DiSessa v. Ryan

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ALFRED DISESSA, *

*

Plaintiff, *

v. * Civil Action No. 1:18-cv-11024-IT

*

COMMONWEALTH OF *

MASSACHUSETTS, *

ALVIN LAROCHE, *

TIMOTHY O’TOOLE, *

CHRISTOPHER DEVENEAU, *

MICHAEL THOMAS, *

KELLY RYAN, *

CAROL HIGGINS O’BRIEN, *

and *

CERTAIN JOHN AND JANE DOES, *

*

Defendants. *

MEMORANDUM AND ORDER

March 10, 2020

TALWANI, D.J.

Plaintiff Alfred Disessa alleges that he was mistreated while incarcerated in the

Massachusetts Correctional Institution at Shirley, Massachusetts (“MCI-Shirley”).1 Disessa

asserts various federal and state claims against Defendants Commonwealth of Massachusetts

(“Commonwealth”) and Alvin Laroche, Timothy O’Toole, Christopher Deveneau, Michael

Thomas, Kelly Ryan, and Carol Higgins O’Brien, in their individual and official capacity.2

Pending before the court is Defendants’ Motion to Dismiss [#32]. For the following

1 Plaintiff filed his Complaint [#1] pro se and filed a second suit, Disessa v. Comm. of Mass.,

No. 1:18-cv-11393 (D. Mass., filed Aug. 2, 2018), through counsel. The court consolidated the

actions and directed the clerk to refile the complaint from the second action as an amended

complaint here. Elec. Order [#30]; Am. Complaint [#31].

2 The Amended Complaint [#31] also names “Certain John and Jane Does.”

reasons, Defendants’ Motion to Dismiss [#32] is ALLOWED IN PART and DENIED IN PART.

I. Factual Allegations as Alleged in the Amended Complaint

Plaintiff alleges the following:

At all relevant times, Disessa was incarcerated at MCI-Shirley. Am. Compl. ¶ 11 [#31].

Laroche, O’Toole, Deveneau, and Thomas were corrections officers and Ryan was the

Superintendent at MCI-Shirley. Id. ¶¶ 3-7. Higgins O’Brien was the Commissioner of the

Department of Corrections. Id. ¶ 8.

On July 2, 2015, O’Toole brought Disessa to a cell to be strip-searched based on a

suspicion that he had stored medication in his mouth. Id. ¶¶ 11-13. Laroche assisted with the

strip search. Id. ¶ 15. During the search, O’Toole grabbed Disessa by the neck and choked him,

causing injury. Id. ¶ 16. After Disessa was stripped naked, Laroche twisted Plaintiff’s testicles

and said, “see how you like this.” Id. ¶ 17. Laroche also repeatedly elbowed Disessa in the

kidney, causing further injury. Id. ¶ 18. Deveneau observed the strip search and did not

intervene. Id. ¶ 19. Upon Disessa’s request, Deveneau took pictures of Disessa’s neck but

refused to take pictures of his testicles. Id. ¶¶ 20-21.

Laroche and O’Toole then shackled Disessa while he was still naked. Id. ¶ 25. Disessa

overheard Laroche say he was going to “bury” Disessa. Id. ¶ 26.

On the day of the incident, Disessa’s urine contained blood, which continued for several

weeks. Id. ¶¶ 34-35. Disessa also complained of lower back pain, kidney pain, and groin pain for

several months after the incident. Id. ¶ 37.

Following the incident, Disessa was placed on a suicide watch for four or five days,

resulting in solitary confinement without clothing in a glass-walled cell. Id. ¶ 28. Laroche, as a

lieutenant with supervisory duties in the medical unit, wrongfully authorized Disessa’s suicide

watch. Id. ¶ 30. Disessa repeatedly requested medical attention for his injuries but was not seen

by a doctor until four days later on July 6, 2015. Id. ¶ 33.

Laroche and O’Toole falsely accused Disessa of assault and battery. Id. ¶¶ 22-24. Based

on the officer’s false allegations, Plaintiff was placed in segregated confinement after he was

removed from suicide watch and he remained in segregated confinement for at least one year. Id.

¶¶ 31-32.

Disessa filed grievances against Laroche, O’Toole, and Deveneau. Id. ¶ 39. Thomas

reviewed the grievances and recommended that no action be taken and Ryan accepted the

recommendation. Id.

Disessa was arraigned in state district court on assault and battery charges on November

25, 2015. Id. ¶ 40. Disessa was acquitted of the charges on April 11, 2017. Id. ¶ 41.

II. Standard of Review

A motion under Fed. R. Civ. P. 12(b)(6) to dismiss a complaint for failure to state a claim

is properly allowed when the complaint does not contain “grounds of his entitlement to relief

[consisting of] more than labels and conclusions, and a formulaic recitation of the elements of a

cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations

omitted). The complaint must contain “sufficient factual matter, accepted as true, to state a claim

to relief that is plausible on its face” and that “allow the court to draw the reasonable inference

that the defendant is liable.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court accepts as

true well-pleaded facts in the complaint and draws all reasonable inferences for the non-movant.

Germanowski v. Harris, 854 F.3d 68, 71 (1st Cir. 2017). Generally, a court may not consider any

documents that are outside of the complaint. Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co.,

267 F.3d 30, 33 (1st Cir. 2001).

III. Discussion

Plaintiff brings claims under 42 U.S.C. § 1983, alleging (1) a violation of the Eighth

Amendment by all individual defendants for the use of excessive force (“Excessive Force

claim”); (2) a violation of the Fourth Amendment by all individual defendants for the strip search

and for placement on suicide watch and in segregated confinement (“Search and Seizure

claim”),3 and (3) a violation of the Fourth, Fourteenth and First Amendments under a theory of

supervisory liability by Ryan and Higgins O’Brien and by the Commonwealth4 (“Supervisory

Liability claim”). Plaintiff also alleges (4) a violation of the Massachusetts Civil Rights Act,

M.G.L. c. 12, §§ 11H and 11I, by Laroche, O’Toole, and Deveneau for the use of threats and

intimidation (“MCRA claim”); and brings state law claims5 for (5) assault and battery against

Laroche and O’Toole, (6) false imprisonment against all individual defendants, (7) malicious

prosecution against all individual defendants, and (8) civil conspiracy against all individual

defendants.

3 In Plaintiff’s Amended Complaint [#31], Claim 1 alleges a violation of 42 U.S.C. § 1983

through the use of excessive force and Claim 2 alleges a violation of 42 U.S.C. § 1983 through

the alleged strip search and confinement conditions. Am. Complaint ¶¶ 52-81. He also brings

Claim 3 for violations of the Fourth Amendment for illegal search and seizure, id. ¶¶ 82-95 and

Claim 4 for violations of the Eighth Amendment. Id. ¶¶ 96-108. As § 1983 provides a cause of

action for alleged constitutional violation, Gomez v. Toledo, 446 U.S. 635, 638 (1980), the court

treats these first four claims as two § 1983 claims.

4 Plaintiff named the Commonwealth in its caption of the complaint, but listed MCI-Shirley in

the complaint. MRI-Shirley is a facility run by the Department of Corrections. A claim against a

state agency, such as the Department of Corrections, is appropriately considered a claim against

the state. Woodbridge v. Worcester State Hosp., 384 Mass. 38, 38-39 n.3 (1981).

5 The court infers that these claims are brought under state common law because Plaintiff uses

the language of state tort law (for example, claiming damages for physical pain and suffering).

See Smith v. Mass. Dep’t of Corr’n, 936 F.2d 1390, 1402 (1st Cir. 1991) (looking at plaintiff’s

word choice and intent to determine whether a claim for malicious prosecution was brought

under § 1983 or under state common law).

A. Claims against the Commonwealth and Individual Defendants in their Official

Capacity

Plaintiff’s claim under 42 U.S.C. § 1983 against the Commonwealth alleges

constitutional violations related to “deliberately indifferent policies, practices, customs, training

and supervision” and seeks damages and declaratory and injunctive relief. Am. Compl. ¶¶ 138-

139 [#31].

A suit against a state is barred by the Eleventh Amendment unless the state has consented

to the suit. Alabama v. Pugh, 438 U.S. 781, 782 (1978); Edelman v. Jordan, 415 U.S. 651, 663

(1974). The Commonwealth has not consented to suits brought pursuant to 42 U.S.C. § 1983 for

damages or prospective injunctive relief. Poirier v. Mass. Dep’t of Corr., 558 F.3d 92, 97 (1st

Cir. 2009). In addition, declaratory relief should only be granted as a matter of judicial discretion

exercised in the public interest. Knight v. Mills, 836 F.2d 659, 669 (1st Cir. 1987).

Plaintiff argues that the claim should proceed under Monell v. N.Y. Dept. of Social

Servs., 436 U.S. 658 (1978). Monell held that a local government or municipality may be sued

under 42 U.S.C. § 1983 when its policy or custom inflicts the injury at issue. Id. at 694. Monell,

however, does not extend to states. Quern v. Jordan, 440 U.S. 332, 338-39 (1979). Accordingly,

as the Commonwealth retains sovereign immunity and because Disessa has not offered

allegations necessitating declaratory relief, his claim against the Commonwealth is dismissed.

Plaintiff also asserts § 1983 claims against the individual plaintiffs in their “professional

capacity.” Am. Compl. ¶¶ 3-8 [#31]. However sovereign immunity precludes holding individual

defendants liable in their official capacity for damages for alleged constitutional violations

pursuant to 42 U.S.C. § 1983. Hafer v. Melo, 502 U.S. 21, 25-28 (1991); accord Johnson v.

Rodriguez, 943 F.2d 104, 108 (1st Cir. 1991). Accordingly, Defendants’ motion to dismiss

Plaintiff’s claims under 42 U.S.C. § 1983 for monetary relief against the individual Defendants

in their official capacity is allowed.

B. Claim against Carol Higgins O’Brien

Plaintiff concedes that he does not have a viable claim against Higgins O’Brien. Pl.’s

Mem. in Opp’n to Mot. to Dismiss 4 n.1 [#34]. Accordingly, the motion to dismiss is allowed as

to Higgins O’Brien.

C. Service of Process under Fed. R. Civ. P. 4

Defendants seek dismissal of the action pursuant to Fed. R. Civ. P. 4 for insufficient

service of process. Defendants’ Mem. of Law in Support of Mot. to Dismiss (“Defs. Mem.”) 3-4

[#33]. The Process Receipts returned by the United States Marshals Service and by a private

process server show that service was attempted at MCI-Shirley on August 15, 2018, in the pro se

action and September 26, 2018, in the counseled action. See Return of Summons [##16-18];

Process Receipt and Return, Disessa v. Comm. of Mass., 18-cv-11393 (D. Mass., filed Aug. 2,

2018) [##5-10]. Defendants argue that at the time of attempted service, the Defendants no longer

worked at that specific facility. Defs. Mem. at 4 [#33].

At a hearing, Defendants’ counsel agreed to waive service for Defendants who were

employed by the Department of Corrections (“DOC”) at the time of attempted service.6

Deveneau, Thomas, and Laroche worked for DOC on the dates of attempted service. Snow Aff.

¶ 5 (Defendants’ Notice) [#42-1]. Thus, the service of process argument is waived for these three

Defendants.

6 The court strongly endorses this waiver, and notes that the attempt to avoid service on DOC’s

current employees who have moved to a different facility from where service was attempted may

lead to plaintiffs serving DOC employees at their home addresses, a result DOC and its

employees may prefer to avoid. Unnecessary burdens in effecting service is also of concern

where the court has approved service by the United States Marshals Service, with all costs

advanced by the United States.

O’Toole left DOC employment in January 2018 and Ryan left DOC employment in

November 2016. Snow Aff. ¶¶ 3-4 (Defendants’ Notice) [#42-1]. The court finds that these

Defendants were not properly served through process left with their former employer, and that

Plaintiff has not shown cause for the failure to properly effect service. Fed. R. Civ. P. 4(e), (m).

Accordingly, the motion to dismiss is granted without prejudice as to these two Defendants. See

Fed. R. Civ. P. 4(m).

D. Remaining Claims

The court turns to the claims brought against Laroche, Thomas, and Deveneau in their

individual capacity.7

1. Excessive Force Claim

Plaintiff’s Excessive Force claim brought under 42 U.S.C. §1983 alleges that Laroche

Thomas, and Deveneau violated Plaintiff’s constitutional rights through unnecessary violence

which caused harm during the strip search. Am. Compl. ¶¶ 52-67, 96-108 [#31].

a. Deliberate or Wanton Use of Force

In order to prevail on an Eighth Amendment claim of excessive force, a plaintiff must

show the defendant 1) used force maliciously and sadistically for the very purpose of causing

harm and 2) the use of force resulted in “unnecessary and wanton infliction of pain.” Hudson v.

McMillian, 503 U.S. 1, 9 (1992). The court’s core inquiry is to determine the “nature of the

force” and determine whether that force is alleged to have been carried out “maliciously and

sadistically.” Wilkins v. Gaddy, 559 U.S. 34, 39 (2010). “What matters here is whether a jury

could reasonably find that [plaintiff] was harmed through deliberate or wanton force.” Skinner v.

Cunningham, 430 F.3d 483, 488 (1st Cir. 2005).

7 Defendants have not challenged Plaintiff’s claim of assault and battery against Laroche on the

motion to dismiss. The claim remains pending and is not addressed further here.

The claim cannot be maintained against Defendant Thomas as Thomas was not present

for the strip search and Plaintiff does not allege Thomas participated in the use of force. Plaintiff

also did not include Thomas in his Supervisory Liability claim and so may not, based on the

complaint, further a theory of liability for excessive force based on Thomas’ supervisory role.

However, Plaintiff has stated a claim against Defendant Laroche. Plaintiff alleges that

Laroche twisted Plaintiff’s testicles while saying “see how you like this,” Am. Compl. ¶ 17

[#31], and that Laroche elbowed Plaintiff repeatedly in the kidney. Id. ¶ 18. Plaintiff further

alleges that these acts caused physical injury, resulting in blood in his urine, and back, kidney,

and groin pain. Id. ¶¶ 34-35, 37. Taking these allegations as true, Plaintiff has stated a claim as to

Laroche based on deliberate or wanton use of force.

Plaintiff has also stated a claim against Defendant Deveneau. Disessa alleges that

Deveneau observed the strip search and the use of excessive force by Laroche and did not

intervene. Id. ¶ 19. While “mere presence at the scene,” without an allegation that the officer

participated in the application of force, “does not by some mysterious alchemy render him

legally responsible under section 1983 for the actions of a fellow officer,” Calvi v. Knox County,

470 F.3d 422, 428 (1st Cir. 2006), a “bystander-officer who has a realistic opportunity to prevent

the use of excessive force by a fellow officer may in certain circumstances be held liable for a

failure to intervene.” Id. at 428 n.3. As Plaintiff has alleged that Deveneau was present for the

alleged use of wanton excessive force and did not intervene, Plaintiff has stated a claim against

Deveneau.

b. Prison Litigation Reform Act

Defendants argue that even if Plaintiff has sufficiently alleged a claim under Supreme

Court precedent against the officers, Section 1997e(e) of the Prison Litigation Reform Act

(“PLRA”) forecloses Plaintiff’s claim because he does not allege more than a de minimis

physical injury. See 42 U.S.C. § 1997e(e) (stating that “[n]o Federal civil action may be brought

by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional

injury suffered while in custody without a prior showing of physical injury or the commission of

a sexual act”). The First Circuit has not determined whether the PLRA requires a showing of

more than a de minimis injury. However, even assuming that the PLRA requires more than a de

minimis injury, Plaintiff has alleged non-de minimis injuries to his back, kidneys, and groin.

Therefore, dismissal is not warranted on this ground.

c. Qualified Immunity

Defendants also assert a defense of qualified immunity. In order to survive a qualified

immunity defense offered in a motion to dismiss, a plaintiff must allege sufficient facts that

plausibly show 1) a violation of a constitutional right, and 2) that the right was clearly

established at the time of the alleged violation. Maldonado v. Fontanes, 568 F.3d 263, 269 (1st

Cir. 2009). The right must have sufficiently clear contours so that a reasonable defendant would

have understood that his conduct violated the plaintiff’s constitutional rights. Id. (citing

Anderson v. Creighton, 483 U.S. 635, 640 (1987). Although “there need not be a case directly on

point, . . . existing precedent must have placed the statutory or constitutional question beyond

debate.” Eves v. LePage, 927 F.3d 575, 583 (1st Cir. 2019) (quoting in part Ashcroft v. al-Kidd,

563 U.S. 731, 741 (2011)).

Plaintiff has alleged a violation of his constitutional right to be free from the infliction of

pain through unnecessary and wanton excessive force and has adequately pleaded that the

officers, directly or through the failure to intervene, violated that right. Whitley v. Albers, 475

U.S. 312, 319 (1986). A reasonable official should have understood that the alleged conduct –

twisting Plaintiff’s testicles while taunting him, and elbowing Plaintiff in the kidney where

unwarranted by the facts – violated Disessa’s constitutional right. See Morelli v. Webster, 552

F.3d 12, 24 (1st Cir. 2009) (“qualified immunity protection [is not] available when the level of

force chosen by the officer cannot in any way, shape, or form be justified under [the] facts”).

Similarly, Deveneau is not entitled to qualified immunity because the duty to intervene to

prevent unnecessary and wanton excessive force by another officer is clearly established. Torres-

Rivera v. O’Neill-Cancel, 406 F.3d 43, 55 (1st Cir. 2005). Accordingly, dismissal due to

qualified immunity is unwarranted at this stage as to the claim against Laroche and Deveneau.

2. Search and Seizure claim

Plaintiff also asserts a § 1983 claim against Laroche, Thomas, and Deveneau based on the

strip search and the subsequent placement of Plaintiff on suicide watch and then in segregated

confinement for a year. Am. Compl. ¶¶ 68-95 [#31].

Insofar as Disessa bases his claim on the choice to perform a strip search, the court finds

dismissal for qualified immunity is merited. Disessa states the officers based their search on a

belief that Disessa had contraband in his mouth. Id. ¶ 12. The Supreme Court has stated that

courts must consider whether the scope of the search was reasonable under the circumstances,

balancing a prisoner’s limited right to privacy with the legitimate need for security protocols in

prisons. Bell v. Wolfish, 441 U.S. 520, 559-560 (1979). In this instance, Plaintiff states that the

officers suspected Plaintiff possessed contraband and so the choice to perform a strip search, as

opposed to another type of search, was not unreasonable.8

Plaintiff’s Search and Seizure claim also includes allegations that his confinement

conditions on suicide watch and in isolated confinement for a year violated his constitutional

rights. Am. Compl. ¶ 73, 75, 103 [#31].

8 Insofar as Plaintiff asserts in this claim violations of the Fourth Amendment through the alleged

use of excessive force, Am. Compl. ¶ 90 [#31], the alleged conduct is more properly analyzed

under the Eighth Amendment. See Maraj v. Massachusetts, 836 F.Supp. 2d 17, 27-28 (D. Mass.

2011) (explaining that alleged excessive force by prison guards against a prisoner is

appropriately analyzed under the Eighth Amendment, not the Fourth Amendment).

“Convicted prisoners . . . retain constitutional rights despite their incarceration,” Roberts

v. State of R.I., 239 F.3d 107, 109 (1st Cir. 2001), and the Eighth Amendment forbids conditions

of confinement which are “grossly disproportionate to the severity of the crime.” Rhodes v.

Chapman, 452 U.S. 337, 346 (1981). In order, therefore, to maintain a claim of unconstitutional

confinement conditions, a plaintiff must plausibly allege that the chosen prison punishment was

“extremely disproportionate, arbitrary or unnecessary.” O’Brien v. Moriarty, 489 F.2d 941, 944

(1st Cir. 1974). While placement in solitary confinement on its own is not a violation of the

constitution, a prisoner’s rights are violated if placement in solitary confinement is “[i]mposed

inappropriately, or for too long a period.” Id.; DuPonte v. Wall, 288 F.Supp. 3d 504, 513 (D. R.I.

2018) (finding that alleged solitary confinement for a year or more, without more, can be

sufficient to maintain a § 1983 claim).

The confinement conditions claim fails as to Thomas and Deveneau, as Plaintiff has not

asserted that Thomas’ denial of Plaintiff’s grievance was connected in any way to Plaintiff’s

placement on suicide watch or in segregated confinement and it is not clear from the complaint

whether the grievance was filed before, during, or after his segregated confinement. Similarly,

Plaintiff has not asserted that Deveneau was involved in these confinement decisions or that his

actions led to their implementation.

Plaintiff however has alleged Laroche caused Plaintiff’s confinement on suicide watch

and in segregation through false accusations. Defendants first argue that the claim as to Laroche

should be dismissed because the decision to place Disessa on suicide watch was made by health

services staff and not by Laroche. Defs.’ Mem. in Support of Mot. to Dismiss 5 [#33]. However,

at this stage, the court must take Disessa’s alleged facts as true and he has alleged that Laroche

wrongfully authorized his placement on suicide watch. Am. Compl. ¶ 30 [#31].

Defendants also raise a qualified immunity defense. The defense again turns on whether,

as alleged, the use of false accusations to place Disessa on suicide watch leading to his

confinement for five days, and his subsequent placement in isolation for a year, violates a clearly

established right protected by the constitution, and that Laroche, by engaging in this alleged

conduct, did not act with objective reasonableness. Penate v. Hanchett, 944 F.3d 358, 366 (1st

Cir. 2019). In addition, though courts should generally decide questions of qualified immunity

early in litigation if possible, a court may deny a motion to dismiss on qualified immunity

grounds if the record needs to be developed to answer the relevant legal questions. Irish v.

Maine, 849 F.3d 521, 523 (1st Cir. 2017).

Qualified immunity is not warranted here when taking Plaintiff’s allegations as true.

Plaintiff has alleged that he was placed on suicide watch and in solitary confinement for a year

based on false allegations from Laroche. These allegations state a claim for a constitutional

violation under First Circuit law. O’Brien, 489 F.2d at 944. In addition, based on the clearly

established law from the First Circuit, a reasonable officer would have known that the imposition

of a year of solitary confinement without reason and based on false allegations would violate

Plaintiff’s rights. Therefore, dismissal of the claim as to Laroche is not merited at this stage.

3. Massachusetts Civil Rights Act Claim

In order to maintain his claim that Laroche and Deveneau violated the Massachusetts

Civil Rights Act (MCRA), Plaintiff must state facts showing that Defendants interfered “by

threats, intimidation, or coercion” with his exercise or enjoyment “of rights secured by the

Constitution or laws of the United States, or of rights secured by the Constitution or laws of the

commonwealth.” M.G.L. c. 12, §§ 11(H), 11(I).

Coercion can be physical or verbal, including the use of violence to make someone do

something against his will. Ayasil v. Armstrong. 56 Mass. App. Ct. 740, 750 (2002). However,

there is no coercion within the meaning of this statute, “simply from the use of force by prison

officials, authorized to use force, in order to compel a prisoner to do something he would not

willingly do, even if it turns out that the official had no lawful right to compel the prisoner to

take that action.” Longval v. Comm’r of Corr., 404 Mass. 325, 333 (1989). Instead, to be

actionable, those threats, intimidation or coercion must amount to “an attempt to force someone

to do something the person is not lawfully required to do.” Freeman v. Planning Bd. of W.

Boylston, 419 Mass. 548, 565 (1995); see Farrah v. Gondella, 725 F.Supp. 2d 238, 248 (D. Mass.

2010) (Plaintiff “has pled a violation of [the arrestee’s] Fourth Amendment right to be free from

excessive force. What is absent, however, is any showing (or even pleading) that the violation

was intended to coerce [him] into refraining from the exercise of a right or privilege secured by

law”).

Plaintiff claims that Laroche and Deveneau used threats to violate his rights under both

the federal and Massachusetts constitutions, namely the right to be free from unreasonable use of

force, the right to be free from unreasonable deprivation of liberty, and the right to be free from

illegal searches. Am. Compl. ¶¶ 109-123 [#31]. However, Plaintiff does not allege facts to

support the allegation that Deveneau threatened, intimidated, or coerced him in any way. In

addition, while Plaintiff alleges that Laroche threatened him verbally and through the application

of physical force, he does not allege how this conduct was intended to coerce him into refraining

from the exercise of a right. Longval, 404 Mass. at 333. Plaintiff therefore has not alleged

sufficient facts to maintain his claim and the claim is therefore dismissed.

4. False Imprisonment Claim

Plaintiff’s claim that his placement on suicide watch and in segregated confinement

amounts to false imprisonment requires allegations that plausibly show “an intentional and

unlawful confinement of a person . . . of which the person confined is conscious or is harmed by

such confinement.” Jonielunas v. City of Worcester Police Dep’t, 338 F.Supp. 2d 173, 177 (D.

Mass. 2004).

Defendants contend that Plaintiff cannot maintain his false imprisonment claim because

1) the decision to place Plaintiff in a mental health cell on suicide watch was made by mental

health practitioners,9 not by Defendants, and 2) the court cannot review Plaintiff’s placement in

segregation. Defs. Mem. in Support of Mot. to Dismiss 14-15 [#33].

Plaintiff has alleged that the decision to place Plaintiff on suicide watch and into

segregated confinement was made by Laroche. Am. Compl. ¶¶ 28-32 [#31]. Since the court must

take the complaint’s well-pleaded allegations as true on a motion to dismiss, Defendants’

argument that the decisions were in fact made by health practitioners are unavailing at this stage.

As to their second argument, Defendants are correct that correctional officers receive

broad deference for establishing policies and practices to preserve internal order in the facility.

Bell v. Wolfish, 441 U.S. 520, 547 (1979). However, as previously discussed, a prisoner does not

lose all rights while incarcerated. If correctional officers place a prisoner on suicide watch or in

segregated confinement as an arbitrary or retaliatory punishment, a court can review the practice

and find a violation of law. O’Brien, 489 F.2d at 944; LaChance v. Comm. of Corr., 463 Mass.

767, 776-77 (2012). Here, Plaintiff states that he was placed on suicide watch because Laroche

wrongfully authorized such confinement and he was put into segregated confinement for a year

due to Laroche’s false accusations. Am. Compl. ¶¶ 30-31 [#31]. At this stage of litigation,

therefore, Plaintiff has alleged sufficient facts, taken as true, to maintain his claim of false

imprisonment against Laroche.

9 Defendants submitted MCI-Shirley’s Mental Health Services Policy. However, when

considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court may generally only

consider the complaint and documents incorporated therein. Alt. Energy, Inc. v. St. Paul Fire &

Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001).

As previously discussed, however, Plaintiff has not alleged that either Thomas or

Deveneau were involved in his segregated confinement. Therefore, the claim is dismissed as to

Thomas and Deveneau.

5. Malicious Prosecution Claim

Plaintiff’s malicious prosecution claim is brought against all individual defendants. In

order to make out a claim for malicious prosecution, a plaintiff must show 1) the institution of

criminal process against the plaintiff with malice; 2) without probable cause; and 3) the

termination of the prosecution in favor of the plaintiff. Gutierrez v. Mass. Bay Transp. Auth.,

437 Mass. 396, 405 (2002) (internal citation and quotation marks omitted). The malice element

requires that the defendant knew there was no probable cause for the commencement of the

action and that the defendant acted with an improper motive. Beecy v. Pucciarelli, 387 Mass.

589, 593 (1982). Defendants may be answerable for malicious prosecution if they “intentionally

induced” the prosecutors to wrongfully prosecute the plaintiff and the prosecutor did so while

“acting in good faith on the defendant’s information.” Correllas v. Viveiros, 410 Mass. 314, 318

(1991) (quoting Tangney v. Sullivan, 163 Mass. 166, 167 (1895)).

Plaintiff alleges that the assault and battery accusations brought by Laroche were

knowingly false and that the allegations formed the basis of his prosecution. Am. Compl. ¶ 22

[#31]. In addition, Disessa states he was acquitted in the subsequent trial. Id. ¶ 41. Taking

Disessa’s allegations as true, as the court must at this stage, his allegations plausibly meet each

element of a malicious prosecution claim. Accordingly, dismissal of the claim as it applies to

Laroche is not warranted at this time. However, the claim contains no allegations that Thomas or

Deveneau were involved in bringing assault and battery allegations against Disessa or otherwise

induced his prosecution. As such, the claim against Thomas and Deveneau is dismissed.

6. Civil Conspiracy Claim

Plaintiff’s final claim asserts civil conspiracy against all individual defendants, alleging

specifically that Defendants “acted in concert to accomplish the unlawful purpose of falsely

incarcerating and prosecuting” Plaintiff. Am. Compl. ¶ 158 [#31]. Plaintiff also alleges that the

other defendants, along with “John and Jane Does employees . . . utilized their administrative

power over [Plaintiff] to cause [Plaintiff] damage and harm.” Id. ¶ 159.

There are two types of civil conspiracy in Massachusetts: 1) a form of vicarious liability

for the tortious conduct of others; or 2) an allegation that defendants, by acting in unison, had a

“peculiar power of coercion” over plaintiff that they would not have had if acting independently.

Snyder v. Collura, 812 F.3d 46, 52 (1st Cir. 2016). If the party does not specify, the court looks

to how plaintiff phrases his allegations. Id. Where, as here, the party alleges that the conspiracy

was enacted to carry out a tort, the allegation falls under the first category. Id. at 52-53. In order

to maintain a claim under this category of civil conspiracy, a party must 1) allege an underlying

tort; and 2) allege sufficient facts to show either a) concert of action or b) substantial assistance

or aiding and abetting. Taylor v. Am. Chemistry Council, 576 F.3d 16, 35 (1st Cir. 2009).

Concert of action requires a showing of 1) an agreement, explicit or inferred from conduct, to

perform the act, and that 2) defendant’s own conduct was tortious. Payton v. Abbott Labs, 512

F.Supp. 1031, 1035 (D. Mass. 1981).

Plaintiff’s allegations plausibly meet these elements as to Laroche. Plaintiff alleges that

Laroche and others (including the unnamed John and Jane Doe employees) acted in concert to

achieve torts of false imprisonment and malicious prosecution. Am. Compl. ¶ 158 [#31].

However, Plaintiff has not offered any additional allegations to sustain his claim against

Deveneau or Thomas. He does not include allegations that Deveneau acted in any way to assist

Laroche or others in allegedly bringing false allegations against Plaintiff, or that Deveneau was

involved in having Disessa placed on suicide watch or in solitary confinement.

Similarly, Plaintiff has not alleged, beyond his conclusory statement, that Thomas’ use of

his “administrative power” in denying Disessa’s grievance was part of a concert of action or that

it was connected with an underlying tort. As such, the claim against Deveneau and Thomas must

be dismissed.

IV. Conclusion

Accordingly, for the previously discussed reasons,

1. Defendants’ Motion to Dismiss [#32] is ALLOWED with prejudice as to all claims

against the Commonwealth and Defendants Higgins O’Brien and Thomas.

2. Defendants’ Motion to Dismiss [#32] is ALLOWED without prejudice as to all

claims against Defendants O’Toole and Ryan.

3. Defendants’ Motion to Dismiss [#32] is ALLOWED as to the MCRA claim and

DENIED as to the Excessive Force claim, the Search and Seizure claim, the False

Imprisonment claim, the Malicious Prosecution claim, and the Civil Conspiracy

Claim as to Laroche.

4. Defendants’ Motion to Dismiss [#32] is DENIED as to the Excessive Force claim and

ALLOWED as to all other claims against Deveneau.

IT IS SO ORDERED.

March 10, 2020 /s/ Indira Talwani

United States District Judge