Hinds v. Pepe et al
Filing
47
District Judge Leo T. Sorokin: ORDER entered granting in part and denying in part 31 Motion to Dismiss for Failure to State a Claim (Danieli, Chris)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
COREY HINDS,
Plaintiff,
v.
PETER A. PEPE, JR.,
THOMAS E. DICKHAUT,
JAMES J. SABA,
JOHN L. DEAN, and
ROBERT E. STORK,
Defendants.
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Civil Action No. 15-cv-10073-LTS
ORDER ON MOTION TO DISMISS (DOC. NO. 31)
April 25, 2016
SOROKIN, J.
I.
INTRODUCTION
Plaintiff Corey Hinds (“Hinds”) brings this action pursuant to 42 U.S.C. § 1983 against Peter
A. Pepe, Jr. (“Pepe”), former Deputy Commissioner of Correction; Thomas E. Dickhaut
(“Dickhaut”), Deputy Commissioner for Operations; James J. Saba (“Saba”), Superintendent of
MCI-Cedar Junction; and John L. Dean (“Dean”) and Robert E. Stork (“Stork”), both of whom are
correction officers at MCI-Cedar Junction (collectively, the “Defendants”). Doc. No. 1. Hinds,
who is incarcerated and proceeding pro se, sued the Defendants in their individual and official
capacities alleging that they violated his rights under the Fifth, Sixth, Eighth and Fourteenth
Amendments of the United States Constitution and under various provisions of the Massachusetts
Declaration of Rights. Id. All of the Defendants except for Pepe, who has not been served, have
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moved to dismiss. Doc. No. 31. Hinds opposes their motion. Doc. Nos. 44; 44-1. For the reasons
stated below, the Court ALLOWS the motion in part and DENIES the motion in part.
II.
BACKGROUND
The facts are recited as they are alleged in the complaint. Hinds was incarcerated at MCI
Concord while awaiting trial on unspecified charges. Doc. No. 1 ¶ 11. On March 12, 2013, Hinds
allegedly assaulted a correction officer. Id. ¶ 12. Immediately thereafter, Hinds was issued a
disciplinary report, transferred to MCI Shirley and referred to the Department Disciplinary Unit
(“DDU”). Id. ¶ 13. Special Hearing Officer Mark Reilly (“Reilly”) conducted a hearing on August
7, 2013 at which Hinds was represented by a student attorney. Id. ¶¶ 14-15. Reilly determined
that Hinds was guilty and issued his findings. Id. ¶ 16; Doc. No. 44-4. Reilly sanctioned Hinds
by placing him in the DDU for 42 months. Doc. No. 44-4 at 4. Hinds’s attorney lodged an appeal,
which Defendant Pepe denied. Doc. Nos. 1 ¶¶ 18-19; 44-6.
On October 31, 2013, Hinds, still a pretrial detainee, was transferred to MCI Cedar Junction.
Doc. No. 1 ¶ 20. Hinds filed several grievances related to his placement in the DDU, all of which
were denied by Defendants Stork and Saba. Id. 1 ¶¶ 21-22; Doc. Nos. 44-7, 44-8, 44-9. On
November 19, 2013, Defendant Dean sprayed Hinds with a chemical agent known as “O.C.” while
Hinds was confined to his cell. Doc. No. 1 ¶ 26. Consequently, Hinds, whose asthmatic condition
is documented in his medical records, was unable to breathe and was “momentarily unresponsive
due to his medical complications with asthma.” Id. ¶¶ 26-27. Hinds’s grievance regarding this
conduct was denied. Id. ¶¶ 49-50.
On April 16, 2014, Hinds was sentenced to a term in state prison “for separate court matters,”
presumably the charges pending against him when he was a pretrial detainee. Id. ¶ 28. Hinds was
once again placed in MCI Cedar Junction, this time in the Department Segregation Unit (“DSU”).
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Id. ¶ 29. On May 1, 2014, Hinds was returned to the DDU to serve the remainder of his 42-month
sanction. Id. ¶ 31.
The remainder of Hinds’s allegations concern his access to counsel and documents related to
his state criminal case. Hinds made several requests and filed a grievance seeking to obtain his
copy of Black’s Law Dictionary. Id. ¶¶ 33, 35. Stork denied his grievance. Id. ¶ 36. Hinds’s
attorney was denied access to Hinds, and Hinds did not receive mail sent to him by his attorney.
Id. ¶¶ 38-39. Hinds’s grievances regarding his access to the courts, receipt of mail, and assistance
of counsel were denied. Id. ¶¶ 43-46, 53-54.
Hinds brings eleven counts against some or all of the Defendants. Counts I and II allege that
Hinds was denied procedural due process under the Fourteenth Amendment and the Massachusetts
Declaration of Rights due to (1) his unlawful detainment in the DDU; (2) the Defendants’ failure
to consider housing alternatives; and (3) the lack of a DSU Board hearing pursuant to 103 C.M.R.
421. Id. ¶¶ 61-63, 73-75. Counts III and IV claim that Hinds was deprived of substantive due
process under the Fourteenth Amendment and the Declaration of Rights due to the allegedly
punitive nature of his placement in the DDU as a pretrial detainee and as a sentenced inmate. Id.
¶¶ 79-81, 89-90, 93. Counts V and VI allege that Mass. Gen. L. c. 276, § 52, which permits the
transfer to state custody of a pretrial detainee who has previously served a felony sentence in a
Massachusetts state prison, violates the equal protection clause of the Fourteenth Amendment and
certain provisions of the Declaration of Rights. Id. ¶¶ 97-99, 109. Counts VII and VIII allege that
Dean’s use of the C.O. chemical spray constituted excessive force in violation of the Eighth
Amendment, the Declaration of Rights, and 103 C.M.R 505. Id. ¶¶ 113-117, 129. Count IX claims
that Hinds was deprived of his Fifth Amendment right to present a defense. Id. ¶¶ 133-34, 136.
Count X alleges that Hinds’s placement in the DDU deprived him of the right to effective
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assistance of counsel under the Sixth Amendment. Id. ¶¶ 140-41. Finally, Count XI is for
intentional infliction of emotional distress as a result of Hinds’s allegedly unlawful confinement
to the DDU. Id. ¶ 147. Hinds seeks compensatory and punitive damages as well as injunctive
relief in the form of release into the general prison population and deletion of the DDU sanction
from his prison record. Id. ¶ 151.
III.
LEGAL STANDARD
A complaint will withstand a motion to dismiss under Fed. R. Civ. P. 12(b)(6) only if it contains
sufficient factual matter, accepted as true, to “state a claim for relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). The Court must “take all factual allegations as true and . . . draw all reasonable
inferences in favor of the plaintiff.” Rodríguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 96 (1st
Cir. 2007). The complaint need not contain “detailed factual allegations,” but it must set forth
“more than labels and conclusions, . . . and a formulaic recitation of the elements of a cause of
action will not do.” Twombly, 550 U.S. at 555. A plaintiff fails to state a claim when he does not
proffer “factual allegations, either direct or inferential, respecting each material element necessary
to sustain recovery under some actionable legal theory.” Berner v. Delahanty, 129 F.3d 20, 25
(1st Cir. 1997) (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988)). While the
filings of pro se litigants should be liberally construed, see Ahmed v. Rosenblatt, 118 F.3d 886,
890 (1st Cir.1997), pro se litigants are not excused from compliance with procedural rules or
substantive law. Id.
In determining whether Hinds has stated a claim, the Court may consider documents to which
Hinds refers in his complaint, including the exhibits attached thereto. Fed. R. Civ. P. 10(c) (“A
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copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all
purposes”); see Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008).
III. DISCUSSION
A. Procedural Due Process (Counts I and II)
Hinds avers that he was denied procedural due process by (1) his unlawful detainment in the
DDU; (2) the Defendants’ failure to consider housing alternatives; and (3) the lack of a DSU Board
hearing pursuant to 103 C.M.R. 421.
“[P]risoners do not shed all constitutional rights at the prison gate,” but “[l]awful incarceration
brings about the necessary withdrawal or limitation of many privileges and rights, a retraction
justified by the considerations underlying our penal system.” Sandin v. Conner, 515 U.S. 472, 485
(1995) (internal quotation marks omitted). A deprivation rises to the level of a liberty interest if it
“imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life.” Id. at 484.
If there was a liberty interest at stake, Hinds was entitled to receive minimum procedural
protections, including “(1) advance written notice of the disciplinary charges; (2) an opportunity .
. . to call witnesses and present documentary evidence in his defense; and (3) a written statement
by the factfinder of the evidence relied on and the reasons for the disciplinary action.” Smith v.
Mass. Dept. of Corr., 936 F.2d 1390, 1398-99 (1st Cir. 1991) (citing Wolff v. McDonnell, 418
U.S. 539, 563-67 (1974)). The written statement of the fact finder must demonstrate that his
findings were “supported by some evidence in the record.” Superintendent, Mass. Corr. Inst.,
Walpole v. Hill, 472 U.S. 445, 454 (1985). Stated another way, “the relevant question is whether
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there is any evidence in the record that could support the conclusion reached by the disciplinary
board.” 1 Id. at 455-56.
Here, Hinds was sanctioned to serve 42 months in the DDU for assaulting a correction officer.
The conditions accompanying DDU confinement have been reported elsewhere. Inmates housed
in the DDU remain in their cells for up to 23 hours per day. Duclerc v. Mass. Dept. of Corr., No.
10-12050-DJC, 2012 WL 6615040, at * 2 (D. Mass. Dec. 18, 2012). They take their meals in their
cells and are permitted no more than an hour of exercise per day, five days a week. Id. An inmate
is handcuffed, shackled and strip-searched each time he leaves his cell. Id. Other courts, albeit
outside of this Circuit, have concluded that similar conditions of confinement constitute atypical
and significant hardship, implicating a liberty interest and the requirement of adequate disciplinary
procedures. E.g., Magluta v. Samples, 375 F.3d 1269, 1282 (11th Cir. 2004) (solitary confinement
for more than 500 days); Colon v. Howard, 215 F.3d 227, 230-31 (2d Cir. 2000) (solitary
confinement for 305 days, including confinement to cell for 23 hours per day and one hour of
exercise per day). In this case, the Court need not decide this question.
Hinds’s complaint does not sufficiently allege facts demonstrating that he was denied due
process. The complaint and the attached exhibits show that Hinds received a disciplinary report
and a notice of the hearing. Doc. Nos. 44-2; 44-3 (letter from student attorney regarding pending
hearing). He was represented by counsel at the hearing and permitted to call witnesses and offer
evidence. Doc. No. 44-4. He received a written decision citing the evidence supporting the
imposed sanction. Id. The decision explains that Reilly’s sanction was predicated on the testimony
and report of the correction officer Hinds assaulted and the video of the assault. Id. at 4. Although
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The standard applied by Massachusetts courts in evaluating procedural and substantive due
process claims under the Massachusetts Declaration of Rights mirrors the federal standard for the
parallel constitutional claims. See Jacks v. Spencer, Doc. No. 39-1 at 15 n.16 and cases cited.
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Hinds alleges he was sanctioned without sufficient evidence, Doc. Nos. 1 ¶ 19; 44-5 (memorandum
of appeal, arguing, in part, insufficiency of evidence), he provides no supporting detail, and his
assertion is belied by the documents he submitted to the Court. These measures satisfy the due
process requirements set forth in Wolff. 418 U.S. at 563-67; see Torres v. Commissioner of Corr.,
427 Mass. 611, 618-19 (1998) (reviewing procedural safeguards incorporated by DDU disciplinary
process and concluding that process “comports with the requirements of the Fourteenth
Amendment”). In addition, Hinds’s complaint fails to adequately allege that Reilly’s sanction was
unsupported by record evidence. Hill, 472 U.S. at 455-56. Hinds makes the conclusory allegation
that the DDU sanction was upheld despite insufficient evidence, Doc. No. 1 ¶ 19, but provides no
supporting facts. Hinds, therefore, fails to state a claim that his DDU confinement was unlawful.
Similarly, to the extent that Hinds’s claims are premised on the theory that he was denied due
process because the Defendants failed to consider housing alternatives, his procedural due process
claims must also be dismissed. Hinds cites no supporting authority for the proposition that a
hearing officer must consider alternatives to the DDU as a disciplinary sanction in order to satisfy
the procedural safeguards set forth in Wolff. If anything, this argument pertains to Hinds’s
objection to the outcome of the process and, accordingly, Hinds’s claim that he was denied
substantive due process, which the Court addresses below.
The final component of Hinds’s procedural due process claims is his assertion that he was
entitled to a DSU Board hearing pursuant to 103 C.M.R 421 both as pretrial detainee and as a
sentenced inmate. Doc. No. 1 ¶ 63. Hinds does not provide any basis for this assertion, and,
indeed, there is none. Assuming the truth of all of his allegations, Hinds’s confinement to the
DDU is governed by 103 C.M.R 430, not 103 C.M.R 421. Placement in the DSU is not permitted
for disciplinary reasons, 103 C.M.R 421.07, whereas Hinds was sanctioned with DDU
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confinement to discipline him for the assault on the correction officer. See 103 C.M.R 430.01
(regulations, including DDU procedures, intended to “govern[] disciplinary proceedings involving
inmates of state correctional institutions”); Haverty v. Commissioner of Corr., 437 Mass. 737, 760
(2002) (noting that 103 C.M.R 421 applies “to all placements of prisoners in segregated
confinement for nondisciplinary reasons” and that procedures required by regulations focus “not
on whether the prisoner has committed a specific infraction for which discipline may be warranted
for a particular period, but on whether his conduct generally warrants long-term segregation”).
The Court concludes that Hinds’s claims for denial of procedural due process, Counts I and II,
must be dismissed.
B. Substantive Due Process (Counts III and IV)
Hinds alleges that his confinement to the DDU as a pretrial detainee and a sentenced inmate
violated his substantive due process rights. “The substantive component of due process protects
against certain government actions regardless of the fairness of the procedures used to implement
them.” González-Fuentes v. Molina, 607 F.3d 864, 880 (1st Cir. 2010) (internal quotation marks
omitted). A substantive due process claim thus attacks “the constitutionality of the deprivation
itself.” Id. “The threshold question” in assessing a challenge to executive action “is whether the
behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to
shock the contemporary conscience.” Aguilar v. United States Immigration & Customs Enf’t Div.
Of the Dept. of Homeland Sec., 510 F.3d 1, 21 (1st Cir. 2007) (quoting County of Sacramento v.
Lewis, 523 U.S. 833, 847 n.8 (1998)). Government conduct egregious enough to shock the
conscience is “likely to find its roots in conduct intended to injure in some way unjustifiable by
any government interest.” Id. at 21-22 (internal quotation marks omitted). The conduct in question
is to be assessed in light of the situation. “[I]n situations where actual deliberation on the part of
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a governmental defendant is practical, the defendant may be held to have engaged in conscienceshocking activity by exercising deliberate indifference.” González-Fuentes, 607 F.3d at 881
(internal quotation marks omitted).
Pretrial detainees “receive constitutional protections superior to those afforded sentenced
inmates.” Ford v. Bender, 768 F.3d 15, 24 (1st Cir. 2014). Hinds characterizes his DDU
confinement as punishment. Pretrial detainees, as Hinds was when he received the DDU sanction,
have a right to be free from punishment. Bell v. Wolfish, 441 U.S. 520 (1979), held that
punishment “prior to an adjudication of guilt” does not accord with substantive due process. Id.
at 535-36. But the inquiry does not end there. Some forms of punishment are permissible. “A
court must decide whether the disability is imposed for the purpose of punishment or whether it is
but an incident of some other legitimate government purpose.” Collazo-Leon v. United States
Bureau of Prisons, 51 F.3d 315, 317 (1st Cir. 1995) (quoting Bell, 441 U.S. at 538-39). Thus, a
punitive measure is nonetheless constitutional so long as it “it also furthers some legitimate
governmental objective such as addressing a specific institutional violation and is not excessive in
light of the seriousness of the violation.” Id. at 318.
Hinds alleges that his substantive due process rights were violated because he had to endure
the punitive conditions of confinement in the DDU, as a pretrial detainee and as a convicted inmate.
Doc. No. 1 ¶ 81. He argues that he should have been placed in the DSU instead, which would not
have constituted punitive confinement. Doc. No. 44 at 9.
Hinds’s complaint fails to state a claim because Hinds’s confinement to the DDU is supported
by the government’s legitimate objective of “maintaining safety, internal order, and security
within” the prison. Collazo-Leon, 51 F.3d at 318 (citing Bell, 441 U.S. at 540). “If there is a
reasonable relation between the sanctions and legitimate institutional policies, an intent to punish
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the detainee for prior unproven criminal conduct cannot be inferred.” Id. (emphasis removed).
The First Circuit has recognized that prison authorities have broad discretion “to take reasonable
and necessary action, including punishment, to enforce the prison disciplinary regime and to deter
even pretrial detainees from violation of its requirements.” Id. Hinds’s complaint and the
accompanying records demonstrate that the sanction Hinds received was reasonably related to the
legitimate efforts of prison authorities to enforce prison discipline, not to punish Hinds for
unproven criminal conduct. While incarceration in the DDU serves a punitive purpose, it also
serves as a deterrent, “demonstrating to all other inmates that good behavior is expected of them
and that, if they do not conform to prison rules, there will be adverse consequences.”
Commonwealth v. Forte, 423 Mass. 672, 676-77 (1996). Moreover, Hinds does not allege that the
sanction of 42 months in the DDU was excessive in light of the seriousness of his violation. Hinds
assaulted a corrections officer, which, “[i]n the hierarchy of wrongs that might be committed in
prison,” is “among the most serious, and the discipline imposed may be concomitantly severe.”
Forte, 423 Mass. at 677.
Hinds also avers that his confinement to the DDU as a convicted inmate, as opposed to a
pretrial detainee, violated his substantive due process rights. Hinds declined to respond to the
Defendants’ argument that his return to the DDU following his sentence did not violate his
substantive due process rights. Doc. No. 44-1 at 5. Indeed, there is no authority for the proposition
that Hinds was improperly returned to the DDU after his conviction or that he was entitled to an
additional hearing regarding his DDU sanction. Resuming a sentence to the DDU is not so
egregious as to shock the conscience. Duclerc, 2012 WL 6615040, at * 8. In addition, any interest
Hinds had in rejoining the general prison population was outweighed by the government’s
legitimate interest in enforcing prison discipline. Jacks v. Spencer, Doc. No. 39-1 at 27.
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Because Hinds’s confinement to the DDU addressed a specific violation, an assault of a
corrections officer, and it was not excessive in light of the seriousness of that violation, Hinds has
failed to state a claim for violation of substantive due process. Hinds does not aver any conduct
on the part of the Defendants, either when Hinds was a pretrial detainee or when he was a sentenced
inmate, with respect to his DDU sanction that was “so egregious, so outrageous, that it may fairly
be said to shock the contemporary conscience.” Gonzáles-Fuentes, 607 F.3d at 880. Moreover,
in light of the legitimate purpose of enforcing prison discipline, Hinds has not sufficiently alleged
that the Defendants acted with deliberate indifference. Counts III and IV are dismissed.
C. Equal Protection (Counts V and VI)
In Counts V and VI, Hinds asserts an Equal Protection challenge to Mass. Gen. L. c. 276, §
52A, which provides, in relevant part:
[Persons held in jail for trial], if they have been previously incarcerated in a
correctional institution of the commonwealth under sentence for a felony, may, with
the approval of the district attorney, be removed by the commissioner of correction
to a correctional institution of the commonwealth . . . . .
The statute thus permits state confinement of a pretrial detainee who has previously served a prior
Massachusetts felony sentence, but not pretrial detainees who have served sentences outside of
Massachusetts. Hinds argues that the statute violates the Equal Protection clause because it treats
detainees who have previously served a Massachusetts felony sentence differently than those who
have served felony sentences elsewhere. Doc. No. 44-1 at 11.
The Defendants argue, and the Court agrees, that, even if Section 52A violates the Equal
Protection clause, the Defendants are entitled to immunity, absolute or qualified, because of the
existence of a court order requiring the Sheriff of Suffolk County to utilize Section 52A to transfer
pretrial detainees to state facilities to ease overcrowding in the county correctional facility. Doc.
Nos. 32 at 14-16; 32-1 ¶ 5 (order by Judge Liacos, dated November 6, 1990, requiring Suffolk
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County Sheriff to utilize Section 52A to transfer pretrial detainees due to population pressures).
The court order resulted from litigation regarding overcrowding in the Charles Street Jail. Id. at
2.
Hinds was awaiting trial in Suffolk County, placing him in the ambit of Judge Liacos’s
order permitting transfer to a state correctional facility. Doc. No. 1 ¶ 11. “[P]rison officials
charged with executing facially valid court orders enjoy absolute immunity from § 1983 liability
for conduct prescribed by those orders.” Engebretson v. Mahoney, 724 F.3d 1034, 1039 (9th Cir.
2013). Even if absolute immunity does not apply, qualified immunity “protects government
officials 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.”
MacDonald v. Town of Eastham, 745 F.3d 8, 11 (1st Cir. 2014) (quoting Pearson v. Callahan, 555
U.S. 223, 231 (2009)). A claim of qualified immunity requires the Court to decide “(1) whether
the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if
so, whether the right was clearly established at the time of the defendant’s alleged violation.”
Rocket Learning, Inc. v. River-Sánchez, 715 F.3d 1, 8 (1st Cir. 2013) (internal quotation marks
omitted). Assuming Hinds has alleged a violation of his Equal Protection rights, against the
backdrop of Judge Liacos’s order, the Defendants could not have reasonably conjectured that
Hinds’s transfer to a state correctional facility could implicate those rights. Thus, the Defendants
are entitled to immunity, either absolute or qualified, and Hinds’s claim that Chapter 52A violates
the Equal Protection clause fails.
D. Excessive Force (Counts VII and VIII)
Hinds next alleges that Defendant Dean used excessive force when he sprayed Hinds with the
O.C. spray. “[T]he unnecessary and wanton infliction of pain . . . constitutes cruel and unusual
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punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319 (1986)
(internal quotation marks omitted). An allegation of the use of excessive force by prison officials
requires the Court to ask “whether force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7
(1992). Serious injury need not result to make out a claim for excessive force. “The absence of
serious injury is . . . relevant to the Eighth Amendment inquiry, but does not end it.” Id.
The Defendants argue that Hinds’s claim fails because he “provides no supporting detail as to
the circumstances of the alleged event or the nature or extent of any resulting injuries.” Doc. No.
32 at 16. Hinds’s complaint, however, alleges that he was confined to his cell and engaged in no
activity posing a serious risk or threat when he was sprayed with the O.C. chemical, and that he
was unable to breathe and was momentarily unresponsive due to an asthmatic response to the
chemical spray. Doc. No. 1 ¶¶ 26-27, 113. Hinds’s institutional medical records note his asthmatic
condition. Id. ¶ 26; Doc. No. 44-20 (Hinds’s physical assessment indicating that he had a medical
history of asthma). Inferences may be drawn from these allegations that force was applied outside
of the context of institutional security and that Dean’s intent could plausibly have risen to the
malicious and sadistic level.. The fact that Hinds does not allege serious injury does not preclude
his claim. Hinds, therefore, sufficiently alleges the improper use of excessive force against Dean.
Hinds fails to state a claim, however, against Defendant Pepe and Saba for supervisory liability.
Hinds makes the conclusory allegations that Pepe and Saba “had reasonable opportunity to prevent
or resolve the use of excessive force” and that they “permitted, encouraged and supported the use
of excessive force.” Doc. No. 1 ¶ 118. Section 1983 does not impose respondeat superior liability
on supervisors for the actions of their subordinates. Hegarty v. Somerset Cty., 53 F.3d 1367, 1379
(1st Cir. 1995). “Absent participation in the challenged conduct, a supervisor can be held liable
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only if (1) the behavior of his subordinates results in a constitutional violation and (2) the
supervisor’s action or inaction was affirmatively linked to the behavior in the sense that it could
be characterized as supervisory encouragement, condonation or acquiescence or gross negligence
of the supervisor amounting to deliberate indifference.” Id. at 1379-80 (internal quotation marks,
alterations and emphasis omitted). Situations in which supervisory liability attaches include a
supervisor who “formulates a policy or engages in a practice that leads to a civil rights violation
committed by another” and who is aware of circumstances likely to result in a violation of
constitutional rights. Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir. 1998); Springer v. Spencer,
Civil No. 13-10083-FDS, 2014 WL 2515694, at * 6 (D. Mass. June 3, 2014).
Hinds’s allegations that Pepe and Saba had the opportunity to prevent the excessive use of
force and that they permitted, encouraged, and supported the use of force do not sufficiently
establish an affirmative link with Dean’s alleged use of force. Aside from these conclusory
allegations, Hinds does not allege any action or inaction on the part of Pepe and Saba from which
gross negligence or deliberate indifference may be inferred. There are no allegations that Pepe
and Saba had a policy or was aware of the conditions that led to the alleged civil rights violation.
The excessive force claims against Pepe and Saba, therefore, must be dismissed.
E. Right to Present a Defense and to Effective Assistance of Counsel (Counts IX and X)
In Counts IX and X, Hinds asserts that he was deprived of his Fifth Amendment right to
present a defense and his Sixth Amendment right to effective assistance of counsel. Doc. No. 1 ¶¶
133-34, 140-41. Hinds alleges that he did not receive mail from his attorney representing him in
his state criminal proceeding; that he was deprived of his copy of Black’s Law Dictionary; and
that his attorney was prevented from consulting with him while he was in the DDU. Id. ¶¶ 33,
133, 140. These claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). In that case, the
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Supreme Court held that “in order to recover damages . . . for . . . harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination, or called into question by a
federal court’s issuance of a writ of habeas corpus.” Id. at 486-87 (footnote omitted). In other
words, if a favorable determination of Hinds’s present claims would call into question the validity
of his state criminal conviction, then his claims must be dismissed unless he can demonstrate that
the criminal conviction has been nullified. A finding that Hinds’s rights to present a defense or to
effective assistance of counsel in his state criminal case were comprised would necessarily imply
the invalidity of his conviction, yet Hinds has not demonstrated that the conviction has been
invalidated. Counts IX and X must be dismissed.
F. Intentional Infliction of Emotional Distress (Count XI)
Hinds’s final claim is for intentional infliction of emotional distress due to his confinement in
the DDU. Doc. No. 1 ¶ 147. “A claim for intentional infliction of emotional distress requires ‘(1)
that the actor intended to inflict emotional distress or that he knew or should have known that
emotional distress was the likely result of the conduct; (2) that the conduct was extreme and
outrageous, was beyond all possible bounds of decency and was utterly intolerable in a civilized
community; (3) that the actions of the defendant were the cause of the plaintiff’s stress; and (4)
that the emotional distress sustained by the plaintiff was severe and of a nature that no reasonable
person could be expected to endure it.’” Doyle v. Hasbro, Inc., 103 F.3d 186, 195 (1st Cir. 1996)
(quoting Agis v. Howard Johnson Co., 371 Mass. 140, 145 (1976)) (internal quotation marks and
alterations omitted). “The standard for making a claim of intentional infliction of emotional
distress is very high.” Id.
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Hinds fails to allege facts that support any element of the claim. Even if his confinement to
the DDU were to be determined to be unlawful, intent that is more than “tortious or even criminal”
is required to make out a claim for intentional infliction of emotional distress. Id. Hinds has not
demonstrated that confining him to the DDU was extreme, outrageous, beyond the bounds of
decency, or intolerable in a civilized community. Nor has Hinds offered facts that support the
severity of his alleged distress, to the point where a reasonable person could not endure it.
IV.
CONCLUSION
For the foregoing reasons, the Court ALLOWS IN PART and DENIES IN PART the
Defendants’ motion to dismiss, Doc. No. 31. All counts against all defendants (including Pepe,
who has not been served, but for whom the complaint provides no basis to sue) are dismissed
except for Counts VII and VIII against Defendant Dean.
The Court finds no need for a Rule 16 conference. The parties shall exchange initial discovery
within fourteen days; complete all discovery by May 27, 2016; and file any motions for summary
judgment no later than June 27. Oppositions to summary judgment motions are due within 30
days of the filing of the motion.
In addition, Hinds shall answer the following interrogatory, under oath, within fourteen days:
Describe the circumstances surrounding the application of the chemical spray and the factual basis
for your assertion that Defendant Dean used excessive force. Defendant Dean shall answer the
following interrogatory, under oath, within fourteen days: Describe the circumstances surrounding
your application of the chemical spray and the factual basis for your assertion that you did not use
excessive force. After receipt of the other side’s answer, either side may file the answer with the
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Court and seek leave to file a summary judgment motion prior to the conclusion of discovery.
So Ordered.
/s/ Leo T. Sorokin
United States District Judge
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