Diaz v. Department of Correction et al

Filing 93

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDER. In accordance with the foregoing, defendants motion to dismiss for failure to comply with a court order (Docket No. 88 ) is ALLOWED and plaintiffs motions (Docket Nos. 64 , 72 , 75 , 84 , 85 and 90 ) are DENIED AS MOOT. Plaintiff may file an amended complaint in compliance with the memorandum and order on or before April 30, 2018. So ordered.(Franklin, Yvonne)

United States District Court
District of Massachusetts
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LUIS DIAZ,
Plaintiff,
v.
JEREMY DREW, ET AL.,
Defendants.

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 Souza Baranowski Correctional Center in
Shirley, Massachusetts (“SBCC”).

Diaz was transferred from the

Department Disciplinary Unit (“DDU”) at the Massachusetts
Correctional Institution at Cedar Junction in Walpole,
Massachusetts (“MCI-Cedar Junction”) after completing a 27-month
disciplinary sanction at that facility.
In his complaint, Diaz alleges 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

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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 injunctive relief to preserve
video footage (Docket No. 64),
2) Plaintiff’s motion for reconsideration of the Court’s
May, 2017 memorandum and order (Docket No. 72),
3) Plaintiff’s motion for Fed. R. Civ. P. 60(b) relief
(Docket No. 75),
4) Plaintiff’s motion to check the facts and evidence of
defendant’s associates in the SBCC (Docket No. 84),
5) Plaintiff’s motion to focus the Court’s attention to the
plaintiff’s specific motions concerning the record, pens
and paper (Docket No. 85),
6) Defendants’ motion to dismiss for failure to comply with
court order (Docket No. 88) and
7) Plaintiff’s motion for an extension of time to file a
response to defendants’ motion to dismiss (Docket No.
90).
For the reasons that follow, the Court will deny the plaintiff’s
six pending motions and allow defendants’ motion to dismiss.
I. Background
Diaz is incarcerated and awaiting trial on state charges at
SBCC.

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

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Drew, Burns a/k/a William Byrnes and 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, in which Mr. Rodrigues
states that plaintiff receives three meals daily and that Diaz’s
allegations of officer misconduct have been investigated and
found to be unsubstantiated.

Defendants also rely on the

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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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affidavit of Mitzi Peterson, the DOC’s Director of Behavioral
Health, in which she 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.
counsel.

He also filed a third motion for the appointment of
Defendants moved for an extension of time to respond

to the complaint and for exemption from Local Rule 7.1.

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At the

end of April, plaintiff moved for injunctive relief to preserve
video footage.
In May, 2017, this Court entered a memorandum and order
taking under advisement plaintiff’s motion for injunctive relief
to preserve video footage but denying his other motions and
allowing defendants’ motions.

With respect to the motion that

the Court took under advisement, the Court requested that
defendants answer three 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?
Defendants filed their response to the Court’s order in
June, 2017, which they supplemented later that month.

In those

responses, defendants indicate that defendant has been awaiting
trial in DOC custody since December, 2013 and that DOC is tasked
with implementing orders and sentences imposed by the courts but
that it has no role in the underlying criminal proceedings or
determining plaintiff’s release date.

Defendants provided

copies of the dockets in the underlying state cases.

A review

of those dockets indicates that trial is scheduled in Suffolk
Superior Court for April 17, 2018 in Commonwealth v. Diaz,

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Docket No. 1384CR10997 and in Middlesex Superior Court for May
30, 2018 in Commonwealth v. Diaz, Docket No. 1681CR00047.
In its first response to the Court’s inquiry regarding
plaintiffs’ weight, defendants stated that plaintiff refused to
be weighed on two separate occasions.

Defendants supplemented

that response two weeks later, stating that as part of Diaz’s
transfer from MCI-Cedar Junction to SBCC, plaintiff was weighed
and was recorded as weighing 184 pounds.

With respect to the

Court’s final inquiry, defendants state that the April 22, 2017
video has been preserved and that a copy of the video is
available upon request.
In May, 2017, defendants moved for a more definite
statement pursuant to Fed. R. Civ. P. 12(e) (Docket No. 67).
That motion was referred to Magistrate Judge Kelley, who entered
a memorandum and order allowing the motion in August, 2017 and
requiring an amended complaint to be filed within 60 days.

In

that order, the Court determined that the “litany of filings
that make up Diaz’s complaint” fall short of the threshold
requirements of the Federal Rules of Civil Procedure.

Stringing

together the jumble of filings made by Diaz, the Court
determined that he had failed to articulate any coherent claim
“beyond a general displeasure with the way in which he has been,
and continues to be, treated while in custody”.

The Court also

found that Diaz’s filings lacked description of each cause of
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action sufficient to permit defendants to identify the specific
wrongdoing alleged against each actor.

The Court ordered Diaz

to file an amended complaint identifying all defendants, facts,
alleged wrongdoing, grounds for relief and specific relief
sought in a form that comports with the Federal Rules of Civil
Procedure.
When Diaz failed to file an amended pleading within the 60day timeframe allotted by the Court, defendants moved to dismiss
the case for failure to comply with a Court order.

Plaintiff

filed a motion for extension of time to file a response to the
motion to dismiss in October, 2017, but has yet to file any such
response or an amended complaint.
II.

Defendants’ Motion to Dismiss (Docket No. 88)

Defendants move to dismiss this action, contending that
plaintiff has failed to comply with the Court order to file an
amended complaint within 60 days of August 4, 2017.

Since then,

plaintiff has filed three motions: (1) a motion to check facts,
(2) a motion to focus the Court’s attention and (3) a motion for
an extension of time to respond to the motion to dismiss but has
not yet filed an amended complaint.

In his motion for extension

of time to respond to the motion to dismiss, Diaz challenges the
authority of the Court, states that the prison refuses to mail
his legal work, claims that he cannot give “names and dates”
required of an amended complaint because his documents and notes
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were allegedly stolen by the DOC and renews his request for
appointed counsel.
Under Fed. R. Civ. P. 41,
[i]f a plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss the
action or any claim against it.
Fed. R. Civ. P. 41(b).

While pro se complaints and filings are

construed liberally, Foley v. Wells Fargo Bank, N.A., 772 F.3d
63, 75-76 (1st Cir. 2014), even pro se litigants are bound by
the Federal Rules of Civil Procedure. Janosky v. Mass. P’ship
for Corr. Healthcare, No. 15-cv-12929, 2017 WL 1164490, at *1
(D. Mass. Mar. 28, 2017) (citing F.D.I.C. v. Anchor Props., 13
F.3d 27, 31 (1st Cir. 1994)) (dismissing plaintiff’s complaint
for failing to set forth any clear causes of action).

Although

dismissal with prejudice is
strong medicine [that] should be employed only when a
plaintiff’s misconduct is extreme, disobedience of court
orders, in and of itself, constitutes extreme misconduct
(and, thus, warrants dismissal).
Tower Ventures, Inc. v. City of Westfield, 296 F.3d 43, 46 (1st
Cir. 2002) (affirming the district court’s dismissal of the case
for failure to comply with the court’s scheduling orders).
In the August, 2017 memorandum and order, Magistrate Judge
Kelley determined that the documents Diaz had filed (and
continues to file) fail to articulate any coherent claim and,
taken even as a whole, are verbose, disjointed and fail to

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comport with the requirements of Fed. R. Civ. P. 8.

The

documents filed by plaintiff in the intervening months evince a
similar level of incoherence and disregard for the Federal
Rules.
Among the various accusations parried at defendants and
this Court, Diaz suggests that he has been denied access to pen
and paper, claims that his documents have been destroyed by
prison officials and accuses the Court of ignoring evidence of
defendants’ perjury, maliciously denying Diaz’s motions in its
May, 2017 memorandum and order and failing to address systematic
corruption in the court system.

Furthermore, in his motion for

an extension of time to respond to defendant’s motion to
dismiss, plaintiff states that he “obviously cannot comply” with
the Court’s order because defendants’ have allegedly stolen his
documents.

Plaintiff submits that he cannot recall the dates of

the “innumerable incidents” because “a plaintiff is not a
computer” and therefore he cannot comply with the court order.
Nowhere in plaintiff’s numerous filings has he articulated
a coherent claim or cause of action.

In contravention of the

Court order, plaintiff’s filings fail to identify which actor
committed any specific wrongdoing.

Accordingly, plaintiff’s

case is subject to dismissal under Fed. R. Civ. P. 41(b).
Although such dismissals are properly done with prejudice,
Tower, 296 F.3d at 46, the Court is cognizant of plaintiff’s pro
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se status and will dismiss the case without prejudice, allowing
Diaz one final chance to comply with the Court’s order to file a
compliant amended pleading.
Plaintiff is reminded that Fed. R. Civ. P. 8 mandates that
a complaint must contain “a short and plain statement of the
claim showing that the pleader is entitled to relief”.
Civ. P. 8(a)(2).

Fed. R.

To meet the requirements of that rule, a

complaint must contain “enough detail to provide a defendant
with fair notice of what the claim is and the grounds upon which
it rests”. Silverstrand Inv. v. AMAG Pharm., Inc., 707 F.3d 95,
101 (1st Cir. 2013) (internal citation omitted).

ORDER
In accordance with the foregoing, defendants’ motion to
dismiss for failure to comply with a court order (Docket No. 88)
is ALLOWED and plaintiffs’ motions (Docket Nos. 64, 72, 75, 84,
85 and 90) are DENIED AS MOOT.

Plaintiff may file an amended

complaint in compliance with the memorandum and order on or
before April 30, 2018.

So ordered.

/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated March 30, 2018
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