Moseley v. Spencer et al

Filing 6

District Judge Leo T. Sorokin: MEMORANDUM AND ORDER entered: Plaintiff's Motion for Leave to Proceed in forma pauperis (Docket No. 3) is DENIED without prejudice. Within 21 days of the date of this Memorandum and Order, plaintiff either must: ( 1) pay the $400.00 filing and administrative fees; or (2) file a renewed motion for leave to proceed in forma pauperis accompanied by his certified prison account statement.Within 42 days of the date of this Memorandum and Order, plaintiff shall file an Amended Complaint curing the pleading deficiencies in accordance with Rule 8.Plaintiff's Motion for Appointment of Counsel (Docket No. 2) is DENIED. No summonses shall issue pending further Order of the Court. (PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
WILLIAM B. MOSELEY, II,
Plaintiff,
v.

CIVIL ACTION NO. 15-13661-LTS

LUIS S. SPENCER, ET AL.,
Defendants.
MEMORANDUM AND ORDER
SOROKIN, U.S.D.J.
BACKGROUND
On October 28, 2015, plaintiff William B. Moseley, II (“Moseley”), a prisoner serving a
criminal sentence at the Souza-Baranowski Correctional Center (“SBCC”) in Shirley,
Massachusetts, filed a sprawling civil Complaint against the Commissioner of the Massachusetts
Department of Correction (“DOC”) and fourteen (14) SBCC officers or employees.1
The 65-page Complaint consists of 55 pages that chronicle Moseley’s adverse daily
and/or weekly prison experience at SBCC from October, 2014 to date, both as a pretrial detainee
and thereafter as a convicted prisoner. In many instances, he outlines his breakfast, lunch, and
dinner menus. He also outlines each corresponding informal complaint, grievance and appeal
concerning these conditions of confinement. Boiling the case down to its essence, Moseley’s
claims stem from his request for a Kosher diet based on his religious beliefs along with his
request for continuation of his evening snack as medically prescribed for his diabetes. He
alleges that he was approved for a Kosher diet but then his evening snack was removed from his

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The defendants include: (1) DOC Commissioner Luis S. Spencer; (2) SBCC
Superintendent Bruce Gelb; (3) SBCC Director of Treatment Lynn Cherneski; (4) SBCC Food
Service Director Paul Visconti; (5) SBCC Kitchen Officer Mr. Butler; (6) SBCC Kitchen Officer
Mr. Wong; (7) SBCC Kitchen Lieutenant Jose Mortinez; (8) SBBC Kitchen Lieutenant Mr.
Williams; (9) SBCC Health Service Administrator Janet Roduguez; (10) SBCC Institutional
Grievance Coordinator (“IGC”) Sgt. Thomas M. Tocci; (11) SBCC Superintendent Vidal
Osvaldo; (12) Correctional Officer Sgt. Brian M. Nano (“Nano”); (13) Correctional Officer
Lieutenant Sue S. Stubbert; (14) SBCC IGC Kristen Olihuik; and (15) SBCC IGC Pamela M.
O’Dell. Each defendant is sued in his/her official and individual capacity.

diet. After he filed administrative grievances regarding the failure to provide his evening snack,
he was told that he must choose either a Kosher meal diet or a medical diet, but he could not
have both. Additionally, Moseley contends that for three years in a row, he has not been
provided with proper Kosher-for-Passover foods or accouterments (e.g., sufficient Matzoh and
grape juice, Sedar plate (with non-rancid egg and edible greens on it), and a Haggadah booklet)
to celebrate Passover, despite his many requests for accommodation in advance of the holiday.
Further, he claims he was told that he could not celebrate the second Sedar of Passover because
this observance was not recognized.
Next, Moseley claims that as a result of his filing of grievances concerning his diet, he
has been subject to retaliation, harassment, sexual harassment, discrimination based on his color
and his religion, particularly by the kitchen workers, Sgt. Nano and Lt. Stubbert. He also alleges
that all of the defendants engaged in a conspiracy to violate his civil rights.
Moseley asserts violations of his right to free exercise of religion under the First
Amendment, the denial of due process and equal protection under the Fourteenth Amendment,
and the right to be free from cruel and unusual punishment (including deliberate indifference to a
serious medical need) under the Eighth Amendment. He lists his causes of action under 42
U.S.C. §§ 1983, 1985(2), 1986, Title II of the Americans with Disabilities Act, 42 U.S. § 12101
et seq., Section 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq., the Religious Land Use
and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc et seq. as well as
various state law claims under Massachusetts law, including claims under the Massachusetts
Tort Claims Act (“MTCA”), Mass. Gen. Laws ch. 258, § 2.2
As relief, Moseley seeks, inter alia, a declaratory judgment, preliminary and injunctive

2

Based on his allegations, the Court presumes Moseley is asserting claims under 42
U.S.C. § 1985(3) and not § 1985(2). Section 1985(2) deals with obstructing justice to deter any
party or witness from attending or testifying in a court proceeding. Section 1985(3) deals with
conspiracies intended to deprive an individual or class of persons of protected rights based on
“‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus.’” Aulson v.
Blanchard, 83 F.3d 1, 3 (1st Cir. 1996), quoting Griffin v. Breckenridge, 403 U.S. 88, 102
(1971).
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relief, and compensatory and punitive damages.
Along with the Complaint, Moseley filed a Motion for Leave to Proceed in forma
pauperis (Docket No. 3) and a Motion for Appointment of Counsel (Docket No. 2).
DISCUSSION
I.

The Motion for Leave to Proceed In Forma Pauperis
Moselely’s financial affidavit indicates he has no income or assets. He also attaches a

prison account statement form that he has signed indicating that he has $.10 in his canteen
account and that he expects to receive $25.00-$30.00 every other month from his sister.
Moseley’s application to proceed in forma pauperis is defective because he failed to
provide a certified prison account statement from the appropriate official. Where a plaintiff is a
prisoner, a request to proceed without prepayment of the filing fee must be accompanied by “a
certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for
the 6-month period immediately preceding the filing of the complaint . . . obtained from the
appropriate official of each prison at which the prisoner is or was confined.” 28 U.S.C.
§ 1915(a)(2).3
Accordingly, Moseley’s Motion for Leave to Proceed in forma pauperis (Docket No. 3)
is DENIED without prejudice. If Moseley elects to proceed with this action, within 21 days of
the date of this Memorandum and Order, he either must: (1) pay the $400.00 filing and
administrative fees4; or (2) file a renewed motion for leave to proceed in forma pauperis
accompanied by his certified prison account statement. Failure to comply with this directive
may result in a dismissal of this action without prejudice.

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Unlike other civil litigants, prisoner plaintiffs are not entitled to a complete waiver of the
filing fee, notwithstanding the grant of in forma pauperis status. Based on the information
contained in the prison account statement, the Court will direct the appropriate prison official to
withdraw an initial partial payment from the prisoner’s account, followed by payments on a
monthly basis until the $350.00 filing fee is paid in full. See 28 U.S.C. § 1915(b)(1)-(2).
4

The $50.00 administrative fee became effective May 1, 2013; it does not apply to
persons proceeding in forma pauperis. See Judicial Conference Fee Schedule.
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The Clerk shall provide plaintiff with an Application to Proceed in District Court
Without Prepaying Fees or Costs. The Clerk shall also send a copy of this Memorandum and
Order to the Treasurer’s Office at SBCC in order to facilitate any request by Moseley for his
certified prison account statement. The Court requests that the Treasurer’s Office include in any
prison account statement Moseley’s average monthly deposits for the six-month period
preceding the date the Complaint was filed, as well as the average monthly balance for that same
period.
II.

Screening of the Complaint
Because Moseley is a prisoner, his Complaint is subject to preliminary screening at this

time under 28 U.S.C. § 1915A (authorizing the Court to review prisoner complaints in civil
actions in which a prisoner seeks redress from a governmental entity, or officers or employees of
a governmental entity, and to dismiss the action regardless of whether or not the plaintiff has
paid the filing fee, if the complaint lacks an arguable basis in law or fact, fails to state a claim, or
seeks relief from a defendant immune from such relief).
While this Court considers that, for purposes of preliminary screening, Moseley has
stated some plausible claims against certain of the defendants, many of his claims (and his
requests for monetary relief) are subject to dismissal, for the reasons set forth below.
III.

Failure to Comply With Fed. R. Civ. P. 8
Moseley’s Complaint fails to comport with the pleading requirements of Rule 8 of the

Federal Rules of Civil Procedure. Rule 8(a) requires a plaintiff to include in the complaint, inter
alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). This statement must “‘give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests,’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see Rivera v. Rhode
Island, 402 F.3d 27, 33 (1st Cir. 2005). It must afford the defendant(s) a “[‘]meaningful
opportunity to mount a defense,’” Díaz-Rivera v. Rivera-Rodríguez, 377 F.3d 119, 123 (1st Cir.
2004) (quoting Rodríguez v. Doral Mortgage Corp., 57 F.3d 1168, 1172 (1st Cir. 1995)). See
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also Redondo-Borges v. U.S. Dept. of Housing and Urban Dev., 421 F.3d 1, 5 (1st Cir. 2005).
“In a civil rights action as in any other action . . . , the complaint should at least set forth minimal
facts as to who did what to whom, when, where, and why.” Educadores Puertorriqueños en
Acción v. Hernandez, 367 F.3d 61, 68 (1st Cir. 2004).
Here, Moseley combines all of his causes of action against all of the defendants. Thus, it
is unclear which of his causes of action are asserted against each defendant. For instance,
Moseley alleges retaliation and harassment, but he has not set forth sufficient underlying facts to
support those causes of action against the supervisory officials. In addition, Moseley fails to set
forth sufficient facts to support his claims that all of the defendants conspired together to deprive
him of his rights.
As the United States Supreme Court has stated, under Rule 8, a plaintiff must plead more
than a mere allegation that the defendants have harmed him. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (detailed factual allegations are not required under Rule 8, but a complaint “demands
more than an unadorned, the defendant-unlawfully-harmed-me accusation.” quoting Twombly,
550 U.S. at 555). See Chiang v. Skeirik, 582 F.3d 238, 244 (1st Cir. 2009) (“Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”)
(internal citation and quotation marks omitted). While Moseley has alleged underlying facts
(oral statements and actions) setting forth his claim for joint participation in the retaliation and/or
harassment by certain defendants (e.g., Nano and Stubbert), he fails to state plausible claims of
conspiracy by all the defendants. At best, the conspiracy allegations are bald, threadbare, and
speculative conclusions of conspiracy. See Peñalbert–Rosa v. Fortuño-Burset, 631 F.3d 592,
595 (1st Cir. 2011) (“[S]ome allegations, while not stating ultimate legal conclusions, are
nevertheless so threadbare or speculative that they fail to cross ‘the line between the conclusory
and the factual.’”) quoting Twombly, 550 U.S. at 557 n.5. In order to state a conspiracy claim,
Moseley must allege specific facts that suggest a conspiracy or agreement; conclusory statements
that the defendants conspired are insufficient to meet the pleading standard. See Hudson v.
MacEachern, No. 13-12395-LTS, 2015 WL 1442547, at *6 (D. Mass. Mar. 31, 2015).
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In addition to the lack of underlying factual support for many of his claims, Moseley has
failed to comply with Rule 8 because he has collectively asserted his claims against the
defendants. See Bagheri v. Galligan, 160 Fed. Appx. 4, 5, 2005 WL 3536555, *1 (1st Cir. 2005)
(unpublished decision finding complaint deficient because, inter alia, it failed to state clearly
which defendant or defendants committed each of the alleged wrongful acts; “[the district court’s
requirement of an amended complaint] to remedy this deficiency did not demand more than the
minimum necessary to satisfy notice pleading standards.”). See also Atuahene v. City of
Hartford, 10 Fed. Appx. 33, *34, 2001 WL 604902, *1 (2d Cir. 2001) (unpublished decision,
stating “[b]y lumping all the defendants together in each claim and providing no factual basis to
distinguish their conduct, [plaintiff’s] complaint failed to satisfy this minimum standard....”).
Thus, as pled, it would be immensely unfair to each of the defendants to have to peruse
the voluminous Complaint in its current form in order to try and cull out what alleged actions or
inactions were meant simply to provide background information and what alleged actions or
inactions are meant to form the basis for the conspiracy claim or for the other asserted violations
of law. In light of this, even though Moseley has stated some plausible claims, this case cannot
proceed unless he amends his Complaint to comply with Rule 8. The Court will afford Moseley
an opportunity to do so, as set forth below.
IV.

Sovereign Immunity Bars Damages Claims Against Defendants Sued in Their Official
Capacity
To the extent that Moseley seeks monetary damages against any defendant in his or her

“official capacity,” such claims are subject to dismissal. The Eleventh Amendment bars suits
against an unconsenting state brought by its own citizens as well as by citizens of another state.
Pennhurst State Sch.& Hosp. v. Halderman, 465 U.S. 89, 100 (1984). See Kentucky v. Graham,
473 U.S. 159, 167 n. 14 (1985); Alabama v. Pugh, 438 U.S. 781, 782 (1978)). The Eleventh
Amendment also extends to confer immunity from suit upon state officials when “the state is the
real substantial party in interest,” that is, when “the judgment sought would expend itself on the
public treasury . . . , or interfere with the public administration . . . . “ Pennhurst State Sch. &
6

Hosp., 465 U.S. at 101-102, n. 11; see Will v. Michigan Dept. of State Police, 491 U.S. 58, 71
(1989) (although state officials are literally persons, a suit against a state official in his official
capacity is not a suit against the official but rather is a suit against the official’s office).
Here, there is no basis to assume that a waiver of sovereign immunity exists.
V.

Money Damages Are Not Recoverable Under RLUIPA
“RLUIPA provides greater protection to inmates’ free-exercise rights than does the First

Amendment.” Kuperman v. Wrenn, 645 F.3d 69, 79 (1 Cir. 2011); see generally LeBaron v.
Spencer, et al., 527 Fed. Appx. 25 (1st Cir. 2013) (unpublished opinion discussing RLUIPA in
prisoner challenge regarding Kosher diet, and claims of religious discrimination, conspiracy and
retaliation). Nevertheless, the appropriate relief in RLUIPA actions is limited to injunctive or
declaratory relief to enforce the statute. Sossamon v. Texas, 563 U.S. 277, 287 (2011). The
Supreme Court has held that, “States, in accepting federal funding, do not consent to waive their
sovereign immunity to private suits for money damages under RLUIPA because no statute
expressly and unequivocally includes such a waiver.” Id. at 293. Thus, Moseley cannot recover
monetary damages for RLUIPA violations by the defendants.
VI.

Failure to State a Plausible Claim Under the MTCA
The MTCA permits recovery for liability against public employers, including the

Commonwealth of Massachusetts and serves as a waiver of sovereign immunity under certain
circumstances. See Mass. Gen. Laws ch. 258, § 2. Before filing suit, a party must first have
presented the claim to the executive officer of the public employer and received a final decision
on the claim. Mass. Gen. Laws ch. 258, § 4.
Here, Moseley has alleged that he has made the proper administrative presentment and
his claim has been denied. Nevertheless, he fails to state a plausible MTCA claim because none
the named defendants is liable under the MTCA. The liability for negligent or wrongful acts or
omissions of any public employee attaches to the public employer, and not the employees. See
Mass. Gen. Laws ch. 258, § 2 (providing, in relevant part, that “no such public employee or the

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estate of such public employee shall be liable for any injury or loss of property or personal injury
or death caused by his negligent or wrongful act or omission while acting within the scope of his
office or employment”).
VII.

Failure to State Plausible Claim Based on Denial of Grievances and Appeals
It appears that most of Moseley’s claims against the IGC and supervisory defendants

arise out of the denial of his grievances. To the extent that he complains that certain defendants
failed to answer his grievances or denied his grievances and his appeals, he fails to state
plausible civil rights claims because has not demonstrated that he had a constitutionally
protected interest in the grievance procedures. See Piper v. Alford, 2003 WL 21350215, at *2
(N. D. Tex.2003) (holding that a jail inmate “does not have a constitutional entitlement to an
adequate grievance procedure” and the ineffectiveness or even absence of a grievance procedure
does not give rise to a constitutional claim); see also Leavitt v. Allen, 46 F.3d 1114 (1st Cir.
1995) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). “When the claim underlying
the administrative grievance involves a constitutional right, the prisoner’s right to petition the
government for redress is the right of access to the courts, which is not compromised by the
prison’s refusal to entertain his grievance.” Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991);
accord Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (citations omitted); Sandin v. Conner, 515
U.S. 472 (1995).
To the extent that Moseley’s claims are based on a failure to intervene theory of liability
rather than simply on the denial of grievances or appeals, he has not pled those claims
sufficiently in accordance with Rule 8.
VIII.

Order to File an Amended Complaint
In light of all of the above, this action will be dismissed within 42 days of the date of this

Memorandum and Order unless Moseley files an Amended Complaint curing the pleading
deficiencies and setting forth plausible claims in accordance with Fed. R. Civ. P. 8 (expressly
setting forth the name of each defendant, the separate cause of action asserted against each

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defendant, along with a concise statement of the factual basis supporting each cause of action).
Moseley should not collectively assert his causes of action against all of the defendants. With
respect to any conspiracy claims, Moseley should identify the alleged conspirators, the
conspiratorial purpose, the over act(s) in furtherance of the conspiracy and identify the injury to
him. See LeBaron, 527 Fed. Appx. at 33. Further, in preparing his Amended Complaint, he
should be mindful of the other legal impediments discussed in this Memorandum and Order.
Failure to comply with any of the directives contained in this Memorandum and Order
may result in a dismissal of this action. No summonses shall issue pending further Order of the
Court.
Finally, while the Court does not require submission of the Amended Complaint in a
chart form, Moseley may use the following format as a template.

Name of Defendant

Legal Cause of
Action

Date and Place
Violation Occurred

Brief Statement of
Factual Support

ex: Defendant 1

RLUIPA

mo/day/year; SBCC

state facts how
RLUIPA was
violated by
Defendant 1

ex: Defendant 2

retaliation

mo/day/year; SBCC

state the facts
supporting retaliation
by Defendant 2

ex: Defendant 3

42 U.S.C. § 1983;
Equal Protection

mo/day/year; SBCC

state the facts
supporting an equal
protection claim
against Defendant 3

ex: Defendant 4

42 U.S.C. § 1983;
Deliberate
Indifference to a
Serious Medical
Need

mo/day/year; SBCC

state the facts
supporting a
deliberate
indifference claim
against Defendant 4

ex: Defendant 5
and Defendant 6

Conspiracy (state
whether claim is
under
§ 1983 or § 1985(3)

mo/day/year; SBCC

state the facts
supporting a
conspiracy between
Defendants 5 and 6

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IX.

The Motion For Appointment of Counsel
In his Motion for Appointment of Counsel, Moseley seeks counsel because he is an

indigent prisoner and has limited legal knowledge or law library access. He contends this case
involves complex issues and will involve conflicting testimony, and counsel is in a better
position to present evidence and conduct cross examination. Additionally, Moseley has made
efforts to obtain a lawyer but has not been successful.
Under 28 U.S.C. § 1915(e)(1), the court “may request an attorney to represent any person
unable to afford counsel.” 28 U.S.C. § 1915(e)(1). A civil plaintiff, however, does not have a
constitutional right to free counsel. DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991). In
order to qualify for appointment of counsel, a party must be indigent and exceptional
circumstances must exist such that denial of counsel will result in fundamental unfairness
impinging on the party’s due process rights. Id. To determine whether exceptional
circumstances sufficient to warrant the appointment of counsel are present in a case, the court
must examine the total situation, focusing on the merits of the case, the complexity of the legal
issues, and the litigant’s ability to represent him or herself. Id. at 24.
At this juncture, this Court cannot find that exceptional circumstances exist that would
warrant appointment of pro bono counsel in this case. First, Moseley appears proficient in the
English language and has demonstrated some knowledge of law and legal procedures. Second,
although his Complaint names numerous defendants, the legal issues he raises are not novel.
Third, his lack of funds and legal skills is not unique in prisoner litigation. Fourth and finally, as
noted above, many of his claims are subject to dismissal. Thus, the Court cannot find that it
would be fundamentally unfair to Moseley should counsel not be appointed.
For these reasons, Moseley’s Motion for Appointment of Counsel (Docket No. 2) is
DENIED. If this case is permitted to proceed, Moseley may renew a request for appointment of
counsel after the defendants have filed a responsive pleading, and upon good cause shown in
light of the response.

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CONCLUSION
Based on the foregoing, it is hereby Ordered that:
1.

Plaintiff's Motion for Leave to Proceed in forma pauperis (Docket No. 3) is DENIED
without prejudice.

2.

Within 21 days of the date of this Memorandum and Order, plaintiff either must: (1) pay
the $400.00 filing and administrative fees; or (2) file a renewed motion for leave to
proceed in forma pauperis accompanied by his certified prison account statement.

3.

Within 42 days of the date of this Memorandum and Order, plaintiff shall file an
Amended Complaint curing the pleading deficiencies in accordance with Rule 8.

4.

Plaintiff’s Motion for Appointment of Counsel (Docket No. 2) is DENIED.

5.

No summonses shall issue pending further Order of the Court.

SO ORDERED.
/s/ Leo T. Sorokin
LEO T. SOROKIN
UNITED STATES DISTRICT JUDGE

DATED: January 27, 2016

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