Johnson v. Sheriff Department Plymouth

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

*

*

ISAIAH JOHNSON, *

*

Plaintiff, *

* Civil Action No. 19-cv-10256-ADB

v. *

*

SHERIFF JOSEPH MCDONALD and *

SUPERINTENDENT ANTONE MONIZ *

*

Defendant. *

MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS

BURROUGHS, D.J.

Isaiah Johnson (“Johnson”) claims that he was deprived of his constitutional rights in

violation of 42 U.S.C. § 1983 when he was assaulted by a number of correctional officers while

he was a pre-trial detainee at the Plymouth County Correctional Facility (“Facility”). He alleges

that several unnamed correctional officers physically assaulted him when he was being transported

in a restraint chair.

Presently before the Court is Sheriff Joseph McDonald (“McDonald”) and Superintendent

Antone Moniz’s (“Moniz” and together with McDonald, “Defendants”) motion to dismiss, [ECF

No. 14]. For the reasons that follow, Defendants’ motion to dismiss [ECF No. 14] is GRANTED.

I. BACKGROUND

Johnson, who has a diagnosed mental illness, claims that he was subjected to an

unwarranted cell extraction in which he was moved to the Facility’s “mental health vicinity” and

kept in segregation for twelve months. [ECF No. 9-1 at 5]. Johnson further asserts that he was

placed in a restraint chair and that his face was covered in a “spit mask” during the move because

a Facility employee claimed that Johnson had bitten him. [Id. at 6]. He alleges that he was then

assaulted by Facility employees in a “blind spot,” where Facility security cameras could not

record the attack. [Id.].

Johnson filed this lawsuit against the Plymouth County Sheriff’s Department and an

unknown number of unidentified John Does seeking monetary damages and dismissal of his

underlying criminal charges. [ECF No. 1]. On April 5, 2019, the Court granted Johnson’s

motion for leave to proceed in forma pauperis. [ECF No. 6]. The Court also dismissed

Johnson’s claim against the Plymouth County Sheriff’s Department because the Sheriff’s

Department is an “arm of the state” and is entitled to immunity under the Eleventh Amendment.

[Id. at 4]. The Court ordered Johnson to file an amended complaint. [Id. at 6]. On April 12,

2019, Johnson filed the amended complaint that identified Defendants both in their official and

individual capacities. [ECF No. 9 at 2; ECF No. 9-1 ¶¶ 3–4].

On May 30, 2019, Defendants moved to dismiss the amended complaint under Rule

12(b)(1) of the Federal Rules of Civil Procedure, asserting that Defendants are entitled to

immunity under the Eleventh Amendment where the claims seek damages and were brought

against Defendants in their official capacity. [ECF No. 15 at 3]. They further claim that the

amended complaint should be dismissed under Rule 12(b)(6) because the amended complaint

fails to state a claim and Defendants are entitled to qualified immunity in any event. [Id. at 3–7].

After Johnson, acting pro se, failed to timely oppose the motion, the Court gave him leave to

respond by July 26, 2019. [ECF No. 18]. On July 22, 2019, Johnson filed his opposition. [ECF

No. 20]. Johnson’s opposition does not address Defendants’ arguments, but rather requests that

the Court not dismiss his claims. [Id. at 1].

II. STANDARD OF REVIEW

“A court may not automatically treat a plaintiff’s failure [to oppose] a motion to dismiss

as a procedural default warranting dismissal irrespective of whether the Complaint has merit,

that is, the Court cannot simply allow the motion to dismiss as a sanction [for] failure to oppose

the motion.” Phaneuf v. Lustig, Glaser & Wilson P.C., 148 F. Supp. 3d 72, 74 (D. Mass. 2015)

(emphasis in original). The Court will therefore evaluate the amended complaint to determine

whether it sufficiently states a claim, despite Johnson’s failure to address Defendants’ arguments.

Pomerleau v. West Springfield Pub. Sch., 362 F.3d 143, 145 (1st Cir. 2004).

In evaluating a motion to dismiss under Rule 12(b)(1), the Court must determine whether

the facts alleged in the complaint, “taken at face value,” support subject matter jurisdiction.

Gordo-González v. United States, 873 F.3d 32, 35 (1st Cir. 2017). Because Johnson is invoking

federal jurisdiction, he has the burden of establishing that the Court has subject matter

jurisdiction. Amoche v. Guarantee Tr. Life Ins. Co., 556 F.3d 41, 48 (1st Cir. 2008). “When

considering a motion to dismiss under 12(b)(1) . . ., the Court should apply a standard of review

‘similar to that accorded a dismissal for failure to state a claim’ under subsection 12(b)(6).”

Rodriguez v. Mass. Parole Bd., No. 16-cv-11113, 2017 WL 706597, at *2 (D. Mass. Feb. 22,

2017) (quoting Menge v. N. Am. Specialty Ins. Co., 905 F. Supp. 2d 414, 416 (D.R.I. 2012)).

To evaluate a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court

must “accept as true all well-pleaded facts alleged in the complaint and draw all reasonable

inferences therefrom in the pleader’s favor.” A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77,

80 (1st Cir. 2013) (quoting Santiago v. Puerto Rico, 655 F.3d 61, 72 (1st Cir. 2011)). The

complaint must set forth “a short and plain statement of the claim showing that the pleader is

entitled to relief,” id. (quoting Fed. R. Civ. P. 8(a)(2)), and should “contain ‘enough facts to state

a claim to relief that is plausible on its face,’” id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)).

“To cross the plausibility threshold a claim does not need to be probable, but it must give

rise to more than a mere possibility of liability.” Grajales v. P.R. Ports Auth., 682 F.3d 40, 44–

45 (1st Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A determination of

plausibility is ‘a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.’” Id. at 44 (quoting Iqbal, 556 U.S. at 679). “[T]he complaint

should be read as a whole, not parsed piece by piece to determine whether each allegation, in

isolation, is plausible.” Hernandez-Cuevas v. Taylor, 723 F.3d 91, 103 (1st Cir. 2013) (quoting

Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 14 (1st Cir. 2011)). “The plausibility standard

invites a two-step pavane.” Maddox, 732 F.3d at 80. First, the Court “must separate the

complaint’s factual allegations (which must be accepted as true) from its conclusory legal

allegations (which need not be credited).” Id. (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d

220, 224 (1st Cir. 2012)). Second, the Court “must determine whether the remaining factual

content allows a ‘reasonable inference that the defendant is liable for the misconduct alleged.’”

Id. (quoting Morales-Cruz, 676 F.3d at 224).

“In deciding a motion to dismiss under Rule 12(b)(6) . . . a pro se complaint must be

evaluated upon less stringent standards than those applicable to one drafted by an attorney.”

Ulatowski v. Ponte, 524 F. Supp. 1112, 1114 (D. Mass. 1981). The Court is therefore more

lenient when considering a complaint filed by a pro se plaintiff. See, e.g., Elliott v. Segal, No.

19-cv-10259-ADB, 2019 WL 5168448, at * 4 n.2 (D. Mass. Oct. 15, 2019) (“Because [Plaintiff]

is pro se [the Court] read[s] [her] complaint with an extra degree of solicitude.” (alteration in

original) (quoting Malek v. Knightly, No. 94-cv-02113, 1995 WL 338178 (1st Cir. June 5,

1995))). Still, the Court will “not conjure up unpleaded facts to support . . . conclusory

[allegations].” Cote v. Murphy, No. 04-2538, 152 F. App’x 6, 7 (1st Cir. Oct. 21, 2005)

(alterations in original) (quoting Hurney v. Carver, 602 F.2d 993, 995 (1st Cir. 1979)).

III. DISCUSSION

A. Defendants Cannot Be Held Liable in Their Official Capacities

Defendants first argue that any claim for liability against McDonald and Moniz in their

official capacities should be dismissed under Rule 12(b)(1) because the Court lacks subject

matter jurisdiction over such official-capacity claims. The Eleventh Amendment provides states

with sovereign immunity from suits for damages, unless the state has consented to suit or

Congress has abrogated immunity. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996).

The “Amendment has been interpreted to constitute a general bar to suit by private individuals

against unconsenting states in any tribunal, regardless of the relief sought or the legal source

(federal or state) of the claim.” Horizon Bank & Tr. Co. v. Flaherty, 309 F. Supp. 2d 178, 182

(D. Mass. 2004). “[A]lthough the Supreme Court ‘has declined to state definitively whether the

Eleventh Amendment is a doctrine of subject matter jurisdiction,’ . . . the Court has stated that

the ‘Amendment is jurisdictional in the sense that it is a limitation on the federal court’s judicial

power.” Brait Builders Corp. v. Mass. Div. of Capital Asset Mgmt., 644 F.3d 5, 10–11 (1st Cir.

2011) (first quoting Hudson Sav. Bank v. Austin, 479 F.3d 102, 109 (1st Cir. 2007) and then

quoting Calderon v. Ashmus, 523 U.S. 740, 745 n.2 (1998)).

A suit against an individual in his official capacity “is not a suit against the official, but

rather a suit against the official’s office.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71

(1989). Therefore, because McDonald and Moniz are state officials, they are not subject to suit

to the extent that they are sued in their official capacities. See Morgan v. Middlesex Sheriff’s

Office, No. 14-cv-10659, 2014 WL 4104173, at * 4 (D. Mass. Aug. 13, 2014).

B. The Amended Complaint Fails to State a Claim That Defendants Violated

Johnson’s Constitutional Rights

Johnson alleges that Defendants deprived him of his constitutional rights in violation of

42 U.S.C. § 1983. “Section 1983 provides a remedy for deprivations of rights secured by the

Constitution and laws of the United States when that deprivation takes place under color of any

statute, ordinance, regulation, custom, or usage, of any State.” Klunder v. Brown Univ., 778

F.3d 24, 30 (1st Cir. 2015) (internal quotation marks and citations omitted). “To make out a

viable section 1983 claim, a plaintiff must show both that the conduct complained of transpired

under color of state law and that a deprivation of federally secured rights ensued.” Id. (quoting

Santiago v. Puerto Rico, 655 F.3d 61, 68 (1st Cir. 2011)).

“Pretrial detainees are protected under the Fourteenth Amendment Due Process Clause

rather than the Eighth Amendment; however, the standard to be applied is the same as that used

in Eighth Amendment cases.” Burrell v. Hampshire Cty., 307 F.3d 1, 7 (1st Cir. 2002).

“Government officials may not be held liable for the unconstitutional conduct of their

subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676

(2009). Therefore, the amended complaint must sufficiently claim that Defendants, through their

own actions or omissions, violated the Constitution. Id.

In the context of Section 1983 actions, supervisory liability typically arises in one

of two ways: either the supervisor may be a “primary violator or direct participant

in the rights-violating incident,” or liability may attach “if a responsible official

supervises, trains, or hires a subordinate with deliberate indifference towards 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)).

The Supreme Court has held that a prison official violates the Eighth Amendment only

when two requirements are met. Farmer v. Brennan, 511 U.S. 825, 834 (1994). First, the

deprivation must be “sufficiently serious,” such that the inmate or detainee can “show that he is

incarcerated under conditions posing a substantial risk of serious harm.” Id. Second, the prison

official must have acted with “deliberate indifference to inmate health or safety.” Id. (internal

quotation marks omitted) (quoting Wilson v. Seiter, 501 U.S. 294, 302–03 (1994)).

Though Johnson identifies McDonald and Moniz in both their individual and official

capacities, [ECF No. 9 at 2], the amended complaint fails to allege any facts concerning

Defendants’ direct involvement in the restraint or assault, see [ECF No. 9-1 at 5–7]. The

amended complaint merely claims that Facility employees assaulted Johnson during a restrained

move when they were in a “blind spot” out of view of security cameras. [Id. at 5–6]. Such

allegations are insufficient to demonstrate that Defendants directly participated in the assault or

that they were deliberately indifferent in supervising or training the employees who allegedly

committed the assault. See, e.g., Morgan, 2014 WL 4104173, at * 4 (dismissing similar

allegations against a sheriff because complaint failed to allege that defendant sheriff directed or

was deliberately indifferent to harassment and retaliation in jail); Brensinger v. Honnewell, No.

14-cv-00011, 2014 WL 2779575, at *3 (D. Me. June 19, 2014) (finding that plaintiff failed to

demonstrate that corrections officer was subjectively aware of the risk that plaintiff could be

attacked by another inmate).

C. Defendants Are Entitled to Qualified Immunity

Alternatively, because the complaint fails to allege that Defendants directed or were

deliberately indifferent to the alleged restraint and assault, Defendants are entitled to qualified

immunity. Under the doctrine of qualified immunity, “government officials performing

discretionary functions generally are shielded 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

In determining whether a government official is entitled to qualified immunity, courts

must consider (1) whether the facts alleged by plaintiff constitute a violation of plaintiff’s

constitutional rights and (2) whether that constitutional right was clearly established at the time

of the alleged violation. Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009). Courts are

permitted to address the two questions in any order. Pearson v. Callahan, 555 U.S. 223, 236

(2009). Determining whether a right is “clearly established” is a two-party inquiry. “The first

sub-part requires the plaintiff to identify either ‘controlling authority’ or a ‘consensus of cases of

persuasive authority’ sufficient to send a clear signal to a reasonable official that certain conduct

falls short of the constitutional norm.” Alfano v. Lynch, 847 F.3d 71, 75 (1st Cir. 2017) (quoting

Wilson v. Layne, 526 U.S. 603, 617 (1999)). “The second-subpart asks whether an objectively

reasonable official in the defendant’s position would have known that his conduct violated that

rule of law.” Id. (citing Wilson v. City of Bos., 421 F.3d 45, 57–58 (1st Cir. 2005)).

Because Johnson has failed to allege that Defendants directed or were deliberately

indifferent to his restraint and alleged assault, see supra III.B, the amended complaint fails to

allege that Defendants violated a clearly-established constitutional right, such that they are not

entitled to qualified immunity. See, e.g., Serrano v. Lebron Gonzalez, 909 F.2d 8, 13–14 (1st

Cir. 1990) (finding that prison official was not entitled to qualified immunity when evidence

demonstrated that he stood by during a prison assault and did not attempt to intervene or call for

help); Woods v. York Cty., 534 F. Supp. 2d 153, 161 (D. Me. 2008) (finding that jail

administrator and sheriff were protected by qualified immunity from suit brought by inmate who

was allegedly sexually assaulted by a corrections officer because plaintiff failed to demonstrate

that they were deliberately indifferent to her right to be free from sexual assault). Defendants are

therefore entitled to qualified immunity.

IV. CONCLUSION

Defendants cannot be held liable in their official capacities, because such suits are barred

by the Eleventh Amendment. The amended complaint, [ECF No. 9], fails to allege that

Defendants directed or were deliberately indifferent to any violation of Johnson’s constitutional

rights. Alternatively, Defendants are entitled to qualified immunity. Accordingly, the motion to

dismiss [ECF No. 14] is GRANTED.

Johnson is granted leave to file a second amended complaint, on or before December 9,

2019, that names as defendants the Facility employees who are alleged to have violated his

constitutional rights. The amended complaint only names the Sheriff and Superintendent as

defendants and they cannot be held liable for the actions of their employees. Johnson is

informed that if he elects to file a second amended complaint, he must name as defendants those

individuals who are alleged to have harmed him. If Johnson does not know the name or identity

of an alleged defendant, he may use a fictitious name, such as “John Doe 1” or “John Doe 2.” If

he knows the first name, he may use the first name along with “last name unknown.” After the

second amended complaint is filed, Johnson may amend the complaint to identify and substitute

the correct party’s name once he discovers such person’s true name.

In addition, if Johnson files a second amended complaint, he should include any

allegations from the original and amended complaints that he wishes to be part of the operative

pleading. Johnson’s second amended complaint will be subject to screening pursuant to 28

U.S.C. § 1915A. It must be captioned as “Second Amended Complaint,” and bear the docket

number 19-cv-10256-ADB.

SO ORDERED.

November 12, 2019 /s/ Allison D. Burroughs

ALLISON D. BURROUGHS

U.S. DISTRICT JUDGE