Jones v. Commonwealth of Massachusetts

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

EDWARD JONES,

Plaintiff,

v. CIVIL ACTION NO. 16-11666-LTS

CAROL HIGGINS-O’BRIEN, LISA MITCHELL,

DOUGLAS BOWER, MICHAEL DEVINE,

JOHN F. CAMELO, SCOTT J. STEEVER,

MARTA LEON, NEAL NORCLIFFE, and

TODD DERBYSHIRE,

Defendants.

MEMORANDUM AND ORDER

SOROKIN, D.J.

I. Introduction

On August 15, 2016, pro se prisoner plaintiff Edward Jones filed a voluminous complaint

against three groups of defendants: (1) the Commonwealth of Massachusetts, Department of

Corrections (“DOC”), the Executive Office of Public Safety; (2) Daniel Bennett, Carol Higgins-

O’Brien, Thomas Turco, Christopher Fallon, Lisa Mitchell, Douglas Bower, Michael Devine, John

F. Camelo, Scott Steever, Hank LaValley, Marta Leon; and, (3) the Massachusetts Partnership for

Correctional Health, Neal Norcliffe and Todd Derbyshire. ECF No. 1. The 96-page complaint

consisted of 273 paragraphs and nine counts. Attached to the complaint were 142 pages of exhibits.

On October 12, 2016, the Court ordered Jones to file an amended complaint. ECF No. 9.

On November 18, 2016, Jones timely filed an Amended Complaint, bringing six counts against

defendants Higgins-O’Brien, Mitchell, Bower, Devine, Camelo, Steever, Leon, Norcliffe, and

Derbyshire. ECF No. 17 (referenced herein as “Amended Compl.”).

Before the Court are defendant Higgins-O’Brien’s motion to dismiss for lack of service of

process (ECF No. 56), defendants Mitchell, Bower, Devine, Camelo, Steever, and Leon’s (“the

DOC Defendants”) motion to dismiss for failure to state a claim upon which relief may be granted

(ECF No. 60), and defendants Norcliffe and Derbyshire’s (the “MPCH Defendants”) motion to

dismiss for failure to state a claim upon which relief may be granted (ECF No. 50). Jones opposed

the motions. ECF Nos. 57, 58 and 67. For the reasons stated below, the DOC Defendants’ motion

is hereby allowed in part and denied in part, MPCH Defendants’ motion to dismiss is hereby

allowed, and Higgins-O’Brien’s motion to dismiss is denied as moot. The action will be stayed

pending the Court’s attempt to locate pro bono counsel for Jones on the surviving claims.

II. Background

On June 13, 2013, Jones, a mentally ill state prisoner suffering from Post-Traumatic Stress

Disorder, was designated to the Residential Treatment Unit (“RTU”) at Old Colony Correctional

Center (“OCCC”). Amended Compl. ¶¶14-17; see Exhibit 54, ECF 1-2, p. 114, ref’d at Amend

Compl. ¶¶44, 50. At or around that time, another inmate, Vernon Thompson, was housed in a cell

next to Jones. Amended Compl. ¶17. Thompson sexually harassed and targeted Jones. Amended

Compl. ¶17. Soon after Thompson’s arrival to RTU in June 2015, Jones began reporting the

harassment to RTU clinicians. Id. From July 2015 through August 2015, Correctional Officer

Captain John Camelo and Deputy Superintendent of Operations Michael Devine were notified by

RTU mental health clinicians about Jones’ reports of harassment, but they failed to prevent the

sexual harassment. Amended Compl. ¶¶18-19. For example, Camelo and Devine failed to follow

procedures upon receiving these reports. Amended Compl. ¶¶21-22. Jones was later physically

assaulted. Amended Compl. ¶¶18-19. More broadly, Jones claims in a conclusory manner that

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“from June 2015 thru (sic) October 2015, the sexual harassment(s) continued inspite (sic) of

“Defendants” having been notified.” Amended Compl. ¶20.

On August 19, 2015, Inner Perimeter Security issued a “keep-away” order that Thompson

be kept away from Jones. Amend Compl. ¶26. On August 26, 2015, Thompson purportedly made

false allegations that Jones had been involved in a sexual incident, otherwise known as a PREA

incident.1 Amend. Compl. ¶ 30, Exhibits 64 ECF 1-2, p. 124, ref’d at Amend Compl. ¶¶44, 50.

Jones concludes, without a plausible factual basis, that Camelo knew the claims were false yet

initiated the PREA investigation. As part of the investigation of the PREA incident, Jones was

subjected to apparently routine medical and psychological screenings for suspected sexual abuse,

but which nevertheless purportedly traumatized Jones because he was a victim of sexual abuse as

a child. Amended Compl. ¶33.

On September 24, 2015, Jones claims that defendant Camelo “retaliated” against Jones by

placing him in “Awaiting Action” status “absent any disciplinary infractions”, in an attempt to

stop Jones from reporting harassment and his issues with Thompson. Amended Compl. ¶23.

Contemporaneous records submitted by Jones contradict this conclusory allegation. On September

24, 2015 and September 25, 2015, Jones reported to defendant OCCC Superintendent Lisa

Mitchell allegations of sexual harassment and his dissatisfaction with being placed on Awaiting

Action status. Amended Compl. ¶24. In a September 25, 2015 letter, Jones wrote to Mitchell:

As a result of myself, and, at least five (5) other prisoners’

addressing our uncomfortability and fears concerns about Vernon

1 PREA is an acronym for the Prisoner Rape Elimination Act. 34 U.S.C. §30301 et. seq.

(formerly 42 U.S.C. § 15601 et seq.). PREA does not provide a private right of action. See

Morissette v. Superintendent of MCI Cedar Junction, No. CIV.A. 14-10246-DJC, 2014 WL

3896722, at *3 (D. Mass. Aug. 7, 2014).

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Thompson to RTU mental health staff. Myself only, was escorted,

out of the RTU office to new man unit questioned by IPS Sgts., and

then placed on awaiting action status. Where I now remain --because

I refuse to, and fail to, allow inmate Vernon Thompson to victimize,

traumatize, harass, and abuse me verbally any longer…Instead of

stopping Vernon Thompson from sexually victimizing, abusing,

traumatizing and harassing myself and others [,] [c]orrectional staff

at this facility/site…failed to issue …disciplinary reports, and or

sanctions … and hold him accountable for his unlawful

actions…Refusing to hold inmate Vernon Thompson

accountable…makes you complicit in what…[he]… is doing. …[I]t

is clear that he is not getting any better and should be sent or

classified to the Treatment Center for help. Because it is clear that

his intention and mind-set is to victimize again sexually. All I want

is to be able to complete my time in peace. Get the treatment I need

without being subjected to victimization over and over again.

Exhibit 11, ECF 1-2, pp. 27-29, ref’d in Amend. Compl. ¶24. In response, Mitchell sent a letter to

Jones acknowledging receipt of the letter and September 24, 2015 grievance. Exhibit 11, ECF No.

1-2, p. 26, ref’s at Amend Compl. ¶ 24. Although Jones was perhaps singled out, there is nothing

in his grievance indicating that Camelo segregated Jones to silence him. Indeed, Jones also alleges,

in contradiction to a retaliatory conspiracy, that the reason DOC personnel “were going through

any means to keep inmate Thompson at O.C.C.C., was because inmate Thompson could not be

housed at any other DOC institutions due to enemy situations with other prisoners.” Amended

Compl. ¶34 (quotations omitted).

A September 24, 2015, MPCH mental health progress note, purportedly by Daniel P.

Bradley, MSW LICSCW, also captures Jones’ reaction:

Mr. Jones has an open mental health case. [T]hough currently on

AA status, client was seen in HSU as a MH Check-in secondary to

his concerns this afternoon regarding being placed on AA status for

his response to the return of another inmate to his housing unit. The

inmate in question had accused Mr. Jones of inappropriate behavior,

and Mr. Jones was appropriately reporting frustration and anger

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(within appropriate limits) with climate issues and with being placed

on AA as a result. Inmate used this contact to express his concerns

appropriately regarding his frustration with apparent false

accusations, feeling that security staff has not taken his concerns

seriously enough.

Exhibit 64, ECF No. 1-2, p. 124, ref’d in Amend. Compl. ¶44. There is no mention

of retaliation against Jones.

On September 25, 2015, Jones was again seen by MPCH staff. In an MPCH mental health

progress note, Vanessa Martino-Fleming, LMHC, documented her concerns for Jones’ safety and

her voicing those concerns to DOC:

Inmate…was extremely frustrated with the events that occurred

yesterday and with mental health and the DOC. Writer

acknowledged that the DOC’s decision to place other RTU inmate

that he had a previous issue with back on the unit was a stressful

situation[] for him. Writer reiterated that writer and all other RTU

staff had made it abundantly clear to the DOC that there were

numerous concerns with placing this other inmate back on the unit.

Writer recognizes that inmate had experienced some increased

symptoms related to previous incidents as well as with current DOC

decision. ..Writer reiterated that mental health had made their

clinical opinion clear to the DOC that this other RTU inmate’s safety

was at risk. Writer praised the inmate for coming over to the RTU

yesterday instead of acting on his angry feelings.

Exhibit 65, ECF No. 1-2, p. 125, ref’d in Amend. Compl. ¶44. Again, there is no

mention of retaliation in the progress note.

Jones claims that Mitchell failed to protect Jones from sexual harassment and/or assault.

Amended Compl. ¶24. Specifically, Jones claims that Mitchell disregarded the serious risk to Jones

by ignoring an August 19, 2015 “keep-away” order by releasing Thompson to OCCC general

population with Jones, and ignoring recommendation by mental health clinicians that Jones be

separated from Thompson by institution. Amended Compl. ¶¶26-27.

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On October 20, 2015, Jones was again seen by Martino-Fleming. Her progress note reflects

concern over Jones’ and the other inmate’s proximity--concern that four days later would appear

prescient:

[Jones] reported that he still had ongoing frustrations with alleged

PREA allegation and other inmate being moved to A-2…It should

be noted that this writer and the RTU mental health team have been

expressing their concerns for this inmate and other inmate’s safety.

This writer had expressed on previous case conference her concerns

with not separating inmates by institution.

Exhibit 69, ECF 1-2, p.126, ref’d in Amend. Compl. ¶44.

On October 24, 2015, Jones was assaulted and sexually harassed by Thompson in the

dining hall. Amended Compl. ¶28. Jones alleges that he was stabbed with a fork, resulting in a

laceration, nerve damage and pain. Id.

In early November 2015, Mental Health Director Neal Norcliffe was notified by RTU

mental health clinicians of Jones’ mental and physical symptoms as a result of issues from the

“undocumented” PREA investigation and sexual harassment. Amended Compl. ¶45-46. MPCH

records submitted by Jones indicate that he suffers from PTSD and that symptoms increased

coinciding with the interactions with inmate Thompson and “undocumented” PREA incidents.

MPCH Mental Health Treatment Plan Review, Exhibit 54, ECF No. 1-2, pp. 114-117, ref’d in

Amended Compl. ¶¶44, 50. Norcliffe failed to acknowledge or respond to a request from mental

health clinicians for a special accommodation of a single cell order. Amended Compl. ¶46. On

November 27, 2015, Jones initiated a “crisis call” because of symptoms relating to his mental

condition. Amended Compl. ¶¶45, 47. Norcliffe purportedly “retaliated” against Jones for

initiating the crisis call, by subjecting Jones to purportedly “inappropriate and non-emergency”

seclusion in a mental health watch cell. Amended Compl. ¶47.

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On December 3, 2015, Jones claims that Camelo initiated a second “undocumented” PREA

investigation based upon false allegations. Amended Compl. ¶ 32. As part of the investigation,

Jones was subjected to medical and psychological screenings for suspected sexual abuse which

traumatized the Jones, because he was a victim of sexual abuse as a child. Amended Compl. ¶33.

As part of the PREA screening, RTU mental health clinician Todd Derbyshire subjected Jones to

a purportedly inappropriate and non-emergency seclusion when Jones denied the PREA

allegations. Amended Compl. ¶35.

That same day, December 3, 2015, Jones alleges that Camelo instructed correctional officer

Scott Steever to prevent Jones from calling an approved Department of Correction Sexual Abuse

Confidential Hotline. Amended Compl.¶36. Steever followed this instruction and prevented Jones

from calling an alleged approved telephone number. Amended Compl.¶37.

Throughout this period, Jones surmises that a conspiracy and cover up occurred. First, he

alleges that on September 1, 2015, OCCC Director of Security Douglas L. Bower colluded with

OCCC Superintendent Lisa Mitchell to cover up what Jones describes as the August 26, 2015

“undocumented” PREA investigation. Amended Compl. ¶40. Second, he alleges that on December

4, 2015, Mitchell and Devine purportedly colluded with OCCC Records Manager Marta Leon and

removed all documents concerning the August 26, 2015 “undocumented” PREA investigation.

Amended Compl. ¶¶41-42. There is no supporting factual basis for these conclusory allegations in

the Amended Complaint.

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III. Discussion

A. The Standard

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure,

the amended complaint “must contain sufficient factual matter, accepted as true, to ’state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court “must take the allegations in the

complaint as true and must make all reasonable inferences in favor of the plaintiff[ ].” Watterson

v. Page, 987 F.2d 1, 3 (1st Cir.1993). “[F]actual allegations” must be separated from “conclusory

statements in order to analyze whether the former, if taken as true, set forth a plausible, not merely

a conceivable, case for relief.” Juarez v. Select Portfolio Servicing, Inc., 708 F.3d 269, 276 (1st

Cir.2013) (internal quotations omitted).

While the Court typically “may not consider any documents that are outside of the

complaint, or not expressly incorporated therein, unless the motion is converted into one for

summary judgment,” Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st

Cir.2001), there is an exception “for documents the authenticity of which are not disputed by the

parties; for official public records; for documents central to plaintiffs' claim; or for documents

sufficiently referred to in the complaint.” Watterson, 987 F.2d at 3. Here, the Court expressly does

not convert the motions to dismiss into motions for summary judgment.

B. Claims Against Higgins-O’Brien

All claims against defendant Higgins-O’Brien are DISMISSED sua sponte pursuant to 28

U.S.C. §1915A, and her motion to dismiss for lack of service is therefore DENIED as MOOT.

The only allegation in the amended complaint is that Jones notified Higgins-O’Brien by letter of

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the harassment and retaliation and that she failed to protect him from a situation that eventually

resulted in physical harm and sexual harassment. Amended Compl. ¶43. The allegation is

conclusory and does not state a claim. Indeed, Jones allegations plead possibilities, and not a

plausible claim upon which relief may be granted. Accordingly, all counts against Higgins-

O’Brien are DISMISSED, and her motion to dismiss for failure to serve is DENIED as MOOT.

C. DOC Defendants’ and MPCH Defendants Motion to Dismiss

1. Count 1 – 42 U.S.C. §1983 - Eighth Amendment Claims

a. Failure to Protect - Mitchell, Devine and Camelo

“Under the Eighth Amendment, ‘prison officials have a duty to protect prisoners from

violence at the hands of other prisoners.’” Lakin v. Barnhart, 758 F.3d 66, 70 (1st Cir. 2014) (citing

Farmer v. Brennan, 511 U.S. 825, 833 (1994)). “Not every injury suffered by one prisoner at the

hands of another, however, translates into constitutional liability.” Id. (citation and quotations

omitted). “Instead, a prison official violates an inmate's Eighth Amendment right against cruel and

unusual punishment based on a failure to prevent harm to the inmate only under two circumstances:

the inmate must show that he is incarcerated under conditions posing a substantial risk of serious

harm, and the prison official must have acted, or failed to act, with deliberate indifference to inmate

health or safety. Id. (citation and quotations omitted). A “substantial” risk is one that is “objectively

intolerable,” Farmer, 511 U.S. at 846. “Deliberate indifference” is more than mere negligence, and

likened to “criminal recklessness.” Burrell v. Hampshire Cty, 307 F.3d 1, 8 (1st Cir. 2002). Here,

Jones’ allegations are sufficient to plead a failure to protect claim against defendants Mitchell,

Devine and Camelo. Jones alleges that defendants Mitchell, Devine and Camelo were aware of a

substantial risk of serious harm to Jones from a specific other inmate in the form of his constant

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sexual harassment, that RTU medical staff notified Camelo and Devine of the complaints

regarding sexual harassment, and that each defendant ignored those complaints. RTU mental

health staff expressed their safety concerns to Devine and Camelo. Jones further alleges that he

notified defendant Mitchell of the harassment, and that in turn she ignored the threat when she

released the inmate into population with Jones. As a result, Jones alleges that he was assaulted and

injured. Moreover, as to Camelo, allegations that Camelo subjected Jones to unnecessary PREA

investigations that exacerbated his PTSD are sufficient for pleading purposes, and survive DOC

Defendants’ motion to dismiss.

b. Deliberate Indifference to Medical Needs – Norcliffe and

Derbyshire

In order to state a constitutional claim for the denial of adequate medical care under the

Eighth Amendment, an inmate must allege “acts or omissions ... sufficiently harmful to evidence

deliberate indifference to serious medical needs.” Leavitt v. Corr. Med. Servs., 645 F.3d 484, 497

(1st Cir. 2011). A serious medical need is “one that has been diagnosed by a physician as

mandating treatment, or one that is so obvious that even a lay person would easily recognize the

necessity for a doctor's attention.” Kosilek v. Spencer, 774 F.3d 63, 82 (1st Cir. 2014)(citations

and quotation omitted).

Here, Jones alleges that he is mentally ill and suffers from PTSD as a result of being

sexually victimized as a child. He is under the care of DOC/MPCH mental health personnel. Jones

alleges that his mental condition deteriorated to the point where mental health staff requested a

single-cell status for Jones. Jones alleges that Norcliffe failed to acknowledge and ignored the

request for a single cell, and Norcliffe retaliated against him after an incident occurred relative to

this issue. The intentional denial of a medically required cell could be deliberate indifference to

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the health and safety of an inmate under the Eighth Amendment. Villery v. Beard, No.

115CV00987DADBAMPC, 2016 WL 8730770, at *2 (E.D. Cal. Apr. 8, 2016); see Cryer v.

Spencer, No. CIV.A. 11-10654-DJC, 2012 WL 892883, at *5 (D. Mass. Mar. 15, 2012)(denial of

single bunk cell status stated Eighth Amendment claim); Restucci v. Clarke, 669 F. Supp. 2d 150,

156 (D. Mass. 2009). However, Jones’ allegations are not plausibly pleaded to allege deliberate

indifference. Rather, the reasonable inference of the allegations and documents referenced in the

amended complaint, is a mere temporal gap between an internal request and provision of the cell.

While Jones asserts the short delay was intentional, the assertions are entirely speculative.2

Jones’ allegations against Norcliffe that he placed Jones on a six day mental health watch

in “retaliation” to Jones’ request for a mental health crisis, and later against Derbyshire for placing

Jones on a crisis watch placement fail to state an Eighth Amendment claim fare no better. Indeed,

“[t]o the extent it is [Jones’] opinion that he should not have been placed on mental health status…,

this disagreement with the mental health workers…does not rise to the level of medical

indifference in violation of the Eighth Amendment.” Morales v. Saba, No. CV 15-10732-RGS,

2016 WL 593493, at *11 (D. Mass. Feb. 12, 2016), appeal dismissed (Sept. 9, 2016)(citing

Soneeya v. Spencer, 851 F. Supp. 2d 228, 242 (D. Mass. 2012)). Moreover, the allegations do not

2 While DOC may be correct that 42 U.S.C. § 1997e(e) may be a bar to a compensatory damages

claims in the absence of physical injury, but not for punitive or nominal damages, and injunctive

relief. Because of the unsettled state of the law, the claims survive the motions to dismiss. See

Hudson v. MacEachern, 94 F. Supp. 3d 59, 67 (D. Mass. 2015)(citing Kuperman v. Wrenn, 645

F.3d 69, 73 (1st Cir. 2011)); Peters v. Azzara, No. 15-CV-025-LM, 2017 WL 4118388, at *5

(D.N.H. Aug. 4, 2017), report and recommendation adopted sub nom. Peters v. NH Dep't of Corr.,

Comm'r, No. 15-CV-025-LM, 2017 WL 4119160 (D.N.H. Sept. 14, 2017)(citing Kuperman v.

Wrenn, 645 F.3d 69, 73 (1st Cir. 2011)).

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show how placing Jones on crisis watch had any detriment to his mental health needs or how it

was deliberately indifferent thereto.

Accordingly, as to Count 1, the DOC Defendants’ Motion is ALLOWED as to defendants

Bower, Steever and Leon, and DENIED as to defendants Mitchell, Devine and Camelo; MPCH

Defendants’ Motion is ALLOWED as to defendants Derbyshire and Norcliffe.

2. Count 2 - Fourteenth Amendment Claims

In his opposition to the DOC Defendants’ Motion to Dismiss, Jones argues his Due Process

claim relates to his inability to use the telephone to contact a sexual abuse hotline. An inmate is

entitled to due process protections only when an existing liberty or property interest is at stake.

Sandin v. Conner, 515 U.S. 472, 484 (1995). A liberty interest is infringed only if the punishment

inflicted upon the inmate imposes “atypical and significant hardship on the inmate in relation to

the ordinary incidents of prison life.” Id. at 484. As this Court has noted, albeit in a different

context, “[p]risoners have no per se constitutional right to use a telephone.” Sanchez v. Global Tel

Link, et al., 2015 WL 8215880 (D. Mass. Dec. 8, 2015)(quoting United States v. Footman, 215

F.3d 145, 155 (1st Cir. 2000)). Here, Jones alleges that on a single occasion he was refused access

to call a certain mental health hotline number on a telephone, and the documents referenced in the

amended complaint instead demonstrate plaintiff was provided a different number to call. Even if

he had a liberty interest, a point on which this Court need not decide, this single incident from a

Due Process perspective does not plausibly allege an “atypical and significant hardship” on Jones

in relation to the ordinary incidents of prison life.

As to the MPCH Defendants, Jones’ claims that his Due Process rights were violated under

the Fourteenth Amendment when (1) he was placed by Norcliffe in “inappropriate and non-

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emergency” placement for six days after having a mental health crisis, and (2) a single conclusory

allegation that Derbyshire subjected him to inappropriate and non-emergency segregation when

Jones denied being involved in a PREA incident fail. “Placement on awaiting action status or

administrative segregation does not rise to the level of an atypical and significant hardship.”

Morales v. Saba, No. CV 15-10732-RGS, 2016 WL 593493, at *9 (D. Mass. Feb. 12, 2016), appeal

dismissed (Sept. 9, 2016). “Rather, this is the type of confinement that inmates may receive at

some point during their incarceration.” Id.; Hudson v. MacEachern, 94 F. Supp. 3d 59, 69 and n.5

(D. Mass. 2015)(dismissing Fourteenth Amendment claim for placement in Special Management

Unit where no significant time alleged under procedural and substantive Due Process

considerations).

Accordingly, as to Count 2, DOC Defendants’ motion to dismiss and MPCH Defendants’

motion to dismiss are ALLOWED.

3. Count 3- Americans with Disabilities Act, 42 U.S.C. §12131

“Title II of the [Americans with Disabilities Act] prohibits discrimination by public entities

against persons with disabilities.” Cox v. Massachusetts Dep't of Correction, 18 F. Supp. 3d 38,

48–49 (D. Mass. 2014); 42 U.S.C. § 12132. “This prohibition applies to state prisons.” Id. (citing

Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206 (1998)). “In order to state a claim, plaintiff

must allege ‘(1) that he is a qualified individual with a disability; (2) that he was either excluded

from participation in or denied the benefits of some public entity's services, programs, or activities

or was otherwise discriminated against; and (3) that such exclusion, denial of benefits, or

discrimination was by reason of the plaintiff's disability.’” Id. (quoting Parker v. Universidad de

Puerto Rico, 225 F.3d 1, 5 (1st Cir.2000)). An ADA claim is typically brought against the public

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entity, not individuals. Rather, any claim against individuals must be brought in their official

capacities, and only for purposes of injunctive relief. Villery v. Beard, No.

115CV00987DADBAMPC, 2016 WL 8730770, at *2 (E.D. Cal. Apr. 8, 2016); Reaves v. Dep't

of Correction, 195 F. Supp. 3d 383, 419 (D. Mass. 2016)(individuals may be enjoined under Title

II of ADA in their official capacities). Here, the allegations of the amended complaint do not plead

an ADA claim because Jones has not plausibly alleged that he was discriminated against by reason

of his disability. See Cryer v. Spencer, No. CIV.A. 11-10654-DJC, 2012 WL 892883, at *5 (D.

Mass. Mar. 15, 2012)(dismissing ADA claim where no allegation that discrimination was because

of inmate’s disability); Lopes v. Beland, No. 11-CV-12063, 2014 WL 1289455, at *12 (D. Mass.

Mar. 29, 2014)(dismissing ADA claim where allegation of removing plaintiff from single cell

status not alleged to be by reason of inmate’s mental disability). Even if a claim for injunctive

relief could otherwise be plausibly alleged, Jones was for eight months prior to bringing this action,

and currently is, apparently afforded a single cell in compliance with the recommendation of RTU

personnel. See Prayer for Relief 5, seeking injunctive relief to “continue prescribing and/or

renewing a single bunk cell order.” ECF No. 17 p. 19(emphasis supplied). Jones’s concern that he

might be subjected to a double bunk cell in the future is entirely speculative.

Accordingly, as to Count 3, DOC Defendants’ motion to dismiss and MPCH Defendants’

motion to dismiss are ALLOWED.

4. Count 4 - Federal Civil Rights Conspiracy Claims, 42 U.S.C. § 1985

A civil rights conspiracy under 42 U.S.C. §1985(3) pertains to conspiracies intended to

deprive an individual or class of persons of protected rights based on “‘some racial, or perhaps

otherwise class-based, invidiously discriminatory animus.’” Aulson v. Blanchard, 83 F.3d 1, 3 (1st

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Cir. 1996)(quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). Jones has not adequately

pleaded a section 1985 conspiracy. What Jones is attempting to allege is perhaps a civil rights

conspiracy under 28 U.S.C. §1983. “While conspiracies may be actionable under section 1983, it

is necessary that there have been, besides the agreement, an actual deprivation of a right secured

by the Constitution and laws.” Landrigan v. City of Warwick, 628 F.2d 736, 742 (1st Cir. 1980).

Paragraphs 40 through 43 describe in conclusory terms a possible scenario in which DOC

defendants agreed removed records and agreed to cover up an “undocumented” PREA

investigation by Camelo. See Hudson v. MacEachern, 94 F. Supp. 3d 59, 70 (D. Mass.

2015)(dismissing §1983 and §1985 conspiracy claims where complaint only alleged conclusory

agreement). The mere possibility of a conspiracy, without more, does not provide an avenue for

relief.

Accordingly, as to Count 4, DOC Defendants’ motion to dismiss is ALLOWED and MPCH

Defendants’ motion to dismiss is ALLOWED.

5. Count 5 – Intentional Infliction of Emotional Distress

“To make out a claim of intentional infliction of emotional distress, the plaintiffs were

required to show (1) that [the defendant] intended, knew, or should have known that his conduct

would cause emotional distress; (2) that the conduct was extreme and outrageous; (3) that the

conduct caused emotional distress; and (4) that the emotional distress was severe.” Galvin v. U.S.

Bank, N.A., 852 F.3d 146, 161 (1st Cir. 2017)(quoting Polay v. McMahon, 468 Mass. 379, 385

(2014)). “The standard for making a claim of intentional infliction of emotional distress is very

high.” Id. (citations and quotations omitted). “There is no liability even if the defendant acted with

an intent which is tortious or even criminal, with malice, or with a degree of aggravation which

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would entitle the plaintiff to punitive damages for another tort.” Id. (citations omitted). “Not even

an intent to inflict emotional distress is sufficient.” Id. (citation, quotations and punctuation

omitted). “Conduct qualifies as extreme and outrageous only if it goes beyond all possible bounds

of decency, and is regarded as atrocious, and utterly intolerable in a civilized community.” Id.

(citation, quotations and punctuation omitted). “A judge may grant a motion to dismiss where the

conduct alleged in the complaint does not rise to this level.” Id. (citation, quotations and

punctuation omitted). Jones, in his opposition to the DOC Defendants’ motion, narrows his IIED

claim only as to Camelo. He claims that defendant Camelo intended to inflict emotional

distress when he initiated false PREA investigations. Jones has failed to allege a plausible

IIED claim against Camelo. As to the denial of access to use of a telephone to contact a sexual

abuse victim support hotline, the allegation also is insufficient to plead an IIED claim.

Accordingly, as to Count 5, DOC Defendants’ motion is ALLOWED and MPCH Defendants

Motion is ALLOWED.

6. Count 6 – Article 26, Massachusetts Declaration of Rights

As DOC Defendants and MPCH Defendants submit, an Article 26 claim under the

Massachusetts Declaration of Rights is at least as expansive as Jones’ Eighth Amendment claims.

Cryer v. Spencer, No. CIV.A. 11-10654-DJC, 2012 WL 892883, at *7 (D. Mass. Mar. 15, 2012).

Accordingly, as to Count 6, DOC Defendants’ Motion is ALLOWED as to defendants Bower,

Steever and Leon, and DENIED as to defendants Mitchell, Devine and Camelo; MPCH

Defendants’ Motion is ALLOWED.

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7. Declaratory Relief

While Jones cites “violations” of prison policies at various points in the amended

complaint, the only request for declaratory relief comes in the prayer for relief at paragraph 6.

There, Jones asks the Court to “declare” that defendants’ “actions” violated Jones’ right to be free

from cruel and unusual punishment under the United States Constitution and Massachusetts

Declaration of Rights. There is no separate count for declaratory judgment. Although Jones,

apparently in response to briefing by DOC Defendants, might now be inclined to seek declaratory

relief, the Court declines to read such a claim into the amended complaint as it is filed.

8 Qualified Immunity

DOC Defendants have not sustained their burden that they are entitled to qualified

immunity at this stage of the proceedings. DOC Defendants entire argument is that “[t]his is

precisely the type [of case] which demands that DOC defendants be given qualified immunity

because the plaintiff has not made sufficient allegation of violations by the DOC defendants.” ECF

No. 63, p. 29. Absent any analysis, DOC Defendants have not met their burden establish qualified

immunity at this stage of the proceedings. DOC Defendants are not precluded from raising this

defense in a summary judgment motion if appropriate.

9. Retaliation

“It is well-settled that ‘retaliation against a prisoner's exercise of constitutional rights is

actionable’ under Section 1983.” Morales v. Saba, No. CV 15-10732-RGS, 2016 WL 593493, at

*11 (D. Mass. Feb. 12, 2016), appeal dismissed (Sept. 9, 2016)(citing Hannon v. Beard, 645 F.3d

45, 48 (1st Cir. 2011)). To state a claim of First Amendment retaliation, Jones must allege “1) he

engaged in constitutionally protected conduct, 2) prison officials took adverse action against him,

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3) with the intent to retaliate against him for engaging in the constitutionally protected conduct

and 4) he would not have suffered the adverse action ‘but for’ the prison officials' retaliatory

motive.” Hudson v. MacEachern, 94 F. Supp. 3d 59, 68 (D. Mass. 2015)(quoting Schofield v.

Clarke, 769 F.Supp.2d 42, 47 (D.Mass.2011)(dismissing retaliation claim for failure to allege but-

for element). The only specific allegation of DOC Defendants retaliation is that Camelo

“retaliated” against Jones by placing him in “Awaiting Action” status, Amend. Compl. ¶ 23. This

claim is conclusory, and the complaint does not address the “but-for” requirement of pleading such

a claim. In fact, the documents referred to in the amended complaint do not support a reasonable

inference that the purported action would not have occurred but-for the Camelo’s alleged

retaliatory motive. Jones also does not address the issue in his opposition to DOC Defendants’

motion to dismiss. As to MPCH defendants, Jones argues that Norcliffe “retaliated” against

him for calling a crisis call. These allegations are conclusory and not plausibly pleaded.

Without more, Jones has not alleged a plausible claim for retaliation.

IV. Conclusion and Order

Based on the foregoing, it is hereby Ordered that:

1. As to Defendant Higgins-O’Brien, Counts 1, 2, 3, 4, 5, and 6 are DISMISSED and

her Motion to Dismiss for Lack of Service (ECF No. 56) is DENIED as MOOT.

2. DOC Defendants’ Motion to Dismiss (ECF No. 60) is ALLOWED in part and

DENIED in part as follows:

a. All Counts are DISMISSED as to defendants Martha Leon.

b. Counts 2, 3, 4, and 5 are DISMISSED as to defendant Lisa Mitchell.

c. All Counts are DISMISSED as to defendant Douglas L. Bower.

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d. Counts 2, 3, 4, and 5 are DISMISSED as to defendant Michael Devine.

e. Counts 2, 3, 4, and 5 are DISMISSED as to defendant John F. Camelo.

f. All Counts are DISMISSED as to Scott Steever.

3. MPCH Defendants’ Motion to Dismiss (ECF No. 50) is ALLOWED as follows:

a. All counts are DISMISSED as to defendant Todd Derbyshire.

b. All counts are DISMISSED as to defendant Neal Norcliffe.

4. Defendants Mitchell, Camelo, and Devine shall file an answer to the amended

complaint within 14 days of the entry of this order, which is hereby STAYED pending the

appearance of pro bono counsel on behalf of plaintiff Edward Jones, notice from the Court that

pro bono counsel will not be appearing on Jones’ behalf, or further Order of this Court.

5. The Court sua sponte reconsiders its order on Jones’ renewed motion for pro bono

counsel pursuant to 28 U.S.C. § 1915(e)(1). ECF No. 19. The motion is CONDITIONALLY

ALLOWED. The allowance of a motion for pro bono counsel does not guarantee the appointment

of counsel. It means that the Court, through its pro bono coordinators, will contact members of the

local bar who have expressed an interest in providing pro bono representation in this Court, notify

them that the Court seeks pro bono counsel for Jones, and provide the attorneys with a description

of the case. The Court cannot force attorneys to accept appointment as pro bono counsel. The pro

bono coordinators will continue this search until otherwise directed by the Court.

6. This action is STAYED pending appearance of pro bono counsel or notification by

the Court that it is unable to locate counsel.

SO ORDERED.

DATED: February 16, 2018 /s/ Leo T. Sorokin

LEO T. SOROKIN

UNITED STATES DISTRICT JUDGE

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