Unitt v. Bennett

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 18-11373-RGS

LEE P. UNITT

v.

DANIEL BENNETT, et al.

MEMORANDUM AND ORDER

ON DEFENDANTS’ MOTION TO DISMISS, OR

IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

April 3, 2020

STEARNS, D.J.

In this lawsuit, plaintiff Lee Unitt complains of oppressive conditions

of confinement during her incarceration at the Massachusetts women’s

prison, MCI Framingham — namely, oppressive heat, lack of ventilation, and

exposure to dangerous airborne particulates, such as asbestos and PCBs, and

mold. She alleges that these conditions caused her preexisting serious health

problems to significantly worsen. See Am. Compl. (Dkt #32). Unitt brings

claims for injunctive relief under the Toxic Substances Control Act, 15 U.S.C.

§ 2601 et seq., and the Clean Air Act, 42 U.S.C. § 7401 et seq.1 She also brings

1 Unitt concedes that neither of these federal environmental statutes

authorizes a private right of action for damages. Therefore, these claims will

be summarily dismissed.

Eighth Amendment claims of cruel or unusual punishments under the

Federal Civil Rights Act, 42 U.S.C. § 1983, seeking injunctive and monetary

relief.2 Over the course of the litigation, several defendants have been

dismissed. Now before the court is a motion brought by the remaining seven

defendants to dismiss, or in the alternative, for entry of summary judgment.

The remaining defendants are the former Secretary of the Massachusetts

Executive Office of Public Security and Safety, three former Commissioners

of the Massachusetts Department of Correction (DOC), and one present and

two former Superintendents of MCI Framingham.

DISCUSSION

I. Claims for Injunctive Relief

Since initiating this action, Unitt has been released from DOC custody,

thus mooting her prayers for injunctive relief. Unitt makes a familiar

argument that her claims fit within the narrow exception to the mootness

doctrine made for cases that are “capable of repetition, yet evading review.”

See Roe v. Wade, 410 U.S. 113, 125 (1993), quoting S. Pac. Terminal Co. v.

ICC, 219 U.S. 498, 515 (1911). The exception, however, is not applicable here,

2 The court heard oral argument on the motion on February 28, 2020.

Unitt sought leave to supplement the pleadings on the issue of exhaustion of

remedies, which was granted. The supplemental pleading was filed on

March 11, 2020. Dkt #93.

as there is no “‘reasonable expectation’ or a ‘demonstrated probability’ that

the same controversy will recur involving the same complaining party.”

Murphy v. Hunt, 455 U.S. 479, 482 (1982), quoting Weinstein v. Bradford,

423 U.S. 147, 149 (1975) (per curiam) (emphasis added).3

II. Statute of Limitations

Treating June 29, 2018, as the filing date for this action, defendants

argue that any injuries for allegedly unconstitutional conditions of

confinement that pre-date June 29, 2015 are time-barred. Defendants’

statute of limitations argument ignores the procedural history of the case. As

originally filed, Unitt’s Complaint set out various claims regarding allegedly

inadequate medical care she received while at MCI-Framingham together

with her present complaints regarding environmental conditions at the

institution. See Unitt v. Spencer, et al., C.A. No. 17-11468-RGS. On June 28,

2018, the court ordered that the two sets of claims be severed for reasons of

improper joinder, but as a matter of fairness, allowed Unitt to file an

amended second complaint. Sensitive to the limitations issue, the court

further ordered:

As long as a proposed amended complaint is filed by May 22,

2018, for purposes of the statute of limitations and relation back

of amendments, the date this action was commenced (August 3,

3 Unitt’s theory of non-mootness relies on possible injuries to others

rather than to the “the same complaining party,” i.e., herself.

2017) will be considered to be the commencement date of any

new case opened as result of severing claims from this action.

Order (Dkt #15), at 27.

III. Official Capacity Claims

Under the Eleventh Amendment, a State, its agencies, and agency

officials acting in their official capacities are not “persons” for purposes of 42

U.S.C. § 1983, and therefore are not subject to suit for money damages in the

federal courts without the State’s consent or the abrogation of State

sovereignty by Congress acting under its Fourteenth Amendment powers.

Will v. Michigan Dep’t of State Police, 491 U.S. 58, 65-67 (1989); Lopes v.

Commonwealth, 442 Mass. 170, 175 (2004). The Commonwealth has not

consented to being sued for money damages in either the federal courts or in

its own courts under section 1983, nor has Congress authorized such suits.

See Woodbridge v. Worcester State Hosp., 384 Mass. 38, 44-45 (1981).

Thus, Unitt’s claims for money damages against the remaining defendants in

their official capacity must be dismissed.

State officials, however, who are sued in their personal capacity for

constitutional violations are “persons” subject to suit for money damages

under section 1983. Hafer v. Melo, 502 U.S. 21, 25-26 (1991) (distinguishing

personal capacity from official capacity suits). Personal liability must,

however, “be based on [the official’s] own acts or omissions amounting at the

least to reckless or callous indifference to the constitutional rights of others

and not on acts or omissions of others under the doctrine of respondeat

superior.” Robinson v. Commonwealth, 32 Mass. App. Ct. 6, 12 (1992).

Consequently, Unitt’s damages claims against the remaining defendants in

their personal capacities do not fall within the Eleventh Amendment

immunity bar.

IV. Exhaustion of Administrative Remedies

Defendants next object that Unitt failed to exhaust her administrative

remedies as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C.

§ 1997e(a). The PLRA requires that a prisoner complaining of prison

conditions “must now exhaust all available remedies” before filing suit under

section 1983, “or any other Federal law.” Ross v. Blake, 136 S. Ct. 1850, 1857-

1858 (2016). The exhaustion of remedies requirement is mandatory. Id. at

1858 (rejecting a “special circumstances” exception to the exhaustion

requirement created by the lower court). Because the PLRA requires

“proper,” not merely “simple” exhaustion of available remedies, a

procedurally defective grievance does not comply with the Act. Woodford v.

Ngo, 548 U.S. 81, 93-99 (2006) (untimely filing). The exhaustion

requirement extends to available administrative appeals as well as primary

grievance procedures. Pozo v. McCaughtry, 286 F.3d 1022, 1023-1024 (7th

Cir. 2002). See also Mass. Gen. Laws ch. 127, §§ 38E (“An inmate shall not

file any claim that may be the subject of a grievance under [Mass. Gen. Laws,

ch. 127, §] 38E unless the inmate has exhausted the administrative remedy

established pursuant to said section 38E.”). Finally, the PLRA’s exhaustion

requirement “applies to all inmate suits about prison life, whether they

involve general circumstances or particular episodes, and whether they

allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516,

532 (2002). See also O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060-

1061 (9th Cir. 2007) (claims under the Americans with Disabilities Act and

the Rehabilitation Act).

In moving for summary judgment, defendants argue that the only

grievances Unitt filed on the issues raised in her present complaint were

untimely. According to the affidavits of the MCI Institutional Grievance

Coordinator and her assistant (Dkts #72-5, #72-6), Unitt submitted only one

formal grievance, and that was in 2018. The grievance was lengthy and cited

systemic institutional deficiencies dating back to 2005. The grievance was

initially rejected because Unitt had failed to first submit an informal

grievance. She then followed with one, but it was not processed with the

explanation that Unitt had failed to file it within five days of becoming aware

of the grounds of her grievance. Unitt then grieved the rejection of her

informal grievance, arguing that she had not become aware of all the

underlying circumstances until less than five days before her first attempt to

grieve the issue. That grievance was denied, and then Superintendent

Allison Hallett upheld the denial.

In rebuttal, Unitt argues that her effort to exhaust her administrative

remedies should be viewed through the prism of the numerous letters she

wrote to successive MCI-Framingham superintendents from 2016 through

2018. Some of the letters written to Superintendent Hallett bear the heading

“Re: Exhaustion of my Administrative Remedies.” There is no dispute that

they were received. See Dkts ##79-1 through 79-4.

All of this is a twisted trail to follow and to an outside viewer there are

Kafkaesque aspects to the DOC’s grievance process.4 This is not, perhaps

4 Some of this is no doubt due to the shape-shifting nature of the

grievance process itself. Higgins’s affidavit states that “as of May 2017,”

“inmates were required . . . to use the Step 1 Informal Complaint Resolution

process and its related form before being permitted to file a formal grievance

. . . this required an inmate to file an informal complaint form within five

working days of the actual incident or within five working days of the

inmate’s becoming aware of the incident or situation.” Higgins Aff. ¶ 2 (Dkt

#72-6). Case law suggests that, prior to the DOC regulations implemented

in 2017, inmates had ten working days to file from the date the inmate

because aware of his or her grievance, and also had the choice of submitting

the grievance to the Superintendent, the Deputy Superintendent, the Facility

Administrator, or the Institutional Grievance Coordinator. See Thompson v.

Worcester Cty., C.A. No. 10-40126-FDS, 2011 WL 4829972, at *3 (D. Mass.

Oct. 11, 2011). It also appears from the case law that under the prior

regulations the first filing of an informal grievance was not required.

happily, an issue of law for the court to resolve. Despite the strictures an

inmate must abide, and the corners she must square, at the end of the day

administrative exhaustion under the PLRA is not a pleading requirement.

Rather, failure to exhaust is an affirmative defense for which defendants bear

the burden of proof. See Jones v. Bock, 549 U.S. 199, 216 (2007) (“We

conclude that failure to exhaust is an affirmative defense under the PLRA,

and that inmates are not required to specially plead or demonstrate

exhaustion in their complaints.”). Because there are legitimate issues of fact

as to whether Unitt was given a fair opportunity to exhaust her remedies, it

is for a finder of fact to make the ultimate determination whether her efforts

were sufficient to satisfy the goals of the PLRA, which are to permit

legitimate complaints to be resolved locally by prison authorities while

protecting the federal courts from frivolous or marginal lawsuits. See Ross

v. Blake, 136 S. Ct. at 1859, 1860 (exhaustion is “unavailable” where a

purported grievance process is incapable of offering any redress whatsoever,

or is so opaque that it “practically speaking” is “incapable of use,” or where

prison administrators thwart inmates from “taking advantage of a grievance

process through machinations, misrepresentation, or intimidation.”).

V. Sufficiency of Unitt’s Amended Complaint

To state a claim upon which relief may 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). The plaintiff’s obligation in

establishing a claim “requires more than labels and conclusions.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007). 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). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. Determining whether a pleading meets the plausibility

requirement is a “context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.” Id. at 679.

In the context of a § 1983 claim, “only those individuals who

participated in the conduct that deprived the plaintiff of [her] rights can be

held liable.” Cepero-Rivera v. Fagundo, 414 F.3d 124, 129 (1st Cir. 2005). A

supervisory official cannot be held vicariously liable under section 1983 on a

theory of respondeat superior. Monell v. New York City Dep’t of Soc. Servs.,

436 U.S. 658, 694 n.58 (1978). See also City of Canton v. Harris, 489 U.S.

378, 385 (1989). “Because vicarious liability is inapplicable to Bivens and §

1983 suits, a plaintiff must plead that each Government-official defendant,

through the official’s own individual actions, has violated the Constitution.”

Iqbal, 556 U.S. at 676. A supervisor, in other words, can be held liable “only

on the basis of [his or her] own acts or omissions,” pled properly together

with the requisite state of mind. Figueroa v. Aponte-Roque, 864 F.2d 947,

953 (1st Cir. 1989); cf. Camilo-Robles v. Zapata, 175 F.3d 41, 44 (1st Cir.

1999).

In this regard, the allegations in the Complaint against Secretary of

Public Safety Daniel Bennett, and former DOC Commissioners Thomas

Turco, Carol Higgins O’Brien, and Luis Spencer are framed under no more

than a theory of vicarious liability. There are no plausible allegations that

any of these four defendants were directly involved in the creation or

maintenance of the allegedly unconstitutional conditions at MCI

Framingham about which Unitt complains. On the other hand, it take no

leap of imagination to infer that the remaining three defendants, who hold

or held the position as Superintendent of MCI Framingham, were sufficiently

involved in and responsible for the day-today operations of the prison such

that they could be found liable for the alleged constitutional violations that

Unitt asserts.

An Eighth Amendment claim of cruel and inhumane conditions of

confinement depends on proof of two elements, one objective, and the other

subjective. Staples v. Gerry, 923 F.3d 7, 13 (1st Cir. 2019). First, “the

deprivation alleged must be, objectively, ‘sufficiently serious,’ . . . [it] must

result in the denial of ‘the minimal civilized measure of life’s necessities.’”

Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal citations omitted).

Second, a plaintiff must show deliberate indifference on the part of the

responsible prison officials. Wilson v. Seiter, 501 U.S. 294, 302-303 (1991).

“In order to establish deliberate indifference, the complainant must prove

that the defendants had a culpable state of mind and intended wantonly to

inflict pain. . . . While this mental state can aptly be described as

‘recklessness,’ it is recklessness not in the tort-law sense but in the

appreciably stricter criminal-law sense, requiring actual knowledge of

impending harm, easily preventable.” DesRosiers v. Moran, 949 F.2d 15, 19

(1st Cir. 1991).

“[A] prison official cannot be found liable under the Eighth

Amendment for denying an inmate humane conditions of confinement

unless the official knows of and disregards an excessive risk to inmate health

or safety; the official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists, and he must

also draw the inference.” Farmer, 511 U.S. at 837-838. Even where prison

officials are aware of the risk of harm, they “may be found free from liability

if they responded reasonably to the risk, even if the harm ultimately was not

averted.” Id. at 844. The Farmer test does not, however, require that an

inmate prove that a prison official intended to cause her harm, or even “that

a prison official acted or failed to act believing that harm actually would befall

an inmate; it is enough that the official acted or failed to act despite his

knowledge of a substantial risk of serious harm.” Id. at 842.

Prison officials have a duty to “provide humane conditions of

confinement; prison officials must ensure that inmates receive adequate

food, clothing, shelter, and medical care, and must ‘take reasonable

measures to guarantee the safety of the inmates.’” Id. at 832, quoting

Hudson v. Palmer, 468 U.S. 517, 526-527 (1984). See also Helling v.

McKinney, 509 U.S. 25, 35 (1993) (second-hand cigarette smoke); Dixon v.

Godinez, 114 F.3d 640, 643 (7th Cir. 1997) (extreme cold); Wallis v. Baldwin,

70 F.3d 1074, 1076-1077 (9th Cir. 1995) (deliberate exposure to asbestos);

Williams v. Griffin, 952 F.2d 820, 826 (4th Cir. 1991) (prison overcrowding

and lack of sanitation); Good v. Comm’r of Corr., 417 Mass. 329, 335-336

(1994) (contaminated water); Ahearn v. Vose, 64 Mass. App. Ct. 403, 414-

415 (2005) (grossly unsanitary toilet facilities).

Unitt alleges that, through reports from state officials and her own

complaints, the Superintendent defendants were aware of the ongoing

problems at MCI Framingham – mold, inadequate cooling and ventilation,

overcrowding, and exposure to harmful levels of asbestos and PCBs. She

also alleges that she suffered injury from these conditions of confinement.

Thus, she adequately pleads a causal connection between the conditions of

confinement and her injuries. She also adequately pleads an indifferent

state-of-mind on the part of the Superintendent defendants to the significant

risk of harm that the environmental degradation at MCI Framingham posed

to inmates in general, and especially inmates like Unitt with preexisting

serious health conditions. While Unitt’s Amended Complaint, which was

filed while she was proceeding pro se, is unnecessarily cluttered with

citations to the Code of Massachusetts Regulations and sometimes spurious

case law, when viewed in its totality, it sufficiently alleges that she was

subjected to conditions of confinement that violated Eighth Amendment

standards of decency.5

5 To be clear, the court is not prejudging whether conditions as they

may have existed at MCI Framingham in fact offended the Eighth

Amendment. At this point in the proceedings, the court is required to treat

every well-plead allegation as true. Ultimately, “whether prison conditions

are sufficiently harmful to establish an Eighth Amendment violation, is a

purely legal determination for the court to make.” Torres v. Comm’r of

Corr., 427 Mass. 611, 614 (1998), citing Hickey v. Reeder, 12 F.3d 754, 756

(8th Cir. 1993). That, however, is a matter to be dealt with on a fully

developed record, which this is not.

VI. Summary Judgment

Summary judgment is appropriate where there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law.

Although defendants seek a brevis judgment as well as a dismissal, discovery

in the case was stayed at defendants’ request pending the filing of their

instant motion.6 In support of summary judgment, defendants rely on the

affidavits of DOC officials who state that they were never aware of any health-

threatening environmental conditions at MCI Framingham. They also point

to MCI Framingham’s accreditation by the American Correction Association,

and the absence of any previous lawsuit by an MCI Framingham inmate

raising concerns similar to those limned in Unitt’s Amended Complaint. This

may well ultimately lead to summary judgment in defendants’ favor, but in

6 Defendants also make a passing reference to an entitlement to

qualified immunity. Only in the absence of a dispute over a genuine material

fact is the right of a defendant to qualified immunity a question of law for the

court. Cox v. Hainey, 391 F.3d 25, 29 (1st Cir. 2004). Where, as here, a

decision of law cannot be made without the resolution of factual disputes (in

this case defendants’ state of mind, the gravity of the environmental

conditions at MCI Framingham, and the remedial measures that were

taken), any decision as to qualified immunity would be premature. See St.

Hilaire v. City of Laconia, 71 F.3d 20, 24 n.1 (1st Cir. 1995).

fairness to Unitt, she should have a full and fair opportunity to conduct

discovery before the court makes a final determination.7

CONCLUSION

In accordance with the foregoing: (1) all claims for injunctive relief are

dismissed with prejudice; (2) all official capacity claims are dismissed with

prejudice; (3) all personal capacity claims against Bennett, Turco, Spencer,

and O’Brien are dismissed with prejudice; (4) all claims under the Toxic

Substances Control Act and the Clean Air act are dismissed with prejudice;

and (4) defendants’ motion to dismiss is DENIED as to claims under the

Eighth Amendment. Defendants’ motions for summary judgment and

7 At least one exhibit to Unitt’s opposition to the motion for summary

judgment suggests there could be more heft to her claim than defendants

suggest. Unitt has submitted a 2016 draft letter from an environmental

geotechnical company addressed to John O’Donnell of the Commonwealth’s

Division of Capital Asset Management and Maintenance concerning PCBs at

MCI Framingham. See Dkt #78-3. The writer mentions PCBs in the caulking

at MCI Framingham and concludes that the “PCBs in air in the MCI

Framingham facility cells is most likely greater than EPA’s health-based

criteria.” Id. at 4. He continues: “It is my further opinion that if informed of

the situation, EPA would quickly seek to 1) require immediate air testing to

permit an accurate assessment of health risk to the residents; and 2) seek to

have the PCBs from the facility eliminated.” Id. The writer also notes: “My

understanding is that the heating ventilation and air conditioning system

(HVAC) at MCI Framingham is not fully functional and as a result the level

of fresh air makeup may be less than the original specifications called for.”

Id. at 3. While this letter is not presented to the court in an admissible

evidentiary form, it does suggest that allowing Unitt to continue discovery

could lead to admissible evidence supporting her claim.

request for a grant of qualified immunity are denied without prejudice. A

scheduling order will follow.

SO ORDERED.

/s/Richard G. Stearns___________

UNITED STATES DISTRICT JUDGE