Hullum v. Mici

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

)

LANCE HULLUM, )

)

Plaintiff, )

)

C.A. No. 23-10082-PBS

v. )

)

CAROL MICI, et al., )

)

Defendants. )

)

MEMORANDUM AND ORDER

March 26, 2025

Saris, D.J.

In this action, pretrial detainee Lance Hullum, who is

currently confined at Plymouth County Correctional Facility,

claims, inter alia, that when he was incarcerated as a pretrial

detainee at the Souza-Baranowski Correctional Center (“SBCC”),

certain correctional officers called him a “pedophile,” “chicken

hawk,” and “child molester” in front of other inmates with the

intent to incite the prisoners to injure him.1 Now pending

before the Court are the defendants’ motion for partial summary

judgment based on Hullum’s alleged failure to exhaust his

administrative remedies, Dkt. 187, and motion for failure to

1 On May 12, 2024, Hullum was transferred from SBCC to the

Plymouth County Correctional Facility. Dkt 132.

state a claim upon which relief may be granted, Dkt. 158.2 For

the reasons below, the Court DENIES the motion for partial

summary judgment without prejudice and DENIES the motion to

dismiss with regard the matters in that motion that were not

previously adjudicated.3

I. The Amended Complaint

The operative pleading in this matter is amended complaint

filed on January 19, 2024 (“Amended Complaint”). ECF 95.4 The

Amended Complaint concerns alleged events that occurred after

the commencement of this action. The remaining defendants in

the Amended Complaint are four SBCC correctional officers:

Stephen Adams, Taylor Landry, Steven Clark, and Brendon Metcalf.

2 On July 30, 2024, the Court allowed in part the motion to

dismiss by dismissing all claims for injunctive relief, all

claims against the Department of Correction, all official

capacity claims, and all individual claims against defendants

Mici and Zoldak. Dkt. 180. With regard to dismissal based on

failure to exhaust administrative remedies, the Court converted

the motion into one for partial summary judgment and gave the

parties the opportunity to submit additional briefings. Id.

What remains to be adjudicated in the motion to dismiss are the

defendants’ arguments that (1) Hullum has not plausibly pleaded

that the remaining defendants—four correctional officers—

violated his federal rights; and (2) the defendants are entitled

to qualified immunity.

3 The Court writes for the parties and assumes the reader’s

familiarity with this action.

4 The Court denied Hullum’s subsequent motions to further amend

his complaint to restore the claims he had previously asserted

concerning events prior to November 1, 2023. ECF Nos. 121, 127,

140, 142, 151, 155.

According to Hullum, on November 1, 2023, he was moved to

the H-2 Unit of SBCC, where the defendants “called plaintiff a

pedophile; child molester, snitch in front of other inmates, in

violation of [his] 1st and 8th Amendment Rights.” Amend Compl.

Dkt. 95, ¶ 11. Hullum claims this conduct took place on eight

days in November 2023, six days in December 2023, and on January

6, 2024. Id. Hullum further alleges that the defendants

“incite other inmates by continuously calling out”5 his name “in

retaliation for exercising his First Amendment right to file

grievances,” which is “protected conduct[].” Id. ¶ 12. Hullum

claims that the defendants “have made threats to kill plaintiff

and have plaintiff killed by other people [since] November 1,

2023.” Id. ¶ 13. In the portion of the pleading titled “Claims

for Relief,” Hullum asserts that “[t]he action of [the

defendants] calling plaintiff a snitch, pedophile, child

molester [and] chicken hawk in front of other inmates is a very

serious advers[e] action in retaliation for plaintiff filing

grievances on correctional officers for their misconduct.” Id.

¶ 17.

Hullum attached to his Amended Complaint 25 informal

grievances that he filed during the relevant time between

5 Based on Hullum’s allegations in the informal grievances he

attached to the Amended Complaint, the Court assumes that “calling

out” refers to use of a loudspeaker.

November 12, 2023 and January 6, 2024. Dkt. No. 95-1 at 1-25.

In these informal grievances, Hullum alleged, inter alia, that:

(1) Metcalf called him a rapist over the loudspeaker, called him

a pedophile and a chicken hawk in front of other inmates, and

threated to have a jail house informant fight him, id. at 15,

16, 24; (2) Landry stated in front of other inmates that he was

in custody because he had raped children, id. at 7; Clark told

another inmate that he is a child molester and a chicken hawk,

and that someone in the unit “needs to murder him,” id. at 3;

and (4) Adams called him a pedophile over the loudspeaker, id.

at 13. Each of these informal grievances show that the document

was returned to Hullum with a notation that he should file a

formal grievance because informal grievances are not required

for allegations of staff misconduct.

II. Motion for Summary Judgment: Exhaustion of Administrative

Remedies

Under the Prison Litigation Reform Act, a prisoner cannot

bring a federal lawsuit concerning prison conditions “until such

administrative remedies as are available are exhausted.” 42

U.S.C. § 1997e(a). In their motion to dismiss for failure to

state a claim upon which relief may be granted, the defendants

argued that this action is subject to dismissal because Hullum

had not complied with the exhaustion requirement before bringing

this action.6 The Court converted the issue to one for summary

judgment as failure to exhaust is an affirmative defense and

Hullum’s alleged failure to exhaust available administrative

remedies was not clear from the face of the Amended Complaint.

As set forth below, the defendants contend, and Hullum does

not appear to deny, that he did not file a “formal” grievance

concerning the claims in the amended complaint. The Court must

therefore consider whether Hullum exhausted “available”

administrative remedies. The Court must deny the motion for

partial summary judgment unless there the defendants show there

is no genuine issue of material fact concerning the issue of

exhaustion and that the defendants are entitle to judgment as a

matter of law.

In Ross v. Blake, 578 U.S. 632, 642 (2016), the Supreme

Court provided a framework for considering whether a stated

administrative remedy is “available,” or, in other words,

whether a grievance procedure is “‘capable of use’ to obtain

‘some relief for the action complained of.’” Ross v. Blake, 578

U.S. 632, 642 (2016) (quoting Booth v. Churner, 532 U.S. 731,

738 (2001)). At issue was whether the grievance procedure

6 Where, as here, the operative pleading concerns events that

occurred after the filing of the original complaint, “the

plaintiff need only show that the new claims were exhausted

before tendering the amended complaint to the clerk for filing.”

Akhtar v. Mesa, 698 F.3d 1202, 1210 (9th Cir. 2012).

described in the inmate’s handbook was “available” with regard

to a claim of an assault by a staff member even though wardens

had routinely denied said grievances as procedurally improper in

light of parallel investigations by an internal investigative

unit.

In deliberating this question, the Court identified “three

kinds of circumstances in which an administrative remedy,

although officially on the books, is not capable of use to

obtain relief.” Id. at 643. “First, . . . an administrative

procedure is unavailable when (despite what regulations or

guidance materials may promise) it operates as a simple dead

end—with officers unable or consistently unwilling to provide

any relief to aggrieved inmates.” Id. Examples of this lack of

availability include when “a prison handbook directs inmates to

submit their grievances to a particular administrative office—

but in practice that office disclaims the capacity to consider

those petitions,” or when “administrative officials have

apparent authority, but decline ever to exercise it.” Id.

Second, “an administrative scheme might be so opaque that it

becomes, practically speaking, incapable of use.” Id. “In this

situation, some mechanism exists to provide relief, but no

ordinary prisoner can discern or navigate it.” Id. at 643-44.

Third, an administrative remedy is not available “when prison

administrators thwart inmates from taking advantage of a

grievance process through machination, misrepresentation, or

intimidation.” Id. at 644. Applying this framework, the

Supreme Court remanded the case “for further consideration of

whether [the plaintiff] had ‘available’ remedies to exhaust.”

Id. at 648.7

Using the standards set forth in Ross, this Court finds

that genuine issues of material fact concerning the availability

of the grievance process exist. Defendants contend that Hullum

failed to exhaust his administrative remedies because he never

filed a formal grievance against any Defendant for harassing or

calling him derogatory names. Dkt. 187 (referencing affidavit

of SBCC Institutional Grievance Coordinator, Dkt. 105-6).

Hullum does not take a contrary position, but he represents that

Commissioner Mici and Correction Officer Tocci had blocked his

access to the formal grievance process and that, at some point,

he was only permitted to bring informal grievances. Dkt. 194

¶ 3; Dkt. 195-3. Because “[e]vidence of the appropriate

official’s refusal to give a prisoner an available form ‘is

sufficient to permit a finding’ that the administrative remedies

were not available,” Gooch v. Young, 24 F.4th 624, 627 (7th Cir.

2022) (quoting Hill v. Snyder, 817 F.3d 1037, 1041 (7th Cir.

7 After remand, the parties filed a stipulation of dismissal.

See Blake v. Ross, C.A. No. 09-02367, Dkt. 191 (D. Md. Oct. 11,

2017).

2016)), there is a genuine issue of material fact as to what

administrative remedies were available. See also Lamb v.

Kendrick, 52 F.4th 286, 297 (6th Cir. 2022) (finding that

genuine issue of material fact existed as to exhaustion where

plaintiff swore in an affidavit that prison official refused to

provide him a grievance form, and reversing district court’s

grant of summary judgment in favor of the defendants based on

failure to exhaust administrative remedies).

Further, there is a genuine issue of material fact as to

whether filing a formal grievance was a vehicle by which Hullum

could obtain some sort of relief. Hullum provided a letter in

which Superintendent Gray stated that that a certain complaint

Hullum had made concerning “misconduct by staff” was “non-

grievable.” Dkt. 197-1. The Court has reviewed Superintendent

Gray’s explanation of that letter and credits his statement that

the Informal Complaint Coordinator had instructed Hullum to file

a formal grievance. Dkt. 201. Notwithstanding, at the summary

judgment stage, Gray’s statement that complaints about

misconduct by staff are “nongrievable” makes the administrative

scheme opaque and confusing. The Court concludes there is a

genuine issue of material fact as to the availability of relief

through the formal grievance process under the alleged

circumstances.8

For those reasons, the Court DENIES the motion for partial

summary judgment. However, this denial is without prejudice to

renewal after both parties have been able to engage in

discovery.

III. Motion To Dismiss: Failure to State a Claim for Relief

To state a claim upon which relief may be granted, a

complaint must include “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). The plaintiff’s obligation to provide the grounds of

his claim “requires more than labels and conclusions.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The

plaintiff’s well-pled factual allegations must “suffice to

‘raise a reasonable expectation that discovery will reveal

evidence’ . . . and ‘allo[w] the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.’” Matrixx Initiatives, Inc. v. Siracusano, 563 U.S.

8 The Court also notes Massachusetts law requires that all

allegations of employee misconduct, whether or not set forth in

a grievance, must “filed and reviewed administratively pursuant

to the 103 DOC 522: Internal Affairs Unit Policy.” 103 C.M.R.

491.09(2), (5)(b). An Institution Grievance Coordinator is not

required to immediately investigate a grievance that has been

referred to the Internal Affairs Unit. See 103 C.M.R.

§ 491.15(3)(d).

27, 46 (2011) (alteration in original) (quoting Twombly, 550

U.S. at 544; Iqbal v. Ashcroft, 556 U.S. 662, 678 (2009).

Because Hullum is representing himself, the Court construes the

Amended Complaint liberally, holding it to “less stringent

standards than formal pleadings drafted by lawyers.” Erickson

v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle

v. Gamble, 429 U.S. 97, 106 (1976)).

A. Failure to Protect

The Eighth Amendment prohibits the imposition of “cruel and

unusual punishments,” U.S. Const. amend. VIII.9 “Prison

officials must take reasonable measures to guarantee inmates

safety from attacks by other inmates,” and “[a]n inmate may sue

a correctional facility under the Eighth Amendment for failure

to afford adequate protection to inmates from attack by other

inmates.” Calderon-Ortiz v. LaBoy-Alvarado, 300 F.3d 60, 63–64

(1st Cir. 2002). “Nevertheless, not every injury a prisoner

suffers at the hands of another prisoner is actionable.” Id. at

64. “Prison officials violate the constitutional conditions of

confinement only where two requirements are met.” Id. In a

failure to protect case, the first requirement is that “the

9 “Pretrial 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.” Burrell v. Hampshire Cnty., 307 F.3d

1, 7 (1st Cir. 2002).

conditions of incarceration pose a substantial risk of serious

harm.” Id. The second requirement is that the defendant acted

with “‘deliberate indifference’ to an inmate’s health or

safety.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834

(1994)).

“Deliberate indifference entails something more than mere

negligence.” Id. It is a subjective standard that is met “only

if the official ‘knows of and disregards an excessive risk to

inmate health or safety.’” Id. (quoting Farmer, 511 U.S. at

837). “[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.

Here, in alleging that the Defendants purposefully called him a

“child molester,” “pedophile,” or “chicken hawk” in front of

other inmates, Hullum he has sufficiently pled a violation of

Eighth Amendment rights. He has plausibly pled that the

defendants’ alleged misconduct placed him at an objectively

serious risk of harm. See, e.g., Dongarra v. Smith, 27 F.4th

174, 179 (3d Cir. 2022) (where prison officials had required the

prison plaintiff to wear a T-shirt that identified him as a sex

offender, the plaintiff “faced an objectively serious risk of

harm”).10 Hullum has also plausibly pled that the defendants

10 The defendants mistakenly imply that this case supports their

position that Hullum has failed to state a claim upon which

were subjectively deliberately indifferent to this risk. He

claims that the defendants sought to “incite” other inmates

against him and that made threats to have other people kill him.

Those allegations, especially when coupled with the oft-

acknowledged dangers sex offenders face in a prison setting,

see, e.g., Dongarra, 27 F.4th at 179 (“It is obvious that

branding [the prisoner plaintiff] a sex offender could make him

a target of prison violence.”); Moore v. Mann, 823 Fed. App’x

92, 96 (7th Cir. 2020) (per curiam) (noting that “that the sex

offender label is stigmatizing in the prison context, and that

prison norms may call for the assault of sex offenders”),

“suffice to ‘raise a reasonable expectation that discovery will

reveal evidence.’” Matrixx Initiatives, 563 U.S. at 46 (quoting

Twombly, 550 U.S. at 544).11

That the defendants’ alleged misconduct did not lead to an

actual assault on Hullum does not defeat an Eight Amendment

relief may be granted. Dkt. 159 at 12. In Dongarra, the court

found that the federal prisoner plaintiff had sufficiently

alleged an Eighth Amendment violation (even though he had not

been assaulted), but that he could not recover damages because

the damages remedy recognized in Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), had not

been extended to cover the alleged facts. Dongarra, 27 F.4th at

179-81.

11 See also Kedra v. Schroeter, 876 F.3d 424, 442 (3d Cir. 2017)

(“[W]e have regularly relied on the obviousness of risk as a

permissible and highly relevant basis from which to infer actual

knowledge [of risk].”).

claim. See Moore, 823 Fed. App’x at 96 (“The defendants argue

that [the plaintiff] has not shown that he was assaulted or

suffered any harm. But an inmate need not wait until an actual

attack occurs to obtain relief.”); Benefield v. McDowell, 241

F.3d 1267, 1272 (10th Cir. 2001) (inmate allegations that

officer labeled him a snitch in front of other inmates, even

though inmate had not in fact been assaulted, stated a claim

under Eighth Amendment).

B. Qualified Immunity

“Qualified immunity shields federal and state officials

from money damages unless a plaintiff pleads facts showing (1)

that the official violated a statutory or constitutional right,

and (2) that the right was ‘clearly established’ at the time of

the challenged conduct. Ashcroft v. al-Kidd, 563 U.S. 731, 735

(2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

The defendants move to dismiss based on qualified immunity but

do not advance any developed argument on that point. Dkt. 159.

For that reason alone, the Court may deny the motion to dismiss

the case based on qualified immunity.

Further, nothing in the Amended Complaint suggests that the

issue of qualified immunity can be resolved at the pleading

stage under the alleged facts. Hullum has adequately pled that

defendants were deliberately indifferent to an objectively

serious risk of harm at the hands of other inmates, and it has

long been clearly established that prisoners have a right under

the Eighth Amendment to be protected from violence at the hands

of other inmates. See Farmer v. Brennan, 511 U.S. 825, 834

(1994) (finding that, where “transsexual” inmate who

“project[ed] feminine characteristics,” was assaulted and raped

after being placed in the general population, prison officials

could be liable for failing to protect the inmate, and remanding

for further consideration of the defendants’ subjective

knowledge)12; see also, e.g., Wilk v. Neven, 956 F.3d 1143, 1150

(9th Cir. 2020) (reversing district court’s grant of summary

judgment based on qualified immunity in failure-to-protect

claim, stating that “a prisoner’s right to be protected from

violence at the hands of other inmates . . . has been clearly

established since the Supreme Court’s decision in Farmer v.

Brennan, in 1994”); Facey v. Dickhaut, 91 F. Supp. 3d 12, 35 (D.

Mass. 2014 (concluding that, where genuine issue of material

fact existed as to prison officials’ knowledge of risk of danger

12 In Farmer, the Court found that remand was appropriate because

“the District Court may have mistakenly thought” that

plaintiff’s admitted failure to express any concern about his

safety entitled the prison officials to judgment as a matter of

law on the issue of their subjective knowledge. Id. at 848.

The Court stated that the prisoner could establish the

defendants’ awareness of the risk based on other evidence and

gave as an example a document in the record in which the

defendants admitted that the prisoner was likely to experience

sexual pressure in the prison because of his “youth and feminine

appearance.” Id.

plaintiff faced in new housing unit, summary judgment based on

qualified immunity was not merited because “it was clearly

established that prison officials violate a prisoner's Eighth

Amendment rights when they knowingly place him at a substantial

risk of attack from other inmates”); Cordero v. Dickhaut, C.A.

No. 11-10098-FDS, 2014 WL 6750064, at *8 (D. Mass. Sept. 19,

2014) (concluding that, where genuine issue of material fact

existed as to prison official’s knowledge of risk of danger

plaintiff faced from his cellmate, summary judgment based on

qualified immunity was not merited because “[i]t is well-

established that “prison officials have a duty under the 8th and

14th amendments to protect prisoners from violence at the hands

of other prisoners” (quoting Cortes–Quinones v. Jimenez–

Nettleship, 842 F.2d 556, 558 (1st Cir.1988))).

IV. Conclusion

In accordance with the foregoing, the Court hereby orders:

1. The motion for partial summary judgment, Dkt. 187, is

DENIED without prejudice.

2. The motion to dismiss, Dkt. 158, is DENIED.

SO ORDERED.

/s/ Patti B. Saris

PATTI B. SARIS

UNITED STATES DISTRICT JUDGE