Unitt v. Spencer

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 17-11468-RGS

LEE P. UNITT

v.

DANIEL BENNETT, et al.

MEMORANDUM AND ORDER

April 10, 2018

STEARNS, D.J.

Pro se litigant Lee P. Unitt has filed a Complaint concerning various

conditions of her confinement at MCI Framingham. See Dkt #1.

Summonses have not been issued pending the court’s preliminary review of

the pleading pursuant to 28 U.S.C. § 1915A. Under this statute, the court

may dismiss a prisoner’s complaint sua sponte if it is “frivolous, malicious,

fails to state a claim upon which relief may be granted” or “seeks monetary

relief from a defendant who is immune from such relief.” 28 U.S.C.

§ 1915A(b).

For the reasons set forth below, the court concludes that Unitt has

improperly joined claims and parties and has failed to state a claim for

relief with regard to some of her claims. If she wishes to pursue any of her

claims, she must file amended pleadings to cure these deficiencies.

BACKGROUND

I. Overview of the Complaint

Unitt complains of four different categories of misconduct at MCI

Framingham: denial of access to the courts; inadequate medical care;

exposure to contaminants; and retaliation for submitting grievances. Unitt

states that she brings this action under 42 U.S.C. § 1983 (§ 1983), the

Americans with Disabilities Act, the Rehabilitation Act, and the Toxic

Substance Control Act, 15 U.S.C. §§ 2601-2692 (TSCA). Unitt represents

that she has exhausted relevant administrative remedies. Unitt submitted

approximately 575 pages of documents as exhibits to the Complaint. She

identifies thirty individuals as defendants. The court summarizes each

category of allegations.

A. Denial of Access to the Courts (¶¶ 30-53)

Under the heading of “Denial of Access to the Courts,” Unitt sets forth

various allegations concerning storage and retrieval of her legal documents,

limitations on copying documents, the prison administration’s definition of

“legal” documents, the superintendent’s refusal to allow Unitt’s family to

pick up a document from her that was to be filed in court, and the denial of

a grievance as untimely.

B. Inadequate Medical Care (¶¶ 54-127)

Unitt’s Complaint presents a panoply of allegations of misconduct

with regard to the medical care she has received at MCI Framingham,

which she has broken down into the following subcategories: (a) failure to

maintain an adequate system of filing and modification to inmate medical

files; (b) failure to maintain accurate medical records; (c) rendering of

medical services provided by unqualified personnel; (d) failure to provide

access to medical specialists; (e) failure to follow the directions of outside

specialists; (f) failure to provide adequate medical coverage; (g) charging

inmates a monetary fee to view their medical records; (h) interference with

medical care and mental health; (i) ineffective medical grievance

procedures; and (j) non-medical personnel substituting their judgment for

that of medical professionals. In addition, she alleges that certain

defendants violated the Americans with Disabilities Act and the

Rehabilitation Act by denying her requests for reasonable accommodations.

She further alleges that the defendants denied her right to informed

consent.

C. Exposure to Environmental Contaminants (¶¶ 128-134)

According to Unitt, inmates were evacuated from certain units at MCI

Framingham in October 2016. Unitt had understood that the evacuation

was because of contamination by black mold, asbestos, and other

substances, but Massachusetts Department of Correction (“DOC”) officials

informed Unitt that the units were evacuated so the windows could be

replaced and that no health hazards existed. Unitt alleges that the DOC

failed to adequately test the units for contaminants and to follow proper

procedures while replacing the windows to ensure proper encapsulation

and removal of polychlorinated biphenyls (“PCBs”). Unitt further claims

that inmates from another DOC facility performed labor on the window

replacements.

D. Retaliation for Exercising Constitutional Rights (¶¶ 135-163)

Unitt claims that various defendants retaliated against her for filing

grievances or otherwise complaining of allegedly unlawful conduct in the

following manners: (1) wrongly suspending her grievance privileges,

claiming that she had filed more than five grievances in a week; (2) refusing

to assign her a lower classification for which she was clearly qualified;

(3) issuing false disciplinary reports, ostensibly for misusing the microwave

oven, facing the wrong direction while sitting outside in the unit yard, and

improperly wearing shorts she had purchased from the DOC; and

(4) denying needed medication, on the pretext that Unitt had refused to

take her medications according to the proscribed schedule.

E. Toxic Substance Control Act (¶¶ 164-173)

Unitt alleges that she has been and continues to be exposed to unsafe

levels of PCBs at MCI Framingham, resulting in injury and risk of future

injury.

II. Other Motions

On January 10, 2018, Unitt filed a motion for leave to supplement

her Complaint. See Dkt #10. In the proposed supplemental pleading, Unitt

complains of restrictions on the copying of legal documents, further

exposure to contaminants, and a disciplinary sanction of the loss of canteen

privileges for 60 days. See Dkt #10-1. In a separate motion, she asks that

the approximately 255 pages of exhibits to the proposed supplemental

pleading be sealed because they “contain medical records and information

not only of Unitt but of other individuals.” Dkt #11 at 1.

Unitt also filed two largely duplicative motions for emergency

injunctive relief. See Dkt #12, Dkt #13. In these motions, Unitt asked the

court to issue a temporary restraining order and a preliminary injunction

and to enjoin the defendants from requiring her and other inmates to move

to a unit at MCI Framingham in which new windows have recently been

installed. She also asked the court to issue an order revoking a 60-day

canteen suspension sanction and to enjoin enforcement of MCI

Framingham’s policy concerning the photocopying of legal documents. On

February 5, 2018, the court entered an order denying these motions. See

Dkt #14.

DISCUSSION

I. Improper Joinder of Parties and Claims

As a threshold matter, the Complaint will not go forward in its

present form because Unitt has improperly joined parties and claims.

A. Rules Governing Joinder of Parties and Claims

Rule 18(a) of the Federal Rules of Civil Procedure provides: “A party

asserting a claim . . . may join, as independent or alternative claims, as

many claims as it has against an opposing party.” Fed. R. Civ. P. 18(a).

However, “[d]espite the broad language of Rule 18(a), plaintiff may join

multiple defendants in a single action only if plaintiff asserts at least one

claim to relief against each of them that arises out of the same transaction

or occurrence and presents questions of law or fact common to all.” 7

Charles Alan Wright et al., Federal Practice and Procedure § 1655 (3d ed.

2009) (emphasis added). Rule 18(a) permits multiple claims against a

single party, but it does not permit the joinder of unrelated claims against

different defendants. Under Rule 20(a) of the Federal Rules of Civil

Procedure, persons may be joined as defendants in a single action if “there

is asserted against them jointly, severally, or in the alternative with respect

to or arising out of the same transaction, occurrence, or series of

transactions or occurrences; and any question of law or fact common to all

defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). “Thus,

multiple claims against a single party are fine, but Claim A against

Defendant 1 should not be joined with unrelated Claim B against Defendant

2. Unrelated claims against different defendants belong in different suits.”

George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Moreover, where the

plaintiff is a prisoner, requiring unrelated claims to be filed in different

actions ensures that prisoners pay the required filing fees for their lawsuits

and prevents prisoners from circumventing the “three strikes” rule under

the Prison Litigation Reform Act. See id.

B. Unitt Cannot Bring All Her Claims in a Single Pleading

Here, Unitt has not alleged that all of the defendants participated in

the same transaction or series of transactions and that a question of fact or

law is common to all of them. Unitt’s broad characterization of her claims

as those concerning “conditions of confinement” does not create the

necessary relationship between her claims to allow them to be asserted in a

single lawsuit.

If Unitt wishes to pursue this action, she must file an amended

complaint that complies with the rules of joinder of parties and claims. By

necessity, her amended complaint will not contain all the claims asserted in

the original Complaint. The $400 filing fee which Unitt has paid will

continue to be applied to this case

To the extent that Unitt wishes to pursue claims that cannot be joined

in a single lawsuit, she must file in this action as many separate proposed

amended complaints as required to ensure compliance with the rules of

joinder of claims and parties. Once filed in this action, the court will order

that the proposed amended complaints be severed from this action, that a

new docket number be assigned for each proposed amended complaint,

and that the original Complaint and each proposed amended complaint be

docketed in the new case(s). For purposes of the statute of limitations and

relation back of amendments, the date this action was commenced (August

3, 2017) will be considered to be the commencement date of any new case

opened as result of severing claims from this action.1 Unitt will be

responsible for a filing fee in each separate action.

As an amended complaint completely replaces an original complaint,

see Connectu LLC v. Zuckerberg, 522 F.3d 82, 91 (1st Cir. 2008), Unitt

should repeat in the amended complaint or proposed amended

complaint(s) any allegations in the original Complaint that she wishes to be

part of the operative pleading. While exhibits may be attached to an

amended complaint, they are not required and they are not a substitute for

adequately pleading a claim within the body of the pleading. At this early

stage of the litigation, all well-pled allegations are taken to be true and

considered in the light most favorable to the plaintiff. A plaintiff is not

required to provide admissible evidence of her claims at this point; she

must simply adequately plead them. Further, legal argument is

unnecessary.

II. Merit Review of Complaint

While the court will not allow the Complaint to go forward in its

present form, the court nonetheless conducts a preliminary review of

Unitt’s claims. This screening is not an exhaustive discussion of all of

1By clerical necessity, the case opening date for any case created by severing

claims from this action will be the actual date the clerk assigns the new case

number.

Unitt’s claims. Any amended complaint or proposed amended complaint

Unitt files may be subject to additional screening prior to the issuance of

summonses.

In conducting this review, the court is mindful of the requirements of

Rule 8(a)(2) of the Federal Rules of Civil Procedure, which mandates that a

complaint include “a short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In other words,

Unitt must assert non-conclusory and non-speculative factual allegations

that, accepted as true, “state at claim a claim for relief that is plausible on

its face.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Unitt’s obligation to provide

the grounds of her claim “requires more than labels and conclusions.”

Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual

matter, accepted as true” to state a plausible claim for relief. Iqbal, 556

U.S. at 678. “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. “Where a complaint

pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops

short of the line between possibility and plausibility of ‘entitlement to

relief.’” Id. (quoting Twombly, 550 U.S. at 557) (internal quotation marks

omitted). A plaintiff must “nudge[] [her] claims across the line from

conceivable to plausible.” Twombly, 550 U.S. at 570.

A. Section 1983

Unitt brings claims under § 1983, which provides that any “person,”

acting under the color of state law, who “subjects, or causes to be subjected,

any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to the party injured.” 42 U.S.C.

§ 1983.

1. Personal Involvement

“It is well-established that ‘only those individuals who participated in

the conduct that deprived the plaintiff of his rights can be held liable.’”

Velez-Rivera v. Agosto-Alicea, 437 F.3d 146, 156 (1st Cir. 2006) (quoting

Cepero-Rivera v. Fagundo, 414 F.3d 124, 129 (1st Cir. 2005)). “In § 1983

cases, ‘supervisors are not automatically liable for the misconduct of those

under their command. A plaintiff must show an affirmative link between

the subordinate officer and the supervisor, whether through direct

participation or through conduct that amounts to condonation or tacit

authorization.’” Id. (quoting Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir.

2000)). The action or inaction of the supervisory authority must have “led

inexorably to the constitutional violation.” Feliciano-Hernandez v.

Pereira-Castillo, 663 F.3d 527, 533 (1st Cit. 2011) (citation omitted).

Thus, broad allegations against high-ranking government officials

often fail to state a claim because their position alone is insufficient to show

personal involvement. See id. at 534 (citing cases); Dahl v. Weber, 580

F.3d 730, 733 (8th Cir. 2009) (“[A] warden’s general responsibility for

supervising the operations of a prison is insufficient to establish personal

involvement.” (alteration in original) (quoting Ouzts v. Cummins, 825 F.2d

1276, 1277 (8th Cir. 1987))).

Unitt seeks to hold high-ranking state officials (i.e., Secretary of

Commonwealth’s Executive Office of Public Safety, current and past DOC

Commissioners) liable under § 1983 because of their general supervisory

powers. See Compl. ¶¶ 3-4/c. Their statutory authority alone is inadequate

to show the direct participation needed to hold them liable under § 1983.

Similarly, to the extent that Unitt claims current and former

superintendents of MCI Framingham are liable because they are statutorily

defined as the “chief administrative officer” of the correctional facility,

M.G.L. ch. 125, § 1(p) (cited in Compl. ¶ 5/c), their job descriptions alone do

not permit an inference that they were directly involved in the alleged

constitutional violations of their subordinates.

Further, a prison official who simply denies an administrative

grievance of a constitutional violation has not necessarily directly

participated in the underlying violation. See, e.g., Stewart v. Beach, 701

F.3d 1322, 1328 (10th Cir. 2012) (“The ‘denial of a grievance, by itself

without any connection to the violation of constitutional rights alleged by

plaintiff, does not establish personal participation under § 1983.’” (quoting

Gallaher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009))); George v.

Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) (“Ruling against a prisoner on

an administrative complaint does not cause or contribute to the

[constitutional] violation. A guard who stands and watches while another

guard beats a prisoner violates the Constitution; a guard who rejects an

administrative complaint about a completed act of misconduct does not.”).

Denial of an administrative grievance can constitute direct participation for

purposes of § 1983 only when the denial itself works a constitutional

violation. See, e.g., Womble v. Harvanek, -- Fed. App’x --, 2017 WL

6333936, at *4 (10th Cir. Dec. 12, 2017) (allegations that superintendent

had denied prisoner’s request for clean drinking water sufficiently pled the

superintendent’s direct personal involvement in a constitutional violation).

Thus, in setting forth claims under § 1983 in an amended complaint, Unitt

must pay allege facts supporting a reasonable inference that any defendant

whom she seeks to hold liable was directly involved in the alleged

deprivation of a federal right.

2. State v. Local Governmental Defendants

A state, a state agency, or a state official sued in his or her official

capacity is not subject to suit under § 1983, because a state is not a “person”

within the meaning of § 1983. See Will v. Michigan Dep’t of State Police,

491 U.S. 58, 71 (1989). Thus, Unitt cannot maintain a § 1983 claim against

the DOC or any state employee in her or his official capacity.

Municipalities and other local governmental units are “persons”

within the meaning of § 1983. See Monell v. Dep’t of Soc. Servs. of the City

of New York, 436 U.S. 658, 690-91 (1978). To assert a so-called “Monell”

claim, a plaintiff must allege facts that, if true, prove that the “execution of

a government’s policy or custom . . . inflict[ed] the injury.” Id. at 694.

Unitt purports to assert “Monell” claims. However, this theory of liability is

inapplicable to her factual allegations because she does not name a

municipality or other local government as a defendant.

3. Federal Rights v. State Regulations

Unitt identifies numerous alleged violations of state regulations by

the defendants. However, § 1983 provides a cause of action for deprivation

of a right secured under the “Constitution and laws” of the United States,

42 U.S.C. § 1983, and the violation of a state law is not necessarily a

violation of a federal right, see, e.g., Stanley v. Vining, 602 F.3d 767, 769

(6th Cir. 2010) (“It has long been established that the violation of a state

statute or regulation is insufficient alone to make a claim cognizable under

§ 1983.”); Ziegler v. Michigan, 90 Fed. App’x 808, 810 (6th Cir. 2004)

(upholding dismissal of prisoner’s § 1983 claim that his mail was rejected in

violation of state regulations, and stating that “violations of state rules do

not state a claim under 42 U.S.C. § 1983”). While a defendant’s purported

violation of a state regulation is not always irrelevant to a § 1983 claim, see,

e.g., Castro v. County of Los Angeles, 833 F.3d 1060, 1076-77 (9th Cir.

2016) (existence of county regulation promulgated to prevent conduct

amounting to a constitutional violation proved that county knew of the risk

of the very harm that befell the plaintiff), it has no import if Unitt fails to

allege specific facts from which the court can reasonably infer that the

defendants violated a right guaranteed under federal law.

B. Denial of Access to the Courts

As currently pled, Unitt’s claims for denial of access to the court fails

to state a claim upon which relief may be granted. “The fundamental

constitutional right of access to the courts requires prison authorities to

assist inmates in the preparation and filing of meaningful legal papers by

providing prisoners with adequate law libraries or adequate assistance from

persons trained in the law.” Bounds v. Smith, 430 U.S. 817, 828 (1977).

However, to assert a claim for denial of access to the courts, a prisoner

must allege that the failure to provide the legal resources required in

Bounds resulted in actual injury. See Lewis v. Casey, 518 U.S. 343, 351

(1996); Logue v. Chatham County Detention Ctr., 152 Fed. App’x 781, 784

(11th Cir. 2005) (per curiam) (“To have standing to seek relief under § 1983

based on the denial copying privileges, a plaintiff must show actual injury

by showing that the denial actually impeded a non-frivolous claim). Here,

Unitt has failed to adequately plead that she was prejudiced by the

defendants’ alleged misconduct with regards to her access to the courts.

1. Inability to Access Legal Documents

Unitt does claim that her inability to access her legal documents was

the reason that she was unable to comply with an order in Unitt v. Helsel, et

al., C.A. No. 13-11926-WGY (“Helsel”), and that her failure to comply led to

the dismissal of the action.2 However, Helsel belies any assertion that lack

of access to Unitt’s legal papers actually impeded a non-frivolous claim. As

2Unitt v. Helsel, et al., C.A. No. 13-11926-WGY was originally assigned to

Judge Joseph L. Tauro. It was randomly assigned to Judge Douglas P.

Woodlock on December 26, 2013, after Judge Tauro took senior status. On

June 9, 2015, the case was randomly assigned to Judge William G. Young

after Judge Woodlock took senior status.

Judge Tauro summarized in his September 24, 2013 memorandum and

order, Unitt had filed a civil complaint against the Board of Bar Overseers,

its investigators, prosecutors, and investigators for the prosecutors, alleging

that they had violated her civil rights in conjunction with the state

investigation and criminal prosecution against her. See Helsel, Dkt #7.

Reviewing the Complaint pursuant to 28 U.S.C. § 1915A, Judge Tauro

stated that the action had a “fatal flaw”: it was an impermissible attack on

Unitt’s intact conviction. Citing Heck v. Humphrey, 512 U.S. 477 (1994),

Judge Tauro found that, because success on the merits of Unitt’s claims

would necessarily imply the invalidity of her conviction or sentence, she

could not state a claim for relief unless her conviction had been “reversed

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

tribunal authorized to make such determination, or called into question by

a federal court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. at

487.3

Judge Tauro also held that the Complaint did not meet the pleading

requirements of Rule 8(a)(2) of the Federal Rules of Civil Procedures,

claims against state actors in their official capacity were barred by Eleventh

3See also Heck, 512 at 489-90 (“[A] § 1983 cause of action for damages

attributable to an unconstitutional conviction or sentence does not accrue

until the conviction or sentence has been invalidated.” (emphasis added)).

Amendment immunity, 18 U.S.C. § 242 does not provide a private action,

and the allegations did not support a claim under 42 U.S.C. § 1985(2) or

(3). Judge Tauro ordered Unitt to show good cause within 42 days why the

Complaint should not be dismissed. She was warned that failure to comply

with the directive would result in dismissal of the action.

The original deadline for the show cause response was November 5,

2013. Unitt filed several motions for additional time to comply with the

show cause order, citing difficulties accessing her legal documents. On

March 28, 2015, Judge Woodlock set a final deadline of April 17, 2015, and

warned Unitt that failure to meet the deadline would result in dismissal of

the action. See Helsel, Dkt #17. On April 15, 2015, Unitt filed a motion

requesting 120 more days to file an amended complaint. See Helsel, Dkt

#20. On June 11, 2015, Judge Young dismissed the action for failure to

comply with the show cause order and denied all pending motions as moot.

See Helsel, Dkt #22. Unitt appealed the dismissal, but First Circuit

dismissed the appeal for failure to resolve the appeal fee. See Helsel, Dkt

#31.

Crediting Unitt’s allegations that the defendants had wrongfully

denied her access to her legal documents, the court cannot discern any

actual prejudice with regard to Unitt’s ability to respond to Judge Tauro’s

show cause order. The “fatal flaw” of Unitt’s Complaint was that success on

her claims challenging the investigation and prosecution of her would

necessarily imply the invalidity of her conviction, and that her conviction

appeared to be intact. To overcome this barrier, Unitt needed to allege facts

from which the court could reasonably infer that the criminal proceedings

against her had been terminated in her favor. Given her own statement

that she was pursuing her direct appeal at the time, it would have been

impossible for her to meet this requirement even if she had full access to

her legal documents.

Moreover, if Unitt’s conviction had been overturned on direct appeal

or invalidated by a court or tribunal, she could have simply alleged the

same. Well-pled allegations are sufficient for a pleading, the purpose of

which is to provide notice — rather than proof — of a claim. Documentary

evidence is not required. Similarly, the Rule 8 pleading deficiencies Judge

Tauro identified could have been cured without a detailed description of the

alleged misconduct and submission of documents.

2. Other Conduct Allegedly Denying Access to the Courts

Unitt does not allege that the superintendent’s refusal to allow her

family to pick up documents she wanted filed with the court resulted in any

prejudice. Further, any denial of copies or delay in waiting for copies is not,

in itself, unconstitutional. See Boivin v. Black, 225 F.3d 36, 42 (1st Cir.

2000) (“The constitutionally-protected right of access to the courts is

narrow in scope. To illustrate, the right of access to the courts does not

extend to enabling prisoners to litigate with maximum effectiveness once in

court.” (citation omitted)); Miller v. Donald, 132 Fed. App’x 270, 272 (11th

Cir. 2005) (per curiam) (prison officials’ refusal to provide inmate with

copies of papers he was required to serve did not deny him of access to the

courts where inmate did not allege that court would not accept service of

hand-copied duplicates).

C. Inadequate Medical Care (§ 1983)

Although Unitt identifies numerous errors the defendants allegedly

made in providing her health care, she has failed to state a plausible claim

that the defendants violated her rights under the Eighth Amendment. The

court cannot reasonably infer from her allegations that the defendants were

deliberately indifferent to her serious medical needs.

1. Requirements for a § 1983 Claim for Lack of Medical Care

“Deliberate indifference to serious medical needs of prisoners

constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by

the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976)

(quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion of

Stewart, Powell and Stevens, JJ.)). However, not “every claim by a prisoner

that he has not received adequate medical treatment states a violation of

the Eighth Amendment, and “[m]edical malpractice does not become a

constitutional violation merely because the victim is a prisoner.” Id. at 105,

106. “In order to state a cognizable claim, a prisoner must allege acts or

omissions sufficiently harmful to evidence deliberate indifference to serious

medical needs.” Id. at 106.

An Eighth Amendment claim for inadequate medical care consists of

a subjective and an objective component. See Perry v. Roy, 782 F.3d 73, 78

(1st Cir. 2015). As to the objective component, the plaintiff must plead facts

which, if true, demonstrate that the deprivation was “sufficiently serious.”

Id. (quoting Leavitt v. Corr. Med. Servs., 645 F.3d 484, 497 (1st Cir. 2011)).

“[A] serious medical need is ‘one that is so obvious that even a lay person

would easily recognize the necessity for a doctors’ attention.’” Id. at 78-79

(quoting Gaudreault v. Municipality of Salem, 923 F.2d 203, 2018 (1st Cir.

1990)). “A significant risk of future harm that prison administrators fail to

mitigate may suffice under the objective prong.” Kosilek v. Spencer, 774

F.3d 63, 85 (1st Cir. 2014).

The subjective component requires factual allegations supporting an

inference of “deliberate indifference” by the defendant, a benchmark which

“defines a narrow band of conduct.” Id. (quoting Fenney v. Corr. Med.

Servs. Inc., 464 F.3d 158, 162 (1st Cir. 2006)). This standard requires

allegations supporting a conclusion that “that the absence or inadequacy of

treatment is intentional” rather than simply inadvertent. Perry, 782 F.3d

at 78. “The obvious case [of deliberate indifference] would be a denial of

needed medical treatment in order to punish the inmate.” Watson v.

Caton, 984 F.2d 537, 540 (1st Cir. 1993). “But deliberate indifference may

also reside in ‘wanton’ decisions to deny or delay care where the action is

recklessness, ‘not in the tort law sense but in the appreciably stricter

criminal-law sense, requiring actual knowledge of impending harm, easily

preventable.’” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 302 (1991), and

DesRosiers v. Moran, 949 F.2d 15, 19 (1st Cir. 1991)). Further, “[t]he right

to be free from cruel and unusual punishment does not include the right to

the treatment of one’s choice.” Layne v. Vinzant, 657 F.2d 468, 473 (1st

Cir. 1981). Similarly, “[w]here the dispute concerns not the absence of help,

but the choice of a certain course of treatment, deliberate indifference may

be found only if the attention received is so clearly inadequate as to amount

to a refusal to provide essential care.” Leavitt, 645 F.3d at 503 (internal

quotation marks and citations omitted).

“[T]he subjective deliberate indifference inquiry may overlap with the

objective serious medical need determination.” Id. at 497 (quoting Smith v.

Carpenter, 316 F.3d 178, 187 n.12 (2d Cir. 2003)). “[S]imilar evidence,

including evidence of adverse effects, may be relevant to both components.”

Id. (quoting Smith, 316 F.3d at 187 n.12).

2. Unitt’s Medical Care § 1983 Claims Are Deficient

Unitt’s § 1983 claims for lack of adequate medical care are not

sufficiently pled. Unitt has not pled facts from which the court can

reasonably infer that the alleged deprivation of medical care was

“sufficiently serious” Although she states that she suffers from numerous

medical conditions or events (e.g., fibromuscular dysplasia, transient

ischemic attacks, cerebrovascular accidents caused by malignant

hypertension), pleading a serious medical condition alone is insufficient.

Rather, Unitt must “allege acts or omissions sufficiently harmful to

evidence deliberate indifference to serious medical needs.” Estelle, 429

U.S. at 106 (emphases added).

Unitt does assert that the defendants’ conduct was lacking with

regard to numerous aspects of her care. But, significantly, she does not

allege facts supporting an inference that she had a “serious medical need”

for the services or treatments that were delayed or denied. Further, she

does not clearly allege that these purported deficiencies in care injured her

at all, or at least to a “sufficiently serious” degree suggesting that the

defendants acted with deliberate indifference. See, e.g., Braga v. Hodgson,

605 F.3d 58, 61 (1st Cir. 2010) (upholding summary judgment in favor of

correction officers who had allegedly prevented plaintiff from timely

receiving his medication because plaintiff did “not allege that he suffered

any ill effect from this medication delay”); see also Jones v. Bokor, 443 Fed.

App’x 327, 330 (10th Cir. 2011) (affirming summary judgment in favor of

defendants, where 16-month delay between appointment with nurse

practitioner and examination by a doctor did not result in substantial

harm); Johnson v. Talley, 243 Fed. App’x 10, 11 (5th Cir. 2007) (per

curiam) (affirming dismissal although prisoner’s cell and work assignments

violated his medical restrictions, prison doctor was deliberately indifferent

to his medical needs where he failed to show that he was injured by the

placement); cf. Acevedo-Luis v. Pagan, 478 F.3d 35, 38 (1st Cir. 2007) (“It

is usually the case that ‘no compensatory damages may be awarded in a

§ 1983 suit absent proof of actual injury.’” (quoting Farrar v. Hobby, 506

U.S. 103, 112 (1992))).

While Unitt’s numerous exhibits may contain fodder for remedying

these pleading deficiencies, it is incumbent on Unitt to include key

allegations in the body of the complaint.

D. Toxic Substance Control Act

To the extent that Unitt seeks separate relief under the TSCA, the

court puts her on notice that she cannot recover damages under that

statute. See Cudjoe ex rel. Cudjoe v. Dep’t of Veterans Affairs, 426 F.3d

241, 248 n.5 (3d Cir. 2005) (TSCA “the does not permit private citizens to

pursue either civil penalties available under the statute (which may only be

imposed by the EPA), or compensation for personal injuries.” (citations

omitted)); cf. Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148,

150, 152 (4th Cir. 1994) (where landowners brought negligence claim for

compensatory damages and referenced TSCA and other federal

environmental statutes, subject matter jurisdiction did not exist under 28

U.S.C. § 1331 because the federal statutes did not provide for compensatory

damages).

E. Standing

Unitt refers to the alleged injuries other inmates have suffered

because of the defendants’ purported misconduct. See, e.g., Compl. at 34

(requesting compensatory damages of $200 million for exposure to

contaminates “to be placed in a Fund for past and present Correctional

Officers who have served at [MCI Framingham]”). To the extent she is

attempting to bring claims based on injuries to others, she cannot do so.

She only has standing to bring claims resulting from her own injuries. See

Bingham v. Massachusetts, 616 F.3d 1, 5 (1st Cir. 2010).

III. Pending Motions

In light of Unitt’s misjoinder of claims and parties, the court denies

without prejudice her motions to file a supplemental pleading. Unitt may

include relevant allegations in her amended complaint or proposed

amended complaint(s).

The motion to seal the exhibits to the proposed supplemental

pleading will be granted. Going forward, Unitt should carefully consider

the need to file exhibits at the pleading stage. To the extent she elects to file

exhibits, she should separate the exhibits that are appropriate for the public

docket from those that she wishes to be sealed. This will minimize the

number of documents potentially subject to sealing.

ORDER

For the foregoing reasons:

1. If Unitt wishes to pursue this action, she must file an amended

complaint that complies with the rules of joinder of parties and claims set

out above. By necessity, her amended complaint will not contain all the

claims asserted in the original Complaint. The $400 filing fee which Unitt

has paid will continue to be applied to this case. The amended complaint

must be filed within 42 days of the date of this order (May 22, 2018).

Failure to comply with this order will result in dismissal of the case.

2. To the extent that Unitt wishes to pursue claims that cannot be

joined in a single lawsuit, she must file, within 42 days of the date of this

order (May 22, 2018), as many separate proposed amended complaints as

required to ensure compliance with the rules of joinder of claims and

parties. The proposed amended complaints should be captioned as such

(“Proposed Amended Complaint”) and filed in this action. Once filed in

this action, the court will order that any proposed amended complaint be

severed from this action and, with the original Complaint in this action,

docketed as a new case. Unitt will be required to pay a $400 filing fee for

each of these cases. As long as a proposed amended complaint is filed by

May 22, 2018, for purposes of the statute of limitations and relation back of

amendments, the date this action was commenced (August 3, 2017) will be

considered to be the commencement date of any new case opened as result

of severing claims from this action.

3. Any claim raised in the original Complaint that is not raised in a

timely-filed amended complaint or a timely-filed proposed amended

complaint will be dismissed without prejudice.

4. The motion for leave to file supplemental pleadings, Dkt #10, is

DENIED WITHOUT PREJUDICE.

5. The motion to seal, Dkt #11, is GRANTED.

SO ORDERED.

/s/ Richard G. Stearns

__________________________

UNITED STATES DISTRICT JUDGE