Holloman v. Deakin et al

Filing 128

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER, granting in part and denying in part 52 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Ferrara, Amy Owens, Jeffrey P. Daigneault, Aaron Gill, Bruce Gelb, Frank Maine.(Lima, Christine)

United States District Court
District of Massachusetts

TAJUAN HOLLOMAN,
Plaintiff,
v.
HARDOLD CLARKE, et al.,
Defendants.

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Civil Action No.
14-12594-NMG

MEMORANDUM & ORDER
GORTON, J.
This case involves claims brought under 42 U.S.C. § 1983 by
plaintiff Tajuan Holloman (“Holloman”) against 26 defendants.
Pending before the Court is the joint motion of six of the
defendants to dismiss the complaint for failure to state claims
upon which relief can be granted.

For the reasons that follow,

the motion will be allowed, in part, and denied, in part.
I.

Background
Holloman is an inmate currently incarcerated in the

Massachusetts Correctional Institution in Shirley,
Massachusetts.

Holloman’s claims arise mostly from events that

occurred while he was a pretrial detainee having been
transferred from the Suffolk County Jail to the Massachusetts
Correctional Institution at Concord (“MCI-Concord”).

Holloman

has also made claims relating to later events, which occurred

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while he was detained at the Souza Baranowski Correctional
Center (“SBCC”).
After his preliminary screening of the case, United States
District Judge Douglas P. Woodlock of this Court issued a
memorandum and order (Docket No. 15) directing the issuance of
summons for service upon 11 of the defendants, including the six
defendants moving to dismiss here.

In doing so, Judge Woodlock

found that, for purposes of a preliminary screening, Holloman
had stated claims for excessive force, failure to intervene,
retaliation and denial of due process.

Judge Woodlock also

directed Holloman to show cause why his claims against the other
15 defendants should not be dismissed.

After Judge Woodlock

took senior status, the action was reassigned to this session on
June 9, 2015.
This Court has granted Holloman several extensions of time
to file his show cause response, denied his request for a
subpoena, granted, in part, defendants’ motion to stay the
proceedings and denied plaintiff’s motions for default judgment
and reconsideration.
In January, 2016, this Court issued a memorandum and order
allowing Holloman to proceed against defendants David Deakin,
Harold Clarke, James Bender, Lois Russo, John Brodbeck and Jorma
Maenpaa.

It also allowed the action to proceed against

defendants Brian McDonald (“MacDonald”), Sergeant Fasoli,

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Michael Rodrigues, Gregory Bedard, James Thornton and Shelley
Williams and denied the motions of defendants Anthony Mendosa,
Luis Spencer, Pamela O’Dell, Kristie Ladouceur and Thomas Fedel
to dismiss for lack of service.

Holloman’s claims against Nick

Palodian, Thomas Tocci and f/n/u Wendover relating to
interference with legal mail and denial of access to the courts
were dismissed sua sponte because Holloman failed to show good
cause why the claims should not be dismissed.
Six of the defendants, namely, Aaron Gill, Lieutenant
Ferrarra, Frank Maine, Bruce Gelb, Amy Owens and Jeffrey
Daigneault, filed a joint motion to dismiss in October, 2015.
That motion is the subject matter of this memorandum.
II.

Motion to Dismiss
A. Legal Standard
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 nonconclusory 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

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1, 12 (1st Cir. 2011).

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. Analysis
1.

Claims Against Gill, Ferrarra and Maine for
Excessive Force

Holloman alleges that defendant Gill ordered his team to
beat Holloman while he was in handcuffs and that Gill
participated in the alleged beating by kneeing Holloman in the
groin multiple times.

Holloman then asserts he was dragged to

the booking area for transportation and that Ferrarra and Maine
watched Gill and his team beat Holloman without intervening.
Holloman contends that those actions (and failures to act)
violated his due process rights under the Fourteenth Amendment
and his Eighth Amendment right to be free from cruel and unusual
punishment.

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Gill, Ferrarra and Maine respond that any use of force
against the plaintiff was constitutionally “de minimis” and does
not give rise to a claim for excessive force.
At the time of the alleged incidents, Holloman was a
pretrial detainee, so the Fourteenth Amendment’s Due Process
Clause governs Holloman’s claims for excessive force. See
Miranda-Rivera v. Toledo-Davila, 813 F.3d 64, 70 (1st Cir. 2016)
(citing Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473-74
(2015)).

To establish a claim for excessive force, the

plaintiff must show that the defendant “purposely or knowingly
used [force] against him[, which] was objectively unreasonable.”
Kingsley, 135 S. Ct. at 2473.
If Holloman’s allegations are true, as presumed for the
purpose of the pending motion, a factfinder could plausibly
infer Gill’s actions were objectively unreasonable.

Therefore

Holloman has properly stated a claim for excessive force against
Gill.
Holloman also has stated a claim against defendants
Ferrarra and Maine for failing to intervene.

Officers can be

held liable for failing to intervene to protect pretrial
detainees from the use of excessive force by other officers.
Miranda-Rivera, 813 F.3d at 73.

Holloman does not suggest that

Ferrarra and Maine participated in the alleged use of excessive
force.

Instead, Holloman alleges that Ferrarra and Maine

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watched while Gill beat him and did nothing to stop Gill.

Thus,

Ferrarra and Maine could be found liable for failing to
intervene. See id.

Because Holloman has sufficiently stated a

claim against Gill for excessive force, he has also stated a
claim against Ferrarra and Maine for failing to intervene.

Cf.

id. (denying summary judgment on a failure to intervene claim
because summary judgment was also denied on the excessive force
claim).
Ferrarra and Maine contend they are entitled to qualified
immunity.

In determining whether Ferrarra and Maine are

entitled to qualified immunity, this Court must consider whether
Holloman has alleged a violation of a constitutional right and
whether that right was “clearly established” at the time of
Ferrarra and Maine’s alleged misconduct. See id. at 72.
First, as concluded above, Holloman has sufficiently
alleged a violation of his Fourteenth Amendment constitutional
rights.
Second, cases before 2012, when the conduct here allegedly
occurred, clearly establish that an officer has a duty to
intervene when another officer uses excessive force against a
pretrial detainee. See Davis v. Rennie, 264 F.3d 86, 113-14 (1st
Cir. 2001).

Even though the Supreme Court held in 2015 that the

Fourteenth Amendment objective standard applies to pretrial
detainees in excessive force cases, both the Fourteenth

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Amendment and the standard for failure to intervene turn on the
reasonableness of the circumstances. As a result, the standard
was clearly established in 2012. Cf. id. at 102 (concluding it
was not plain error not to instruct the jury specifically on
“objective reasonableness” for the failure to intervene because
of the objective components of such a claim).
Because Holloman has alleged a constitutional violation
that was clearly established at the time of the alleged conduct
of Ferrarra and Maine, they are not entitled to qualified
immunity.
2.

Claim Against Owens for Denial of Meaningful
Access to the Courts

Holloman claims that defendant Owens denied him meaningful
access to the courts in violation of the First and Sixth
Amendments.

Owens responds that Holloman’s claim fails because

he did not allege any specific harm.
Inmates have a constitutional right of access to the
courts, and indigent inmates have a right to free postage for
certain legal documents. See Bounds v. Smith, 430 U.S. 817, 824–
25 (1977).

To state a constitutional claim for denial of access

to the courts, the plaintiff must identify a policy or practice
that denies inmates meaningful access to the courts and allege
that the policy or practice hindered the plaintiff from pursuing
a legal claim. See Lewis v. Casey, 518 U.S. 343, 350-51 (1996).

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Holloman fails to state a claim against Owens because he
does not allege any injury that resulted from the return of his
mailings.

Holloman avers that Owens hindered his access to the

court, his attorney and the prosecutor by rejecting his indigent
mailing because he was not found indigent.

Holloman does not,

however, allege an actual injury nor that the return of his
mailings hindered his pursuit of a legal claim and,
consequently, he does not state a claim for denial of access to
the courts. See Gaskins v. Dickhaut, 881 F. Supp. 2d 223, 225
(D. Mass. 2012).
3.

Claim Against Daigneault for Retaliation

Holloman alleges that defendant Daigneault retaliated
against him in violation of the First Amendment.

Holloman

declares that Daigneault filed a false disciplinary report
against him after he filed a grievance against Daigneault for
alleged discriminatory comments made to Holloman.
To succeed in a First Amendment claim for retaliation, a
plaintiff’s conduct must be constitutionally protected and a
substantial or motivating factor driving the claimed retaliatory
action. See Air Sunshine, Inc. v. Carl, 663 F.3d 27, 35-36 (1st
Cir. 2011).
Holloman’s claims fail to meet that standard.

Holloman

engaged in constitutionally protected activity when he filed a
grievance against Daigneault. Hannon v. Beard 645 F.3d 45,

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48(1st Cir. 2011).

He does not allege that Daigneault was aware

of the grievance filed before the defendant filed a disciplinary
report and thus the claim of retaliation lacks plausibility.
Hannon v. Beard, 979 F. Supp. 2d 136, 140 (D. Mass. 2013).
Furthermore, to the extent Holloman is challenging the
disciplinary proceedings against him, this Court is not the
appropriate forum.

Massachusetts law requires claimants to

bring challenges to disciplinary proceedings in state court.
M.G.L. c. 249 § 4.
4.

Claims Against Gelb for Denial of Due Process

Holloman asserts due process claims against defendant Gelb
in his roles as Superintendent of MCI-Concord and as
Superintendent of the SBCC.
a.

Claims Against Gelb as Superintendent at
MCI-Concord

First, plaintiff claims that Gelb and others violated his
Fourteenth Amendment Due Process rights by confining him to
segregation and isolation at MCI-Concord as a pretrial detainee.
Defendants reply that Holloman’s claims are barred by the
statute of limitations.
State statutes of limitations for personal injuries apply
to § 1983 claims. Benitez-Pons v. Commonwealth of Puerto Rico,
136 F.3d 54, 59 (1st Cir. 1998).

Massachusetts law provides for

a three-year limitations period for such claims. M.C.L. c. 260,

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§ 2A; McIntosh v. Antonio, 71 F.3d 29, 33 (1st Cir. 1995).
Holloman’s segregation and isolation at MCI-Concord occurred
between December 3, 2010, and December 6, 2010, meaning that the
statute of limitations began to run on the latter date.

Because

Holloman did not file his lawsuit until 2014, his claims against
Gelb with respect to Gelb’s conduct at MCI-Concord are timebarred.
Holloman counters that the statute of limitations should be
equitably tolled because he was required to exhaust his state
administrative remedies and he suffered from depression and
distress, rendering him unable to file a claim sooner.
Defendants respond that Holloman had a sufficiently sound mind
and ample time to file a claim.
Equitable tolling is available only in “exceptional
circumstances.” Vistamar, Inc. v. Fagundo-Fagundo, 430 F.3d 66,
71 (1st Cir. 2005).

The First Circuit Court of Appeals has not,

however, yet determined whether federal or state equitable
tolling principles apply. Id. at 71-72.

Here, equitable tolling

is inapplicable under either federal or state standards.
Under federal law, equitable tolling requires “excusable
ignorance of the statute of limitations caused by some
misconduct of the defendant.” Benitez-Pons, 136 F.3d at 61.
Because Holloman did not claim ignorance of the limitations

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period, he does not satisfy the federal requirements for
equitable tolling. See Vistamar, 430 F.3d at 72.
Holloman’s claim for equitable tolling under state law also
fails.

Massachusetts law allows for equitable tolling when a

prospective plaintiff did not have, and could not have
had with due diligence, the information essential to
bringing suit.
Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 631 (1997).
Holloman does not allege that he lacked the information
necessary to bring a suit against Gelb for the time period
between December 6, 2010, his last day at MCI-Concord, and June
9, 2011, three years before Holloman filed his complaint.
Therefore, equitable tolling does not apply under state law.
Finally, Holloman asserts that the statute of limitations
should be tolled while he was exhausting his administrative
remedies.

Although several Courts of Appeals have extended

tolling while plaintiffs exhausted their administrative
remedies, no First Circuit authority supports tolling in such
circumstances.

Furthermore, even if the limitations were tolled

while Holloman exhausted his remedies, he failed to “sketch a
factual predicate” providing a basis for tolling the statute of
limitations. Trans-Spec Truck Servs., Inc. v. Caterpillar Inc.,
524 F.3d 315, 320 (1st Cir. 2008).

Holloman alleges in his

complaint that he filed a grievance against Gelb in December,
2010, but the grievance was “ignored, rejected, and denied.”

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Holloman does not indicate how long it took for state officials
to reject or deny his requests so the Court cannot determine the
requested length of tolling.
Because Holloman has not met the standards for equitable
tolling, his claims against Gelb arising from his incarceration
at MCI-Concord are barred by the statute of limitations.
b.

Claims Against Gelb as Superintendent at the
SBCC

Holloman also asserts that Gelb violated his substantive
and procedural due process rights as a result of being held in
isolated segregation.

He specifically maintains that Gelb

violated his due process rights when Gelb denied various
grievances.
Although prison officials who punish a pretrial detainee
must provide sufficient process, Ford v. Bender, 768 F.3d 15, 27
(1st Cir. 2014), inmates do not have a constitutionally
protected right to a grievance procedure. E.g., Flick v. Alba,
932 F.2d 728, 729 (8th Cir. 1991) (per curiam); Mann v. Adams,
855 F.2d 639, 640 (9th Cir. 1988).
Holloman has not stated a claim against Gelb for violations
of his due process.

Gelb cannot be liable under § 1983 for

denying his grievances because Holloman is not entitled to any
grievance procedures regardless of whether Holloman was afforded
sufficient process before being held in isolated segregation.

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5.

Claims Against Defendants in Their Official
Capacities

Holloman sues all defendants in their individual and
official capacities.

To the extent he seeks damages under

§ 1983 against defendants in their official capacities, those
claims will be dismissed. See Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989) (“[N]either a State nor its
officials acting in their official capacities are ‘persons’
under § 1983.”).

ORDER
For the foregoing reasons, defendants’ motion to dismiss
(Docket No. 52) is:
1) with respect to the claim of excessive force by defendant
Aaron Gill in his individual capacity, DENIED;
2) with respect to the claim of failure to intervene by
defendants Lieutenant Ferrarra and Frank Maine in their
individual capacities, DENIED;
3) with respect to the claim of deprivation of meaningful
access to the courts by defendant Amy Owens in her
individual capacity, ALLOWED;
4) with respect to the claim of retaliation by defendant
Jeffrey Daigneault in his individual capacity, ALLOWED;
5) with respect to the claims of denial of due process by
defendant Bruce Gelb in his individual capacity, ALLOWED;
and

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6) with respect to all claims against defendants Aaron Gill,
Lieutenant Ferrarra, Frank Maine, Amy Owens, Jeffrey
Daigneault and Bruce Gelb in their official capacities,
ALLOWED.
So ordered.

/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated September 22, 2016

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