Pace v. Massachusetts Department of Correction

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 19-10653-RGS

ANDRE PACE

v.

MASSACHUSETTS DEPARTMENT OF CORRECTION, et al.

ORDER

July 15, 2019

STEARNS, D.J.

For the reasons stated below, the court will (1) grant the plaintiff’s

motion for leave to proceed in forma pauperis; (2) order that certain claims

and defendants be dismissed; (3) order that summonses issue for seven

defendants; and (4) deny without prejudice the plaintiff’s motion for

appointment of counsel.

BACKGROUND

On April 4, 2019, pro se litigant, Andre Pace, who is incarcerated at

the Souza-Baranowski Correctional Center (“SBCC”) filed a complaint, a

motion for leave to proceed in forma pauperis, and a motion for the

appointment of counsel. In this preliminary review of the complaint, the

court accepts, as it must, the veracity of all well-pleaded facts and draws all

inferences in favor of Pace.

In 2009, Pace was convicted of a sexual offense, but it was not for child

molestation. On various occasions in 2016 and 2019, four correction officers

at SBCC falsely informed other inmates that Pace is a child molester. The

officers broadcasted the falsehood knowing, and even with the intent, that

the announcement would prompt inmates to physically assault Pace. Pace

indeed was physically attacked by inmates who stated they didn’t like child

molesters and who threatened to kill him. At one point, a response team of

correctional officers quickly removed Pace from a housing unit where he was

being assaulted by inmates. During this operation, two correction officers

used excessive force against him. On another occasion, one of the correction

officers involved in the use of excessive force against conducted a search of

Pace, during which the correction officer inappropriately squeezed Pace’s

buttocks.

The Complaint is in seven counts. Count I is a claim under 42 U.S.C.

§ 1983 (“§ 1983”) for the violation of Pace’s rights under the Eighth and

Fourteenth amendments. See Compl. at 19. Count II is a claim under the

Massachusetts Civil Rights Act, M.G.L. ch. 12, §§ 11H, 11I (“MCRA”) for

violating the prohibition in Article 26 of the Massachusetts Constitution

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against cruel or unusual punishment. See Compl. at 20-21. In Count III,

Pace alleges that the defendants violated their duty of care to him. See id. at

22. Counts IV, VI, and VII assert claims for the deliberate infliction of

emotional distress, negligence, and the negligent infliction of emotional

distress. See id. at 22-23, 25-26. Count V is a claim under Title II of the

Americans with Disabilities Act (“ADA”). See id. at 24.

Pace names the following defendants: the Massachusetts Department

of Correction (“DOC”); DOC Commissioner Carol Mici; former DOC

Commissioner Thomas Turco; SBCC Superintendent Steven Kenneway;

former SBCC Superintendent Steven Silva; and, Correction Officers

Slamoan, Vallade, Mashakca, Boiduc, Davui, and Chaput. All of the

individual defendants are sued in their individual and official capacities.

With the exception of the ADA claim in Count V, Pace refers collectively to

“Defendants” in all the Counts.

DISCUSSION

I. Motion for Leave to Proceed in Forma Pauperis

Upon review of Pace’s Motion for Leave to Proceed in Forma Pauperis,

the court concludes that Pace is without income or assets to prepay the filing

fee. The court will grant the motion and, pursuant to 28 U.S.C. § 1915(b)(1),

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assess an initial partial filing fee of $5.34. The remainder of the fee, $344.66,

shall be collected in accordance with 28 U.S.C. § 1915(b)(2).

II. Review of the Complaint

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

the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. These statutes

authorize a federal court to dismiss an in forma pauperis or prisoner

complaint sua sponte if the claims therein are frivolous, malicious, fail to

state a claim on which relief may be granted, or seek monetary relief against

a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B),

1915A(b). In conducting this review, the court liberally construes the

Complaint because Pace is proceeding pro se. See Haines v. Kerner, 404

U.S. 519, 520-21 (1972).

A. Eleventh Amendment Immunity

The Eleventh Amendment of the United States Constitution generally

is recognized as a bar to suits in federal courts against a State, its

departments and its agencies, and its employees acting in their official

capacities unless the State has consented to suit or Congress has overridden

the State’s immunity. See Regents of the Univ. of Cal. v. Doe, 519 U.S. 425,

429 (1997); Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985); Pennhurst

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984); Alabama v.

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Pugh, 438 U.S. 781, 782 (1978) (per curiam); Hudson Sav. Bank v. Austin,

479 F.3d 102, 105-06 (1st Cir. 2007).

Here, with the exception of claim under Title II of the ADA, the Court

cannot discern any claim for relief against the DOC or its employees acting

in their official capacities for which the Commonwealth of Massachusetts has

waived its immunity or Congress has overridden it. Moreover, a state, its

departments or agencies, and its employees acting in an official capacity are

not “persons” for purposes of § 1983. See Will v. Mich. Dep’t of State Police,

491 U.S. 58, 71 (1989); Johnson v. Rodriguez, 943 F.2d 104, 108 (1st Cir.

1991). Therefore, the court will dismiss with prejudice the § 1983 claims and

state tort claims against the DOC and the individual defendants acting in

their official capacities.

B. Count I: § 1983 Claims

1. Pleading Requirements for § 1983 Claims

To state a claim upon which relief can be granted, a complaint must

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

entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means that a complaint must

“contain sufficient factual matter, accepted as true” to state a plausible claim

for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must

provide a defendant “enough detail to provide a defendant with ‘fair notice

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of what the . . . claim is and the grounds upon which it rests, ’” Silverstrand

Invs. v. AMAG Pharm., Inc., 707 F.3d 95, 101 (1st Cir. 2013) (quoting Ocasio-

Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011)) (alteration in

original), or, in other words, the statement of the claim “must ‘at least set

forth minimal facts as to who did what to whom, when, where, and why,’”

Calvi v. Knox County, 470 F.3d 422, 430 (1st Cir. 2006) (quoting

Educadores Puertorriqueños en Acción v. Hernandez, 367 F.3d 61, 68 (1st

Cir. 2004)). The plaintiff’s obligation to provide the grounds of his claim

“requires more than labels and conclusions.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007).

Section 1983 provides a right of action against a person acting under

color of state law who violated the plaintiff’s federal constitutional rights.

See 42 U.S.C. § 1983. In the context of a claim under 42 U.S.C. § 1983, “only

those individuals who participated in the conduct that deprived the plaintiff

of his rights can be held liable.” Cepero-Rivera v. Fagundo, 414 F.3d 124,

129 (1st Cir. 2005). In other words, a commissioner, superintendent, or

other supervisory employer cannot be held liable under § 1983 based solely

on the misconduct of a subordinate; the supervisor must have had some form

of direct involvement in the alleged misconduct. See id.; Feliciano-

Hernandez v. Pereira-Castillo, 663 F.3d 527, 536 (1st Cir. 2011) (“[N]ot

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every official who is aware of a problem exhibits deliberate indifference by

failing to resolve it.” (internal quotation marks omitted)); Bonner v. Outlaw,

552 F.3d 673, 679 (8th Cir. 2009) (“[A] warden’s general responsibility for

supervising a prison is insufficient to establish personal liability.”). A

supervisor’s direct involvement includes “personally participating in the

constitutional violation, direct[ing] their subordinates to act unlawfully, or

know[ing] their subordinates will act unlawfully but fail to stop them.”

Bowens v. Superintendent of Miami S. Beach Police Dep’t, 557 Fed. App’x

857, 861 (11th Cir. 2014).1 Thus, to state a viable § 1983 claim, the specific

factual content required by Rule 8(a)(2) must not only identify, in a non-

conclusory fashion, the wrongful conduct of a defendant, but it must also

permit the court to reasonably infer that the defendant was directly involved

in a constitutional violation.

2. Section 1983 Claims Against the Correction Officers

Here, Pace has made specific factual allegations of misconduct by

Correction Officers Slamoan, Vallade, Mashakca, Boiduc, Davui, and

1 See also, e.g., Steidl v. Gramley, 151 F.3d 739, 741 (7th Cir. 1998) (“If the

warden were aware of ‘a systematic lapse in enforcement’ of a policy critical

to ensuring inmate safety, his ‘failure to enforce the policy’ could violate the

Eighth Amendment.” (quoting Goka v. Bobbitt, 862 F.2d 646, 652 (7th Cir.

1988))).

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Chaput. For purposes of this preliminary review of the complaint, the court

finds that Pace has adequately pled § 1983 claims against these defendants.

3. Section 1983 Claims Against the Supervisory Officials

Pace also seeks to bring § 1983 claims against current and former DOC

commissioners and SBCC superintendents. Without identifying these

supervisory officials by name, Pace alleges that alleges that he made

unspecified “complaints of staff misconduct,” and that “Defendant’s have

been made aware of all these issue’s [sic]” by himself or through his attorney.

Compl. at 13. He further claims that his situation has only got worse since

he has made these complaints. See id. Elsewhere in the complaint, Pace

asserts that, “[b]y failing to train and supervise correctional officers [and] by

failing to implement and enforce effective policies and procedures, the

Defendants have violated their duties to protect inmate’s in their custody

from unreasonably risk of physical injury at the hand’s of other inmates

[sic].” Id. at 14. Under the heading “Mr. Pace Has Exhausted His

Administrative Remedies,” Pace claims that he filed grievances on all the

issues raised in the complaint, some of which were “ignored” by the

“grievance department.” Id. at 18. Pace represents that he sought the

assistance of his attorney “to address [his] complaint’s [sic]” to

Superintendent Silva and Commissioner Turco.” Id.

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These allegations do not contain sufficient factual material from which

the court can reasonably infer that the present and past commissioners and

superintendents named in this action were personally involved in the

constitutional violations committed by their subordinates. Even assuming

that a supervisory official with actual knowledge of the unconstitutional

conduct of a subordinate can be liable under § 1983 for failing to prevent a

subsequent unconstitutional act by the subordinate, Pace has not adequately

pled facts to support this theory of liability. Pace does not identify the dates

or contents of these communications, the parties to these communications,

and any response to these communications. Further, a general allegation of

an official’s failure to train and supervise subordinates does not permit an

inference of personal involvement.

Accordingly, the court will dismiss without prejudice the § 1983 claims

against Mici, Turco, Kenneway, and Silva.

C. Count II: Massachusetts Civil Rights Act

To plead a claim under the Massachusetts civil Rights Act, a plaintiff

must allege that (1) the defendant has interfered or attempted to interfere

with the plaintiff’s exercise or employment of rights secured under federal or

state law; and (2) said interference, or attempted interference, was by

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“threats, intimidation or coercion.” M.G.L. ch. 12, § 11H; see also M.G.L. ch.

12, § 11I (providing private right of action).

Pace claims that the “Defendants” are liable under MCRA because they

violated the prohibition in Article 26 of the Massachusetts Constitution

against cruel or unusual punishment. Here, Pace’s MCRA claims against

Mici, Turco, Kenneway, and Silva are inadequate because he does not allege

facts from which the court may reasonably infer that these supervisory

officials employed threats, intimidation, or coercion in an attempt to

interfere with his rights. The court will therefore dismiss the MCRA claims

against these four defendants.

D. Counts III, IV, VI, VII: Common Law Tort Claims

In Count III, Pace alleges that the defendants violated their duty of care

to him. Counts VI and VII assert claims negligence, and the negligent

infliction of emotional distress. All of these claims must be brought under

the Massachusetts Tort Claims Act. Except for Pace’s claim of intentional

infliction of emotional distress in Count IV, the MTCA provides the exclusive

remedy for injury caused by a public employee acting within the scope of his

or her office or employment. See M.G.L. ch. 258, § 2.

An action under the MTCA must be brought against the public

employer, which would be the DOC in this case. Prior to instigating the

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action in court, the plaintiff must have presented “his claim in writing to the

executive officer of such public employer” and the claim must have been

denied. M.G.L. ch. 258, § 4. Pace does not allege that he has complied with

this present requirement. In addition, unless the DOC waives its Eleventh

Amendment immunity, it is not subject to an MTCA suit in federal court. See

Irwin v. Comm’r of Dep’t of Youth Servs., 388 Mass. 810, 821 (1983).

The MTCA does not apply to a claim for the intentional infliction of

emotional distress. To state a claim for intentional infliction of emotional

distress, a plaintiff must allege, inter alia, facts from which it can reasonably

inferred that the defendant’s conduct was “extreme and outrageous.” Foley

v. Polaroid Corp., 400 Mass. 82, 99 (1987). As noted above, Pace has failed

to allege facts from which the court can reasonably infer that the supervisory

officials (Mici, Turco, Kenneway, Silva), were directly involved in the

constitutional violations. For the same reason, he has failed to allege

extreme and outrageous conduct by these defendants.

III. Motion for Appointment of Counsel

Under 28 U.S.C. § 1915(e)(1), the Court “may request an attorney to

represent any person unable to afford counsel.” 28 U.S.C. §1915(e)(1).

However, a civil plaintiff lacks a constitutional right to free counsel. See

DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991). To qualify for

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appointment of counsel, exceptional circumstances must exist such that the

denial of counsel will result in fundamental unfairness impinging on the

party’s due process rights. See id.

Here, because summonses have not issued and the defendants have

not been served with the complaint, the court cannot yet determine whether

this case presents exceptional circumstances that would justify the

appointment of pro bono counsel. Therefore, the court will deny the motion

for appointment of counsel without prejudice.

ORDER

For the foregoing reasons:

1. The motion for leave to proceed in forma pauperis, Dkt #2, is

granted. Pursuant to 28 U.S.C. § 1915(b)(1), the court assesses an initial

partial filing fee of $5.34. The remainder of the fee, $344.66, shall be

collected in accordance with 28 U.S.C. § 1915(b)(2). The clerk shall send a

copy of this order to the treasurer of the institution having custody of Pace.

2. With the exception of Count V (ADA claim), all claims against the

DOC are DISMISSED with prejudice.

3. All claims against the individual defendants acting in their

official capacities are DISMISSED with prejudice.

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4. All § 1983, MCRA, and intentional infliction of emotional distress

claims against Turco, Mici, Silva, and Kenneway are DISMISSED without

prejudice.

5. The claims for breach of the duty of care, negligence, and

negligent infliction of emotional distress are DISMISSED without prejudice.

6. The following claims shall go forward at this time:

a. Count I (§ 1983): claims against individual defendants

acting in their individual capacity except for claims against Turco, Mici,

Silva, and Kenneway.

b. Count II (MCRA): claims against individual defendants

acting in their individual capacity except for claims against Turco, Mici,

Silva, and Kenneway.

c. Count IV (intentional infliction of emotional distress):

claims against individual defendants acting in their individual capacity

except for claims against Turco, Mici, Silva, and Kenneway.

d. Count V (ADA): claim against the DOC.

7. The motion for appointment of counsel, Dkt #4, is DENIED

without prejudice.

8. Summonses shall issue as to all defendants except Turco, Mici,

Silva, and Kenneway. Pace shall serve the summonses, complaint, and this

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Order upon the defendants in accordance with Rule 4 of the Federal Rules of

Civil Procedure.

9. Because Pace is proceeding in forma pauperis, he may elect to

have the United States Marshals Service (“USMS”) complete service with all

costs of service to be advanced by the United States. If so asked by Pace, the

USMS shall serve a copy of the summonses, complaint, and this Order upon

the defendants as directed by plaintiff. Pace is responsible for providing the

USMS all copies for service and for completing a USM-285 form for each

party to be served. The clerk shall provide Pace with forms and instructions

for service by the USMS.

10. Pace must complete service within 90 days from the date of the

issuance of the summonses. Failure to comply with this deadline may result

in dismissal of this action without further notice to the plaintiff. See Fed. R.

Civ. P. 4(m); Local Rule 4.1 (D. Mass.).

SO ORDERED.

/s/ Richard G. Stearns

__________________________

UNITED STATES DISTRICT JUDGE

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