Sabey, et al v. Butterfield, et al

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
JOSHUA SABEY, SARAH PERKINS, 	)
JOSHUA SABEY and SARAH PERKINS 	)
on behalf of C.S. 1 and C.S. 2, 	)
minors, 	)
)
Plaintiffs, 	)
)
v. 	)
) 	Civil Action
KATHERYN BUTTERFIELD, AARON 	) 	No. 23-cv-10957-PBS
GRIFFIN, CAROLYN KALVINEK, 	)
BONNIE ARUDA, ANTHONY 	)
SCICHILONE, RICHARD COUTURE, 	)
ELIAS MAKRIGIANIS, STEFANO VISCO, 	)
KEVIN O’CONNELL, and CANDICE 	)
GEMSKI, 	)
)
Defendants. 	)
______________________________ 	)
MEMORANDUM AND ORDER
March 13, 2026
Saris, J.
INTRODUCTION
At 	around 	1:00am 	on 	Saturday, 	July 	16, 	2022, 	two 	social
workers from the Massachusetts Department of Children and Families
(“DCF”) 	and 	police 	officers 	from 	the 	Waltham 	Police 	Department
arrived at the apartment of Joshua Sabey, Sarah Perkins, and their
young 	children 	C.S. 	1 	and 	C.S. 	2, 	who 	were 	three 	years 	old 	and
three months old, respectively. Their objective was to remove the
children 	to 	the 	temporary 	custody 	of 	DCF 	due 	to 	suspicions 	of
physical 	abuse 	to 	C.S. 	2, 	who 	was 	discovered 	to 	have 	two 	healing
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rib 	fractures 	during 	a 	visit 	to 	the 	Newton-Wellesley 	Hospital.
They did not have a warrant, a court order, or any paperwork.
After 	more 	than 	an 	hour 	and 	a 	half 	of 	expressing 	their
objections 	and 	facing 	a 	threat 	of 	force 	by 	the 	police, 	Sabey 	and
Perkins 	turned 	over 	C.S. 	1 	and 	C.S. 	2. 	A 	juvenile 	court 	granted
temporary 	custody 	of 	the 	children 	to 	DCF 	two 	days 	later. 	But 	the
allegations 	of 	child 	abuse 	never 	proved 	up, 	and 	several 	months
later, 	Sabey 	and 	Perkins 	were 	restored 	full 	custody 	of 	the
children.
Sabey and Perkins on behalf of themselves and C.S. 1 and C.S.
2 	(“Plaintiffs”) 	now 	bring 	various 	constitutional 	and 	state-law
claims 	regarding 	the 	removal 	of 	C.S. 	1 	and 	C.S. 	2. 	Plaintiffs’
claims are brought against ten state officials in their individual
capacities 	(“Defendants”). 	Five 	of 	the 	Defendants 	are 	DCF
employees 	(the 	“DCF 	Defendants”): 	Candice 	Gemski, 	Katheryn
Butterfield, 	Aaron 	Griffin, 	Bonnie 	Arruda, 	and 	Carolyn 	Kalvinek.
The 	other 	five 	Defendants 	are 	Waltham 	Police 	Department 	officers
(the 	“Police 	Defendants”): 	Kevin 	O’Connell 	(“Chief 	O’Connell”),
Richard 	Couture 	(“Lieutenant 	Couture”), 	Anthony 	Scichilone
(“Sergeant 	Scichilone”), 	Elias 	Makrigianis 	(“Officer
Makrigianis”), and Stefano Visco (“Officer Visco”).
Now 	before 	the 	Court 	are 	the 	parties’ 	cross-motions 	for
summary judgment. Although the Court finds that several Defendants
violated Plaintiffs’ constitutional rights, most of the Defendants
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are 	entitled 	to 	summary 	judgment 	under 	the 	doctrine 	of 	qualified
immunity. 	However, 	a 	genuine 	dispute 	of 	material 	fact 	precludes
granting summary judgment on the Fourth Amendment claim of unlawful
seizure 	asserted 	by 	C.S. 	1 	and 	C.S. 	2 	against 	Butterfield 	and
Gemski. The Court therefore DENIES Plaintiffs’ motion for summary
judgment 	(Dkt. 	205); 	ALLOWS 	Chief 	O’Connell’s 	motion 	for 	summary
judgment 	(Dkt. 	199); 	ALLOWS 	Lieutenant 	Couture, 	Sergeant
Scichilone, 	Officer 	Makrigianis, 	and 	Officer 	Visco’s 	motion 	for
summary 	judgment 	(Dkt. 	201); 	ALLOWS 	Griffin, 	Arruda, 	and
Kalvinek’s 	motion 	for 	summary 	judgment 	(Dkt. 	217); 	and 	ALLOWS 	IN
PART and DENIES IN PART Butterfield and Gemski’s motion for summary
judgment (Dkt. 206).
BACKGROUND
I. 	Factual Background
When 	evaluating 	a 	summary 	judgment 	motion, 	courts 	“construe
the 	relevant 	facts 	in 	the 	light 	most 	favorable 	to 	the 	non-moving
party.” Deaton v. Town of Barrington, 100 F.4th 348, 353 (1st Cir.
2024). 	The 	following 	facts 	are 	undisputed 	except 	where 	stated
otherwise.
A. 	The Hospital Visit
Early 	in 	the 	morning 	on 	Wednesday, 	July 	13, 	2022, 	Perkins
brought 	her 	three-month-old 	son, 	C.S. 	2, 	to 	the 	Newton-Wellesley
Hospital 	due 	to 	respiratory 	symptoms 	and 	a 	high 	fever. 	An 	x-ray
revealed 	that 	C.S. 	2 	had 	two 	rib 	fractures. 	When 	asked 	about 	the
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possible 	source 	of 	the 	fractures, 	Perkins 	stated 	that 	C.S. 	2 	had
fallen 	from 	a 	bed 	two 	weeks 	before, 	but 	that 	she 	had 	decided 	not
to 	seek 	medical 	care 	because 	C.S. 	2 	seemed 	uninjured 	and 	calmed
quickly. The hospital’s child protection team determined that C.S.
2’s 	rib 	fractures 	were 	not 	consistent 	with 	a 	fall 	from 	a 	bed.
Perkins initially declined to allow C.S. 2 to receive a brain MRI
recommended by the hospital’s child protection team but ultimately
allowed the MRI to be conducted.
After 	learning 	of 	C.S. 	2’s 	injuries, 	Perkins 	asked 	Sabey 	to
bring the couple’s three-year-old son, C.S. 1, to the pediatrician
to 	evaluate 	C.S. 	1 	for 	signs 	of 	abuse. 	Sabey 	did 	so, 	and 	the
pediatrician discovered no evidence of abuse with respect to C.S.
1.
B. 	The DCF Investigation
Later that day (Wednesday), Griffin was working as an on-call
DCF 	supervisor 	overseeing 	DCF’s 	emergency 	response 	workers. 	At
5:35pm, Griffin received an email attaching a 51A Report.1 The 51A
1 	DCF’s 	procedures 	for 	investigating 	suspected 	child 	abuse 	are
governed, 	in 	large 	part, 	by 	Massachusetts 	statute. 	As 	relevant
here, when specified persons -- including certain medical workers
-- “have reasonable cause to believe that a child is . . . suffering
physical 	or 	emotional 	injury 	resulting 	from 	abuse 	inflicted 	upon
them which causes harm or substantial risk of harm to the child’s
health or welfare,” Mass. Gen. Laws ch. 119, § 51A(a) (2022), those
persons 	are 	statutorily 	required 	to 	send 	DCF 	a 	written 	“51A
[R]eport,” 	Wilmot 	v. 	Tracey, 	938 	F. 	Supp. 	2d 	116, 	129 	(D. 	Mass.
2013). 	The 	51A 	Report 	must 	include, 	inter 	alia, 	information
regarding 	“the 	nature 	and 	extent 	of 	the 	child’s 	injuries, 	abuse,
maltreatment or neglect.” Mass. Gen. Laws ch. 119, § 51A(d).
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Report 	included 	a 	summary 	from 	a 	social 	worker 	at 	the 	Newton-
Wellesley Hospital describing the above information regarding C.S.
2’s 	hospital 	visit. 	It 	also 	stated 	that 	when 	discussing 	C.S. 	2’s
rib 	fractures 	with 	hospital 	staff, 	Perkins’ 	“affect” 	was 	“very
flat,” 	and 	that 	when 	informed 	that 	hospital 	staff 	were 	concerned
about 	the 	possibility 	that 	nonaccidental 	trauma 	had 	occurred 	and
that a report was being filed, Perkins “rolled her eyes” and “had
a 	lot 	of 	questions 	about 	when 	[DCF] 	would 	call 	her.” 	Dkt. 	209-24
at 3.
After 	reviewing 	the 	51A 	Report, 	Griffin 	initiated 	an
investigation 	which 	eventually 	resulted 	in 	the 	creation 	of 	a 	51B
Report.2 	Pursuant 	to 	DCF’s 	investigation, 	at 	around 	8:00pm 	that
same Wednesday, DCF emergency response workers Axel Rivera and Ana
2 Upon receiving a 51A Report, DCF must “investigate the suspected
child abuse or neglect.” Mass. Gen. Laws ch. 119, § 51B(a). DCF’s
investigation typically includes a “home visit,” a “determination
of the nature, extent and cause or causes of the injuries” to the
child, 	a 	determination 	of 	the 	“identity 	of 	the 	person 	or 	persons
responsible 	therefore,” 	an 	inquiry 	into 	the 	conditions 	of 	“other
children in the same household,” and an “evaluation of the parents
and 	the 	home 	environment.” 	Id. 	§ 	51B(b). 	During 	and 	after 	its
investigation, DCF develops a written “51B Report” which evaluates
the child’s home environment, assesses the extent of any risk posed
to the child, and determines “whether the suspected child abuse or
neglect is substantiated.” Id. § 51B(a)-(b). If DCF “has reasonable
cause to believe” that the child “is in immediate danger from abuse
or neglect,” DCF “shall take [the] child into immediate temporary
custody” 	where 	“necessary 	to 	protect 	the 	child.” 	Id. 	§ 	51B(c).
After 	taking 	emergency 	temporary 	custody 	of 	a 	child, 	DCF
supplements its 51B Report with the “reasons for such removal” and
“file[s] 	a 	care 	and 	protection 	petition 	. 	. 	. 	on 	the 	next 	court
day.” Id.
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Piedade 	visited 	the 	Newton-Wellesley 	Hospital, 	where 	C.S. 	2
continued to receive treatment. At the hospital, Rivera and Piedade
were 	informed 	by 	medical 	staff 	that 	C.S. 	2’s 	rib 	fractures 	were
estimated to be between ten days and six weeks old and that there
were signs of healing. Doctors further informed Rivera and Piedade
that 	the 	fractures 	were 	not 	consistent 	with 	falling 	off 	a 	bed 	or
with 	injuries 	sustained 	during 	childbirth; 	that 	diagnostic 	tests
had 	ruled 	out 	underlying 	medical 	conditions 	as 	potential 	causes;
and 	that 	the 	injuries 	appeared 	consistent 	with 	C.S. 	2 	being
squeezed 	too 	tight 	or 	sustaining 	blunt 	force 	trauma. 	Rivera 	and
Piedade 	were 	also 	told 	that 	Perkins 	had 	a 	“flat 	affect” 	and 	had
initially 	refused 	an 	MRI. 	Dkt. 	209-23 	at 	2. 	Additionally, 	Rivera
and Piedade were informed that C.S. 2’s pediatrician did “not have
any 	concerns” 	and 	that 	Perkins 	and 	Sabey 	“appeared 	to 	be 	sober
throughout the day.” Id.
Rivera and Piedade then entered C.S. 2’s hospital room. When
they entered, Sabey “was holding [C.S. 2] and soothing him,” while
Perkins “was playing with [C.S. 1].” Id. C.S. 2 “was sleeping and
appeared 	to 	be 	comfortable 	in 	[Sabey’s] 	arms,” 	and 	“Piedade 	did
not view any visible marks and bruises” on C.S. 2. Id.
When 	asked 	about 	C.S. 	2’s 	injury, 	Sabey 	told 	Piedade 	that
C.S. 2 had recently fallen off a bed, that Perkins had a difficult
childbirth, and that C.S. 1 could sometimes be rough with C.S. 2,
including 	“head-butt[ing]” 	C.S. 	2 	in 	one 	instance 	(though 	Sabey
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denied 	that 	C.S. 	1 	was 	ever 	left 	alone 	with 	C.S. 	2). 	Id. 	at 	8.
Perkins 	also 	stated 	that 	C.S. 	2 	had 	gotten 	stuck 	in 	the 	railings
or 	slats 	of 	C.S. 	1’s 	bed 	two 	weeks 	prior. 	Sabey 	and 	Perkins 	did
not 	bring 	C.S. 	2 	to 	a 	doctor 	after 	that 	incident 	because 	C.S. 	2
was smiling and did not appear to be in pain.
Sabey 	denied 	any 	domestic 	violence 	and 	stated 	that 	he 	did
“not 	believe 	in 	corporal 	punishment.” 	Id. 	at 	3. 	Similarly, 	when
speaking 	to 	Rivera, 	Perkins 	denied 	any 	substance 	use, 	domestic
violence, or prior interactions with the police. Rivera and Piedade
were 	told 	that 	Sabey 	and 	Perkins 	were 	the 	primary 	caregivers 	for
C.S. 1 and C.S. 2, that the children’s grandparents lived outside
of Massachusetts, and that the family was planning to move to Idaho
in two weeks.
Piedade also interviewed C.S. 1 at the hospital. C.S. 1 said
that sometimes C.S. 1 hurt C.S. 2 and made him cry, but that when
C.S. 2 cried, Sabey and Perkins would “console him by feeding him
and 	then 	he 	is 	fine.” 	Id. 	at 	4. 	C.S. 	1 	stated 	that 	everyone 	got
along at home. He also denied any safety concerns at home.
After 	updating 	Griffin 	on 	the 	investigation, 	Rivera 	and
Piedade inspected Plaintiffs’ residence. They determined that C.S.
1’s crib had “appropriate railings” and C.S. 2 had a bassinet. Id.
They further noted that the “fridge had sufficient food” and “did
not observe any concerns with the home condition.” Id.
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Following 	the 	home 	visit, 	Rivera 	also 	noted 	the 	following
about 	C.S. 	2’s 	skeletal 	exam: 	“The 	impression 	is 	healing
fractures . . . . Non accidental trauma is considered.” Id. at 4-
5. He also wrote that “no other fractures [were] identified.” Id.
at 5.
The 	next 	morning, 	Thursday, 	July 	14, 	2022, 	Griffin, 	Rivera,
and 	Piedade 	met 	and 	decided 	to 	continue 	gathering 	information.
Rivera called C.S. 1’s and C.S. 2’s pediatricians. The pediatrician
who 	examined 	C.S. 	1 	the 	day 	before 	reported 	that 	there 	were 	“no
injuries” 	to 	C.S. 	1 	and 	“no 	indications 	of 	anything 	concerning.”
Id. C.S. 1 had once been brought to the emergency room for second-
degree 	burns 	on 	his 	stomach, 	but 	his 	parents 	had 	“brought 	him 	in
appropriately 	and 	the 	child 	protection 	team 	was 	aware 	but 	no 	51A
[Report] was filed.” Id. C.S. 2’s pediatrician reported no concerns
about C.S. 2’s wellbeing, was “surprised” about the rib fractures,
and 	stated 	that 	“there 	were 	no 	presented 	concerns” 	at 	C.S. 	2’s
monthly examinations. Id.
A social worker at the Newton-Wellesley Hospital told Rivera
that 	she 	and 	the 	hospital 	continued 	to 	have 	concerns, 	including
because 	Perkins 	had 	a 	flat 	affect 	and 	did 	not 	ask 	many 	follow-up
questions 	about 	C.S. 	2’s 	injuries. 	The 	social 	worker 	sent 	Rivera
a medical addendum authored by an attending physician, which said
that 	C.S. 	2’s 	injuries 	had 	high 	specificity 	for 	nonaccidental
trauma and were inconsistent with a birth injury or fall and that
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Perkins did not want imaging or bloodwork performed or to stay at
the hospital overnight.
C.S. 	2 	was 	discharged 	from 	the 	hospital 	that 	day. 	The 	next
day, 	Friday, 	July 	15, 	2022, 	Rivera 	spoke 	to 	a 	doctor 	from
Massachusetts 	General 	Hospital’s 	child 	protection 	team, 	who 	told
him that “there [wa]s no medical indication on the cause of [C.S.
2’s] 	injury” 	but 	that 	“the 	tests 	indicate[d] 	that 	it 	was
nonaccidental.” Id. at 7. The doctor further stated that “it [wa]s
rare 	for 	a 	child 	to 	have 	these 	rib 	fractures,” 	which 	were
inconsistent 	with 	falling 	off 	a 	bed. 	Id. 	Rivera 	asked 	the 	doctor
whether the injury could have been caused by C.S. 2’s being “caught
between barricades” (i.e., the slats of C.S. 1’s bed); the doctor
responded that “she would not be sure” but that explanation “would
still be hard to believe.” Id.
The 	above 	information 	from 	DCF’s 	investigation 	was
memorialized in a 51B Report. Plaintiffs dispute the truth of some
of the contents of the 51A and 51B Reports but do not dispute that
the reports contained the above information.
C. 	DCF’s Decision to Take Emergency Temporary Custody
At 	around 	4:15pm 	on 	Friday, 	July 	15, 	2022, 	Butterfield 	(an
Area 	Program 	Manager 	for 	DCF) 	was 	called 	by 	a 	DCF 	attorney 	and
first 	informed 	about 	the 	investigation. 	The 	DCF 	attorney 	told
Butterfield 	about 	C.S. 	2’s 	rib 	fractures; 	that 	C.S. 	2’s 	parents’
explanations 	were 	inconsistent 	with 	medical 	expertise; 	that
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medical professionals had concerns that the injuries may have been
intentionally inflicted; and that C.S. 1 had previously sustained
burns to his stomach. Butterfield was concerned that DCF’s safety
plan 	for 	the 	upcoming 	weekend 	was 	inadequate 	because 	it 	allowed
both parents to remain at home with C.S. 2 without another adult.
Butterfield 	decided 	to 	send 	a 	DCF 	response 	worker 	to 	visit
Plaintiffs’ residence again immediately.
In 	response 	to 	Butterfield’s 	directive, 	Rivera 	visited
Plaintiffs’ home unannounced at 5:15pm. When Rivera arrived, C.S.
1 	“was 	walking 	around 	and 	was 	smiling,” 	and 	C.S. 	2 	“looked
presentable” and was being held by his grandmother. Id. The family
and 	Rivera 	agreed 	that 	DCF 	would 	conduct 	the 	next 	home 	visit 	on
Monday at noon. Rivera recorded this information in the 51B Report.
Butterfield 	reviewed 	the 	51A 	and 	51B 	Reports 	and 	again
discussed her concerns with DCF attorneys. She then called Gemski
(the 	Regional 	Director 	for 	DCF) 	and 	informed 	her 	about 	the
investigation. 	Butterfield 	told 	Gemski 	about 	the 	51A 	and 	51B
Reports 	and 	Butterfield’s 	conversations 	with 	DCF 	attorneys; 	that
medical 	staff 	had 	found 	C.S. 	2’s 	injuries 	consistent 	with
nonaccidental blunt force trauma and inconsistent with falling off
a 	bed; 	that 	Perkins 	had 	a 	flat 	affect 	at 	the 	hospital 	and 	had
initially refused an MRI for C.S. 2; that DCF attorneys had worries
about the weekend safety plan; that Butterfield had concerns based
on the ages of C.S. 1 and C.S. 2 and their inability to seek help;
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and that Butterfield believed both children were at imminent risk
of 	harm. 	After 	Gemski 	was 	filled 	in, 	she 	and 	Butterfield 	jointly
decided 	that 	DCF 	should 	seek 	emergency 	temporary 	custody 	of 	the
children and remove them from their home. They did not seek a court
order.
At 	around 	8:00pm, 	Butterfield 	initiated 	the 	removal 	process
by 	calling 	DCF’s 	emergency 	response 	worker 	hotline. 	Griffin, 	who
had not been involved in the investigation since his meeting with
Rivera 	and 	Piedade 	on 	Thursday 	morning, 	was 	again 	working 	as 	the
on-call emergency response supervisor. Butterfield told Griffin of
the decision to remove the children. Butterfield and Gemski had no
further involvement in the removal process.
An 	hour 	later, 	at 	approximately 	9:07pm, 	DCF 	emergency
response workers Arruda and Kalvinek were contacted and instructed
to 	conduct 	the 	emergency 	removal. 	Arruda, 	Kalvinek, 	and 	Griffin
discussed that C.S. 2 had rib fractures that doctors believed were
nonaccidental 	and 	that 	DCF 	management 	had 	decided 	the 	children
needed to be removed.
D. 	Arrival at Plaintiffs’ Residence
After midnight, in the early hours of Saturday, July 16, 2022,
Arruda 	and 	Kalvinek 	went 	to 	the 	Waltham 	Police 	Department 	to
request 	police 	assistance 	with 	the 	removal 	of 	C.S. 	1 	and 	C.S. 	2,
as 	is 	DCF’s 	practice. 	The 	Waltham 	Police 	Department 	dispatched
Officers 	Makrigianis 	and 	Visco 	to 	assist. 	Arruda 	and 	Kalvinek
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informed 	Officer 	Makrigianis 	that 	C.S. 	2 	had 	sustained 	an
unexplained rib fracture that was deemed nonaccidental by medical
providers; 	Officer 	Makrigianis 	relayed 	to 	Officer 	Visco 	that 	the
removal 	was 	due 	to 	an 	unexplained 	broken 	rib. 	At 	around 	1:00am,
Arruda, 	Kalvinek, 	and 	Officers 	Makrigianis 	and 	Visco 	arrived 	at
Plaintiffs’ residence in Waltham.
Plaintiffs lived in the ground-floor apartment of a two-unit
building. 	The 	other 	apartment, 	which 	was 	separate 	and 	distinct
from Plaintiffs’ apartment, was on the second floor. The building
had three means of ingress and egress: a back door leading directly
to the second-floor apartment, another back door leading directly
to 	the 	kitchen 	of 	Plaintiffs’ 	apartment 	on 	the 	ground 	floor, 	and
a 	front 	exterior 	door 	facing 	the 	street. 	The 	front 	exterior 	door
had no labeling listing the apartments, signage prohibiting entry,
or buzzers to alert residents of visitors’ presence. Nor was there
any 	button 	inside 	Plaintiffs’ 	apartment 	to 	unlock 	the 	front
exterior door. Plaintiffs typically locked the front exterior door
at night, but the door was not always locked.
Immediately 	inside 	the 	front 	exterior 	door 	was 	an 	area 	that
the 	parties 	refer 	to 	as 	a 	“breezeway.” 	On 	the 	left 	side 	of 	the
breezeway 	was 	an 	interior 	door 	leading 	to 	the 	living 	room 	of
Plaintiffs’ 	apartment. 	That 	interior 	door 	had 	its 	own 	lock 	and
chain, and Plaintiffs locked it every night. On the right side of
the 	breezeway 	was 	a 	staircase 	leading 	to 	the 	second-floor
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apartment. 	The 	breezeway 	was 	thus 	accessible 	to 	both 	sets 	of
tenants. The following is a photograph of the view of the breezeway
(and 	Plaintiffs’ 	closed 	apartment 	door) 	through 	the 	open 	front
exterior door:
Dkt. 201-8 at 2.
The 	lease 	for 	Plaintiffs’ 	apartment 	provided 	that 	“[n]o
receptacles, 	vehicles, 	baby 	carriages 	or 	other 	articles 	or
obstructions shall be placed in the halls or other common areas or
passageways,” 	Dkt. 	201-9 	at 	24, 	and 	required 	passageways 	to 	be
used 	only 	for 	entry 	and 	exit. 	Plaintiffs 	nonetheless 	used 	the
breezeway 	to 	store 	items 	such 	as 	a 	stroller 	and 	a 	car 	seat. 	The
tenants 	of 	the 	upstairs 	unit 	rarely, 	if 	ever, 	entered 	or 	exited
through 	the 	breezeway, 	instead 	preferring 	to 	access 	their
apartment from the back door.
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When 	Arruda, 	Kalvinek, 	and 	Officers 	Makrigianis 	and 	Visco
arrived 	at 	the 	building 	at 	around 	1:00am 	on 	Saturday, 	July 	16,
2022, the front exterior door was closed but unlocked. They entered
the 	breezeway, 	and 	Officer 	Makrigianis 	knocked 	on 	the 	interior
door to Plaintiffs’ apartment. They did not have a warrant, a court
order, or any paperwork from DCF.
E. 	Removal of C.S. 1 and C.S. 2
Upon 	hearing 	Officer 	Makrigianis’s 	knock, 	Plaintiffs
partially opened their apartment door. They refused to fully open
the door, allow anyone to enter the apartment, or surrender custody
of 	C.S. 	1 	and 	C.S. 	2. 	After 	learning 	that 	the 	DCF 	workers 	and
police 	officers 	did 	not 	have 	a 	warrant, 	Plaintiffs 	asked 	them 	to
leave.
Following 	these 	initial 	conversations, 	Officer 	Makrigianis
contacted 	Sergeant 	Scichilone, 	who 	came 	to 	the 	scene. 	Sergeant
Scichilone was told about C.S. 2’s rib fracture and that Sabey and
Perkins were refusing to allow DCF to remove their children. Sabey
asked Sergeant Scichilone if he had a warrant, and, after Sergeant
Scichilone responded that he did not, Sabey told him to leave.
Sergeant 	Scichilone 	then 	called 	his 	supervising 	officer,
Lieutenant 	Couture, 	at 	approximately 	1:13am 	to 	seek 	further
guidance. Sergeant Scichilone told Lieutenant Couture that C.S. 2
had an unexplained broken bone and that Sabey and Perkins were not
allowing the DCF workers or police officers to enter the apartment.
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He 	further 	explained 	that 	DCF 	had 	told 	the 	officers 	that 	DCF 	had
an 	emergency 	custody 	order 	to 	remove 	the 	children 	but 	that 	there
was no paperwork. Lieutenant Couture asked Sergeant Scichilone to
arrange 	for 	Plaintiffs’ 	attorney, 	Paul 	Moraski 	(“Attorney
Moraski”), to call Lieutenant Couture to discuss the situation.
Meanwhile, 	Kalvinek 	called 	Griffin 	and 	informed 	him 	that
Sabey 	and 	Perkins 	were 	not 	allowing 	entry. 	Griffin 	then 	spoke 	to
Lieutenant Couture on the phone. Griffin explained that the removal
decision was made by Gemski, who was “way up high on [DCF’s] chain
of 	command,” 	“way 	above 	[his] 	paygrade,” 	and 	“like 	[his] 	boss’s
boss’s 	boss.” 	Dkt. 	210-44 	at 	1:25-1:34, 	2:41-3:05. 	Lieutenant
Couture asked Griffin if other police departments had forced entry
into 	a 	house 	while 	accompanying 	DCF 	for 	a 	removal, 	and 	Griffin
confirmed that he had “seen that.” Id. at 2:00-2:07. Griffin also
said that in some instances, if police tell parents that they will
force 	entry, 	the 	parents 	“might 	decide 	to 	open 	the 	door 	and
surrender the child.” Id. at 2:20-2:33. Additionally, Griffin said
that he had seen other police departments “take[] down the door,”
including without any paperwork. Id. at 2:36-2:42.
At around 1:25am, Lieutenant Couture called Chief O’Connell.
He told Chief O’Connell that a senior DCF official had decided to
remove C.S. 1 and C.S. 2; that C.S. 2 had a broken bone that could
not 	have 	been 	caused 	by 	a 	fall; 	that 	Sabey 	and 	Perkins 	were
refusing to open the door; and that discussions were ongoing. Chief
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O’Connell 	directed 	Lieutenant 	Couture 	to 	“continue 	talking 	for 	a
while” 	and 	to 	“say 	we 	will 	have 	to 	eventually 	force 	the 	door.”
Dkt. 	210-47 	at 	1:48-2:10. 	Lieutenant 	Couture 	explained 	that 	the
officers could not “just walk away” because DCF had told them that
“basically 	it’s 	an 	exigent 	circumstance 	and 	the 	kids 	are 	in
danger.” Id. at 2:39-2:47. When Chief O’Connell asked if there was
any 	“immediate 	danger,” 	Lieutenant 	Couture 	replied: 	“They 	don’t
know, that’s why they got the order . . . . They don’t know what’s
going on in there.” Id. at 3:20-3:33.
Chief O’Connell further stated that he did not “want to rush”
the 	situation 	and 	that 	“a 	peaceful 	resolution 	. 	. 	. 	would 	be 	the
best route instead of kicking the door in.” Id. at 1:54-1:56, 5:08-
5:12. 	He 	suggested 	calling 	the 	Northeast 	Massachusetts 	Law
Enforcement 	Counsel 	(“NEMLEC”), 	a 	consortium 	of 	police 	personnel
from different agencies. The parties dispute whether NEMLEC would
have 	tried 	to 	facilitate 	peaceful 	negotiations 	before 	forcing
entry 	with 	a 	SWAT 	team. 	When 	Lieutenant 	Couture 	asked 	Chief
O’Connell 	whether 	NEMLEC 	would 	“bring 	their 	team 	out, 	like 	the
SWAT” 	team, 	Chief 	O’Connell 	replied 	that 	he 	did 	not 	“know 	what
they do” but that typically, “before [NEMLEC] breach[es] the door,
they’d ask us.” Id. at 5:25-5:42.
After speaking with Chief O’Connell, Lieutenant Couture spoke
on the phone with Attorney Moraski, who had already discussed the
evolving situation with Sabey and Perkins. Lieutenant Couture told
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Attorney Moraski that DCF was effectuating an “emergency removal”
with 	“no 	particular 	paperwork.” 	Dkt. 	210-52 	at 	1:20-1:28. 	He
further 	relayed 	that 	Chief 	O’Connell 	had 	said 	that 	the 	officers
“may 	have 	to 	breach 	the 	door” 	after 	“talk[ing] 	to 	[Sabey 	and
Perkins] a little more.” Id. at 1:39-1:55. Attorney Moraski asked
Lieutenant Couture if Perkins would be allowed to breastfeed C.S.
2 before the removal. When Lieutenant Couture mentioned that Chief
O’Connell 	instructed 	him 	to 	call 	NEMLEC 	to 	address 	the 	“exigent
circumstance,” 	Attorney 	Moraski 	responded 	that 	he 	was 	familiar
with NEMLEC and that he would advise Sabey and Perkins to “let you
guys in and remove the child.” Id. at 2:31-3:02.
Lieutenant 	Couture 	then 	called 	Chief 	O’Connell 	again 	at
around 	1:56am. 	He 	summarized 	his 	conversation 	with 	Attorney
Moraski, noting that he had relayed Chief O’Connell’s instruction
to bring in the “crisis negotiators” who “usually bring a team to
breach a door.” Dkt. 210-57 at 0:56-1:06.
Meanwhile, 	Attorney 	Moraski 	called 	Sabey 	and 	Perkins 	after
his 	conversation 	with 	Lieutenant 	Couture. 	He 	advised 	Sabey 	and
Perkins to cooperate and surrender custody of C.S. 1 and C.S. 2 to
DCF. He further stated that if Sabey and Perkins refused to do so,
the police would breach the apartment door and forcibly enter.
Sabey 	then 	asked 	the 	officers 	present 	at 	Plaintiffs’ 	home
whether 	they 	were 	ready 	to 	breach 	the 	door, 	and 	they 	responded
that they were. Similarly, Kalvinek had told Perkins earlier that
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the DCF workers and police officers would not leave until they had
C.S. 1 and C.S. 2 in custody and that if Sabey and Perkins did not
hand 	over 	the 	children 	and 	open 	the 	door, 	then 	there 	would 	be
consequences.
After more than an hour and a half had elapsed since the DCF
workers 	and 	police 	officers 	arrived 	at 	the 	residence, 	Sabey 	and
Perkins 	surrendered 	C.S. 	1 	and 	C.S. 	2, 	who 	were 	placed 	in 	a 	DCF
vehicle. 	Sabey 	and 	Perkins 	claim 	that 	they 	turned 	over 	their
children due to threats of forcible entry. Defendants assert that
Plaintiffs 	surrendered 	the 	children 	voluntarily 	on 	the 	advice 	of
Attorney Moraski.
Other 	than 	Kalvinek, 	who 	briefly 	entered 	Plaintiffs’
apartment 	to 	help 	retrieve 	a 	bag 	that 	Perkins 	had 	packed 	for 	the
children to take with them, no Defendant ever crossed the threshold
of 	the 	interior 	door 	into 	Plaintiffs’ 	apartment. 	Rather, 	Arruda,
Sergeant 	Scichilone, 	and 	Officers 	Makrigianis 	and 	Visco 	remained
in 	the 	breezeway 	or 	outside 	the 	exterior 	front 	door 	for 	the
entirety of the encounter. No other Defendant was ever physically
present at the premises.
F. 	Aftermath
In the late afternoon of Saturday, July 16, 2022, C.S. 1 and
C.S. 2 were placed with their grandparents pending juvenile court
proceedings. On Monday, July 18, 2022, the juvenile court granted
DCF emergency temporary custody of the children. Sabey and Perkins
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were 	given 	visiting 	privileges 	shortly 	thereafter. 	Following
further 	proceedings, 	Sabey 	and 	Perkins 	were 	awarded 	conditional
custody 	in 	August 	2022 	and 	full 	custody 	in 	November 	2022, 	after
which 	they 	and 	their 	children 	moved 	to 	Idaho. 	Sabey 	and 	Perkins
deny that they ever abused their children, and the claims of child
abuse never proved up.
II. 	Procedural History
On 	May 	2, 	2023, 	Plaintiffs 	filed 	suit 	against 	Butterfield,
Griffin, 	Kalvinek, 	Arruda, 	Lieutenant 	Couture, 	Sergeant
Scichilone, 	Officer 	Makrigianis, 	Officer 	Visco, 	and 	the 	City 	of
Waltham. 	Plaintiffs 	brought 	five 	federal 	claims 	and 	three 	state-
law 	claims 	alleging 	various 	violations 	related 	to 	the 	alleged
search 	of 	their 	residence 	and 	removal 	of 	C.S. 	1 	and 	C.S. 	2. 	On
March 	14, 	2024, 	this 	Court 	dismissed 	some 	of 	Plaintiffs’ 	claims,
including 	both 	claims 	against 	the 	City 	of 	Waltham, 	but 	allowed
other claims to proceed. See Sabey v. Butterfield, 720 F. Supp. 3d
82, 93 (D. Mass. 2024).
Plaintiffs 	filed 	an 	amended 	complaint 	on 	August 	6, 	2024,
adding 	Gemski 	and 	Chief 	O’Connell 	as 	defendants. 	The 	amended
complaint brings the following claims: (1) a Fourth Amendment claim
asserted 	by 	Plaintiffs 	against 	Defendants 	for 	an 	alleged
unreasonable 	search 	of 	Plaintiffs’ 	home 	and 	curtilage 	(Count 	I);
(2) a Fourth Amendment claim asserted by C.S. 1 and C.S. 2, through
their 	parents, 	against 	Defendants 	for 	the 	alleged 	unreasonable
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seizure 	of 	the 	children 	(Count 	II); 	(3) 	a 	Fourteenth 	Amendment
claim 	asserted 	by 	Sabey 	and 	Perkins 	against 	Defendants 	for 	an
alleged 	deprivation 	of 	their 	parental 	rights 	without 	due 	process
(Count III); (4) a Massachusetts constitutional claim asserted by
Plaintiffs 	against 	Defendants 	for 	an 	alleged 	unreasonable 	search
of Plaintiffs’ home and curtilage (Count VI); (5) a Massachusetts
constitutional claim asserted by C.S. 1 and C.S. 2, through their
parents, 	for 	the 	alleged 	unreasonable 	seizure 	of 	the 	children
(Count VII); and (6) a Massachusetts Privacy Act claim asserted by
Plaintiffs against Gemski and the Police Defendants for an alleged
interference with Plaintiffs’ rights to privacy (Count VIII).3 Now
before 	the 	Court 	are 	the 	parties’ 	cross-motions 	for 	summary
judgment.
LEGAL STANDARD
Summary 	judgment 	is 	appropriate 	when 	“there 	is 	no 	genuine
dispute 	as 	to 	any 	material 	fact 	and 	the 	movant 	is 	entitled 	to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is
genuine 	where 	the 	evidence 	“is 	such 	that 	a 	reasonable 	jury 	could
resolve 	the 	point 	in 	the 	favor 	of 	the 	non-moving 	party.”
Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 87 (1st Cir.
3 The Court previously dismissed Plaintiffs’ Massachusetts Privacy
Act claim against the DCF Defendants other than Gemski. See Sabey,
720 	F. 	Supp. 	3d 	at 	92-93. 	The 	amended 	complaint 	also 	lists 	two
counts 	against 	the 	City 	of 	Waltham 	(Counts 	IV 	and 	V); 	Plaintiffs
acknowledge 	these 	claims 	were 	already 	dismissed 	but 	expressly
“reserve the right to appeal” their dismissal. Dkt. 113 ¶ 21a.
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2018) 	(quoting 	Cherkaoui 	v. 	City 	of 	Quincy, 	877 	F.3d 	14, 	23-24
(1st Cir. 2017)). “A fact is material” if “it has [the] potential
of changing a case’s outcome.” Doe v. Trs. of Bos. Coll., 892 F.3d
67, 79 (1st Cir. 2018).
“The court must view the facts in the light most favorable to
the 	non-moving 	party 	and 	draw 	all 	reasonable 	inferences 	in 	[its]
favor.” 	Carlson 	v. 	Univ. 	of 	New 	Eng., 	899 	F.3d 	36, 	43 	(1st 	Cir.
2018). Where “parties cross-move for summary judgment, ‘the court
must [examine] each motion separately, drawing inferences against
each movant in turn.’” Vazquez-Velazquez v. P.R. Highways & Transp.
Auth., 	73 	F.4th 	44, 	51 	(1st 	Cir. 	2023) 	(alteration 	in 	original)
(quoting 	Viscito 	v. 	Nat’l 	Plan. 	Corp., 	34 	F.4th 	78, 	83 	(1st 	Cir.
2022)).
DISCUSSION
The Court addresses each of the six remaining claims in turn,
beginning 	with 	Plaintiffs’ 	three 	federal 	claims 	and 	then 	turning
to their three state-law claims.
I. 	Federal Claims
Before reaching the merits of Plaintiffs’ federal claims, the
Court must adjudicate two threshold issues. First, Chief O’Connell
contends 	that 	the 	Court 	lacks 	subject 	matter 	jurisdiction 	to
resolve 	Count 	III 	by 	operation 	of 	the 	Rooker-Feldman 	doctrine,
which 	“divest[s] 	lower 	federal 	courts 	of 	jurisdiction 	to 	hear
certain 	cases 	brought 	by 	parties 	who 	have 	lost 	in 	state 	court.”
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Klimowicz 	v. 	Deutsche 	Bank 	Nat’l 	Tr. 	Co., 	907 	F.3d 	61, 	64 	(1st
Cir. 	2018). 	Chief 	O’Connell 	argues 	that 	Count 	III 	attempts 	to
relitigate arguments Plaintiffs purportedly already lost when the
juvenile 	court 	awarded 	DCF 	temporary 	custody 	of 	Plaintiffs’
children 	in 	July 	and 	August 	2022. 	This 	argument 	fails. 	The
Rooker-Feldman 	doctrine 	applies 	only 	where 	a 	plaintiff
“impermissibly 	invite[s] 	the 	district 	court 	to 	review 	and 	reject
one 	or 	more 	final 	state-court 	judgments.” 	Id. 	at 	66; 	see, 	e.g.,
id. (applying the Rooker-Feldman doctrine to a plaintiff’s bid to
“vacate 	and 	set 	aside 	the 	Land 	Court’s 	final 	judgment 	of
foreclosure” 	and 	“enjoin[] 	enforcement 	of 	the 	Housing 	Court’s
order 	granting 	[a 	bank] 	possession 	of 	the 	[plaintiff’s]
property”). Here, Plaintiffs do not -- and indeed, cannot, because
they 	now 	have 	full 	custody 	of 	their 	children 	-- 	seek 	to 	undo 	the
juvenile 	court’s 	award 	of 	temporary 	custody 	of 	C.S. 	1 	and 	C.S. 	2
to 	DCF; 	rather, 	Plaintiffs 	seek 	damages 	based 	on 	alleged
constitutional 	violations 	during 	the 	initial 	removal 	of 	the
children.
Next, 	Butterfield 	and 	Gemski 	claim 	that 	they 	have 	absolute
immunity from Counts II and III. They contend that their decision
to 	remove 	C.S. 	1 	and 	C.S. 	2 	was 	akin 	to 	the 	“quasi-prosecutorial
function[] [of] initiating court proceedings.” Dkt. 207 at 25. The
Court 	rejects 	this 	argument. 	The 	removal 	decision 	was 	more
“administrative” than prosecutorial. Penate v. Kaczmarek, 928 F.3d
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128, 136 (1st Cir. 2019) (quoting Buckley v. Fitzsimmons, 509 U.S.
259, 	278 	(1993)). 	Thus, 	in 	making 	that 	decision, 	Butterfield 	and
Gemski 	were 	“‘in 	no 	different 	position[s] 	than 	other 	executive
officials,’ 	such 	as 	police,” 	for 	whom 	qualified 	immunity 	-- 	not
absolute immunity -- “is the norm.” Id. (quoting Buckley, 509 U.S.
at 	278); 	see 	Kovacic 	v. 	Cuyahoga 	Cnty. 	Dep’t 	of 	Child. 	& 	Fam.
Servs., 724 F.3d 687, 694 (6th Cir. 2013) (“When the social workers
removed 	the 	children 	from 	the 	home, 	they 	were 	acting 	in 	a 	police
capacity rather than as legal advocates.”).
Although absolute immunity does not apply, Plaintiffs’ claims
must 	clear 	the 	hurdle 	of 	qualified 	immunity. 	Defendants 	“are
entitled 	to 	qualified 	immunity 	under 	42 	U.S.C. 	§ 	1983 	unless
(1) they violated a federal statutory or constitutional right, and
(2) the unlawfulness of their conduct was ‘clearly established at
the 	time’” 	of 	that 	violation. 	District 	of 	Columbia 	v. 	Wesby, 	583
U.S. 	48, 	62-63 	(2018) 	(quoting 	Reichle 	v. 	Howards, 	566 	U.S. 	658,
664 (2012)). “‘Clearly established’ means that, at the time of the
officer’s 	conduct, 	the 	law 	was 	‘“sufficiently 	clear” 	that 	every
“reasonable 	official 	would 	understand 	that 	what 	he 	is 	doing”’ 	is
unlawful.” 	Id. 	at 	63 	(quoting 	Ashcroft 	v. 	al-Kidd, 	563 	U.S. 	731,
741 	(2011)). 	To 	be 	clearly 	established, 	a 	legal 	rule 	must 	be
“dictated 	by 	‘controlling 	authority’ 	or 	‘a 	robust 	“consensus 	of
cases 	of 	persuasive 	authority.”’” 	Id. 	(quoting 	al-Kidd, 	563 	U.S.
at 	741-42); 	see 	also 	Rivas-Villegas 	v. 	Cortesluna, 	595 	U.S. 	1, 	6
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(2021) 	(per 	curiam) 	(requiring 	plaintiffs 	in 	most 	instances 	to
“identify 	a 	case 	that 	put 	[the 	defendant] 	on 	notice 	that 	his
specific conduct was unlawful”).
The Court analyzes each of Plaintiffs’ federal claims in turn
through 	this 	lens 	of 	qualified 	immunity. 	As 	explained 	below, 	the
Court concludes that summary judgment must be granted to Defendants
on 	all 	federal 	claims 	except 	for 	C.S. 	1 	and 	C.S. 	2’s 	Fourth
Amendment seizure claim (Count II) against Butterfield and Gemski.
A. 	Fourth Amendment Claim Regarding Alleged Search of
Plaintiffs’ Home (Count I)
Plaintiffs’ 	first 	claim 	is 	that 	Defendants 	committed 	an
unconstitutional 	search 	by 	remaining 	in 	the 	breezeway 	even 	after
they were asked to leave. Plaintiffs argue that the breezeway was
part of their apartment’s curtilage.4 Defendants respond that the
breezeway was not part of the apartment’s curtilage and thus that
no Fourth Amendment search occurred.
The Supreme Court has recognized that curtilage -- i.e., “the
area ‘immediately surrounding and associated with the home’” -- is
“part of the home itself for Fourth Amendment purposes.” Florida v.
Jardines, 	569 	U.S. 	1, 	6 	(2013) 	(quoting 	Oliver 	v. 	United 	States,
466 U.S. 170, 180 (1984)); see, e.g., id. (holding that curtilage
includes “a home’s porch or side garden”). “When a law enforcement
4 	Plaintiffs 	do 	not 	argue 	that 	a 	Fourth 	Amendment 	violation
occurred “[u]nder the reasonable expectations [of privacy] test.”
United States v. Bain, 874 F.3d 1, 12 (1st Cir. 2017).
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officer 	physically 	intrudes 	on 	the 	curtilage 	. 	. 	. 	, 	a 	search
within 	the 	meaning 	of 	the 	Fourth 	Amendment 	has 	occurred” 	and 	is
“presumptively 	unreasonable 	absent 	a 	warrant.” 	Collins 	v.
Virginia, 	584 	U.S. 	586, 	593 	(2018). 	A 	limited 	exception 	exists
under 	which 	officers 	have 	an 	“implicit 	license 	. 	. 	. 	to 	approach
the home . . . , knock promptly, wait briefly to be received, and
then 	(absent 	invitation 	to 	linger 	longer) 	leave.” 	Jardines, 	569
U.S. at 8.
It 	is 	undisputed 	that 	the 	Defendants 	present 	at 	Plaintiffs’
residence 	on 	July 	16, 	2022, 	remained 	in 	the 	breezeway 	even 	after
being asked to leave. The key contested legal issue is whether the
breezeway 	constituted 	curtilage 	of 	Plaintiffs’ 	apartment.
Defendants 	argue 	that 	the 	breezeway 	was 	not 	curtilage 	because 	it
was a shared space accessible by the upstairs tenants.
Neither the Supreme Court nor the First Circuit has answered
the question of whether “a tenant’s ‘dwelling’ can[] reasonably be
said 	to 	extend 	beyond 	his 	own 	apartment 	and 	. 	. 	. 	any 	separate
areas 	subject 	to 	his 	exclusive 	control.” 	United 	States 	v. 	Cruz
Pagan, 537 F.2d 554, 558 (1st Cir. 1976) (quoting Commonwealth v.
Thomas, 	267 	N.E.2d 	489, 	491 	(Mass. 	1971)); 	see 	United 	States 	v.
Bain, 874 F.3d 1, 14 n.6 (1st Cir. 2017).5 Generally speaking, in
5 	In 	Cruz 	Pagan, 	the 	First 	Circuit 	answered 	this 	question 	in 	the
negative. 	See 	537 	F.2d 	at 	558. 	This 	statement, 	however, 	predated
the 	Supreme 	Court’s 	articulation 	of 	the 	“common-law 	trespassory
test” 	for 	Fourth 	Amendment 	searches. 	Bain, 	874 	F.3d 	at 	12; 	see
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determining 	the 	extent 	of 	a 	home’s 	curtilage, 	courts 	assess
(1) “the 	proximity 	of 	the 	area 	claimed 	to 	be 	curtilage 	to 	the
home”; 	(2) 	“whether 	the 	area 	is 	included 	within 	an 	enclosure
surrounding 	the 	home”; 	(3) 	“the 	nature 	of 	the 	uses 	to 	which 	the
area is put”; and (4) “the steps taken by the resident to protect
the area from observation by people passing by.” United States v.
Mumme, 	985 	F.3d 	25, 	40 	(1st 	Cir. 	2021) 	(quoting 	United 	States 	v.
Dunn, 480 U.S. 294, 301 (1987)). These factors weigh in Plaintiffs’
favor. 	The 	breezeway 	was 	directly 	adjacent 	to 	Plaintiffs’
apartment door, was an enclosed space, was used by Plaintiffs for
storage 	while 	rarely 	being 	used 	by 	the 	upstairs 	tenants, 	and 	was
accessible 	to 	the 	public 	only 	through 	an 	exterior 	door 	which
Plaintiffs often locked at night. Based on the above factors, the
Court 	therefore 	concludes 	that 	the 	breezeway 	was 	part 	of
Plaintiffs’ curtilage.
But Count I fails at the second step of the qualified immunity
inquiry: No clearly established law placed a reasonable officer on
notice 	that 	the 	breezeway 	was 	curtilage. 	Plaintiffs 	fail 	to
“identify 	a 	case” 	from 	the 	First 	Circuit 	holding 	that 	any 	area
Cruz 	Pagan, 	537 	F.2d 	at 	558 	(considering 	“concepts 	of 	curtilage”
as 	part 	of 	“the 	Katz 	inquiry” 	into 	reasonable 	expectations 	of
privacy). And in Bain, the First Circuit expressly walked back its
language 	from 	Cruz 	Pagan, 	writing 	that 	that 	language 	“was
unnecessary 	to 	Cruz 	Pagan’s 	holding” 	and 	“was 	therefore 	dicta.”
Bain, 874 F.3d at 14 n.6; see id. (“[W]e do not think Cruz Pagan’s
broad declaration about the scope of a condominium unit’s curtilage
binds us.”).
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outside an apartment door (or its lock, see Bain, 874 F.3d at 14-
15) 	-- 	let 	alone 	an 	area 	accessible 	to 	other 	tenants 	-- 	can 	be
curtilage. 	Rivas-Villegas, 	595 	U.S. 	at 	6. 	Plaintiffs 	point 	to
French 	v. 	Merrill, 	but 	that 	case 	involved 	a 	“dwelling 	[with] 	a
single 	front 	entryway” 	and 	a 	“single 	kitchen.” 	15 	F.4th 	116, 	122
(1st 	Cir. 	2021); 	see 	id. 	(“[Defendants] 	describe 	[Plaintiff]’s
residence 	as 	‘more 	akin 	to 	an 	apartment 	building’ 	-- 	presumably
compared 	to 	a 	single-family 	home 	-- 	but 	they 	fail 	to 	further
explain that comparison.”).
Nor 	was 	there 	“a 	robust 	‘consensus 	of 	cases 	of 	persuasive
authority’” 	in 	July 	2022 	indicating 	that 	the 	breezeway 	was
curtilage. al-Kidd, 563 U.S. at 742 (quoting Wilson v. Layne, 526
U.S. 	603, 	617 	(1999)). 	Circuit 	courts 	have 	varied 	in 	their
treatment 	of 	whether 	shared 	spaces 	can 	constitute 	curtilage.
Compare, 	e.g., 	United 	States 	v. 	Hopkins, 	824 	F.3d 	726, 	732 	(8th
Cir. 2016) (holding that area “six to eight inches” from townhouse
door 	was 	curtilage 	despite 	being 	shared 	by 	two 	neighbors), 	with,
e.g., 	United 	States 	v. 	Jackson, 	728 	F.3d 	367, 	373-74 	(4th 	Cir.
2013) 	(holding 	that 	grass 	between 	sidewalk 	and 	apartment’s 	back
patio was not curtilage, including because it was shared by other
tenants). 	Indeed, 	at 	least 	one 	circuit 	has 	held 	that 	“common
property” 	can 	rarely, 	if 	ever, 	be 	curtilage, 	and 	has 	stated 	that
the “general consensus [is] that common areas shared by all tenants
of 	an 	apartment 	building 	usually 	will 	not 	qualify 	as 	. 	. 	.
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curtilage.” United States v. Johnson, 148 F.4th 287, 295 (4th Cir.
2025) 	(emphasis 	omitted), 	petition 	for 	cert. 	filed, 	No. 	25-774
(U.S. 	Jan. 	2, 	2026). 	It 	thus 	was 	not 	clearly 	established 	that
Defendants 	were 	intruding 	on 	Plaintiffs’ 	curtilage. 	The 	Court
therefore will enter summary judgment for Defendants on Count I.
One 	matter 	remains. 	Unlike 	the 	other 	Defendants, 	Kalvinek
entered 	Plaintiffs’ 	actual 	apartment, 	not 	just 	the 	breezeway.
After Sabey and Perkins had acceded to the demands that they turn
over C.S. 1 and C.S. 2, Kalvinek briefly crossed the threshold of
Plaintiffs’ 	apartment 	to 	retrieve 	a 	bag 	that 	Perkins 	had 	packed
for 	the 	children. 	Although 	Sabey 	and 	Perkins 	objected 	to
Defendants’ 	entry 	into 	their 	home 	to 	seize 	C.S. 	1 	and 	C.S. 	2,
Plaintiffs 	develop 	no 	argument 	that 	Sabey 	and 	Perkins 	did 	not
consent 	to 	Kalvinek’s 	assistance 	with 	the 	bag 	once 	the 	children
were 	already 	being 	removed. 	Plaintiffs 	therefore 	have 	forfeited
that 	argument. 	Summary 	judgment 	is 	warranted 	on 	Count 	I 	for 	all
Defendants, including Kalvinek.
B. 	Due Process Claim Regarding Alleged Deprivation of
Sabey’s and Perkins’ Parental Rights (Count III)
The Court next analyzes Count III, in which Sabey and Perkins
allege 	that 	Defendants 	deprived 	them 	of 	their 	parental 	rights
without 	due 	process. 	Defendants 	respond 	that 	the 	removal 	of 	C.S.
1 	and 	C.S. 	2 	conformed 	with 	due 	process 	because 	Defendants
reasonably suspected child abuse.
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The 	Fourteenth 	Amendment’s 	Due 	Process 	Clause 	protects 	“the
fundamental right of parents to make decisions concerning the care,
custody, 	and 	control 	of 	their 	children.” 	Tower 	v. 	Leslie-Brown,
326 	F.3d 	290, 	298 	(1st 	Cir. 	2003) 	(quoting 	Troxel 	v. 	Granville,
530 	U.S. 	57, 	66 	(2000) 	(plurality 	opinion)). 	That 	protection
includes both substantive and procedural components. See Suboh v.
Dist. 	Att’y’s 	Off., 	298 	F.3d 	81, 	91 	(1st 	Cir. 	2002). 	First, 	the
deprivation of fundamental parental rights can violate substantive
due process. See Tower, 326 F.3d at 298. Second, in order to comply
with 	procedural 	due 	process 	after 	taking 	emergency 	custody 	of 	a
child, 	the 	government 	must 	provide 	“an 	adequate 	post-deprivation
hearing within a reasonable time.” Id. (quoting Suboh, 298 F.3d at
94).
Only 	substantive 	due 	process 	is 	at 	issue 	here. 	Under 	that
rubric, 	the 	removal 	of 	a 	child 	from 	a 	parent’s 	custody 	violates
the 	Fourteenth 	Amendment 	unless 	“an 	objectively 	reasonable
suspicion 	of 	abuse 	justifies 	protective 	measures.” 	Id. 	(quoting
Hatch 	v. 	Dep’t 	for 	Child., 	Youth 	& 	Their 	Fams., 	274 	F.3d 	12, 	21
(1st 	Cir. 	2001)). 	In 	particular, 	the 	First 	Circuit 	has 	held 	that
a social worker may “take temporary custody of a child, without a
hearing, 	when 	[she] 	has 	a 	reasonable 	suspicion 	that 	child 	abuse
has 	occurred 	(or, 	alternatively, 	that 	a 	threat 	of 	abuse 	is
imminent).” 	Carter 	v. 	Lindgren, 	502 	F.3d 	26, 	30 	(1st 	Cir. 	2007)
(quoting Hatch, 274 F.3d at 22). “Reasonable suspicion depends on
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the 	content 	of 	the 	information 	possessed 	by 	the 	state 	actors 	and
its 	degree 	of 	reliability, 	considered 	in 	the 	totality 	of 	the
circumstances.” 	Piccone 	v. 	McClain, 	586 	F. 	App’x 	709, 	711 	(1st
Cir. 2014) (per curiam).
The 	Court 	begins 	its 	analysis 	with 	Butterfield 	and 	Gemski,
who 	decided 	to 	order 	the 	removal 	of 	C.S. 	1 	and 	C.S. 	2. 	The
undisputed evidence demonstrates that Butterfield and Gemski “had
an objectively reasonable suspicion that child abuse had occurred”
to 	C.S. 	2. 	Carter, 	502 	F.3d 	at 	30. 	The 	51A 	and 	51B 	Reports, 	the
contents 	of 	which 	Butterfield 	reviewed 	and 	conveyed 	to 	Gemski,
indicated that C.S. 2 had suffered two fractured ribs; that medical
professionals 	determined 	those 	injuries 	were 	consistent 	with
nonaccidental 	blunt 	force 	trauma; 	that 	Sabey’s 	and 	Perkin’s
explanations 	for 	how 	the 	injuries 	may 	have 	accidentally 	occurred
were deemed not credible by those medical professionals; and that
Perkins 	initially 	declined 	a 	recommended 	MRI 	for 	C.S. 	2.6
Butterfield 	and 	Gemski 	were 	entitled 	to 	rely 	on 	the 	opinions 	of
medical 	professionals 	who 	reported 	that 	C.S. 	2’s 	injuries 	likely
were 	intentionally 	inflicted. 	Cf. 	Piccone, 	586 	F. 	App’x 	at 	711
(holding 	that 	DCF 	justifiably 	relied 	on 	“report 	from 	a 	day 	care
6 	Defendants 	also 	point 	out 	that 	the 	reports 	stated 	that 	Perkins
had 	a 	“flat 	affect” 	and 	“rolled 	her 	eyes” 	when 	asked 	about 	C.S.
2’s 	injuries. 	Considering 	that 	Perkins 	was 	bringing 	her 	three-
month-old 	child 	to 	the 	hospital 	in 	the 	middle 	of 	the 	night, 	the
Court does not credit that her “affect” could reasonably be viewed
as relevant to whether abuse had occurred.
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center 	employee” 	containing 	“seemingly 	credible” 	allegations 	of
abuse 	where 	“[s]imply 	viewing 	the 	child 	neither 	proved 	nor
disproved the abuse allegations”).
Butterfield 	and 	Gemski 	did 	not, 	however, 	have 	a 	reasonable
suspicion 	that 	a 	threat 	of 	additional 	abuse 	was 	imminent. 	See
Carter, 	502 	F.3d 	at 	30. 	The 	51B 	Report 	stated 	that 	C.S. 	2’s 	rib
fractures were between ten days and six weeks old and were healing.
It 	also 	reported 	that 	C.S. 	2’s 	pediatrician 	did 	not 	have 	any
concerns based on prior medical appointments. Further, Butterfield
and Gemski knew that each time Rivera and Piedade saw C.S. 2 during
their investigation, he seemed comfortable and unharmed. There was
no 	other 	evidence 	of 	domestic 	abuse 	(which 	Sabey 	and 	Perkins
denied), 	and 	Plaintiffs’ 	home 	was 	determined 	to 	be 	in 	safe
condition. 	C.S. 	1 	also 	told 	Piedade 	that 	everyone 	got 	along 	at
home 	and 	denied 	any 	safety 	concerns. 	In 	sum, 	at 	the 	time 	they
decided 	to 	take 	custody 	of 	C.S. 	2 	in 	the 	middle 	of 	the 	night,
Butterfield 	and 	Gemski 	were 	aware 	of 	no 	evidence 	to 	support 	a
reasonable 	suspicion 	of 	imminent 	future 	abuse 	before 	they 	could
get a court order.
Although “even a single instance of abuse” may sometimes give
rise 	to 	a 	reasonable 	suspicion 	of 	imminent 	further 	abuse, 	Hatch,
274 F.3d at 21, the information available to Butterfield and Gemski
was 	insufficient 	to 	allow 	that 	inference 	here. 	See 	Lowther 	v.
Child. 	Youth 	& 	Fam. 	Dep’t, 	101 	F.4th 	742, 	766 	(10th 	Cir. 	2024)
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(“[E]vidence 	of 	past 	abuse 	may 	demonstrate 	a 	threat 	of 	imminent
harm, but it will not always do so.”). Simply put, the information
regarding 	C.S. 	2’s 	healing 	rib 	fractures 	is 	a 	far 	cry 	from 	the
types 	of 	evidence 	typically 	found 	to 	create 	an 	objectively
reasonable suspicion of imminent child abuse. See, e.g., Gates v.
Tex. 	Dep’t 	of 	Protective 	& 	Regul. 	Servs., 	537 	F.3d 	404, 	429-30
(5th 	Cir. 	2008) 	(deeming 	it 	“a 	close 	call” 	whether 	abuse 	was
reasonably 	suspected 	to 	be 	imminent 	where 	“[s]everal 	children
corroborated the story that [a parent] had punched or kicked [his
child] 	that 	morning”). 	That 	is 	especially 	true 	where, 	as 	here,
Butterfield 	and 	Gemski 	knew 	of 	various 	mitigating 	factors
suggesting 	that 	C.S. 	2 	was 	not 	likely 	to 	be 	subject 	to 	imminent
harm or neglect over the weekend.
The Court thus is confronted with a situation in which there
existed 	a 	reasonable 	suspicion 	of 	past 	abuse 	but 	not 	of 	imminent
abuse. 	The 	Tenth 	Circuit 	faced 	the 	same 	circumstance 	in 	Lowther.
There, 	the 	Tenth 	Circuit 	acknowledged 	“some 	ambiguity 	in[] 	[its]
precedent” 	regarding 	whether 	a 	“reasonable 	suspicion 	of 	past
abuse, 	even 	in 	the 	absence 	of 	reasonable 	suspicion 	of 	imminent
harm,” sufficed to allow the removal of a child. Lowther, 101 F.4th
at 765. The court clarified that a reasonable suspicion of imminent
abuse was required, but held that the ambiguity from previous cases
meant that the defendants had not run afoul of clearly established
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33
precedent 	by 	removing 	a 	child 	based 	solely 	on 	a 	reasonable
suspicion of past abuse. See id. at 766-67.
The same outcome is required here. First Circuit precedent is
unclear as to whether a single instance of past abuse necessarily
permits 	DCF 	to 	take 	custody 	of 	a 	child 	without 	running 	afoul 	of
substantive 	due 	process. 	In 	this 	Court’s 	view, 	a 	reasonable
suspicion of imminent abuse is required, and thus Butterfield and
Gemski committed a due process violation (unless Sabey and Perkins
consented). 	See, 	e.g., 	Hatch, 	274 	F.3d 	at 	21 	(noting 	that 	past
abuse may create reasonable suspicion of “an exigent circumstance
sufficient to warrant immediate state action on a child’s behalf”);
Suboh, 298 F.3d at 94 (describing Hatch as requiring a “reasonable
suspicion of imminent danger”); Carter, 502 F.3d at 11 (emphasizing
“risk to the safety of the child”). “To be sure, evidence of past
abuse 	may 	demonstrate 	a 	threat 	of 	imminent 	harm, 	but 	it 	will 	not
always do so.” Lowther, 101 F.4th at 766.7
But this Court cannot ignore the disjunctive phrasing of the
First 	Circuit’s 	standard, 	which 	on 	its 	face 	requires 	reasonable
suspicion that a child “has been abused or is in imminent danger.”
7 	The 	Court 	finds 	persuasive 	Lowther’s 	statement 	that 	the
“[f]actors important to assessing the risk of imminent harm” based
on 	past 	abuse 	“include, 	but 	are 	not 	limited 	to, 	the 	strength 	of
the 	evidence 	indicating 	prior 	abuse, 	the 	severity 	of 	the 	prior
abuse, the temporal proximity to the prior abuse, the identity of
the alleged abuser, the alleged abuser’s access to the child, and
whether 	there 	is 	time 	to 	obtain 	a 	warrant 	or 	judicial
authorization.” 101 F.4th at 766.
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Tower, 	326 	F.3d 	at 	299 	(emphasis 	added); 	see 	Doe 	v. 	District 	of
Columbia, 	796 	F.3d 	96, 	104 	(D.C. 	Cir. 	2015) 	(describing 	First
Circuit’s precedent as creating “a very low standard” that “could
allow for the removal of a child . . . based on a single suspected
incident”). “Given the disjunctive phrasing, reasonable officials
could have concluded that under the Fourteenth Amendment, exigent
circumstances 	were 	present 	if 	there 	was 	reasonable 	suspicion 	of
past abuse, even in the absence of reasonable suspicion of imminent
harm.” Lowther, 101 F.4th at 765. Under the doctrine of qualified
immunity, 	summary 	judgment 	thus 	must 	enter 	for 	Butterfield 	and
Gemski on Plaintiffs’ due process claim challenging their decision
to 	take 	temporary 	custody 	of 	C.S. 	2 	because 	the 	case 	law 	in 	this
circuit was not clearly established.
The 	other 	Defendants 	are 	also 	protected 	by 	the 	doctrine 	of
qualified 	immunity. 	Griffin 	was 	aware 	of 	many 	of 	the 	details 	of
the 	investigation, 	and 	he, 	Arruda, 	Kalvinek, 	and 	the 	Police
Defendants knew that C.S. 2 was injured, that medical professionals
had 	deemed 	those 	injuries 	to 	be 	possibly 	nonaccidental, 	and 	that
Sabey’s 	and 	Perkins’ 	explanations 	for 	the 	injuries 	were 	not
accepted 	by 	those 	professionals. 	Moreover, 	these 	Defendants 	were
all 	informed 	that 	Butterfield 	and 	Sabey 	had 	determined 	that 	the
removal of C.S. 2 was necessary. Although state officials “should
pursue ‘reasonable avenues of investigation’ . . . before removing
children 	from 	parents’ 	custody,” 	Suboh, 	298 	F.3d 	at 	96 	(quoting
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35
Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000)), Plaintiffs
cite no cases suggesting that police and lower-level social workers
cannot 	rely 	on 	senior 	DCF 	officials’ 	determinations 	regarding
temporary child custody. On the contrary, several courts have held
that 	police 	officers 	are 	“entitled 	to 	reasonably 	rely 	on” 	social
workers’ 	determinations 	“that 	it 	[is] 	necessary 	to 	remove”
children 	from 	their 	parents. 	Gates, 	537 	F.3d 	at 	431; 	see, 	e.g.,
Halley v. Huckaby, 902 F.3d 1136, 1150 (10th Cir. 2018) (granting
qualified 	immunity 	to 	police 	chief 	who 	“rel[ied] 	on 	[social
workers’] instructions” regarding taking custody of child); Suboh,
298 	F.3d 	at 	95 	(granting 	qualified 	immunity 	to 	defendant 	who
reasonably relied on misinformation provided by another defendant
regarding 	child 	custody 	decision). 	It 	thus 	was 	not 	clearly
established 	that 	Griffin, 	Arruda, 	Kalvinek, 	and 	the 	Police
Defendants 	could 	not 	act 	in 	“reasonable 	response 	to 	what 	[they]
could 	have 	assumed 	to 	be 	an 	adequately 	supported” 	child 	custody
decision by Butterfield and Gemski. Halley, 902 F.3d at 1151.
Finally, the Court also grants summary judgment to Defendants
on 	Count 	III 	with 	respect 	to 	the 	removal 	of 	C.S. 	1. 	Plaintiffs
fail 	to 	“identify 	a 	case” 	placing 	Defendants 	on 	notice 	that 	when
they permissibly take temporary custody of one child, they may not
also 	take 	temporary 	custody 	of 	that 	child’s 	sibling.
Rivas-Villegas, 	595 	U.S. 	at 	6. 	On 	the 	contrary, 	several 	cases
reflect that “state officials routinely remove all of the children
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36
from a home when they harbor reasonable suspicions of abuse of any
one child.” Arredondo v. Locklear, 462 F.3d 1292, 1302 (10th Cir.
2006); see, e.g., Tower, 326 F.3d at 298 (holding that a reasonable
suspicion 	of 	abuse 	to 	“three 	older 	children” 	also 	justified 	the
removal 	of 	two 	younger 	ones). 	Butterfield 	and 	Gemski 	thus 	are
protected by qualified immunity for their decision to remove C.S.
1, 	and 	the 	other 	Defendants 	were 	entitled 	to 	rely 	on 	Butterfield
and 	Gemski’s 	determination 	that 	the 	removal 	of 	both 	children 	was
necessary.
C. 	Fourth Amendment Claim Regarding Alleged Seizure of
C.S. 1 and C.S. 2 (Count II)
In 	Count 	II, 	C.S. 	1 	and 	C.S. 	2 	bring 	a 	separate 	Fourth
Amendment 	claim 	challenging 	their 	own 	seizure. 	This 	claim 	is
distinct from the parents’ due process claim. See, e.g., Lowther,
101 	F.4th 	at 	754 	n.6; 	Kirkpatrick 	v. 	County 	of 	Washoe, 	843 	F.3d
784, 	788-89, 	788 	n.2 	(9th 	Cir. 	2016) 	(en 	banc). 	This 	Court 	turns
to 	basic 	Fourth 	Amendment 	principles, 	which 	apply 	even 	in 	the
context 	of 	child 	welfare 	investigations. 	See 	Andrews 	v. 	Hickman
County, 700 F.3d 845, 859 (6th Cir. 2012) (collecting cases); see
also Gates, 537 F.3d at 429 (declining “to create a ‘child abuse’
exception 	to 	the 	Fourth 	Amendment”); 	Dubbs 	v. 	Head 	Start, 	Inc.,
336 F.3d 1194, 1205 (10th Cir. 2003) (“There is no ‘social worker’
exception to the Fourth Amendment.”).
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While 	the 	First 	Circuit 	has 	not 	confronted 	the 	issue, 	see
Kovacic, 	724 	F.3d 	at 	699 	n.5, 	various 	circuits 	have 	articulated
similar 	standards 	for 	the 	warrantless 	seizure 	of 	a 	child. 	Those
standards 	amount 	to 	a 	requirement 	“that 	the 	government 	may 	not
seize 	a 	child 	from 	his 	or 	her 	parents 	absent 	a 	court 	order,
parental 	consent, 	or 	exigent 	circumstances.” 	Gates, 	537 	F.3d 	at
429 	(footnote 	omitted); 	see 	also, 	e.g., 	Kovacic, 	724 	F.3d 	at 	699
(“A 	seizure 	without 	consent 	or 	a 	warrant 	is 	a 	reasonable 	seizure
if it is justified by exigent circumstances. . . . Fourth Amendment
warrant 	requirements, 	including 	the 	exigent-circumstances
exception, 	apply 	to 	the 	removal 	of 	children 	from 	their 	homes 	by
social workers.” (cleaned up) (quoting Tenenbaum v. Williams, 193
F.3d 581, 605 (2d Cir. 1999))); Halley, 902 F.3d at 1145 (“[S]ocial
workers 	violate[] 	the 	Fourth 	Amendment 	when 	they 	seize[] 	a 	child
from 	his 	home 	without 	judicial 	authorization 	or 	exigent
circumstances.”). 	And 	“exigent 	circumstances,” 	in 	this 	context,
refer 	to 	a 	reasonable 	suspicion 	of 	“imminent 	or 	ongoing” 	abuse,
not 	just 	of 	past 	abuse. 	Kovacic, 	724 	F.3d 	at 	695 	(quoting
Schreiber v. Moe, 	596 	F.3d 	323, 	330 	(6th 	Cir. 	2010)); 	see 	Gates,
537 	F.3d 	at 	429 	(requiring 	“reasonable 	cause 	to 	believe 	that 	the
child is in imminent danger”); Halley, 903 F.3d at 1146 (requiring
a “reasonable suspicion of imminent abuse”); Kirkpatrick, 843 F.3d
at 	790 	(requiring 	“reasonable 	cause 	to 	believe 	that 	the 	child 	is
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in imminent danger of serious bodily injury” (quoting Wallis, 202
F.3d at 1138)).
The 	above-cited 	authorities, 	among 	others, 	constitute 	“a
robust 	‘consensus 	of 	cases 	of 	persuasive 	authority’” 	clearly
establishing by July 2022 that a state official must have judicial
authorization, 	parental 	consent, 	or 	reasonable 	suspicion 	of
imminent abuse in order to seize a child from their home consistent
with 	the 	Fourth 	Amendment. 	al-Kidd, 	563 	U.S. 	at 	742 	(quoting
Wilson, 	526 	U.S. 	at 	617). 	“A 	‘robust 	consensus’ 	does 	not 	require
the express agreement of every circuit.” Irish v. Fowler, 979 F.3d
65, 	76 	(1st 	Cir. 	2020); 	see 	id. 	at 	77 	(noting 	that 	the 	agreement
of 	three 	or 	four 	circuits 	is 	sufficient 	to 	clearly 	establish 	the
law). 	This 	judicial 	consensus 	“provide[d] 	notice 	to 	every
reasonable 	officer 	that” 	seizing 	a 	child 	based 	solely 	on 	a
reasonable 	suspicion 	of 	past 	abuse, 	without 	any 	reasonable
suspicion of imminent abuse, would be “unlawful” under the Fourth
Amendment. Id. at 76.
Notably, 	that 	result 	is 	also 	consistent 	with 	Massachusetts
statute, 	which 	provides 	that 	if 	DCF 	“has 	reasonable 	cause 	to
believe 	a 	child’s 	health 	or 	safety 	is 	in 	immediate 	danger 	from
abuse 	or 	neglect,” 	DCF 	shall 	take 	temporary 	custody 	of 	the 	child
“if 	it 	has 	reasonable 	cause 	to 	believe 	that 	the 	removal 	is
necessary to protect the child from abuse or neglect.” Mass. Gen.
Laws 	ch. 	119, 	§ 	51B(c). 	This 	provision 	plainly 	requires 	a
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reasonable suspicion of imminent abuse, not merely of past abuse,
in 	order 	to 	remove 	a 	child. 	Although 	the 	Court 	does 	“not 	look 	to
state 	law 	in 	determining 	the 	scope 	of 	federal 	rights, 	the 	fact
that [state law] limited the power of [DCF] . . . in precisely the
manner 	the 	Fourth 	Amendment 	would 	limit 	such 	power 	is 	indicative
of 	the 	degree 	to 	which 	the 	Fourth 	Amendment 	limit 	was 	[clearly]
established.” Halley, 902 F.3d at 1149 (first and third alterations
in original) (quoting Anaya v. Crossroads Managed Care Sys., Inc.,
195 F.3d 584, 595 (10th Cir. 1999)).
The 	Court 	now 	applies 	these 	principles 	to 	Defendants,
beginning 	with 	Butterfield 	and 	Gemski. 	As 	already 	discussed, 	see
supra 	Section 	I.B, 	Butterfield 	and 	Gemski 	lacked 	reasonable
suspicion 	of 	imminent 	abuse 	to 	C.S. 	1 	or 	C.S. 	2. 	Their 	“reliance
on 	weeks-old” 	injuries 	to 	C.S. 	2 	“simply 	do[es] 	not 	constitute
exigent 	circumstances 	as 	a 	matter 	of 	law.” 	Kovacic, 	724 	F.3d 	at
696. 	A 	reasonable 	official 	in 	their 	shoes 	would 	have 	understood
that 	ordering 	the 	removal 	of 	the 	children 	without 	judicial
authorization 	in 	such 	circumstances 	violated 	the 	children’s
clearly 	established 	Fourth 	Amendment 	rights 	unless 	parental
consent was obtained.
Consent must be “freely and voluntarily given” in order to be
valid; 	“there 	must 	be 	more 	than 	mere 	acquiescence 	in 	the 	face 	of
an unfounded claim of present unlawful authority.” Mumme, 985 F.3d
at 36 (quoting United States v. Perez-Montañez, 202 F.3d 434, 438
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40
(1st 	Cir. 	2000)). 	In 	determining 	whether 	consent 	was 	voluntarily
given, 	the 	Court 	considers 	“the 	totality 	of 	the 	circumstances,”
including the “possibly vulnerable subjective state” of Sabey and
Perkins and any “evidence of inherently coercive tactics” used by
the DCF Defendants and the Police Defendants. Id. (quoting United
States v. Twomey, 884 F.2d 46, 51 (1st Cir. 1989)).
There 	remains 	a 	genuine 	dispute 	of 	material 	fact 	regarding
whether 	Sabey 	and 	Perkins 	consented 	to 	the 	removal 	of 	C.S. 	1 	and
C.S. 2. Plaintiffs argue that Sabey and Perkins turned over their
children 	based 	on 	Defendants’ 	coercive 	tactics 	(such 	as 	arriving
after 	midnight 	and 	remaining 	in 	the 	breezeway 	for 	over 	an 	hour),
Defendants’ 	statements 	that 	they 	would 	not 	leave 	until 	they
obtained 	temporary 	custody 	of 	the 	children, 	and 	Plaintiffs’
reasonable 	belief 	that 	Defendants 	would 	send 	a 	SWAT 	team 	or 	use
other 	means 	to 	forcibly 	breach 	the 	door. 	Defendants 	respond 	that
there 	were 	ongoing 	peaceful 	negotiations, 	that 	they 	next 	would
have 	summoned 	a 	crisis 	negotiating 	team 	(but 	not 	necessarily 	a
SWAT 	team) 	from 	NEMLEC, 	and 	that 	Plaintiffs 	consented 	to 	the
removal 	of 	C.S. 	1 	and 	C.S. 	2 	voluntarily 	based 	on 	the 	advice 	of
Attorney 	Moraski. 	Because 	the 	issue 	of 	consent 	involves 	hotly
disputed facts, summary judgment cannot be granted to Plaintiffs,
Butterfield, or Gemski on Count II.
Butterfield and Gemski argue that they cannot be liable under
Count II because they did not physically participate in the removal
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of 	C.S. 	1 	and 	C.S. 	2 	or 	supervise 	the 	tactics 	used 	by 	the 	other
Defendants 	on 	July 	16, 	2022. 	But 	a 	reasonable 	jury 	could 	find
Butterfield and Gemski liable for their own decision to order the
removal 	of 	C.S. 	1 	and 	C.S. 	2 	in 	the 	middle 	of 	the 	night 	without
judicial 	authorization, 	which 	“set 	in 	motion 	a 	series 	of 	events
that 	[they] 	should 	have 	known 	would 	cause 	others 	to 	violate 	[the
children’s] 	Fourth 	Amendment 	rights.” 	Halley, 	902 	F.3d 	at 	1148;
see 	Sanchez 	v. 	Pereira-Castillo, 	590 	F.3d 	31, 	49 	(1st 	Cir. 	2009)
(“[S]upervisory officials may be liable on the basis of their own
acts or omissions.”). Further, a supervisor can be held liable for
her 	subordinates’ 	constitutional 	violations 	if 	the 	supervisor’s
actions 	have 	an 	“affirmative 	link” 	to 	the 	violations. 	Parker 	v.
Landry, 	935 	F.3d 	9, 	14 	(1st 	Cir. 	2019). 	A 	reasonable 	jury 	could
readily find that link present here, where Butterfield and Gemski’s
order to remove C.S. 1 and C.S. 2 “led inexorably” to the seizure
of 	the 	children. 	Penate 	v. 	Hanchett, 	944 	F.3d 	358, 	367 	(1st 	Cir.
2019) 	(quoting 	Feliciano-Hernández 	v. 	Pereira-Castillo, 	663 	F.3d
527, 533 (1st Cir. 2011)).
Although Count II may proceed against Butterfield and Gemski,
the 	Court 	will 	grant 	summary 	judgment 	to 	the 	other 	Defendants 	on
this 	claim. 	Those 	Defendants 	reasonably 	believed 	that 	exigent
circumstances existed based on Butterfield and Gemski’s directive
to 	remove 	C.S. 	1 	and 	C.S. 	2. 	It 	was 	not 	clearly 	established 	that
those 	Defendants 	could 	not 	“reasonably 	rely 	on” 	senior 	DCF
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officials’ determination “that it [was] necessary to remove” both
children due to a risk of imminent abuse. Gates, 537 F.3d at 431;
see 	supra 	Section 	I.B. 	Although 	Griffin 	was 	more 	familiar 	than
Arruda, 	Kalvinek, 	and 	the 	Police 	Defendants 	with 	the 	51B
investigation 	and 	some 	of 	the 	mitigating 	circumstances 	it
uncovered, 	he 	had 	no 	involvement 	between 	Thursday 	morning 	and
Friday afternoon, when Butterfield informed him of the decision to
remove 	the 	children. 	He 	did 	not 	run 	afoul 	of 	clearly 	established
law 	by 	relying 	on 	directives 	given 	by 	DCF 	officials 	who 	were, 	to
use 	his 	own 	words, 	“way 	up 	high 	on 	[his] 	chain 	of 	command.” 	Dkt.
210-44 at 1:25-1:34.
II. 	State-Law Claims
The 	Court 	now 	turns 	to 	Plaintiffs’ 	state-law 	claims. 	As
explained below, the Court concludes that summary judgment must be
granted to Defendants on all three claims.
A. 	Massachusetts Constitutional Claims (Counts VI and
VII)
Article 	14 	of 	the 	Massachusetts 	Declaration 	of 	Rights
protects 	against 	“unreasonable 	searches[] 	and 	seizures” 	of 	one’s
“person,” “house[],” “papers,” and “possessions.” Mass. Const. pt.
1, 	art. 	14. 	This 	provision 	provides 	similar 	safeguards 	as 	the
Fourth 	Amendment, 	see, 	e.g., 	Commonwealth 	v. 	DeJesus, 	182 	N.E.3d
280, 284 (Mass. 2022), and the parties do not suggest that any of
the 	relevant 	standards 	are 	materially 	different 	for 	purposes 	of
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this 	case. 	Instead, 	the 	parties 	treat 	the 	state 	constitutional
requirements relevant to Counts VI and VII as coextensive with the
Fourth 	Amendment 	requirements 	relevant 	to 	Counts 	I 	and 	II,
respectively. The Court therefore does the same.
Plaintiffs bring Counts VI and VII through the Massachusetts
Civil 	Rights 	Act 	(“MCRA”), 	which 	prohibits 	persons 	from
“interfer[ing]” 	with 	constitutional 	or 	statutory 	rights 	“by
threats, 	intimidation[,] 	or 	coercion.” 	Mass. 	Gen. 	Laws 	ch. 	12,
§ 11H; see also id. § 11I (creating private right of action). “The
MCRA is co-extensive with § 1983 except on two points”: first, the
MCRA 	“does 	not 	require 	any 	state 	action,” 	and 	second, 	the 	MCRA
“requires 	a 	violation 	by 	threats, 	intimidation, 	or 	coercion.”
3137, 	LLC 	v. 	Town 	of 	Harwich, 	126 	F.4th 	1, 	13 	(1st 	Cir. 	2025)
(quoting Kelley v. LaForce, 288 F.3d 1, 10 (1st Cir. 2002)). Thus,
as relevant here, Counts VI and VII require the same constitutional
showings 	as 	Counts 	I 	and 	II, 	plus 	the 	additional 	showing 	of
threats, intimidation, or coercion.
The 	parties 	further 	agree 	that 	Counts 	VI 	and 	VII 	must 	clear
the 	same 	qualified 	immunity 	hurdle 	as 	Counts 	I 	and 	II. 	See
Wilber v. Curtis, 	872 	F.3d 	15, 	23 	(1st 	Cir. 	2017) 	(“The 	same
qualified 	immunity 	standard 	that 	applies 	under 	§ 	1983 	has 	also
been held to apply to claims under the MCRA.” (quoting Kelley, 288
F.3d 	at 	10)). 	The 	Court 	thus 	analyzes 	Plaintiffs’ 	state
constitutional claims under that framework.
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1. 	Claim Regarding Alleged Search of Plaintiffs’
Home (Count VI)
In 	Count 	VI, 	Plaintiffs 	again 	challenge 	Defendants’ 	alleged
unreasonable 	search 	of 	their 	home 	and 	curtilage. 	The 	parties 	do
not identify any material differences between the Fourth Amendment
and 	Article 	14 	of 	the 	Massachusetts 	Declaration 	of 	Rights 	with
respect 	to 	this 	claim. 	Defendants 	thus 	are 	entitled 	to 	qualified
immunity 	on 	Count 	VI 	because 	it 	was 	not 	clearly 	established 	that
the 	breezeway 	in 	Plaintiffs’ 	building 	constituted 	curtilage. 	See
supra 	Section 	I.A; 	Wilber, 	872 	F.3d 	at 	23 	(affirming 	grant 	of
summary 	judgment 	on 	an 	MCRA 	claim 	because 	“the 	grant 	of 	summary
judgment 	to 	the 	defendants 	on 	[the 	plaintiff]’s 	§ 	1983 	claim
necessarily compel[led] that result”).
2. 	Claim Regarding Alleged Seizure of C.S. 1 and
C.S. 2 (Count VII)
Count 	VII, 	like 	Count 	II, 	is 	a 	claim 	asserted 	by 	C.S. 	1 	and
C.S. 2 challenging their alleged unreasonable seizure. Once again,
no 	party 	suggests 	that 	the 	analysis 	under 	Article 	14 	of 	the
Massachusetts 	Declaration 	of 	Rights 	differs 	in 	any 	pertinent
respect from the Fourth Amendment analysis. Summary judgment thus
is 	warranted 	for 	Arruda, 	Kalvinek, 	Griffin, 	and 	the 	Police
Defendants for the reasons described with respect to Count II. See
supra Section I.C; Wilber, 872 F.3d at 23.
With respect to Butterfield and Gemski, it is undisputed that
these 	Defendants 	did 	not 	participate 	in 	the 	physical 	removal 	of
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C.S. 1 and C.S. 2 or communicate with the other Defendants during
the removal. Butterfield and Gemski thus did not personally perform
any 	acts 	of 	“threats, 	intimidation, 	or 	coercion.” 	3137, 	LLC, 	126
F.4th at 13 (quoting Kelley, 288 F.3d at 10). Count VII therefore
may only proceed against Butterfield and Gemski if other Defendants
performed 	such 	acts 	and 	if 	Butterfield 	and 	Gemski 	can 	be 	held
vicariously liable for those acts.
Courts differ on whether the doctrine of respondeat superior,
which 	does 	not 	apply 	to 	§ 	1983 	claims, 	nevertheless 	applies 	to
MCRA 	claims. 	Compare 	Lyons 	v. 	Nat’l 	Car 	Rental 	Sys., 	Inc. 	(of
Del.), 	30 	F.3d 	240, 	247 	(1st 	Cir. 	1994) 	(“[C]laims 	against
employers under the MCRA cannot rest on the doctrine of respondeat
superior.”), with Pettiford v. Branded Mgmt. Grp., LLC, 237 N.E.3d
1191, 1197 (Mass. App. Ct. 2024) (“[A]n employer may be held liable
under 	the 	doctrine 	of 	respondeat 	superior 	for 	an 	employee’s
violations of . . . the MCRA.”); see also, e.g., Fernandes v. Sena,
No. 20-cv-11612, 2021 WL 4452311, at *15 (D. Mass. Sep. 29, 2021)
(holding 	that 	MCRA 	claims 	based 	on 	respondeat 	superior 	are
permissible against private employers but not public ones). Given
this unsettled law, it was not clearly established that Butterfield
and 	Gemski 	could 	be 	held 	liable 	for 	the 	other 	DCF 	Defendants’
actions on a respondeat superior theory.
Under 	§ 	1983, 	as 	previously 	noted, 	a 	supervisor 	may
nonetheless 	be 	vicariously 	liable 	for 	a 	subordinate’s 	violations
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where 	there 	is 	an 	“affirmative 	link” 	between 	the 	supervisor’s
conduct and those violations. Parker, 935 F.3d at 14. But although
the 	MCRA 	tracks 	§ 	1983 	in 	most 	respects, 	there 	is 	no 	clearly
established 	body 	of 	law 	on 	whether 	this 	theory 	of 	vicarious
liability extends to the MCRA’s unique requirement that a plaintiff
demonstrate violations by “threats, intimidation[,] or coercion.”
Mass. 	Gen. 	Laws 	ch. 	12, 	§ 	11H. 	On 	the 	contrary, 	several 	courts
have rejected the possibility that supervisors can be vicariously
liable for subordinates’ threats, intimidation, or coercion under
the 	MCRA. 	See 	Fernandes, 	2021 	WL 	4452311, 	at 	*15; 	Armstrong 	v.
Lamy, 938 F. Supp. 1018, 1042 (D. Mass. 1996); cf. Galego v. City
of 	Fall 	River, 	No. 	22-cv-12243, 	2023 	WL 	8039295, 	at 	*9 	(D. 	Mass.
Nov. 20, 2023) (holding that failure to supervise cannot give rise
to 	an 	MCRA 	claim). 	Therefore, 	even 	if 	the 	Defendants 	involved 	in
the removal of C.S. 1 and C.S. 2 engaged in threats, intimidation,
or 	coercion 	(for 	example, 	by 	allegedly 	threatening 	to 	breach 	the
door 	to 	Plaintiffs’ 	apartment), 	reasonable 	officials 	in
Butterfield’s and Gemski’s positions would not have been on notice
that they could be held vicariously liable for those actions under
the MCRA.
The 	Court 	thus 	grants 	summary 	judgment 	to 	Butterfield 	and
Gemski, along with the other Defendants, on Count VII.
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B. 	Massachusetts Privacy Act Claim (Count VIII)
Finally, in Count VIII, Plaintiffs claim that Gemski and the
Police 	Defendants 	violated 	the 	Massachusetts 	Privacy 	Act, 	which
provides 	each 	person 	with 	“a 	right 	against 	unreasonable,
substantial or serious interference with his privacy.” Mass. Gen.
Laws 	ch. 	214, 	§ 	1B. 	Although 	the 	amended 	complaint 	purports 	to
bring 	this 	claim 	under 	the 	MCRA, 	this 	Court 	previously 	assessed
the 	claim 	as 	an 	independent 	cause 	of 	action, 	see 	Sabey, 	720 	F.
Supp. 3d at 92-93, and the parties continue to operate under that
understanding at the summary judgment stage.
As 	the 	Court 	noted 	in 	dismissing 	Plaintiffs’ 	Massachusetts
Privacy 	Act 	claim 	against 	Butterfield, 	Griffin, 	Arruda, 	and
Kalvinek, 	this 	statutory 	claim 	implicates 	common-law 	immunity,
which protects public officials from liability “for negligence or
other error in the making of an official decision if the official
acted 	in 	good 	faith, 	without 	malice, 	and 	without 	corruption” 	in
performing a discretionary act. Id. at 93 (quoting Chaney v. City
of 	Framingham, 	No. 	18-cv-10413, 	2019 	WL 	6496842, 	at 	*7 	(D. 	Mass.
Dec. 	3, 	2019)). 	Even 	drawing 	all 	reasonable 	inferences 	in
Plaintiffs’ favor, the record does not support a finding that any
alleged 	privacy 	violations 	by 	the 	remaining 	Defendants 	“were 	the
result of bad faith, malice, or corruption.” Id.
Plaintiffs 	assert 	that 	“the 	Supreme 	Judicial 	Court 	has
rejected 	blanket 	immunity 	when 	the 	Legislature 	has 	created 	a
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statutory 	right 	of 	action.” 	Dkt. 	250 	at 	27. 	In 	support 	of 	that
proposition, 	Plaintiffs 	cite 	Nelson 	v. 	Salem 	State 	College, 	845
N.E.2d 	338 	(Mass. 	2006). 	But 	in 	that 	case, 	the 	Supreme 	Judicial
Court 	in 	fact 	found 	that 	defendants 	sued 	in 	their 	individual
capacities 	were 	“entitled 	to 	common-law 	immunity” 	from 	a
Massachusetts 	Privacy 	Act 	claim. 	Id. 	at 	348. 	So 	too 	here: 	Gemski
and the Police Defendants are entitled to common-law immunity and
to summary judgment on Count VIII.
ORDER
For 	the 	foregoing 	reasons, 	the 	Court 	DENIES 	Plaintiffs’
motion 	for 	summary 	judgment 	(Dkt. 	205); 	ALLOWS 	Chief 	O’Connell’s
motion for summary judgment (Dkt. 199); ALLOWS Lieutenant Couture,
Sergeant 	Scichilone, 	Officer 	Makrigianis, 	and 	Officer 	Visco’s
motion 	for 	summary 	judgment 	(Dkt. 	201); 	ALLOWS 	Griffin, 	Arruda,
and Kalvinek’s motion for summary judgment (Dkt. 217); and ALLOWS
IN 	PART 	and 	DENIES 	IN 	PART 	Butterfield 	and 	Gemski’s 	motion 	for
summary 	judgment 	(Dkt. 	206). 	Butterfield 	and 	Gemski’s 	motion 	is
allowed except as to Count II.
SO ORDERED.
/s/ PATTI B. SARIS________________
Hon. Patti B. Saris
United States District Judge
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