Wallace et al v. Cousins et al
Judge George A. O'Toole, Jr: ORDER entered granting 39 Motion to Dismiss for Failure to State a Claim; granting 41 Motion to Dismiss for Failure to State a Claim (Halley, Taylor)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 14-14767-GAO
FRANK COUSINS, JR., MICHAEL MARKS, HEATH CARAFA, GREG TURNER, DAVID
FORTUNE, SERGEANT LANE, SEGREGATION OFFICER # 1, SEGREGATION OFFICER
# 2, AMY GORDON, JANICE HALL, JANE DOE # 1, and JANE DOE # 2,
OPINION AND ORDER
February 8, 2017
The plaintiff, Willie Wallace, acting pro se, has brought a number of claims against various
correctional officers and nurses at the Essex County Correctional Facility (“ECCF”).1 His claims
stem from what the plaintiff alleges was inadequate treatment of his toothache in October 2014.2
This Court’s November 10, 2015, Memorandum and Order (dkt. no. 15) listed the remaining
parties. The remaining ECCF defendants are Frank Cousins, Jr., Michael Marks, Heath Carafa,
Greg Turner, David Fortune, Sergeant Lane (first name unspecified), and two unnamed
segregation officers. The remaining nursing staff defendants are Amy Gordon, Janice Hall, and
two additional unnamed nurses.
The plaintiff has not filed proof of service as to defendant Gordon pursuant to this Court’s June
2, 2016, order (dkt. no. 49). She is therefore not a party to this action. He filed a proof of service
on “Nurse Katlyn,” although no person by that name is mentioned in the complaint. Presumably
she is either Jane Doe # 1 or # 2. The only allegations against those two nurses are that on separate
occasions each gave him Motrin, the suggestion apparently being that they should have done more.
Without more, the plaintiff has clearly not stated a claim against either, and they are both entitled
to have the complaint dismissed as against them.
The facts presented in the operative pleadings3 are relatively sparse, but the following is
fairly alleged: The plaintiff was admitted to ECCF on September 25, 2014, as a pretrial detainee
and complained of a painful toothache. The plaintiff submitted a number of sick call slips to a
nurse and was given Motrin for the pain. On October 6,4 the plaintiff filed additional sick call slips
and two medical grievances, to which Amy Gordon, the chief administrator of the contracted
healthcare provider, responded.5
On October 6, the plaintiff, experiencing excruciating pain, spoke to Sergeant Greg Turner,
who arranged for the plaintiff to talk to a nurse who was dispensing medicine in the medicine line.
That nurse also gave the plaintiff Motrin. The plaintiff alleges that, at the time, there was “visible
swelling” on his face. (Am. Compl. ¶ 24 (dkt. no. 8).) Turner denied the plaintiff’s further request
to go to the infirmary.
Three hours later, the plaintiff again approached Turner and collapsed on the ground from
the pain. Turner allegedly kicked the plaintiff in an attempt to get him to rise and allowed 50 to 60
inmates to step over him. Turner and Sergeant Lane picked the plaintiff up and brought him to the
infirmary. There, Nurse Janice Hall told the officers that “there was no severity in [the p]laintiff’s
medical situation,” despite the plaintiff’s “swollen face and cries of pain.” (Am. Compl. ¶ 31.)
The plaintiff alleges that for this incident, Turner wrote a disciplinary report for faking a
medical injury and Lane found him guilty without reviewing evidence.
The November 10 order deemed the plaintiff’s Amended Complaint (dkt. no. 8), Claims for False
Disciplinary Procedures (dkt. no. 10), and the Opposition to Dismissal of Defendants (dkt. no. 11)
as the operative pleadings.
There are no allegations of relevant facts between September 25 and October 6.
At least one of these grievance forms appears to be attached to the plaintiff’s original complaint.
In it, Gordon responded that Wallace was “scheduled for October 13 to see the dentist.” (Compl.,
Ex. A, at 1 (dkt. no. 1-2).)
Later that day, the plaintiff alleges, Lieutenant Heath Carafa entered the plaintiff’s room,
insulted him, called him a racial slur, wrote “a false disciplinary report” after ordering the plaintiff
to get off his bunk, and escorted the plaintiff to the segregation unit. (Am. Compl. ¶¶ 36–39.)
During this time, the plaintiff was in severe pain and could not move or speak. The plaintiff alleges
that Lieutenant David Fortune did not afford the plaintiff an adequate disciplinary hearing with
respect to Carafa’s report. The plaintiff appealed both disciplinary reports to Superintendent
Michael Marks, who denied the appeals.
During the night in the segregation unit, the two unnamed segregation officers refused to
provide the plaintiff medical attention or give him a grievance form.
In the morning on the next day, an officer saw an abnormally large bump on the plaintiff’s
face and rushed him to the infirmary. The plaintiff was then transferred to a hospital, where he
apparently received treatment for his condition.
The various named ECCF employee defendants have moved to dismiss the claims against
them. The plaintiff has not filed a formal opposition to the motion. Hall, a member of the nursing
staff, has separately moved to dismiss the claims against her. The plaintiff has opposed that motion.
To survive a motion to dismiss, a complaint must contain sufficient factual allegations to
state a claim that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
A complaint “stops short of the line between possibility and plausibility” where it “pleads facts
that are ‘merely consistent with’ a defendant’s liability.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 557). The factual content of the complaint must allow a
court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.
As to Cousins and Marks, no relevant acts or omissions are alleged. To make out a viable
claim under 42 U.S.C. § 1983, a plaintiff must prove that the defendant in question personally
participated in the complained of actions or inaction. See Vélez-Rivera v. Agosto-Alicea, 437 F.3d
145, 156 (1st Cir. 2006) (citing Cepero-Rivera v. Fagundo, 414 F.3d 124, 129 (1st Cir. 2005)).
Merely alleging that a defendant served in a supervisory role is by itself insufficient. See id. (“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.”
(citation omitted)). Other than Marks’s denial of the plaintiff’s appeals (for which the pleadings
provide no detail permitting evaluation of the reasons for the denial),6 Cousins and Marks are not
alleged to be involved in any personal way in the incidents described in the complaint. The claims
against them must be dismissed.
The remaining § 1983 claims against the other defendants break down into three groups:
deliberate indifference to serious medical needs, use of excessive force, and false and improper
Deliberate Indifference to Serious Medical Needs
Correctional officials violate the Eighth Amendment prohibition of cruel and unusual
punishment of prisoners if their “acts or omissions [are] sufficiently harmful to evidence deliberate
indifference to serious medical needs.” Leavitt v. Corr. Med. Servs., Inc., 645 F.3d 484, 497 (1st
Cir. 2011) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (alteration in original). The same
The appeal decision the plaintiff attached to his original complaint indicates that Marks
suspended the plaintiff’s remaining punitive time in the segregation unit, a disposition favorable
to the plaintiff.
standard applies to pretrial detainees by reason of the Due Process Clause of the Fourteenth
Amendment. Ruiz-Rosa v. Rullan, 485 F.3d 150, 155 (1st Cir. 2007) (citing Burrell v. Hampshire
Cnty., 307 F.3d 1, 7 (1st Cir. 2002).
To establish liability for deliberate indifference to serious medical needs, a plaintiff must
prove that the official subjectively “possessed a sufficiently culpable state of mind”—that is, “the
official must both be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.” Leavitt, 645 F.3d at 497 (citations
omitted). A plaintiff must also show that the alleged risk or harm was “objectively, sufficiently
serious.” Id. (citation omitted). “Deliberate indifference in this context may be shown by the denial
of needed care as punishment and by decisions about medical care made recklessly with actual
knowledge of impending harm, easily preventable.” Ruiz-Rosa, 485 F.3d at 156 (citation and
internal quotation mark omitted). “[S]ubstandard care, malpractice, negligence, inadvertent failure
to provide care, and disagreement as to the appropriate course of treatment are all insufficient to
prove a constitutional violation.” Id.
The plaintiff’s allegations fail to support a plausible inference that the correctional officers,
both those named in his papers and others unnamed, denied him needed medical care as a
punishment or acted recklessly in the face of knowledge of imminent harm. In the course of the
two day period that is the focus of the complaint, the officers did arrange for Wallace to be seen
and treated by medical staff.
Nor has the plaintiff pled sufficient facts to state a claim for deliberate indifference as to
Nurse Hall. The plaintiff’s allegations fail to support a plausible inference that she acted with the
subjective intent to punish the plaintiff, or with wanton disregard for his medical needs. The
plaintiff asserts only that she told officers that the plaintiff’s medical situation was not severe, and
that she did not correctly assess the seriousness of his medical condition or provide adequate
medical treatment for it. No facts are alleged to support a plausible inference that she was doing
anything other than exercising medical judgment. She may have been negligent, but “federal courts
are generally reluctant to second guess medical judgments and to constitutionalize claims which
sound in state tort law.” Layne v. Vinzant, 657 F.2d 468, 474 (1st Cir. 1981) (citing Westlake v.
Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976)).
In light of the foregoing, the plaintiff’s deliberate indifference allegations do not meet the
pleading standard set forth in Iqbal, which requires a plaintiff to plead supporting “factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
The only allegation of excessive force is the plaintiff’s claim that Turner kicked him after
the plaintiff collapsed on the floor. Pretrial detainees are protected by the Due Process Clause of
the Fourteenth Amendment from the use of excessive force that amounts to punishment. Kingsley
v. Hendrickson, 135 S. Ct. 2466, 2473 (2015). To prevail on an excessive force claim, the plaintiff
must show that the force purposely or knowingly used against him was objectively unreasonable.
The plaintiff alleges:
Plaintiff 3 hours later reproached Sgt. Turner and at this point Plaintiff collapsed to
the ground because [of] the unbearable pain. While on the ground in excruciating
pain Sgt. Turner kicked the plaintiff demanding that plaintiff rise to his feet. No
medical emergency was radioed in and while still on the ground Sgt. Turner
allowed 50 to 60 other inmates to step over the Plaintiff. Plaintiff was the[n] picked
up by Sgt. Lane and Plaintiff was escorted by Sgt. Turner to the infirmary.
(Am. Compl. ¶¶ 27–30 (paragraph numbering omitted).)
The complaint includes no allegations of injury from the kick and no discussion of the
degree of force used. The plaintiff’s complaint even suggests a non-malicious reason for the kick:
to have the plaintiff rise to his feet. The complaint fails to plausibly allege that the kick was
anything other than “a good-faith effort to maintain or restore discipline.” See Hudson v.
McMillian, 503 U.S. 1, 6–7 (1992). This claim is dismissed.
False Disciplinary Reports, Inadequate Disciplinary Hearings, and Intentional
Infliction of Emotional Distress
The plaintiff alleges that Turner and Carafa issued false disciplinary reports in retaliation
for the plaintiff’s various grievances concerning his medical treatment. He also alleges that he was
not afforded a proper disciplinary hearing. The only sanction he specifies he received was
additional time in segregation. He argues that these actions violate his constitutional right to due
process and that the filing of the false reports constitutes intentional infliction of emotional distress
under state law.
The plaintiff’s pleadings fail to include sufficient factual allegations concerning this claim
to meet the standard set forth in Twombly and Iqbal. For example, the plaintiff states that he “was
not allowed to call witnesses, present evidence, or granted a hearing within the Wolf[f] v.
Mc[D]onnell[, 418 U.S. 539 (1974)] dictates.” (Claims for False Disciplinary Procedures at 2 (dkt.
no. 10).) However, he never describes how the disciplinary process was not “within the dictates”
of Wolff. Conclusory allegations are insufficient to support his disciplinary hearing claim. See
Iqbal, 556 U.S. at 678 (“[Courts] are not bound to accept as true a legal conclusion couched as a
factual allegation.” (citation omitted)).
The failure of the plaintiff’s claims for inadequate disciplinary hearing procedures is fatal
to his constitutional claims on the allegedly false disciplinary reports as well. To the extent that a
false disciplinary report impinges upon an inmate’s due process rights, those rights are protected
by the disciplinary hearing itself. See Orwat v. Maloney, 360 F. Supp. 2d 146, 157–58 (D. Mass.
Finally, I decline to exercise supplemental jurisdiction over any remaining state law claims,
including the claim for intentional infliction of emotional distress. See 28 U.S.C. § 1367(c)(3).
The pending motions to dismiss (dkt. nos. 39, 41) are GRANTED, and the federal claims
in the plaintiff’s pleadings are dismissed with prejudice. Any state law claims, including the claim
for intentional infliction of emotional distress, are dismissed without prejudice.
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge
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