Provost v. Department of Correction (DOC)

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 16-12073-RWZ

STEVEN PROVOST and JASON PIKE

v.

THE MASSACHUSETTS DEPARTMENT OF CORRECTION,

STEVEN J. O’BRIEN, Superintendent of the Namansket Correction Center,

and THOMAS TURCO III, Commissioner of the Department of Correction

MEMORANDUM OF DECISION AND ORDER

January 12, 2018

ZOBEL, S.D.J.

Plaintiffs Steven Provost and Jason Pike bring this action1 against defendants

Massachusetts Department of Correction (“DOC”), Superintendent of the Namansket

Department of Correction, Steven J. O’Brien, and Commissioner of the Department of

Correction, Thomas A. Turco III. Plaintiffs contend that defendants violated their right

to be free from illegal detention, in violation of 42 U.S.C. § 1983, and their Fourth,

Eighth, and Fourteenth Amendment rights (Count I). Plaintiff Provost also asserts that

defendants violated his civil rights under the Massachusetts Civil Rights Act, Mass.

Gen. Laws ch. 12, § 11I, through threats, intimidation, and coercion (Count II). Docket

# 13. Before me now are defendants’ motions for summary judgment (Docket # 10), to

strike (Docket # 29), and to dismiss Pike’s claim (Docket # 31).

1 Plaintiffs also assert class action allegations in their amended complaint. However,

during the hearing on September 20, 2017, the parties agreed that the issue of class certification is not

properly before me at this time.

I. Background

I summarize the relevant facts in the light most favorable to plaintiffs, the non-

moving parties. See Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169,

172 (1st Cir. 2015).

A. Superior Court Proceedings Related to Provost

In March 2008, a jury returned a verdict finding that Provost was a sexually

dangerous person. Docket # 12-1, at 30. Subsequently, Provost was committed to the

Massachusetts Treatment Center at Bridgewater (the “MTC”) “for an indeterminate

period of a minimum of one day and a maximum of his natural life until discharged

pursuant to the provisions of [Mass. Gen. Laws ch. 123A,] section 9.” Id. On

November 19, 2012, Provost filed a petition in the Hampden Superior Court for

examination and discharge pursuant to Massachusetts General Laws chapter 123A,

section 9. Id. at 35. A jury trial was held in April 2016, which concluded on Friday, April

22, 2016, when the jury returned a verdict that Provost was no longer sexually

dangerous. Id. at 39. There is a dispute about certain events that transpired after the

jury’s verdict. Plaintiff asserts that the superior court judge initially allowed his request

for immediate release, but that the DOC objected and interfered by informing court

officers that Provost had to return to the MTC until correct paperwork relating to

Provost’s intended residence was submitted to the Sex Offender Registry Board

(“SORB”). See Docket # 13, at ¶¶ 29–35; see also Docket # 23-1, at ¶¶ 8–15. Provost

had initially submitted to SORB the address of the Southampton Street Shelter as his

intended address, but on the last day of trial, he provided DOC counsel with the

address of the Boston Rescue Mission. Provost claims that the DOC informed his

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counsel that it “needed Mr. Provost to remain incarcerated until they had submitted the

‘correct’ address of the Boston Rescue Mission in Boston to SORB.” Docket # 23-1, at

¶ 11. Defendants move to strike such assertions because, they contend, these

statements are hearsay. In any event, it is undisputed that rather than ordering Provost

to be immediately released, the superior court issued an Order of Discharge signed by

the session clerk ordering Provost to be “discharged from custody and released from

the Massachusetts Treatment Center no later than the end of the business day on

Monday April 25, 2016.” Docket # 12-1, at 39. Provost was eventually released on

April 25 at approximately noon. Id. at 40.

B. State Proceedings Related to Pike

Around 2002, Pike was involuntarily civilly committed as a sexually dangerous

person pursuant to Massachusetts General Laws chapter 123A, section 9, and he

remains committed in the MTC. Like Provost, Pike filed a petition for examination and

discharge, and his trial is scheduled to begin on November 4, 2019. Docket # 13, at ¶

53.

C. United States District Court Proceedings

On October 17, 2016, Provost filed his original complaint against defendants in

this court. Docket # 1. After several assented-to motions for extension of time to

respond, defendants moved for summary judgment on April 11, 2017. Docket # 10. On

May 1, 2017, Provost filed an amended complaint, adding Jason Pike as a named

plaintiff and clarifying that plaintiffs are suing defendants Turco and O’Brien in their

individual capacities. See Docket # 13, at ¶¶ 6–7. In response to plaintiffs’ opposition

to their motion for summary judgment, defendants moved to strike portions of plaintiffs’

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statement of undisputed facts and affidavit of Michael Ryan (the “Ryan Affidavit”), who

was co-counsel for Provost in the state court proceeding. Docket # 29.

II. Legal Standard

Summary judgment is appropriate when the moving party “shows that 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). “An issue is ‘genuine’ for purposes of summary

judgment if ‘the evidence is such that a reasonable jury could return a verdict for the

nonmoving party,’ and a ‘material fact’ is one which ‘might affect the outcome of the suit

under the governing law.’” Poulis-Minott v. Smith, 388 F.3d 354, 363 (1st Cir. 2004)

(quoting Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 90 (1st Cir. 1993)). “In order to

defeat a motion for summary judgment, the nonmovant may not rest upon some

combination of conclusory allegations, improbable inferences, and unsupported

speculation, but must instead present definite, competent evidence to rebut the

motion.” Advanced Flexible Circuits, Inc. v. GE Sensing & Inspection Techs. GmbH,

781 F.3d 510, 516 (1st Cir. 2015).

Pursuant to Fed. R. Civ. P. 12(b)(1), a defendant may move to dismiss an action

based on lack of federal subject matter jurisdiction. In opposing such motion, the

plaintiff bears the burden of establishing that the court has jurisdiction. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992). “[A] plaintiff, however, may not rest

merely on unsupported conclusions or interpretations of law.” Murphy v. United States,

45 F.3d 520, 522 (1st Cir. 1995) (citations omitted). “Dismissal is appropriate where a

‘district court lacks the statutory or constitutional power to adjudicate’ the case.” Seow

v. Grondolsky, No. 10-cv-40174-TSH, 2012 WL 5392322 at *1 (quoting Makarova v.

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United States, 201 F.3d 110, 113 (2d Cir. 2000)).

Hl. Analysis

Defendants move for summary judgment as to Provost’s claims and move to

dismiss Pike’s § 1983 claim. | address first defendants’ motion to dismiss Pike’s claim

for lack of standing and ripeness.

A. Motion to Dismiss Pike’s § 1983 Claim

“A motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P.

12(b)(1) is appropriate when the plaintiff lacks standing to bring the claim.” Plumbers’

Union Local No. 12 Pension Fund v. Nomura Asset Acceptance Corp., 894 F. Supp. 2d

144, 150 (D. Mass. 2012) (quoting Edelkind v. Fairmont Funding, Ltd., 539 F. Supp. 2d

449, 453 (D. Mass. 2008)). “The Constitution limits the judicial power of the federal

courts to actual cases and controversies.” Katz v. Pershing, LLC, 672 F.3d 64, 71 (1st

Cir. 2012) (citing U.S. Const. art. Ill, § 2, cl. 1). “To satisfy the personal stake

requirement, a plaintiff must establish each part of a familiar triad: injury, causation, and

redressability.” Katz, 672 F.3d at 71 (citing Lujan, 504 U.S. at 560-61). In order to

establish injury in fact, plaintiff must show “an invasion of a legally protected interest

which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or

hypothetical.” Lujan, 504 U.S. at 560. “Ripeness, another aspect of justiciability, ‘has

roots in both the Article Ill case or controversy requirement and in prudential

considerations.” Reddy v. Foster, 845 F.3d 493, 500 (1st Cir. 2017) (quoting Roman

Catholic Bishop of Springfield v. City of Springfield, 724 F.3d 78, 89 (1st Cir. 2013)). In

order to establish ripeness, plaintiff must show that it meets both the “fitness” and

“hardship” prongs. See Mangual v. Rotger-Sabat, 317 F.3d 45, 59 (1st Cir. 2003).

“The jurisdictional component of the fitness prong concerns ‘whether there is a

sufficiently live case or controversy, at the time of the proceedings, to create jurisdiction

in the federal courts.’” Reddy, 845 F.3d at 501 (quoting Roman Catholic Bishop, 724

F.3d at 89).

Defendants argue that Pike lacks standing and that his claim is not ripe for

adjudication. Specifically, they contend that Pike has failed to establish an injury in fact

because his trial has yet to take place—it is currently scheduled for November

2019—and thus, he cannot establish that a jury will find him to be not sexually

dangerous and that defendants will violate his rights. They also assert that this case is

not ripe because “Pike’s claim relies on a chain of contingencies that may never come

to pass,” Docket # 32, at 8, including the fact that Pike may be found to be sexually

dangerous and therefore, ineligible for release.

I agree. Whether Pike will be found eligible for release in 2019, and whether the

DOC will infringe on his rights, is highly uncertain at this time. Accordingly, defendants’

motion to dismiss Pike’s claim is allowed.2 See Katz, 672 F.3d at 71 (“The requirement

of an actual or imminent injury ensures that the harm has either happened or is

sufficiently threatening; it is not enough that the harm might occur at some future

time.”); see also Reddy, 845 F.3d at 500 (“[T]he Supreme Court has reinforced that

ripeness doctrine seeks to prevent the adjudication of claims relating to ‘contingent

future events that may not occur as anticipated, or indeed may not occur at all.’”

2 Defendants also move to dismiss Pike’s claims under Federal Rule of Civil Procedure 12(b)(6).

Because I find sufficient reason to dismiss Pike’s claims under Federal Rule of Civil Procedure 12(b)(1), I

will not address defendants’ arguments for failure to state a claim. See Ne. Erectors Ass’n of the BTEA v.

Sec’y of Labor, Occupational Safety & Health Admin., 62 F.3d 37, 39 (1st Cir. 1995).

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(quoting Texas v. United States, 523 U.S. 296, 300 (1998))).

B. Motion for Summary Judgment as to Provost’s Claims

Defendants argue that they are entitled to summary judgment because (1)

Provost cannot recover damages under 42 U.S.C. § 1983 without having shown that

the superior court order was invalid; (2) defendants acted pursuant to a facially valid

court order and therefore are entitled to qualified immunity; (3) Provost cannot recover

money damages against the DOC or the individual defendants in their official capacities

under the Eleventh Amendment3; (4) Provost fails to state a claim for relief under the

Massachusetts Civil Rights Act; and (5) Provost lacks standing to seek declaratory and

injunctive relief.

Defendants’ motion is allowed with respect to claims against the DOC. Although

not expressly stated as an Eleventh Amendment defense, defendants argue that the

DOC cannot be held liable because “[t]he Commonwealth and its agencies are not

‘persons’ within the meaning of 42 U.S.C. § 1983,” Docket # 11, at 7 (citing Will v.

Michigan Dep’t of State Police, 491 U.S. 58, 65–66 (1989)). In Michigan Dep’t of State

Police, the Supreme Court held that “Section 1983 provides a federal forum to remedy

many deprivations of civil liberties, but it does not provide a federal forum for litigants

who seek a remedy against a State for alleged deprivations of civil liberties. The

Eleventh Amendment bars such suit unless the State has waived its immunity,” 491

U.S. at 66 (citations omitted). Presumably, recognizing the well-established case law

that a plaintiff cannot sue an agency or state officials acting in their official capacity for

3 Defendants’ motion for summary judgment was filed in response to plaintiff’s original

complaint, which appeared to bring suit against Turco and O’Brien in their official capacities. See Docket

# 1, at ¶¶ 5–6.

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damages under § 1983, plaintiffs amended their complaint to “clarif[y] that these

defendants are being sued in their individual capacity.” Docket # 21, at 19. However,

plaintiff fails to address the DOC’s sovereign immunity defense, which absolutely bars

plaintiff's claims against the DOC. See Poirier v. Mass. Dep’t of Correction, 558 F.3d

92, 97 (1st Cir. 2009) (“States and their agencies are entitled to sovereign immunity

‘regardless of the relief sought.” (quoting Ky. v. Graham, 473 U.S. 159, 167 n. 14

(1985))); see also Cryer v. Clarke, No. Civ. A. 09-10238-PBS, 2012 WL 6800791, at *6

(D. Mass. Sept. 7, 2012) (“[T]he DOC, as an arm of the state, enjoys Eleventh

Amendment immunity from suit in federal court.” (citing O'Neill v. Baker, 210 F.3d 41,

47 &n. 5 (1st Cir. 2000))).

To the extent that Provost’s claim for damages against the state officials sued in

their individual capacities remains, defendants argue that they are entitled to summary

judgment because plaintiff is precluded under the favorable termination rule of Heck v.

Humphrey, 512 U.S. 477 (1994), from recovering under § 1983 when plaintiff failed to

challenge the superior court discharge order on direct appeal. Heck held that “in order

to recover damages for allegedly unconstitutional conviction or imprisonment, or for

other harm caused by actions whose unlawfulness would render a conviction or

sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been

reversed on direct appeal, expunged by executive order, declared invalid by a state

tribunal . . . or called into question by a federal court’s issuance of a writ of habeas

corpus, 28 U.S.C. § 2254.” Id. at 486-87. Plaintiff argues that Heck’s favorable

termination rule is inapplicable because he is not challenging “the period during which

he was civilly committed at the Treatment Center,” Docket # 21, at 6. He claims, rather,

that he is “contesting the D.O.C.’s practice of extending otherwise-free individuals

based upon an incorrect reading of the law,” id. at 8. Here, Provost was not free “until

discharged” by court order. See Mass. Gen. Laws ch. 123A, § 9; see also Docket # 12-

1, at 30. Per the superior court’s discharge order, he was confined to the MTC until

April 25, 2016. As a result, a favorable ruling against the alleged misconduct of

defendants would necessarily imply the invalidity of the superior court order.4 See

Wilkinson v. Dotson, 544 U.S. 74, 83 (2005) (“[Heck and its progeny] indicate that a

prisoner’s § 1983 action is barred (absent prior invalidation)—no matter the relief

sought (damages or equitable relief), no matter the target of the prisoner’s suit (state

conduct leading to conviction or internal prison proceedings)—if success in that action

would necessarily demonstrate the invalidity of confinement or its duration.”).

Plaintiff further argues that “the timing of the Defendants’ actions left no

meaningful opportunity to bring an appeal,” and “[h]ad Mr. Provost appealed the court’s

ruling after his release, the appeal, in all likelihood, would have been dismissed as

being moot.” Docket # 21, at 17. Although any request for injunctive relief may have

been moot if he appealed after his release, Provost only seeks damages against

defendants, and thus, could have filed a direct appeal related to any injury he suffered

as a result of the alleged unlawful extended confinement. See Docket # 13, at 15

(requesting that “the Court award damages for the Plaintiff Steven Provost . . .;

4 Moreover, Provost alleges that court officers refused to release him because they were

“[a]biding by the DOC’s request,” Docket # 10, at ¶ 40. It is unclear why court officers would follow the

direction of the DOC and not the court. In any event, the disputed facts concerning the events leading up

to the issuance of the discharge order are not material for summary judgment purposes of deciding

whether, as a matter of law, Provost was required to first challenge the court’s discharge order on direct

appeal before bringing suit in this court.

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including compensatory damages against all individual Defendants jointly and severally,

and punitive damages against all individual damages”)5; cf. Cabot v. Lewis, 241 F.

Supp. 3d 239, 249 (D. Mass. 2017) (“[U]nder the law of this circuit, the fact that plaintiff

is not in custody and therefore cannot obtain habeas relief has no bearing on Heck’s

applicability to his claim.”). Accordingly, plaintiff’s § 1983 claim is barred under Heck.

Having dismissed plaintiff’s only federal claim, this court declines to exercise

pendent jurisdiction over his remaining state law claim, particularly because the

substantive issues will likely require interpretation of the relevant state statutory

provisions. See 28 U.S.C. § 1367(c); see also United Mine Workers of Am. v. Gibbs,

383 U.S. 715, 726 (1966) (“It has consistently been recognized that pendent jurisdiction

is a doctrine of discretion, not of plaintiff’s right. . . . Needless decisions of state law

should be avoided both as a matter of comity and to promote justice between the

parties, by procuring them a surer-footed reading of applicable law. Certainly, if the

federal claims are dismissed before trial, even though not insubstantial in a

jurisdictional sense, the state claims should be dismissed as well.”) (citation omitted).

C. Motion to Strike

Because I do not rely on Ryan’s Affidavit in resolving the instant motion for

summary judgment, I need not reach defendants’ motion to strike.

5 In his initial complaint, Provost sought injunctive and declaratory relief; but in their

Amended Complaint, such relief is sought only with respect to Pike’s claim, see Docket # 13, at 15.

Because defendants’ motion for summary judgment was brought prior to the Amended Complaint, they

argued that Provost lacks standing to seek such relief because he has been released from the DOC’s

custody. Despite no longer seeking such relief in the Amended Complaint, Provost nevertheless responds

to defendants’ argument. See Docket # 21, at 25–28. His prediction that he will likely commit crimes in

the future, which may result in similar issues pertaining to any release, cannot, without more, confer

standing today.

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IV. Conclusion

Defendants’ Motion for Summary Judgment (Docket # 10) and Motion to Dismiss

Jason Pike’s Claim (Docket # 31) are ALLOWED as to Count I. The state law claim

(Count II) is DISMISSED without prejudice.

Judgment may be entered accordingly.

Defendants’ Motion to Strike (Docket # 29) is DENIED AS MOOT.

January 12, 2018 /s/Rya W. Zobel

DATE RYA W. ZOBEL

SENIOR UNITED STATES DISTRICT JUDGE

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