Brown v. Pete et al

Filing 55

Ch. Magistrate Judge Leo T. Sorokin: ORDER entered. REPORT AND RECOMMENDATIONS re 36 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Joseph Pepe. Recommendation: The motion to dismiss should be ALLOWED with respect to defendant Pepe, and th e claims against him should be DISMISSED without prejudice to the plaintiff refiling them after he has administratively exhausted them; the claims against defendants Cinelli and Brown should be DISMISSED without prejudice to the plaintiff refiling them in the proper venue. (Objections to R&R due by 7/9/2013). ORDER entered denying 45 MOTION to Appoint Counsel filed by Manson Brown. (Robinson, Amy)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

MANSON BROWN,
Plaintiff,
v.
JOSEPH PEPE, et al.,
Defendants.

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Civil No. 12-cv-11687-JLT

REPORT AND RECOMMENDATION ON
DEFENDANTS’ MOTION TO DISMISS AND
ORDER ON PLAINTIFF’S MOTION TO APPOINT COUNSEL
June 25, 2013
SOROKIN, C.M.J.
Plaintiff Manson Brown, an inmate at the Souza-Baranowski Correctional Center in
Shirley, Massachusetts, has sued defendants Joseph Pepe, Curtis Cinelli, and Thomas Brown,
alleging violations of his constitutional rights arising from what he characterizes as a “staged
perp walk” after his apprehension as a fugitive in Dekalb County, Georgia in January 2010. For
the reasons that follow, the plaintiff’s request for counsel is denied, and I recommend the claims
against all three defendants be dismissed without prejudice.
I.

BACKGROUND1
The plaintiff’s claims arise from a January 12, 2010 incident at the Dekalb County Jail in

1

The facts are drawn from the Complaint, Doc. No. 1, and the plaintiff’s supplemental
filing regarding his claims against defendant Brown, Doc. No. 16-1. For present purposes, the
Court accepts the plaintiff’s factual allegations as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).

Decatur, Georgia.2 Doc. No. 1 at ¶¶ 4, 5, 8. Defendant Pepe, a member of the DOC’s Fugitive
Apprehension Unit, and Defendant Cinelli, a member of the Massachusetts State Police Violent
Fugitive Apprehension Section, had traveled to Dekalb County to take custody of the plaintiff
and transport him back to a DOC facility in Massachusetts. Id. at ¶¶ 2-3, 5. Before escorting the
plaintiff out of the building, defendants Pepe and Cinelli placed him in hand and leg restraints
and took him to a location where several sheriff’s deputies were present. Id. at ¶ 5. There,
defendant Cinelli and an unknown sheriff’s deputy used their cell phones to take pictures of
themselves with the plaintiff. Id.
Defendants Pepe and Cinelli then escorted the plaintiff out of the jail through its main
lobby, where the plaintiff pulled up the hood on his shirt to avoid being filmed by a video camera
he noticed there. Id. at ¶ 6. Defendant Cinelli removed the hood from the plaintiff’s head and,
when the plaintiff ducked in an effort to shield himself from view, defendants Pepe and Cinelli
pulled him up to face the camera. Id. Several sheriff’s deputies who were present allegedly
laughed at the encounter, id., some of which was later shown in the local media, Doc. No. 16-1.
Defendant Brown is the Dekalb County Sheriff; he oversees the jail and supervises the
unnamed sheriff’s deputies mentioned in the Complaint. Doc. No. 1 at ¶ 4; Doc. No. 16-1.
Although he did not “play a part in the actual violation directly . . . , the violations happened on
his watch,” allegedly due to defendant Brown’s “gross[] negligen[ce] in managing [his]
subordinates.” Doc. No. 16-1.

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The Complaint does not explain how the plaintiff came to be in custody at the Dekalb
County Jail. See generally Doc. No. 1. The District Judge previously noted that the plaintiff had
escaped from the custody of the Massachusetts Department of Correction (“DOC”), while
serving a ten-year sentence in one matter and awaiting trial in another. Doc. No. 10 at 2 n.2.
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The plaintiff alleges the defendants’ conduct violated his “privacy and personal rights”
pursuant to the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution.
Doc. No. 1 at ¶¶ 7-8. Defendant Pepe seeks dismissal of the claims against him based on the
plaintiff’s failure to exhaust his administrative remedies by first seeking redress through the
prison grievance process. Doc. No. 36. At a June 21, 2013 status conference, defendants Cinelli
and Brown orally joined the motion. The plaintiff has opposed the motion, Doc. No. 54, and
also has requested appointment of counsel, Doc. No. 45.
II.

EXHAUSTION
Both federal and Massachusetts state law require prisoners to pursue administrative

remedies before filing federal lawsuits raising claims related to the conditions of their
confinement or their treatment by DOC personnel. 42 U.S.C. § 1997e(a) (“No action shall be
brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by
a prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.”); Mass. Gen. Laws ch. 127, § 38F (“An inmate shall
not file any claim that may be the subject of a grievance . . . unless the inmate has exhausted the
administrative remedy [available to him].”); see Porter v. Nussle, 534 U.S. 516, 532 (2002)
(finding the federal “exhaustion requirement applies to all inmate suits about prison life, whether
they involve general circumstances or particular episodes”).
In Massachusetts, there are formal grievance procedures which govern complaints
“against the [DOC], its officers or employees, by inmates who are committed to, held by or in
the custody of the [DOC] in a state, county, or federal correctional facility.” Mass. Gen. Laws
ch. 127, § 38E(a); see Doc. No. 36-1. The plaintiff concedes he did not initiate such procedures

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with respect to the claims in this action, arguing they were not required because he was not
“behind the walls” when the incident occurred. Doc. No. 54 at 2. At least with respect to
defendant Pepe, the plaintiff is wrong.
First, at the time of the events at issue here, the plaintiff was in the custody of the DOC.
Unlike an individual being arrested by police at the initiation of criminal proceedings, the
plaintiff was a fugitive being returned to a DOC facility after his capture. Cf. Porter, 534 U.S. at
529 (distinguishing a “suit by a prisoner” from a § 1983 claim against an arresting officer). Put
simply, he is and was – both when the incident occurred and when he filed his complaint in
September 2002 – an inmate “committed to, held by or in the custody of the” DOC. Second,
defendant Pepe is an “officer[] or employee[]” of the DOC. The plaintiff’s claims against Pepe,
therefore, fall squarely within the category of complaints for which the formal grievance process
is available under Massachusetts law. Mass. Gen. Laws ch. 127, § 38E(a); see Woodford v.
Ngo, 548 U.S. 81, 84-85 (2006) (describing the purpose and strict application of the federal
exhaustion requirement, which mandates pursuit of “all ‘available’ remedies” under state law
before a prisoner may litigate his claims in federal court).
The other defendants are not DOC employees and have not submitted briefs suggesting
any other administrative remedies are available to the plaintiff here besides the Massachusetts
statute excerpted above, which extends only to claims against the DOC, “its officers or
employees.” Mass. Gen. Laws ch. 127, § 38E(a). As such, the exhaustion requirement does not
justify dismissing the plaintiff’s claims against defendants Cinelli and Brown. There is,
however, another defect apparent on the face of the plaintiff’s complaint that does.

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III.

VENUE
A federal lawsuit may be brought in:
(1)
a judicial district in which any defendant resides, if all defendants are
residents of the State in which the district is located;
(2)
a judicial district in which a substantial part of the events or omissions
giving rise to the claim occurred, or a substantial part of property that is the
subject of the action is situated; or
(3)
if there is no district in which an action may otherwise be brought as
provided in this section, any judicial district in which any defendant is subject to
the court’s personal jurisdiction with respect to such action.

28 U.S.C. § 1391(b). Pursuant to 28 U.S.C. § 1406, a federal court “of a district in which is filed
a case laying venue in the wrong . . . district shall dismiss, or if it be in the interest of justice,
transfer such case to any district . . . in which it could have been brought.”
According to the plaintiff, defendants Pepe and Cinelli reside in Massachusetts, but
defendant Brown does not. Doc. No. 1 at ¶¶ 2-4. As such, the plaintiff may not rely on
§ 1391(b)(1) to establish venue in this District. The incident which forms the basis for the
plaintiff’s claims occurred in Georgia, when defendants Pepe and Cinelli escorted the plaintiff
out of the Dekalb County Jail at the start of his journey back to Massachusetts. Doc. No. 1 at
¶¶ 5-6. Thus, pursuant to § 1391(b)(2), venue lies in the Northern District of Georgia, where the
Dekalb County Jail is located and the relevant events unfolded.3
Because venue is improper here, the plaintiff’s claims against defendants Cinelli and

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For similar reasons, this Court appears to lack personal jurisdiction over defendant
Brown, who resides and works in Georgia. See Harlow v. Children’s Hosp., 432 F.3d 50, 57 (1st
Cir. 2005) (“An exercise of jurisdiction must be authorized by state statute and must comply
with the Constitution.”); Mass. Gen. Laws ch. 223A § 3 (permitting exercise of personal
jurisdiction by Massachusetts courts in enumerated circumstances, none of which extend to the
plaintiff’s allegations against defendant Brown).
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Brown should be dismissed pursuant to 28 U.S.C. § 1406.4 The interests of justice are not served
by transferring venue at this time for several reasons: 1) the plaintiff may wish to
administratively exhaust his claim against defendant Pepe and then, if no relief is awarded,
reassert his claims against all three defendants together in the proper venue; 2) serious questions
exist regarding the merits of the plaintiff’s claims, even accepting his allegations as true;5 and 3)
the plaintiff was permitted to proceed here in forma pauperis and is not in jeopardy of forfeiting
a filing fee if this action is dismissed, Doc. No. 18 at 2.
IV.

COUNSEL
Finally, the plaintiff has asked the Court to appoint counsel to represent him. Doc. No.

45. The appointment of counsel in a civil case for an indigent litigant is a matter that lies within
the court’s discretion. 28 U.S.C. § 1915(e)(1); see DesRosiers v. Moran, 949 F.2d 15, 23 (1st
Cir. 1991) (“There is no absolute constitutional right to a free lawyer in a civil case.”). “To
determine whether there are exceptional circumstances sufficient to warrant the appointment of

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Although not briefed in connection with the pending motion to dismiss, the venue issue
was raised by defendant Cinelli as an affirmative defense, Doc. No. 29 at 3, and the plaintiff filed
a memorandum opposing Cinelli’s affirmative defenses in which the plaintiff’s only response to
the venue issue was, confusingly, that “a motion based on a forum selection clause is properly
considered under [Rule 12(b)(6)],” Doc. No. 50 at 3.
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For example, the plaintiff’s supplemental allegations against defendant Brown, Doc. No.
16-1, do not appear to cure the defects originally noted by the District Judge, Doc. No. 10 at 6(observing the plaintiff made “no mention of any actions taken . . . directly by Sheriff Thomas
Brown,” and noting defendant Brown was not subject to liability in an action under 42 U.S.C. §
1983 based on “the actions of his employees under a theory of respondeat superior”).
Additionally, even assuming the plaintiff’s privacy interests outweigh any legitimate government
purposes the defendants may cite (e.g., an interest in informing the public about efforts to
apprehend fugitives from justice), the defendants appear to have a strong claim of qualified
immunity, as the constitutional violations the plaintiff alleges do not appear to be clearly
established under these circumstances. See generally Caldarola v. Cnty. of Westchester, 343
F.3d 570 (2d Cir. 2003).
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counsel, a court must examine the total situation,” including “the merits of the case, the
complexity of the legal issues, and the litigant’s ability to represent himself.” DesRosiers, 949
F.2d at 24. Considering the analysis set forth in the preceding two sections, such “extraordinary
circumstances” are not present here. Accordingly, the Motion to Appoint Counsel (Doc. No. 45)
is DENIED.
V.

CONCLUSION
For the foregoing reasons, I recommend: 1) the Motion to Dismiss (Doc. No. 36) be

ALLOWED with respect to defendant Pepe, and the claims against him be DISMISSED without
prejudice to the plaintiff refiling them (in the proper venue) after he has administratively
exhausted the claims; and 2) the claims against defendants Cinelli and Brown be DISMISSED
without prejudice to the plaintiff refiling them in the proper venue.6

/s/ Leo T. Sorokin
Leo T. Sorokin
Chief U.S. Magistrate Judge

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The parties are hereby advised that any party who objects to these proposed findings and
recommendations must file a written objection thereto within fourteen days of receipt of this
Report and Recommendation. The written objections must identify with specificity the portion
of the proposed findings, recommendations, or report to which objection is made, and the basis
for such objections. See Fed. R. Civ. P. 72; 28 U.S.C. § 636(b); Habeas Corpus Rule 8(b). The
parties are further advised that the United States Court of Appeals for this Circuit has repeatedly
indicated that failure to file timely objections will preclude further appellate review of the
District Court’s order based on this Report and Recommendation. See Keating v. Sec’y of
Health & Human Servs., 848 F.2d 271 (1st Cir. 1988); United States v. Valencia-Copete, 792
F.2d 4 (1st Cir. 1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v.
Vega, 678 F.2d 376, 378-79 (1st Cir. 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d
603 (1st Cir. 1980); see also Thomas v. Arn, 474 U.S. 140 (1985).
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