(Docket Entry # 33, Ex. 1). Tibbetts responded to a dispatch call
that Bosari was experiencing difficulty with a neighbor and
arrived at Bosari's apartment.  (Docket Entry # 30, Ex. 1).
Bosari advised Tibbetts that Magnificio's daughter was acting
irrationally and had thrown a stone at Bosari's automobile.
[footnote 4] Tibbetts counseled Bosari to insulate herself and
her children from these neighbors, according to Tibbetts.
Tibbetts does not recall telling Bosari that plaintiff was a "sad
case."  In fact, he recollects not telling Bosari about
plaintiff's illness.  (Docket Entry # 30, Ex. 1).  Bosari
testified that she did not recall discussing  plaintiff's  health
status  "with him," presumably Tibbetts.  (Docket Entry # 30, Ex.
4).

The following day, Magnificio told plaintiff that she had
received a telephone call from Lynn Quintell ("Quintell") saying
that Bosari had told Quintell that plaintiff had AIDS and that
Tibbetts had told Bosari the day before that plaintiff was a "sad
case," had an illness and that children should be kept away from
plaintiff's home. [footnote 5]  (Docket Entry # 33, Ex.1).

Plaintiff states she was upset.  She testified that she spoke
with Bosari the same day and repeated what Magnificio had told
her.

According to plaintiff, Bosari confirmed that the conversation
between Bosari and Tibbetts had occurred. Although Bosari did not
identify the particular words used during the conversation, she
generally adopted the conversation as described to her by
plaintiff, [footnote 6] according to plaintiff.

Bosari testified that one night plaintiff came to her door and
related something "an [o]fficer had told me. And I said, I'm
sorry, an [o]fficer did not tell me." Also according to Bosari,
plaintiff told her she had AIDS and Bosari assured plaintiff that
"it would never get beyond us."  (Docket Entry # 30, Ex. 4).  As
previously noted, Tibbetts does not recall telling Bosari about
plaintiff's illness at his deposition.  (Docket Entry # 30, Ex.
1).

Approximately one week thereafter, plaintiff spoke with Quintell.
Prior thereto, Quintell's daughter told plaintiff that, "My
mother says you have AIDS and my mother says you're going to
die."  After February 1989, plaintiff testified that none of the
children in the neighborhood played with her daughter. Sometime
after the February 1989 incident, plaintiff moved from her
apartment because of the "stress" resulting from "people knowing
[she] had AIDS."  (Docket Entry # 33, Ex. 1).

Tibbetts began working for the police department of the Town
Plymouth ("Plymouth police department") in 1978.  He currently
occupies the rank of patrolman. He graduated from the Barnstable
Police Academy and received training throughout his tenure as a
member of the Plymouth police department. He testified that he
received annual, 40 hour courses concerning recent developments
in the law.  He received "some training" in HIV disease.
Specifically, one time during his annual 40 hour training course,
Tibbetts testified that:

HIV disease was described to us in a class as to manners in which
it could possibly be transmitted and manners in which we could
protect ourselves as [o]fficers and encountering the people that
we normally encounter on our job; and the types of people that
might possibly have the disease that we would normally and
usually deal with as [p]olice [o]fficers. (Docket Entry # 30, Ex.
1).  He further testified that he believed he "was instructed, at
some time, that HIV could be normally and  usually expected  to
be transmitted through the mixture of bodily fluids such as blood
or sputum and possibly sexual fluids" usually encountered at an
accident scene. He remembers receiving advice to wear barrier
protection if required "to give CPR to an unknown subject."
(Id.).

In the area of privacy rights, Tibbetts does not recall where or
when he received training.  From his training, Tibbetts is not
aware of the privacy rights of individuals with HIV infection.
[footnote 7]  He has no direct knowledge "about anything with
HIV, itself" but, apparently irrespective of knowledge received
through training, Tibbetts knows that any disease "should
normally and usually be treated with confidentiality befitting
the privacy of the individual." (Docket Entry # 30, Ex. 1).

According  to  George  B.  Madsen,  Jr. ("Madsen") [footnote 8]
any officer who became a member of the Plymouth police department
from 1988 to 1990 received training that information received was
generally confidential.  It was the "custom" of the Plymouth
police department not to release confidential information to the
public.  He noted, in passing, that, "There's private information
as far as health issues go-as far as physical conditions go."
Madsen further stated that an individual's medical condition
might appear "in a report" and the condition was "part of the
confidential information which may be received."  (Docket Entry #
30, Ex. 6).



DISCUSSION

Summary judgment is permissible when "there is no genuine issue
as to any material fact and . . . the moving party is entitled to
a judgment as a matter of law."  Fed.R.Civ.P. 56(c).  Inferences
are drawn in favor of plaintiff, the nonmoving party.  Space Mas
ter International, Inc. v. City of Worcester, 940 F.2d 16 (1st
Cir.1991); Herbert W. Price v. General Motors Corporation, 931
F.2d 162 (1st Cir.1991) (record viewed in light most favorable to
nonmoving party).

In deciding whether a factual dispute is genuine, this court must
determine whether "the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986); accord Aponte-Santiago v. Lopez-Rivera, 957
F.2d 40, 41(1st Cir. 1992) (citing Anderson, 477 U.S. 242, 106
S.Ct. 2505).  A fact is "material" if it might affect the outcome
of the suit under the governing substantive law. Beck v. Somerset
Technologies, 882 F.2d 993 (5th Cir.1989) (citing Anderson, 477
U.S. 242, 106 S.Ct. 2505).

Once defendants carry their burden under Rule 56(c), plaintiff,
as the nonmoving party, must do "more than simply show that there
is some metaphysical doubt as to the material facts." Matsushita
Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574,
586,106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Furthermore, on
issues where plaintiff bears the burden of proof at trial,
plaintiff "must reliably demonstrate that specific facts suffi
cient to create an authentic dispute exist." Garside v. Osco
Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990).

In their supporting memorandum, defendants argue the following:
(1) summary judgment is appropriate under count I inasmuch as
Tibbetts did not violate plaintiff's constitutional right to
privacy under section 1983 on the basis of admissible evidence
contained in the record; (2) summary judgment is appropriate
under count II inasmuch as Tibbetts made no improper disclosure
and under count III inasmuch as any disclosure, if made, was
neither improper not a threat, intimidation or coercion; (3)
summary judgment is appropriate under count IV inasmuch as the
disclosure if any, was neither intentional nor utterly
intolerable; (4) summary judgment  is  appropriate  under count V
against the town inasmuch as no federal claim is asserted against
the town, there is insufficient evidence for liability, the
presentment letter is defective and there is no causal relation.
(Docket Entry # 30).  This court addresses these arguments
seriatim.



I.   Count I

Liability under section 1983 requires a showing that: (1) the
conduct complained of was committed by a person acting under
color of state law; and (2) the conduct deprived plaintiff of
rights, privileges or immunities secured by the Constitution of
laws or the United States.  Gutierrez-Rodriguez v. Cartagena, 882
F.2d 553, 559 (1st Cir.1989). Plaintiff complains that Tibbetts
violated her right to privacy under the Constitution. Defendants
maintain, however, that Tibbetts made no constitutionally
impermissible disclosure.  In addition, defendants contend that
the only evidence to support an improper disclosure is
plaintiff's conversation with Magnificio which constitutes
hearsay. (Docket Entry # 30).

[1, 2]  Turning to the first argument, it is well established
that plaintiff has a constitutional right to privacy sufficient
to establish liability under section 1983. Daury v. Smith, 842
F.2d 9,13 (1st Cir.1988).  As expressed by the Supreme Court, the
Constitution protects two types of privacy interests. "One is the
individual interest in avoiding disclosure of personal matters,
and another is the interest in independence in making certain
kinds of important decisions."  Whalen v. Roe, 429 U.S. 589, 599-
300, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977).  It is the former
which implicates the issues in the case at bar.

The First Circuit has yet to express a position on the issue of
the privacy rights attendant to disclosure of one's HIV status.
In Borucki v. Ryan, 827 F.2d 836 (1st Cir. 1987), the court
determined that the right to prevent disclosure of the contents
of a court ordered psychiatric report was not "clearly
established" prior to June 1983.  Id. at 844. The court
nevertheless acknowledged that the majority of courts considering
the issue as of June 1983 had concluded that the constitutional
right to privacy is implicated by the disclosure of a broad range
of personal information.  Id. at 846.

There are few areas which more closely intimate facts of a
personal nature than one's HIV status.  See  Woods v.  White,
689 F.Supp. 874, 876, aff'd, 899 F.2d 17 (7th Cir.1990)
(W.D.Wisc.1988).  The decision of who to tell and when to relate
such information is an emotionally sensitive area "fraught with
serious implications for that individual." Doe v. Coughlin, 697
F.Supp. 1234, 1237 (N.D.N.Y.1988)  (recognizing  that  family
members may abandon the AIDS victim and the discrimination
accompanying public dissemination of the diagnosis); accord Doe
v. Borough of Barrington, 729 F.Supp. 376, 384 (D.N.J.1990)
(detailing stigma of harassment attendant with disclosure).

[3]  Following the lead of other courts considering this issue,
this court finds that plaintiff has a constitutional right to
privacy which encompasses nondisclosure of her HIV status.
Harris v. Thigpen, 941 F.2d 1495, 1513 (11th Cir.1991) (assuming,
arguendo, a constitutionally protected privacy interest in
nonconsensual disclosure of HIV status); Faison v. Parker, 823
F.Supp. 1198 (E.D.Pa. 1993) (stating that mental health and HIV
status information contained in presentence report deserves high
degree of protection); Doe v. City of Cleveland, 788 F.Supp. 979,
985 (N.D.Ohio 1991) (arrestee has constitutional right to privacy
encompassing nondisclosure of information related to AIDS);
Nolley v. County of Erie, 776 F.Supp. 715, 729-731 (W.D.N.Y.1991)
(collecting cases and finding that inmates have constitutional
right to privacy covering unwarranted disclosure of HIV status);
Doe v. Borough of Barrington, 729 F.Supp. 376, 383 (D.N.J.1990)
(Constitution protects wife and children from governmental
disclosure by police officer of their husband's and father's
infection with AIDS);

Rodriguez v. Coughlin, 1989 WL 59607 at * 3 (W.D.N.Y. June 5,
1989) (complaint claiming violation of right to privacy stated
cause of action under section 1983 thereby precluding unjustified
disclosure of inmate's AIDS status);  Woods v. White, 689 F.Supp.
at 876 (plaintiff retains right not to disclose HIV infection
despite incarceration).

This court must therefore balance plaintiff's right to
confidentiality against the government's interest in disclosure.
Faison v. Parker, 823 F.Supp. 1198, 1201-02 (E.D.Pa. 1993); Doe
v. City of Cleveland, 788 F.Supp. 979, 985 (N.D.Ohio 1991); Doe
v. Borough of Barrington, 729 F.Supp. 376, 383 (D.N.J. 1990).
[footnote 9] As noted by one court, the circumstances surrounding
the disclosure and the means employed do not define the right to
privacy.   Rather, the circumstances surrounding disclosure are
central to a balancing of plaintiff's  right  to confidentiality
against the state's interest in disclosure. Doe v. Coughlin, 697
F.Supp. at 1237 & n. 6.

[4]  Defendants argue that no actionable conduct took place on
February 1, 1989, concerning Tibbetts' conversation with Bosari.
Thus, rather than offer a legitimate reason for the disclosure,
defendants argue that Tibbetts made no improper disclosure on
February 1, 1989.  Plaintiff's complaint, however, complains of
the allegedly forced disclosure of her HIV status during her
telephone conversation with Tibbetts on November 20, 1988, as
well as Tibbetts' alleged disclosure to Bosari on February 1,
1989.  Based on Tibbetts' personal knowledge, it is apparent that
he discussed plaintiff's prescription for retrovir with doctors
and nurses at Jordan Hospital as well as with Abbott on November
20, 1988.  Tibbetts telephoned plaintiff and, viewing the facts
in plaintiff's favor, she was forced to admit she was infected
with HIV. This court therefore finds a material issue of fact
exists with respect to whether Tibbetts violated plaintiff's
right to privacy concerning her medical condition as an
individual infected with HIV.

[5]  Turning to the events of February 1, 1989, Tibbetts does not
recall telling Bosari that plaintiff was a "sad case."  In fact,
Tibbetts recollects not telling Bosari about plaintiff's illness.
(Docket Entry # 30, Ex. 1). Although excerpts of Bosari's
deposition are less than clear, she obliquely confirms that she
did not discuss plaintiff's health status with Tibbetts.

Plaintiff relies on her recapitulation of the February 1, 1989
Tibbetts/Bosari conversation as described to her by Magnificio.
Plaintiff additionally relies on her testimony that Bosari
adopted part of plaintiff's version of the conversation and
confirmed to plaintiff that Tibbetts told Bosari that plaintiff
was a sad case.

Facts upon which a nonmovant may rely in opposing summary
judgment must be admissible but need not be in admissible form.
Rule 56(e), Fed.R.Civ.P., allows plaintiff to oppose summary
judgment with the evidentiary material listed in Rule 56(e), Fed.
R.Civ.P.  Plaintiff, as the nonmovant with the burden of proof at
trial to show Tibbetts' violation of a federally protected right,
"cannot expect the court to give weight to averments not made
upon personal knowledge or those which are in a form patently
inadmissible at trial." Garside v. Osco Drug, Inc., 895 F.2d at
49.

Plaintiff's deposition testimony is as follows:

The following day [February 2, 1989] Anita Magnificio approached
me in the front hallway and said that she had just received a
phone call from Lynn Quintell saying that Kim Bosari had told
Lynn Quintell that I had AIDS;  that from her conversation with
the officer the day before who responded to the call, he
[Tibbetts] made various statements to her regarding my-self, and
that I had an illness and that I was a sad case and the
neighborhood children would be kept from my house or playing in
my yard. [footnote 10]



II.  Counts II and III

With respect to plaintiff's conversation with Bosari later in the
day on February 2, 1989, plaintiff testified that:

I confronted her [Bosari] with what I had heard, and she
confirmed that this conversation occurred with her and the
officer [Tibbetts ].

If offered to prove the truth of the assertion that Tibbetts so
spoke, plaintiff's testimony is hearsay, Fed. R. Evid. 801(c),
and inadmissable under Fed.R.Evid. 802.  See Samuelson v.
Durkee/French/Airwick, 760 F .Supp. 729, 739 (N.D.Ind.1991),
aff'd, 976 F.2d 1111 (7th Cir.1992).

Plaintiff submits that the conversation is not being offered to
prove the truth of the matter asserted.  She maintains that the
statements "are not offered to prove whether or not plaintiff has
AIDS, or whether she is a 'sad case' but rather to show that the
conversation occurred."  (Docket Entry # 33).  It is true that
out of court statements are inadmissible "only if offered for the
truth of the matter therein."  Morgan v. Massachusetts General
Hospital, 901 F.2d 186, 190 (1st Cir.1990);  Fed.R.Evid. 801(c).
While this distinction is sometimes difficult to draw, see Boston
Athletic Association v. Sullivan, 867 F.2d 22, 31(1st Cir.1989)
(in trademark infringement action,  statements offered  to show
likelihood of confusion rather than truth of contents), this
court concludes that the statements are, in fact, offered to
prove the truth of the matters stated therein. Plaintiff's
version of the Bosari-Tibbetts conversation only becomes relevant
when the content of the conversation is examined. Plaintiff
cannot sidestep the hearsay rule through the fine distinction she
wishes this court to make. Both Tibbetts and Bosari are available
to testify.  What these available declarants said to each other
cannot be established by what Bosari told Quintell who then told
Magnificio who then told plaintiff. Accordingly, while this court
denies defendants' summary judgment under count I, plaintiff is
advised that the above testimony concerning the events of
February 1 and 2, 1989, is inadmissible in its present form. Nor
does this court consider such "evidence" in denying defendants'
motion as to count I.

As to count II, defendants argue that, for reasons stated with
respect to count I (i.e., liability under section 1983),
plaintiffs fail to state a claim for relief under chapter 214 on
the basis that no disclosure took place.  Defendants' argument is
misplaced.

[6]  Chapter 214 focuses on interference with a person's privacy
rights under the law of the Commonwealth of Massachusetts.  Li
ability under chapter 214 is "not dependent on communications of
the personal matters to the public at large."  Tower v.
Hirschhorn, 397 Mass. 581, 492 N.E.2d 728, 732 (1986). As noted
in Hirschhorn in denying a motion for a judgment notwithstanding
the verdict, "disclosure without the consent of the patient, of
confidential medical information to two individuals, as alleged
by the plaintiff, would be sufficient to warrant a finding of
invasion of privacy" under chapter 214.  Id., 492 N.E.2d at 732.
Similarly, interoffice communications among corporate employees
of personal facts of another employee constitute a sufficient
disclosure under chapter 214. Bratt v. International Business
Machines Corporation, 392 Mass. 508, 467 N.E.2d 126, 134 & n. 15
(Mass.1984).  Consequently, there exists a material issue of fact
concerning Tibbetts' communications on November 20, 1988.

[7]  Under count III, defendants argue that no constitutional
violation took place. For reasons stated in part I supra, this
argument is unpersuasive for purposes of summary judgment.  In
addition, defendants maintain that no threat, intimidation or
coercion took place within the meaning of chapter 12.

Liability under chapter 12 requires:  (1) interference or
attempted interference with a right secured by the Constitution
or a right secured by the constitution of the Commonwealth of
Massachusetts and (2) "that the interference or attempted
interference was by 'threats, intimidation or coercion.'"
Rosenfeld v. Board of Health of Chilmark, 27 Mass.App.Ct.  621,
541  N.E.2d  375,  379

(1989).  Chapter 12 is thus "primarily aimed at intentional
conduct." Andujar v. City of Boston, 760 F.Supp. 238, 243
(D.Mass.1991). Actual or potential physical violence, however, is
neither a decisive nor a required factor in establishing the
latter element. Broderick v. Roache, 803 F.Supp. 480, 486-487
(D.Mass. 1992) (finding genuine material issue of fact sufficient
to withstand summary judgment).

Mindful that this court must view the facts in plaintiff's favor,
she established that on November  20,  1988,  Tibbetts  impliedly
threatened that if she did not disclose her confidential HIV
status, he would not return her medication.  This court therefore
finds sufficient evidence of threats, intimidation or coercion to
withstand defendants' summary judgment under count III.



III. Count IV

Under count IV, defendants maintain that Tibbetts did not commit
an intentional act which was utterly intolerable in a civilized
society.  Defendants additionally argue that Tibbetts did not
disclose private, medical information nor commit any other
proscribed activity under count IV.

[8]  Liability for the tort of intentional infliction of
emotional distress requires plaintiff to establish: (1) "that the
actor intended to inflict emotional distress or knew or should
have known that emotional distress was the likely result of his
conduct;"  (2) "that the conduct was 'extreme and outrageous,' "'-
as beyond all possible bounds of decency,' and was 'utterly
intolerable in a civilized community;'" (3) "that the actions
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 person 'could be expected to
endure.'"  Thorpe v. Mutual of Omaha Insurance Company, 984 F.2d
541, 545 (1st Cir.1993) (quoting Agis v. Howard Johnson  Company,
371  Mass.  140,  355 N.E.2d 315, 318-319 (1976)).  Defendants,
rather cryptically, seek summary judgment on the second element.
(Docket Entry # 30, p. 13).

[9]  It is important to note that liability cannot be premised on
mere insults, threats or petty oppression.  Finucane v. Town of
Belchertown, 808 F.Supp. 906, 911 (D.Mass. 1992) (citing Foley v.
Polaroid Corporation, 400 Mass. 82, 508 N.E.2d 72, 81 (1987)).
Moreover, as suggested by the First Circuit, it is eminently
appropriate for the court to assess the second prong of this tort
on a summary judgment motion.  Caputo v. Boston Edison Company,
924 F.2d 11, 14 (1st Cir.1991) (second prong can be decided by
court without becoming jury question).

[10]  Quite frankly, the evidence, or lack thereof, presented
thus far makes it an extremely close issue as to whether to
dismiss count IV for failure of plaintiff to establish a genuine
issue of material fact concerning Tibbetts' conduct under the
second prong. Although a single and dramatically cruel incident
can be sufficiently outrageous to sustain a showing under the
second prong, see Forcucci v. United States Fidelity and
Guarantee Company, 817 F.Supp. 195, 204 (D.Mass. 1993)
(dismissal  on summary judgment), there is a high threshold to
establish an actionable claim of intentional infliction of
emotional distress, particularly without an accompanying physical
injury. See Caputo v. Boston Edison Company, 924 F.2d at 13-14
(recognizing the court in Agis adopted elements of tort set forth
in   46 of Restatement (Second) of the Law of Torts).

[11]  Tibbetts'  telephone  conversation with plaintiff on
November 20, 1988, barely meets this standard.  Viewing the facts
in plaintiff's favor, unnecessarily coercing an individual to
reveal her HIV status and advising her that he discussed her AZT
medication with various nurses and doctors sufficiently
establishes a genuine issue of material fact.  The details of the
November 20, 1988 conversation are disputed and the necessary
outrageousness of Tibbetts is also disputed.  Reasonable minds
could differ in assessing Tibbetts' conduct under the second
prong. Summary judgment under this argument is therefore
inappropriate.



IV.  Count V

In count V plaintiff alleges liability against the town under
chapter 258, the Massachusetts Tort Claims Act, as a result of
the town's "failure to adopt adequate policies to protect the
privacy rights of persons with AIDS, and its failure to
adequately train and supervise defendant Tibbetts in the protec
tion of the privacy rights of persons with AIDS."  (Docket Entry
# 1, para. 42).  Counts one through four of plaintiff's complaint
allege violations of plaintiff's right to privacy and intentional
misconduct on the part of Tibbetts.

[12]  Defendants initially argue that this count falls outside
this court's supplemental jurisdiction.  Section 1367(a) of Title
28 of the United States Code provides this court with
"supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction
that they form part of the same case or controversy." [footnote
11]  See generally. Rosen v. Chang, 758 F.Supp. 799, 802-04
(D.R.I.1991) (discussing supplemental jurisdiction under 28
U.S.C. 1367). Under this statute, it is within this court's
discretion to decline to exercise its supplemental jurisdiction
under certain circumstances.  28  U.S.C. 1367).  This court finds
the two claims related inasmuch as they arise out of the same
series of events. Accordingly, this court rejects defendants'
argument.

[13]  Defendants additionally contend that plaintiff's
presentment letter under chapter 258 is defective because it
fails to advise the town of the specific negligent acts which
form the basis of liability under count V. Failure to present a
written demand within two years after the date of the injury or
presentation of a defective demand will preclude relief against
the town under chapter 258.12 Mass.Gen.L. ch. 258,  4; see
Dattoli v. Hale Hospital, 400 Mass. 175, 508 N.E.2d 100, 101-102
(1987); Fearon v. Commonwealth, 394 Mass. 50, 474 N.E.2d 162, 164-
165 (1985).  By letter dated April 10, 1990, plaintiff made a
demand for relief under section four of chapter 258, addressed to
the Chair of the Board of Selectmen of the Town of Plymouth.
(Docket Entry # 30, Ex. 7). The three page letter details the
events of November 20, 1988, and February 1, 1989. Plaintiff's
failure to identify particular acts as negligent is not fatal to
her claim for relief under chapter 258.  This court finds the
April 10, 1990 letter adequately notifies the town of plaintiff's
claim for purposes of section four.

Whether the town is liable under chapter 258, however, is
dependent upon the scope of the statute. Section two of chapter
258 provides that "[p]ublic employers shall be liable for injury
or death caused by the negligent or wrongful act or omission of
any public employee  [emphasis added] while acting within the
scope of his office or employment." Mass.Gen.L. ch. 258, 2.
Section 10(c) of chapter 258  however, expressly excludes from
the reach of chapter 258 "any claim arising out of an intentional
tort, including invasion of privacy."  Mass.Gen.Laws chapter 258,
10(c).  Thus, while section 10(c) does not bar claims sounding in
negligence or based on wrongful conduct of a public  employee,
"governmental  liability [does] not attach to 'any claim arising
out of an intentional tort.'"  Ortiz v. County of Hampden, 16
Mass.App. 138, 449 N.E.2d 1227,1228 (1983).  Thus, in the event
Tibbetts' actions are outside the reach of chapter 258 as
constituting intentional conduct, the town cannot be liable under
chapter 258. See generally Joseph W. Glannon Governmental Tort
Liability under the Massachusetts Tort Claims Act of 1978, 66
Mass.L.R. 7 (1981).

In Spring v. Geriatric Authority of Holyoke, 394 Mass. 274, 475
N.E.2d 727 (1985), the court upheld the dismissal of a
plaintiff's claims for invasion of privacy and intentional
infliction of emotional distress as against the public employer.
1d., 475 N.E.2d at 734. In a footnote, the court recognized that
the individual claims against the employees for intentional
invasion  of privacy  properly reached the jury. [footnote 13]
Id. at 735 & n. 10; accord Mellinger v. Town of West Springfield,
401 Mass. 188, 515 N.E.2d 584, 589 (1987);  see Lane v.
Commonwealth, 401 Mass. 549, 517 N.E.2d 1281, 1283 (1988) ("basic
provisions of [chapter 258] are not applicable to intentional
torts by State employees and 'normally a "public employer" cannot
be held liable for intentional tort.'") [footnote 14]

[14]  Plaintiff attempts to side step the section 10(c) exclusion
by only naming the town in a negligence count (count V) based, to
use plaintiff's words, "on the town's negligent failure to train
its officers in HIV and/or AIDS confidentiality matters." (Docket
Entry # 33).  Chapter 258 is designed to abrogate certain
instances of governmental immunity by creating an exclusive
remedy for negligent and/or wrongful acts committed by employees
of public employers. The express provisions of section two state
that liability is based upon the public employee's negligent or
wrongful conduct.  Plaintiff's allegations against the town are
based on Tibbetts' intentional infliction of emotional distress
and his interference with plaintiff's right to privacy.  Stated
otherwise, although the town is not named in counts one through
four, liability under chapter 258 is premised not on the
independent liability of the public employer but upon the acts of
its public employees. As such, the scope of chapter 258 does not
create a waiver of the town's immunity for such intentional
misconduct which is governed under the common law. [footnote 15]

Defendants correctly note, albeit in one sentence, that the town
cannot be held liable for Tibbetts' intentional acts. While the
indemnity provisions may apply, the town is not directly liable
under chapter 258 for "any claim," including a failure to train,
"arising out of an intentional tort" such as invasion of privacy.
Mass.Gen.L.  ch.  258 10(c). Plaintiff brings count V against the
town rather than against the negligent, unidentified town
employees involved in the alleged negligent training of Tibbetts.
Dismissal on a summary judgment motion of count V, as brought
under chapter 258, is therefore proper. [footnote 16]

It is important to recognize, however, that chapter 258 does not
displace the town's liability under section 1983.  See Joseph W.
Glannon Governmental Tort Liability under the Massachusetts Tort
Claims Act of 1978, 66 Mass.L.R. 7 (1981).  Plaintiff, however,
fails to include a count against the town under section 1983
based upon the town's failure to train or supervise. See Manarite
v. City of Springfield, 957 F.2d 953, 958 (1st Cir.), cert.
denied, - U.S. -,113 S.Ct. 113,121 L.Ed.2d 70 (1992) (discussing
standard to impose municipal liability under section 1983); Doe
v. City of Cleveland, 788 F.Supp. 979, 986 (N.D.Ohio 1991)
(discussing municipal liability in context of failure to train
regarding AIDS).



CONCLUSION

In accordance with the foregoing discussion, defendants' motion
for summary judgment (Docket Entry # 29) is ALLOWED as to count V
and otherwise DENIED.



1.   This court includes the allegedly hearsay statement of Anita
Magnificio in this section of this Order and discusses the
admissibility of this statement in the discussion section infra.

2.   Plaintiff is infected with the human immunodeficiency virus
("HIV) and, according to her unverified complaint, suffers From
the Acquired Immune Deficiency Syndrome ("AIDS").

3.   Retrovir is the prescription name for AZT.

4.   Absent direct testimony from Bosari, this statement
constitutes hearsay.  For purposes of this opinion, this court
does not rely on the truth of whether Magnificio's daughter threw
a stone at Bosari's vehicle.

5.   As previously noted, this court discusses this conversation
infra which is subject to the hearsay rule if offered for the
truth of the content of the conversation.

6.   See the preceding footnote.

7.   Abbott testified that he never received any training about
the privacy rights of individuals with HIV.  (Docket Entry # 33,
Ex. 5).

8.   Madsen's position in the Plymouth police department was not
identified in the excerpts of his deposition transcript provided
by defendants.  In the framing of questions, Madsen was referred
to as "Chief."  (Docket Entry # 30, Ex. 6).

In her opposition, plaintiff attached exhibits three and four but
made no reference to these exhibits in her memorandum.  Nor do
the excerpts of these deposition transcripts identify the
individual being deposed.  (Docket Entry # 33, Ex. 3 & 4).

9.   The Third Circuit considers a number of factors in balancing
the competing interests.  United States v. Westinghouse, 638 F.2d
570. 578 (3rd Cir. 1980).

10.  Upon further questioning, plaintiff rephrased this version
of events to a limited degree.

11.  Subdivision (a) of section 1367 allows pendent party
jurisdiction and "concludes with a provision that overrules"
Finley v. United States, 490 U.S. 545. 109 S.Ct. 2003, 104
L.Ed.2d 593 (1989). 28 U.S.C. 1367, Practice Commentary.

12.  Section one expressly defines "public employer" to include a
city or town.  Mass.Gen.L. ch. 258.  1.  Section two precludes
relief against the employee for his negligent or wrongful acts
committed while acting within the scope of his employment.
Mass.Gen.L. ch. 253,  2.

13.  Section 9A of chapter 258 provides indemnity to police
officers committing intentional torts within the scope of their
official duties,  Mass. Gen.L. ch. 258, 9A; see also Pinshaw v.
Metropolitan District Commission, 402 Mass. 687, 524 N.E.2d 1351
(1988) (discussing indemnification under section 9A at length).

14.  The court in Lane further noted that such claims against the
public employer are governed by common law principles.  Lane v.
Commonwealth, 517 N.E.2d at 1283.  Plaintiff, however, fails to
bring a common law claim against the town.

15.  Nor is this case analogous to the claim for negligent hiring
and supervision contained in Doe v. Town of Blandford, 402 Mass.
831, 525 N.E.2d 403 (1988).  In Blandford, the issue was whether
a substantial issue of material fact existed with regard to the
individual school committee members alleged negligent hiring and
supervision of a school guidance counselor. The court further
stated that the defendant towns' motions, for summary judgment
should have been allowed on different grounds.  JJ, 525 N.E.2d at
406. Consequently, the court never reached the pertinent issue in
the case at bar.

16.  Consequently, this is not the situation in which this court
must view the complaint under a Rule 12(b)(6) standard as was the
case in Ortiz v County of Hampden, 16 Mass.App. 138, 449 N.E.2d
1227 (1983).