Probation officials' suit against former CJAM Mulligan dismissed.

Byline: Kris Olson

A federal judge on March 3 dismissed the lawsuit filed against formerChief Justice of Administration Robert A. Mulligan by two Probation Department employees who lost their jobs and were subsequently convicted of federal offenses as part of the scandal that began to unfold after a Boston Globe Spotlight Team report in May 2010.

Former Probation Commissioner John J. O'Brien and his second-in-command, Elizabeth Tavares, brought suit against Mulligan under 42 U.S.C. 1983 on June 28, 2016. The three counts alleged a violation of equal protection, under a "class of one" theory; a violation of procedural and substantive due process; and an abuse of process.

Judge Leo T. Sorokin wrote that a "class of one" equal protection claim has been determined by the U.S. Supreme Court not to be cognizable in the public employment context, citing the 2008 decisionEngquist v. Or. Dep't of Agric.

The count was also time-barred, Sorokin wrote, noting that the plaintiffs' claims date back to actions Mulligan had allegedly taken eight years ago, well beyond the applicable three-year statute of limitations.

Count II was time-barred for similar reasons, Sorokin said, the conduct having occurred in late 2010 and early 2011.

As for the abuse-of-process claim, that was based on the allegation that Mulligan "caused" the plaintiffs' indictment and wrongful conviction.

Sorokin said that such a claim was not cognizable as a civil rights violation under 1983, especially because there had been probable cause to initiate the plaintiffs' prosecution.

For that same reason, the malicious prosecution claim that the plaintiffs had effectively asked the court to read into their complaint also lacked merit.

"Even assuming that Judge Mulligan can plausibly be said to have 'caused' the federal indictments brought against O'Brien and Tavares -- an issue the Court does not decide -- Plaintiffs cannot show that the indictments were without probable cause for, as the Supreme Court recently explained, 'an indictment fair upon its face, and returned by a properly constituted grand jury, ... conclusively determines the existence of probable cause to believe the defendant perpetrated the offense alleged.'"

The 15-page decision is O'Brien, et al. v. Mulligan, Lawyers Weekly No. 02-071-20. The full text of the ruling can be found here.

O'Brien had been appointed commissioner of probation by Mulligan's predecessor, John J. Irwin Jr. O'Brien believed he had a "lifetime...