Diaz v. Department of Correction et al

Filing 68

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER, denying 48 MOTION for Injunctive Relief filed by Luis Diaz, denying as moot 27 MOTION for Hearing filed by Luis Diaz, 57 MOTION to Appoint Counsel filed by Luis Diaz, granting 52 MOTION for Exemption from Local Rule 7.1(A)(2) filed by Burns, Jeremy Drew, William Harrold, D.D.U Director, Kasprzak, Sawash, denying 45 MOTION for Injunctive Relief filed by Luis Diaz, granting 51 M OTION for Extension of Time to May 12, 2017 to Respond to the Complaint filed by Burns, Jeremy Drew, William Harrold, D.D.U Director, Kasprzak, Sawash, denying 53 MOTION for Hearing re 45 MOTION for Injunctive Relief filed by Luis Diaz, and taking under advisement 64 Motion for Injunctive Relief to preserve video footage. (Lima, Christine)

United States District Court
District of Massachusetts

LUIS DIAZ,
Plaintiff,
v.
JEREMY DREW, ET AL.,
Defendants.

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Civil Action No.
16-11579-NMG

MEMORANDUM & ORDER
GORTON, J.
This case arises from the alleged mistreatment of pro se
plaintiff Luis Diaz (“Diaz” or “plaintiff”), who is currently
incarcerated at the Massachusetts Correctional Institution at
Cedar Junction in Walpole, Massachusetts (“MCI-Cedar Junction”).
Specifically, Diaz claims that defendants, who are various
employees of the Massachusetts Department of Correction (“the
DOC”), inter alia, beat him, withheld food and toiletries,
retaliated against him, wrongly placed him in the Departmental
Disciplinary Unit, withheld supplies needed for his legal case
and prevented him from getting mental health treatment, all in
violation of 42 U.S.C. §§ 1981, 1983 and 1985.
The following motions are pending before the Court:
1) Plaintiff’s motion for hearing (Docket No. 27),
2) Plaintiff’s motion to appoint counsel (Docket No. 57),

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3) Plaintiff’s emergency motion for injunctive relief
(Docket No. 45),
4) Plaintiff’s motion for injunctive relief to stop
starvation (Docket No. 48),
5) Plaintiff’s motion for hearing on his motion for
injunctive relief (Docket No. 53),
6) Plaintiff’s motion for injunctive relief to preserve
video footage (Docket No. 64),
7) Defendants’ motion for an extension of time to respond to
the complaint (Docket No. 51) and
8) Defendants’ motion for exemption from Local Rule
7.1(A)(2) (Docket No. 52).
For the reasons that follow, the Court will take plaintiff’s
motion for injunctive relief to preserve video footage under
advisement but will deny his other motions and allow defendants’
motions.
I. Background
Diaz is incarcerated and awaiting trial on state charges at
MCI-Cedar Junction.

The defendants who have been served are

employees of the DOC: the Director of the Departmental
Disciplinary Unit (the “DDU”) Elena Clodius, Captain William
Harold a/k/a Harrold Wilkes, Sergeant Michael Kasprzak and
Correction Officers Jeremy Drew, Burns a/k/a William Byrnes and

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Matthew Sawash (collectively, “defendants”).1
The parties offer different versions of the facts.
Plaintiff alleges that corrections officers beat him in
September, 2015.

He asserts that when he decided to file a

lawsuit about the beating, prison officials began to retaliate
against him by issuing fake disciplinary “tickets”.

He also

claims that he has been denied showers and toiletries and that
officers have tampered with his legal documents.

He alleges

officer misconduct, such as officers telling him to kill
himself, making racist and homophobic comments to him, sexually
harassing him and desecrating his Muslim hairstyle.

He asserts

that 1) defendants are starving him, 2) he has been denied due
process and 3) he is being held illegally.
According to defendants, plaintiff’s version of the facts
is delusional.

They rely on the affidavit of Michael Rodrigues,

the Superintendent of MCI-Cedar Junction, which states that
plaintiff receives three meals daily and that Diaz’s allegations
of officer misconduct have been investigated and determined to
be unfounded.

Defendants also rely on the affidavit of Mitzi

1

Plaintiff also names as defendants Steven Adam, Julie Flanagan,
any officials involved in disciplinary proceedings and John Doe.
Those individuals have not been served and thus this Court
construes the pending motions as applying only to the served
defendants.

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Peterson, the DOC’s Director of Behavioral Health, which states
that Diaz has received adequate psychological treatment.
Plaintiff filed a complaint in August, 2016, alleging that
defendants have engaged in actions prohibited by 42 U.S.C.
§§ 1981, 1983 and 1985 by violating the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution.
Plaintiff further claims that defendants have violated Article
12 of the Massachusetts Declaration of Rights.
That same month, Plaintiff moved to proceed in forma
pauperis, for the appointment of counsel and for injunctive
relief.

This Court allowed the motion to proceed in forma

pauperis and denied without prejudice the motion to appoint
counsel.

Plaintiff’s motion for injunctive relief was also

denied without prejudice because he had not served defendants.
In January, 2017, plaintiff moved for a hearing.

In March,

2017, defendants Clodius, Wilkes, Kasprzak, Drew, Byrnes and
Sawash were served.

The following month, plaintiff moved for

emergency injunctive relief, for injunctive relief to stop
starvation and for a hearing on his motions for injunctive
relief.

He also filed a third motion to appoint counsel.

Defendants moved for an extension of time to respond to the
complaint and for exemption from Local Rule 7.1.

At the end of

April, plaintiff moved for injunctive relief to preserve video

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footage.

This memorandum and order addresses all of the pending

motions.
II.

Plaintiff’s Motion For A Hearing filed in January, 2017

In his January, 2017 motion for a hearing, plaintiff seeks
to revisit a decision made by United States District Judge
Richard Stearns (“Judge Stearns”) in a separate action, Luis
Diaz v. Milagros Perez, et al., 16-cv-11860-RGS (D. Mass. filed
Sept. 12, 2016).

Because this session has no jurisdiction over

that early action, the subject motion will be denied as moot.
III. Plaintiff’s Motion to Appoint Counsel
Because there is no constitutional right to counsel in a
civil case and the exceptional circumstances that warrant the
appointment of counsel are not present here, the motion to
appoint counsel will be denied. King v. Greenblatt, 149 F.3d 9,
14 (1st Cir. 1998).
IV.

A.

Plaintiff’s Motions for Preliminary Injunctions and for a
Hearing on Injunctive Relief
Legal Standard

In order to obtain a preliminary injunction, the moving
party must establish 1) a reasonable likelihood of success on
the merits, 2) the potential for irreparable harm if the
injunction is withheld, 3) a favorable balance of hardships and
4) the effect on the public interest. Jean v. Mass. State
Police, 492 F.3d 24, 26-27 (1st Cir. 2007).

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Out of those

factors, the likelihood of success on the merits “normally
weighs heaviest in the decisional scales.” Coquico, Inc. v.
Rodriguez-Miranda, 562 F.3d 62, 66 (1st Cir. 2009).
The Court may accept as true “well-pleaded allegations [in
the complaint] and uncontroverted affidavits.” Rohm & Haas Elec.
Materials, LLC v. Elec. Circuits, 759 F. Supp. 2d 110, 114, n.2
(D. Mass. 2010) (quoting Elrod v. Burns, 427 U.S. 347, 350, n.1
(1976)).

The Court may also rely on otherwise inadmissible

evidence, including hearsay, in deciding a motion for
preliminary injunction. See Asseo v. Pan American Grain Co.,
Inc., 805 F.2d 23, 26 (1st Cir. 1986).

Ultimately, the issuance

of preliminary injunctive relief is “an extraordinary and
drastic remedy that is never awarded as of right.” Peoples Fed.
Sav. Bank v. People’s United Bank, 672 F.3d 1, 8-9 (1st Cir.
2012) (quoting Voice of the Arab World, Inc. v. MDTV Med. News
Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011)).
B.

Application

Two of plaintiff’s pending motions for injunctive relief
request that the Court enjoin defendants from 1) starving him,
2) taking his toiletries, 3) retaliating against him, 4) denying
him due process, 5) preventing his access to the Court and
6) various misconduct, such as “psychological torture”, insults
and sexual harassment.

Defendants respond that preliminary

injunctive relief is unwarranted because plaintiff’s claims are
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flatly contradicted by the affidavits of Superintendent
Rodrigues and Ms. Peterson.

Defendants further submit that

plaintiff’s many complaints of officer misconduct have been
investigated and found not credible.

Based on the four

injunctive relief factors, this Court agrees with defendants.
1. Likelihood of Success
Addressing plaintiff’s claims seriatim, at this point of
the proceedings, he has failed to show that he is likely to
succeed on the merits of any of his claims.
First, his claim that he is being starved is directly
contradicted by the affidavit of Superintendent Rodrigues.
Second, plaintiff has failed to show that he is likely to
succeed on the merits of his claim that he is being denied
showers and toiletries, such as razors, underwear and a
toothbrush.

To succeed on a claim that prison officials have

violated the Eighth Amendment through sub-par prison conditions,
a plaintiff must demonstrate 1) that the conditions are
objectively inferior and “pos[e] a substantial risk of serious
harm” and 2) that the corrections officers involved are
deliberately indifferent. Giroux v. Somerset Cty., 178 F.3d 28,
32 (1st Cir. 1999).

Because the conditions alleged do not pose

a substantial possibility of serious harm, plaintiff has not
shown that he is likely to succeed on the merits of his prison
conditions claim. See id.
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Third, to establish a First Amendment retaliation claim
under 42 U.S.C. § 1983, a plaintiff must show that 1) he made a
protected statement, 2) he experienced an adverse action and 3)
there was a causal connection between the statement and the
adverse action. Hannon v. Beard, 645 F.3d 45, 48 (1st Cir.
2011).

Retaliation claims from incarcerated individuals can be

easily fabricated[ ] and . . . pose a substantial risk of
unwarranted judicial intrusion into matters of general
prison administration.
Id. (quoting Bennett v. Goord, 343 F.3d 133, 137 (2d Cir.
2003)).

Accordingly, such claims must be supported by facts,

“not [] the gossamer strands of speculation and surmise.” Id.
Because the only support that plaintiff provides for his
retaliation claim is his speculative conclusions, which are
directly contradicted by the affidavit of Superintendent
Rodrigues and the records of investigations of his complaints,
he has not shown that he is likely to succeed on that claim.
Fourth, plaintiff has not demonstrated that he is likely to
succeed on his claim that he was denied due process when he was
placed in the DDU.

Defendants submit that plaintiff’s DDU

placement occurred only after a disciplinary hearing that
complied with due process requirements. See Wolff v. McDonnell,
418 U.S. 539, 563-67 (1974).

Moreover, plaintiff was able to

appeal the DDU placement but apparently chose not to do so. Hill

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v. Superintendent, Mass. Corr. Inst., Walpole, 466 N.E.2d 818,
821 (Mass. 1984), rev'd on other grounds, 472 U.S. 445, (1985).
Fifth, plaintiff is unlikely to succeed on his claim that
officers have been confiscating his pens and legal papers
because his numerous filings demonstrate that he has access to
the Court and is able to pursue his legal claims. See Lewis v.
Casey, 518 U.S. 343, 351 (1996).
Finally, plaintiff’s claims of staff misconduct based on
his religion, sexual harassment and other mistreatment are
serious if true.

Yet defendants have submitted records of

investigations of plaintiff’s complaints that indicate that the
allegations of misconduct are simply inaccurate.

The

conflicting accounts render this Court unable to conclude that
plaintiff is likely to succeed on his misconduct claim.
2. Other Factors
While the likelihood of the success on the merits provides
the “touchstone of the preliminary injunction inquiry,” the
other three factors also weigh in favor of defendants. Philip
Morris, Inc. v. Harshbarger, 159 F.3d 670, 674 (1st Cir. 1998).
Plaintiff has not demonstrated that he will be irreparably
harmed in the absence of an injunction because the conflicting
versions of the facts make it unclear whether plaintiff is being
mistreated at all.

Moreover, the balance of hardships and the

public interest both weigh against issuing a preliminary
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injunction because, as defendants point out, the policies that
prison officials put into place to ensure that prisons are
orderly are entitled to deference and the public interest is
served by enabling prison administrators to manage prisons
effectively.

Accordingly, plaintiff’s emergency motion for

injunctive relief, motion for injunctive relief to stop
starvation and motion for a hearing will be denied.
3. Plaintiff’s Motion for Injunctive Relief to Preserve
Video Footage
Plaintiff also moves for the Court to order defendants to
preserve video evidence from April, 22, 2017.

According to

plaintiff, on that day, an officer repeatedly hit his cell door
to prevent him from sleeping.

More information is needed before

the Court can decide the motion to preserve video footage.
Therefore, the Court will take that motion under advisement and
defer ruling on it until defendants have answered the following
questions:

1) Why has plaintiff been held for such a lengthy period
before trial on the pending state charges?
2) What is plaintiff’s current weight (as opposed to his
weight in April, 2016)?
3) Can the Court be assured that the relevant videos from
April, 2017 will be preserved and available if and when
they become pertinent to this case?

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4. Defendants’ Motions
Finally, defendants’ motions for an extension of time to
respond to the complaint and for exemption from Local Rule
7.1(A)(2) will be allowed.

ORDER
In accordance with the foregoing,
1) Plaintiff’s motion for hearing (Docket No. 27) is DENIED
as moot,
2) Plaintiff’s motions to appoint counsel (Docket No. 57),
for injunctive relief (Docket No. 45 and 48) and for a
hearing (Docket No. 53) are DENIED,
3) The Court will take under advisement plaintiff’s motion
for injunctive relief to preserve video footage (Docket
No. 64) and defendants are directed to answer the
questions posed in the memorandum within 30 days of this
order, and
4) Defendants’ motions for an extension of time to respond
to the complaint (Docket No. 51) and exemption from local
rule 7.1(a)(2) (Docket No. 52) are ALLOWED.

So ordered.

/s/ Nathaniel M. Gorton______
Nathaniel M. Gorton
United States District Judge
Dated May 26, 2017

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