King v. Department of Corrections et al

Filing 66

Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered:As stated in the Memorandum and Order, 27 Defendant's Motion to Dismiss is GRANTED IN PART and DENIED IN PART with respect to Defendants, Goden and Guerin. Specifically, The Motion t o Dismiss is GRANTED with respect to all claims against Defendants in their official capacities. The Motion to Dismiss is GRANTED with respect to the Fourteenth Amendment claim against Defendants. The Motion to Dismiss is DENIED with respect to the Eighth Amendment claim against Defendants., To the extent that the motion was brought on behalf of parties who have not yet been served, the motion is DENIED without prejudice. 51 Defendants' second Motion to Dismiss is DENIED as moot. All claims alleged in the Amended Complaint against Defendants, except the Eighth Amendment claim against Defendants in their official capacities, are hereby DISMISSED.A copy of this Order has been mailed to the Plaintiff. (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

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DERIC KING,
Plaintiff,
v.
DEPARTMENT OF CORRECTION, et al.,
Defendants.

Civil Action No. 15-cv-14256-ADB

MEMORANDUM AND ORDER
December 8, 2016
BURROUGHS, D.J.
Deric King (“Plaintiff”) brings an action, under 42 U.S.C. § 1983 and Massachusetts state
law, against several officials currently or formerly employed by the Massachusetts Department
of Correction in their official and individual capacities and the Massachusetts Partnership for
Correctional Healthcare, alleging cruel and unusual punishment under the Eighth Amendment, a
due process violation under the Fourteenth Amendment, and failure to protect under
Massachusetts law. Amended Complaint (“Am. Cmpl.”) [ECF No. 25]. Plaintiff seeks an
injunction, compensatory damages, punitive damages, and reasonable attorney’s fees and costs.
Id.
Currently before the Court are Defendants Jeffrey Guerin and Carlos Goden’s Motions to
Dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6), [ECF No. 27], and for Failure to Comply with Court Order, [ECF No. 51]. For the
reasons stated herein, the Motion to Dismiss the Amended Complaint [ECF No. 27] is

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GRANTED IN PART AND DENIED IN PART with respect to Defendants Guerin and Goden.
To the extent that Defendants also move to dismiss claims on behalf of parties who have not yet
been served, e.g., Douglas Bower, Stephanie Ericson, Luis Spencer, and Bruce Gelb, see [ECF
Nos. 55, 56, 57, 58], the Motion is DENIED without prejudice. 1 Defendants Guerin and Goden’s
second Motion to Dismiss [ECF No. 51] is DENIED as moot.
I.

BACKGROUND
a. Procedural Background
Plaintiff’s first complaint was received by the clerk of court on December 31, 2015. [ECF

No. 1]. The complaint is dated December 21, 2015. Id. Plaintiff represents that he placed it in the
prison mailbox on December 21, 2015. [ECF No. 61 at 6]. Plaintiff’s Amended Complaint was
entered on June 17, 2016. [ECF No. 25].
On June 27, 2016, Defendants Carlos Goden and Jeffrey Guerin (the “Defendants”) filed
a motion to dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure
12(b)(6) and 12(b)(1), [ECF No. 27], and a memorandum of law in support, [ECF No. 28]. The
Court granted Plaintiff’s motion to extend his time to respond to the motion to dismiss until
October 5, 2016. [ECF No. 49]. Plaintiff failed to meet the October 5, 2016 deadline. On October
14, 2016, Defendants filed a motion to dismiss the Amended Complaint for Plaintiff’s failure to
meet his own deadline. [ECF No. 51]. On October 17, 2016, the Court issued an order to show
cause as to why the motion to dismiss should not be granted and gave Plaintiff until November 1,
2016 to respond. [ECF No. 52]. On October 31, 2016, Plaintiff filed an opposition to

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It is not completely clear from the Defendants’ Motion to Dismiss [ECF No. 27] whether they
bring the motion on behalf of certain defendants who have no yet been served, and if so, whether
they are permitted to do so.
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Defendants’ second motion to dismiss. [ECF No. 62]. On November 1, 2016, Plaintiff finally
filed an opposition to the first motion to dismiss. [ECF No. 61].
The Amended Complaint was served on Defendant Massachusetts Partnership for
Correctional Healthcare, which is not a party to these motions. [ECF No. 54]. It appears that the
US Marshal was unable to serve Defendants Douglas Bower, Stephanie Ericson, Luis Spencer,
and Bruce Gelb. [ECF Nos. 55, 56, 57, 58].
b. Factual Background
The Amended Complaint [ECF No. 25] alleges as follows. Plaintiff was incarcerated at
Souza Baranowski Correctional Center (“SBCC”) at the time of the events described. Am.
Compl. ¶ 3. Prisoners at SBCC are “screened” by Inner Perimeter Security and the Shift
Commander in order to determine any gang affiliation or enemy separation issues, and
segregated based on such issues. Am. Compl. ¶ 16. Sometime before December 24, 2012, prison
guards searched the cell shared by Plaintiff and his cellmate, and claimed that they found
contraband. Id. ¶¶ 13–14. As a result, the Plaintiff was placed on “Awaiting Action” status. Id.
¶ 14. On December 24, 2012, the Plaintiff and his cellmate were moved from their cell in J-2 to
cell number 10 in a disciplinary/transitional block, L-1. Id. ¶ 15.
Plaintiff is a “confirmed gang member” who is part of a “security threat group.” Id. ¶ 17.
Plaintiff alleges that he has been a confirmed gang member “since 2012.” Id. Defendants Goden,
Guerin, and Bower moved Plaintiff to an L-1 cell. Am. Compl. ¶ 18. Immediately upon his
relocation to L-1, Plaintiff informed prison guards (John Doe #1 and John Doe #2) that his
placement was problematic because rival gang members were located in surrounding cells. Id.
¶ 19. According to Plaintiff, members of this gang were known to attack “on sight,” although it
is not clear by whom this was known or how they might know this. Id. It is also unclear whether

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the rival gang members were already in the cells when Plaintiff was relocated or whether they
were relocated there sometime afterwards. The prison guards allegedly informed Plaintiff that
Defendant Guerin had instructed them to place Plaintiff in this particular cell, and then said “[b]y
the way, make it a good one, will you?” Id. ¶ 19. Plaintiff informed the prison guards that he and
his cellmate had been placed on “Awaiting Action” status, which had not yet been rescinded. Id.
¶ 20. The prison guards promised they would check on it. Id. Plaintiff does not further explain
what “Awaiting Action” status means.
At approximately 1:30 pm on December 24, 2012, minutes after being relocated, Plaintiff
stepped out of his cell and was immediately attacked by four members of the rival gang, causing
serious injuries to his back, neck, and hand. Id. ¶¶ 21, 22. Plaintiff alleges that the prison guards
who placed him in the cell commented that this is what he gets when he is a gang member, and
that Defendant Guerin admitted to “screw[ing] up” by placing him in the cell. Id. ¶ 23. Some, but
not all, of Plaintiff’s injuries were photographed. Id. ¶ 24. Sometime in January 2013, Plaintiff’s
hand and back were x-rayed. Id. ¶ 25. Plaintiff was eventually given motrin and physical therapy.
Id. ¶ 26, 27. Plaintiff alleges that he complained that the motrin was ineffective and repeatedly
requested further testing or treatment, and that his complaints were dismissed by medical
personnel. Id. ¶¶ 25–26.
On October 13, 2013, Plaintiff was released from prison. Am. Compl. ¶ 28. Upon release,
he sought medical attention “for his ongoing pain, immobility, and lack of sleep and appetite.”
Id. ¶ 28. He had an MRI. Id. On March 27, 2014, Plaintiff was rearrested and is currently serving
a five-year sentence at SBCC. Id. ¶ 29. Plaintiff alleges that he “continues to suffer pain, lack of
mobility, sleeplessness, appetite loss, depression and anxiety because of the memories of the

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December 24, 2012 attack,” but that his requests for medical attention “go ignored.” Am. Compl.
¶¶ 29, 30.
Specifically with respect to Defendant Goden, Plaintiff alleges that he is or was an “Inner
Perimeter Security” officer during the relevant time period. Am. Compl. ¶ 8. He is “responsible
for preventing the intermingling of opposing gang members at SBCC” by investigating
affiliations and communicating them to relevant personnel. Id. With respect to Defendant
Guerin, Plaintiff alleges that he was the Shift Commander responsible for moving prisoners on
December 24, 2012 between 7 am and 3 pm. Id. ¶ 9. He ordered Plaintiff’s relocation to the new
cell and apparently was responsible for his “Awaiting Action” status.2 Id. Plaintiff is suing both
Defendants Guerin and Goden in their individual and official capacities. Id. at ¶¶ 8, 9.
II.

LEGAL STANDARD
On a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the Court

must accept as true all well-pleaded facts, analyze those facts in the light most hospitable to the
plaintiff’s theory, and draw all reasonable inferences from those facts in favor of the plaintiff.
United States ex rel. Hutcheson v. Blackstone Med., Inc., 647 F.3d 377, 383 (1st Cir. 2011).
“The fate of a motion to dismiss under Rule 12(b)(6) ordinarily depends on the allegations
contained within the four corners of the plaintiff’s complaint.” Young v. Lepone, 305 F.3d 1, 10–
11 (1st Cir. 2002). Although detailed factual allegations are not required, a pleading must set
forth “more than labels and conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
A “formulaic recitation of the elements of a cause of action” is not enough. Id. To avoid
dismissal, a Complaint must set forth “factual allegations, either direct or inferential, respecting
each material element necessary to sustain recovery under some actionable legal theory.”

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Plaintiff does not explain what exactly “Awaiting Action” status signified.
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Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (internal quotations and citation
omitted). Further, the facts alleged, when taken together, must be sufficient to “‘state a claim to
relief that is plausible on its face.’” A.G. ex rel. Maddox v. v. Elsevier, Inc., 732 F.3d 77, 80 (1st
Cir. 2013) (quoting Twombly, 550 U.S. at 570).
The First Circuit has noted that “[t]he plausibility standard invites a two-step pavane.” Id.
“At the first step, the court ‘must separate the complaint’s factual allegations (which must be
accepted as true) from its conclusory legal allegations (which need not be credited).’” Id.
(quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). “At the second step,
the court must determine whether the remaining factual content allows a reasonable inference
that the defendant is liable for the misconduct alleged.” Id. (internal quotations and citation
omitted). “The make-or-break standard . . . is that the combined allegations, taken as true, must
state a plausible, not a merely conceivable, case for relief.” Sepulveda-Villarini v. Dep’t of Educ.
of Puerto Rico, 628 F.3d 25, 29 (1st Cir. 2010). “Although evaluating the plausibility of a legal
claim requires the reviewing court to draw on its judicial experience and common sense, the
court may not disregard properly pled factual allegations, even if it strikes a savvy judge that
actual proof of those facts is improbable.” Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12
(1st Cir. 2011) (internal quotations and citation omitted).
Because Plaintiff filed his Complaint pro se, the Court will construe his allegations
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, pro se status does not
insulate a party from complying with procedural and substantive law. Ahmed v. Rosenblatt, 118
F.3d 886, 890 (1st Cir. 1997). Dismissal of a pro se complaint is appropriate when the complaint
fails to state an actionable claim. Muller v. Bedford VA Admin. Hosp., No. 11-10510, 2013 WL

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702766, at *3 (D. Mass. Feb. 25, 2013) (citing Overton v. Torruella, 183 F. Supp. 2d 295, 303
(D. Mass. 2001)).
A motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) “‘is
subject to the same standard of review’ as a motion to dismiss under Rule 12(b)(6).” Breda v.
McDonald, 153 F. Supp. 3d 496, 499 (D. Mass. 2015) (citing Castino v. Town of Great
Barrington, 13-30057, 2013 WL 6383020, at *1 (D. Mass. Dec. 4, 2013)). Courts may, however,
consider evidence outside the pleadings in determining jurisdiction. Gonzalez v. United States,
284 F.3d 281, 288 (1st Cir. 2002), as corrected (May 8, 2002).
Finally, “[t]he district court may grant a motion to dismiss based on a defendant’s
affirmative defense of a statute of limitations ‘when the pleader’s allegations leave no doubt that
an asserted claim is time-barred.’” DeGrandis v. Children’s Hosp. Boston, 806 F.3d 13, 16–17
(1st Cir. 2015) (quoting LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st
Cir.1998)).
III.

DISCUSSION
a. Plaintiff’s Claims Are Not Time-Barred.
Defendants first argue that Plaintiff’s § 1983 claims are time-barred. Defendants and

Plaintiff agree that § 1983 actions are subject to a three-year statute of limitations. See Nieves v.
McSweeney, 241 F.3d 46, 52–53 (1st Cir. 2001) (federal civil rights cases filed in Massachusetts
are subject to a three-year statute of limitations). They also agree that the statute of limitations
began to run on all claims on the date of Plaintiff was attacked, i.e., December 24, 2012. Thus,
the statute of limitations expired on December 24, 2015. The Plaintiff and Defendants disagree,
however, as to what date the action was filed.

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In this case, the § 1983 claims were deemed filed on the day Plaintiff submitted the initial
complaint to prison authorities for mailing, which he avers in his opposition brief was December
21, 2015. [ECF No. 61 at 6]. “[T]he mailbox rule shall govern the determination of when a
prisoner’s § 1983 filing has been completed. So long as the prisoner complies with the prison’s
procedures for sending legal mail, the filing date for purposes of assessing compliance with the
statute of limitations will be the date on which the prisoner commits the mail to the custody of
prison authorities.” Casanova v. Dubois, 304 F.3d 75, 79 (1st Cir. 2002). The initial complaint
itself is dated December 21, 2015. Defendants have not disputed that this is the date Plaintiff
submitted the complaint to prison authorities or that he followed prison mail procedure. See
Ward v. Bellotti, No. 13-12054, 2014 WL 4656593, at *4 (D. Mass. Sept. 15, 2014) (“If [the
plaintiff] produces unrebutted evidence to support that date, then he filed his federal claim prior
to the expiration of the statute of limitations.”). Accordingly, Plaintiff’s § 1983 claims are not
time-barred.
It is less clear whether Plaintiff’s state law claims are time-barred. Under Massachusetts
law, Plaintiff asserts only a negligence claim for failure to protect. See Am. Compl. ¶ 1.
Massachusetts appellate courts have not decided whether the prison mailbox rule applies to civil
complaints. See Ward v. Bellotti, No. 13-12054, 2014 WL 4656593, at *4 (D. Mass. Sept. 15,
2014); see also Jackson v. Comm’r Of Correction, 2 N.E.3d 200 (Mass. App. Ct. 2014), review
denied, 8 N.E.3d 279 (Mass. 2014) (declining to address the issue because the argument was
waived below). Superior Court decisions seem to be in tension with each other on the issue.
Compare Haas v. Spencer, No. WOCV201101399, 2012 WL 7017165, at *9 (Mass. Super. Dec.
11, 2012) (applying prison mailbox rule to filing of civil complaint) with Tibbs v. Dipalo, No.
CA991509, 2000 WL 1273854, at *4 (Mass. Super. Mar. 21, 2000) (declining to apply prison

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mailbox rule to filing of complaint that included § 1983 claim). The Massachusetts Supreme
Judicial Court, however, has adopted the mailbox rule for determining when an inmate has
effectively filed a notice of appeal. See Commonwealth v. Hartsgrove, 553 N.E.2d 1299, 1302
(Mass. 1990). Recognizing that inmates cede control over filings once they hand them over to
prison personnel and given the vagaries of the prison mail system, the Court finds the mailbox
rule to be the fairest rule to apply in this case. See, e.g., Ward, 2014 WL 4656593, at *4 (“The
Court finds the rulings applying the mailbox rule more persuasive and, therefore, applies the rule
to Ward’s pendent tort claims.”). Accordingly, applying the mailbox rule, Plaintiff’s state law
claims are also not time-barred.
b. The Eleventh Amendment Bars Claims Against Defendants In Their Official
Capacities.
The Eleventh Amendment bars suits in federal court against a state without its consent.
Will v. Michigan Dept. of State Police, 491 U.S. 58, 70–71 (1989) (holding that Congress did not
abrogate state’s sovereign immunity in § 1983 suits). Eleventh Amendment immunity extends to
suits against state officials being sued in their official capacity, Kentucky v. Graham, 473 U.S.
159, 166 (1985); see also Caisse v. DuBois, 346 F.3d 213, 218 (1st Cir. 2003) (per curiam), but
not in their individual capacity, Dasey v. Anderson, 304 F.3d 148, 153 (1st Cir. 2002). The
Eleventh Amendment also applies to the Massachusetts Department of Correction because it is
an “arm of the state.” See Caisse, 346 F.3d at 218 (holding that negligence claims against
Department of Correction officials in their official capacity “will not survive Eleventh
Amendment scrutiny”); see also Wojcik v. Massachusetts State Lottery Comm’n, 300 F.3d 92,
99–100 (1st Cir. 2002) (holding that the Lottery Commission is an “arm of the state”).
Furthermore, the Supreme Court has specifically held that the Eleventh Amendment bars district
courts from hearing pendent state law claims against state officers in federal court without the
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state’s consent. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984).
Massachusetts has not waived its sovereign immunity from suit for state tort claims in federal
court. See Irwin v. Comm’r of the Dep’t of Youth Servs., 448 N.E.2d 721, 727 (Mass. 1983)
(holding that, upon certification from a court in the District of Massachusetts, the Massachusetts
Torts Claims Act, G.L. c. 258, § 1 et seq., is “neither an express nor a necessarily implicit
consent by the Commonwealth to suit in Federal courts.”). Finally, while requesting prospective
injunctive relief may provide an exception to the Eleventh Amendment, Ex parte Young, 209
U.S. 123 (1908), Plaintiff does not appear to be requesting an injunction in connection with any
of the violations he alleges, see Am. Compl. ¶¶ 1, 38B.
Therefore, Plaintiff’s claims against the Defendants in their official capacities are
dismissed, and the remainder of this Memorandum and Order focuses on any remaining claims
brought against Defendants in their individual capacities. See, e.g., Brait Builders Corp. v.
Massachusetts, Div. of Capital Asset Mgmt., 644 F.3d 5, 12 (1st Cir. 2011) (holding that
plaintiff’s claims, both § 1983 and state law, barred by Eleventh Amendment).
c. Plaintiff Adequately Alleges Section 1983 Claim For Alleged Eighth
Amendment Violation.
Section 1983 provides a cause of action for violations of the U.S. Constitution and federal
law. 42 U.S.C. § 1983; Graham v. Connor, 490 U.S. 386, 394 (1989). Section 1983 states, in
relevant part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress, except
that in any action brought against a judicial officer for an act or
omission taken in such officer’s judicial capacity, injunctive relief
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shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable.
To succeed under § 1983, a plaintiff needs to show that “[f]irst, the challenged conduct must be
attributable to a person acting under color of state law (including Puerto Rico law); second, the
conduct must have worked a denial of rights secured by the Constitution or by federal law.” Soto
v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997).
Plaintiff alleges that Defendants violated the Eighth Amendment by failing to protect him
when they placed him in a cell surrounded by rival gang members, which led to his assault. See
Am. Compl. ¶ 32. The Supreme Court laid out the framework for determining whether a prison
official was constitutionally liable for a prisoner’s injury at the hands of another prisoner in
Farmer v. Brennan, 511 U.S. 825, 834 (1994).3 Under Farmer, to succeed on an Eighth
Amendment claim, Plaintiff must prove: “[f]irst, the deprivation alleged must be, objectively,
sufficiently serious. For a claim based on failure to prevent harm, the plaintiff must demonstrate
he was incarcerated under conditions imposing a substantial risk of serious harm. Second, the
plaintiff must show that prison officials possessed a sufficiently culpable state of mind, namely
one of ‘deliberate indifference’ to an inmate’s health or safety.” Burrell v. Hampshire Cty., 307
F.3d 1, 8 (1st Cir. 2002) (citing Farmer, 511 U.S. at 834) (further internal citations omitted).
Furthermore, in a § 1983 case, vicarious liability is not available and “a plaintiff must plead that
each Government-official defendant, through the official’s own individual actions, has violated
the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); see also Pinto v. Nettleship, 737
F.2d 130, 132 (1st Cir. 1984). The First Circuit has held “[t]he requisite personal involvement of

The First Circuit noted that Farmer “characterize[ed] ‘the protection [a prisoner] is afforded
against other inmates’ as a ‘condition of confinement.’” Giroux, 178 F.3d at 34 n.8 (quoting
Farmer, 511 U.S. at 832 and citing Wilson v. Seiter, 501 U.S. 294, 303 (1991)).
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a prison official may be established by showing that the official knew of a prisoner’s personal
danger yet failed to provide protection.” Pinto, 737 F.2d at 132 (citing Layne v. Vinzant, 657
F.2d 468, 471 (1st Cir. 1981)). However, personal liability cannot depend solely on “allegations
of conditions beyond [a defendant’s] personal control.” Id. at 133. For purposes of their motion
to dismiss, the Defendants argue only that Plaintiff failed to satisfy the second Farmer prong: that
each Defendant possessed the requisite subjective mental state. [ECF No. 28 at 6].
“[O]nly ‘deliberate indifference’ by prison officials to an inmate’s health or safety [i]s
sufficient to establish [constitutional] liability.” Burrell, 307 F.3d at 7. “Deliberate indifference”
is more than mere negligence and akin to “criminal recklessness.” Burrell, 307 F.3d at 8. To be
deliberately indifferent, the prison official “must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Farmer, 511 U.S. at 837. While Plaintiff need not allege that Defendants knew that
the specific assault would happen, he must allege each Defendant had “knowledge of facts from
which the official [could have drawn] the inference that a substantial risk of serious harm
exist[ed].” Calderon-Ortiz v. LaBoy-Alvarado, 300 F.3d 60, 65 (1st Cir. 2002) (citing Farmer,
511 U.S. at 837).
Plaintiff adequately alleges in his Amended Complaint that Defendants Goden and
Guerin had knowledge of the relevant surrounding circumstances, such that they could have
drawn an inference that a substantial risk of harm existed. Plaintiff alleges that Defendant Guerin
was responsible for moving Plaintiff to the new cell, Am. Compl. ¶ 9, and that Defendant Goden
was in general responsible for investigating gang status and affiliation to ensure proper security
in SBCC, id. ¶ 8. Plaintiff further alleges that Defendants Guerin and Goden knew that Plaintiff
was a gang member by virtue of the fact that he was a “confirmed gang member.” Id. ¶ 18.

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Plaintiff asserts that Defendants Guerin and Goden knew that the prisoners in the neighboring
cells were “confirmed members of a rival, opposing gang.” Am. Compl. ¶ 18. He claims that
Defendant Guerin was the Shift Commander that oversaw the shift during which Plaintiff was
relocated, and that Defendant Guerin had specifically ordered for Plaintiff to be placed in the
cell. See id. ¶¶ 9, 19. Plaintiff also implied that both Defendants knew that he was being
relocated to a particular cell that shared recreation time with rival gang members. See id. ¶ 18.
Furthermore, Plaintiff alleged that the rival gang members he was placed near were known to
“attack on sight,” id., and that Defendant Guerin admitted afterwards that Plaintiff should not
have been placed in that cell, id. ¶ 23. Defendant Goden’s role in the relocation can be inferred
from the fact that Plaintiff alleges he was involved in SBCC security, particularly in ensuring
that gangs were properly secured, and that he knew Plaintiff was a confirmed gang member and
was being moved to a prison cell near confirmed, rival gang members. Moreover, Plaintiff claims
that Defendant Goden “was responsible for preventing the intermingling of opposing gang
members at SBCC.” Id. ¶ 8. Accordingly, taking all of the facts as true and construing the
pleading liberally, Plaintiff has sufficiently alleged that the Defendants were aware of the risk to
him when he was relocated.
d. Qualified Immunity Is Not Available.
Defendants argue that they are entitled to qualified immunity because “Defendants did
not violate Plaintiff’s constitutional rights, let alone his clearly established constitutional rights,”
but they do not conduct the “clearly established law” analysis. [ECF No. 28 at 11]. “The doctrine
of 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.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

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Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity balances two important
interests—the need to hold public officials accountable when they exercise power irresponsibly
and the need to shield officials from harassment, distraction, and liability when they perform
their duties reasonably.” Id. To determine whether a defendant is entitled to qualified immunity,
a defendant must satisfy two prongs: “(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.” Maldonado v. Fontanes, 568 F.3d
263, 269 (1st Cir. 2009) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)). As discussed
above, Plaintiff has adequately alleged that there was a constitutional violation. See FelicianoHernandez v. Pereira-Castillo, 663 F.3d 527, 533 (1st Cir. 2011) (“The first prong of the
immunity analysis requires that a plaintiff state a claim of violation of a constitutional right.”).
Under the qualified immunity doctrine, however, even if the facts alleged make out a
constitutional violation, the right must have been “clearly established at the time of defendant’s
alleged violation” in order for a defendant to be liable. Mosher v. Nelson, 589 F.3d 488, 492 (1st
Cir. 2009) (quoting Maldonado, 568 F.3d at 269).
To determine if a constitutional right was clearly established (the second prong), “the
court [must] decide (1) whether ‘the contours of the right [were] sufficiently clear that a
reasonable official would understand that what he is doing violates that right,’ and (2) whether in
the specific context of the case, ‘a reasonable defendant would have understood that his conduct
violated the plaintiffs’ constitutional rights.’” Mosher, 589 F.3d at 493 (quoting Maldonado, 568
F.3d at 269). “The law is considered clearly established either if courts have previously ruled that
materially similar conduct was unconstitutional, or if a general constitutional rule already
identified in the decisional law applies with obvious clarity to the specific conduct at issue.”

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Mosher, 589 F.3d at 493 (quoting Guillemard–Ginorio v. Contreras–Gomez, 585 F.3d 508, 527
(1st Cir. 2009)). “[O]fficials can still be on notice that their conduct violates established law even
in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002) (“fundamentally
similar” or “materially similar” facts are not required for finding law to be clearly established).
The Supreme Court, however, has cautioned that “clearly established law” should not be defined
at a “high level of generality,” and that the “dispositive question is ‘whether the violative nature
of the particular conduct is clearly established.’” Mullinex v. Luna, 136 S. Ct. 305, 308 (2015)
(emphasis in original) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).
Prior to the events at issue here, the law was clearly established that a prison official
violated a constitutional right when he or she was deliberately indifferent to a substantial risk of
harm to a prisoner, including violence inflicted by another prisoner. See Mosher, 589 F.3d at
493–94 (discussing constitutional violation in context of pre-trial detention); see also Farmer,
511 U.S. at 834. More specifically, it was clearly established law that prison officials were
constitutionally required to “take reasonable measures to guarantee inmates’ safety from attacks
by other inmates.” Calderón-Ortiz, 300 F.3d at 64; see also Giroux v. Somerset County, 178 F.3d
28, 32 (1st Cir. 1999); Ayala Serrano v. Gonzalez, 909 F.2d 8, 14 (1st Cir. 1990) (“[I]t is well
established that prison officials have a constitutional duty to protect prisoners from violence at
the hands of other prisoners” (citations and internal quotations omitted)). The First Circuit has
vacated a summary judgment decision where “jail officials inexplicably introduced a person
posing a known danger, another inmate who had repeatedly threatened [the plaintiff], into the
holding cell where [the plaintiff] was being kept.” Mosher, 589 F.3d at 494 (quoting Burrell, 307
F.3d at 9 and discussing Giroux, 178 F.3d at 30). Moreover, the First Circuit has held that
“[w]hen a supervisory official is placed on actual notice of a prisoner’s need for physical

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protection or medical care, administrative negligence can rise to the level of deliberate
indifference to or reckless disregard for a prisoner’s safety.” Pinto v. Nettleship, 737 F.2d 130,
132 (1st Cir. 1984) (quoting Layne, 657 F.2d at 471 (internal quotation marks omitted)). Thus,
the contours of the right were sufficiently clear that a reasonable officer would have known that
placing inmates together who posed a substantial risk of harm to each other violated the Eighth
Amendment. See Maldonado, 568 F.3d at 269; see also Mosher, 589 F.3d at 493.
“Cognizant of both the contours of the allegedly infringed right and the particular facts of
the case, ‘[t]he relevant, dispositive inquiry in determining whether a right is clearly established
is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation
he confronted.’” Maldonado, 568 F.3d at 269 (citing Brosseau v. Haugen, 543 U.S. 194, 199
(2004) (per curiam)). The Plaintiff has alleged here that the Defendants have done something
nearly identical to the situation in Giroux, 178 F.3d at 32: they put Plaintiff and prisoners who
were known dangers to him in an area where they would inevitably come into contact. As
alleged, Defendants knew that Plaintiff was being placed in a dangerous situation when he was
relocated. Thus, on “the particular facts of the case” here, it should have been “clear to a
reasonable officer that his conduct was unlawful” in this particular situation. See Maldonado,
568 F.3d at 269. Therefore, Defendants are not entitled to qualified immunity. See Facey v.
Dickhaut, 892 F. Supp. 2d 347, 359 (D. Mass. 2012) (holding that state prison officials who
placed prisoner, known to be a gang member, in housing unit with rival gang members, who
attacked him, were not entitled to qualified immunity).
e. Plaintiff did not Adequately Allege the Section 1983 Claim for Fourteenth
Amendment Violation.
Plaintiff also alleges that Defendants violated the Due Process Clause of the Fourteenth
Amendment in connection with the December 24, 2012 attack. See Am. Compl. ¶ 34. It is
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unclear what the basis of the claim is, but it seems to involve a failure to protect. A failure to
protect claim brought by an inmate, however, is properly considered under the Eighth, rather
than the Fourteenth, Amendment. “An inmate may sue a correctional facility under the Eighth
Amendment for failure to afford adequate protection to inmates from attack by other inmates.”
Calderon-Ortiz, 300 F.3d at 63–64. The Supreme Court has explained that “if a constitutional
claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment,
the claim must be analyzed under the standard appropriate to that specific provision, not under
the rubric of substantive due process.” United States v. Lanier, 520 U.S. 259, 272 n.7 (1997)
(explaining the holding in Graham v. Connor, 490 U.S. 386, 394 (1989)). Moreover, in “the
prison security context,” “the Due Process Clause affords respondent no greater protection than
does the Cruel and Unusual Punishments Clause.” Whitley v. Albers, 475 U.S. 312, 327 (1986).
Accordingly, Plaintiff has failed to sufficiently plead a separate Fourteenth Amendment Due
Process violation against Defendants Goden and Guerin.
f. Plaintiff did not Adequately Allege State law Negligence Claims Against the
Defendants.
Plaintiff next alleges that Defendants were negligent under state law in failing to protect
him. See Am. Compl. ¶¶ 1, 33. To the extent Plaintiff alleges negligence on the part of
Defendants in their individual capacities, the claim is insufficiently pled. The Massachusetts
Torts Claims Act, G.L. c. 258, immunizes public officials from liability for any “negligent or
wrongful act or omission” committed “within the scope of his office or employment.” Mass.
Gen. L. ch. 258, § 2; see also Caisse, 346 F.3d at 218 (“[N]egligence claims against the
Department of Corrections defendants in their individual capacities are barred because the Tort
Claims Act shields public employees from personal liability for negligent conduct.”). Plaintiff
fails to allege anywhere that the acts or omissions complained of were committed outside the
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scope of Defendants’ employment or to plead any other facts that would make such a tort claim
viable as a matter of law.
IV.

CONCLUSION
Accordingly, Defendants’ Motion to Dismiss [ECF No. 27] is GRANTED IN PART and

DENIED IN PART with respect to Defendants Goden and Guerin. Specifically,


The Motion to Dismiss is GRANTED with respect to all claims against
Defendants in their official capacities.



The Motion to Dismiss is GRANTED with respect to the Fourteenth Amendment
claim against Defendants.



The Motion to Dismiss is DENIED with respect to the Eighth Amendment claim
against Defendants.



To the extent that the motion was brought on behalf of parties who have not yet
been served, the motion is DENIED without prejudice.

Defendants’ second Motion to Dismiss [ECF No. 51] is DENIED as moot. All claims alleged in
the Amended Complaint against Defendants, except the Eighth Amendment claim against
Defendants in their official capacities, are hereby DISMISSED.
So Ordered.
Dated: December 8, 2016
/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT COURT JUDGE

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