Sosa v. Massachusetts Department of Correction

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

)

CHE BLAKE SOSA, )

Plaintiff, )

)

v. ) Civil Action No.

) 18-cv-12223-NMG

MASSACHUSETTS DEPARTMENT OF )

CORRECTION, et al., )

Defendants. )

)

MEMORANDUM & ORDER

GORTON, J.

Che Blake Sosa, who is incarcerated at MCI Cedar Junction,

commenced this lawsuit on October 24, 2018, alleging that he is

being subjected to excessive force and prolonged solitary

confinement. He further claims that he is not receiving

adequate medical attention and accommodations for his

disabilities. Sosa has also filed a motion for a preliminary

injunction, asking that this Court require the defendants to use

waist chains instead of painful, knuckle-to-knuckle restraints

behind his back when transporting him.

The Court has already ordered that a summons issue as to

the Massachusetts Department of Correction (“DOC”) and that it

be served with the complaint and motion for a preliminary

injunction. For the reasons stated below, the Court will order

that summonses issue as to some of the individual defendants.

I. Background

Sosa brings this action against the DOC and 33 past and

present DOC officials, correction officers, and medical

providers. His typed complaint is 52 pages long. Sosa also

filed over 300 pages of exhibits. The complaint is in three

counts. Count One is a claim under 42 U.S.C. for violations of

the Eighth and Fourteenth amendments. See Compl. ¶¶ 177-189.

Count Two is a claim for violations of Article I of the

Massachusetts Declaration of Rights. See id. ¶¶ 190-194. Count

Three is a claim under Title II of the Americans With

Disabilities Act, 42 U.S.C. § 12131 et seq. (“the ADA”). See

id. ¶¶ 195-215.

The Court summarizes the complaint, assuming, for the

limited purpose of this memorandum and order, the veracity of

all well-pled factual allegations and construing them in favor

of Sosa.

Sosa has been convicted on multiple counts of aggravated

rape and related offenses. He has been sentenced to over 95

years of incarceration. Sosa has been in the custody of the DOC

since 2001, when he was a pretrial detainee. During that time,

he was found guilty of several disciplinary infractions for

which he was given time in the Department Disciplinary Unit

(“the DDU”). Sosa has been housed in the DDU since June 6,

2003, and he is scheduled to remain there indefinitely. While

in the DDU, Sosa is held in solitary confinement, spending 23 or

24 hours a day in his cell.

Since childhood, Sosa has suffered from attention deficit

hyperactivity disorder (“ADHD”) and antisocial personality

disorder. The DOC has recognized that Sosa suffers from these

conditions, and at some point, provided him effective

psychotropic medication for ADHD. However, the psychotropic

treatment has been discontinued despite its ameliorative effect.

Sosa is also subject to sleep deprivation.

Sosa has been suffering from severe degenerative bilateral

join disease in his shoulders for over 20 years. Due to pain in

his right shoulder that did not respond to a cortisone shot,

Sosa underwent surgery in January 2005 for right shoulder

impingement syndrome and osteoarthritis of the AC joint. Based

on his shoulder condition, at some point, medical officials at

MCI Cedar Junction prescribed for him a medical restriction from

behind-the-back cuffing.

On July 25, 2006, Sosa stabbed two guards in an attempt to

obtain their cell keys so that he could get access to a racist

inmate who had attacked him. The same day, the medical

restriction prohibiting cuffing behind the back was discontinued

for security reasons, and it has never been reinstated.

Unprecedented security precautions concerning Sosa were

also immediately implemented after the July 25, 2006 stabbing.

Since that time, whenever Sosa leaves his cell, he is

accompanied by at least six members of the MCI Cedar Junction

tactical response team outfitted with helmets, stab-proof vest,

elbow guards, shin guards, and a five-foot, one-inch-thick

Plexiglas shield. Sosa is also cuffed everyday behind his back,

knuckle to knuckle. Because of his shoulder injury, this

purportedly causes him extreme agony and worsens his condition.

At times, Sosa misses medical appointments or does not seek

medical care because of the severity of the pain he experiences

during these transfers. Sosa’s multiple, informal complaints

and formal grievances to reinstate the medical restriction of

cuffing behind the back have been denied.

Sosa’s physical and mental condition, combined with the

lack of treatment therefor and the conditions of confinement in

the DDU, allegedly is causing him to deteriorate: “Mr. Sosa is

caught in a cycle of irresponsibility by the defendants, i.e. an

untreated mentally ill man with a painful physical injury, held

in solitary, subjected to restraints that cause further agony

and injury.” Compl. ¶ 73.

II. Discussion

Under 28 U.S.C. § 1915A, prisoner complaints in civil

actions that seek redress from governmental entities or officers

or employees of governmental entities are subject to a

preliminary screening. See 28 U.S.C. § 1915A(a). The Court is

required to dismiss any claims that are frivolous or malicious,

fail to state a claim upon which relief can be granted, or seek

monetary relief from a defendant who is immune from such relief.

See 28 U.S.C. § 1915A(b). In conducting this review, the Court

liberally construes Sosa’s complaint because he is proceeding

pro se. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The

Court also has examined the exhibits but only where Sosa has

made a specific reference to an exhibit. Further, the Court

considers only the content of an exhibit in conjunction with the

corresponding allegation in the complaint.

A. Claims under Title II of the ADA

For ease of reference, the Court will group the defendants

into two categories. The Court will refer to the DOC and all of

the defendants who are or were employed by the DOC as “the DOC

Defendants.”1 The Court will refer to defendant Massachusetts

Partnership for Correctional Healthcare, Inc. (“the MPCH”) and

1 Although perhaps not employed by the DOC, the Court will include

Adriana Carillo, Orthopedic Surgeon for Lemuel Shattuck

Hospital, in its reference to the DOC Defendants. Carillo was a

state employee during the time relevant to this complaint.

its employees, past or present, who are defendants in this

action as “the MPCH Defendants.” The MPCH contracts with the

Commonwealth of Massachusetts to provide medical care to

prisoners at DOC facilities, including MCI Cedar Junction.

1. ADA Claims Against the DOC Defendants

Title II of the ADA provides that “no qualified individual

with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” 42 U.S.C.

§ 12132.

The statute defines “public entity” to include “any State

or local government” and “any department, agency, special

purpose district, or other instrumentality of a State . . . or

local government.” 42 U.S.C. § 12131(1). An individual sued in

his or her individual capacity is not liable under Title II of

the Americans with Disabilities Act. See Wiesman v. Hill, 629

F. Supp. 2d 106, 112 (D. Mass. 2009). Therefore, Sosa’s ADA

claims against the individual DOC Defendants in their individual

capacities will be dismissed with prejudice.

The Court will also dismiss with prejudice the ADA claims

against the individual DOC defendants in their official

capacities because they are wholly redundant to Sosa’s ADA claim

against the Commonwealth itself. See, e.g., S.S. by S.Y. v.

City of Springfield, Mass., 146 F. Supp. 3d 414, 426 (D. Mass.

2015) (dismissing as redundant ADA official capacity claims

against individual municipal employees where ADA claim also

asserted against the municipality).

2. ADA Claims Against the MPCH Defendants

As a private entity, MPCH is not liable under Title II of

the ADA. See Matthews v. Penn. Dep’t of Corr., 613 Fed. Appx.

163, 170 (3d Cir. 2015) (holding that private corporation

providing medical care in a state prison was not a “public

entity” for purposes of Title II of the ADA). Accordingly, all

ADA claims against any of the MPCH Defendants are dismissed with

prejudice.

B. Claims under 42 U.S.C. § 1983

1. Dismissal of Claims against the Commonwealth and

Defendants sued in their Official Capacities

Section 1983 provides a right of action against a “person”

acting under color of state law who violates plaintiff’s federal

constitutional rights. See 42 U.S.C. § 1983. 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 against the

Commonwealth and the individual DOC Defendants acting in their

official capacities.

The Court will also dismiss with prejudice the “official

capacity” claims against the individual MPCH defendants as

redundant of the § 1983 claim against MPCH.

2. Dismissal Based on the Statute of Limitations

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). Although a plaintiff is not required to plead

explicitly that his claims are timely, a complaint fails to

state a claim upon which relief can be granted where an

affirmative defense, such as the statute of limitations, is

evident on the face of the pleading. See Bock v. Jones, 549

U.S. 199, 215 (2007).

A claim under § 1983 borrows the appropriate state

governing limitations unless contrary to federal law. See

Wilson v. Garcia, 471 U.S. 261, 267 (1984); Rivera-Ramos v.

Ramon, 156 F.3d 276, 282 (1st Cir. 1998) (“For section 1983

actions, federal law governs the date on which a cause of action

accrues . . . while the length of the period and tolling

doctrine are taken from local law.”). The three-year statute of

limitations prescribed by M.G.L. ch. 260, § 2A governs here. In

other words, Sosa had three years from the date his claim

accrued to bring a lawsuit. Absent any basis for tolling the

statute of limitations, any claim that accrued prior to October

24, 2015 is time barred.

Sosa makes only scattered references to the dates of the

alleged misconduct of specific defendants. For the most part,

the exhibits to the complaint are dated; many of them concern

conduct that occurred before October 24, 2015. Based on the

allegations in the complaint and the exhibits which Sosa has

identified as relevant to each defendant, the Court will dismiss

as time barred the § 1983 claims against the following 17

defendants: James Saba, Luis Spencer, Carol Lawton, Lisa

Mitchell, Stephanie Collins, Denise Vega, Thomas Groblewski,

Jeffrey Fisher, Albert Franchi, Adriana Carillo, Rebecca

Lubelczyk, Guido Guevara, Linda Farag, Joel Andrade, Rosemary

Spaulding, Lawrence Weiner, and Michael Grant. The Court will

order dismissal of the § 1983 claims against these defendants

without making any determination whether the complaint and

designated exhibits contain sufficient factual material from

which the Court may reasonably infer that these defendants

violated Sosa’s constitutional rights.

3. Dismissal Based on Insufficient Factual

Allegations

The requirement that a pleading contain “a short and plain

statement of the claim showing that the pleader is entitled to

relief,” Fed. R. Civ. P. 8(a)(2), means that the 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). This means that the complaint must provide a

defendant sufficient detail to provide a defendant with “fair

notice 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 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 violates 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). 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 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.”).2 Thus, to state a viable § 1983 claim, the

specific factual content required by Fed. R. Civ. P. 8(a)(2)

must not only identify, in a non-conclusory fashion, the

wrongful conduct of a defendant, but must also permit the Court

reasonably to infer that the defendant was directly involved in

a constitutional violation.

Here, Sosa’s factual allegations are largely conclusory.

For many of the defendants, he does not identify any specific

misconduct. He merely identifies the individual’s position and

2 Direct participation or involvement by a supervisory official

in a constitutional violation does not necessarily require said

official to be physically present when the official’s

subordinate commits the constitutional violation. See, 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))).

duties, cites to the Code of Massachusetts Regulations and

asserts that the defendant was deliberately indifferent to

Sosa’s medical condition and/or suffering due to improper

restraints. See Compl. ¶¶ 138-169. In support of these

assertions, Sosa does refer to specific exhibits submitted with

his complaint but the content of these exhibits does not suggest

that defendants were directly involved in whatever

constitutional violation may have occurred.

a. Dean, Mitchelle, Marshall

The Court will dismiss the claims against John Dean, Kelli

Mitchelle, and John Marshall because Sosa has not made any well-

pled factual allegations against these defendants. They are

included in the caption of the complaint and the recitation of

the parties. See Compl. ¶¶ 39, 48, 49. Dean’s name does not

appear anywhere else in the complaint. Sosa makes only

conclusory allegations that Mitchelle “was responsible for

providing medical services to Mr. Sosa” and that “[s]he was

deliberately indifferent to Mr. Sosa’s suffering by not

performing physical therapy and assessment,” id. ¶ 160, and does

not refer to any exhibits with regard to Mitchelle or mention

her name elsewhere in the complaint. Sosa alleges that Marshall

“was responsible for Mr. Sosa’s care” but that “he was

deliberately indifferent to Mr. Sosa’s suffering due to improper

restraints.” Id. ¶ 169. Sosa does not refer to any exhibits

with regard to Marshall nor does his name appear elsewhere in

the complaint.

b. Wilkes, Ddungu, Grimes

The Court will dismiss the § 1983 claims against Harold

Wilkes, Herbert Ddungu, and Jeffrey Grimes because Sosa fails to

allege sufficient factual material from which the Court may

reasonably infer that these defendants violated his

constitutional rights.

Sosa identifies Wilkes as the DDU captain at MCI Cedar

Junction. See id. ¶ 26. His name appears in the complaint only

one other time. Referring to Exhibits 13-16 and 121, Sosa

alleges that Wilkes was “deliberately indifferent to Mr. Sosa’

suffering due to improper restraints and abuse by officer, [and

that] [a]s DDU Captain, [Wilkes] was responsible for how

Mr. Sosa was restrained.” Compl. ¶ 147. Exhibits 13 through 16

consist of a January 14, 2016 letter from Attorney Jesse White

of Prisoner Legal Services to MCI Superintendent Donald

Levesque. The only reference therein to Wilkes is an assertion

that he informed Sosa that the video recording of a use of force

incident against Sosa “did not show the actions of the officers

or the punches that were thrown.” Ex. 15. That reference to

Wilkes does not suggest that he violated Sosa’s constitutional

rights. Exhibit 121 is an appeal grievance submitted by Sosa.

The appeal was denied by Superintendent Saba on September 23,

2015. Any claim arising from the conduct at issue in the

grievance is time barred.

Sosa identifies Ddungu as an MPCH Nurse Practitioner at MCI

Cedar Junction, see Compl. ¶ 35, and his name appears in the

complaint only one other time. Referring to Exhibits 121, 148,

181, and 242, Sosa alleges that Ddungu “was responsible for

providing medical services to Mr. Sosa,” and that “[h]e was

deliberately indifferent to Mr. Sosa’s suffering due to improper

restraints.” Id. ¶ 156. Sosa further claims that Ddungu “said

no when asked by the DDU Lieutenant in charge if the plaintiff

needs to be accommodated for his disability by use of waist

chains.” Id.

Exhibit 148 is a grievance by Sosa concerning an alleged

incident that occurred on September 18, 2017. Sosa recounts

difficulties he had in being treated for chest pains while he

was handcuffed behind his back. He asks that the medical

restrictions against double-cuffing behind the back be

reinstated, or that, at a minimum, he be allowed to be

transported for all medical services in waist chains.

The only reference to Ddungo in this grievance is a

description of his initial reticence to approach Sosa. Sosa

does not suggest that Ddungo denied him medical treatment or

that Ddungo’s brief delay in coming to Sosa caused him any harm.

Even considering Ddungo’s alleged statement to the DDU

lieutenant together with the content of Exhibit 148, there is

insufficient factual material from which the Court can

reasonably infer that Ddungo violated Sosa’s constitutional

rights. Exhibit 121 is dated June 23, 2015, and Exhibits 181

and 242 have 2014 dates. Any claim arising from the conduct at

issue in these documents is time barred.

Sosa identifies Grimes as a former DDU captain at MCI Cedar

Junction, see Compl. ¶ 46, and, again, his name appears in the

complaint only one other time. Sosa alleges that Grimes “was

responsible for Mr. Sosa’s care,” and that “[h]e was

deliberately indifferent to Mr. Sosa’s suffering due to improper

restraints.” Id. ¶ 167. Without referring to any exhibits,

Sosa claims that Grimes “was asked by a podiatrist, Dr. King, to

place the plaintiff in waist chains but Grimes denied this

requested accommodation.” Id. Without providing additional

context for that alleged interaction, including the approximate

date thereof, the statement neither provides Grimes with fair

notice of the claim against him nor contains sufficient factual

material from which the Court can reasonably infer that Grimes

violated Sosa’s constitutional rights.

c. MPCH

In appropriate circumstances, a private entity that

contracts with a state or local government to provide medical

services in a prison may be deemed a government actor for

purposes of § 1983. The entity and its employees may be held

liable for constitutional violations in which they were directly

involved. With regard to the private entity itself, a plaintiff

must show that the alleged injuries were inflicted pursuant to

the entity’s custom, policy or practice. See Monell v. Dep’t of

Soc. Servs. of City of New York, 436 U.S. 658, 692 (1978)

(concluding that § 1983 imposes liability on a municipal

defendant “that, under color of some official policy, ‘causes’

an employee to violate another's constitutional rights”); Moore

v. St. John’s Hosp., 670 Fed. App’x 395, 398 (7th Cir. 2016);

(applying Monell standard to private contracted healthcare

provider and government treatment and detention center);

Gannaway v. PrimeCare Med., Inc., 652 Fed. Appx. 91, 94 (3d Cir.

2016) (same).

Referring to Exhibits 3, 50-51, 91-92, and 110-111, Sosa

alleges that MPCH was “deliberately indifferent to Mr. Sosa’s

suffering due to improper restraints.” Compl. ¶ 148. These

exhibits indicate that various MPCH employees have stated that

modified restraints are not medically indicated for Sosa.

However, nothing in these exhibits or the complaint suggest that

the conclusion of any MPCH employee that modified restraints

were not medically indicated for Sosa was the result of MPCH’s

custom, policy or practice.

3. Dismissal of Individual Capacity § 1983 Claims

The Court dismisses without prejudice the individual

capacity § 1983 claims against James Saba, Luis Spencer, Carol

Lawton, Lisa Mitchell, Stephanie Collins, Denise Vega, Thomas

Groblewski, Jeffrey Fisher, Albert Franchi, Adriana Carillo,

Rebecca Lubelczyk, Guido Guevara, Linda Farag, Joel Andrade,

Rosemary Spaulding, Lawrence Weiner, Michael Grant, John Dean,

Kelli Mitchelle, John Marshall, Harold Wilkes, Herbert Ddungu,

Jeffrey Grimes, and MPCH. If Sosa believes that he can cure the

pleading deficiencies of the § 1983 claims against these

defendants, he may seek to amend the complaint in accordance

with Rule 15(a) of the Federal Rules of Civil Procedure.

C. Massachusetts Declaration of Human Rights

To the extent a private right of action under the

Massachusetts Declaration of Human Rights exists, see Lopes v.

Riendeau, 177 F. Supp. 3d 634, 671 (D. Mass. 2016) (assuming

without deciding that a cause of action can be directly brought

under Article 26), claims against all defendants as to whom

§ 1983 claims are being dismissed shall also be dismissed for

the same reasons articulated with respect to the federal

constitutional claims.

III. Order

In light of the foregoing, the Court hereby orders:

1. The ADA claims against the individual DOC Defendants

in their individual and official capacities are DISMISSED with

prejudice.

2. The ADA claims against MPCH and its employees are

DISMISSED.

3. The § 1983 claims against the DOC and the § 1983

claims against the individual defendants in their official

capacities are DISMISSED with prejudice.

4. The § 1983 individual capacity claims and claims under

the Massachusetts Declaration of Human Rights against the

following defendants are DISMISSED without prejudice: James

Saba, Luis Spencer, Carol Lawton, Lisa Mitchell, Stephanie

Collins, Denise Vega, Thomas Groblewski, Jeffrey Fisher, Albert

Franchi, Adriana Carillo, Rebecca Lubelczyk, Guido Guevara,

Linda Farag, Joel Andrade, Rosemary Spaulding, Lawrence Weiner,

Michael Grant, John Dean, Kelli Mitchelle, John Marshall, Harold

Wilkes, Herbert Ddungu, Jeffrey Grimes, and MPCH. If Sosa

believes that he can cure the pleading deficiencies of the

§ 1983 claims against any of these defendants as described in

the Memorandum above, he may seek to amend the complaint in

accordance with Rule 15(a) of the Federal Rules of Civil

Procedure.

5. The Clerk shall issue summonses for the following

defendants: Carol Higgins O’Brien, Michael Rodrigues, Stephen

Kennedy, Vanessa Rattigan, James M. O’Gara, Jr., Jennifer

Vieira, Joann Lynds, Ann Evans, and Aysha Hameed.

6. Sosa is responsible for serving the summonses,

complaint, motion for a preliminary injunction, and this order

on these defendants in compliance with Rule 4 of the Federal

Rules of Civil Procedure. Sosa must complete service within 90

days of the date the summonses issue. Failure to complete

service in a timely fashion may result in dismissal of the

Massachusetts Department of Correction as a party to this action

without further notice from the Court. See Fed. R. Civ. P.

4(m); Local Rule 4.1.

7. Because Sosa 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 Sosa, the USMS shall serve a copy

of the summons, complaint, motion for a preliminary injunction

and this order upon all defendants as to whom a summons has

issued, as directed by Sosa. Sosa 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

Plaintiff with forms and instructions for service by the USMS.

So ordered.

/s/ Nathaniel M. Gorton

Nathaniel M. Gorton

United States District Judge

Dated: August 2, 2019