Dillon v. Dickhaut et al

Filing 10

Judge George A. OToole, Jr: MEMORANDUM AND ORDER entered: Plaintiff's Motion for Leave to Proceed in forma pauperis (Docket No. 7) is ALLOWED and the filing fee is assessed pursuant to 28 U.S.C. § 1915(b); Plaintiff's Motion to Compe l the Treasurer of MCI Norfolk to provide his certified prison account statement (Docket No. 5) is DENIED; Plaintiff's Motion for Appointment of Counsel (Docket No. 2 ) is DENIED; The Clerk shall issue summonses with respect to each Defendant; a nd The Clerk shall send the summonses, a copy of the Complaint, and this Memorandum and Order to the Plaintiff, who must thereafter serve the Defendants in accordance with Federal Rule of Civil Procedure 4(m). The Plaintiff may elect to have service made by the United States Marshal Service. If directed by the Plaintiff to do so, the United States Marshal shall serve the summonses, Complaint, and this Memorandum and Order upon the Defendants in the manner directed by the Plaintiff, with all costs of service to be advanced by the United States Marshal Service. Notwithstanding Fed. R. Civ. P. 4(m) and Local Rule 4.1, the Plaintiff shall have 120 days from the date of this Order to complete service. (PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
DAVID DILLON, JR.,
Plaintiff,
v.

THOMAS DICKHAUT, ET AL.,
Defendants.

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CIVIL ACTION NO. 12-10713-GAO

MEMORANDUM AND ORDER
O’TOOLE , D.J.
BACKGROUND
On April 19, 2012, Plaintiff David Dillon, Jr. (“Dillon”), now a prisoner in custody at
MCI Norfolk, filed a self-prepared civil rights Complaint against: (1) Thomas Dickhaut, former
Superintendent of the Souza Baranowski Correctional Center (“SBCC”); (2) Anthony
Mendonsa, Superintendent of the SBCC; (3) Osvaldo Vidal, Deputy Superintendent of
Operations; and
(4) Bruce Gelb, former Director of Security at SBCC. Dillon alleges that these Defendants
deliberately failed to protect him from harm and place him in a safe environment.1
Specifically, Dillon asserts that his Eighth Amendment rights were violated by the
Defendants implementation of a “forced double-bunking” policy. He further claims that there
was a “known practice” at SBCC that encouraged cellmates to fight with each other.
Specifically, he contends that on March 3, 2009, while in segregation, he was placed in a cell
with another inmate (Robert Beal), and was forced to fight him “gladiator-style.” He then was
made to stay in the cell after this fight. The next day, March 4, 2009, Dillon was forcibly moved

1

Dillon’s filing is dated April 12, 2012. The Court received his filing on April 19, 2012.

to a new cell with another inmate (Noel Vaillencourt (“Vaillencourt”)). Vaillencourt also
attacked him and began to fight with him. Both Dillon and Vaillencourt were gassed by guards
in order to stop the fight. Dillon was taken out of the cell for medical care, but he contends he
did not receive proper attention to his injuries. Thereafter, Dillon was returned to the same cell.
Both Dillon and inmate Vaillencourt remained in handcuffs and were told by guards that they
would be uncuffed when they “decided to get along.” Thereafter, while still in handcuffs, Dillon
and Vaillencourt began “head butting” each other while guards stood outside the cell watching
and laughing as this “head butting” was continuing. Eventually, Dillon and Vaillencourt were
uncuffed and then an actual fight broke out between them. As a result, Dillon sustained injuries,
including a broken nose, a black eye, and cuts. Thereafter, Dillon again was placed in the same
cell with Vaillencourt, but this time they were put in leg irons and waist chains. Another “head
butting” fight ensued. Dillon claims that this went on for weeks without any intervention by
prison guards, until one day a “rookie” came by the cell, saw what was happening, and “called it
in.” It was at that point that Dillon and Vaillencourt were finally separated.
Dillon seeks monetary damages. Along with the Complaint, Dillon filed a Motion for
Appointment of Counsel. He failed, however, to pay the filing fee for this action, or to filed a
Motion for Leave to Proceed in forma pauperis.
On April 25, 2012, this Court issued a Procedural Order (Docket No. 4) directing Dillon
either to pay the $350.00 filing fee within 21 days or seek a waiver thereof by filing an
application to proceed without prepayment of filing fees, accompanied by his certified prison
account statement.
On May 7, 2012, Dillon filed a Motion to Compel the Treasurer of MCI Norfolk to

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provide his certified prison account statement (Docket No. 5). He also filed letters indicating
that he had made requests for this account statement, and that the Treasurer would be sending the
statement to the Court.
On May 11, 2012, Dillon filed a Motion for Leave to Proceed in forma pauperis. On
May 14, 2012, this Court received Dillon’s certified prison account statement from the
Treasurer.
DISCUSSION
I.

The Motion for Leave to Proceed In Forma Pauperis
Upon review of Dillon’s financial disclosures and prison account statement, this Court

finds that he lacks sufficient funds to pay the filing fee for this civil action. Accordingly, his
Motion for Leave to Proceed in forma pauperis (Docket No. 7) is ALLOWED.
Because Dillon is a prisoner, he is obligated to make payments toward the $350.00 filing
fee, pursuant to the Prison Litigation Reform Act. See 28 U.S.C. § 1915 (the in forma pauperis
statute). Accordingly, it is hereby Ordered that:
A.

Dillon is assessed an initial partial filing fee of $5.00, pursuant to 28 U.S.C.
§ 1915(b)(1)(A);2

B.

The remainder of the fee $345.00 is to be assessed and collected in accordance
with 28 U.S.C. § 1915(b)(2).

This assessment is made apart from any other assessments made in other civil actions

2

The initial partial assessment represents 20% of the average monthly balance in Dillon’s
prison account for the six-month period preceding the filing of the Complaint, as calculated by
the Treasurer’s Office. The initial partial assessment is made regardless of whether or not Dillon
currently has sufficient funds in his prison account to pay. The in forma pauperis statute
requires the initial partial filing fee be assessed, but collection to occur “when funds exist.” 28
U.S.C.
§ 1915(b)(1).
3

filed by Dillon; however, for purposes of clarification for crediting any funds received from
Dillon, this Court intends that any funds received from his prison account first be applied to any
prior Order of a Court assessing a filing fee pursuant to 28 U.S.C. § 1915.
II.

The Motion to Compel Production by the Treasurer of MCI Norfolk
In light of the receipt by the Treasurer of Dillon’s prison account statement, Dillon’s

motion seeking to compel production of the statement is moot. Accordingly, the Motion to
Compel the Treasurer of MCI Norfolk to provide his certified prison account statement (Docket
No. 5) is DENIED.
III.

The Complaint is Subject to Screening
Because Dillon 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);3 28 U.S.C. § 1915A (screening of suits against governmental officers and
entities).4

3

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
4

In reviewing this action, this Court liberally construes Dillon’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).
At this time, the Court will permit this action to proceed and will authorize summonses to
issue because Dillon has alleged that he suffered an injury directly as a result of Defendants’
implementation of a double-bunking policy which they knew threatened his safety and because
Dillon alleges that the Defendants failed to protect him from this harm.5 Further, although
Dillon’s claims against supervisory Defendants may be subject to dismissal to the extent they are
based on the theory of respondeat superior,6 this Court will permit this action to proceed and

such relief. 28 U.S.C. § 1915A.
5

See Cote v. Murphy, 152 Fed. Appx. 6, 2005 WL 2708221, at *1 (1st Cir. 2005)
(unpublished decision holding that while double-bunking of sex offenders “is not a per se
violation of due process,” citing Bell v. Wolfish, 441 U.S. 520, 541-43 (1979, “in rare cases [it]
might amount to an unlawful practice when combined with other adverse conditions”). See also
Rector v. Department of Corrections, 387 Fed. Appx. 5, 2010 WL 2814321 (1st Cir. Jul. 20,
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).
6

Respondeat superior is not a viable theory of liability under 42 U.S.C. § 1983. “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. Agosto-Alicea, 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 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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will entertain briefing on this issue if raised at a later time.

IV.

The Motion for Appointment of Counsel
Dillon seeks appointment of pro bono counsel on the grounds that he is not literate and is

in segregation and therefore has little opportunity to prosecute this action pro se. Under 28
U.S.C. § 1915, a “court may request an attorney to represent any person unable to afford
counsel.” 28 U.S.C. § 1915(e)(1). The United States Court of Appeals for the First Circuit
provides the following set of factors to consider when determining whether to appoint counsel to
an indigent litigant under § 1915: “[1] the indigent’s ability to conduct whatever factual
investigation is necessary to support his or her claim; [2] the complexity of the factual and legal
issues involved; and [3] the capability of the indigent litigant to present the case.” Cookish v.
Cunningham, 787 F.2d 1, 3 (1st Cir. 1986) (per curiam); see Bemis v. Kelley, 857 F.2d 14, 16
(1st Cir. 1988). Ultimately, to be eligible for this assistance under 28 U.S.C. § 1915, Dillon
“must demonstrate that he [is] indigent and that exceptional circumstances [are] present such that
a denial of counsel [is] likely to result in fundamental unfairness impinging on his due process
rights.” DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991). This Court considers the total
situation, including the merits of the case, the complexity of the legal issues, and the litigant’s
ability to represent himself. Id.
At this juncture, the Court credits that Dillon is unable to afford to retain counsel to
represent him, that he unskilled in the law, and that he may have a difficult time prosecuting this
action pro se. Nevertheless, the merits of this action are questionable and thus the expenditure of
scarce pro bono resources is not justifiable. First, even under a liberal reading of the Complaint,

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Dillon’s claims that the Defendants had a “known practice” (of encouraging or condoning fights
between cellmates) is based on general allegations and legal conclusions and is not supported by
underlying facts from which knowledge and deliberate indifference reasonably could be imputed
to them.
As an additional matter subjecting this action to dismissal for failure to state a claim upon
which relief may be granted, it appears that Dillon’s claims for constitutional violations
occurring in 2009 are barred by the statute of limitations for civil rights cases.
The statute of limitations for claims under the Civil Rights Act in the District of
Massachusetts is three years.7 Here, Dillon’s alleged injuries from fights were incurred on
March 3rd or 4th of 2009. He did not file this Complaint until April 12, 2012 -- more than three
years later.8 Even assuming that, as Dillon contends, the situation went on for “weeks” after the
March 4, 2009 incident with Vaillencourt, it does not appear that Dillon filed this suit in a timely
fashion. While the matter may turn on days or even weeks, the United States Court of Appeals
for the First Circuit has held that “a complaint which states a claim that appears to have expired

7

Nieves v. McSweeney, 241 F.3d 46, 52-53 (1st Cir. 2001) (§ 1983); Johnson v.
Rodriguez, 943 F.2d 104, 107 (1st Cir. 1991) (§ 1981); Govan v. Trustees of Boston Univ., 66 F.
Supp. 2d 74, 80 (D. Mass. 1999) (§ 1981, 1985). Cf. Rodriguez-Garcia v. Municipality of
Caguas, 354 F.3d 91, 96 (1st Cir. 2004) (§§ 1981, 1983, and 1985 borrow the forum state’s
statute of limitations for personal injury claims); Mass. Gen. Laws ch. 260, § 2A (three-year
statute of limitations for personal injury claims); Owens v. Okure, 488 U.S. 235 (1989). The
accrual date for a § 1983 action is the date when the plaintiff knew or should have known that he
was harmed. See, e.g., Villanueva-Méndez v. Nieves-Vázquez, 440 F.3d 11, 15 (1st Cir. 2006)
(citing Chardón v. Fernández, 454 U.S. 6, 8 (1981)).
8

For purposes of this Memorandum and Order, this Court applies the prisoner mailbox
rule and assumes the Complaint was mailed by Dillon on that date. See Casanova v. Dubois,
304 F. 3d 75 (1st Cir. 2002) (so long as prisoner complies with prison’s procedures for sending
legal mail, the filing date for purposes of assessing compliance with the statute of limitations will
be the date on which prisoner commits the mail to the custody of prison authorities).
7

under the applicable statute of limitations may be dismissed as frivolous” under the in forma
pauperis statute. Johnson v. Rodriguez, 943 F.2d 104, 107 (1st Cir. 1991), cert. denied, 502 U.S.
1063 (1992) (quoting Street v. Vose, 936 F.2d 38, 39 (1st Cir. 1991), cert. denied, 502 U.S. 1063
(1992)).9
In light of the above, this Court preliminarily finds this action to be subject to dismissal.10
Thus, there are no exceptional circumstances justifying appointment of pro bono counsel.
Accordingly, Dillon’s Motion for Appointment of Counsel (Docket No. 2) is DENIED.
V.

Issuance of Summonses; Service By the United States Marshal
In view of the above, the Clerk is directed to issue summonses and the United States

Marshal Service is directed to effect service, as set forth below.
CONCLUSION
Based on the foregoing, it is hereby ORDERED that:
1.

Plaintiff’s Motion for Leave to Proceed in forma pauperis (Docket No. 7) is
ALLOWED and the filing fee is assessed pursuant to 28 U.S.C. § 1915(b);

2.

Plaintiff’s Motion to Compel the Treasurer of MCI Norfolk to provide his certified prison
account statement (Docket No. 5) is DENIED;

3.

Plaintiff’s Motion for Appointment of Counsel (Docket No. 2 ) is DENIED;

9

Although the statute of limitations is an affirmative defense, and Fed. R. Civ. P. 8(a)
does not require a plaintiff to plead facts to avoid potential affirmative defenses, a Complaint can
be dismissed for failure to state a claim if the allegations therein show that relief is barred by the
relevant statute of limitations. See Jones v. Bock, 549 U.S. 199, 215 (2007) (“A complaint is
subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff
is not entitled to relief. If the allegations, for example, show that relief is barred by the
applicable statute of limitations, the complaint is subject to dismissal for failure to state a
claim....”).
10

This Court will not dismiss this action sua sponte; the issues discussed herein may be
raised by the parties at a later time.
8

4.

The Clerk shall issue summonses with respect to each Defendant; and

5.

The Clerk shall send the summonses, a copy of the Complaint, and this Memorandum
and Order to the Plaintiff, who must thereafter serve the Defendants in accordance with
Federal Rule of Civil Procedure 4(m). The Plaintiff may elect to have service made by
the United States Marshal Service. If directed by the Plaintiff to do so, the United States
Marshal shall serve the summonses, Complaint, and this Memorandum and Order upon
the Defendants in the manner directed by the Plaintiff, with all costs of service to be
advanced by the United States Marshal Service. Notwithstanding Fed. R. Civ. P. 4(m)
and Local Rule 4.1, the Plaintiff shall have 120 days from the date of this Order to
complete service.

SO ORDERED.
/s/ George A. O'Toole, Jr.
GEORGE A. O’TOOLE, JR.
UNITED STATES DISTRICT JUDGE
DATED: May 17, 2012

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