The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
KEVIN BENNER, )
Plaintiff, )
)
v. ) Civil Action No.
) 21-12080-WGY
NELSON ALVES, SANDRA CHARLES, )
EMILY HOFFMAN, SARA THOMPSON, )
WELLPATH, “JOHN DOE” (DIRECTOR OF )
CLASSIFICATION - MCI CEDAR )
JUNCTION), JAMIE CAMPBELL(DIRECTOR )
OF CLASSIFICATION MCI- NORFOLK), )
ABBE NELLIGAN (DIRECTOR OF )
CLASSIFICATION – CENTRAL), OFFICER )
CLANCY (DIRECTOR OF DISCIPLINARY )
BOARD – MCI NORFOLK), VANESSA )
RATTIGAN, DR. CHIDRI ACHEBE, )
“JOHN DOE” DEPARTMENT OF )
CORRECTIONS, AMD “JOHN DOE” )
DEPARTMENT OF CORRECTIONS )
LEGAL DEPARTMENT, )
Defendants. )
___________________________________)
ORDER
YOUNG, D.J. January 25, 2022
Pro se plaintiff Kevin Benner (“Benner”), a prisoner in
custody at MCI-Norfolk, filed this action on December 27, 2021.
Benner’s complaint did not include a filing fee or request to
proceed in forma pauperis. On December 28, 2021, the Court
issued a procedural order to resolve the filing fee. Procedural
Order, ECF No. 3. On January 14, 2022, Benner wrote to the
Court correcting a defendant’s name, and indicating that he
intended to pay the filing fee, which was received on January
18, 2022. Letter, ECF No. 4 and Receipt, ECF No. 5.
Even though Benner has paid the $402 filing and
administrative fee, the complaint is subject to screening under
28 U.S.C. § 1915A because he is a prisoner.1 Section 1915A
requires a Court to “dismiss the complaint or any portion of the
complaint” in an action where a prisoner seeks “redress against
a governmental entity or officer or employee that is frivolous,
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is immune
from such relief.” 28 U.S.C. §1915A. In conducting this
review, the Court liberally construes Benner’s complaint because
he is proceeding pro se. Hughes v. Rowe, 449 U.S. 5, 9 (1980);
Haines v. Kerner, 404 U.S. 519, 520 (1972); Instituto de
Educacion Universal Corp. v. U.S. Dept. of Education, 209 F.3d
18, 23 (1st Cir. 2000). Pursuant to that screening, Benner
shall by February 25, 2022 file an amended complaint that cures
the defects in paragraphs A – E below. The Amended Complaint
will be further screened. Failure to comply with this Order
will likely result in dismissal of this action.
1 Benner is aware of the in forma pauperis process and
screening process under 28 U.S.C. §1915A, inasmuch as he has a
separate pending proceeding in this district. See Benner v.
DeMoura, Civ No. 20-12269-ADB, Memorandum and Order, ECF No. 8.
A. The Complaint Documents Fail to Comply with the Basic
Pleading Requirements of the Federal Rules of Civil
Procedure.
Although Benner is proceeding pro se, and the complaint
documents are somewhat understandable, they fail to comply with
the basic pleading requirements of the Federal Rules of Civil
Procedure. Under the Rules, a complaint must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief,” Fed. R. Civ. P. 8(a)(2) (emphasis
supplied), and “‘give [each] defendant fair notice of what the .
. . claim is and the grounds upon which it rests.’” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957). That is, a “complaint
should at least set forth minimal facts as to who did what to
whom, when, where, and why—although why, when why means the
actor's state of mind, can be averred generally.” Educadores
Puertorriqueños en Acción v. Hernandez, 367 F.3d 61, 68 (1st
Cir. 2004). The claims must be “set forth in numbered
paragraphs, each limited as far as practicable to a single set
of circumstances.” Fed. R. Civ. P. 10(b). Because it promotes
clarity, “each claim founded on a separate transaction or
occurrence. . . must be stated in a separate count.” Id. In
essence, the complaint must succinctly set forth as to each
defendant what he claims they did (or failed to do), where it
occurred, when it occurred, and the relief he seeks as to each
defendant. Put another way, a complaint must clearly identify
the claims and relief Benner seeks as to each defendant, and
provide sufficient factual bases for each of the elements of the
claims that he asserts. The caption must identify all
defendants. Fed. R. Civ. P. 10(a).
Here, Benner’s complaint consists of four documents. The
first document is an AO Form Pro Se “Complaint and Request for
Injunction” (ECF No. 1).2 The second document is a handwritten
2 In the complaint documents, Benner references seeking a
“TRO to be placed immediately transferred to the Shattuck
Medical Ward for Treatment and Diagnosis.” ECF 1 5 He also
seeks a “TRO” for Walpole medical staff and certain defendants
to not treat him, ECF 1 3. To the extent that Benner seeks
preliminary injunctive relief or a temporary restraining order
in this action pursuant to Federal Rule Civil Procedure 65(a),
he must file a separate and properly supported motion. See Local
Rule 7.1. To be clear, a temporary restraining order (“TRO”) is
an extraordinary order issued without notice to the party to be
enjoined that may last no more than 14 days. Fed R. Civ. P.
65(b)(2). A TRO may issue without notice only if “specific facts
in an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result to
the movant before the adverse party can be heard in opposition.”
Fed. R. Civ. P. 65(b)(1)(A). Even where a plaintiff makes a
showing of “immediate and irreparable” injury, the court cannot
issue a TRO without notice to the adverse parties unless the
plaintiff “certifies in writing any efforts made to give notice
and the reasons why it should not be required.” Fed. R. Civ. P.
65(b)(1)(B).
Here, even if arguendo Benner could make a showing of
immediate and irreparable injury on the documents filed, there
is no certification in writing of any effort Benner has made to
provide at least informal notice to the defendants and no
details as to the reasons why such notice should not be required
in view of an immediate and irreparable need for injunctive
relief. See Fed. R. Civ P. 65(a)(1).
In addition to notice to the adverse party, a motion for
injunctive relief must be accompanied by a memorandum in support
document entitled “Civil and Criminal Complaint, and Complaint
and Request for injunction”, ECF No. 1-1 (hereinafter “Compl.”).
The third and fourth documents appear to be supporting
affidavits (ECF Nos. 1-2 and 1-3).
Construing the complaint documents together, the action
appears to seek compensatory and injunctive relief against 13
defendants: (1) Nelson Alves, (Superintendent MCI-Norfolk), (2)
Sandra Charles, (3) Emily Hoffman, (4) Sara Thompson, (5)
Wellpath, (6) “John Doe” (Director of Classification - MCI Cedar
Junction), (7) Jamie Casella (Director of Classification MCI-
Norfolk), (8) Abbe Nelligan (Director of Classification –
Central), (9) Officer Clancy (Director of Disciplinary Board –
MCI Norfolk), (10) Vanessa Rattigan, (11) Dr. Chidri Achebe,
(12) “John Doe” Department of Corrections, (13) “John Doe”
Department of Corrections Legal Department. Compl. ¶¶ 2 – 14.
Benner asserts federal question jurisdiction under 42 U.S.C
§1983. Compl. ¶¶ 15-16. The complaint alleges that Benner is
seeking claims against the defendants in their professional and
individual capacities. Compl. ¶19. Broadly, Benner appears to
addressing the four requirements for injunctive relief: “(1) a
substantial likelihood of success on the merits, (2) a
significant risk of irreparable harm if the injunction is
withheld, (3) a favorable balance of hardships, and (4) a fit
(or lack of friction) between the injunction and the public
interest.” Nieves-Marquez v. Puerto Rico, 353 F. 3d 108, 120
(1st Cir. 2003).
be claiming constitutionally inadequate medical treatment,
retaliation for filing grievances, and unconstitutional
disciplinary processes. While the complaint makes some specific
allegations, most of the allegations are conclusory, disjointed
and sprinkled among the four separate documents. Accordingly,
to the extent Benner wishes to proceed with this action, he must
file a single, stand-alone amended complaint that complies with
the basic pleading requirements of the Federal Rules of Civil
Procedure.
B. Official Capacity Monetary Damages Claims Barred By
Eleventh Amendment Sovereign Immunity
“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)). Under the Eleventh Amendment to the 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, CV 19-12479-NMG, 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). They are also 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). To the
extent that Benner seeks monetary damages against the
Commonwealth or state officials acting in their official
capacity pursuant to 28 U.S.C. §1983, such claims fail to state
a claim upon which relief can be granted and are subject to
dismissal.
C. Impermissible Joinder of Claims
Benner appears to bring separate claims against separate
sets of defendants. While Rule 18(a) of the Federal Rules of
Civil Procedure permits Benner “to bring multiple claims against
a defendant in a single action . . . it does not permit the
joinder of unrelated claims against different defendants.” Chase
v. Chafee, No. CA 11-586ML, 2011 WL 6826504, at *2 (D.R.I. Dec.
9, 2011) (emphasis added), report and recommendation adopted,
No. CA 11-586 ML, 2011 WL 6826629 (D.R.I. Dec. 28, 2011); see
Spencer v. Bender, No. CA 08–11528–RGS; 2010 WL 1740957 at *2
(D. Mass. April 28, 2010) (citing George v. Smith, 507 F.3d 605,
607 (7th Cir.2007)). Instead, Rule 20 of the Federal Rules of
Civil Procedure provides separate defendants “may be joined in
one action as defendants if. . . any right to relief is asserted
against them jointly, severally, or in the alternative with
respect to or arising out of the same transaction, occurrence,
or series of transactions or occurrences; and . . . any question
of law or fact common to all defendants will arise in the
action.” Fed. R. Civ. P. 20(a)(2)(emphasis added). Another
reason that this type of pleading is not acceptable is because
it might be an attempt to avoid the imposition of separate
filing fees. See Spencer v. Bender, No. CA 08–11528–RGS; 2010
WL 1740957. Here, Benner’s complaint lumps all of the alleged
acts of the defendants into one overarching claim of general
mistreatment. The Court broadly divides these claims into the
medical claims, disciplinary claims, and classification claims.
See Compl. ¶¶ 27-32. While there might be overlap with some of
the parties and claims, Benner is cautioned that it is
impermissible to bring multiple actions against unrelated
defendants in a single lawsuit.
D. Classification Claims Premised on Due Process Are Subject
to Dismissal
Benner claims that his due process rights were violated
when he was allegedly mis-classified by classification personnel
under state regulations, implying that he has a liberty interest
in the classification process. A liberty interest is infringed
only if the action imposes an “atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison
life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). “It is well
established that the Constitution does not guarantee that a
‘prisoner will be placed in any particular prison.’” Schofield
v. Clarke, 769 F. Supp. 2d 42, 49 (D. Mass. 2011) (quoting
Gonzalez–Fuentes v. Molina, 607 F.3d 864, 887 (1st Cir.2010)).
“Moreover, an inmate does not possess a protected liberty
interest in preventing a transfer to a more restrictive form of
confinement.” Id. (citing Sandin, 515 U.S. 472, 484 (1995);
Dominique v. Weld, 73 F.3d 1156, 1160–61 (1st Cir.1996)).
Although the First Circuit has not decided the issue, the
“Massachusetts state regulations regarding classification and
transfer [of prisoners] do not expressly create a liberty
interest.” Riley v. O'Brien, No. CV 16-11064-LTS, 2016 WL
8679258, at *7 (D. Mass. Sept. 2, 2016) (citing 103 C.M.R. §
420.01). Benner’s due process claim that he was improperly
classified under the DOC’s classification regulations does not
rise to a liberty interest, and therefore, fails to state a
claim upon which relief can be granted as to defendants John
Doe, (Director of MCI Cedar Junction Classification), Casella
and Nelligan. See Forbes v. Wall, No. CA 14-322-ML, 2014 WL
4997289, at *3 (D.R.I. Oct. 7, 2014) (dismissing complaint sua
sponte against classification board and classification director
where no liberty interest invoked by classification under Rhode
Island law). Accordingly, Benner’s due process claims relating
to classification are subject to dismissal.
E. Benner Has No Justiciable Interest in Criminal
Proceedings or Discipline Against Defendants
Benner’s request for this Court to institute criminal
proceedings, terminate or discipline prison workers fail to
state a claim upon which may be granted. First, Benner, as “a
private citizen[,] has no authority to initiate a federal
criminal prosecution.” Cok v. Costentino, 876 F.2d 1, 2 (1st
Cir. 1989) (per curiam). Indeed, “a private citizen lacks a
judicially cognizable interest in the prosecution or
nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S.
614, 619 (1973). Similarly, he lacks an interest in the
termination or discipline of state prison personnel. See Mason
v. Besse, 3:20CV246(KAD), 2021 WL 1248388, at *6 (D. Conn. Apr.
5, 2021) (denying injunctive relief of demotion because “a
plaintiff has no right to have a defendant punished or
disciplined.”). Accordingly, Benner’s claims seeking criminal
prosecution and discipline of prison employees or contractors is
subject to dismissal.
So Ordered.
/s/ William G. Young
WILLIAM G. YOUNG
United States District Judge