Calderon v. Dickhaut et al

Filing 5

Judge Joseph L. Tauro: MEMORANDUM AND ORDER entered: Plaintiff's Motion for Leave to Proceed in forma pauperis (Docket No. 2) is ALLOWED and the filing fee is assessed pursuant to 28 U.S.C. § 1915(b); Plaintiff's Motion to Waive Filing Fees and Costs (Docket No. 3) is ALLOWED to the extent that he is permitted to proceed in forma pauperis in accordance with 28 U.S.C. § 1915(b); however, the motion is DENIED to the extent that Plaintiff seeks a complete waiver of the filing fe es and costs in this action; and Within 42 days from the date of this Memorandum and Order, Plaintiff shall demonstrate good cause in writing why this action should not be dismissed, addressing the legal impediments to his claim(s). Plaintiff also shall file an Amended Complaint curing the pleading deficiencies with respect to each of the named Defendants and/or adding or substituting the proper Defendants. (PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ANTONIO L. CALDERON,
Plaintiff,
v.
THOMAS DICKHAUT,
SUPERINTENDENT, SOUZA
BARANOWSKI CORRECTIONAL
CENTER, ET AL.
Defendants.

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C.A. No. 11-11164-JLT

MEMORANDUM AND ORDER
TAURO, D.J.
BACKGROUND
On June 17, 2011, Plaintiff Antonio L. Calderon (“Calderon”), a prisoner in custody at
the Souza Baranowski Correctional Center (“SBCC”) in Shirley, Massachusetts, filed this civil
rights action (with exhibits) against three Defendants: (1) Thomas Dickhaut (“Dickhaut”),
Superintendent of SBCC; (2) Osvaldo Vidal (“Vidal”), former Director of Security at SBCC and
current Deputy Superintendent of Operations; and (3) Anthony Mendonsa (“Mendonsa”),
Deputy Superintendent of Classifications. Calderon’s claims arise out of a July 9, 2009 assault
in the prison gym, during which he alleges he was seriously injured by two fellow inmates (Gary
Bons (“Bons”) and Dennis Parham (“Parham”)), one of whom used a shank. The claims
essentially boil down to the following: (1) Defendants instituted a double-bunking policy which
created a violent atmosphere in the prison facility, leading to his assault; (2) errors in his
classification, resulting in his being placed in a maximum-security facility rather than a mediumsecurity facility (where he contends he should have been placed), led to the assault; and (3)
Defendants failed to intervene to protect him from assault and abuse by inmates Bons and
Parham.

To support the failure to intervene claims, Calderon alleges three incidents. First, he
alleges that he told Officer Burke (who was not named as a Defendant) that he had been
threatened by other inmates in his job assignment group, including one of the inmates who
subsequently attacked him (Bons). In response, Burke “told the plaintiff to continue working
and not to worry[,] that he would take care of it[,]” but “no action was tak[en] in this matter[.]”
Compl. at 6. He also alleges that Gary Bons is well known by the staff for his use of weapons.
Id. at 11. Second, he alleges that when he was attacked, staff responded within two minutes, but
allowed the fight to continue for seven to nine minutes “[w]hile officers watched at the door
giving verbal orders/commands only[.]” Id. Third, he alleges that, less than two months after
Calderon was attacked by two inmates, prison staff exposed him to potential further attack by
allowing one of his attackers to enter the visiting room while Calderon was there visiting with
family. Id. at 9.
A Department of Correction incident report shows Calderon had numerous puncture
wounds as a result of the July 2009 attack. Exhibits, Docket No. 1-1 at 4. Calderon alleges he
still suffers from the injuries incurred during the attack (“He gets headaches, nightmares, and
painful dis-comfort (sic) from stab wounds. He is constantly afraid for his life, and suffers from
nerve damage and depression.”). Compl. at 11.
He brings his claims under 42 U.S.C. § 1983, asserting that the Defendants’ actions and
inactions violated his rights under the Eighth and Fourteenth Amendments. Id. at 13. He also
asserts a state law claim against the Defendants, claiming that Defendants’ double-bunking
policy violates Mass. Gen. Laws ch. 127, § 22. Id. at 4.
Along with the Complaint, Calderon filed two motions seeking to waive the filing fee: a
Motion for Leave to Proceed in forma pauperis (Docket No. 2) and a Motion to Waive Filing

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Fees and Court Costs (Docket No. 3).
DISCUSSION
I.

The Motion for Leave to Proceed In Forma Pauperis; The Motion to Waive Filing Fees
and Costs
Upon review of Calderon’s financial affidavit and his prison transaction account

summary, this Court finds that he has demonstrated sufficiently that he lacks funds to pay the
$350.00 filing fee for this action. Accordingly, Calderon’s Motion for Leave to Proceed in
forma pauperis (Docket No. 2) is ALLOWED; his Motion to Waive Filing Fees and Costs
(Docket
No. 3) is ALLOWED to the extent that he is permitted to proceed in forma pauperis in
accordance with 28 U.S.C. § 1915(b); however, the motion is DENIED to the extent that
Calderon seeks a complete waiver of the filing fees and costs in this action.
Since Calderon is a prisoner, he is obligated to make payments toward the filing fee
pursuant to 28 U.S.C. § 1915(b). In light of this, it is hereby Ordered that:
1.

Plaintiff Calderon is assessed an initial partial filing fee of $42.30 pursuant to 28
U.S.C. § 1915(b)(1)(A);1

2.

The remainder of the fee, $307.70, is to be assessed and collected in accordance
with 28 U.S.C. § 1915(b)(2).

1

A comparison of the average monthly deposits and average monthly balance over a
roughly six-month period (based on the prison account information submitted by Calderon)
showed the average monthly deposits figure was larger. As such, this assessment was based on a
manual calculation of 20% of the average monthly deposits over this period. This assessment is
without prejudice to Calerson seeking reconsideration provided he submit an alternative
calculation based on credible evidence in accordance with 28 U.S.C. § 1915(b). Further, this
assessment is made notwithstanding that Calderon may not have sufficient funds in his prison
account to pay the initial partial filing fee; the in forma pauperis statute provides the court “shall
assess, and, when funds exist, collect....” 28 U.S.C. § 1915(b)(1).
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II.

Screening of the Complaint
Because Calderon is a prisoner, his Complaint is subject to the provisions of the Prison

Litigation Reform Act. The Prison Litigation Reform Act of 1995 (“PLRA"), Title VIII of
Pub.L. 104-134, 110 Stat. 1321-1375 (1996), enacted several provisions which grant this Court
the authority to screen and dismiss prisoner complaints. See 28 U.S.C. § 1915 (proceedings in
forma pauperis);2 28 U.S.C. § 1915A (screening of suits against governmental officers and
entities).3
In reviewing this action, this Court liberally construes Calderon’s Complaint because he
is proceeding pro se. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S.
519, 520 (1972); Instituto de Educacion Universal Corp. v. U.S. Dept. of Education, 209 F.3d
18, 23 (1st Cir. 2000). Nevertheless, upon review of the Complaint, the Court finds his claims
are subject to dismissal because they fail to state cognizable federal claims against the named
defendants.

2

Section 1915 authorizes federal courts to dismiss actions in which a plaintiff seeks to
proceed without prepayment of fees if the action lacks an arguable basis either in law or in fact,
Neitzke v. Williams, 490 U.S. 319, 325 (1989), or if the action fails to state a claim on which
relief may be granted or seeks monetary relief against a defendant who is immune from such
relief. See 28 U.S.C. §1915(e)(2). In forma pauperis complaints may be dismissed sua sponte
and without notice under § 1915 if the claim is based on an indisputably meritless legal theory or
factual allegations that are clearly baseless. Id.; Denton v. Hernandez, 504 U.S. 25, 32-33
(1992).
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Section 1915A authorizes courts to review prisoner complaints in civil actions that seek
redress from a governmental entity or officers or employees of a governmental entity and to
dismiss the action regardless of whether or not the plaintiff has paid the filing fee, if it lacks an
arguable basis in law or fact, fails to state a claim, or seeks relief from a defendant immune from
such relief. 28 U.S.C. § 1915A.
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III.

Failure to State Plausible Federal Claim for Double-Bunking
Calderon alleges that the Defendants’ institution of a double-bunking policy created a

violent atmosphere in the prison, which led to his assault by inmates in the gym. This
conclusory allegation, however, does not set forth a plausible claim upon which relief may be
granted. The United States Court of Appeals for the First Circuit (“First Circuit”) has stated that
the policy of double-bunking is not a per se violation of due process. See Cote v. Murphy, 152
Fed. Appx. 6 (1st Cir. 2005) (unpublished decision citing Bell v. Wolfish, 441 U.S. 520, 541-43
(1979) and affirming the District Court’s dismissal of a § 1983 claim on the ground that the
policy of double-bunking sexually dangerous persons did not violate the Fourteenth
Amendment). In Cote, the First Circuit noted that “in rare cases [the policy of double-bunking]
might amount to an unlawful practice when combined with other adverse conditions.” Id. See
Rector v. Department of Corrections, 387 Fed. Appx. 5 (1st Cir. 2010) (upholding decision in
Cote and affirming District Court’s dismissal of civil committee’s suit because he had not
alleged that he had been harmed or was in danger of being harmed because of double-bunking).
These cases indicate that, to constitute a constitutionally cognizable injury, the prisoner must
have been harmed or in danger of being harmed by the inmate with whom he was doublebunked. Calderon has not alleged that he was double-bunked with either of his attackers.
Indeed, it seems from his Complaint that both Bons and Parham were only part of his job
assignment group. Accordingly, Calderon has failed to set forth sufficient facts to show that
these claims present the rare case demonstrating a constitutionally cognizable injury.
In light of this, Calderon’s civil rights claims relating to the policy of double-bunking are

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subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A.4
IV.

Failure to State Plausble Federal Claim for Improper Classification
Calderon’s claims with respect to his classification and transfer to a high security prison

are subject to dismissal because, as a general principle, there is no constitutional right which
entitles an inmate to a particular institutional classification, nor is there a right to due process in
the classification process. See Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Montanye v.
Haynes, 427 U.S. 236, 242 (1976). See also Palmigiano v. Mullen, 491 F.2d 978, 980 (1st Cir.
1974) (absent unusual circumstances, inmates do not have a constitutional right to any particular
security classification). Similarly, as a general matter, prisoners do not have a constitutional
right to placement in a particular institution. Meachum v. Fano, 427 U.S. 215 (1976) (due
process clause does not limit inter-prison transfer even when new institution is much more
disagreeable). Prisoners may be moved from institution to institution without any procedural
formalities, such as hearings, so long as the transfer does not amount to an “atypical, significant
deprivation.” Sandin v. Conner, 515 U.S. 472, 486 (1995); cf. Rhodes v. Chapman, 452 U.S.
337, 349 (1981) (the Constitution does not mandate comfortable prisons). Prison administrators
are afforded broad deference in the adoption and execution of policies and practices necessary,
in their judgment, to maintain institutional security. Bell v. Wolfish, 441 U.S. 520, 547-48
(1979).
Calderon has not set forth any facts from which this Court could reasonably infer the

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Additionally, to the extent that Calderon asserts a state law claim for double-bunking
against defendants, this Court would decline to exercise supplemental jurisdiction over that
claim absent bona fide federal claims. See 28 U.S.C. § 1367(c).
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existence of atypical circumstances that would implicate constitutional or due process concerns
with respect to either his classification or placement. As such, to the extent that Calderon has
not set forth facts to indicate his constitutional rights were violated by his alleged
misclassification, he has no cause of action for injuries suffered following his misclassification.
Accordingly, Calderon’s civil rights claims relating to his classification (or errors in his
classification) are subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A.
V.

Failure to State Plausible Federal Claim for Failure to Intervene
The failure to intervene claims against all three supervisory Defendants are subject to

dismissal because Calderon has not set forth plausible claims against them. Calderon asserts that
the Defendants failed to intervene to protect him from inmates Bons and Parham, but he only
sets forth facts regarding Officer Burke’s and unidentified staff members’ actions or inactions.
There are no allegations concerning any actions taken by Dickhaut, Vidal, or Mendonsa (other
than their institution of a double-bunking policy, as discussed above), nor do any of the
allegations provide any basis for direct liability. To the extent that Calderon has named
Dickhaut, Vidal, and Mendonsa as Defendants because they are supervisory officials, this is
insufficient to state a claim under 42 U.S.C. § 1983, as there is no respondeat superior liability
for the actions or inactions of supervisors’ employees or other staff under § 1983.5
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“It is well-established that ‘only those individuals who participated in the conduct that
deprived the plaintiff of his rights can be held liable’” under § 1983. Velez-Rivera v. AgostoAlicea, 437 F.3d 145, 156 (1st Cir. 2006) (quoting Cepero-Rivera v. Fagundo, 414 F.3d 124, 129
(1st Cir. 2005)). “[In civil rights actions],‘supervisors are not automatically liable for the
misconduct of those under their command. A plaintiff must show an affirmative link between
the subordinate [employee] and the supervisor, whether through direct participation or through
conduct that amounts to condonation or tacit authorization.’” Velez-Rivera, 437 F.3d at 156
(quoting Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000)). See Pinto v. Nettleship, 737
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Furthermore, apart from bald allegations of failure to intervene, Calderon has not set
forth any factual basis for direct liability of any of the Defendants sufficient to state a plausible
claim upon which relief may be granted. Section 1983 claims based on the failure to intervene
turn on whether the defendants’ actions were reckless or callously indifferent to plaintiff’s civil
rights. The United States Court of Appeals for the First Circuit has stated that “... a supervisor
cannot be held liable for merely negligent acts. Rather, a supervisor’s acts or omissions must
amount to a reckless or callous indifference to the constitutional rights of others.” FebusRodriguez v. Betancourt-Lebron, 14 F.3d 87, 92 (1st Cir. 1994) (citing Gutierrez-Rodríguez v.
Cartagena, 882 F.2d 553, 562 (1st Cir. 1989) and Bordanaro v. McLeod, 871 F.2d 1151, 1163
(1st Cir. 1989), cert. denied 493 U.S. 820 (1989)). See also Maldonado-Denis v. CastilloRodriguez, 23 F.3d 576, 582 (1st Cir. 1994) (same). This standard is also referred to as a
“deliberate indifference” standard. Febus-Rodriguez, 14 F.3d at 92. See Duran v. Duval, 1998
WL 765726, *2-3 (D. Mass. 1998) (O’Toole, J.) (finding no liability of deputy superintendents
for failing to prevent an attack if they had no knowledge of a possible constitutional
infringement); cf. Niemic v. Maloney, 409 F. Supp. 2d 32, 35-36 (D. Mass. 2005) (Gorton, J.)
(finding pro se plaintiff stated cognizable claim for direct liability by alleging that he directly
informed [then Commissioner] Maloney of his unconstitutional treatment with respect to medical
care, which the Commissioner failed to address).
The test for what constitutes reckless or callous indifference is whether it would be
F.2d 130, 132 (1st Cir. 1984) (liability can only be imposed upon officials who were involved
personally in the deprivation of constitutional rights). See also Pineda v. Toomey, 533 F.3d 50,
54 (1st Cir. 2008) (discussing test for liability of supervisory officials).
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apparent to a reasonable supervisor that his conduct was “very likely to violate an individual's
constitutional rights.” Reid v. Brodeur, 2001 WL 274843, at *4 (D.N.H 2001) quoting Germany
v. Vance, 868 F.2d 9, 18 (1st Cir. 1989). See Pineda, 533 F.3d at 54. “In addition, there must be
an ‘affirmative link’ between a subordinate's misconduct and the supervisory official's action or
inaction.” Reid, 2001 WL 274843, at *4 citing Febus-Rodriguez, 14 F.3d at 92. “Other factors
that assist in determining liability are: (1) whether the supervisor had knowledge of the alleged
violations; and (2) whether the supervisor's actions or inactions could be viewed as “supervisory
encouragement, condonation, or acquiescence.” Reid, 2001 WL 274843, at *4 quoting Lipsett v.
Blanco, 864 F.2d 881, 902 (1st Cir. 1988).6 Absent any factual basis from which a claim of
deliberate indifference could be reasonably inferred, Calderon’s claims against the named
supervisory Defendants based on the failure to intervene are subject to dismissal pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) and § 1915A.
VI.

Order to Show Cause and Amend the Complaint
In light of the above, this action shall be dismissed within 42 days of the date of this

Memorandum and Order unless Calderon demonstrates good cause in writing why it should not
be dismissed. Any show cause response shall not exceed five (5) double-spaced pages and shall
address the legal impediments noted above. Additionally, Calderon shall file an Amended
Complaint curing the pleading deficiencies with respect to each of the named Defendants, and/or
adding or substituting the proper Defendants (i.e., those individuals directly involved in the

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The failure to intervene claims are often raised in the context of failure to protect an
inmate against physical harm (beatings by prison guards or inmates, or failure to provide
adequate medical care).
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alleged incidents). Failure to comply with these directives will result in a dismissal of this
action.
CONCLUSION
Based on the foregoing, it is hereby Ordered that:
1.

Plaintiff’s Motion for Leave to Proceed in forma pauperis (Docket No. 2) is ALLOWED
and the filing fee is assessed pursuant to 28 U.S.C. § 1915(b);

2.

Plaintiff’s Motion to Waive Filing Fees and Costs (Docket No. 3) is ALLOWED to the
extent that he is permitted to proceed in forma pauperis in accordance with 28 U.S.C.
§ 1915(b); however, the motion is DENIED to the extent that Plaintiff seeks a complete
waiver of the filing fees and costs in this action; and

3.

Within 42 days from the date of this Memorandum and Order, Plaintiff shall demonstrate
good cause in writing why this action should not be dismissed, addressing the legal
impediments to his claim(s). Plaintiff also shall file an Amended Complaint curing the
pleading deficiencies with respect to each of the named Defendants and/or adding or
substituting the proper Defendants.

SO ORDERED.

/s/ Joseph L. Tauro
JOSEPH L. TAURO
UNITED STATES DISTRICT JUDGE
DATED: July 6, 2011

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