Latimore v. Suffolk County House of Correction et al

Filing 24

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER. In accordance with the foregoing discussion, SCSD's motion to dismiss (Docket Entry # 9 ) is ALLOWED as to all counts. (Patton, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JASON LATIMORE,
Plaintiff,

v.

CIVIL ACTION NO.
14-13378-MBB

SUFFOLK COUNTY HOUSE OF
CORRECTIONS, JOHN DOE CORRECTIONAL
OFFICER #1, JOHN DOE CORRECTIONAL
OFFICER #2,
Defendants.

MEMORANDUM AND ORDER RE:
DEFENDANT SUFFOLK COUNTY SHERIFF’S DEPARTMENT’S MOTION TO
DISMISS FOR FAILURE TO STATE A CLAIM (DOCKET ENTRY # 9)
December 1, 2015
BOWLER, U.S.M.J.
Pending before this court is a motion to dismiss filed by
defendant Suffolk County Sheriff’s Department (“SCSD”) under
Fed.R.Civ.P. 12(b)(6) (“Rule 12(b)(6)”).

(Docket Entry # 9).

Plaintiff Jason Latimore (“plaintiff”), a former inmate at the
Suffolk County House of Corrections, opposes dismissal.

(Docket

Entry # 16).
PROCEDURAL BACKGROUND
Plaintiff filed this civil rights action in August 2014.
(Docket Entry # 1).

The complaint sets out ten counts against

SCSD as well as two unidentified correction officers (“John Doe

Officer 1”) and (“John Doe Officer 2”).1
The counts are as follows:

(Docket Entry # 1).

(1) Count I for conversion; (2)

Count II for violations of 42 U.S.C. 1983 (“section 1983”); (3)
Count III for violations of the First Amendment; (4) Count IV
for violations of the Fifth Amendment; (5) Count V for
violations of the Sixth Amendment; (6) Count VI for violations
of the Fourteenth Amendment; (7) Count VII for violations of the
Massachusetts Civil Rights Act, Massachusetts General Laws
chapter 12, section 11I (“MCRA”); (8) Count VIII for intentional
infliction of emotional distress; (9) Count IX for violations of
Massachusetts General Laws chapter 124, section 1(b), (c) and
(q), Massachusetts General Laws chapter 125 and Massachusetts
General Laws chapter 127, sections three, 96(a) and 96(b), as
well as Massachusetts regulations codified at 103 C.M.R. 403;
and (10) Count X for violations of the Eighth Amendment.2
(Docket Entry # 1).
SCSD moves for dismissal of the complaint for failure to
state a claim upon which relief can be granted.

(Docket Entry #

1

  Although the complaint fails to note whether plaintiff is
suing the individual officers in their official or independent
capacity, plaintiff, who is proceeding pro se, clarifies that he
is suing the officers in their individual capacity in the
memorandum in opposition to the motion to dismiss. Accordingly,
SCSD’s argument that the Eleventh Amendment bans official
capacity claims against the individual officers is moot.
2
  The complaint seeks only monetary damages as opposed to any
form of injunctive or declaratory relief. (Docket Entry # 1, ¶
1, p. 2) (Docket Entry # 1, ¶¶ A-D, p. 11).

2

9).

Conversely, plaintiff contends that SCSD’s motion should be

denied because the complaint includes factual allegations that
demonstrate a plausible claim to relief.

(Docket Entry # 16).

STANDARD OF REVIEW
To survive a Rule (12)(b)(6) motion to dismiss, the
complaint must include factual allegations that when taken as
true demonstrate a plausible claim to relief even if actual
proof of the facts is improbable.

Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555-58 (2007).

Thus, while “not

equivalent to a probability requirement, the plausibility
standard asks for more than a sheer possibility that a defendant
has acted unlawfully.”

Boroian v. Mueller, 616 F.3d 60, 65 (1st

Cir. 2010) (internal quotation marks omitted).

“[W]here the

well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint . . . has not
show[n] that the pleader is entitled to relief.”

Feliciano-

Hernández v. Pereira-Castillo, 663 F.3d 527, 533 (1st Cir. 2011)
(internal quotation marks and citations omitted).
Taking the facts in the governing complaint as “true and
read in a plaintiff’s favor” even if seemingly incredible, the
complaint “must state a plausible, not a merely conceivable,
case for relief.”

Sepúlveda-Villarini v. Dep’t of Educ. of

Puerto Rico, 628 F.3d 25, 29-30 (1st Cir. 2010).

“[A]ccepting .

. . all well-pleaded facts in the complaint and making all

3

reasonable inferences in the plaintiff’s favor,” Boroian v.
Mueller, 616 F.3d at 64, the “factual allegations ‘must be
enough to raise a right to relief above the speculative level.’”
Gorelik v. Costin, PA-C, 605 F.3d 118, 121 (1st Cir. 2010).
Drawing reasonable inferences in plaintiff’s favor but eschewing
reliance on “‘bald assertions, . . . unsubstantiated
conclusions,’” Fantini v. Salem State College, 557 F.3d 22, 26
(1st Cir. 2009), and legal conclusions, see Dixon v. Shamrock
Financial Corp., 522 F.3d 76, 79 (1st Cir. 2008) (rejecting
unsupported conclusions or interpretations of law in reviewing
Rule 12(b)(6) dismissal), the complaint sets out the following
facts.
FACTUAL BACKGROUND
On May 29, 2014, plaintiff was an inmate at the Suffolk
County House of Corrections.

(Docket Entry # 1, p. 3).

Plaintiff was playing basketball on the recreation deck when
“there was a disturbance on the 32-unit dayroom.”
# 1, p. 3).

(Docket Entry

Plaintiff and a number of other inmates came into

the dayroom to see what had caused the disturbance.
Entry # 1, p. 3).

(Docket

Corrections Officer Allen came running and

began to yell at the inmates.3

(Docket Entry # 1, p. 3).

At

this time, plaintiff “waved 5 fingers at him and said calm

3

The complaint does not identify Corrections Officer Allen’s
first name.

4

down.”

(Docket Entry # 1, p. 3).

Plaintiff and the other

inmates returned to the recreation deck and resumed playing
basketball.

(Docket Entry # 1, p. 3).

Corrections Officer

Allen then came out onto the recreation deck and said “‘lock
in.’”

(Docket Entry # 1, p. 3).

The inmates all began to grab

their uniforms at which point Corrections Officer Allen stated
that he was referring specifically to plaintiff.
# 1, p. 3).

(Docket Entry

Plaintiff then asked “‘why he wanted him to lock

in’” at which point Corrections Officer Allen radioed that
plaintiff was refusing to follow an order.
p. 3).

(Docket Entry # 1,

Camera footage shows that plaintiff had attempted to

retrieve his uniform before Corrections Officer Allen radioed
that plaintiff was refusing to cooperate.

(Docket Entry # 1, p.

3).
Plaintiff was escorted out of the unit and moved to
segregation.

(Docket Entry # 1, p. 3).

Once in segregation,

plaintiff spoke to an unknown Sergeant and asked that someone
other than Corrections Officer Allen or Sergeant Sullivan be
assigned to inventory his cell.4

(Docket Entry # 1, p. 3).

unknown Sergeant stated the he would “‘call over’” and, as a
result, Corrections Officer Ryan Dorgan was assigned to
inventory plaintiff’s property.

(Docket Entry # 1, p. 3).

4

The complaint does not identify Sergeant Sullivan’s first
name.

5

The

Corrections Officer Ryan Dorgan was late in arriving and the
cell was instead inventoried by Corrections Officer Allen and
Sergeant Sullivan.

(Docket Entry # 1, p. 3).

On the night of May 29, 2014, Corrections Officer Ryan
Dorgan brought the property that had been kept in plaintiff’s
cell to plaintiff in segregation.5

(Docket Entry # 1, p. 3).

Corrections Officer Ryan Dorgan signed the inventory form even
though he was not the one who had inventoried the property.
(Docket Entry # 1, p. 3).

Plaintiff refused to sign the

inventory sheet because it was not complete.
p. 3).

(Docket Entry # 1,

Specifically, the sheet mentioned that plaintiff was

given “Miscellaneous: Legal/Mail” when in fact these materials
were not delivered to him, but were either confiscated or
destroyed.

(Docket Entry # 1, p. 3).

Plaintiff received a disciplinary report charging him with
four institutional offenses.

(Docket Entry # 1, p. 3).

At the

scheduled disciplinary hearing on June 2, 2014, plaintiff was
found guilty of two of the offenses.

(Docket Entry # 1, p. 3).

He was sentenced to five days of isolation and three days
isolation suspended for a 30 day time period.

(Docket Entry #

1, p. 3).

5

The
2014.
spent
about

complaint asserts that this event occurred on June 29,
This court assumes, given the context that plaintiff
only five days in segregation, that plaintiff was mistaken
the date and intended to refer to May 29, 2014. 
6

The following Monday, June 3, 2014, plaintiff was released
from segregation after serving the five days.

(Docket Entry #

1, p. 3).

Sergeant Depina brought plaintiff his property from

booking.6

(Docket Entry # 1, p. 3).

With the exception of a

“box of printed legal cases from Inmate Legal Services and
assorted canteen items,” all of plaintiff’s property was
missing.

(Docket Entry # 1, pp. 3-4).

Plaintiff filed three to

four grievances pertaining to the missing property and received
no response regarding the confiscation.
4).

(Docket Entry # 1, p.

The Suffolk County Sheriff’s Investigative Division (“SID”)

interviewed plaintiff about his lost property.
1, p. 4).

(Docket Entry #

Institutional video recordings from the date

plaintiff was placed in segregation show John Doe Officer 1 and
John Doe Officer 2 carrying plaintiff’s property out of his
housing unit and onto an elevator.

(Docket Entry # 1, p. 4).

On August 7, 2014, John Doe Officer 1 entered plaintiff’s
cell to conduct a search.

(Docket Entry # 1, p. 4).

He

ransacked plaintiff’s paperwork and told him “‘he had better
throw away some of his trash or he would do it for him.’”
(Docket Entry # 1, p. 4).

John Doe Officer 1 then proceeded to

ask plaintiff if he was pro se.

(Docket Entry # 1, p. 4).

The

following day, August 8, 2014, plaintiff completed his sentence

6

The complaint does not identify Sergeant Depina’s first name.
7

and presently resides in Dorchester, Massachusetts.

(Docket

Entry # 1, pp. 4, 11).
Plaintiff is missing legal materials including discovery
materials, grand jury minutes from three open cases, written
motions, his notes and “numerous legal pads of case law”
pertaining to the three cases pending in Massachusetts Superior
Court and Boston Municipal Court.

(Docket Entry # 1, p. 4).

The whereabouts of this material, totaling 80 pounds, is
unknown.

(Docket Entry # 1, p. 4).

In addition to the legal

material, plaintiff is missing a number of items of personal
property.

Specifically, he is missing three “yellow legal pads

of music lyrics,” one yellow legal pad containing a screenplay,
two yellow legal pads containing two books, one yellow legal pad
of business plans and a loose-leaf notebook also “full of
business plans.”

(Docket Entry # 1, p. 4).

As noted above, plaintiff has three open cases in which he
is pro se.

(Docket Entry # 1, p. 4).

Plaintiff has been unable

to defend himself in these court proceedings as a result of
losing a year’s worth of legal research.
4, 7).

(Docket Entry # 1, pp.

Furthermore, plaintiff has thus far been unable to

obtain new copies of his legal paperwork “through the courts.”
(Docket Entry # 1, p. 4).
DISCUSSION
I.

Eleventh Amendment Immunity

8

SCSD contends that all ten claims are subject to dismissal
because it is immune from suit under the Eleventh Amendment.
(Docket Entry # 10).

Plaintiff concurs with this contention and

states that he “concedes after careful research of the the [sic]
relevant 11th Amendment case law that the Suffolk County House of
Correction is indeed immune from suit arising out of the actions
of its officers while acting under the color of state law.”
(Docket Entry # 16).
The Eleventh Amendment bars a federal court suit against a
state without its consent.

U.S. Const. amend. XI; Will v.

Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989).

A state

is not subject to suit under section 1983 because a state is not
a “person” within the meaning of this statute.
Dep’t of State Police, 491 U.S. at 71.

Will v. Michigan

A suit against an

individual in his or her official capacity, moreover, imposes
liability on the state he or she represents and is therefore
also barred.7

Will v. Michigan Dep’t of State Police, 491 U.S.

at 71; Kentucky v. Graham, 473 U.S. 159, 166 (1985).
Immunity under the Eleventh Amendment “extends to any
entity that is an ‘arm of the state.’”

Wojcik v. Mass. State

Lottery Comm’n, 300 F.3d 92, 99 (1st Cir. 2002) (quoting In re

7

  On the other hand, the Eleventh Amendment does not bar a suit
against an individual in his individual capacity. See Dasey v.
Anderson, 304 F.3d 148, 153 (1st Cir. 2002).

9

San Juan Dupont Plaza Hotel Fire Litigation, 888 F.2d 940, 942
(1st Cir. 1989)).

The analysis, as reframed in Fresenius Medical

Care Cardiovascular Res., Inc. v. Puerto Rico and The Caribbean
Cardiovascular Center Corp., 322 F.3d 56, 61 (1st Cir. 2003), in
light of Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30
(1994), initially assesses “‘whether the state has indicated an
intention-either explicitly by statute or implicitly through the
structure of the entity-that the entity share the state’s
sovereign immunity.’”

Irizarry-Mora v. University of Puerto

Rico, 647 F.3d 9, 12 (1st Cir. 2011) (quoting Redondo
Construction Corp. v. Puerto Rico Highway and Transportation
Authority, 357 F.3d 124, 126 (1st Cir. 2004)).
It is well established that “modern Massachusetts Sheriff’s
Departments [are] arms of the state entitled to sovereign
immunity.”

Gallo v. Essex County Sheriff’s Dep’t, 2011 WL

1155385, at *3 (D.Mass. March 24, 2011); see Adams v. Cousins,
2009 WL 1873584 at *6 (D.Mass. March 31, 2009) (“As a state
agency, the Sheriff’s Department is protected by the state’s
immunity from suit under the Eleventh Amendment, unless the
immunity is waived”).

Furthermore, waiver of immunity is given

effect “‘only where stated by the most express language or by
such overwhelming implication from the text as [will] leave no
room for any other reasonable construction.’”

Max-Planck-

Gesellschaft Zur Föerderung Der Wissenschaften E.V. v. Whitehead

10

Institute for Biomedical Research, 850 F.Supp.2d 317, 327 (D.
Mass. 2011) (quoting Port Auth. Trans-Hudson Corp. v. Feeney,
495 U.S. 299, 305 (1990)).
In the case at bar, it is undisputed that SCSD is an
instrumentality of the Commonwealth.

(Docket Entry # 16).

In

1999, the Massachusetts legislature abolished the governments of
six counties, including Suffolk County.
34B, § 1 (1999).

Mass. Gen. Laws ch.

Pursuant to this legislation, all of Suffolk

County’s “functions, duties and responsibilities . . .
including, but not limited to, the operation and management of
the county jail and house of correction . . . [were] transferred
. . . to the [C]ommonwealth.”
(1999).

Mass. Gen. Laws ch. 34B, § 4

Thus, “[d]espite its municipal title, the Suffolk

County Sheriff’s Department, which oversees the correctional
facilities in Suffolk County, is controlled directly by the
Commonwealth of Massachusetts and all employees of the
Department are employees of the Commonwealth.”

Greene v.

Cabral, 2015 WL 4270173, *3 (D.Mass. July 13, 2015).
Accordingly, as a state agency, SCSD is protected by the state’s
immunity from suit under the Eleventh Amendment, barring an
unequivocal waiver of that immunity.

Here, the legislation

transferring control of SCSD to the Commonwealth contains no
waiver of sovereign immunity.

SCSD is therefore entitled to

immunity from suit in federal court, pursuant to the Eleventh

11

Amendment, and the Commonwealth has not waived this immunity.
Therefore, all claims against SCSD must be dismissed.
II.

Fifth Amendment Due Process Claim
Alternatively, SCSD submits that plaintiff’s claim of a

Fifth Amendment violation of the Due Process Clause (Count IV)
must be dismissed because SCSD is a state agency, not a federal
actor.

(Docket Entry # 10).

Plaintiff’s complaint alleges that

SCSD “deprived the plaintiff of life, liberty and property
without due process of law protected by the 5th amendment.”
(Docket Entry # 1).

Plaintiff, however, does agree that “the

proper inquiry is set forth under the 14th Amendment” and that
the “5th Amendment claim should be dismissed.”

(Docket Entry #

16).
The Due Process Clause of the Fifth Amendment provides that
“[n]o person shall . . . be deprived of life, liberty, or
property, without due process of law . . ..”
V.

U.S. Const. amend.

It is well established that, “The Due Process Clause of the

Fifth Amendment prohibits the United States, as the Due Process
Clause of the Fourteenth Amendment prohibits the states, from
depriving any person of property without ‘due process of law.’”
Dusenbery v. United States, 534 U.S. 161, 167 (2002).
Accordingly, the Fifth Amendment Due Process Clause applies
“‘only to actions of the federal government-not to those of
state or local governments.’”

Martínez-Rivera v. Sánchez Ramos,

12

498 F.3d 3, 8 (1st Cir. 2007).
Here, as previously discussed, plaintiff’s claim is against
a state actor.

SCSD is not a federal agency and plaintiff’s

claim of a Fifth Amendment violation of the Due Process Clause
(Count IV) must be dismissed.
III.

Sixth Amendment Denial of Access to the Courts
Also in the alternative, SCSD submits that plaintiff’s

Sixth Amendment claim stemming from a lack of access to legal
materials must fail because SCSD is not amenable to suit under
section 1983.

(Docket Entry # 10).

In support of this

proposition, SCSD argues that state entities, such as SCSD, are
not “persons” for purposes of section 1983 liability.
Entry # 10).

(Docket

In Count V, plaintiff sets out a denial of access

to courts claim under the Sixth Amendment for “destroying
[plaintiff’s] legal materials.”

(Docket Entry # 1, ¶ 43).

Plaintiff acknowledges that “SCSD is not amenable to suit.”
(Docket Entry # 16, p. 3).
It is undeniable that prisoners have a constitutional right
of access to the courts.

Boivin v. Black, 225 F.3d 36, 42 (1st

Cir. 2000), which is subject to redress under section 1983.

See

Ellis v. Viles, 2010 WL 6465282 at *4 (D.Mass. August 26, 2010)
(quoting Lewis v. Casey, 518 U.S. 343, 354 (1996)).

In the case

at bar, however, SCSD is correct in arguing that “a state is not
a person within the meaning of § 1983.”

13

Will v. Michigan Dep’t

of State Police, 491 U.S. at 64; see Canales v. Gatzunis, 979
F.Supp.2d 164, 171 (D.Mass 2013).
Plaintiff’s Sixth Amendment claim (Count V) under section
1983 against SCSD is therefore subject to dismissal.
Plaintiff’s assertion that SCSD’s argument does not insulate the
John Doe correctional officers from an access to courts claim
against them in their individual capacity under section 1983,
while correct, is premature because these individuals have not
been served with process.
IV.

(Docket Entry # 16, pp. 2-3).

Fourteenth Amendment Due Process Claim
As an additional means to dismiss Count VI other than on

the basis of the Eleventh Amendment, SCSD contends that
plaintiff’s Fourteenth Amendment Due Process Claim fails because
“adequate state post-deprivation remedies exist.”
# 10).

(Docket Entry

In Count VI, plaintiff sets out a claim of being denied

reasonable access to courts under the Fourteenth Amendment
because defendants confiscated the legal materials in his cell.
(Docket Entry # 1).

Plaintiff cogently argues that the

availability of post-deprivation procedures does not bar the
access to courts claim which is based on the destruction of
legal materials.

(Docket Entry # 16).

It is not necessary to address the distinction, however,
because SCDS’s immunity under the Eleventh Amendment provides a
basis to dismiss Count VI, as previously explained.

14

That said,

in the event the issue arises in the context of the claim
against the individual John Doe Correctional Officers, they are
instructed to address it.

To date, however, the officers have

not been served with process.
V.

MCRA Claim
In the alternative, SCSD moves to dismiss the MCRA claim

(Count VII).

SCSD submits that neither the Commonwealth nor its

agencies is a “person” under the MCRA.

(Docket Entry # 10).

The MCRA provides a cause of action “[w]henever any person
or persons, whether or not acting under color of law, interfere
by threats, intimidation or coercion, . . . with the exercise or
enjoyment . . . of rights secured by the constitution or laws of
the United States.”

Mass. Gen. Laws ch. 12, § 11H (emphasis

added); see Mass. Gen. Laws ch. 12, § 11I.

As correctly pointed

out by SCSD, the Commonwealth is not a “person” within the
meaning of the MCRA.

Maraj v. Massachusetts, 836 F.Supp.2d 17,

30 (D.Mass. 2011) (although “MCRA authorizes suit against
‘persons’ acting under the color of law for the violation of
constitutional or statutory rights, it is well settled that the
Commonwealth and its agencies are not persons within the meaning
of the MCRA”); see Williams v. O’Brien, 936 N.E.2d 1, 4
(Mass.App.Ct. 2010).

Because the Commonwealth, including its

agencies, is not a “person” subject to suit under the MCRA, the
MCRA claim against SCSD is subject to dismissal.

15

VI.

Intentional Tort Claims
SCSD next contends that the MTCA, Massachusetts General

Laws chapter 258, section 10 (c) (“section 10(c)”), provides
immunity to public employers for intentional torts committed by
public employees.

(Docket Entry # 10).

Accordingly, SCSD

argues that Count I (conversion) and Count VIII (intentional
infliction of emotional distress) should be dismissed.

(Docket

Entry # 10).
The MTCA “provide[s] ‘a comprehensive and uniform regime of
tort liability for public employers.’”

Morrissey v. New England

Deaconess Ass’n-Abundant Life Communities, Inc., 940 N.E.2d 391,
399 (Mass. 2010).

The statute is liberally construed, id. at

401, and waives the sovereign immunity of the Commonwealth and
its municipalities by allowing suits against a public employer
“based on the negligent or wrongful conduct of public employees
who acted within the scope of their employment.”

Martini v.

City of Pittsfield, 2015 WL 1476768, at *9 (D.Mass. March 31,
2015); see Daveiga v. Boston Public Health Comm’n, 869 N.E.2d
586, 589 (Mass. 2007) (chapter “258 replaced the common-law
scheme by which the Commonwealth and its municipalities enjoyed
immunity from suit for tortious wrongdoing, subject only to
miscellaneous exceptions”); Roberts v. Town of Bridgewater, 2015
WL 4550783, at *3 (D.Mass. July 28, 2015) (“public employers
maintain liability for the negligent acts of public employees

16

committed within the scope of their employment”); Mass. Gen.
Laws ch. 258, § 2 (“[p]ublic employers shall be liable for
injury . . . caused by the negligent or wrongful act” of “any
public employee while acting within the scope of his office or
employment”).

Section 10 (c) excludes “claim[s] arising out of

an intentional tort” from the reach of the waiver.

Mass. Gen.

Laws ch. 258, § 10(c); see Barrows v. Wareham Fire District, 976
N.E.2d 830, 835 (Mass.App.Ct. 2012).

Simply stated, section

10(c) “expressly exempts intentional torts from its provisions,
and therefore a public employer cannot be sued for the
intentionally tortious conduct of its employee.”

Barrows v.

Wareham Fire District, 976 N.E.2d at 835.
The language of section 10(c) excludes “any claim arising
out of an intentional tort, including assault, battery, false
imprisonment, false arrest, intentional mental distress,
malicious prosecution, malicious abuse of process, libel,
slander, misrepresentation, deceit, invasion of privacy,
interference with advantageous relations or interference with
contractual relations.”
(emphasis added).

Mass. Gen. Laws ch. 258, § 10(c)

Furthermore, the word “including” indicates

that the list is not all inclusive and that any intentional tort
is protected by section 10(c).
District, 976 N.E.2d at 835.

See Barrows v. Wareham Fire

Thus, while section 10(c) does not

bar claims sounding in negligence, “governmental liability” does

17

not attach to “‘any claim arising out of an intentional tort.’”
Ortiz v. County of Hampden, 449 N.E.2d 1227, 1228 (Mass.App.Ct.
1983).
The intentional infliction of emotional distress claim set
out in Count VIII of the complaint is based on intentional
conduct.

The claim alleges that, “defendants behaved

outrageously and intentionally by intimidating and inflicting
pain, fear, mental anguish, unimaginable stress, depression, and
loss of self worth, humiliation, anxiety and mental disorder on
the plaintiff.”

(Docket Entry # 1, ¶ 63).

As an intentional

tort, it falls within the reach of section 10(c) and cannot be
maintained against SCSD as the public employer.

See Parker v.

Chief Justice for Administration and Management of the Trial
Court, 852 N.E.2d 1097, 1103 (Mass.App.Ct. 2006) (“[w]ith
respect to intentional torts, including intentional infliction
of mental distress, claims against the public employer are
barred” under section 10(c)).

Furthermore, the plain and

unambiguous language of section 10(c) bars SCSD’s liability
under Count VIII for intentional infliction of emotional
distress.

It is equally well established that the intentional

tort of conversion is also barred by section 10(c) of the MTCA.
See, e.g., Mason v. Massachusetts Dep’t of Environmental
Protection, 774 F.Supp.2d 349, 356 (D.Mass. 2011) (conversion
claim barred by MTCA because “Commonwealth cannot be held liable

18

for any claim arising out of an intentional tort”).
Accordingly, counts I and VIII against SCSD are subject to
dismissal.
VII.

Eighth Amendment Deliberate Indifference Claim
SCSD contends, again in the alternative, that the Eighth

Amendment deliberate indifference claim (Count X) must be
dismissed because SCSD, as a state agency, is not a “person” for
purposes of section 1983 liability.

It is therefore not

amenable to suit pursuant to section 1983.

(Docket Entry # 10).

As previously discussed in reference to plaintiff’s Sixth
Amendment claim (Count V), SCSD is correct in arguing that “a
State is not a person within the meaning of § 1983.”
Michigan Dep’t of State Police, 491 U.S. at 64.

Will v.

Therefore, the

Eighth Amendment claim (Count X) against SCSD is subject to
dismissal.
In sum, all of the claims against SCSD are subject to
dismissal under the Eleventh Amendment on the basis of its
immunity.

In the alternative, counts I, IV, V, VII, VIII and X

are subject to dismissal for the reasons set out under Roman
numerals II, III and V through VII.
CONCLUSION
In accordance with the foregoing discussion, SCSD’s motion

19

to dismiss (Docket Entry # 9) is ALLOWED as to all counts.

/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

20