The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
RASHARD BROWN, )
Plaintiff, )
)
v. ) Civil Action No.
) 21-11117-ADB
DEPARTMENT OF CORRECTION, )
THOMAS TURCO, III, )
STEVEN SILVA, )
KEITH NANO, )
SAMUEL RAMOS, and )
JOHN DOES 1–10, )
Defendants. )
__________________________________________)
MEMORANDUM AND ORDER
BURROUGHS, D.J.
Before the Court are plaintiff Rashard Brown’s (“Brown”) Verified Complaint, [ECF No.
1 (“Ver. Compl.”)], and motion to proceed in forma pauperis, [ECF No. 2]. For the reasons
stated below, the motion to proceed in forma pauperis is hereby ALLOWED. After screening
under 28 U.S.C. § 1915(e)(2), all claims against the Department of Correction (“DOC”) and the
official capacity claims against the individual defendants are DISMISSED. Summonses shall
issue as to the remaining claims against the individual defendants in their individual capacities,
save for the unidentified “Doe” defendants.
I. BACKGROUND
The following factual allegations are taken as true for purposes of this screening. Brown
claims that, as a result of a staff assault at Souza-Baranowsiki Correctional Center (“SBCC”),
defendants Superintendent Steven Silva (“Silva”) and Deputy of Operations Keith Nano
(“Nano”) “coordinated an institutional search of the prison,” and Commissioner Thomas Turco
III (“Turco”) authorized defendant Captain Samuel Ramos (“Ramos”) to conduct no-knock cell
entry into certain inmate’s cells, purportedly in violation of force regulations and procedures.
[Ver. Compl. ¶¶ 17–21]. According to Brown, those targeted were “[b]lack inmates that had
been identified as Security Threat Group [(“STG”)] members.” [Id. ¶ 21]. Brown says it was
“poor judgment” by Turco “to incite a situation in which inmates would be taught a punitive
lesson” in response to the staff assault. [Id. ¶ 23]. Brown alleges that he was not part of a STG
and that Silva, Nano, and others knew it, but nonetheless placed him on a “hit list” for the cell
searches. [Id. ¶¶ 23–25].
Brown asserts that his cell was “breached” by Ramos and other unknown defendants
because he is “a black STG inmate unrelated to the staff assault incident.” [Ver. Compl. ¶ 26].
He claims that he was “tackled” to the ground, hit his head on the bed frame, and that an
unknown defendant placed a “knee on his neck obstructing his ability to breath[e].” [Id. ¶ 27].
After being handcuffed and escorted to another room, Brown asked why force had been used and
was told that “[a] message had to be sent to prevent future assaults against staff.” [Id.] Brown
alleges that he was denied medical and mental health treatment. [Id. ¶ 28]. He brought a
grievance for excessive force and denial of medical treatment, which was denied. [Id. ¶¶ 29, 30].
Brown was later transported to “Norfolk prison pending an out of state transfer in
retaliation for grievancing the assault . . . from the ‘no-knock cell entry.’” [Ver. Compl. ¶ 30].
According to Brown, Turco, Silva, Nano, and others “coordinated [Brown’s] transfer to MCI-
Norfolk administrative segregation and began to manipulate Brown’s recent institutional history
as justification to characterize him as a present threat warranting transfer in retaliation for his
grievance.” [Id. ¶ 31].
II. DISCUSSION
A. Motion to Proceed in Forma Pauperis and Assessment of Filing Fee
Brown’s motion for leave to proceed in forma pauperis, [ECF No. 2], is ALLOWED.
Pursuant to 28 U.S.C. § 1915(b)(1), an initial partial filing fee of $72.67 is assessed. The
remaining $277.33 shall be collected in accordance with 28 U.S.C. § 1915(b)(2).
B. Initial Screening of the Complaint
Brown’s complaint is subject to screening pursuant to 28 U.S.C. § 1915 (“Section 1915”)
because Brown is proceeding in forma pauperis, and pursuant to 28 U.S.C. § 1915A (“Section
1915A”) because he is a prisoner. Both Section 1915 and Section 1915A authorize federal
courts to dismiss a complaint sua sponte if the claims therein are frivolous or malicious, fail to
state a claim on which relief can be granted, or seek monetary relief against a defendant who is
immune from such relief. See 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b). In conducting
this review, the court liberally construes Brown’s complaint because he is proceeding pro se. See
Haines v. Kerner, 404 U.S. 519, 520–21 (1972). Brown brings six counts in his complaint
seeking only monetary relief: Counts I and II (Civil Rights Violation under 42 U.S.C. § 1983);
Count III (Civil Rights Violation Under G.L.C. 12 §11I & 11H); Counts IV and V
(Massachusetts State Tort Act Violations); and Count VI (Municipal Liability Violation Pursuant
to 42 U.S.C. § 1983). All claims are asserted against the individual defendants in their individual
and official capacities. [Ver. Compl. ¶¶ 3–16].
1. Section 1983 Claims (Counts I, II and VI) Against the DOC and Against
the Individual Defendants in their Official Capacities for Monetary
Damages are Dismissed.
“Section 1983 supplies a private right of action against a person who, under color of state
law, deprives another of rights secured by the Constitution or by federal law.” Jarvis v. Vill.
Gun Shop, Inc., 805 F.3d 1, 7 (1st Cir. 2015) (quoting Redondo–Borges v. U.S. Dep't of Hous. &
Urban Dev., 421 F.3d 1, 7 (1st Cir. 2005)). State actors, acting in an official capacity, are not
“persons” within the meaning of § 1983 for monetary damages. See Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989). Under the Eleventh Amendment to the U.S. Constitution,
“[s]tates and their agencies are entitled to sovereign immunity ‘regardless of the relief sought.’”
Poirier v. Massachusetts Dept. of Correction, 558 F.3d 92, 97 (1st Cir. 2009) (quoting Kentucky
v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099 (1985)); Cavitt v. MDOC,19-cv-12479,
2020 WL 8970663, at *1 (D. Mass. Mar. 12, 2020). Furthermore, “[a]bsent an explicit waiver
from the state, the Eleventh Amendment bars official capacity suits against state actors in federal
court unless the suit seeks prospective injunctive relief.” Caisse v. DuBois, 346 F.3d 213, 218
(1st Cir. 2003).
As an initial matter, regardless of the relief sought, to the extent that the complaint is
construed to bring 42 U.S.C. §1983 claims against the DOC, Counts I and II are DISMISSED on
Eleventh Amendment sovereign immunity grounds. Poirier, 558 at 97 (1st Cir. 2009) (affirming
dismissal of the Massachusetts Department of Correction on Eleventh Amendment sovereign
immunity grounds). Furthermore, all of the individual defendants are entitled to sovereign
immunity in their official capacities and such claims are DISMISSED. Finally, although Brown
purports to seek monetary damages under a “municipal liability” theory in Count VI, such claims
are inapplicable here where no municipality is a defendant in this action. These Counts are not
dismissed to the extent they seek Section 1983 damages from individual defendants in their
individual capacities.
2. Civil Rights Violation Claims under G.L. c. 12 §§11I & 11H (Count III)
Against the DOC and Against the Individual Defendants in their Official
Capacities for Monetary Damages are Dismissed
“To establish a claim under the Massachusetts Civil Rights Act [G.L. c. 12 §§11I & 11H]
(‘MCRA’), a plaintiff must prove that (1) his exercise or enjoyment of rights secured by the
Constitution or laws of either the United States or of the Commonwealth (2) has been interfered
with, or attempted to be interfered with, and (3) that the interference or attempted interference
was by threats, intimidation, or coercion.” Maraj v. Massachusetts, 836 F. Supp. 2d 17, 30 (D.
Mass. 2011) (internal quotation marks omitted). An MCRA claim cannot be brought against the
DOC or individual defendants in their official capacities. Muldoon v. Dept. of Correction, 15-
cv-13892, 2017 WL 506250, at *3 (D. Mass. Feb. 7, 2017). Accordingly, all claims against the
DOC and official capacity claims under Counts III and IV are DISMISSED.
3. Massachusetts Tort Claims Act Violations (Counts IV and V) Against the
DOC and Against the Individual Defendants in their Official Capacities
for Monetary Damages are Dismissed
Brown brings claims under the “Massachusetts State Tort Act” for assault and battery and
intentional infliction of emotional distress, which this Court construes as an attempt to bring
claims under the Massachusetts Tort Claims Act, Mass. Gen. Laws ch. 258 §1 et al. (the
“MTCA”), because the Commonwealth and its agencies are immune from common law
negligence suits. Canales v. Gatzunis, 979 F. Supp. 2d 164, 175 (D. Mass. 2013). This
immunity is applicable to suits against state officers in their official capacities. Id. Nevertheless,
an MTCA claim for an intentional tort, including assault and battery or intentional mental
distress, are exceptions to the MTCA and claims against the DOC and official capacity claims
against its officers are subject to sovereign immunity under Massachusetts state law. Mass. Gen.
laws ch. 258 § 10(c). Moreover, while the Commonwealth of Massachusetts has consented to
certain tort actions, it has not consented to MTCA claims in federal courts. Ayala v. Dunne, 20-
cv-40127, --- F.Supp.3d ----, 2021 WL 2117206, at *4 (D. Mass. May 25, 2021). Accordingly,
to the extent that Brown seeks to bring tort claims against the DOC and official capacity claims
against individual defendants under the MTCA, those claims are DISMISSED for lack of subject
matter jurisdiction.
III. CONCLUSION AND ORDER
1. Brown’s motion for leave to proceed in forma pauperis, [ECF No. 2], is ALLOWED.
Pursuant to 28 U.S.C. § 1915(b)(1), an initial partial filing fee of $72.67 is assessed.
The remaining $277.33 shall be collected in accordance with 28 U.S.C. § 1915(b)(2).
The Clerk is directed to send a copy of this order and notice to the Treasurer where
Brown is incarcerated.
2. All claims against the DOC and all claims against the individual defendants in their
official capacities are DISMISSED.
3. Summonses shall issue only as to the identified individual defendants: Thomas Turco,
III, Steven Silva, Keith Nano, and Samuel Ramos.1 The Clerk shall send the
summonses, complaint, and this Order to Brown, who must thereafter serve the
above-identified individual defendants in accordance with Federal Rule of Civil
Procedure 4(m). Brown may elect to have service made by the United States
Marshals Service. If directed by Brown to do so, the United States Marshals Service
1 Although the use of fictitious names to identify defendants is not favored, situations may arise
where the identity of an alleged defendant cannot be known prior to the filing of a complaint.
See Martínez-Rivera v. Ramos, 498 F.3d 3, 8 (1st Cir. 2007). If, through discovery, the plaintiff
discovers the true names of the “John Doe” defendants, he “should act promptly to seek leave to
amend the complaint to substitute the correct parties and to dismiss any baseless claims.” Id. at 8
n.5.
shall serve the summonses, complaint, and this Order upon the above-identified
individual defendants, in the manner directed by Brown, with all costs of service to be
advanced by the United States. Notwithstanding this Order to the United States
Marshals Service, it remains Brown’s responsibility to provide the United States
Marshals Service with all necessary paperwork and service information.
Notwithstanding Federal Rule of Civil Procedure 4(m) and Local Rule 4.1, Brown
shall have 90 days from the date of this Order to complete service
SO ORDERED.
/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
Dated: August 11, 2021 United States District Judge