Stone v. Caswell, et al

Filing 19

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: " In accordance with the foregoing, defendants' motion to dismiss (Docket No. 15 ) is, with respect to Count III, ALLOWED, but, with respect to Count II, DENIED. So ordered."(Moore, Kellyann)

United States District Court
District of Massachusetts
________________________________
)
)
)
)
v.
)
)
JEFFREY CASWELL, DONALD PERRY,
)
JOHN CAPPELLO, KAREN HETHERSON, )
and LUIS SPENCER,
)
Defendants.
)
________________________________ )
KENNETH STONE,
Plaintiff,

Civil Case No.
12-11574-NMG

MEMORANDUM & ORDER
GORTON, J.
Plaintiff, who was an inmate in a state prison facility,
alleges that defendants violated his state and federal civil
rights while he was in their custody.

Defendants now move to

dismiss several of his claims against them.
I.

Background
The following allegations are drawn from the Complaint and

accepted as true for the purpose of resolving the pending motion
to dismiss:
On February 11, 2010, plaintiff Kenneth Stone was being held
in a cell within Taunton District Court.

Defendant Jeffrey

Caswell, a transportation officer employed by the Massachusetts
Department of Correction (“the DOC”) on duty, asked about a pair
of sneakers located in plaintiff's cell.

Plaintiff responded

that the sneakers did not belong to him.

Defendant Caswell then

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entered plaintiff's cell, pointed his finger in plaintiff's face,
grabbed him, forced him into a sitting position and, later,
forced him to the ground of the lock-up corridor.
Plaintiff filed a grievance with the DOC alleging that the
foregoing incident constituted a “use of force” within the
meaning of DOC regulations.

Defendants Sergeant Donald Perry and

Captain Michael Cappello, employed in the Internal Affairs Unit
of the DOC, conducted an investigation into plaintiff's
grievance.

According to plaintiff, defendant Caswell's initial

statement regarding the incident contained material falsehoods
that resulted in an escalation of the seriousness of the internal
investigation.
In recognition of the escalation, defendants Perry and
Cappello allegedly permitted defendant Caswell to review a
videotape of the incident before interviewing him about it so
that Caswell could color his explanation.

Defendant Caswell's

account of the incident purportedly changed following his viewing
of the videotape and defendants Perry and Cappello ultimately
concluded that Caswell's actions were reasonable.

Defendant

Karen Hetherson, an Assistant Deputy Commissioner of the DOC,
upon conducting a final review of the incident, also concluded
that Officer Caswell's actions were not inappropriate.
Plaintiff now brings a four-count Complaint, alleging that:
defendant Caswell used excessive force against him in violation

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of 42 U.S.C. § 1983 (Count I) and Massachusetts tort law (Count
IV); defendants Perry, Cappello, Hetherson and Commissioner Luis
Spencer, by failing to train and supervise Caswell and
facilitating a policy or custom of deliberate indifference to
plaintiff’s constitutional rights, violated 42 U.S.C. § 1983
(Count II); and that all defendants deprived him of his
constitutional rights through the use of threats, intimidation or
coercion in violation of the Massachusetts Civil Rights Act
(Count III).
II.

Legal Analysis
All defendants except Commissioner Spencer now move to

dismiss Counts II and III of the Complaint for failure to state a
claim pursuant to Fed. R. Civ. P. 12(b)(6).
A.

Standard of Review

To survive a motion to dismiss for failure to state a claim
under Fed. R. Civ. P. 12(b)(6), a complaint must contain
“sufficient factual matter” to state a claim for relief that is
actionable as a matter of law and “plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim is facially

plausible if, after accepting as true all non-conclusory factual
allegations, the court can draw the reasonable inference that the
defendant is liable for the misconduct alleged. Ocasio-Hernandez
v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011).

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A court may

not disregard properly pled factual allegations even if actual
proof of those facts is improbable. Id.

Rather, the relevant

inquiry focuses on the reasonableness of the inference of
liability that the plaintiff is asking the court to draw. Id. at
13.

When rendering that determination, a court may not look

beyond the facts alleged in the complaint, documents incorporated
by reference therein and facts susceptible to judicial notice.
Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011).
B.

Supervisory Liability under 42 U.S.C. § 1983

In Count II, plaintiff accuses defendants Perry, Cappello,
Hetherson and Spencer of violating 42 U.S.C. § 1983 because they
allegedly caused his constitutional rights to be violated, in
general terms, by inadequately training and supervising
correctional officers, including defendant Caswell.

More

specifically, plaintiff alleges that defendants Perry and
Cappello (a) inadequately investigated allegations of misconduct
against various unidentified officers and (b) facilitated
“untruthful interviews” by permitting offending officers to
review video evidence prior to giving statements with respect to
their investigation.

He also alleges that defendant Hetherson

caused the underlying constitutional rights violation by
sustaining the findings and conclusions of the Internal Affairs
Unit and exonerating officers accused of misconduct without
“weighing the evidence.”

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The moving defendants argue that Count II must be dismissed
as to defendants Perry, Cappello and Hetherson because
plaintiff’s allegations against them are conclusory and fail to
demonstrate that those defendants acted with the requisite
“deliberate indifference” to be liable under 42 U.S.C. § 1983.
1.

Legal Standard

Supervisory liability under § 1983 “may not be predicated
upon a theory of respondeat superior.” Gutierrez-Rodriguez v.
Cartagena, 882 F.2d 553, 562 (1st Cir. 1989); see also Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).

In other words,

an official may not be held vicariously liable for the conduct of
his subordinate but rather may be found liable “only on the basis
of her own acts or omissions.” See id. (citations omitted).
With that in mind, supervisory liability typically arises
in one of two ways:
either the supervisor may be a primary violator or direct
participant in the rights-violating incident or liability
may attach if a responsible official supervises, trains,
or hires a subordinate with deliberate indifference
toward the possibility that deficient performance of the
task eventually may contribute to a civil rights
deprivation.
Sanchez v. Pereira-Castillo, 590 F.3d 31, 49 (1st Cir. 2009)
(internal citations and quotations omitted).

In either case, the

plaintiff must show “an affirmative link” between the
supervisor’s conduct and the violation alleged, whether through
direct participation or through conduct that amounts to

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condonation or tacit authorization. Id.
2.

Application

It is undisputed that defendants Perry, Cappello and
Hetherson did not participate in the underlying constitutional
violation, namely, defendant Caswell’s alleged use of excessive
force against plaintiff.

In order for supervisory liability to

attach, therefore, defendants Perry, Cappello and Hetherson must
have exhibited “deliberate indifference” toward the possibility
that deficient performance of their tasks could eventually
contribute to a civil rights violation and, further, that such
deficient performance was “affirmatively linked” to defendant
Caswell’s alleged misconduct.
The gravitas of plaintiff’s allegations is that the internal
review of defendant Caswell’s misconduct is representative of a
custom or practice of failing to discipline correctional officers
for their misconduct.

Although the Court agrees with defendants

that their alleged involvement in training defendant Caswell is
conclusory and should be disregarded, each had some authority
over the decision not to discipline Caswell, which is a form of
supervisory responsibility. See DiRico v. City of Quincy, 404
F.3d 464, 469 (1st Cir. 2005) (affirming conclusion that
municipality’s failure to discipline defendant for past
misconduct, as applied to those facts, did not constitute
deliberate indifference).

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Plaintiff further alleges that defendants Perry and Cappello
helped defendant Caswell and others avoid discipline by showing
video recordings of incidents to him and other offending officers
in order to help them concoct a more persuasive explanation of
their conduct, and that defendant Hetherson essentially rubber
stamped the recommendation of Perry and Cappello without much
ado.

If ultimately substantiated (and that is a capital “if”),

such allegations state a claim because deficient performance of
one’s duty to discipline officers for misconduct can contribute
to civil rights violations and could be “affirmatively linked” to
the misconduct alleged here.
Defendants’ remaining argument for dismissal is unavailing.
Defendants correctly note that a “single incident” of misconduct,
in and of itself, is insufficient to establish a custom or
practice evidencing “deliberate indifference” and rendering
supervisory defendants liable. See, e.g. Mahan v. Plymouth Cnty.
House of Corr., 64 F.3d 14, 16 (1st Cir. 1995).

The pertinent

case law, however, relates to summary judgment or post-trial
motions, after plaintiff has had the benefit of discovery. See
Mahan, 64 F.3d at 14 (summary judgment); Bordanaro v. McLeod, 871
F.2d 1151, 1154 (1st Cir. 1989) (post-verdict relief); Altman v.
Kelly, 36 F. Supp. 2d 433 (D. Mass. 1999) (summary judgment).
Although the circumstances alleged do not appear to present
a scenario so egregious as to implicate Caswell’s supervisors

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plaintiffs allegations, on their face, extend to failures to
discipline beyond the facts of this case.

Because the Court must

not weigh the evidence at this stage nor disregard factual
allegations even if their eventual proof is improbable, it is
premature to dismiss the pending claims against these supervisory
defendants.

Accordingly, defendants’ motion to dismiss Count II

as to these defendants will be denied.
C.

Claims against Defendants in their Official Capacities

Count II alleges violations by defendants Perry, Cappello,
Hetherson in both their individual and official capacities.
Those defendants move to dismiss any claims for monetary relief
based upon actions taken in their official capacity on the
grounds that defendants, who are state rather than municipal
officials, are not “persons” for purposes of 42 U.S.C. § 1983.
See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71
(1989) (finding suit against state officials in official capacity
is against state itself and barred by sovereign immunity).
Plaintiff concedes that he cannot obtain monetary relief on the
basis of actions taken by defendants in their official capacities
but seeks prospective equitable relief, in the form of an
injunction prohibiting future misconduct, against those
defendants for any actions taken in their official capacity.
Recovery of such prospective relief, and attorneys’ fees, is
permissible. Missouri v. Jenkins by Agyei, 491 U.S. 274, 284

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(1989).

Accordingly, defendants’ motion to dismiss claims

against them in their official capacities will be allowed but
plaintiff’s claims remain viable insofar as they seek prospective
equitable relief and fees.
D.

Massachusetts Civil Rights Act

Defendants argues that Count III, which alleges violations
of the Massachusetts Civil Rights Act, Mass. Gen. Laws. c. 12, §
11I

(“the MCRA”), fails to state a claim because plaintiff fails

to identify that any deprivation of plaintiff’s constitutional
rights was accomplished through threats, intimidation or
coercion.
1.

Legal Standard

To state a claim under the MCRA, a plaintiff must establish
that 1) his exercise or enjoyment of rights secured by the
federal or state constitutions or laws 2) has been interfered
with, or attempted to be interfered with, and 3) the interference
or attempted interference was by “threats, intimidation, or
coercion.” Haufler v. Zotos, 845 N.E.2d 322, 335 (Mass. 2006).
The Supreme Judicial Court has determined that because the act is
a civil rights statute and intended to be remedial, it is
“entitled to a liberal construction of its terms.” Id.

The act

is not, however, intended to create a “vast constitutional tort”
and its application is limited to instances where the derogation
of secured rights occurs by “threats, intimidation or coercion.”

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Id.
The direct violation of a constitutional right does not
establish a MCRA violation because “it is not an attempt to force
someone to do something the person is not lawfully required to
do.” Columbus v. Biggio, 76 F. Supp. 2d 43, 54 (D. Mass. 1999)
(quoting Swanset Dev. Corp. v. City of Taunton, 668 N.E.2d 333,
338 (Mass. 1996)); see also Gallagher v. Commonwealth, No.
00-11859-RWZ, 2002 WL 924243, at *3 (D. Mass. March 11, 2002)
(“The use of force is not, in itself, coercive within the meaning
of the act unless such force is inflicted in order to achieve
some further purpose.”).
2.

Application

Simply put, plaintiff alleges a direct deprivation of his
civil rights, i.e. that defendants “constrained him” against his
will, thereby depriving him of his Fourth Amendment right against
unlawful constraint and force and in violation of the MCRA.

The

problem is that the constraint itself is a direct deprivation and
cannot satisfy both the “deprivation” and “threats, intimidation,
and coercion” elements under the MCRA. See Gallagher, 2002 WL
924243, at *3.
Plaintiff alternatively argues that, because defendant
Caswell reacted to plaintiff’s complaint that he was missing a
shoe, he coerced him into foregoing the exercise of his First
Amendment right to free speech.

This argument also fails because

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plaintiff does not allege that defendant’s actions were intended
to coerce him from making further statements.

That is distinct

from a situation where the plaintiffs were previously warned not
to do something and arrested when they disregarded the warning.
Cf. Sarvis v. Boston Safe Deposist and Trust Co., 711 N.E.2d 911,
918 (Mass. 1999) (arrest after threat of arrest was
“instrinically coercive”).
Finally, plaintiff claims that the foregoing analysis and
case law concerning “direct deprivations” only apply when the
constitutional right at issue is a procedural one.
clearly incorrect.

That claim is

Plaintiff relies upon Longval v. Commissioner

of Correction in support of that assertion, wherein a prisoner
primarily claimed that his transfer to a segregation unit absent
a hearing violated the MCRA. See 535 N.E.2d 588, 589-90 (Mass.
1989).

The Longval court concluded that shackling and

handcuffing the prisoner was not, by itself, “coercive” under the
MCRA and, with particular relevance to this case, held
[s]imilarly, we see no coercion, within the meaning of
the State Civil Rights Act, simply from the use of force
by prison officials, authorized to use force, in order to
compel a prisoner to do something he would not willingly
do, even if it turns out that the official had no lawful
right to compel the prisoner to take that action.
Id. at 593.
Plaintiff asks the Court to apply the MCRA as if it created
a “vast constitutional tort.”

This, it will not do.

None of

plaintiff’s alleged violations of the MCRA assert deprivations by
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way of threats, coercion or intimidation and Count III will,
therefore, be dismissed.
ORDER
In accordance with the foregoing, defendants’ motion to
dismiss (Docket No. 15) is, with respect to Count III, ALLOWED,
but, with respect to Count II, DENIED.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated July 17, 2013

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