Baptista v. Hodgson

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

____________________________________

)

NATASHA M. BAPTISTA, Individually )

and as a Personal Representative of the )

Estate of Egidio M. Batista, )

)

Plaintiff, )

)

v. ) Civil Action No. 16-cv-11476-LTS

)

THOMAS M. HODGSON, RONALD )

DESCHENES, MICHAEL GONCALVES, )

JOSEPH CORDEIRO, MATTHEW )

RODRIGUES, and CITY OF NEW )

BEDFORD, )

)

Defendants. )

)

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

(DOCS. NO. 62, 65)

January 24, 2019

SOROKIN, J.

Egidio Batista died from an injury he sustained while in a holding cell at the Ash Street

Jail in New Bedford. His daughter, Natasha Baptista,1 has brought suit against five individuals

and the City of New Bedford2 for claims arising out of Mr. Batista’s death. The defendants have

moved for summary judgment on all claims. For the reasons that follow, the motions for

summary judgment are ALLOWED in part.

1 Egidio Batista and Natasha Baptista spell their last names differently.

2 New Bedford Chief of Police Joseph Cordeiro, Officer Matthew Rodrigues, and the City of

New Bedford are collectively referred to as the “New Bedford Defendants.” Sheriff Thomas

Hodgson, Officer Ronald Deschenes, and Officer Michael Goncalves of the Bristol County

Sheriff’s Department (“BCSD”) are collectively referred to as the “BCSD Defendants.”

I. BACKGROUND

A. Facts3

In July 2013, Egidio Batista lived in a first-floor apartment in New Bedford. Doc. No. 78

¶ 25. His daughter, Natasha Baptista, and her young children lived in a second-floor unit in the

same building. Id. ¶ 18. On July 20, 2013, Mr. Batista arrived home drunk and got into an

argument with Ms. Baptista in the outdoor area of the apartment complex. Id. ¶¶ 6, 19. After

taking her children upstairs to remove them from the situation, Ms. Baptista called 911. Id.

¶¶ 19-20. Officer Matthew Rodrigues of the New Bedford Police Department (“NBPD”)4

arrived at the apartment building and observed Mr. Batista sitting on the ground outside the door

of his apartment. Id. ¶¶ 8, 25. Officer Rodrigues observed that Mr. Batista was “highly

intoxicated, was difficult to understand, was sweating and may have urinated his pants.” Id.

¶ 26. Mr. Batista told Officer Rodrigues about the verbal altercation he had with his daughter

and that she called the police. Id. ¶ 27. After speaking with Ms. Baptista, Officer Rodrigues

decided to take Mr. Batista into protective custody. Id. ¶¶ 28, 30, 31.

Officer Rodrigues escorted Mr. Batista to the police cruiser without incident and

transported him to the NBPD Headquarters. Id. ¶¶ 32-33. After photographing and booking Mr.

Batista, Officer Rodrigues took him to the Ash Street Jail, pursuant to NBPD policy. Id. ¶ 34.

Upon arrival at the Ash Street Jail,

3 This factual summary is primarily derived from the Combined Joint Statement of Material

Facts, Doc. No. 78, submitted by the parties. In accordance with the summary judgment

standard, the facts presented are only those over which there is no genuine dispute. All

reasonable inferences are drawn in the plaintiff’s favor.

4 Another officer arrived with Officer Rodrigues. See Doc. No. 78 ¶ 24. However, the other

officer is not named as a defendant in this action and, based on the record, did not participate

meaningfully in the events that transpired.

Officer Rodrigues walked Mr. Batista to the admissions area, handed his report to

a corrections officer, observed the initial medical evaluation of Mr. Batista5 and left

the Ash Street Jail once the paperwork had been signed off on by the corrections

officer and Mr. Batista was placed in the custody and care of the Bristol County

Sheriff’s Department.

Doc. No. 78 ¶ 35. The surveillance video shows that Officer Rodrigues stayed in the booking

area until Mr. Batista was placed in a temporary holding cell. Doc. No. 64-18. After leaving the

Ash Street Jail, Officer Rodrigues did not have any further interaction with Mr. Batista. Doc.

No. 78 ¶ 37.

When Mr. Batista arrived at the Ash Street Jail, Officers Ronald Deschenes, Michael

Goncalves, and Gina DiNucci of the BCSD were on duty in the admissions area. Id. ¶¶ 47-51.

Officer Deschenes was responsible for “searching incoming detainees and placing them into a

temporary holding cell pending processing and booking.” Id. ¶ 49. Officer Goncalves was

responsible for completing the admissions paperwork. Id. ¶ 51. Officer DiNucci was

responsible for maintaining visual supervision of the temporary holding cells through both a

window and video surveillance. Id. ¶ 76. When Mr. Batista arrived, the larger of the two

holding cells in the booking area was occupied by four males who had been arrested that

afternoon. Id. ¶ 66. The other was occupied by a female who had been arrested. Id. ¶ 65.

5 Plaintiff disputes that there was a medical evaluation of Mr. Batista upon his arrival at Ash

Street Jail and in support, cites only to the Ash Street Video Surveillance Recording (Doc. No.

64-18). See Doc. No. 78 at ¶ 35. However, in his deposition, Officer Rodrigues stated that he

observed the BCSD officers ask if Mr. Batista was suicidal or hurt, which he stated was the

“medical evaluation” referred to in the NBPD policy. See Doc. No. 64-4 at 70-71. Because the

surveillance recording has only video, but no audio, Ms. Baptista’s citation to the surveillance

recording cannot serve as the basis for disputing this testimony. See Doc. No. 64-18; see also

Local Rule 56.1 (D. Mass.) (providing that facts the moving party has included in its statement

of undisputed material facts “will be deemed for purposes of the motion to be admitted” if the

opposing party has not “controverted” them “with page references to affidavits, depositions and

other documentation”). As such, the Court accepts for purposes of summary judgment that

Officer Deschenes asked Mr. Batista upon his arrival whether he was suicidal or hurt.

Mr. Batista was brought into the booking area by Officer Rodrigues and was then

searched by Officer Deschenes. Id. ¶ 67. During this search, Mr. Batista spoke with Officer

Deschenes in both English and Portuguese. Id. ¶ 68. Mr. Batista “was able to follow directions,

to walk under his own power, and he was able to sit down in and get up from a seated position

without assistance.” Id. ¶ 69. After Officer Deschenes searched Mr. Batista and helped him

remove his shoes, he placed Mr. Batista “into the temporary holding cell in the booking area that

was occupied by four other male detainees.” Id. ¶ 73. “Mr. Batista appeared reluctant to enter

and be locked in the Ash Street Jail holding cell with four arrested detainees, and he tried to

resist it.” Id. ¶ 113. He asked Officer Deschenes why he was being placed in the cell and stated

that he did not want to go into it. Id. ¶ 115.

Officer Deschenes nonetheless placed Mr. Batista in the cell. Id. ¶ 73. Officer

Deschenes stayed in the booking area for a few moments where he observed Mr. Batista and the

others in the holding cell before returning to his desk in another room of the Ash Street Jail,

where Officer Goncalves was working at his own desk. Id. ¶¶ 74, 77; Doc. No. 64-18. From

these desks, neither Officer Deschenes nor Officer Goncalves could observe the temporary

holding cells where Mr. Batista and others were being held, either directly or on a video monitor,

id. ¶¶ 75, 78, though Officer DiNucci maintained surveillance the entire time, id. ¶ 122. In fact,

Officer Goncalves did not yet know that Mr. Batista had arrived at Ash Street Jail or that he had

been placed in a temporary holding cell. Id. ¶ 78.

According to one of the other individuals held in the cell, Mr. Batista began “just walking

back and forth and just swearing and stuff . . . [i]t looked like he was just trying to pick a fight

with somebody.” Id. ¶ 80. He “was getting into the face of the others in the cell and questioning

what the other cellmates were going to do about it.” Id. ¶ 81 (internal quotation marks omitted).

Within a few minutes of being placed in the holding cell, Mr. Batista made physical contact with

Luis Mojica, one of the other individuals in the cell. Id. ¶ 83. In response, Mr. Mojica shoved

Mr. Batista, who “fell to the ground, striking his head.” Id. ¶ 86. Immediately thereafter, Officer

DiNucci called a Code 99 which indicated to the other officers that there was an emergency in

the booking area. Id. ¶ 87. Within ten seconds of Mr. Batista falling to the ground, multiple

officers arrived in the booking area to respond to the situation. Id. ¶ 88.

The officers secured the scene and removed Mr. Batista from the holding cell, where they

lifted him into a chair in order to assess his injuries. Id. ¶ 89; Doc. No. 64-18 A nurse arrived in

the booking area to provide medical treatment to Mr. Batista. Id. ¶ 90. Mr. Batista was

transported soon thereafter to a local hospital, where he died from his injuries the following

morning. Id. ¶¶ 91-92.

B. Relevant Policies

There are a number of NBPD and BCSD policies which the plaintiff alleges were

violated by the conduct of some or all of the defendants. The Court therefore summarizes the

relevant portions of each of those polices.

The NBPD Custodial Procedures policy, pursuant to which Officer Rodrigues took Mr.

Batista into protective custody, states that

[t]he Bristol County Sheriff’s Department is responsible for the care and custody

of all adult detainees that are not brought to court or taken to another facility. Adult

individuals . . . taken into protective custody shall ultimately be transported to the

Ash Street Jail in New Bedford, where they will be . . . released pursuant to M.G.L.

ch. 111B . . .

Error! Hyperlink reference not valid.. Additionally, the policy requires that upon arrival at

the Ash Street Jail, “the transporting officer will remain with the detainee until the jail staff have

conducted a brief medical screening prior to acceptance of the detainee.” Id. at 11.

The Bristol County Sheriff’s Office Regional Lock-up Policy (“Lock-up Policy”)6 sets

forth the procedures for admitting, searching, and booking individuals brought to facilities such

as the Ash Street Jail, and it applies equally to both protective custody detainees and to arrested

individuals. Doc. No. 74-4 at 20. The Lock-up Policy provides that “[t]emporary holding cells

. . . shall provide a temporary holding area for newly admitted prisoners and detainees before

they are booked and escorted to the Regional Lockup.” Id. at 10. The Lock-up Policy also states

that

[t]ypically, during the booking process, intoxicated and/or violent prisoners or

detainees shall be segregated from others and placed in a separate temporary

holding cells [sic]. Once that process is completed, the Booking Officer or Watch

Commander shall ensure that the individual is placed in [a] separate cell within the

Regional Lockup. Under no circumstances shall a violent, intoxicated or otherwise

self-destructive prisoner or detainee be placed into a Regional Lockup7 cell that is

occupied by another person.

Id. at 20.

The BCSD also has a number of policies which forbid detainees of different genders from

being housed together in a single cell. Id. ¶ 60. For example, the Perimeter and Security Control

Procedures state that “[e]ach correctional facility shall . . . [n]ot permit male inmates to be

housed with female inmates.” Doc. No. 64-21 at 4. Additionally, the Sheriff’s Office

Admission, Booking and Orientation Policy states that “Booking Area holding cells shall be

segregated for male and female inmates and detainees. At no time shall a male share a holding

6 The policy referred to and quoted in the text is dated August 25, 2000. See Doc. No. 74-4 at 1.

Based on the record and the statement of undisputed facts, this appears to be the policy that was

in place on July 20, 2013. In the papers, the parties refer to a policy which made it mandatory to

separate protective custody detainees from arrested individuals, see Doc. No. 74-8 at 1, but that

policy was not enacted until July 31, 2013.

7 The Court’s understanding, based on the record, is that the “Regional Lockup” is a post-

booking area in the Ash Street Jail facility which does not include the area where the temporary

holding cells are located. See Doc. No. 74-4 at 3.

cell with a female.” Doc. No. 64-22 at 6; see also Doc. No. 64-20 at 10 (the Lock-up Policy

states that “[m]ales and females shall always be placed in separate temporary holding cells”).

C. Claims

Natasha Baptista filed this lawsuit in July 2016. The amended complaint, Doc. No. 19,

names six defendants: BCSD Sheriff Thomas Hodgson, Officer Deschenes, Officer Goncalves,

NBPD Chief of Police Joseph Cordeiro, Officer Rodrigues, and the City of New Bedford.8 Each

of the five individuals are sued in their individual capacity. Doc. No. 19 ¶¶ 5-9. Ms. Baptista

asserts nine claims in the amended complaint. Six of the claims assert violations of 42 U.S.C.

§ 1983 against the various defendants: Counts I (unconstitutional policies) and II (failure to train

and supervise) are against Sheriff Hodgson; Count III (failure to protect) is against Officers

Deschenes and Goncalves; Counts IV (unconstitutional policies) and V (failure to train and

supervise) are against Chief Cordeiro; and Count VI (failure to protect) is against Officer

Rodrigues. The remaining three claims assert state law causes of action against the City of New

Bedford: Count VII asserts a claim for Mr. Batista’s wrongful death; Count VIII asserts a claim

for Mr. Batista’s pain and suffering; and Count IX asserts a claim for negligent infliction of

emotional distress on behalf of Ms. Baptista herself.

The BCSD Defendants moved for summary judgment on Counts I through III. Doc. No.

62. The New Bedford Defendants moved for summary judgment on Counts IV through IX.

Doc. No. 65. Both sets of defendants have moved for summary judgment on the merits and on

grounds of qualified immunity. Ms. Baptista opposed both motions. Doc. No. 73. The Court

8 Ms. Baptista has also brought claims against the Bristol County Sheriff’s Department in Bristol

County Superior Court. The state docket number is 1673-CV-00694.

heard arguments from the parties on January 17, 2019. At the hearing, plaintiff’s counsel

stipulated to the dismissal of the claim against Officer Goncalves.

II. LEGAL STANDARD

The Court applies the familiar summary judgment standard. Summary judgment is

appropriate when “the movant 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). A genuine dispute

“is one on which the evidence would enable a reasonable jury to find the fact in favor of either

party.” Perez v. Lorraine Enters., Inc., 769 F.3d 23, 29 (1st Cir. 2014). “A ‘material’ fact is one

that is relevant in the sense that it has the capacity to change the outcome of the jury’s

determination.” Id. (citation omitted). The Court is “obliged to view the record in the light most

favorable to the nonmoving party, and to draw all reasonable inferences in the nonmoving

party’s favor.” LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). However, the

Court must ignore “conclusory allegations, improbable inferences, and unsupported speculation.”

Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st Cir. 2009).

“[I]t is well-established that constitutional claims arising out of protective custody under

Mass. Gen. Laws ch. 111B, § 8 should be analyzed under the Fourth Amendment and the Due

Process Clause of the Fourteenth Amendment.” Lucia v. City of Peabody, 971 F. Supp. 2d 153,

160 (D. Mass. 2013); see also Ringuette v. City of Fall River, 888 F. Supp. 258, 261 (D. Mass.

1995) (“[T]he Court concludes that the Fourth Amendment governs the seizure of plaintiff taken

into civil protective custody under Mass.G.L. ch. 111B, and that the substantive due process

clause of the Fourteenth Amendment governs the conditions of the protective custody.”). “The

Fourteenth Amendment provides at least as much protection for pretrial detainees as the Eighth

Amendment provides for convicted inmates. Generally, the standard applied under the

Fourteenth Amendment is the same as the Eighth Amendment standard.” Ruiz-Rosa v. Rullan,

485 F.3d 150, 155 (1st Cir. 2007) (citing Burrell v. Hampshire County, 307 F.3d 1, 7 (1st

Cir.2002)).

Prison officials “must take reasonable measures to guarantee the safety of the inmates,”

including those which “protect prisoners from violence at the hands of other prisoners.” Farmer

v. Brennan, 511 U.S. 825, 832-33 (1994) (internal quotation marks and citations omitted).

However, not every instance of inmate-on-inmate violence results in constitutional liability for

prison officials. Id. at 833. For a claim alleging failure to prevent harm by another inmate, “the

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

harm” and the prison official must demonstrate “deliberate indifference to inmate health or

safety.” Id. at 834 (internal quotation marks and citation omitted).

Therefore, in order to be liable, “a prison official subjectively must both be aware of facts

from which the inference could be drawn that a substantial risk of serious harm exists, and he

must also draw the inference.” Burrell, 307 F.3d at 8 (internal quotation marks and citation

omitted). The First Circuit has likened this standard to that used for determining criminal

recklessness. See id. The subjective part of this test may be satisfied by “the very fact that the

risk was obvious.” Id. Additionally, in defining “indifference,” the First Circuit has held that

“[p]rison officials cannot be indifferent, of course, if they are unaware of the risk. But even if

they are aware, they cannot be deliberately indifferent if they responded reasonably to the risk,

even if the harm ultimately was not avoided.” Id. (citing Farmer, 511 U.S. at 844).

Additionally, in § 1983 claims, a defendant may not be held liable on a theory of

vicarious liability. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). A supervisor who does not

participate in the challenged conduct may therefore only be held liable “if (1) the behavior of his

subordinates results in a constitutional violation and (2) the supervisor’s action or inaction was

affirmatively linked to the behavior in the sense that it could be characterized as supervisory

encouragement, condonation or acquiescence or gross negligence of the supervisor amounting

to deliberate indifference.” Hegarty v. Somerset Cty., 53 F.3d 1367, 1379–80 (1st Cir. 1995)

(internal quotation marks and citations omitted) (emphasis in original). The First Circuit has

held that “the causal link between a supervisor’s conduct and the constitutional violation must be

solid,” and that the “causation requirement ‘contemplates proof that the supervisor’s conduct led

inexorably to the constitutional violation.’” Guadalupe-Baez v. Pesquera, 819 F.3d 509, 515 (1st

Cir. 2016) (quoting Hegarty v. Somerset County, 53 F.3d 1367, 1380 (1st Cir. 1995)).

Supervisory liability therefore “may attach ‘if a responsible official supervises, trains, or

hires a subordinate with deliberate indifference toward the possibility that deficient performance

of the task eventually may contribute to a civil rights deprivation.’” Sanchez v. Pereira-Castillo,

590 F.3d 31, 49 (1st Cir. 2009) (quoting Camilo–Robles v. Zapata, 175 F.3d 41, 44 (1st Cir.

1999)). Under a theory of failure to supervise, train, or hire, “the analysis focuses on ‘whether

the supervisor’s actions displayed deliberate indifference toward the rights of third parties and

had some causal connection to the subsequent tort.’” Id. (quoting Camilo-Robles, 175 F.3d at

44). A supervisor may also be subject to § 1983 liability “by formulating a policy, or engaging

in a custom, that leads to the challenged occurrence.” Maldonado-Denis v. Castillo-Rodriguez,

23 F.3d 576, 582 (1st Cir. 1994). “Thus, even if a supervisor lacks actual knowledge of

censurable conduct, he may be liable for the foreseeable consequences of such conduct if he

would have known of it but for his deliberate indifference or willful blindness, and if he had the

power and authority to alleviate it.” Id.

Finally, “[u]nder the doctrine of qualified immunity, police officers are protected ‘from

liability for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Mlodzinski v. Lewis,

648 F.3d 24, 32 (1st Cir. 2011) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). To

defeat qualified immunity, “‘the facts alleged or shown by the plaintiff” must ‘make out a

violation of a constitutional right’ and the right must have been ‘clearly established’ at the time

of the defendant’s alleged violation.” Id. (quoting Pearson, 555 U.S. at 231). To determine

whether the right was “clearly established,” the Court must consider

(a) whether the legal contours of the right in question were sufficiently clear that a

reasonable officer would have understood that what he was doing violated the right,

and (b) whether in the particular factual context of the case, a reasonable officer

would have understood that his conduct violated the right.

Id. at 32-33. The Supreme Court has “repeatedly told courts not to define clearly established law

at a high level of generality,” but rather, to determine “whether the violative nature of particular

conduct is clearly established.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal quotation

marks and citation omitted). ‘Clearly established’ does “not require a case directly on point, but

existing precedent must have placed the statutory or constitutional question beyond debate.”

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). On summary judgment, the Court must “identify

the version of events that best comports with the summary judgment standard and then ask

whether, given that set of facts, a reasonable officer should have known that his actions were

unlawful.” Mlodzinski, 648 F.3d at 29 (internal quotation marks and citation omitted).

III. DISCUSSION

A. Chief Cordeiro

The amended complaint states specifically that Chief Cordeiro “is being sued in his

individual capacity.” Doc. No. 19 at 4. However, Joseph Cordeiro cannot be individually liable

under § 1983 because he was not the Chief of Police on the date of Mr. Baptista’s death, and he

did not have any hand in making the decisions or policies which plaintiff alleges contributed to

his death. Cordeiro was not appointed Chief of Police until May 2016. Doc. No. 78 ¶ 171. On

July 20, 2013, the date Mr. Batista was injured, he was an NBPD Captain assigned to Station

Number One. Id. ¶ 11. On that date, Officer Rodrigues was assigned to Station Number Two,

meaning then-Captain Cordeiro was not even his direct supervisor. Id. ¶ 12. Nothing in the

record suggests that then-Captain Cordeiro had any supervision over Officer Rodrigues. As

such, on the date of Mr. Batista’s injury, there is no evidence that Chief Cordeiro was

“subjectively . . . aware of facts from which the inference could be drawn that a substantial risk

of serious harm exist[ed]” to Mr. Batista. Burrell, 307 F.3d at 8. There is also no evidence that

he participated in “formulating a policy, or engaging in a custom, that lead[] to the challenged

occurrence.” Maldonado-Denis, 23 F.3d at 582. Accordingly, no reasonable jury could find that

he was deliberately indifferent to a substantial risk of serious harm to Mr. Batista, and the motion

for summary judgment is ALLOWED as to Counts IV and V.

B. Officer Rodrigues

Ms. Baptista argues that Officer Rodrigues’ individual liability stems from a violation of

the Massachusetts Alcoholism Treatment and Rehabilitation Law (“ATRL”), Mass. Gen. Laws

ch. 111B, § 8. Section 8 of the ATRL provides that “[a]ny person who is incapacitated may be

assisted by a police officer with or without his consent to his residence, to a facility or to a police

station.” Id. Ms. Baptista argues that the Ash Street Jail is not a “facility” or “police station”

within the meaning of section 8, and as such, Officer Rodrigues’ decision to take Mr. Batista to

the Ash Street Jail violated the ATRL. See Doc. No. 73 at 5. However, even assuming, without

deciding, that the Ash Street Jail is in fact neither a “facility” nor a “police station” within the

meaning of section 8, “[a] violation of a state statute, in itself, does not give rise to a cause of

action under 42 U.S.C. § 1983.” Ringuette v. City of Fall River, 906 F. Supp. 55, 58 (D. Mass.

1995) (citing Elder v. Holloway, 510 U.S. 510, 515 (1994)).

The question, therefore, is not whether Officer Rodrigues violated the ATRL by taking

Mr. Batista to the Ash Street Jail, but rather whether he was deliberately indifferent to a

substantial risk of serious harm to Mr. Batista by taking him to the Ash Street Jail or by leaving

him there. On July 20, 2013, Officer Rodrigues did exactly what NBPD policy instructed him to

do: he took Mr. Batista to the NBPD station to book him, transported him to the Ash Street Jail,

and stayed with him until Officer Deschenes completed the medical evaluation and accepted care

and custody. No evidence suggests that Officer Rodrigues had any reason to think that following

this NBPD policy, as he and other officers did every day, presented a substantial risk of serious

harm to Mr. Batista.

Ms. Baptista argues that because Officer Rodrigues was in the booking area with Mr.

Batista while Officer Deschenes completed the medical evaluation, he must have seen the other

four individuals located in the holding cell. Drawing all reasonable inferences in favor of Ms.

Baptista, and in light of the surveillance video which shows Officer Rodrigues remaining in the

booking area until after Officer Deschenes put Mr. Batista in the holding cell, the Court

concludes for purposes of summary judgment that Officer Rodrigues did in fact see the four

other individuals in the holding cell into which Mr. Batista was placed. See Doc. No. 64-18 at

[05:48:15]. However, Officer Deschenes’ act of putting Mr. Batista in the holding cell with four

other individuals (who were unknown to Officer Rodrigues) did not put Officer Rodrigues on

notice of a substantial risk of serious harm to Mr. Batista. There is no evidence in the record to

suggest that any of these individuals or Mr. Batista had displayed any violent or aggressive

behavior in front of Officer Rodrigues which would allow him to draw the conclusion that Mr.

Batista faced a substantial risk of serious harm by being placed in the holding cell, without even

considering the ongoing surveillance of the cell by BCSD officers.

It is true, as Ms. Baptista argues, that Officer Rodrigues was aware of Mr. Batista’s

intoxicated state. When he arrived at Mr. Batista’s apartment, “Officer Rodrigues observed that

Mr. Batista appeared highly intoxicated, was difficult to understand, was sweating and may have

urinated his pants.” Doc. No. 78 ¶ 26. However, Officer Rodrigues also knew that Mr. Batista

was not injured, id. ¶ 31, and that he “was able to stand up and walk to Officer Rodrigues’ police

cruiser without incident,” id. ¶ 32. The surveillance video shows Mr. Batista walking on his own

throughout the booking area and does not show him acting violently or aggressively at any point

before Officer Rodrigues exits the booking area. In fact, there is nothing in the record to suggest

that Mr. Batista was combative, aggressive, or anything other than compliant during the entirety

of Officer Rodrigues’ interactions with him. Based on the facts of which Officer Rodrigues was

subjectively aware at the time he left the Ash Street Jail, no reasonable jury could find that he

was deliberately indifferent to a substantial risk of serious harm to Mr. Batista. Therefore, the

motion for summary judgment is ALLOWED as to Count VI.

C. Officer Goncalves

At the hearing on the motions for summary judgment, counsel for Ms. Baptista stipulated

to a voluntary dismissal of the claims against Officer Goncalves. Accordingly, Count III is

DISMISSED as to Officer Goncalves.

D. Officer Deschenes

As with the other defendants, Officer Deschenes’ conduct must be examined based on

what he knew at the time he placed Mr. Batista in the holding cell and left to go to the back

office. At that point in time, the record shows that Officer Deschenes knew the following

information: there were four male arrested individuals in the larger holding cell and one female

arrested individual in the smaller holding cell. He knew that BCSD policy absolutely forbade the

comingling of males and females in holding cells, and that though BCSD policy generally

preferred the separation of protective custody detainees from arrestees, it did not mandate it.

Officer Deschenes also knew, from observing Mr. Batista, that he was intoxicated and needed

help removing his shoes, but that he “was able to follow directions, to walk under his own

power, and he was able to sit down in and get up from a seated position without assistance.”

Doc. No. 78 ¶ 69. Officer Deschenes knew that Mr. Batista did not have any items which might

be used as a weapon because he searched him upon arrival at the Ash Street Jail. He knew the

same of each of the other four individuals in the holding cell for the same reasons. Furthermore,

Officer Deschenes knew that Mr. Batista denied being suicidal or injured.

Ms. Baptista argues that Officer Deschenes knew that Mr. Batista did not want to go into

the holding cell, and that he resisted Officer Deschenes’ first attempt to put him in it. Indeed, it

is undisputed that “Mr. Batista appeared reluctant to enter and be locked in the Ash Street Jail

holding cell with four arrested detainees, and he tried to resist it.” Id. ¶ 113. Additionally, it is a

reasonable inference, as Ms. Baptista suggests, that Officer Deschenes knew that at least one of

the four individuals in the holding cell, Mr. Mojica, had been arrested for assault. See id. ¶ 117.

However, there is no evidence in the record of any altercations between any of the other four

individuals during the previous hours they had been in the cell. There is likewise no evidence in

the record that Officer Deschenes was informed of any aggressive or violent behavior on the part

of Mr. Batista which would indicate that he posed a potential threat to others or to himself.

At the time Officer Deschenes made the decision to place Mr. Batista in the holding cell,

there was nothing about the circumstances which would have put him on notice that there was a

substantial risk of serious harm to Mr. Batista. Ms. Baptista argues that there were other

alternatives available to Officer Deschenes, such as booking Mr. Batista immediately and placing

him in an individual cell in the Regional Lock-up or leaving him in the booking area outside of

the holding cells until one of the other individuals could be booked, thus clearing a holding cell

for him to occupy alone. That these alternatives may have been preferable in this case does not

support an inference that placing Mr. Batista in the holding cell gave rise to a substantial risk of

serious harm. Other cases illustrate that mere solitary cells can carry their own risks. See, e.g.,

Lucia, 971 F. Supp. 2d 153; Ringuette, 906 F. Supp. 55; Carroll v. City of Quincy, 441 F. Supp.

2d 215 (D. Mass. 2006).

Additionally, prison officials “cannot be deliberately indifferent if they responded

reasonably to the risk, even if the harm ultimately was not avoided.” Burrell, 307 F.3d at 8.

Officer DiNucci was constantly monitoring the booking area on video and through a window

from her position in admissions control. Officer Deschenes knew that Officer DiNucci could, as

she in fact did, call an emergency if a fight or other problem began in the holding cells, and that

both he and other officers were close enough to respond within seconds, as they did. Based on

what he knew at the time he placed Mr. Batista in the cell, no reasonable jury could find that

Officer Deschenes was deliberately indifferent to a substantial risk of serious harm to Mr.

Batista.9

9 Ms. Baptista points to several additional policies which she asserts Officer Deschenes violated,

including one requiring individuals to be booked within thirty minutes of arriving at the Ash

Street Jail, one requiring officers to use their “good judgment and common sense,” and one

which allows BCSD officers to refuse to accept custody of protective custody individuals

As discussed, the risk of placing Mr. Batista was not so obvious or substantial a risk as to

give rise to a jury question. Cf. Perry v. Dickhaut, 125 F.Supp.3d 285, 296 (D. Mass. 2015)

(granting summary judgment on a failure to protect claim where the defendants placed the

plaintiff in a cell with a “known enemy” where there was “an objective basis for the . . .

Defendants to reasonably believe that they were not exposing Plaintiff to a legitimate risk of

serious harm”). In any event, Officer Deschenes is entitled to qualified immunity. There is no

“clearly established” law which, given the “particular factual context of the case,” would have

allowed a reasonable officer to understand that his conduct violated the right in question.

Mlodzinski, 648 F.3d at 32-33. Ms. Baptista points to no clearly established law which, as a

constitutional matter, requires that individuals in protective custody be separated from arrested

individuals based on these statuses. As such, Officer Deschenes is entitled to qualified

immunity.

Accordingly, the motion for summary judgment is ALLOWED as to Count III, as to

Officer Deschenes.

E. Sheriff Hodgson

As with Chief Cordeiro, the amended complaint specifically states that Sheriff Thomas

Hodgson “is being sued in his individual capacity.” Doc. No. 19 at 4. Sheriff Hodgson has been

brought by NBPD. Doc. No. 73 at 5-12. She also points to the part of the Lock-up Policy which

states that “[u]nder no circumstances shall a violent, intoxicated or otherwise self-destructive

prisoner or detainee be placed into a regional lockup cell that is occupied by another person.” Id.

at 10. Whatever relevance the asserted lack of compliance with these policies may have on the

state law claims, the question for the federal claims is whether Officer Deschenes was

deliberately indifferent to a substantial risk of serious harm to Mr. Batista when he placed him in

the holding cell. For the reasons stated in the text, no reasonable jury could conclude that he

was, based on the evidence in the record. In addition, Ms. Baptista has pointed to no clearly

established law which requires the separation of protective custody detainees from arrested

individuals as a constitutional matter.

the Sheriff of Bristol County since 1997 and was Sheriff on the date of Mr. Batista’s injury.

Doc. No. 78 ¶ 46. Sheriff Hodgson was not present at the Ash Street Jail at the time Mr. Batista

arrived and did not have any knowledge of either Mr. Batista or Mr. Mojica until after Mr.

Batista was injured. Id. ¶ 94. As noted, a supervisor may be held liable under § 1983 “if (1) the

behavior of his subordinates results in a constitutional violation and (2) the supervisor’s action or

inaction was affirmatively linked to the behavior in the sense that it could be characterized as

supervisory encouragement, condonation or acquiescence or gross negligence of the supervisor

amounting to deliberate indifference.” Hegarty, 53 F.3d at 1379–80. In this case, the behavior

or Sheriff Hodgson’s subordinates did not result in a constitutional violation, and therefore there

is no supervisory liability. See also Perry, 125 F.Supp.3d at 299 (“Because there is no

underlying conduct that was ‘itself violative of a plaintiff’s constitutional rights,’ the assertion

that the supervisors are also liable fails.”) (quoting Maldonado-Denis, 23 F.3d at 582).

Moreover, Sheriff Hodgson is also entitled to qualified immunity for the same reasons as Officer

Deschenes. Accordingly, the motion for summary judgment is ALLOWED as to Counts I and II.

F. State Law Claims

Given the dismissal of all federal claims, Counts I – VI, the Court declines to exercise

supplemental jurisdiction over the remaining state law claims, Counts VII – IX. See 28 U.S.C.

§ 1367(c)(3) (“The district courts may decline to exercise supplemental jurisdiction over a claim

under subsection (a) if . . . the district court has dismissed all claims over which it has original

jurisdiction.”). “[T]he factors to be considered by a district court in determining whether to

exercise supplemental jurisdiction include ‘judicial economy, convenience, fairness, and

comity.’” Sexual Minorities Uganda v. Lively, 899 F.3d 24, 35 (1st Cir. 2018) (quoting

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). In this case, the balance of

factors weighs in favor of declining to exercise supplemental jurisdiction, particularly because of

the pending litigation in state court involving some of the same parties and arising out of the

same factual basis. The parties represented at the hearing on the motions for summary judgment

that the state court litigation is set for a summary judgment hearing at the end of this month.10 A

single summary judgment decision and, to the extent there is a trial, a single trial better serve

judicial economy, fairness, convenience, and comity than bifurcated proceedings. Accordingly,

the state law claims, Counts VII, VIII, and IX, are DISMISSED without prejudice.

IV. CONCLUSION

For the foregoing reasons, the motions for summary judgment, Docs. No. 62, 65, are

ALLOWED as to Counts I, II, III, IV, V, and VI. Counts VII, VIII, and IX are DISMISSED

without prejudice. Should the plaintiff choose to re-file Counts VII, VIII, and IX in state court,

as she is entitled to do, the Court recommends that those claims be consolidated with the claims

pending in Bristol County Superior Court, case number 1673-CV-00694. Additionally, the

Court recommends, to the extent the City of New Bedford again seeks summary judgment on

those claims, that the briefing submitted to this Court related to the state law claims be revived

for use in summary judgment in state court.

SO ORDERED.

/s/ Leo T. Sorokin

Leo T. Sorokin

United States District Judge

10 At the hearing, when discussing the potential dismissal of the state law claims, neither party

raised the possibility that the statute of limitations might create a bar to the plaintiff refiling the

claims in state court.