Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 22-1166

DOUGLAS J. BACHE,

Plaintiff, Appellant,

v.

TOWN OF BOXBOROUGH; PHILLIP GATH,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor IV, U.S. District Judge]

Before

Kayatta, Lipez, and Thompson,

Circuit Judges.

Devin L. Hoffman, with whom Hoffman Law was on brief, for 

appellant.

Justin L. Amos, with whom John J. Davis, Adam Simms, and 

Pierce Davis & Perritano LLP were on brief, for appellees.

October 31, 2022
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THOMPSON, Circuit Judge. After his romantic partnership 

soured, Appellant Douglas Bache ("Bache") went to Massachusetts 

Housing Court to have his ex, Lisa Oakes ("Oakes"), evicted from 

his residence in Boxborough, Massachusetts. As part of those

proceedings, Bache and Oakes agreed in a joint stipulation that 

Oakes would be permitted to return on two occasions to collect her 

belongings. In handwritten text, the stipulation states in its 

entirety:

A. Parties agree that [Oakes] will pick up 

small items, clothes, and shoes on February 

3rd, 2019 between 12pm through 230pm.

B. [Oakes] shall remove all large belongings 

on August 31st, 2019 between 11am through 4pm.

C. Parties agree that all pickups shall be 

supervised by the local police department.

D. Upon compliance this case shall be 

dismissed on or by September 15, 2019.

Bache and Oakes signed the stipulation agreement, as did the 

Housing Court, which converted it into a court order (from here on 

out, just "Order").

This dispute arises from the first retrieval day, when 

Oakes arrived at the residence on February 3, 2019, with Officer 

Phillip Gath ("Gath") from the Boxborough Police Department 

("BPD"), per the Order's requirement that a police officer 

supervise. Bache alleges that Oakes "began helping herself to 

anything she wanted, including Mr. Bache's personal property, and 

not just her clothes or shoes." Bache and his attorney protested 
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to Gath, but Bache alleges that Gath did not stop Oakes from taking 

anything and even assisted her in carrying some items outside. 

The complaint does not allege that Gath himself took any of Bache's 

property. Nor does the complaint allege that any of the items 

Gath helped remove belonged to Bache.

Bache sued Gath and the Town of Boxborough (together, 

"Appellees") for Negligence (count 1), violation of the 

Massachusetts Civil Rights Act (count 2), violations of the 5th 

Amendment to the U.S. Constitution, alleging both a Due Process 

and a Takings Clause claim (count 3), Intentional Infliction of 

Emotional Distress (count 4), Breach of Fiduciary Duty (count 5), 

Conversion (count 6), Negligent Supervision and Training (count 

7), and Negligent Infliction of Emotional Distress (count 8).1

Defendants moved to dismiss Bache's complaint for failure to state 

a claim, which the district court granted, and Bache timely 

appealed. 

We review the grant of a motion to dismiss de novo. 

Sonoiki v. Harvard Univ., 37 F.4th 691, 703 (1st Cir. 2022). After 

carefully studying the record and the arguments Bache makes on 

appeal, we find no basis to reverse. In that regard, we have often 

stated that when "a trial court accurately takes the measure of a 

1 Bache initially filed suit in Middlesex Superior Court and

Appellees removed the suit to the District of Massachusetts.
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case, persuasively explains its reasoning, and reaches a correct 

result, it serves no useful purpose for a reviewing court to write 

at length in placing its seal of approval on the decision below." 

Moses v. Mele, 711 F.3d 213, 216 (1st Cir. 2013) (collecting 

cases). We substantially agree with the district court's reasoning 

and conclusions in its Memorandum & Order granting Defendants' 

motion to dismiss, so we will be brief with our discussion of 

Bache's arguments. To cut to the chase, we affirm the dismissal

for substantially all the reasons described by the district court, 

adding one brief point in response to Bache's arguments before us.

The district court dismissed Bache's Negligence and 

Negligent Infliction of Emotional Distress claims (counts 1 and 8) 

on three bases: first, that the Massachusetts Tort Claims Act

("MTCA") bars personal liability for Gath's alleged conduct; 

second, that common law immunity applied to Gath's enforcement of 

the Order; and third, that § 10(b) of the MTCA, often called the 

discretionary function exception, barred these claims against 

Boxborough for the allegedly negligent acts of its employee in 

carrying out discretionary functions, here Gath's enforcement of

the Order. On appeal, Bache only argues that the district court 

erred in dismissing the negligence-based claims against Boxborough

pursuant to § 10(b) of the MTCA because Gath's enforcement of the 

Order is not the type of conduct covered by this statutory bar.
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We agree with Bache that the discretionary function 

exception is not the right fit for Gath's conduct here, but we 

nevertheless affirm the dismissal of these two claims against 

Boxborough. Since we can affirm the dismissal "on any basis made 

apparent by the record," McCloskey v. Mueller, 446 F.3d 262, 266 

(1st Cir. 2006), we lay out our own rationale below. 

To start, we assess whether the discretionary function 

exception applies. Assuming for argument's sake that Gath had 

some discretion in deciding how to enforce the Order, for the 

exception to apply we must determine that the discretion he 

exercised "is that kind of discretion for which § 10(b) provides 

immunity from liability." Harry Stoller & Co. v. City of Lowell, 

587 N.E.2d 780, 782 (Mass. 1992). "The discretionary function 

exception is narrow, providing immunity only for discretionary 

conduct that involves policymaking or planning," but not the 

implementation of a policy. Greenwood v. Town of Easton, 828 

N.E.2d 945, 948 (Mass. 2005) (cleaned up). Here, Bache alleges 

that Gath failed to act and stop Oakes from taking certain 

property, despite the Order's requirement that she only take "small 

items, clothes, and shoes." In other words, Bache complains of 

how Gath implemented the Order. So, Bache has not alleged any 

policymaking or planning conduct on Gath's part to bring his 

conduct under the narrow discretionary function exception. See

id.; cf. A.L. v. Commonwealth, 521 N.E.2d 1017, 1024 (Mass. 1988)
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(probation officer not making policy or planning decision when 

deciding whether individual had complied with terms of their

probation); Irwin v. Town of Ware, 467 N.E.2d 1292, 1299 (Mass. 

1984) (police officer not making policy or planning decision when 

deciding whether to remove drunk driver from the road).

Still, we affirm the dismissal of Bache's negligencebased claims because we agree with the alternative ground that 

Boxborough offered in its brief, see Mass. Gen. Laws ch. 258, 

§ 10(j) (2022), and to which Bache offered no rejoinder, not even 

filing a reply brief. Section 10(j) applies to Gath's employer, 

Boxborough, and "exclude[s] liability for an act or failure to act 

to prevent or diminish [any] harmful consequences . . . including 

the violent or tortious conduct of a third person.” Brum v. Town 

of Dartmouth, 704 N.E.2d 1147, 1153 (Mass. 1999) (quoting ch. 258, 

§ 10(j) and cleaned up). The Massachusetts Supreme Judicial Court, 

whose lead we must follow here, has broadly read this statutory

language to provide "immunity [from] all consequences except where 

the condition or situation was originally caused by the public 

employer.” Id. (cleaned up); see also Stahr v. Lincoln Sudbury 

Reg'l High Sch. Dist., 102 N.E.3d 995, 999 (Mass. App. Ct. 2018) 

("10(j) confers significant protection from tort liability to 

public employers."). To be "originally caused" by the employer,

and therefore outside of 10(j) immunity, the employer's conduct 

must have "materially contributed to creating a condition or 
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situation that resulted in [the plaintiff's] injuries." Cormier

v. City of Lynn, 91 N.E.3d 662, 666-67 (Mass. 2018). Here, Bache's 

complaint alleges that Oakes -- a third person -- took some of his 

property on the collection day that he agreed to and made part of

the Order. The Order, which we reiterate was crafted by the 

parties, required a police officer to be present. Once there,

Bache alleges, Gath failed to intervene and stop Oakes when she 

helped herself to his property. In other words, Gath's allegedly 

harmful conduct was a failure to act, but neither Gath nor 

Boxborough originally created the circumstances by which Oakes 

took his property, thus bringing these claims right under 10(j)'s 

immunity shield. See id. at 667 (holding that "claims [were] 

barred by § 10(j) because they originate[d] from a failure to act 

rather than an affirmative act"); Stahr, 102 N.E.3d at 1000 

(affirming dismissal under 10(j) because plaintiff's complaint was

"premised on the defendant's failure to act"). 

While we have not addressed all of Bache's arguments, we 

have carefully considered each of them. For the reasons discussed 

above and those given in the district court's thorough analysis of 

all of Bache's claims, we affirm the dismissal. Costs to 

Appellees.