Smitherman v. Stevenson et al

Filing 85

Chief Judge Patti B. Saris: ORDER entered granting in part and denying in part 69 Motion for Judgment on the Pleadings; denying without prejudice 72 Motion for Judgment on the Pleadings. The motion for judgment on the pleadings 69 is GRANTED as follows: (1) Insofar as the plaintiff asserts official capacity claims under s 1983, those claims are DISMISSED. (2) All official capacity claims under the Massachusetts Constitution are DISMISSED. (3) All claims under M.G.L. ch. 127, s 22 and M assachusetts regulations are DISMISSED. (4) Count VI, the Due Process claim arising out of Smithermans disciplinary proceeding, is DISMISSED. (5) Count IV--against Gelb, Vidal, Whippen, Rodriguez, Spencer, and Jane Doe--is DISMISSED. (6) Count V s hall be DISMISSED as to Gelb, Bedard, and Ladouceur. (7) Counts III, VII, and VIII shall be severed from this case and within 21 days Smitherman shall notify the Court whether he wants to proceed with a separate action on any of these claims. If Sm itherman does not within 21 days notify the Court that he wishes to pursue Counts III, VII, or VIII, the claims will be dismissed without prejudice. The motion for judgment on the pleadings 69 is otherwise DENIED. (8) Further, as to DOC Defendant Griffeths, counsel for the DOC defendants shall, within 14 days of the date of this order, either (a) notify the Court that service of summons and the complaint is waived as to this defendant; or (b) provide under seal an address at which Griffiths can be served. (9) Defendants D.J. Hager and Meaghan Dupuis Motion for Judgment on the Pleadings 72 is DENIED without prejudice pending plaintiffs decision as to when to file a new action. (10) All discovery on the remaining claims shall be completed by November 1, 2017. Any summary judgment motion shall be filed by November 15, 2017. (Copy of this Memorandum and Order sent to plaintiff at MCI Cedar Junction by first-class mail on 7/12/2017.) (PSSA, 3)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
HAROLD SMITHERMAN,
Plaintiff,
v.
ANTHONY J. STEVENSON, et al.,
Defendants.

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C.A. No. 13-10161-PBS

MEMORANDUM AND ORDER
JULY 12, 2017
Saris, C.J.
State prisoner Harold Smitherman brings this pro se
complaint against 39 defendants alleging that his constitutional
and statutory rights were violated while he was incarcerated at
the Souza-Baranowski Correctional Center (“SBCC”).

Among other

things, he asserts that correctional officers used excessive
force on him, and retaliated against him when he complained.
For the reasons stated below, the Court DENIES IN PART and
GRANTS IN PART the motion for judgment on the pleadings (Docket
Entry No. 69) brought by the Department of Corrections
Defendants (“DOC Defendants”). 1

1

This action was reassigned to the undersigned on April 27,
2017.

I.

Factual Background
When all reasonable inferences are drawn in favor of the

nonmoving party, the complaint sets forth the following facts,
most of which are disputed.
Count I: “Misuse of Force” 2 (Compl. ¶¶ 32-65, 132-133)
On August 2, 2012, Correctional Officers Matthew Wisnewski,
Matthew Harris, Anthony Stevenson, Brian Boisse, Erick Colston,
seven or more “John Doe” correctional officers, and Sergeant
Pasquel used force against Smitherman.

Without provocation or

any need for force, the defendants “grabbed Smitherman around
the neck and slammed him face first to the floor,” punched and
kicked Smitherman in the head, face, and back, held Smitherman
down on the floor so that other officers could continue the
attack, sprayed a chemical agent in his face, beat him with a
metal detector, purposely applied handcuffs and shackles
excessively tightly, and repeatedly refused to allow Smitherman
to wash the chemical agent off his eyes and face.
53.

Compl. ¶¶ 32-

Sergeant Jane Doe was present during these events but

failed to intervene.

During these events, plaintiff suffered

lacerations on his head, back, shoulders, wrists, ankles and
exposure to chemical agent.

Id. ¶ 61.

2

Although using quotation marks to refer to Smitherman’s claims,
the Court has standardized some of the capitalization of the
words without noting each individual alteration. The Court also
assigned numbers to the counts for clarity.
2

After the assault, one of the prison guards, defendant
Boisse, threatened to kill Smitherman if he complained about
what had happened.

Smitherman was then brought to the Health

Services Unit, where Lieutenant “John Doe” would not allow
Smitherman’s restraints to be removed so that Nurse “Anne Moe”
could examine him for possible injuries.

The nurse only wiped

his face and left; and the correctional officers that remained
with Smitherman ignored his complaints that he was asthmatic and
was having difficulty breathing.
That evening, Smitherman was placed in the Special
Management Unit.

Correction officers uncuffed him when he

arrived at the unit.

For this operation, the officers ordered

Smitherman to put his hands through the foot slot; Smitherman
complied.

However, instead of simply uncuffing or cuffing the

plaintiff, the correction officers (Boisse and Pasquel) pulled
his hands all the way through the food slot, causing Smitherman
to scream out in pain and his shoulder to snap.

Although

Smitherman complained that the officers were hurting him, they
“repeated the same abuse when removing the shackles.”

Id. ¶ 54.

Shortly thereafter, a different cadre of correctional officers
(various “John Does”) cuffed Smitherman in the same painful
manner.
Based on these allegations, Smitherman brings claims for
violation of his rights under the Eighth Amendment and the
3

Massachusetts Constitution.

He also brings a tort claim for

assault and battery.
Count II: “Intentionally Interfering with Prescribed Medical
Treatment” (Compl. ¶¶ 66-69, 134)
On August 13, 2012, Smitherman informed defendant
Correctional Officers Boisse, Colston, and Jacob Roberts that
“he had a medical handcuff restriction for . . . extra-large
cuffs due to his shoulder injury and request that they use the
available big cuffs when cuffing him for his mandatory showder
[sic].”

Id. ¶ 66.

The officers, however, used the regular-

sized cuffs, which caused Smitherman to experience serious pain
in his shoulder.

His cuffs cut into his wrists, especially when

one of the officers yanked on them.

When Smitherman complained

about the pain, one guard replied, “[T]hat’s . . . what you get
for complaining about being threaten [sic].”

Id. ¶ 67.

Based on these allegations, Smitherman brings a claim for
deliberate indifference to a serious medical need, in violation
of his rights under the Eighth Amendment.
Count III: “Failure to Protect” (Compl. ¶¶ 70-87, 135)
On July 10, 2012, Superintendent Bruce Gelb, Deputy
Superintendents Michael Rodriguez and Osvaldo Vidal, and Captain
Kevin Whippen moved Smitherman’s known enemy into his cell.
Both prisoners orally informed Osvaldo and Whippen, who were
present, that they were enemies and could not be housed in the

4

same cell.

Smitherman and his enemy asked to be separated, but

Osvaldo and Whippen replied “deal with it” and “next question.”
Id. ¶ 75.

Thereafter, the two prisoners assaulted each other.

Smitherman injured his shoulder and scalp, and developed a
headache and blurry vision.

Pursuant to the order of Gelb,

Rodriguez, Osvaldo and Whippen, the two prisoners were placed
again in the same cell, and another physical fight ensued; yet,
Smitherman and his enemy were still assigned to the same cell.
When guards ignored Smitherman’s requests to speak with a
medical professional about the placement and his history of
sexual abuse, he cut his wrists to avoid the cell assignment.
Smitherman was placed on suicide watch.
Smitherman asserts that the defendants are liable for
violating his rights under the Eighth Amendment and M.G.L. ch.
127, § 22.
Count IV: Alleged “Failure to Discipline Officers”
(Compl. ¶¶ 59, 60, 136)
Gelb, Vidal, Rodriguez, Whippen, Jane Doe, and DOC
Commissioner Luis Spencer failed “to take disciplinary or other
action to curb the known pattern of misuse of chemical agent and
of physical abuse of prisoners” by their subordinates.”
§ 136.

5

Id.

Count V:

Alleged “Retaliatory Disciplinary Action”
(Compl. ¶¶ 88-101, 137)

On September 1, 2016, plaintiff filed three formal
grievances directly with the DOC’s Director of Administrative
Resolution, defendant Kristie Ladouceur, alleging that various
officers and defendants misused force on August 2, 2013.
Correctional Officer Jeffrey Cardin allegedly wrote a false
disciplinary report against Smitherman in retaliation for filing
informal and formal grievances about the guards’ excessive use
of force and use of a chemical agent.

Smitherman was charged

with making false allegations against staff for his own personal
gain.

Correctional Officer Donald Griffiths conducted the

disciplinary hearing and ruled against him.

As a sanction,

Smitherman lost certain canteen privileges.

Gelb subsequently

denied Smitherman’s appeal.

Smitherman asserts this alleged

misconduct deprived him of his First Amendment rights.

There is

no mention of defendant Bedard’s conduct.
Count VI: Alleged “Due Process Violation”
(Compl. ¶¶ 88-101, 138)
Plaintiff asserts significant deficiencies in regards to
the hearing on the charge that Smitherman had made false
allegations against staff, including a failure to provide
Smitherman with adequate notice of the charges against him or
with complete copies of relevant documents.

6

Based on these assertions, Smitherman brings claims for
violations of his Fourteenth Amendment Due Process rights and
state regulations regarding prisoner disciplinary hearings (103
C.M.R. §§ 430.11(1)(a)-(c), 491.07, and 491.17.(1).
Count VII: “Double Bunk Policy”
(Compl. ¶¶ 118-130, 139)
On different occasions from July through December 2012,
Smitherman attempted to speak to mental health counselors about
his history of being sexually abused, both as a child and while
incarcerated.

On these particular incidents, the mental health

counselors ignored him.

In December 2012, Smitherman filed a

grievance on the matter, including a request that he be afforded
a single-bunk cell because of this history of abuse.

His

grievance was denied.
Based on these assertions, Smitherman brings claims for
violations of rights under the Eighth Amendment, Title II of the
Americans with Disabilities Act, 42 U.S.C. § 12131 et seq.,
M.G.L. ch. 127, § 22, and 105 C.M.R. § 451.320.
Count VIII: “Denial of Kosher Meal for Violating rule Without
Prior Notice of Rule” (Compl. ¶¶ 102-117, 140)
Smitherman’s religious belief requires him to eat a Kosher
meal, which the defendants provided.

From September 1, 2012

through January 2013, Smitherman voluntarily began fasting to
lose weight for medical purposes.

He limited his solid food

intake to one meal a day, if at all.
7

Smitherman was under the

impression that at meal time, if he signed for his Kosher meal
but did not eat it, he would have to throw it away or give it to
another inmate, both of which were disciplinary violations.
Thus, as a result of this self-imposed dietary regime,
Smitherman did not always sign for his Kosher meal.
On October 1, 2012, Smitherman was informed that his name
had been removed from the Kosher religious meal list.

He wrote

to the superintendent and spoke to the food service director
about this issue and was informed about the policy at SBCC to
remove a prisoner from the religious meal list if he fails to
sign for his religious meal three times in a thirty-day period.
Smitherman was hitherto unaware of this rule.

Although he

informed prison officials of the medical reason for which he had
not signed for his Kosher meals, they refused to restore his
name to the religious meal list.

Based on these assertions,

Smitherman asserts claims under the Religious Land Use and
Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C.
§ 2000cc, the Massachusetts Constitution, and 103 C.M.R. § 477,
761.07(10).
II.

Discussion
A.

Standard

“[A] motion for judgment on the pleadings serves ‘as a
vehicle to test the plausibility of a complaint,’ [and] it is
treated like a motion to dismiss under Rule 12(b)(6).”
8

In re

Curran, 855 F.3d 19, 25 (1st Cir. 2017) (quoting Shay v.
Walters, 702 F.3d 76, 82 (1st Cir. 2012)).

In deciding a motion

under Rule 12(c)of the Civil Rules of Civil Procedure for
judgment on the pleadings, the Court “take[s] all well-pleaded
facts in the light most favorable to the non-moving party and
draw[s] all reasonable inferences in that party’s favor.”

Najas

Realty, LLC v. Seekonk Water Dist., 821 F.3d 134, 140 (1st Cir.
2016).

A complaint clears the pleading hurdle, when the

plaintiff’s factual allegations “plausibly narrate a claim for
relief.”

Germanowski v. Harris, 854 F.3d 68, 71 (1st Cir. 2017)

(quoting Schatz v. Republican State Leadership Committee, 669
F.3d 50, 55 (1st Cir. 2012)).

“In order to give rise to a

“plausible” claim, a complaint must plead “factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”

Id. at 72

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In
reviewing the sufficiency of the complaint, the Court must
liberally construe the pleading because Smitherman is proceeding
pro se.
B.

See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
Procedural Issues
1.

Unserved Defendants

Nineteen DOC Defendants have not been served.

The DOC

Defendants argue that they all should be dismissed under Rule
4(m) of the Federal Rules of Civil Procedure.
9

At the time this

action was initiated, Rule 4(m) required that service of
summonses be completed within 120 days of the filing of the
complaint.
Both the former and current versions of Rule 4(m) allow the
Court to extend the period of time for service for good cause,
which the Court will do in this instance.

Summonses have not

issued as to seventeen of the nineteen unserved DOC Defendants
because they have fictitious names.

The Court previously

ordered that if, through discovery, Smitherman discovered the
true identify of these parties, he should act promptly to amend
the complaint.

(Docket Entry No. 16).

Because the parties have

not been engaged in discovery, Smitherman presumably has not
been able to identify these defendants.

Accordingly, given the

age of this case, the plaintiff shall name the defendants within
90 days of discovery or the “John Doe” defendants will be
dismissed.
The other two unserved DOC Defendants--Pamela O’Dell and
Donald Griffeths--could not be located by the United States
Marshals Service (“USMS”).

The return of service for both of

them (Docket Entry Nos. 38, 39) indicates that, pursuant to
Smitherman’s instructions, the USMS attempted to serve both of
them at SBCC but was informed that those defendants were no
longer at that institution.

10

Accordingly, the Court will not dismiss these two unserved
DOC Defendants.

As to defendant Griffeths, counsel for the DOC

Defendants shall, within twenty-one days of the date of this
order either (1) notify the Court that service of summons and
the complaint is waived; or (2) provide under seal an address at
which Griffiths can be served.
At this time, service on O’Dell is not necessary.

For the

reasons set forth below, the Court is severing Count VIII from
this action.

Count VIII is the only claim in which O’Dell is

identified as a defendant.

Should Smitherman choose to pursue

Count VIII in a separate action, the Court will address service
on O’Dell at that time.
2.

Improper Joinder of Claims and Defendants

The DOC Defendants argue that Smitherman’s complaint is
subject to dismissal because he has improperly joined claims and
defendants.
The Court agrees with the DOC Defendants that some of
Smitherman’s claims and defendants are improperly joined.

Rule

18(a) of the Federal Rules of Civil Procedure provides: “A party
asserting a claim . . . may join, as independent or alternative
claims, as many claims as it has against an opposing party.”
Fed. R. Civ. P. 18(a).

However, “[d]espite the broad language

of Rule 18(a), plaintiff may join multiple defendants in a
single action only if plaintiff asserts at least one claim to
11

relief against each of them that arises out of the same
transaction or occurrence and presents questions of law or fact
common to all.”

7 Charles Alan Wright et al., Federal Practice

and Procedure § 1655 (3d ed. 2009).

Rule 18(a) permits multiple

claims against a single party, but it does not permit the
joinder of unrelated claims against different defendants.

See,

e.g., George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007)
(“Unrelated claims against different defendants belong in
different suits, not only to prevent the sort of morass that
this 50–claim, 24–defendant suit produced but also to ensure
that prisoners pay the required filing fees—for the Prison
Litigation Reform Act limits to 3 the number of frivolous suits
or appeals that any prisoner may file without prepayment of the
required fees.”).

Similarly, under Rule 20(a) of the Federal

Rules of Civil Procedure persons may be joined as defendants in
a single action if “there is asserted against them jointly,
severally, or in the alternative with respect to or arising out
of the same transaction, occurrence, or series of transactions
or occurrences; and any question of law or fact common to all
defendants will arise in the action.”

Fed. R. Civ. P. 20(a)(2).

These rules of joinder preclude plaintiffs from pursuing claims
through a “buckshot” or “mishmash” complaint.
F.3d at 607.

12

See George, 507

Here, Smitherman has not alleged that all of the defendants
he has named participated in the same transaction or series of
transactions and that a question of fact is common to all of the
defendants.

Thus, severing claims into separate actions is

appropriate, see Fed. R. Civ. P. 21, and the Court will do so as
follows: The claims which concern the alleged use of excessive
force against Smitherman and retaliation against him for
complaining of the same, shall remain in this action. 3 The Court
will dismiss the remaining claims involving the conditions of
confinement (Counts III, VII, VIII) without prejudice unless
plaintiff informs the Court within 21 days that he wishes to
pursue these claims as a separately filed action.
C.

The Constitutional Claims
1.

Official Capacity Claims under 42 U.S.C. § 1983
for Violations of the First, Eighth, and
Fourteenth Amendments

Smitherman brings claims for violations of his rights under
the First, Eighth, and Fourteenth amendments of the United
States Constitution.

See Will v. Mich. Dep’t of State Police,

491 U.S. 58, 71 (1989). Claims for violations of federal rights
by state actors must be brought under 42 U.S.C. § 1983.

In

passing § 1983, Congress did not abrogate the Eleventh Amendment
immunity of the states.
(1979).

See Quern v. Jordon, 440 U.S. 332, 365

Thus, Smitherman may pursue claims under § 1983 against
3

As set forth infra, Counts IV and VI will be dismissed.
13

the defendants acting in their individual capacities, but the
§ 1983 claims against defendants acting in their official
capacities must be dismissed.
2.

Count I: Misuse of Force

The DOC Defendants (Stevenson, Winewski, Harrison, Boisse,
Colston, and Pasquel and Roberts) contend that plaintiff has
failed to allege more than a de minimus use of force by the
defendants to state a plausible claim under the Eighth and
Fourteenth Amendments.

Id. at 17.

The DOC Defendants

themselves describe the pertinent factual allegations as
follows:
Plaintiff alleges that on August 2, 2012 he was
beaten by multiple defendants, had a chemical agent
sprayed in his face, was beaten with a hand held metal
detector and handcuffs, and had his cuffed arms pulled
up multiple times causing injury to his shoulder,
Complaint, ¶¶ 32-65, 132, 133. He further alleges he
sustained lacerations to his head, back, shoulders,
wrists and ankles, and that he was exposed to a
chemical agent. Complaint, ¶ 61.
DOC Defs.’ Mem. at 16. These factual allegations are sufficient
to state a claim.
3.

Count II: Intentional Interference with
Prescribed Medical Treatment--Handcuff
Restriction

Smitherman claims his Eighth Amendment rights were violated
when the DOC Defendants Boisse, Colston, and Roberts allegedly

14

regular-sized handcuffs even though Smitherman had been
prescribed a larger handcuff.
The DOC Defendants assert that Smitherman has “failed to
provide any specific facts, or provided any evidence
demonstrating that he, in fact, had a medically prescribed
restriction regarding the size of handcuffs that should be used
upon him.”

DOC Defs.’ Mem. at 18.

They further reason that a

“[m]edical need for larger handcuffs is not sufficiently
serious,” id. at 18, and that, even if it were, “he can not
demonstrate that DOC officials were deliberately indifferent to,
and interfered with his medical needs,” id. at 20.

They

conclude that, because “the plaintiff’s claims were investigated
by DOC staff members [who concluded the claims were unfounded],
it cannot be said that the defendants were deliberately
indifferent to his medical needs, serious or otherwise.”

Id. at

20.
Smitherman adequately alleges that he informed defendants
Colston, Roberts and Boisse “that he had a medical handcuff
restriction for big cuffs extra-large cuffs due to his shoulder
injury.”

Compl. ¶ 66.

A medical need for a cuff accommodation

can be sufficiently serious for purposes of an Eighth Amendment
claim, see e.g., McCreary v. Massey, 366 Fed. Appx. 516, 517-18
(5th Cir. 2010), and ignoring this need can also serve as the
basis for an excessive force claim, see, e.g., Aldape v.
15

Lambert, 34 F.3d 619, 623-24 (8th Cir. 1994) (upholding jury
verdict in favor of inmate on Eighth Amendment excessive force
claim who claimed that prison guards ignored medical order that
prisoner not be cuffed behind his back; rejecting defendant’s
argument that knowingly cuffing prisoner contrary to medical
order was not serious enough to constitute Eighth Amendment
violation).

The motion for judgment on the pleadings will not

be granted in regards to this claim against Colston, Roberts and
Boisse.
4.

Count IV: Failure to Discipline.

The DOC Defendants argue that supervisory liability under
§ 1983 cannot be based on a theory of vicarious liability.

“It

is well-established that ‘only those individuals who
participated in the conduct that deprived the plaintiff of his
rights can be held liable.’”

Velez-Rivera v. Agosto-Alicea, 437

F.3d 146, 156 (1st Cir. 2006) (quoting Cepero-Rivera v. Fagundo,
414 F.3d 124, 129 (1st Cir. 2005)).

“In § 1983 cases,

‘supervisors are not automatically liable for the misconduct of
those under their command.

A plaintiff must show an affirmative

link between the subordinate officer and the supervisor, whether
through direct participation or through conduct that amounts to
condonation or tacit authorization.’”

Id. (quoting Carmona v.

Toledo, 215 F.3d 124, 132 (1st Cir. 2000)).

16

The Court finds that Smitherman has not adequately pled
direct involvement by six-named supervisory defendants (Gelb,
Vidal, Whippen, Rodriguez, Spencer, and Jane Doe) in the
constitutional violations that were physically carried out by
their subordinates.

Smitherman asserts in conclusory fashion

that all of the defendants who directly inflicted excessive
force on him “have repeatedly engaged in excessive force against
prisoners in the past,” Comp. ¶ 59, and that the supervisory
defendants “failed to take disciplinary or other action “to curb
the known pattern of misuse of chemical agent and of physical
abuse of prisoners” by these defendants,” id. ¶ 135.

Further,

Smitherman asserts that, despite the “known pattern of misuse of
chemical agent,” Gelb “authorized the Defendants, including
Stevenson to carry and use chemical agent on prisoners at their
discretion.”

Id. ¶ 136.

These allegations insufficiently plead an affirmative link
between the conduct of the Gelb, Vidal, Rodriguez, Whippen,
Spencer, and Jane Doe and the unlawful use of excessive force
directly inflicted on Smitherman by their subordinates.

To

state a plausible claim of supervisory liability, the plaintiff
must allege facts to support his bald-faced conclusion that the
named individual defendants had a pattern of using excessive
force which the supervisors knew about or that there was a
pattern of misuse of chemical agents.
17

Accordingly, the Court

allows the motion for judgment on the pleadings on this claim as
to Gelb, Vidal, Rodriguez, Whippen, Jane Doe and Spencer.
5.

Count V: Retaliatory Disciplinary Action

Smitherman claims that he was retaliated against for filing
an informal grievance concerning the alleged use of excessive
force on August 2, 2012.

The alleged retaliatory disciplinary

report was filed on October 2, 2012 by Correctional Officer
Cardin, who claimed that Smitherman made false allegations
against staff for his personal gain.

Smitherman further alleges

that Correctional Officer Griffiths deliberately ignored his
rights during the disciplinary process.
The alleged facts suggest a plausible connection between
Smitherman’s complaint of excessive force (conduct protected
under the First Amendment), the disciplinary report charging him
with lying about the use of force (the retaliatory action), and
the alleged deficiencies in the hearing.

If Smitherman’s

allegation of excessive force was false, then he was not engaged
in conduct protected by the First Amendment.

However, if

Smitherman’s grievance was truthful, a claim of an impermissible
retaliatory motive is plausible.
Nonetheless, Count V shall be dismissed as to
Superintendent Gelb, Correctional Lieutenant Greg Bedard and
Director Ladouceur.

Smitherman’s only allegation against Gelb

is that he denied Smitherman’s appeal of the disciplinary ruling
18

against him.

See Compl. § 101.

Smitherman has not alleged

facts from which the Court can reasonably infer that Gelb knew
or should have known of the retaliatory nature of the
disciplinary charge or hearing, thus precluding any suggestion
of a retaliatory motive on his part or other involvement in the
alleged retaliation.
The Court will dismiss Bedard as a defendant because
Smitherman has not alleged any conduct by him.

In the

recitation of the parties, Smitherman identifies Bedard as a
correctional lieutenant “responsible for processing all
disciplinary matters.”

Id. § 20.

Other than being named as a

defendant in Count V, this is the only mention of Bedard in the
complaint.

Similarly, there is no allegation that Ladouceur

took any action against him and therefore she is dismissed.
6.

Count VI: Due Process

Smitherman also claims that the deficiencies in the hearing
on the allegedly retaliatory disciplinary charge violated his
right to due process.
The Due Process Clause of the Fourteenth Amendment
“protects persons against deprivations of life, liberty, or
property; and those who seek to invoke its procedural protection
must establish that one of these interests is at stake.”
Wilkinson v. Austin, 545 U.S. 209, 221 (2005).

An inmate does

not, however, have a liberty interest in avoiding a particular
19

condition of confinement unless the condition “imposes atypical
and significant hardship on the inmate in relation to the
ordinary incidents of prison life.”

Id. at 222-23 (quoting

Sandin v. Conner, 515 U.S. 472, 484 (1995)).
Here, the disciplinary procedure resulted in the temporary
loss of canteen charges.

This sanction does not “impose[]

atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life.”

See, e.g., Toney v.

Owen, 779 F.3d 330, 341-42 (5th Cir. 2015).

Accordingly,

Smitherman did not have a liberty interest at stake.

The motion

for judgment on the pleadings will be granted on this claim.
7.

Qualified Immunity

Qualified immunity shields government officials performing
discretionary functions from “liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.”
(1992).

Harlow v. Fitzgerald, 457 U.S. 800, 818

The DOC Defendants assert, in a conclusory manner, that

the defense of qualified immunity applies to all of Smitherman’s
claims.

In the context of an excessive force claim, “qualified

immunity gives an officer the benefit of a margin of error.”
Mlodzinski v. Lewis, 648 F.3d 24, 33 (1st Cir. 2011) (quoting
Morelli v. Webster, 552 F.3d 12, 24 (2009)).

20

Here, the facts, as alleged by Smithermen, do not present a
situation in which the defendants were acting within “a margin
of error” in regards to excessive force or retaliation.

A claim

of excessive force to subdue a convicted prisoner is analyzed
under the Eighth Amendment standard.
U.S. 312, 318-326 (1986).

See Whitley v. Albers, 475

Courts require that a claimant

“allege and prove the unnecessary and wanton infliction of pain”
to satisfy Eighth Amendment requirements.

Id. at 320.

It is

true that “[n]ot every push and shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates a
prisoner’s constitutional rights.”

Hudson v. McMillian, 503

U.S. 1, 9 (1992) (quoting Johnson v. Glick, 481 F.2d, 1028, 1033
(2d Cir. 1973)).

Whether the use of force against a prisoner

violates the Eighth Amendment “ultimately turns on whether force
was applied in a good faith effort to maintain or restore
discipline or maliciously and sadistically for the very purpose
of causing harm.”

Whitley, 475 U.S. 312, 320-21 (quoting

Johnson, 481 F.2d at 1033).
Smitherman alleges that the defendants brutally attacked
him for no reason whatsoever.

His assertions set forth a

plausible claim for a violation of his rights under the Eighth
Amendment.

Because his right to be free from this alleged use

of excessive force was clearly established was clearly
established at the time, qualified immunity defense at the
21

pleading stage of the litigation is precluded.

Similarly, a

prisoner’s right to be free from retaliation for filing
grievances has long been clearly established.

See Hannon v.

Beard, 645 F.3d 45, 48 (1st Cir. 2011) (holding that prisoners,
in filing their own grievances, are “plainly engaged in
protected activity”).

Thus, where Smitherman has sufficiently

alleged that Cardin and Griffiths retaliated against him for
filing grievances, the defense of qualified immunity is not
supported by the pleading.

Cf. Maldonado v. Fontanes, 568 F.3d

263, 270-71 (1st Cir. 2009) (upholding denial of qualified
immunity defense at the pleading stage, taking plaintiffs’
allegations as true).
D.

State Constitutional, Statutory and Regulatory Claims

Smitherman bring claims under the Massachusetts
Constitution, M.G.L. ch. 127, § 22, and various regulations of
the Massachusetts Department of Correction.

The Commonwealth

has not waived its sovereign immunity as to any of these claims
against the state.

Further, no private right of action exists

under M.G.L. ch. 127, § 22 which states that two prisoners shall
not be allowed to occupy the same room “unless the crowded state
of the institution so requires.”

See Cryer v. Spencer, C.A. No.

11-10654-DJC, 2012 WL 892883, at *6 (D. Mass. Mar. 15, 2012), or
under the various regulations cited by Smitherman, see Frawley
v. Police Com’r of Cambridge, 473 Mass. 716, 722 (2016) (a
22

private right of action cannot be inferred from the regulation
of an agency of the Commonwealth); Hudson v. Com’r of Corr., 46
Mass. App. Ct. 538, 548 n.18 (1999) (same); 103 CMR §§ 430.02,
477.01, 491.01 (stating that regulations with those sections are
not intended to confer procedural or substantive not otherwise
granted by state or federal law).

Accordingly, the claims under

the Massachusetts Constitution, M.G.L. ch. 127, § 22, and
Massachusetts regulations shall be dismissed.
The state tort claims of assault and battery, however,
shall go forward.

Under the Massachusetts Tort Claims Act,

M.G.L. ch. 258 (“MTCA”), “[p]ublic employers shall be liable for
injury or loss of property or personal injury or death caused by
the negligent or wrongful act or omission of any public employee
while acting within the scope of his office or employment, in
the same manner and to the same extent as a private individual
under like circumstances.”

M.G.L. ch. 258, § 2.

Where the

tortfeasor is employed by the Commonwealth, the state, as the
“public employer,” is the proper defendant.

Massachusetts has

not waived its Eleventh Amendment immunity in regards to claims
under the MTCA, see Irwin v. Comm’r of Dep’t of Youth Servs.,
388 Mass 810, 821 (Mass. 1983).

“By enacting the Massachusetts

Tort Claims Act, the Commonwealth has not waived its Eleventh
Amendment immunity to suit in Federal Court.”
DuBois, 346 F.3d 213, 218 (1st Cir. 2003).
23

Carusso v.

To the extent

Smitherman brings claims for negligence, they are barred.
However, he has also brought claims for assault and battery.
The MTCA explicitly excludes from its reach “any claim arising
out an intentional tort.”

M.G.L. ch. 258, § 10(c).

Accordingly, the motion for judgment on the pleadings shall not
be granted as to the assault and battery claims.
III. Conclusion
Accordingly, the motion for judgment on the pleadings
(Docket Entry No. 69) is GRANTED as follows:
1.

Insofar as the plaintiff asserts official capacity

claims under § 1983, those claims are DISMISSED.
2.

All official capacity claims under the Massachusetts

Constitution are DISMISSED.
3.

All claims under M.G.L. ch. 127, § 22 and

Massachusetts regulations are DISMISSED.
4.

Count VI, the Due Process claim arising out of

Smitherman’s disciplinary proceeding, is DISMISSED.
5.

Count IV--against Gelb, Vidal, Whippen, Rodriguez,

Spencer, and Jane Doe--is DISMISSED.
6.

Count V shall be DISMISSED as to Gelb, Bedard, and

Ladouceur.
7.

Counts III, VII, and VIII shall be severed from this

case and within 21 days Smitherman shall notify the Court

24

whether he wants to proceed with a separate action on any of
these claims.
If Smitherman does not within 21 days notify the Court that
he wishes to pursue Counts III, VII, or VIII, the claims will be
dismissed without prejudice.

If Smitherman timely notifies the

Court that he wishes to prosecute Counts III, VII, and/or VIII:
a.

The Clerk shall assign a new case number to the
new action.

b.

The complaint in this action (Docket Entry No. 1)
shall be docketed in the new case as the
operative pleading.

Regardless of the date of

docketing of the complaint in a new action, it
shall be deemed filed on January 22, 2013.
c.

If Smitherman wants to proceed with a new case,
he must pay the $400 filing fee or seek leave to
proceed without prepayment of the filing fee.

If

Smitherman is allowed to proceed without
prepayment of the filing fee, he will be required
to pay the filing fee over time, regardless of
the outcome of the action.
The motion for judgment on the pleadings is otherwise
DENIED.
8.

Further, as to DOC Defendant Griffeths, counsel for

the DOC defendants shall, within 14 days of the date of this
25

order, either (1) notify the Court that service of summons and
the complaint is waived as to this defendant; or (2) provide
under seal an address at which Griffiths can be served.
9.

Defendants D.J. Hager and Meaghan Dupuis’ Motion for

Judgment on the Pleadings (Docket Entry No. 72) is DENIED
without prejudice pending plaintiff’s decision as to when to
file a new action.
10.

All discovery on the remaining claims shall be

completed by November 1, 2017.

Any summary judgment motion

shall be filed by November 15, 2017.

SO ORDERED.
/s/ Patti B. Saris ______________
PATTI B. SARIS
CHIEF, U.S. DISTRICT JUDGE

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