Morales et al v. Saba et al
Filing
80
Judge Richard G. Stearns: ORDER entered granting 71 Motion to Dismiss for Failure to State a Claim; denying 76 Motion to Dismiss (Zierk, Marsha)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 15-10732-RGS
MIGUEL A. MORALES
v.
SUPERINTENDENT JAMES SABA, et al.
CIVIL ACTION NO. 15-13887-RGS
MIGUEL ANGEL MORALES, JR.
v.
CAROL HIGGINS O’BRIEN, et al.
MEMORANDUM AND ORDER ON
DEFENDANTS’ MOTION TO DISMISS
February 12, 2016
STEARNS, D.J.
For the reasons stated below, the court denies as moot the motion to
proceed in forma pauperis pending in 15-13887; grants the defendants’
motion to dismiss the fourth amended complaint filed in 15-10732; and sua
sponte dismisses (1) the claims against the five new defendants identified in
the FAC in 15-10732 and (2) the three defendants identified in the complaint
filed in 15-13887.
I.
Background
A.
The First Proceeding
1.
Procedural Background
On March 6, 2015, Miguel A. Morales, a pro se plaintiff now
incarcerated at the Souza Baranoskwi Correctional Center, filed a civil rights
complaint against seven state correctional officials (defendants James Saba,
Elena Clodius, Harold Wilkes, Kurt Demoura, Jessica Creighton, Marc
McGlynn and David Moore) complaining of, among other things, due
process violations during disciplinary proceedings. The case was randomly
assigned to Magistrate Judge Boal pursuant to the court’s consent program.
Less than one month later, Morales filed an Amended Complaint adding an
eighth defendant, Rebecca Donahue.
By Memorandum and Order dated June 16, 2015, Morales was
permitted to proceed in forma pauperis, was assessed an initial filing fee
payment. His motion to add exhibits and for automatic judgment were
denied and summons were issued for service of the amended complaint. The
defendants consented to magistrate judge jurisdiction and moved to dismiss
the complaint for failure to state a claim.
Morales’ motion for default and to amend were opposed by defendants.
Although Morales initially consented to proceed before a Magistrate Judge
2
on August 5, 2015, less than three months later, on October 26, 2015, he filed
a conflicting form indicating that he did not wish to proceed before a
Magistrate Judge. The following month, on November 3, 2015, Morales filed
a motion seeking to amend the complaint to add Magistrate Judge Boal as a
defendant in the case.
By Electronic Order dated November 10, 2015, Magistrate Judge Boal
recused herself and the case was reassigned to the undersigned District
Judge. On November 12, 2015, Morales’ fourth motion to amend was
allowed and the fourth amended complaint (“fourth amended complaint” or
“FAC”), dated October 30, 2015, was deemed the operative complaint.
On November 24, 2015, Morales filed a Motion for Joinder seeking to
add the new defendants named in the fourth amended complaint and to have
the clerk issue summons for service of process. By Electronic Order dated
January 13, 2016, Morales’ Motion for Joinder was allowed to the extent that
the parties were named in the FAC. The new parties named in the FAC are
(1) Nancy White, DOC General Counsel; (2) Carol Higgins O’Brien, DOC
Commissioner; (3) Nelson Julius, DOC correctional employee; (4) Yveline
Simon, a mental health worker; and (5) Magistrate Judge Boal.
Now before the court are defendants’ (Saba, Clodius, Wilkes, Demoura,
Creighton, McGlynn, Moore and Donahue) motion to dismiss and
3
supporting memorandum.
See Docket Nos. 71-72. In a footnote, the
supporting memorandum notes that only three of the five new defendants
are employed by the DOC. Those three defendants are Nancy White, Carol
Higgins O’Brien, and Nelson Julius.
Also before the court are Morales’ Motion to Dismiss defendants’
responsive pleadings with supporting memorandum as well as Morales’
Motion for Default and Automatic Judgment. See Docket Nos. 76-78.
2.
Factual Allegations
The following facts, taken as true for purposes of the motion to dismiss
and §§ 1915, 1915A screening, are alleged in the FAC and begin with Morales’
placement in the Departmental Disciplinary Unit (DDU) at MCI Cedar
Junction on September 8, 2014. 1 See 15-10732, Docket No. 50-1, p. 2.
Morales states that he was placed in the DDU for an assault on a staff
member. Id. The following day, on September 9, 2014, Morales alleges that
an officer informed him that “Lapriore says: Hi!” Id. Morales explains that
he had previously complained that Chris F. Lapriore had threatened him and
that he assaulted this officer while acting to defend himself. Id.
“The DDU is designed to provide a restrictive environment to punish
prisoners who commit serious breaches of discipline while in the general
prison population. It is also intended to deter future disciplinary violations.”
Leacock v. DuBois, 974 F. Supp. 60, 63 (D. Mass. 1997).
1
4
Morales alleges disciplinary reports are often used by correctional staff
as a pretext to “seize his property” and on September 24, 2015, a disciplinary
report issued with a false charge that he covered the cell window to darken
the room. Id. at 4-5.
On or about October 21, 2014, Morales alleges that he was repeatedly
taunted by officers and was then transferred to D-Wing cell 285. Id. at 3.
Morales alleges that he was seen by a psychiatrist and transferred to
Bridgewater State hospital because the psychiatrist claimed that Morales was
“talking to himself.” Id. Morales alleges that on or about November 18, 2014,
he was discharged from Bridgewater State Hospital and returned to the
DDU, but required to speak with mental health workers. Id.
On December 17, 2014, in an effort to have the hallway camera “catch
evidence that officers were actually tampering with his food,” Morales
struggled with Officer Daniel McGuire who was delivering a meal tray to him.
Id. at 4. Morales alleges that excessive force was used against him when he
was removed from his cell and placed on Awaiting Action status. Id. Morales
alleges that an officer spoke to him “about being removed from his cell so
that officers can seize his property as part of a practice known as DDU
Awaiting Action status.” Id. At that time, Morales alleges that he “pointed
out that there is no reason to remove him from the cell, because he had
5
already given his tray.” Id. at 5. However, 30 minutes later, Morales again
refused to cooperate with leaving his cell. Id.
Morales “defend[ed] his
property” and was ‘subdued and restrained and his property was seized
including his legal work.” Id. Although Morales was advised that his
property had been covered in urine, Morales contends that “the only spillage
was coffee stains.” Id.
Morales alleges that there were other conditions of his incarceration
that “caused him to be assaultive” such as a three-week period in 2013 when
Morales was not given a shower. Id. at 3. On December 16, 2014, the day
before Morales had been removed from his cell and placed on DDU Awaiting
Action status, he had complained about a full-body rash that developed after
he had showered in the DDU. Id. at 4. Morales refused to shower because
of the rash he received from showering. Id. at 5. Morales was seen by a
doctor who explained that the rash originated from chlorine in the water at
MCI Cedar Junction and Morales was instructed to take cold showers and
machine wash his clothes. Id. at 6. On occasion, Morales would receive
cream to treat the rash, but he suffered in pain and didn’t receive enough
cream to treat the rash that covered his 6’ 7” body. Id.
On or about January 8, 2015, Morales was advised that there were
complaints that he smelled from body odor and he would be deemed as
6
harming himself if he would not shower. Id. at 7. Morales explained that he
would shower, but not in the DDU because of the rash that developed each
time he showered in the DDU. Id. At this time, defendant McGlynn and
another officer “instigated” Morales and caused “[him] to respond.” Id.
Defendant McGlynn filed a disciplinary report that he was assaulted by the
Morales. Id. Morales alleges that defendants Moore and McGlynn are
responsible for destroying Morales’s property and failing to advise him of the
condition of his property for a whole weekend. Id. at 23.
A few days later, on or about January 10, 2015, defendants Wilkes and
Clodius “attempted to show the Plaintiff a memo from the Department of
Correction regarding how the water was treated by the city.” Id. Morales
ultimately complied with DDU procedure to be restrained by handcuffs in
order to be showered. Id. at 8.
On January 14, 2015, Morales returned to his cell from the DDU and
discovered that some of his property was missing and that a swastika was
drawn on his cell mirror. Id. at 8. That day, Morales caused one, perhaps
two, loud disruptions and subsequently agreed to be removed from his cell.
Id.
Morales contends that “security status” is used for placement in the
DDU as punishment and that “mental health status” is used by the mental
7
health workers for placement in the DDU for suicidal prisoners as well as
“punishment for arrogance.”
Id. at 8.
Morales explains that between
January 8 and January 14, 2015, he was placed on mental health status and
placed on suicide watch for refusing to shower. Id. at 10. During that time,
he was placed on security status after becoming disruptive when two officers
damages Morales’s property and left a swastika on his cell mirror. Id.
Morales alleges that he was treated as if he was suicidal when placed on
security status from January 17, 2015 through January 27, 2015. Id. at 9-10.
Morales complains that for ten days he “was denied writing material, access
to his legal work, a pen to file a grievance, utensils for food and the ability to
sleep for more than an hour at a time [because the light was always on].” Id.
at 10.
While on security status from January 17, 2015 through January 27,
2015, Morales alleges that he received legal mail from his attorney. Id. at 11.
The letter from counsel explained that a brief was due and that Morales could
either attend a video conference pro se or have his attorney proceed. Id.
Morales explains that a year earlier, in December 2014, he had challenged
appellee’s brief on several grounds. Id. Morales states that he wanted to
avoid the video conference and that the attorney did not specify a time for
8
the video conference. Id. Morales wanted to appear in court “to point out
how he was treated and why he wanted to avoid the video conference.” Id.
Morales complains that on or about January 29, 2015, he was “forced
to act with the court directly because it will be too time consuming for him
[to] address the ‘immediate deadline’ to which he had asked about and had
not received an answer.” Id. Morales alleges that “the Appeals Court had
called Defendant Clodius whom informed the Morales that he was due for a
video conference, but to where the Morales still was not informed of when
the video conference was.” Id. at 12. Morales alleges that “at least one
Defendant knew about Plaintiff’s Appeal.”
Id.
Morales alleges that
unspecified actions of the defendants “compromised his criminal conviction
appeal.” Id. at 13. Morales alleges that on Jun 16, 2015, he “received a letter
from his attorney that he lost his criminal conviction Appeal.” Id. at 15. In
connection with his criminal prosecution, Morales alleges, among other
things, that “there was no proof that the Plaintiff was not attacked [and that
is why he was convicted] “because of his skin color.” Id. at 22.
Morales complains that Defendant McGlynn moved him from Wing A1
to Wing B1 on February 20, 2015, and failed to transfer most of Morales’s
property. Id. at 12-13. Morales alleges that he was subsequently informed
by Defendant Clodius that his property “was deemed to be covered in urine
9
and/or feces, and he had found out that all of his legal work and art books
and magazines were destroyed.” Id. at 13. Almost one week later, on
February 26, 2016, Morales “received a disciplinary report regarding the
destruction of a state issued mattress and his property.” Id. Morales asserts
that “he did not urinate on his property” and then wrote a civil complaint
that was filed in the instant civil action. Id. At his disciplinary hearing,
Morales explained to Defendant Donahue that he “didn’t destroy the
mattress or his property,” “the cops are lying,” and that urine is not an acid
[and that it is] impossible for [plaintiff’s] urine to destroy a mattress.” Id. at
13-14.
On March 24, 2015, Morales “received a guilty finding for the
accusation of destroying his property and a state issued mattress.” Id. at 14.
The following day, on March 25, 2015, Morales “wrote another civil
complaint to verify his first complaint.” Id. On March 29, 2015, Morales
“sent copies of his Disciplinary Report Appeal to Defendants James Saba and
Elena Clodius.” Id. at 15.
In connection with his disciplinary proceedings, Morales complains
that defendant Rebecca Donahue “attempts to show that state regulations
allow her to be biased [by using a summarized statement] to support [her
disciplinary finding].” Id. at 21. Morales complains that defendants Wilkes,
10
DeMoura and Creighton violated the regulations concerning disciplinary
proceedings. Id. at 23-26. Morales contends that “through state law” he is
“entitled to receive rehabilitation” from the defendants, as “staff member[s]
of the Department of Correction.” Id. at 29. Morales argues that his “DDU
sanction is proof that the method of rehabilitation offered by the Department
of Correction is insufficient.” Id. at 30.
Morales complains that defendant DOC counsel Sheryl Grant and
Nancy White “libeled the plaintiff” when they suggested in pleadings that the
relief Morales sought “would pose safety and security risks.” Id. at 18-19.
Morales also complains that these defendants “attempted to justify” the
actions of other defendants in “falsely or wrongly accus[ing] the plaintiff,
“destroy[ing] the plaintiff’s legal work,” and “compromise[ing] his
arguments (that of which had involved case law) for his criminal conviction
Appeal.” Id. at 19.
In connection with Morales’s “argument against the separation of male
and female prisoners,” he complains that the defendants “fail to
accommodate religion and forces the Morales to adhere to a foreign religious
belief, to deny him the ability to social interaction and assembly, as an
extension of his imprisonment, of where there is nothing in his sentence to
imprisonment, that says, that he must adhere to the principles of a
11
penitentiary, in violation of the First, Eighth, Ninth, and Fourteenth
Amendments to the United States Constitution.” Id. at 22, 36.
Morales contends that defendants Saba, Clodius, Wilker, Nelson and
McGlynn, by prompting defendant Simon to place Morales on suicide watch
for not showing, to avoid another chlorine rash, these defendants used the
suicide unit to punish and control prisoners in violation of the United States
Constitution. Id. at 22-23. Morales contends that he was denied access to
the court during the periods he was placed on mental health status from 1/8
through 1/14/15 and security status from 1/17/15 through 1/27/15;
particularly when he was unaware of a video conference scheduled for his
criminal conviction Appeal. Id. at 23. He complains that defendant Saba’s
enforcement “of DDU Awaiting [Action] Status [allowed officers to seize his
property] including legal work, as a result of receiving [discipline] prior to
the report being given, that allowed defendants David Moore and marc
McGlynn to think that it was okay to seize the Morales’s property and be
silent for three days.” Id. at 23.
Morales contends that this caused a
violation of his access to the courts because it was a time when he “needed to
act as h[is] own counsel” and his legal papers were allegedly destroyed by
defendants Moore and McGlynn. Id. at 23. Morales alleges that he has a
constitutional “right to be secure in himself and his property against
12
unreasonable searches and seizures [including random searches and
searches outside his presence involving his legal work].” Id. at 32.
Morales contends that he should not “be denied pornography [based
upon] the actions of other prisoners [especially because he does not have a
history of improper use of pornography and other property]. Id. at 33-34.
He contends that “the laws against tattooing, fornication and pornography
must be repealed so as to not accommodate religion, and unless they have
proof that the Morales has compromised security and/or safety in a similarly
situated environment.” Id. at 37.
Morales contends that it is through Judge “Boal’s actions that the
Plaintiff’s Second Complaint (Docket No. 5) fails to state a claim upon which
relief can be granted . . . .” Id. at 39. Morales seeks to challenge several of
magistrate Judge Boal’s rulings, id. at 40-41, and argues that she “has
compromised this civil action so much that she had also interfered with the
Plaintiff’s ability to receive reliefs (sic) from a default judgment.” Id. at 43.
Morales further complains that defendants Grant and White “have not
shown how the Plaintiff will use his reliefs to undermine security of the
prison and where Defendants Grant and White have not explained how the
United States Constitution does not support the Plaintiff’s reliefs.” Id. at 47.
13
Morales’s formal prayer for relief begins on page 55 of the FAC,
however, the seven prior pages contain a wide array of “facts” and “claims”
ranging from an assertion that all defendants compromised Morales's life
because he may have to pay a filing fee and remain separate from female
inmates, some assertion that the “three strike” law must be repealed, a
discussion of how it is the fault of prison and society that people commit
crimes, and an assertion that inmates must be able to create miniature pieces
of art work to sell and export around the world, “which would help the United
States get out of debt.” Id. at 48-55.
In the remainder of the FAC, Morales undertakes to recount everything
he claims to have ever done in this case, everything the magistrate
purportedly did, and a description of claims that he purports to have made
in prior pleadings. Id. at 15-55.
B.
The Second Proceeding
On November 16, 2015, Morales filed a civil rights complaint against
Carol Higgins O’Brien, DOC Commissioner; Nancy Ankers White, DOC
General Counsel; and Sheryl F. Grant, DOC counsel. The case was randomly
assigned to District Judge Leo T. Sorokin. See 15-13887-LTS.
By Electronic Order dated December 3, 2015, and in light of Morales’s
assertion that his claims are part of the claims in 15-10732-RGS, the
14
proceeding [15-13887-LTS] was transferred to and consolidated with Civil
Action No. 15-10732-RGS. Now pending is Morales’ motion for leave to
proceed in forma pauperis, which was filed with his complaint on November
16, 2015.
The twenty-seven page complaint [15-13887] names as defendants (1)
DOC Commissioner Carol Higgins O’Brien, (2) DOC Counsel Nancy Ankers
White and (3) DOC Counsel Sheryl F. Grant. See 15-13887, Docket No. 1.
On the first page of the complaint, in a section titled “Nature of Action,”
Morales states that he is suing “for declaratory and injunctive relief under
Fed. R. Civ. P. 57 and 65 and 28 U.S.C. §2201.” Id. Morales challenges
several state and federal statutes arguing that they should be repealed as
unconstitutional; specifically M.G.L. c. 127, § 22 (separation of prisoners;
minors); M.G.L. c. 265, § 34 (tattooing body of person by other than qualified
physician; punishment); M.G.L. c. 231, § 6F (costs, expenses and interest for
insubstantial, frivolous or bad claims or defenses); M.G.L. c. 127, § 38E
(inmate
complaints;
grievance
system;
grievance
resolution),
§
38F(exhaustion of administrative remedies under § 38E; court consideration
of inmate claims); 103 C.M.R. § 403 (inmate property); 103 C.M.R. § 430
(inmate discipline); 103 C.M.R. § 481 (inmate mail); 103 C.M.R. § 491
(inmate grievances); 18 U.S.C. § 1791(providing or possessing contraband in
15
prison); 28 U.S.C. § 530c (authority to use available funds); 28 U.S.C. §
1915A (screening); and 42 U.S.C. § 1997e (suits by prisoners). Id.
The complaint consists of a running list of grievances, in no particular
order. Morales complains of his DDU sanction and argues that defendants
interfered with his method of rehabilitation when they denied him access to
certain art books. Morales argues that the defendants have disrespected him
and, in filing certain motions in C.A. No. 15-10732, have demonstrated their
“malicious intent against the Plaintiff.”
Morales contends that the
defendants have used “libel against the plaintiff” and that he intends to use
“an invisibility cloak illegally (instead of using the cloak to hide from certain
criminals upon release [)].” Id.
Finally, Morales complains that male and female prisoners are
confined separately and seeks transfer to M.C.I. Framingham. He complains
that prisoners should be not be denied “objects that are not knives, guns,
poisons (i.e. drugs and alcohol), and explosives based on the support of a
religious belief and/or an unconstitutionally insufficient method of
rehabilitation.”
Morales demands that the defendants provide to him, among other
things, “gold tipped, diamond encrusted, platinum plated, titanium teeth to
be surgically implanted into the plaintiff’s mouth to replace his other teeth,”
16
a “Rolls Royce TT1000 Superbike in a factory reproduction of the Limited
Edition built in 1994, to be in the parking lot of the prison he is imprisoned
in for him to access upon his release” and an “illuminescent (sic) inked full
body tattoo comprised of at least 1,000 to 2,000 jewels comprised of
diamonds, emeralds, sapphires, and rubies that are evenly dispersed as a
single carat with piercings, for him to look better than a child when he is
falsely accused of urinating on his bed and property.”
Attached to the complaint are two exhibits: (1) a copy of the November
16, 2015 opposition to Morales’s motion to amend that was filed in C.A. No.
15-10732-JCB; and (2) a copy of Morales’ September 18, 2015 letter to M.C.I.
Cedar
Junction
Superintendent
James
Saba
complaining
of
the
dehumanizing treatment he experienced when placed on “Security Status”
and stating that if no settlement is reached, Morales will continue to file
lawsuits until he permanently wins. Id.
II.
In Forma Pauperis Application
Because Morales was already permitted to proceed in forma pauperis
by Memorandum and Order dated June 16, 2015, and in light of the fact that
the two action shave been consolidated, the pending in forma pauperis
motion that was filed in 15-13887 is denied as moot.
III. Standards of Review
17
A.
Screening Pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A
Although Morales’ complaint in Civil Action No. 15-10732 was served
on the original eight defendants, the original complaint filed in Civil Action
No. 15-13887 has not been served. Because Morales has been permitted in
these consolidated cases to proceed in forma pauperis, summonses do not
issue until the court reviews the complaints and determines that they satisfy
the substantive requirements of 28 U.S.C. § 1915. Similarly, under 28 U.S.C.
§ 1915A, prisoner complaints in civil actions that seek redress from a
governmental entity or officers or employees of a governmental entity are
subject to screening. Both the original Complaint filed in No. 15-13887 and
the FAC filed in No. 15-10732 are subject to screening pursuant to § 1915 and
§ 1915A.
Both § 1915 and § 1915A authorize federal courts to dismiss
complaints sua sponte if the claims therein lack an arguable basis in law or
fact, fail to state a claim on which relief may be granted, or seek monetary
relief against a defendant who is immune from such relief. See 28 U.S.C. §
1915(e)(2); Neitzke v. Williams, 490 U.S. 319, 325 (1989); Denton v.
Hernandeez, 504 U.S. 25, 32-33 (1992); Gonzalez-Gonzalez v. United States,
257 F.3d 31, 37 (1st Cir. 2001).
A complaint is dismissed for failure to state a claim based upon the
same standards used in reviewing a motion to dismiss a complaint pursuant
18
to Federal Rule of Civil Procedural 12(b)(6). This standard is set out in detail
below.
B.
Motion to Dismiss Standard
Rule 12 of the Federal Rules of Civil Procedure provides that a
complaint can be dismissed for, among other things, “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To state a claim, a
complaint must set forth (1) “a short and plain statement of the grounds for
the court's jurisdiction”; (2) “a short and plain statement of the claim
showing that the pleader is entitled to relief”; and (3) “a demand for the relief
sought.” Fed. R. Civ. P. 8(a). On a motion to dismiss, the Court “must
assume the truth of all well-plead[ed] facts and give . . . plaintiff the benefit
of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness Holding
Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77
(1st Cir. 1999)). An action fails to state a claim on which relief may be granted
if it does not plead “enough facts to state a claim to relief that is plausible on
its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Conversely, a complaint is plausible on its face “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). Factual allegations must be enough to raise a right to
19
relief above the speculative level, . . . on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Twombly,
550 U.S. at 555 (citations omitted).
Dismissal is appropriate if the facts as alleged do not “possess enough
heft to show that plaintiff is entitled to relief.” Ruiz Rivera v. Pfizer Pharm.,
LLC, 521 F.3d 76, 84 (1st Cir. 2008) (alterations omitted) (internal quotation
marks omitted). “[F]actual allegations” must be separated from “conclusory
statements in order to analyze whether the former, if taken as true, set forth
a plausible, not merely a conceivable, case for relief.” Juarez v. Select
Portfolio Servicing, Inc., 708 F.3d 269, 276 (1st Cir.2013) (internal
quotations omitted). This “highly deferential” standard of review “does not
mean, however, that a court must (or should) accept every allegation made
by the complainant, no matter how conclusory or generalized.” United States
v. AVX Corp., 962 F.2d 108, 115 (1st Cir. 1992). Dismissal for failure to state
a claim is appropriate when the pleadings fail to set forth “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)) (internal quotation marks omitted).
20
For the purpose of analyzing a motion to dismiss, the court must
construe the complaint generously because plaintiff is proceeding pro se. See
Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Rodi v. New Eng. Sch.
of Law, 389 F.3d 5, 13 (1st Cir. 2004). A document filed by a pro se party “is
‘to be liberally construed,’ and ‘a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see Fed. R. Civ. P. 8(e)
(“Pleadings must be construed so as to do justice.”); see also Strahan v. Coxe,
127 F.3d 155, 158 n.l (1st Cir. 1997) (noting obligation to construe pro se
pleadings liberally) (citing Haines v. Kerner, 404 U.S. at 520).
“Nevertheless, a litigant’s exercise of his right to self-representation does not
exempt him from complying with the relevant rules of procedural and
substantive law.” Martinez-Machicote v. Ramos-Rodriguez, 553 F. Supp. 2d
45, 49 (D.P.R. 2007).
C.
Standards for Equitable Relief
Where declaratory relief is sought, plaintiff must show that there is a
substantial controversy over present rights of ‘sufficient immediacy and
reality’ requiring adjudication.” Boston Teachers Union, Local 66, AFT v.
Edgar, 787 F.2d 12, 15-16 (1st Cir. 1986), citing Preiser v. Newkirk, 422 U.S.
21
395, 402 (1975) and Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 242
(1937).
“The Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202 (1988),
empowers a federal court to grant declaratory relief in a case of actual
controversy. The Act does not itself confer subject matter jurisdiction, but,
rather, makes available an added anodyne for disputes that come within the
federal courts’ jurisdiction on some other basis.” Ernst & Young v. Depositors
Economic Protection Corp., 45 F.3d 530, 534 (1st Cir. 1995), citing Franchise
Tax Bd. V. Construction Laborers Vacation Trust, 463 U.S. 1, 15-16 (1983).
For a claim to be ripe in the declaratory judgment context, two prongs must
be met — fitness for review and hardship. Id. at 535.
To obtain injunctive relief, plaintiff must demonstrate that he would
suffer irreparable injury without the injunction, that the harm to plaintiff
would exceed the harm to the defendants from the imposition of the
injunction, and that the public interest would not be adversely served by an
injunction. Aponte v. Calderon, 284 F.3d 184, 190 (1st Cir. 2002). Further,
the Prison Litigation Reform Act (PLRA) limits the scope of prospective relief
in prison cases. See 18 U.S.C. § 3626(a)(1)(A). The Supreme Court has
interpreted this section as meaning that
22
“the scope of the order must be determined with reference to the
constitutional violations established by the specific plaintiffs before the
court.” Brown v. Plata, 131 S. Ct. 1910, 1940 (2011).
D.
Section 1983 Standard
The complaints are brought pursuant to 42 U.S.C. § 1983. Section 1983
creates a private right of action through which plaintiffs may recover against
state actors for constitutional violations. Goldstein v. Galvin, 719 F.3d 16, 24
(1st Cir. 2013). “A claim under § 1983 has two ‘essential elements’: the
defendant must have acted under color of state law, and his or her conduct
must have deprived the plaintiff of rights secured by the Constitution or by
federal law.” Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir. 2008).
IV.
Discussion
As correctly noted by defendants in the Memorandum in Support of
Defendants’ Motion to Dismiss, see 15-10732, Docket No. 72 at 2, it is unclear
what any specific claims in the fourth amended complaint are or under what
legal theories any claims might be brought. The court will address those
claims that appear to be asserted by Morales in his Fourth Amended
Complaint [15-10732] and Complaint [15-13887].
A.
Disciplinary Proceedings
23
To the extent the FAC can be read to allege a due process violation
during Morales’s disciplinary proceeding, it is well established that an
inmate is entitled to the protections of due process only when an existing
liberty or property interest is at stake. Sandin v. Conner, 515 U.S. 472, 484
(1995). A liberty interest is infringed only if the punishment inflicted upon
the inmate imposes “atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.” Id. at 484. As noted in
defendants’ Memo in Support of Motion to Dismiss, the guilty finding for the
offense concerning Morales’s state-issued mattress resulted in no sanction at
all.
As such, the sanction doesn’t rise to the level of an atypical and
significant hardship.
Moreover, placement on awaiting action status or administrative
segregation does not rise to the level of an atypical and significant hardship.
Rather, this is the type of confinement that inmates may receive at some
point during their incarceration. See Hewitt v. Helms, 459 U.S. 460, 468
(1983) (administrative segregation is type of confinement ordinarily
considered part of incarceration); Lamoureux v. Superintendent, Mass. Corr.
Inst., Walpole, 390 Mass. 409, 411, 413, 417-418 (no due process violation
where inmate held in administrative segregation between 13 and 18 weeks);
Hudson v. Comm’r of Corr., 46 Mass. App. Ct. 538, 544 (1999), affirmed, 431
24
Mass. 1 (2000) (being placed in administrative segregation on awaiting
action status is type of confinement inmates should anticipate at some point
in incarceration).
To the extent Morales complains that DOC officials utilized a
preponderance of the evidence standard in his inmate disciplinary hearing,
the FAC fails to state a claim. Even if a liberty interest were implicated, the
Supreme Court has held that “due process in this context requires only that
there be some evidence to support the findings made in the disciplinary
hearing.” Superintendent, Mass. Corr. Institution, Walpole v. Hill, 472 U.S.
445, 457 (1985). The Supreme Court rejected the “substantial evidence”
standard, “declin[ing] to adopt a more stringent evidentiary standard as a
constitutional requirement.” Id. at 456. See Figueroa v. Vose, 57 F.3d 1061,
1995 WL 352819, *3 (1st Cir. 1995) (unpublished) (“[T]he Hill standard
describes the relevant federal due process standard even though state law
imposes a stricter evidentiary standard.”).
If prisoners are afforded requisite process at a disciplinary hearing,
they cannot sustain § 1983 claims for allegations of false, improper, or
erroneous disciplinary charges filed by prison officials. See, e.g., Orwat v.
Maloney, 360 F. Supp. 2d 146, 157, 162 (D. Mass. 2005) (“[P]rison inmates
have no constitutionally guaranteed immunity from being falsely or wrongly
25
accused of conduct which may result in the deprivation of a protected liberty
interest. . . . The constitutional corrective for such things is the subsequent
hearing that the inmate receives on those charges.” (citations omitted)). “The
Court’s review of a prisoner’s challenge to the due process deficiencies in a
disciplinary hearing is thus ‘limited to whether [due process] minimum
protections [are] met, and whether the written record provided by the fact
finder presents some evidence to support the findings made in the
disciplinary hearing.’” Cuevas v. DiPaulo, C.A. 2011 WL 2118268, at *5 (D.
Mass. May 23, 2011) (quoting (Orwat, 360 F. Supp. 2d at 163)).
To the extent the FAC could be read as an attempt to seek review of the
disciplinary report under state law, this Court lacks the jurisdiction to do so.
Where a prisoner challenges the result of an individual disciplinary
proceeding, Massachusetts law provides that the only proper mode of review
is an action in the nature of certiorari under G.L. c. 249, § 4. The remedy
available under G.L. c. 249, if errors resulting in a manifest injustice or
irreparable harm were found, would be a new disciplinary hearing. See Real
v. Superintendent, Mass. Corr. Inst., Walpole, 390 Mass. 399, 408 (1983).
Cf. Comm. for Public Counsel Serv.s v. Lookner, 47 Mass. App. Ct. 833, 837
n.5 (1999) (discussing standard to be met). Accordingly, these claims are
subject to dismissal.
26
B.
Alleged Excessive Use of Force in Cell Removal
Morales alleges that excessive force was used against him when he was
removed from his cell on December 17, 2014. See FAC at p. 4. The Eighth
Amendment protects convicted prisoners from the use of excessive force.
See Burrell v. Hampshire Cnty., 307 F.3d 1, 7 (1st Cir. 2002). The applicable
Eighth Amendment standard is “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). In asserting an
excessive force claim, a prisoner need not allege that he has sustained a
serious or significant injury in order to obtain relief. See Wilkins v. Gaddy,
559 U.S. 34, 37 (2010). The relevant factors for the court to consider in
evaluating an excessive force claim are: the need for force; the relationship
between that need and the amount of force applied; the extent of any injury
inflicted; the “threat ‘reasonably perceived by the responsible officials;’” and
the “’efforts made to temper the severity of a forceful response.’“ McMillian,
503 U.S. at 7.
Here, when an officer spoke to Morales about being removed from his
cell, Morales responded that there was no reason to remove him from the
cell. Morales explains that he refused to leave his cell because he was
concerned about his property. Although he states in a conclusory fashion
27
that excessive force was used, the allegations suggest that forceful removal
was necessary because of Morales’s refusal to leave his cell. Therefore, all of
the facts alleged in the FAC fail to state a plausible claim that the officers
were acting to harm Morales rather than to remove him from his cell in an
orderly fashion. Nothing in the FAC supports an excessive force claim.
C.
Seizure of Property
Morales complains of the loss of personal property including his legal
work, art books and magazines. See, e.g. FAC at p. 13. However, it is well
settled that a state employee does not violate the procedural requirements of
the due process clause of the Fourteenth Amendment by an unauthorized
negligent or intentional deprivation of property “if a meaningful
postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S.
517, 533 (1984). Therefore, if state law provides an adequate remedy, no due
process violation occurred. Chongris v. Bd. of Appeals of Town of Andover,
811 F.2d 36, 44–45 (1st Cir. 1987). If a Morales could pursue postdeprivation remedies against the defendants, an adequate post-deprivation
remedy is available. See Latimore v. Dep't of Corrs., 2013 WL 6181082, at *12
(D. Mass. Nov. 22, 2013).
Here, Morales has not alleged that the rights provided to him under
the Massachusetts Tort Claims Act, Mass. Gen. Laws ch. 258, or otherwise
28
under state law, are inadequate forms of relief. See Riordan v. Martin, 51
F.3d 264, 1995 WL 146215, at *1 (1st Cir. 1995) (unpublished decision)
(“Since inadequacy of the state's remedy is a material element of the § 1983
claim, plaintiff had the burden of setting forth supporting factual allegations,
either direct or inferential, to sustain an actionable legal theory.”). Morales
may pursue remedies through the prison grievance system for the
deprivation of his property and request an adequate remedy or may have an
available remedy in state court pursuant to Mass. Gen. Laws ch. 258. Thus,
the FAC fails to state a claim for which relief can be granted for deprivation
of property.
D.
Deliberate Indifference to Serious Medical Need
The Eighth Amendment prohibits “cruel and unusual punishment”
and is the source of long-settled principles governing entitlement to
constitutionally adequate medical treatment. See Farmer v. Brennan, 511
U.S. 825, 832 (1994).
Undue suffering, unrelated to any legitimate
penological purpose, is considered a form of punishment proscribed by the
Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 103-105 (1976); Kosilek
v. Spencer, 774 F.3d 63, 82 (1st Cir. 2014) (en banc), cert. denied, Kosilek v.
O'Brien, 135 S. Ct. 2059 (2015).
29
Morales complains of that he developed a rash from showering in the
DDU and that the medical staff failed to provide a sufficient amount of cream
to treat his rash. However, the facts alleged do not involve “acts or omissions
sufficiently harmful to evidence deliberate indifference to serious medical
needs.” Feeney v. Corr. Med. Servs., Inc., 464 F.3d 158, 161 (1st Cir. 2006)
(quoting Estelle v. Gamble, 429 U.S. at 105-106)). Accordingly, this claim is
subject to dismissal.
E.
Placement on Mental Health Status for Refusing to
Shower
Morales complains that he was placed on mental health status (suicide
watch) for refusing to shower, even though he believes he presented no risk
of harm to himself or anyone else. He contends that the defendants placed
him on mental health status as an unconstitutional punishment.
To the extent it is Morales’s opinion that he should not have been
placed on mental health status based on his refusal to shower in the DDU,
this disagreement with the mental health workers (including unserved
mental health worker Yveline Simon) does not rise to the level of medical
indifference in violation of the Eighth Amendment. See Soneeya v. Spencer,
851 F. Supp. 2d 228, 242 (D. Mass. 2012).
30
To the extent Morales complains of a due process violation, Morales
does not have a liberty interest in avoiding a particular condition of
confinement unless the condition “imposes atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison life.” Sandin v.
Conner, 515 U.S. 472, 484 (1995) (no due process violation occurs where
housing assignment does not impose “atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life.”); see e.g.
Mendez v. Kemp, 2008 WL 4937590, *3 (D. Del. Nov. 18, 2008) (claim
challenging prison’s attempt to move prisoner out of protective custody not
actionable as prisoner has no due process right to incarceration in particular
institution).
F.
Retaliation
Morales asserts that he was placed on “security status” and “mental
health status” for placement in the DDU as “punishment for arrogance.” FAC
at 8. It is well-settled that “retaliation against a prisoner’s exercise of
constitutional rights is actionable” under Section 1983. Hannon v. Beard,
645 F.3d 45, 48 (1st Cir. 2011). The First Amendment shields prisoners from
retaliation in response to their engaging in protected speech. Ortiz v. Jordan,
562 U.S. 180, 190-191 (2011) (citing Crawford–El v. Britton, 523 U.S. 574,
592 (1998)). However, because “running a prison system is a difficult
31
enterprise” and because prisoner claims of retaliation are “easily fabricated
and pose a substantial risk of unwarranted judicial intrusion into matters of
general prison administration,” such claims must be based on facts, not on
“gossamer strands of speculation and surmise.” Hannon, 645 F.3d at 48
(internal punctuation, quotation marks, and citation omitted).
In order to assert a retaliation claim, plaintiff must point to specific
facts that demonstrate that the adverse acts taken were motivated by an
intent to punish Morales for exercising his constitutional rights. Here,
Morales alleges that he was being punished for “arrogance” and the FAC is
devoid of any specific facts supporting his allegation of retaliation.
Accordingly, this claim is subject to dismissal.
G.
Conditions of Confinement While on Security Status for
Ten Days
While placed on security status for ten days beginning on January 17,
2015 and continuing through January 27, 2015, Morales alleges that he “was
treated as if he was suicidal and was denied writing material, access to his
legal work, a pen to file a grievance, utensils for food and the ability to sleep
for more than an hour at a time [because the light was always on].” FAC at
9-10. The room had no window and it had a camera that recorded every
action of the Morales. Id. at 10.
32
“[C]onditions in the DDU are considerably more onerous than
conditions of confinement for the general population at MCI–Cedar
Junction.” Ford v. Bender, 768 F.3d 15, 21 (1st Cir. 2014) (describing
conditions of confinement in the DDU); see also Duclerc v. Massachusetts
Dep’t of Corr., 2012 WL 6615040, at *2 (D. Mass. Dec. 18, 2012) (describing
terms of confinement in the DDU). Under the Eighth Amendment, prisoners
are entitled to adequate shelter, including the “minimal civilized measure of
life's necessities.” Farmer v. Brennan, 511 U.S. 825, 834, (1994) (internal
citation omitted). In order for a prisoner to establish that he has been
subjected to unconstitutional conditions of confinement in violation of the
Eighth Amendment's prohibition against cruel and unusual punishment, a
plaintiff must establish that: (i) from an objective standpoint, the conditions
of his confinement deny him the minimal measure of necessities required for
civilized living; and (ii) from a subjective standpoint, the defendant was
deliberately indifferent to his health or safety. Surprenant v. Cesar Rivas,
424 F.3d 5, 18-19 (1st Cir. 2005), citing Farmer, 511 U.S. at 834. “Deliberate
indifference” is a mental state similar to criminal recklessness. Id. Extreme
deprivations are required to make out a conditions of confinement claim.
McMillian, 503 U.S. at 8-9. Because “routine discomfort is part of the
penalty criminal offenders pay for their offense against society, only those
33
deprivations denying the minimal civilized measure of life’s necessities are
sufficiently grave to form the basis of an Eighth Amendment violation.” Id.
(internal citations omitted).
Here, Morales’s allegations concerning this ten-day period in January
2015 does not allege a deprivation sufficient to establish a cognizable Eighth
Amendment claim, especially when considering the duration of time. See
Surprenant v. Rivas, 424 F.3d 5, 20 (1st Cir. 2005) (citing Hutto v. Finney,
437 U.S. 678, 687 (1978) (noting that unpleasant conditions of confinement
“might be tolerable for a few days and intolerably cruel for weeks and
months”)). In this case, the period in question is less than two weeks.
H.
Separate Housing for Male and Female Prisoners
In connection with Morales’s “argument against the separation of male
and female prisoners,” Morales complains that the defendants “fail to
accommodate religion and forces the Plaintiff to adhere to a foreign religious
belief, to deny him the ability to social interaction and assembly, as an
extension of his imprisonment, of where there is nothing in his sentence to
imprisonment, that says, that he must adhere to the principles of a
penitentiary, in violation of the First, Eighth, Ninth, and Fourteenth
Amendments to the United States Constitution.” FAC at pp. 22, 36.
34
Generally, courts grant a high degree of deference to prison
administrators in their adoption and execution of policies and practices that
they deem necessary to maintain institutional security. See Turner v. Safley,
482 U.S. 78, 85 (1987) (stating that courts should accord a high degree of
deference to prison authorities because courts have little expertise in the
‘inordinately difficult’ task of running prisons); Bell v. Wolfish, 441 U.S. 520,
545–47 (1979) (holding that prison administrators should be given “wide
ranging deference in the adoption and execution of policies and practices
that in their judgment are needed to preserve internal order and discipline
and to maintain institutional security.”). Morales’s arguments concerning
separate housing fails to state a claim upon which relief may be granted.
I.
Access to the Courts
Morales contends that unspecified actions of the defendants
“compromised his criminal conviction appeal.” FAC at p. 13. Morales alleges
that on June 16, 2015, he “received a letter from his attorney that he lost his
criminal conviction Appeal.” Id. at 15. Finally, he alleges that he was denied
access to the court during the periods he was placed on mental health and
security status in January 2015; particularly when he was unaware of a video
conference scheduled for his criminal conviction Appeal. Id. at 23.
35
To state a claim that he was denied meaningful access to the courts,
however, plaintiff must show that his legal status was harmed by the
deprivation of adequate legal materials, or other means for accessing the
courts. See Lewis v. Casey, 518 U.S. 343, 351 & 355 (1996). Here, Morales
has failed to allege facts showing that he has suffered actual injury in his
ability to challenge his conviction. Accordingly, this claim will be dismissed.
J.
No Constitutional
Materials
Right
to Access
Pornographic
Morales contends that he should not “be denied pornography [based
upon] the actions of other prisoners [especially because he does not have a
history of improper use of pornography and other property]. FAC at 33-34.
He contends that “the laws against tattooing, fornication and pornography
must be repealed so as to not accommodate religion, and unless they have
proof that the plaintiff has compromised security and/or safety in a similarly
situated environment.” Id. at 37.
The court finds no legal support for Morales’s claim that denial of
pornographic material amounts to a constitutional deprivation. The denial
of ready access to pornography is not sufficiently grave to form the basis of
an Eighth Amendment violation. See French v. Morrow, 513 F. App’x 695,
696, 2013 WL 1174056 (9th Cir. 2013) (citing Wilson v. Seiter, 501 U.S. 294,
298 (1991) (“[O]nly those deprivations denying the minimal civilized
36
measure of life’s necessities are sufficiently grave to form the basis of an
Eighth Amendment violation.” (citation and internal quotation marks
omitted)).
With regard to the First Amendment, “[a]ny form of involuntary
confinement, whether incarceration or involuntary commitment, may
necessitate restrictions on the right to free speech.” Beaulieu v. Ludeman,
2012 WL 3711342 (8th Cir. August 29, 2012) at *19 (quoting Martyr v.
Bachik, 755 F. Supp. 325, 328 (D.Or.1991)).
Courts have held that
restrictions on certain rights are permissible so long as they advance the
state's interest in security, order, and rehabilitation. See Ahlers v.
Rabinowitz, 684 F.3d 53, 64 (2d Cir. 2012) (holding that interference with
non-legal mail, i.e., seizure and retention of DVDs and CDs, did not violate
First Amendment); Semler v. Ludeman, 2010 WL 145275, *15 (D. Minn. Jan.
8, 2010) (finding no constitutional violation based on restrictions on a civilly
committed sex offender's right to access pornographic materials where such
restrictions are reasonably related to legitimate interests to ensure security
and order in the facility). Accordingly, this claim will be dismissed.
K.
Judicial Immunity
Morales contends that through Judge “Boal’s actions that the Morales’s
Second Complaint (Docket No. 5) fails to state a claim upon which relief can
37
be granted . . . .” FAC at 39. Morales seeks to challenge several of magistrate
Judge Boal’s rulings, id. at 40-41, and argues that she “has compromised this
civil action so much that she had also interfered with the Plaintiff’s ability to
receive reliefs (sic) from a default judgment.” Id. at 43.
All of Morales’s claims against Magistrate Judge Boal under 42 U.S.C.
§ 1983 and any state tort claims, are not legally cognizable because absolute
judicial immunity protects a judge from acts performed within the scope of
her jurisdiction.
Mireles v. Waco, 502 U.S. 9, 11 (1991) (per curiam)
(“[J]udicial immunity is an immunity from suit, not just from the ultimate
assessment of damage.”); Pierson v. Ray, 386 U.S. 547, 553-554 (1967)
(absolute judicial immunity protects integrity of judicial process); Allard v.
Estes, 197 N.E. 884, 886 (1935) (stating that is it “too well settled to require
discussion, that every judge, whether of a higher or lower court, is exempt
from liability to an action for any judgment or decision rendered in the
exercise of jurisdiction vested in him by law.”). “Absolute judicial immunity
protects judges from ‘civil liability for any normal and routine judicial act,’
except those taken in the ‘clear absence of all jurisdiction.’” Goldblatt v.
Geiger, 2011 WL 1362119 (D.N.H. 2011), quoting Cok v. Cosentino, 876 F.2d
1, 2 (1st Cir. 1989) (citing Stump v. Sparkman, 435 U.S. 349, 357 (1978)).
38
Here, although Morales may believe that Magistrate Judge Boal erred
in her rulings or acted wrongfully towards him, there is no basis for
concluding that the actions or inactions of Magistrate Judge Boal were taken
outside the scope of her jurisdiction. See Ricciuti v. Alander, 2004 WL
555235, *2 (D. Conn. 2004) (“Acts are judicial in nature if they are (1) normal
judicial functions (2) that occurred in the judge’s court or chambers and were
(3) centered around a case pending before a judge.”). Thus, even if this court
accepted Morales’s allegations of misconduct by Magistrate Judge Boal, her
actions or inactions would not constitute the type of extra-judicial activity
exempting her from entitlement to absolute judicial immunity. Accordingly,
the claims against Magistrate Judge Boal are subject to sua sponte dismissal.
L.
Claims against Defendants Grant and White
Morales complains that defendant DOC counsel Sheryl Grant and
Nancy White “libeled the plaintiff” when they suggested in pleadings that the
relief Morales sought “would pose safety and security risks.” Complaint
(“Compl.”), [15-13887] at 18-19.
Morales also complains that these
defendants “attempted to justify” the actions of other defendants in “falsely
or wrongly accus[ing] the plaintiff, “destroy[ing] the plaintiff’s legal work,”
and “compromise[ing] his arguments (that of which had involved case law)
for his criminal conviction Appeal.” Id. at 19. Morales further complains
39
that defendants Grant and White “have not shown how the Plaintiff will use
his reliefs to undermine security of the prison and where Defendants Grant
and White have not explained how the United States Constitution does not
support the Plaintiff’s reliefs.” Id. at 47.
The facts alleged against defendants Grant and White do not state a
violation of Morales’s constitutional rights. Without federal subject matter
jurisdiction, the court declines to entertain any state law claims Morales
seeks to assert against these two defendants. These claims are subject to sua
sponte dismissal.
M.
No Supervisory Liability under Section 1983
To the extent Morales asserts claims against Commissioner Carol
Higgins O’Brien, as noted above, the allegations fail to state claims upon
which relief can be granted. Claims asserted against a supervisor, in an
action brought pursuant to 42 U.S.C. § 1983, may not be based on a theory
of respondeat superior. Ramirez-Lluveras v. Rivera-Merced, 759 F.3d 10, 19
(1st Cir. 2014). Instead, claims against supervisors must be based on the
supervisor's
own
acts
or
omissions
constituting
“‘supervisory
encouragement, condonation or acquiescence, or gross negligence of the
supervisor amounting to deliberate indifference.’“ Grajales v. P.R. Ports
Auth., 682 F.3d 40, 47 (1st Cir. 2012) (alteration and citation omitted). “It is
40
well-established that ‘only those individuals who participated in the conduct
that deprived the plaintiff of his rights can be held liable.'" Velez-Rivera v.
Agosto-Alicea, 437 F.3d 146, 156 (1st Cir. 2006) (quoting Cepero-Rivera v.
Fagundo, 414 F.3d 124, 129 (1st Cir. 2005)).
Here, Morales has not asserted facts to demonstrate that the
Commissioner was personally involved in, aware of, or deliberately
indifferent to the conditions of Morales’s confinement.
As such, the
allegations fail to state a constitutional violation actionable under § 1983.
N.
Constitutional Challenge to Federal and State Statutes
and Regulations
With the exception of the state tattoo statute, Mass. Gen. Laws ch.265,
§ 34 (tattooing body of person by other than qualified physician;
punishment) 2; plaintiff’s challenge in C.A. No. 15-13887, as to the following
statutes and regulations, fails to state a constitutional claim: Mass. Gen.
Laws ch. 127, § 22 (separation of prisoners; minors); Mass. Gen. Laws ch.
231, § 6F (costs, expenses and interest for insubstantial, frivolous or bad
claims or defenses); Mass. Gen. Laws ch. 127, § 38E (inmate complaints;
grievance system; grievance resolution), Mass. Gen. Laws ch. 127, § 38F
Massachusetts General Laws ch. 265, § 34, was held unconstitutional by
Lanphear v. Massachusetts, No. 99-1896-B (Mass. Super. Ct. Oct. 20, 2000)
(holding that both the process and product of tattooing merit First
Amendment protection).
2
41
(exhaustion of administrative remedies under § 38E; court consideration of
inmate claims); 103 C.M.R. § 403 (inmate property); 103 C.M.R. § 430
(inmate discipline); 103 C.M.R. § 481 (inmate mail); 103 C.M.R. § 491
(inmate grievances); 18 U.S.C. § 1791(providing or possessing contraband in
prison); 28 U.S.C. § 530c (authority to use available funds); 28 U.S.C. §
1915A (screening); and 42 U.S.C. § 1997e (suits by prisoners).
To the extent Morales complains that the defendants violated state
laws and regulations, such violations are not cognizable in this Section 1983
lawsuit. Even if it is true that the defendants violated certain internal prison
policies, they do not state federal constitutional claims and cannot, alone,
form the basis for a federal claim under 42 U.S.C. § 1983. Only violations of
the United States Constitution provides the source for liability in a civil rights
suit based on § 1983. Sobitan v. Glud, 589 F.3d 379, 389 (7th Cir. 2009) (“By
definition, federal law, not state law, provides the source of liability for a
claim alleging the deprivation of a federal constitutional right.”) (internal
citation omitted). Only violations of one’s constitutional rights are protected,
not violations of state statutes or a state agency’s policy. Scott v. Edinburg,
346 F.3d 752, 760 (7th Cir. 2003) (observing that “42 U .S.C. § 1983 protects
plaintiffs from constitutional violations, not violations of state laws”). To the
extent Morales’s alleged constitutional violations are based on a violation of
42
state law, the claims fail because the allegations fail to also state a claim for
violation of a secured federal rights.
O.
Injunctive Relief
Here Morales’s request for injunctive relief should be dismissed
because it is not narrowly drawn as required by the PLRA. See 18 U.S.C.
3626(a)(1). Much of the requested relief is not relief this Court can grant in
this case and, more importantly, Morales is not entitled to any of the
injunctive relief he requests because the claims are subject to dismissal.
V.
Conclusion
Although the Court finds that both Morales’s FAC [15-10732] and
original complaint [15-13887] fail to state claims for relief pursuant to
F.R.C.P. 12(b)(6) and 28 U.S.C. §§ 1915(e)(2)(B)(ii), §1915(e)(2)(B)(iii),
§1915A, the court does not find, as suggested in Defendants’ Memorandum
in Support of Motion to Dismiss [15-10732, #72] that these actions are
frivolous and/or malicious and brought in bad faith.
ORDER
Accordingly, for the reasons set forth above,
1)
Plaintiff’s motion (ECF # 2, 15-13887) to proceed in forma
pauperis is denied as moot;
43
(2)
Defendants’ motion (ECF #71, 15-10732) to dismiss for failure to
state a claim is ALLOWED; and plaintiff’s motion (ECF #76, 15-10732) to
dismiss defendants’ responsive pleadings is DENIED;
(3)
The claims against the five new defendants named in the fourth
amended complaint are dismissed.
(4)
Plaintiff’s consolidated case, C.A. No. 15-13887, is dismissed with
prejudice pursuant to 1915A for failure to state a claim and for the reasons
set forth in defendants’ motion to dismiss similar claims raised in plaintiff’s
FAC filed in 15-10732. Plaintiff’s consolidated case, C.A. No. 15-13887, shall
be closed.
(5)
The clerk shall enter a separate order of dismissal for these
consolidated cases and the clerk shall close C.A. No. 15-13887.
SO ORDERED.
/s/Richard G. Stearns___
United States District Judge
44
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