Smith v. Daou

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

)

STEVEN L. SMITH, )

)

Plaintiff, )

)

v. )

) Case No. 21-cv-12056-DJC

)

MARGARITA DAOU, et al., )

)

Defendants. )

)

)

__________________________________________)

MEMORANDUM AND ORDER

CASPER, J. March 4, 2024

I. Introduction

Plaintiff Steven L. Smith (“Smith”), a former patient at the Worcester Recovery Center and

Hospital (“WRCH”), has filed this lawsuit against the movants, Defendants Margarita Daou, M.D.;

Sherry Hannon, LSCW; Lisneette “Donna” Santana, RN; Sara Maker, RN; Agatha Cretzu, RN;

and Carlton Kemp, MHW (collectively, “Defendants”).1 D. 86. Smith alleges Defendants failed

to protect him from an assault by another patient at WRCH on or about April 9, 2021, in violation

of 42 U.S.C. § 1983.2 D. 86 at 6; see D. 83. Defendants Hannon, Santana, Maker and Kemp

1 Defendants Adele Olewaseum and Jermaine Marshall have not been served, D. 100, 102,

130, 131. The Commonwealth Defendants’ motion indicates that both are former employees of

the Commonwealth, but that counsel has been unable to reach them. D. 112 at 1 n.1. Although

Olewaseum and Marshall are not parties to the Commonwealth’s motion, much of the Court’s

legal analysis here likely would apply to them as well. Although the Court invited Smith to file a

motion with current addresses for same, D. 151 (entered on October 3, 2023), he has not done so.

2 In addition to his “failure-to-protect” claim, Smith raised various other claims in the

amended complaint, D. 86. The Court, however, dismissed these other claims following a

(collectively, the “Commonwealth Defendants”) have moved to dismiss the amended complaint

under Fed. R. Civ. P. 12(b)(6) and 12(b)(5). D. 112. Defendants Daou and Cretzu have separately

moved to dismiss the amended complaint pursuant to Rule 12(b)(6) and 12(b)(5). D. 116. For the

reasons stated below, the Court ALLOWS the Commonwealth Defendants’ motion to dismiss as

to Santana only but otherwise DENIES the motion. D. 112. As to the motion to dismiss brought

by Defendants Daou and Cretzu, the Court DENIES the motion as to Daou and ALLOWS the

motion as to Cretzu under Fed. R. Civ. P. 12(b)(5) and dismisses the action as to her without

prejudice. D. 116.

II. Standards of Review

A. Failure to State a Claim

On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant

to Fed. R. Civ. P. 12(b)(6), the Court must determine if the facts alleged “plausibly narrate a claim

for relief.” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (citation

omitted). Reading the complaint “as a whole,” the Court must conduct a two-step, context-specific

inquiry. García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). “Exhibits attached to

the complaint are properly considered part of the pleading for all purposes, including Rule

12(b)(6).” Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008)

(internal quotation marks and citation omitted). First, the Court must perform a close reading of

the claim to distinguish the factual allegations from the conclusory legal allegations contained

therein. García-Catalán, 734 F.3d at 103. Factual allegations must be accepted as true, while

conclusory legal conclusions are not entitled credit. Id. Second, the Court must determine whether

preliminary screening of the amended complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A,

D. 83, so only the failure-to-protect claim is before the Court in consideration of the pending

motions to dismiss.

the factual allegations present a “reasonable inference that the defendant is liable for the

misconduct alleged.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (citation omitted).

In sum, the complaint must provide sufficient factual allegations for the Court to find the claim

“plausible on its face.” García-Catalán, 734 F.3d at 103 (quoting Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009)).

A pro se plaintiff is entitled to a liberal reading of his allegations, regardless of how

inartfully pled. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Rodi v. S. New Eng. Sch. of

L., 389 F.3d 5, 13 (1st Cir. 2004). He, however, must still comply with procedural and substantive

law and “dismissal remains appropriate . . . when the complaint fails to even suggest an actionable

claim.” Overton v. Torruella, 183 F. Supp. 2d 295, 303 (D. Mass. 2001) (citing Lefebvre v.

Comm’r of Internal Revenue, 830 F.2d 417, 419 (1st Cir. 1987)).

B. Insufficient Service of Process

It is well established “that a judgment rendered in the absence of personal jurisdiction is a

nullity.” Vázquez-Robles v. CommoLoCo, Inc., 757 F.3d 1, 4 (1st Cir. 2014). “The existence of

such jurisdiction normally depends on legally sufficient service of process.” Id. “[Al]though

personal jurisdiction and service of process are distinguishable, they are inextricably intertwined,

since service of process constitutes the vehicle by which the court obtains jurisdiction.” United

Elec., Radio & Mach. Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d 1080, 1085 (1st Cir.

1992). The Court may dismiss a complaint for insufficient service of process. Evans v. Staples,

Inc., 375 F. Supp. 3d 117, 120 (D. Mass. 2019); see Fed. R. Civ. P. 12(b)(5).

III. Factual Background and Procedural History

Unless otherwise indicated, the following facts are drawn from the allegations in Smith’s

amended complaint and the attached exhibits, see D. 86; D. 86-1, and presumed to be true for the

purposes of resolving the motion to dismiss.

On March 25, 2021, Smith was committed to WRCH for an evaluation of his competency

to stand trial. D. 86 ¶ 1; D. 86-1 at 6, 8, 47–48. While at WRCH, Smith’s treatment team consisted

of Daou, Hannon, Cretzu and Maker (“Treatment Team”). D. 86 ¶¶ 10, 12. Smith’s room was at

the far end of a locked hospital wing, staffed by Kemp and at least two other named defendants,

Jermaine Marshall and Adele Olewaseun. Id. ¶¶ 10, 13. Another patient, “Kyle,” was assigned to

the room adjacent to Smith’s; neither room had “locks on the doors.” Id. ¶ 10. As alleged by

Smith, Kyle was a “violent” person, with “a history of attacking people.” Id. ¶ 9.

Sometime after Smith’s arrival at the WRCH, Kyle began “making threats” toward Smith

and “calling [him] a child rapist.” Id. ¶ 10. Smith alleges that staff had told Kyle his criminal

charges, which included the alleged rape of a child. Id. Fearful of Kyle, Smith raised his concerns

“at more than one [t]eam [m]eeting” to the Treatment Team. Id. Smith also called and left

voicemails for Daou and Hannon to report the alleged threats, but “no action was taken” in

response. Id. ¶ 11. Smith alleges that, given the circumstances, he was terrified and worried that

Kyle would assault him in his sleep. Id. ¶ 10.

On April 9, 2012, Smith met again with the Treatment Team. Id. ¶ 12. He “told all of

them that Kyle’s threats were becoming more and more brazen,” to the point where Kyle was

openly telling Smith and staff “that he was not playing, you know me, you better move this rapist.”

Id. ¶ 12. Smith then returned to his WRCH wing “where Kyle’s ire grew” as Kemp and other staff

members “all stood around trying to calm Kyle down.” Id. ¶ 13. The staff told Smith, “[w]e can’t

move him” because “there’s no room” and added that they “don’t make moves” because such

decisions are “up to the doctors/nurses.” Id. “[N]ot long after leaving the team meeting on [April

9, 2021],” Kyle allegedly assaulted Smith, id. ¶ 14, which the video referenced in the Complaints

Department investigation, referenced below, apparently showed Kyle spitting at Smith. D. 86-1

at 17.

On April 12, 2021, Smith submitted a complaint to the Complaints Department of WRCH

alleging “that a peer is threatening” him and that he had “notified his social worker that he is in

fear for his safety.” D. 86-1 at 15.3 Following an investigation into the complaint, which entailed

witness interviews and a review of video footage of the April 9 incident, the Complaints

Department issued a summary of findings. Id. at 16. According to the summary of findings, Smith

alleged that Kyle “ha[d] been antagonizing him since he came to the unit” and that Kyle was

“accusing him of being a sex offender and threatened to beat him up.” Id. Defendants Maker,

Hannon and Kemp were among those interviewed. Id. Maker told the Complaints Department

that Smith and Kyle had “been antagonizing each other for days; staff have been monitoring and

redirecting them” and that “when [Smith] complained about being threatened by [Kyle], [Smith]

was offered several times to move out of the wing, but he refused it.” Id. As to the alleged assault,

Maker said that “the alleged incident was not reported to her by staff.” Id. Staff members

interviewed, including Kemp, said that “they did not witness the alleged assault” and that Maker

“found out about it from her supervisor 48 hours later,” at which time she “met with the staff on

duty the day of the alleged incident to investigate.” Id.

3 These facts are drawn from a report issued by the Complaints Department, which the

Court properly may consider because Smith attached a copy of the report to the amended

complaint. See Trans-Spec Truck Serv., Inc., 524 F.3d at 321.

The summary of findings provide additional details concerning the April 9 assault, based

upon another witness’s (“Witness 5”) observation of the incident and video footage of same. Id.

at 16–17. According to Witness 5, Smith “was standing in the lounge area next to the television

when [Kyle] walk[ed] by the patient, spat on him, and also through [sic] an empty milk carton to

the patient.” Id. at 17. Witness 5 added that Kyle “did not punch the patient on the back of the

head” and that “other staff witnessed the incident; they intervened and redirected both patients.”

Id. Video footage also showed Kyle “walking toward [Smith] moving his head backward and

spitting at him.”4 Id.

Based on these findings, the Complaints Department concluded that “the patient was

assaulted by [Kyle] and that there was staff present at the time and place of the incident.” Id. The

Complaints Department further determined “that staff did contribute to an incident and/or

condition that were dangerous, illegal, and/or inhumane, as defined by DMH Regulations 104

CMR 32.00” and thus deemed Smith’s complaint “substantiated.” Id. at 18.

Smith now has filed this lawsuit against Defendants. D. 1. He later moved to amend the

complaint, which this Court allowed after a preliminary screening of the amended complaint

pursuant to 28 U.S.C. §§ 1915(e), 1915A. D. 83. Specifically, the Court allowed Smith to pursue

his claim that “certain staff at the Worcester Recovery Center and Hospital [ ] failed to protect

Smith from assault by another patient at WRCH on or about April 9, 2021” and dismissed the

remaining claims. D. 83. Defendants Santana, Hannon, Maker and Kemp (the “Commonwealth

4 In Smith’s opposition to the motions, he raises new factual allegations in connection with

the alleged assault. For instance, Smith asserts that, although his “assault didn’t lead to

hospitalization,” he was “punched more than once by patient Kyle.” D. 128 ¶ 10. “[A]ssertions

in an opposition to a motion [to dismiss] are not the equivalent of factual allegations,” and the

Court will not consider them as if pled in the amended complaint. Steele v. Turner Broadcasting

Sys., Inc., 607 F. Supp. 2d 258, 263 (D. Mass. 2009).

Defendants”) have moved to dismiss Smith’s amended complaint under Fed. R. Civ. P. 12(b)(6)

and 12(b)(5). D. 112. Defendants Daou and Cretzu have separately moved to dismiss the amended

complaint on the same grounds. D. 116. Smith has opposed both motions. D. 127; D. 128;

D. 143; D. 145.

IV. Discussion

Smith alleges that Defendants failed to protect him at WRCH, in violation of 42 U.S.C.

§ 1983, and seeks both damages and injunctive relief. D. 86 at 19–20. The Commonwealth

Defendants argue that Smith has failed to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). They

argue that because the Court allowed Smith to pursue only his allegations related to his “failure-

to-protect” claim, see D. 83, Smith can no longer maintain an action as to Santana—whose

involvement in the same is not alleged in the amended complaint. D. 113 at 6–8. The

Commonwealth Defendants further contend that the amended complaint should be dismissed for

failure to allege more than a de minimis injury and that, regardless, they are entitled to qualified

immunity. Id. at 8–18. Defendants Daou and Cretzu seek dismissal under Rule 12(b)(6) on

substantively similar grounds. D. 117 at 4-6. Defendants all move to dismiss the amended

complaint for lack of sufficient service of process under Rule 12(b)(5). D. 113 at 18-20; D. 117

at 3-4.

A. Official Capacity Claims

Smith has filed the amended complaint against Defendants in their official capacities, in

addition to their individual capacities. D. 86 at 1. Thus, before proceeding to the substance of

Defendants’ motions, the Court considers whether Smith may sue Defendants in their official

capacities.

As already noted, Smith seeks both damages and injunctive relief as to Defendants. D. 86

at 19–20. However, “[i]t is settled beyond peradventure . . . that neither a state agency nor a state

official acting in his official capacity may be sued for damages in a section 1983 action.” Johnson

v. Rodriguez, 943 F.2d 104, 108 (1st Cir. 1991). While injunctive relief may be sought against

defendants in their official capacities, a plaintiff must have standing to do so. See City of Los

Angeles v. Lyons, 461 U.S. 95, 111 (1983) (holding that a plaintiff does not have standing to seek

injunctive relief “[a]bsent a sufficient likelihood that [a plaintiff] will again be wronged in a similar

way”). More specifically, Smith must “‘establish a real and immediate threat’ resulting in ‘a

sufficient likelihood that he will again be wronged in a similar way.’” Gray v. Cummings, 917

F.3d 1, 19 (1st Cir. 2019) (quoting Am. Postal Workers Union v. Frank, 968 F.2d 1373, 1376 (1st

Cir. 1992)).

Smith alleges that he is a “pre-trial detainee at Barnstable County Jail,” D. 86 at 1, i.e., no

longer a patient at WRCH. Accordingly, he does not face a “real and immediate threat” that,

absent the injunctive relief sought, he will likely be wronged in a manner similar to the alleged

misconduct at WRCH. See Gray, 917 F.3d at 19; see also Wilson v. Yaklich, 148 F.3d 596, 601

(6th Cir. 1998) (concluding that a claim for injunctive relief is unavailing where inmate was no

longer incarcerated at the institution where allegedly unconstitutional prison conditions existed).

The Court, therefore, concludes that Smith may only pursue his claim against Defendants in their

individual capacities. See Powell v. Alexander, 391 F.3d 1, 23–24 (1st Cir. 2004) (explaining that

a § 1983 plaintiff may seek damages against state officials in their individual capacities).

B. Failure to State a Claim Under Rule 12(b)(6)

As to the remaining claims against Defendants in their individual capacities, the Court turns

to Rule 12(b)(6) grounds to dismiss. See D. 113 at 5–16; D. 117 at 4–6.

1. Defendant Santana

The Commonwealth Defendants argue that, in light of this Court’s order, D. 83, allowing

Smith to pursue only his allegations that “certain staff at the Worcester Recovery Center and

Hospital [ ] failed to protect Smith from assault by another patient at WRCH on or about April 9,

2021,” the amended complaint must be dismissed as to Defendant Santana. See D. 113 at 6–8.

Having reviewed the amended complaint, the Court agrees. A complaint “must contain sufficient

factual matter.” Ashcroft, 556 U.S. at 678. Failure to include factual allegations in a complaint

deprives a defendant of “fair notice of what the . . . claim is and the grounds upon which it rests.”

Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007) (quoting Fed. R. Civ. P. 8(a)). As the

Commonwealth Defendants contend, D. 113 at 7-8, none of the allegations directed at Santana

bear any relation to Smith’s failure-to-protect claim—the only claim which Smith may pursue,

D. 83. Accordingly, the Court will allow the Commonwealth Defendants’ motion to dismiss as to

Santana.

2. Defendants Hannon, Maker, Kemp, Cretzu, Daou

As to the other Defendants, the Court must assess whether Smith plausibly has alleged a

violation of 42 U.S.C. § 1983. There are two elements to a § 1983 claim: (1) that the conduct

complained of transpired under the color of state law; and (2) as a result, the plaintiff suffered a

deprivation of his rights. See Klunder v. Brown Univ., 778 F.3d 24, 30 (1st Cir. 2015) (citing

Santiago v. Puerto Rico, 655 F.3d 61, 68 (1st Cir. 2011)). Whether Defendants acted under the

color of state law while working at WRCH, a state hospital, does not appear to be in dispute.

As to whether Smith plausibly has alleged a deprivation of rights in connection with

Defendants’ alleged failure-to-protect him, the Court’s “first step is to identify the exact contours”

of Smith’s constitutional right to protection. See County of Sacramento v. Lewis, 523 U.S. 833,

841 n.5 (1998). “[F]ailure to protect claims are scrutinized under different standards in different

institutional settings.” Alves v. Murphy, 530 F. Supp. 2d 381, 387 (D. Mass. 2008). For those

subject to involuntary commitment, the failure to protect a patient creates liability under the Due

Process Clause of the Fourteenth Amendment in situations where a “decision by the professional

is such a substantial departure from accepted professional judgment, practice, or standards as to

demonstrate that the person responsible actually did not base the decision on such a judgment.”

Youngberg v. Romeo, 457 U.S. 307, 323 (1982). For pretrial detainees, a failure-to-protect claim

arises where officials in custody of the detainee demonstrate a “deliberate indifference to a

substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 836 (1994). This claim, too,

is rooted in the Due Process Clause of the Fourteenth Amendment but generally analyzed by

reference to Eighth Amendment jurisprudence. See Bell v. Wolfish, 441 U.S. 520, 545 (1979)

(acknowledging that Due Process protections for pretrial detainees are “at least” as great as those

“enjoyed by convicted prisoners”); Burrell v. Hampshire County, 307 F.3d 1, 7 (1st Cir. 2002)

(noting that “[p]retrial detainees are protected under the Fourteenth Amendment Due Process

Clause rather than the Eighth Amendment; however, the standard to be applied is the same as that

used in Eighth Amendment cases”). Because Smith was involuntarily committed to WRCH and

also a pretrial detainee, the Court will consider both whether Smith has alleged a plausible failure-

to-protect claim under either Youngberg’s “professional judgment” standard or Farmer’s

“deliberate indifference” standard.

a) Youngberg “Professional Judgment” Standard

Assuming the truth of the allegations in the complaint, and drawing all reasonable

inferences in Smith’s favor, Smith has plausibly alleged a failure-to-protect claim under

Youngberg. Smith alleges that from his arrival at WRCH on March 25, 2021 to the date of the

alleged assault, April 9, 2021, he routinely received threats from Kyle, a fellow patient. D. 86

¶ 10; D. 86-1 at 16. While Smith does not allege the content of each threat in detail, he has attached

to the amended complaint a copy of the WRCH Complaints Department’s findings, which reflects

allegations that Kyle threatened Smith with physical violence. See D. 86-1 at 16 (noting Smith’s

assertion that Kyle “threatened to beat him up”). Smith also alleges that Kyle had a history of

attacking others, that Kyle knew of the serious charges against Smith and would routinely call him

a “child rapist” and that Smith’s room was right next to Kyle’s, in rooms that could not be locked,

at the far end of a locked wing of WRCH. D. 86 ¶ 9–10, 13. Smith’s allegations therefore indicate

the plausibility that, from March 25 to April 9, he reasonably feared for his physical safety.

Whether these circumstances mark a substantial departure from professional judgment

necessarily depends on what Defendants knew and what steps, if any, they took to address the

situation. To that end, Smith alleges that Defendants knew of the foregoing threats and

circumstances. For instance, he alleges that he told the Treatment Team on more than one occasion

about Kyle’s threats, that he left voicemails for Daou and Hannon about same, that Kemp and

others were present when Kyle had to be calmed down after such threats, and that Kyle openly

told him and staff that “he was not playing, you know me, you better move this rapist.” D. 86 ¶¶

10–13. Smith has alleged not only threats of physical violence and circumstances heightening

their credibility and urgency, but also that Defendants knew same, the allegations in the amended

complaint give a plausible basis to question whether Defendants’ decision departed from accepted

professional judgement, practice and standards. See Cameron v. Tomes, 990 F.2d 14, 20 (1st Cir.

1993).

Cutting the other way is the relatively short time period covered by Smith’s failure-to-

protect allegations, i.e., roughly two weeks, starting with his commitment to WRCH on March 25,

2021 and ending with the incident on April 9, 2021. See Alves, 530 F. Supp. 2d at 387 (explaining

that the “length of time” someone “is exposed to an adverse condition is relevant in assessing

whether a constitutional violation has occurred”). Moreover, the allegations surrounding the

incident itself—which involved spitting and the throwing of an empty milk carton—while

undoubtedly annoying, may not evince a substantial departure of professional judgment by staff,

who, even as alleged, tried to calm Kyle down on April 9 before the incident, D. 86 ¶ 13; see Alves,

530 F. Supp. 2d at 387 (noting that “any analysis of a substantive due process claim in this context

must take into account that ‘an institution cannot protect its residents from all danger of violence

if it is to permit them to have any freedom of movement’”) (quoting Youngberg, 457 U.S. at 320).

Further supporting the plausibility of Smith’s claims, however, are the findings and

conclusions of the WRCH Complaints Department, which more than any of Smith’s allegations

provide some objective criteria into “accepted professional judgment, practice, or standards.”

D. 86-1 at 16–18. Following interviews with Smith, Defendants Maker, Hannon and Kemp,

among others, as well as a review of video footage, the WRCH Complaints Department concluded

that “the staff did contribute to an incident and/or condition that were dangerous, illegal, and/or

inhumane” and determined that Smith’s fears for his safety were “substantiated.” Id. at 18.

As the Supreme Court explained in Youngberg, 457 U.S. at 323, “[i]n an action for

damages against a professional in his individual capacity . . . the professional will not be liable if

he was unable to satisfy his normal professional standards because of budgetary constraints.”

However, at this stage, where the Court must assume Smith’s allegations to be true, and draw all

reasonable inferences in his favor, Smith has plausibly alleged a failure-to-protect claim under

Youngberg.5

a) Farmer “Deliberate Indifference” Standard

Next, the Court considers whether Smith has sufficiently alleged a failure-to-protect claim

under the “deliberate indifference” standard set forth in Farmer. The “deliberate indifference”

standard has two prongs—one objective, the other subjective. As to the objective prong, the

alleged injury must, in objective terms, be “sufficiently serious.” Farmer, 511 U.S. at 834 (noting

that “[i]t is not [ ] every injury suffered by one prisoner at the hands of another that translates into

constitutional liability for prison officials responsible for the victim’s safety”). As to the subjective

prong, a plaintiff must show the officials are “deliberately indifferent,” meaning that they “know[ ]

of and disregard[ ] an excessive risk to inmate safety.” Leite v. Bergeron, 911 F.3d 47, 52 (1st

Cir. 2018) (quoting Farmer, 511 U.S. at 837). Specifically, “[t]he 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.” Id. at 837. The First Circuit has also noted that officials “cannot

be deliberately indifferent if they responded reasonably to the risk.” Burrell, 307 F.3d at 8.

The Commonwealth Defendants argue that Smith has failed to satisfy prong one of the

Farmer standard, reasoning that the alleged assault and threats were not “objectively, sufficiently

serious” and emphasizing that no actual physical injury was suffered. D. 113 at 11 (quoting

Calderon-Ortiz v. Laboy-Alvarado, 300 F.3d 60, 64 (1st Cir. 2002)). As to the April 9, 2021

5 The Commonwealth Defendants cite Alves, 530 F. Supp. 2d at 386–89 in support of their

argument that the Youngberg standard does not reach the alleged, but de minimis injury here.

There, Alves had been “double-bunked” with an individual previously convicted of rape. Id. at

385, 388. Once Alves alerted defendants that his roommate had lifted his bed sheets to look at

him, “the defendants immediately transferred Alves to another housing unit.” Id. By contrast,

here, Smith alleges that Defendants did not move him or take any other, sufficiently protective

action despite knowing of alleged threats of physical violence.

incident, where Kyle allegedly spat on Smith and threw an empty milk carton at him, D. 86-1 at

17, the Court agrees that, without more, it is likely that such allegations would not be sufficiently

serious. See Jones v. Salley, No. 2:12-cv-510-FtM-29DNF, 2013 WL 5567321, at *3 (M.D. Fla.

Oct. 9, 2013) (explaining that, “[t]o the extent the[ ] correctional officers did not protect Plaintiff

from other inmates spitting on him, this allegation, without more, cannot reasonably be perceived

as presenting a substantial risk of serious harm”); Kocher v. Luzerne Cnty. Corr. Facility, No.

1:11-CV-1000, 2011 WL 2470382, at *3 (M.D. Pa. June 20, 2011) (concluding that an inmate’s

“allegation that he was spit on, without more, cannot reasonably be perceived as presenting a

substantial risk of serious harm”).

Here, however, Smith has alleged more. As previously discussed in this Court’s

Youngberg analysis, Smith has alleged that over a roughly two-week period Kyle repeatedly

threatened him with physical violence and would call him a “child rapist.” D. 86 ¶ 10. He also

alleged circumstances heightening the urgency of the situation and the credibility of the threats,

namely that Kyle was a “violent” person with a “history of attacking people,” that his room was

next to Smith’s room at the far end of a locked hospital wing and that neither room had locks. Id.

¶¶ 9, 10, 13. These alleged circumstances led Smith to develop a reasonable fear that Kyle would

assault him in his sleep. Id. ¶ 10. The WRCH Complaints Department investigated Smith’s safety

concerns and concluded that they were substantiated based on discussions with numerous

witnesses and a review of video footage of the April 9 incident. D. 86-1 at 16–18.

The Commonwealth Defendants question the seriousness of the alleged threats,

characterizing the amended complaint’s references to threats and name-calling as “vague” or

“conclusory.” D. 113 at 12. The Commonwealth Defendants are correct that, with one exception,6

the amended complaint is scant on details concerning the precise language of the alleged threats.

Although more detailed allegations as to the content of the threats would have rendered Smith’s

failure-to-protect claim more plausible, Smith is a pro se plaintiff and therefore “entitled to a liberal

reading of his [ ] allegations, regardless of how inartfully pled,” see Haines, 404 U.S. at 520–21,

and on a Rule 12(b)(6) motion the Court cannot construe a threat to “beat [Smith] up,” D. 86-1 at

16, as anything less than a threat of physical violence.

The Commonwealth Defendants further suggest that threats of physical violence which do

not lead to actual, physical injury cannot give rise to a failure-to-protect claim. See D. 113 at 13

(arguing the amended complaint should be dismissed because it does not “specifically allege that

Smith suffered any actual, physical injury as a result of the assault”). Courts have taken different

positions on whether actual, physical injury is required under Farmer. Some courts have held that

threats of violence, without a resultant physical injury, cannot give rise to an Eighth Amendment

claim. See, e.g., Bass v. Blount, No. 1:18CV75-RHW, 2019 WL 4197599, at *1 (S.D. Miss. Sept.

4, 2019) (stating that “the mere threat of violence does not by itself constitute a failure to protect”);

Robinson v. Wall, No. 09-277 S, 2015 WL 728508, at *6 (D.R.I. Feb. 19, 2015) (concluding that

“[t]hreats of violence, while deserving of censure if true, do not rise to the level of a constitutional

violation”); Ferguson v. Pagati, No. 12-00653-VBF-DTB, 2013 WL 3989426, at *4 n.4 (C.D. Cal.

Aug. 1, 2013) (acknowledging “an apparent split among Circuits as to whether threats made by

prison officials against inmates can be the basis of an Eighth Amendment claim” but concluding

that threats of violence are not enough in the Ninth Circuit); but see Heisler v. Kralik, 981 F. Supp.

6 The amended complaint recounts an instance where Kyle specifically said he “was not

playing, you know me, you better move this rapist.” D. 86 ¶ 12. The Court draws the reasonable

inference in Smith’s favor that this remark was a veiled threat.

830, 837 (S.D.N.Y. 1997) (explaining that “prison officials have a constitutional duty to act

reasonably to ensure a safe environment for a prisoner when they are aware that there is a

significant risk of serious injury to that prisoner. The failure to do so violates that prisoner’s rights,

whether or not an attack actually occurs, and if it does occur, whether or not the injuries suffered

in an attack are serious”). The weight of federal authority, however, appears to indicate that,

although verbal harassment (without more) is generally not sufficient, psychological harm

stemming from credible threats of violence may, in an extreme case, be serious enough to violate

the Eighth Amendment. See Hudspeth v. Figgins, 584 F.2d 1345, 1348 (4th Cir. 1978) (per

curiam) (holding that a pro se prisoner’s allegations that prison officials threatened him with

physical harm may support an Eighth Amendment claim); Doe v. Welborn, 110 F.3d 520, 524 (7th

Cir. 1997) (noting that the plaintiff could not show an Eighth Amendment violation because he

showed “neither physical harm nor the kind of extreme and officially sanctioned psychological

harm that might support a claim for damages under the Eighth Amendment”); Irving v. Dormire,

519 F.3d 441, 449 (8th Cir. 2008) (concluding that, “when viewed in light of their retaliatory

nature, their objectively credible basis, and their fear-inducing result, the death threats allegedly

made . . . form the basis of an injury sufficiently serious to implicate the Eighth Amendment”);

Chandler v. D.C. Dep’t of Corr., 145 F.3d 1355, 1360–61 (D.C. Cir. 1998) (noting that although

generally inadequate, “verbal threats, without more, may be sufficient to state a cause of action

under the Eighth Amendment,” e.g., where they involve “the repeated threat of physical harm”).

The First Circuit has taken a similar approach in its analysis of deliberate indifference

claims. For instance, in Purvis v. Ponte, 929 F.2d 822, 825 (1st Cir. 1991), the First Circuit held

that a prisoner had failed to allege an Eighth Amendment violation where “any perceived threat to

Purvis’s safety was short-lived” and noted that, although a roommate had expressed hostility

toward his sexual orientation, there were no allegations that “this inmate threatened him.” In

reaching this conclusion, however, the First Circuit acknowledged the possibility of “fear of

constitutional dimensions” and that same required a showing of “more than simple anxiety.” Id.

(quoting Shrader v. White, 761 F.2d 975, 979 (4th Cir. 1985)). Moreover, when discussing the

Farmer standard, the First Circuit has, consistent with the Supreme Court’s language, indicated

that prison officials have a duty to protect inmates from the “risk” of violence. See Burrell, 307

F.3d at 7 (emphasizing that officials have a responsibility not to be deliberately indifferent to the

“risk to prisoners of violence” at the hands of other prisoners).

Given that threats of physical violence may induce “fear of constitutional dimensions” and

that Smith is, at this stage, entitled to both a liberal reading of the amended complaint and the

resolution of all reasonable inferences in his favor, he has plausibly alleged a sufficiently serious

harm under Farmer. Unlike in Purvis, 929 F.2d at 825, where the perceived threat was “short-

lived” and where the prisoner’s exposure to that threat “lasted less than twenty-four hours,” here,

Smith alleged that, over the span of roughly two weeks, Kyle would threaten him with physical

violence. D. 86 ¶¶ 1, 10, 12. Smith also alleged circumstances highlighting the credibility of

Kyle’s threats and the gravity of Smith’s fear that he would be assaulted in his sleep. D. 86 ¶¶ 9,

10, 13. It is, therefore, at least plausible that Smith may have endured “fear of constitutional

dimensions” such that dismissal at this stage would be premature. See Purvis, 929 F.2d at 825.

Although the Commonwealth Defendants do not focus on the subjective prong of Farmer,

Defendants Cretzu and Daou argue that Smith’s allegations do not support a reasonable inference

that either of them attended the alleged meeting on April 9, 2021 or were otherwise aware of the

alleged threats. See D. 117 at 6. Smith, however, alleges that the Treatment Team included both

Cretzu and Daou. See D. 86 ¶¶ 10, 12. Smith further alleges that he raised his concerns regarding

Kyle “at more than one [t]eam [m]eeting,” id. ¶ 10, and that he left voicemails for Daou as to same.

Id. ¶ 11. He also expressly alleges that he was seen by Cretzu and Daou on April 9, 2021. Id.

¶ 12. Assuming the truth of these allegations as the Court must at this juncture, he has sufficiently

alleged that Defendants knew of Kyle’s threats and the substantial risk to Smith’s safety. See Leite

v. Bergeron, 911 F.3d 47, 52 (1st Cir. 2018). Having plausibly alleged a failure-to-protect claim

under the Farmer standard, as well as the Youngberg standard, the Court proceeds to consider the

Commonwealth Defendants’ assertion of qualified immunity.

C. Qualified Immunity

The Commonwealth Defendants argue that, assuming Smith plausibly has alleged failure-

to-protect claims, they are entitled to qualified immunity. The doctrine of 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). Because “qualified immunity doctrine

provides defendant public officials an immunity from suit and not a mere to defense to liability,”

it is to be “resolved at the earliest possible stage in litigation.” Maldonado v. Fontanes, 568 F.3d

262, 268 (1st Cir. 2009); see Eves v. LePage, 927 F.3d 575, 583 n.5 (1st Cir. 2019). The First

Circuit has recognized, however, that “[i]t is not always possible to determine before any discovery

has occurred whether a defendant is entitled to qualified immunity,” and, thus, “courts often

evaluate qualified immunity defenses at the summary judgment stage.” Giragosian v. Bettencourt,

614 F.3d 25, 29 (1st Cir. 2010).

The Supreme Court has articulated a two-part test to determine whether qualified immunity

applies: (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. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Because Smith

plausibly has alleged failure-to-protect claims under Youngberg and Farmer, the Court turns to the

second prong, considering whether the right at issue was “clearly established” at the time of the

alleged misconduct.

As to the “clearly established” prong, the First Circuit has identified two essential

considerations. “One aspect of the analysis focuses on the clarity of the law at the time of the

alleged civil rights violation.” Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009). “The

other aspect focuses more concretely on the facts of the particular case and whether a reasonable

defendant would have understood that his conduct violated the plaintiffs’ constitutional rights.”

Id. At bottom, “the salient question is whether the state of the law at the time of the alleged

violation gave the defendant fair warning that his particular conduct was unconstitutional.” Id.

(citing Hope v. Pelzer, 536 U.S. 730, 741 (2002)).

The law underlying Smith’s failure-to-protect claim was clear at the time of the alleged

misconduct. For instance, in Youngberg, 457 U.S. at 314, decided in 1982, the Supreme Court

recognized “for the first time the substantive rights of involuntarily committed [developmentally

disabled] persons under the Fourteenth Amendment to the Constitution.” As previously discussed,

under Youngberg, substantive due process is violated where the “decision by the professional is

such a substantial departure from accepted professional judgment, practice, or standards as to

demonstrate that the person responsible actually did not base the decision on such a judgment.”

Id. at 315–16. The First Circuit has recognized that the application of Youngberg is premised on

the institutional setting, rather than the identity of the person. See Cameron, 990 F.2d at 20; see

also Davis v. Rennie, 264 F.3d 86, 98 (1st Cir. 2001) (recognizing that a failure-to-protect claim

may arise in the involuntary commitment setting due to the circumstances of confinement).

Even assuming arguendo that the law under Youngberg was not clear at the time of the

alleged misconduct, the law surrounding failure-to-protect claims under Farmer is well established.

See Burrell, 307 F.3d at 7–8. Although some federal courts have suggested that threats of violence

may never be enough to sustain an Eighth Amendment claim, as discussed above, there is ample

guidance from other federal circuit courts, including the First Circuit, acknowledging the

possibility of extreme cases where threats of violence resulting in psychological harm may be

actionable. See Purvis, 929 F.2d at 825; see also Hudspeth, 584 F.2d at 1348; Doe, 110 F.3d at

524; Irving, 519 F.3d at 449–50; Chandler, 145 F.3d at 1360–61.

Turning to the facts of this particular case, the Court is unable to determine at this stage

“whether a reasonable defendant would have understood that his conduct violated [Smith’s]

constitutional rights” under Youngberg and Farmer. The application of either constitutional

standard in this case would require the Court to resolve factual questions best left for the summary

judgment stage. See Irish v. Maine, 849 F.3d 521, 523 (1st Cir. 2017) (emphasizing that, although

issues of substantive due process and qualified immunity can be decided at the motion to dismiss

stage, “they are often decided after some factual development or at summary judgment”); Harnois

v. Univ. of Mass. at Dartmouth, No. 19-10705-RGS, 2019 WL 5551743, at *8 n.7 (D. Mass. Oct.

28, 2019) (noting that “[w]ithout a more comprehensive and balanced fleshing out of the facts, any

decision on the issue of qualified immunity would be premature”). For example, it remains to be

seen whether Kyle’s threats against Smith were severe enough to indicate that Defendants’ conduct

amounted to a substantial departure of professional standards under Youngberg (the contours of

which are also unclear on this record, see Youngberg, 457 U.S. at 323 (explaining that “[i]n an

action for damages against a professional in his individual capacity . . . the professional will not

be liable if he was unable to satisfy his normal professional standards because of budgetary

constraints; in such a situation, good-faith immunity would bar liability”) or that they were

“objectively, sufficiently serious” under Farmer. In light of this undeveloped record, and accepting

the truth of Smith’s allegations, the Court cannot determine whether the Commonwealth

Defendants are entitled to qualified immunity and, thus, declines to dismiss the amended complaint

on such grounds. See Maldonado, 568 F.3d at 271 (affirming denial of qualified immunity at the

motion to dismiss stage and declining to credit defendant’s “version of what happened” which was

“inconsistent with the factual allegations of the complaint”).7

D. Insufficient Service Under Rule 12(b)(5)

The Court proceeds to consider Defendants’ arguments for dismissal pursuant to Fed. R.

Civ. P. 12(b)(5). The rules governing service of process as to Defendants Hannon, Maker, Kemp

and Daou, who appear to reside within the United States, are set forth in Rule 4(e). See D. 96;

D. 98; D. 99; D. 101. Rule 4(e) permits a plaintiff to effect service on an individual within a

judicial district of the United States by: (1) “following state law for serving a summons in an

action brought in courts of general jurisdiction in the state where the district court is located or

where service is made,” here, Massachusetts, Fed. R. Civ. P. 4(e)(1); (2) “delivering a copy of the

summons and of the complaint to the individual personally,” Fed. R. Civ. P. 4(e)(2)(A);

(3) “leaving a copy of each at the individual’s dwelling or usual place of abode with someone of

suitable age and discretion who resides there,” Fed. R. Civ. P. 4(e)(2)(B); or (4) “delivering a copy

of each to an agent authorized by appointment or by law to receive service of process,” Fed. R.

7 The Court’s ruling at this nascent point in the litigation “on qualified immunity based on

the allegations in the complaint do not preclude the defendants from raising this defense at a later

stage of this litigation, on a more developed factual record.” Sanchez v. Pereira-Castillo, 590 F.3d

31, 52 n.15 (1st Cir. 2009).

Civ. P. 4(e)(2)(C). If a plaintiff is proceeding in forma pauperis under 28 U.S.C. § 1915, the court

must order the United States Marshals Service to serve the defendants. See Fed. R. Civ. P. 4(c)(3).

Defendant Cretzu is situated differently, as she apparently resides in Germany. See D. 148.

Rule 4(f) permits service to such defendants by various means which were not attempted here:

(1) “by any internationally agreed means of service that is reasonably calculated to give notice,

such as those authorized by the Hague Convention on the Service Abroad of Judicial and

Extrajudicial Documents,” Fed. R. Civ. P. 4(f)(1); (2) “if there is no internationally agreed means,

or if an international agreement allows but does not specify other means, by a method that is

reasonably calculated to give notice,” Fed. R. Civ. P. 4(f)(2); or (3) “by other means not prohibited

by international agreement, as the court orders,” Fed. R. Civ. P. 4(f)(3).

Under Rule 4(m), “[i]f a defendant is not served within 90 days after the complaint is filed,

the court—on motion or on its own after notice to the plaintiff—must dismiss the action without

prejudice against that defendant or order that service be made within a specified time.” Where,

however, a plaintiff has shown “good cause” for the failure to effectuate service, “the court must

extend the time for service for an appropriate period.” Id. In determining whether a prisoner

proceeding in forma pauperis has shown “good cause” arising from improper service through the

United States Marshals Service (“USMS”), the First Circuit has cautioned district courts against

placing the onus on the prisoner to provide the defendants’ home addresses, particularly where the

plaintiff has provided full names and a business address. See Baez v. Connelly, 478 F. App’x 674,

676 (1st Cir. 2012) (unpublished); see also Laurence v. Wall, 551 F.3d 92, 94 (1st Cir. 2008). “A

prisoner may not have access to an arresting officer’s residential address; serious security concerns

might arise if a prisoner were able to obtain that information.” Baez, 478 F. App’x at 676. Other

courts in similar cases have explained that if the USMS can obtain the defendants’ addresses

through “reasonable effort,” but did not do so, the failure to effectuate service constitutes “good

cause” under Rule 4(m). See Richardson v. Johnson, 598 F.3d 734, 739–40 (11th Cir. 2010);

Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir. 1995); see also However v. Hampton, No.

4:14cv273-WS/CAS, 2015 WL 13849984, at *3 (N.D. Fl. Aug. 7, 2015) (ordering counsel for

state department of corrections to provide, in confidence, any addresses for defendants on record

to the USMS); Jones v. Dovery, 06-1979 LAB (AJB), 2008 WL 276584, at *2 (S.D. Cal. Jan. 30,

2008) (redirecting USMS to effect service of the summons and the amended complaint upon

defendant whose actual address had been made known to the USMS in a confidential

memorandum by the Deputy Attorney General).

Here, the Court granted Smith’s motion for leave to proceed in forma pauperis and noted

that “he may elect to have the United States Marshals Service complete service with all costs of

service to be advanced by the United States.” D. 52. Summons issued as to the amended

complaint, D. 86, on February 21, 2023, and Smith was given 60 days to effectuate service. D. 83.

Smith elected to have the USMS to deliver copies of the summons and amended complaint; Smith

completed Form USM-285, listing the WRCH address as the address for serving Defendants

Daou, Hannon, Maker and Kemp, and signed the process receipts on March 2 and 3, 2023 for

delivery to Defendants. D. 96; D. 98; D. 99; D. 101. The USMS delivered the summons and

complaint to the WRCH address, and service was received as to Daou, Maker and Kemp by

Sergeant Anthony Langile of the Massachusetts Department of Mental Health. D. 96; D. 98;

D. 99. The USMS was unable to deliver the summons and complaint to Hannon because she “does

not work at this location.” D. 101.

Service was not properly effectuated as to Defendants Daou, Hannon, Maker and Kemp.

See Zaragoza v. Ocean Spray Cranberries, Inc., No. CV 19-10650-JGD, 2020 WL 13824756, at

*4 (D. Mass. Mar. 11, 2020) (noting that “neither the federal rules nor the Massachusetts rules

permit service upon an individual by certified mail at [their] place of employment”) (quoting

Mukherjee v. Blake, No. 12-11381-FDS, 2013 WL 2299521, at *2 (D. Mass. May 24, 2013)).

Moreover, Sergeant Anthony Langile was not authorized to accept service on behalf of Daou,

Maker and Kemp. See D. D. 113-1 ¶ 4; 113-3 ¶ 3; D. 117-1 ¶ 5. Because Smith is a prisoner

proceeding in forma pauperis, however, “good cause” for the failure to effectuate service is shown

if the USMS “likely would have been able to accomplish service of process pursuant to Rule

4(e)(2)(A)” given the information supplied by Smith. See Baez, 478 F. App’x at 676. Here, Smith

provided the USMS with the full names and either the current (or former) place of work as to

Defendants Daou, Hannon, Maker and Kemp, and there is no indication from the record whether,

based on these steps, additional steps were taken to identify the appropriate addresses. See id.

Without a showing of “reasonable efforts” to identify addresses where Daou, Hannon, Maker and

Kemp may properly be served, “good cause” exists for extending the time for Smith to serve

Defendants Daou, Hannon, Maker and Kemp. See Richardson, 598 F.3d at 740; Graham, 51 F.3d

at 713; see also Hudson v. MacEachern, 94 F. Supp. 3d 59, 72 (D. Mass. 2015) (directing the Clerk

to reissue summons for defendants and ordering defense counsel to provide “last known residential

address” for defendants to the USMS because “Plaintiff is not in a position to know a present

address at which to serve these Defendants”).

With respect Defendant Cretzu, however, the USMS has indicated that it is unable to serve

her because she is not in the United States. See D. 148. Because there have been no efforts by

Smith to serve Cretzu under Rule 4(f), the Court concludes that there is no good cause to extend

the deadline for service of same. Thus, dismissal without prejudice is appropriate as to Cretzu.

V. Conclusion

For the foregoing reasons, the Court ALLOWS the Commonwealth Defendants’ motion to

dismiss as to Santana only but otherwise DENIES the motion. D. 112. As to the motion to dismiss

brought by Defendants Daou and Cretzu, the Court DENIES the motion as to Daou and ALLOWS

the motion as to Cretzu. D. 116. Pursuant to Fed. R. Civ. P. 4(m), the Court dismisses the action

against Cretzu without prejudice.

As to all remaining Defendants (Hannon, Maker, Kemp and Daou), the Court ORDERS

the following: the Clerk shall reissue summons for Defendants Hannon, Maker, Kemp and Daou;

defense counsel shall have until March 25, 2024 to provide, in confidence, the last known

residential addresses of these Defendants to the USMS, to the extent counsel can ascertain this

information (defense counsel shall file a one-page notice to the Court when they have done so and

this notice need not contain the addresses that they provided to the USMS confidentially); once

provided with this response, the USMS shall use reasonable efforts to determine if Hannon, Maker,

Kemp and Daou can be located and then effectuate service under Fed. R. Civ. P. 4(e), with all

costs of service advanced by the United States; the USMS shall protect the confidentiality of any

address provided by defense counsel and shall not disclose any information provided or obtained

concerning Defendants on any document filed with the Court; and USMS shall file a response to

this Order on or before April 30, 2024, advising of its efforts to serve these Defendants or, in the

alternative, shall file an executed summons.

Alternatively to the above, “if these Defendants wish to retain present defense counsel to

represent them in this action, counsel may make a filing with this Court within thirty days agreeing

to accept service on [their] behalf.” See Hudson, 94 F. Supp. 3d at 72.

So Ordered.

/s Denise J. Casper

United States District Judge