# Yarde v. Mici

> District Court, D. Massachusetts · January 30, 2024

URL: https://www.frixlaw.com/law-library/cases/10201692

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** January 30, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10201692

## How later opinions describe it (automated extraction)

- holding that qualified immunity did not apply when plaintiff was placed in a housing unit with members of a rival gang and attacked
- holding the district court did not err in denying qualified immunity when members of rival gangs permitted in the exercise yard at the same time attacked

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

____________________________________
)
DAVID YARDE, )
)
Plaintiff, )
)
v. )
) Civil Action No.
) 22-11395-FDS
DAVID KEELER and NESTOR CRUZ, )
)
Defendants. )
____________________________________)

MEMORANDUM AND ORDER ON
DEFENDANTS’ MOTION TO DISMISS
SAYLOR, C.J.
This is an action by an inmate alleging violations of his Eighth and Fourteenth
Amendment rights. Plaintiff David Yarde is serving a prison sentence in state custody. He has
brought a pro se complaint against several prison officials under 42 U.S.C. § 1983, contending
that defendants David Keeler and Nestor Cruz violated his constitutional rights by negligently
failing to protect him from a gang-related assault and failing to take steps to prevent future
attacks.
Both defendants have moved to dismiss the complaint on three separate grounds: (1)
failure to exhaust administrative remedies, as required by the Prison Litigation Reform Act
(“PLRA”), 42 U.S.C. § 1997e et seq.; (2) failure to state a plausible claim upon which relief can
be granted; and (3) qualified immunity. In addition, defendant Keeler has moved to dismiss
under Fed. R. Civ. P. 12(b)(5), contending that plaintiff failed to effect service on him.
For the reasons set forth below, the motion will be granted.
I. Background
The following facts are set forth as alleged in the complaint, unless otherwise noted.
A. Factual Background
David Yarde is an inmate presently incarcerated at MCI-Concord. (Compl. at 1). At the
relevant time, he was incarcerated at the Souza Baranowski Correctional Center. (Defs.’ Mot. at
1).

Yarde is serving a prison sentence for the murder of a victim who was a member of the
Mission Hill gang. (Compl. at 6). In 2013, he was attacked by other Mission Hill gang members
while incarcerated in another facility. (Id.).
David Keeler is a correctional officer at Souza Baranowski. (Id. at 2). On February 14,
2020, Keeler opened the cell door of an inmate known to be a member of the Mission Hill gang.
(Id. at 4-6). The gang member attacked Yarde while he was on the telephone. (Id. at 6-7).
While attempting to defend himself, Yarde was sprayed with mace by an unidentified prison
official. (Id. at 7). The mace allegedly aided his attacker and impacted his eyesight long-term.
(Id.).

The complaint alleges that there is a “gang intelligence officer” within the Massachusetts
state prison system who documents and collects intelligence on gangs in the system, creating
sufficient knowledge that the inmate-attacker posed a danger to Yarde. (Id. at 6).
Nestor Cruz is a correctional officer at Souza Baranowski. (Id. at 2). There are no
factual allegations in the complaint connecting Cruz to the incident.
B. Procedural Background
On October 7, 2022, plaintiff filed the complaint in this action against four defendants,
apparently all prison officials. The complaint asserts a claim under 42 U.S.C. § 1983 for
violations of plaintiff’s Eighth Amendment and Fourteenth Amendment rights based on
defendants’ failure to prevent a violent gang attack against him and to take measures to prevent
future attacks. It seeks $1,500,000 in monetary damages for pain and suffering stemming from
the gang attack and the fear and paranoia plaintiff has experienced following the attack.
On February 10, 2023, the court dismissed the claims against two defendants for failure

to state a claim, leaving only defendants Keeler and Cruz.
Defendants Keeler and Cruz have moved to dismiss the complaint pursuant to Fed. R.
Civ. P. 12(b)(6) for failure to exhaust administrative remedies, for failure to state a plausible
claim upon which relief can be granted, and on the basis of qualified immunity. Defendant Keeler
has also moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(5) for failure to effect proper service.
II. Standard of Review
On a motion to dismiss, the court “must assume the truth of all well-plead[ed] facts and
give the plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness
Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.
1999)). To survive a motion to dismiss, the plaintiff must state a claim that is plausible on its
face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, “[f]actual allegations must

be enough to raise a right to relief above the speculative level, . . . on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (citations omitted).
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if plaintiff’s well-pleaded
facts do not “possess enough heft to show that plaintiff is entitled to relief.” Ruiz Rivera v.
Pfizer Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008) (quotations and original alterations
omitted).
Because plaintiff is proceeding pro se, the complaint, “however inartfully pleaded, must
be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (internal
quotation marks omitted); Fed. R. Civ. P. 8(e) (“[p]leadings must be construed so as to do

justice.”); see also Instituto De Educacion Universal Corp. v. United States Dep’t of Educ., 209
F.3d 18, 23 (1st Cir. 2000). Where the court cannot ascertain the nature and basis of any
legitimate claims, however, it is under no obligation to rewrite the pleadings on his behalf. See
Lampkin-Asam v. Volusia Cnty. Sch. Bd., 261 Fed. Appx. 274, 276-277 (11th Cir. 2008)
(“While a trial judge is to employ less stringent standards in assessing pro se pleadings than
would be used to judge the final product of lawyers, this leniency does not permit the district
court to act as counsel for a party or to rewrite deficient pleadings.”).
III. Analysis
A. Motion to Dismiss for Insufficient Service of Process
Defendant Keeler has moved to dismiss for insufficient service of process. Before a
federal court may exercise personal jurisdiction over a defendant, proper service of process

must be effected. Omni Capital Int’l Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). Fed.
R. Civ. P. 4 sets forth the acceptable methods for service of process. Under Rule 4(e), there are
four ways by which to serve an individual defendant within a federal judicial district: (1) by
following the requirements of state law for serving a summons in actions brought in the courts of
general jurisdiction in the state where the district court is located or where service is made
(here, Massachusetts); (2) by delivering a copy of the summons and the complaint to the
individual personally; (3) by leaving copies of those items at the individual’s dwelling or usual
place of abode with someone of suitable age and discretion who resides there; or (4) by
delivering copies to an agent authorized by appointment or by law to receive service of process.
Fed. R. Civ. P. 4(e).
When the sufficiency of process is challenged under Rule 12(b)(5), the plaintiff bears
“the burden of proving proper service.” Rivera-Lopez v. Municipality of Dorado, 979 F.2d
885, 887 (1st Cir. 1992). A return of service “generally serves as prima facie evidence that

service was validly performed,” but a defendant may adduce “rebuttal evidence to refute any
presumption of valid service.” Blair v. City of Worcester, 522 F.3d 105, 111-12 (1st Cir.
2008).
Here, defendant Keeler contends that plaintiff did not serve him with process and that
there is no record of his being served. According to Keeler, he is still employed at Souza
Baranowski Correctional Center. He also contends that staff at the facility track when
correctional employees are served with lawsuits pursuant to their obligations under
Massachusetts law. See Mass. Gen. Laws ch. 127, § 6 (“All process to be served within the
precincts of any penal or reformatory institution shall be directed to and served by the
superintendent”).

Plaintiff has not filed a return of service as to Keeler. Without a return of service,
there is no proof of service; without proof of service, the court cannot exercise personal
jurisdiction over Keeler. See Murphy Bros. v. Michetti Pipe Stringing, 526 U.S. 344, 350
(1999) (“Before a . . . court may exercise personal jurisdiction over a defendant, the
procedural requirement of a service of summons must be satisfied.”). Once a party challenges
service, the burden shifts to plaintiff to show that service was proper. Rivera-Lopez v.
Municipality of Dorado, 979 F.2d at 887.
Plaintiff responds that he “provided the U.S. Marshals with the required documents to
make service on Lieutenant Keeler, which [he] assumed occurred” and following the rules
“was all that was required of him to assure service of process on the named parties.” (Opp. at
5).
Service is completed when a defendant receives the summons and complaint in
accordance with Fed. R. Civ. P. 4, not when the Marshals Service receives the papers to be

served on a defendant. The plaintiff must provide papers for service to the Marshals Service
well before the 90-day service deadline to ensure that service will be completed in a timely
matter. Moreover, summonses must be served as to each defendant; therefore, multiple copies
of each required document may be necessary for a case with multiple defendants.
In any event, the Court cannot ascertain from the record whether the fault lies with the
plaintiff, the Marshals Service, or both. Under the federal rules, service of process must take
place within 90 days after the complaint is filed, or the court “must dismiss the action without
prejudice against that defendant or order that service be made within a specified time.” Fed. R.
Civ. P. 4(m). If the plaintiff shows good cause, then “the court must extend the time for service
for an appropriate period.” Fed. R. Civ. P. 4(m).

Under the circumstances, the Court finds that good cause exists to extend the time period
for service. As set forth below, the Court will grant plaintiff an opportunity to file an amended
complaint against Keeler within 21 days. If he does so within the time permitted, the court will
give him 21 additional days to make proper service of that amended complaint. Failure to do so
may result in the dismissal of the complaint as to Keeler pursuant to Fed. R. Civ. P. 4 and/or
12(b)(5).
B. PLRA - Failure to Exhaust Administrative Remedies
Both defendants have moved to dismiss on the ground that plaintiff failed to exhaust his
administrative remedies as required under the PLRA.
The PLRA requires prisoners to exhaust “such administrative remedies as are
available” before filing suit under any federal law. 42 U.S.C. § 1997e(a). That limitation
“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). To satisfy the exhaustion requirement, “prisoners must

‘complete the administrative review process in accordance with the applicable procedural
rules’” defined by the prison grievance process. Jones v. Bock, 549 U.S. 199, 218 (2007)
(quoting Woodford v. Ngo, 548 U.S. 81, 88 (2006)). Thus, to meet the requirement of proper
exhaustion, “a prisoner must file complaints and appeals in the place, and at the time, the prison’s
administrative rules require.” Acosta v. U.S. Marshals Serv., 445 F.3d 509, 512 (1st Cir. 2006)
(quoting Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002)). A plaintiff’s failure to
exhaust administrative remedies is an affirmative defense that the defendant bears the burden to
raise and prove. Jones, 549 U.S. at 216; see also Cruz Berrios v. Gonzalez-Rosario, 630 F.3d
7, 11 (1st Cir. 2010).
1. The Massachusetts Inmate Grievance Process Generally
The Commissioner of the Massachusetts Department of Correction issues regulations for

the processing of inmate grievances, which are codified at 103 C.M.R. § 491.00 et seq.
Under those regulations, inmates are required to submit a Step 1 informal complaint
resolution form to the Informal Complaint Coordinator before filing a grievance. 103 C.M.R.
§ 491.09(4). Informal complaints must be submitted within five working days of the actual
incident or of the inmate’s becoming aware of the incident or situation. Mass. Dep’t Corr.
Informal Compl. Resolution Standard Operating Procs. 7(c).
Upon receipt of an informal complaint decision, an inmate may file a grievance within
ten business days. 103 C.M.R. § 491.14(1). The grievance is initially reviewed by the IGC,
who must acknowledge receipt of the grievance within one business day and respond within
ten business days. Id. § 491.15(g). “The absence of a grievance response after six months
shall be deemed a denial of the grievance.” Id. § 491.14(9). An inmate may then appeal the
decision to the Superintendent within ten business days. Id. § 491.16(1). The appellate
authority shall respond within 30 business days from receipt of the appeal. Id. § 491.16(13).

2. Plaintiff’s Grievance Filing
Defendants contend that plaintiff failed to appeal the denial of the grievance he filed
concerning the February 14, 2020 assault, and therefore that he has not properly exhausted his
administrative remedies. (Defs.’ Mot. at 5-6). Plaintiff responds that he “complied with all
administrative process in grieving.” (Opp. at 6). However, the complaint contains no indication
of whether plaintiff filed a grievance, engaged in an appeals process, or otherwise exhausted his
administrative remedies.
Defendants submitted several documents in support of their contention that plaintiff
failed to exhaust his remedies, including an affidavit of Bethany Hisman, acting Institutional
Grievance Coordinator at Souza Baranowski Correctional Center. (Defs.’ Mot. Ex. 1 at 1).
Hisman attests, in part, that (1) plaintiff filed a grievance concerning the February 14, 2020

assault; (2) her office denied that grievance; and (3) plaintiff did not appeal the denial of his
grievance. (Id. at 2-3). Defendants also submitted plaintiff’s grievance forms. (Defs.’ Mot. Ex.
2). Thus, according to defendants, plaintiff failed to properly exhaust his claims.
However, defendants have not shown that the PLRA exhaustion issue may be properly
decided at this juncture. As noted, PLRA exhaustion is an affirmative defense as to which
defendants bear the burden of proof. A motion to dismiss may therefore be granted on the
ground of failure to exhaust “only where ‘the facts establishing the defense [are] clear on the face
of the plaintiff’s pleadings.’” Hudson v. MacEachern, 94 F. Supp. 3d 59, 67 (D. Mass 2015)
(quoting Blackstone Realty LLC v. FDIC, 244 F.3d 193, 197 (1st Cir. 2001)); see, e.g., White v.
Spaulding, 2020 WL 1974333, at *5 (D. Mass. Apr. 24, 2020); Riley v. Antonelli, 2020 WL
129057, at *2 (D.R.I. Jan. 10, 2020).
Here, defendants rely on extrinsic evidence in order to establish that plaintiff failed to
exhaust the appeals process at Souza Baranowski Correctional Center. Thus, “the matter cannot

be determined from a review of the four corners of the complaint.” See Dantone v. Bhaddi, 570
F. Supp. 2d 167, 173 (D. Mass. 2008). If defendants are correct, the matter may be resolved by
summary judgment, but not on a motion to dismiss.1 Here, at least, the Court will decline to
infer failure to exhaust from the four corners of the pro se complaint. Defendants’ motion to
dismiss for failure to exhaust administrative remedies will therefore be denied without prejudice
as to the renewal of that argument in response to an amended complaint or on summary
judgment.
C. Whether the Complaint States a Plausible Claim
Defendants further contend that the complaint should be dismissed because it fails to
state a plausible claim upon which relief can be granted.

1. Allegations Against Defendant Cruz
The complaint names Captain Nestor Cruz as a defendant, but alleges no facts about him
whatsoever. It thus does not contain any factual allegations identifying his alleged misconduct,
nor can it be reasonably inferred from the allegations that he was directly involved in the
violation of plaintiff’s rights. See Riva v. Brasseur, 2016 WL 9650983, at *1 (1st Cir. Sept. 12,

1 In any case, the documents may still not prove failure to exhaust. That was the issue in Ross v. Blake, 578
U.S. 632 (2016), where the Supreme Court identified three conditions “in which an administrative remedy, although
officially on the books, is not capable of use to obtain relief,” and is therefore “unavailable.” Id. at 643. Those
conditions include (1) when an administrative procedure “operates as a simple dead end—with officers unable or
consistently unwilling to provide any relief to aggrieved inmates”; (2) when an administrative scheme is “so opaque
that it becomes, practically speaking, incapable of use”; and (3) “when prison administrators thwart inmates from
taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 643-44. In
such cases, the failure to exhaust an administrative remedy will not bar the plaintiff from filing suit.
2016) (affirming dismissal of complaint alleging no facts on a particular claim). The complaint
therefore fails to state a plausible claim as to defendant Cruz and will be dismissed as to him.
2. Allegations Against Defendant Keeler
Even if plaintiff could establish proper service on Keeler, the complaint nevertheless fails
to state a plausible claim against him.

Under the Eighth Amendment, “‘prison officials have a duty . . . to protect prisoners from
violence at the hands of other prisoners.’” Farmer v. Brennan, 511 U.S. 825, 833 (1994)
(quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)). “However,
not every injury suffered by a prisoner at the hands of a fellow inmate gives rise to an Eighth
Amendment claim.” Giroux v. Somerset County, 178 F.3d 28, 32 (1st Cir. 1999). In order to
state a claim for the violation of Eighth Amendment rights, two requirements must be met. Id.
First, “‘the inmate must show that he is incarcerated under conditions posing a substantial risk of
serious harm.’” Id. (quoting Farmer, 511 U.S. at 834). Second, “the official involved must have
had ‘a sufficiently culpable state of mind,’ described as ‘deliberate indifference’ to inmate health
or safety.” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 299 (1991); Farmer, 511 U.S. at 834).

The state of mind required is “more blameworthy than negligence.” Burrell v. Hampshire Cnty.,
307 F.3d 1, 8 (1st Cir. 2002).
The complaint does not satisfy that standard. The sole allegation in the complaint as to
Keeler is that he “deliberately opened the cell door of an inmate [he] knew [was] a gang []
member . . . .” (Compl. at 4-6). The complaint further states there is a “gang intelligence
officer” in the Massachusetts state prison system who documents and collects intelligence about
the gangs, and thus there is “no way” that the Massachusetts Department of Corrections was not
aware of the threat posed to plaintiff by a documented Mission Hill gang member—the same
gang as his alleged victim. (Id. at 6).
However, the complaint states no facts sufficient to conclude that Keeler himself
possessed a sufficiently culpable state of mind or that he was aware of facts that could lead him
to infer that there was a substantial risk of serious harm to plaintiff. See Burrell, 307 F.3d at 8
(citing Farmer, 511 U.S. at 844). Similarly, it does not plead sufficient facts from which a

factfinder could reasonably conclude that Keeler knew of the risk from the fact that it was so
obvious. See id. at 8. For example, it alleges no facts that Keeler was aware of plaintiff’s own
gang affiliation. Accordingly, the complaint in its present form fails to state a plausible claim
under the Eighth Amendment against defendant Keeler.
However, in his opposition to the motion to dismiss, plaintiff alleges new facts, including
that (1) the prison operated under a policy of segregating certain groups from each other due to
known conflicts between the two—“gr[a]ys” and “greens”; (2) the normal procedure when
members of these segregated groups might come into contact was to “lock-in all prisoners
technically from the gr[a]y side until the so-called green side prisoner[s] [were] safely out of the
unit. No one mixed from either side due to known conflicts”; (3) plaintiff belonged to the “green

side” of the prison; (4) plaintiff’s attacker belonged to the “gr[a]y” side; (5) defendant Keeler
opened the cell door of the “gr[a]y” prisoner who attacked plaintiff during a recreation period for
the “green prisoners”; and (6) did so knowingly in violation of the policy of separation of
prisoners of known, rival gangs. (ECF No. 27 at 2-5).
If those allegations are true, it may be a reasonable inference that Keeler was “aware of
facts from which the inference could be drawn that a substantial risk of serious harm exists, and
he [] also dr[e]w the inference.” Farmer, 511 U.S. at 837. For example, those further
allegations could suggest that Keeler was aware of the prison’s policy against commingling rival
gang members, and that he knew or should have known the potential for harm when he allowed a
prisoner from one side of the block to enter the recreation area at a time when the other side was
present. See King v. Dep’t of Correction, 2016 WL 7175592, at *5 (D. Mass. 2016) (finding
plaintiff sufficiently alleged Eight Amendment violation for failing to protect from rival gang
members at Souza Baranowski Correctional Center).

Furthermore, it seems plausible that qualified immunity would not apply to those
circumstances.2 See King, 2016 WL 7175592, at *7 (finding qualified immunity did not apply
when plaintiff alerted guards that his cell assignment was problematic and was beaten after a
relocation near rival gang members); Facey v. Dickhaut, 892 F. Supp. 2d 347, 357-59 (D. Mass.
2012) (holding that qualified immunity did not apply when plaintiff was placed in a housing unit
with members of a rival gang and attacked); Thomas v. Rhode Island, 2020 WL 1703163 (D.R.I.
2020) (finding plaintiff sufficiently pleaded an Eighth Amendment violation by asserting he was
identified as a gang member and was let into the recreation area with rival gang members who
assaulted him); see also Robinson v. Prunty, 249 F.3d 862, 867 (9th Cir. 2001) (holding the
district court did not err in denying qualified immunity when members of rival gangs permitted

in the exercise yard at the same time attacked).
However, the Court may not consider such facts, which are outside the pleadings, on a
motion to dismiss—if they are to be considered, they must be raised in an amended complaint.
See Willitts v. Life Ins. Co. of N. Am., 2021 WL 735784, at *4 (D. Mass. Feb. 25, 2021) (“[A]n
opposition to a motion to dismiss is not the place for new factual allegations. . . . This is
generally true even if the plaintiff is proceeding pro se.”) (collecting cases). The new allegations

2 Qualified immunity protects public employees “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). To determine whether qualified immunity applies, the
court must determine (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional
right, and (2) whether the right at issue was clearly established at the time of the defendant’s alleged misconduct.
Maldonado v. Fontanes, 568 F.3d 263, 268-69 (1st Cir. 2009).
cannot be considered unless they are re-alleged in an amended complaint. The pleading properly
before the Court, therefore, fails to establish a plausible claim in its current form.
Nonetheless, because of the foregoing analysis and because plaintiff is proceeding pro se,
the Court will provide him an opportunity to file an amended complaint that cures the

deficiencies identified in this memorandum. Any such amended complaint shall be filed within
21 days (that is, by February 20, 2024).
IV. Conclusion
For the foregoing reasons,
1. Defendants’ motion to dismiss is GRANTED IN PART and DENIED IN PART
without prejudice.
2. If plaintiff wishes to file an amended complaint, he must do so within 21 days
(that is, by February 20, 2024).
3. If plaintiff files an amended complaint, he must serve it within 21 days thereafter.
So Ordered.

/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
Dated: January 30, 2024 Chief Judge, United States District Court

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10201692. Public record. Not legal advice.