Jones v. Commonwealth of Massachusetts, et al

Filing 9

District Judge Leo T. Sorokin: ORDER entered. MEMORANDUM AND ORDER Based on the foregoing, it is hereby Ordered that: 1. Plaintiff's renewed Motion for Leave to Proceed in forma pauperis (ECF No. 8) is DENIED. Within 28 days of the date of thi s Memorandum and Order, plaintiff shall pay the $400.00 filing fee or this action shall be dismissed without prejudice. Plaintiff may seek reconsideration of the denial of his in forma pauperis motion within the 28-day period, if he cannot pay the filing fee from his prison savingsaccount. 2. Plaintiffs motion for appointment of counsel (ECF No. 4) is DENIED without prejudice to the plaintiff filing a renewed motion if summonses are eventually issued in this action. 3. Within 28 days of the date of this Memorandum and Order, Plaintiff shall file an Amended Complaint curing the substantive deficiencies and pleading deficiencies in accordance with Rule 8 of the Federal Rules of Civil Procedure. 4. Failure to comply with this Order will likely result in the dismissal of this action.(Hohler, Daniel)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
EDWARD JONES,
Plaintiff,
v.

CIVIL ACTION NO. 16-11666-LTS

COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF PUBLIC SAFETY,
DANIEL BENNETT, DEPARTMENT OF
CORRECTION, CAROL HIGGINS-O’BRIEN,
THOMAS TURCO, CHRISTOPHER FALLON,
LISA MITCHELL, DOUGLAS BOWER, MICHAEL
DEVINE, JOHN F. CAMELO, SCOTT J. STEEVER,
HANK L. LAVALLEY, MARTA LEON,
MASSACHUSETTS PARTNERSHIP FOR CORRECTIONAL
HEALTH, NEIL NORCLIFFE, and TODD DERBYSHIRE.
Defendants.

MEMORANDUM AND ORDER
SOROKIN, D.J.
For the reasons stated below, the Court will deny the renewed motion to proceed in forma
pauperis, deny without prejudice the motion for appointment of counsel, and order the plaintiff to
file an amended complaint within 28 days of the date of the entry of this Memorandum and Order.
I.

Introduction
On August 19, 2016, pro se prisoner plaintiff Edward Jones filed a voluminous complaint

against three groups of defendants: (1) the Commonwealth of Massachusetts, Department of
Corrections, the Executive Office of Public Safety (collectively, the “Commonwealth Entity
Defendants”); (2) Daniel Bennett, Carol Higgins-O’Brien, Thomas Turco, Christopher Fallon,
Lisa Mitchell, Douglas Bower, Michael Devine, John F. Camelo, Scott J. Steever, Hank Lavalley,

Marta Leon (collectively, the “Commonwealth Personnel Defendants”); and, (3) the
Massachusetts Partnership for Correctional Health, Neil Norcliffe and Todd Derbyshire
(collectively, the “Medical Defendants”). The 95-page complaint consists of 273 paragraphs and
nine counts. Attached to the complaint are 142 pages of exhibits. Plaintiff alleges numerous
causes of action both state (pendant) and federal claims, relating to failure to protect, retaliation,
loss of good time credit, inadequate medical care, due process violations relating to disciplinary
hearing, infliction of emotional distress, conspiracy, violations of statutes relating to the protection
of the mentally ill and the Americans with Disabilities Act. Along with his complaint, plaintiff
filed a motion to proceed in forma pauperis. (ECF No. 2), a motion for an order for access to
plaintiff’s institutional savings account funds (ECF No. 3), and a motion for appointment of
counsel (ECF No. 4).
On August 24, 2016, this Court issued an Order (ECF No. 7) denying without prejudice
plaintiff’s motion for leave to proceed in forma pauperis (ECF No. 2) and denying the motion for
an order for access to plaintiff’s institutional savings account funds (ECF No. 3). Plaintiff was
directed to either pay the filing and administrative fee within 28 days, or file a renewed motion for
leave to proceed in forma pauperis, specifying what steps he has taken to obtain funds from
whatever financial sources he may have. On September 6, 2016, plaintiff filed a renewed Motion
for Leave to Proceed in forma pauperis (ECF No. 8).
II.

Discussion
A.

Plaintiff’s Renewed Motion for Leave to File In Forma Pauperis

Upon review of plaintiff’s renewed financial affidavit and his prison account statement,
this Court finds that plaintiff has insufficient funds in his prison personal account, but he reports
2

$550.97 in his prison savings account. It is still unclear whether plaintiff can obtain access to
these funds for payment of the filing fee.
Accordingly, plaintiff’s renewed Motion for Leave to Proceed in forma pauperis (ECF No.
8) is DENIED. Within 28 days of the date of this Memorandum and Order, plaintiff shall pay the
$400.00 filing fee or this action shall be dismissed without prejudice.

Plaintiff may seek

reconsideration of the denial of his in forma pauperis motion within the 28-day period, but only if
he cannot pay the filing fee from his savings account.
B.

Plaintiff’s Motion for Appointment of Counsel

Plaintiff’s motion for appointment of counsel (ECF No. 4) is DENIED without prejudice.
The Court may request an attorney to represent plaintiff if it finds that: (1) plaintiff is indigent and
(2) exceptional circumstances exist such that the denial of counsel will result in a fundamental
unfairness impinging on his due process rights. DesRosiers v. Moran, 949 F. 2d 15, 23 (1st Cir.
1991); 28 U.S.C. 1915(e)(1). Until the filing fee issue is resolved, and the complaint is amended
and screened, it is premature for the Court to decide whether to request counsel appear on
plaintiff’s behalf in this matter. The Court may consider appointment of counsel later in this
litigation once the disputed issues have become clear.

Accordingly, plaintiff’s motion for

appointment of counsel (ECF No. 4) is DENIED without prejudice to the plaintiff filing a renewed
motion if summonses are eventually issued in this action.
C.

Preliminary Screening of the Complaint

Because plaintiff is a prisoner, his complaint is subject to screening pursuant to 28 U.S.C.
§ 1915A. Section 1915A authorizes 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
3

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. 28 U.S.C. § 1915A. In connection with this
preliminary screening, plaintiff’s pro se Complaint is construed generously.

Hughes v. Rowe,

449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972); Instituto de Educacion
Universal Corp. v. U.S. Dept. of Education, 209 F.3d 18, 23 (1st Cir. 2000). Even under a broad
reading, however, the complaint is deficient for the reasons set forth below, among others, and the
plaintiff will be afforded an opportunity to amend his complaint.
1.

The Complaint Fails to Comply with Basic Pleading Requirements of
the Federal Rules of Civil Procedure and is Substantively Deficient.

In its present form, plaintiff’s Complaint materially 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 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).
4

Although “the requirements of Rule 8(a)(2) are minimal . . .[,] ‘minimal requirements are not
tantamount to nonexistent requirements.’” Id. (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513,
514 (1st Cir. 1988)). Moreover, 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).
Here, plaintiff combines several different causes of action against multiple defendants. He
mixes both federal claims and state claims in single counts. Thus, it is unclear what legal claims
he asserts against which defendants, making it difficult for the defendants to file a meaningful
response. While plaintiff has attempted to cull out his claims and causes of action, he has not
done so sufficiently. In fact, much of the Complaint consists essentially of a chronology of
events, along with extraneous observations. Although this Court recognizes that plaintiff might
state some plausible claims, the case cannot proceed as pleaded.

By asserting his claims

collectively against the defendants, and by failing to provide underlying factual support for liability
for each cause of action asserted, plaintiff fails to comply with Rule 8. 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
5

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 . . . . ”).
The Court reviews the individual counts as follows:
a. Counts I, II, III, IV and V - Violation of 42 U.S.C. §§ 1981, 1983 and
1985.1
Plaintiff’s first five counts are claims relating to the alleged violation of plaintiff’s civil
rights. In each of these counts he brings claims against some or all of the Commonwealth Entity
Defendants and Commonwealth Personnel Defendants, which necessarily raises the issue of
sovereign immunity under the Eleventh Amendment to the United States Constitution. It is wellsettled that 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)). In other words, “[t]he Eleventh Amendment bars actions in federal
courts claiming damages against a state and its agencies unless the state has consented to be sued
in federal court.” Boulais v. Commonwealth of Mass., 2002 WL 225936 at *1 (D. Mass. 2002)
(citations omitted); see Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996); Kentucky,
473 U.S. at 167 n.14 (unless a State has “waived its Eleventh Amendment immunity or Congress
has overridden it . . . a State cannot be sued directly in its own name regardless of the relief
sought.”). In this case, plaintiff has not set forth any basis to conclude that a waiver of sovereign

1

Plaintiff’s counts also recite state statutes and regulations. To the extent that the plaintiff seeks
separate state causes of action he will need to bring separate counts and, in light of the need for
amendment of the complaint, these statutory and regulatory references are not reviewed here.
6

immunity applies to the Commonwealth Entity Defendants. This is true with respect to claims
for civil rights violations brought pursuant to 42 U.S.C. § 1983. See Quern v. Jordan, 440 U.S.
332, 344 (1979) (Congress did not override state’s Eleventh Amendment immunity in enacting §
1983).2
As an additional matter, 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. & 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) accord Hafer v. Melo, 502 U.S. 21, 25 (1991) (same).
Here, plaintiff has not distinguished clearly his claims against the Commonwealth Personnel
Defendants based on their personal or official capacities. Nevertheless, to the extent that plaintiff
seeks monetary relief from any of the Commonwealth Personnel Defendants for actions taken in
his or her “official” capacity, the claims are not cognizable. 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). 3

2

Moreover, the Commonwealth or its agencies or instrumentalities are not “persons” within the
meaning of 42 U.S.C. § 1983.
3
While not entirely clear, it appears that plaintiff also seeks, in part, to hold several of the
individual defendants liable for civil rights violations under 42 U.S.C. § 1983 based on their
supervisory and official positions and for actions or inactions of employees. These types of
claims fail because the legal theory of respondeat superior is not applicable to civil rights claims
under § 1983. “It is well-established that ‘only those individuals who participated in the conduct
7

Accordingly, counts I, II, III, IV and V are subject to dismissal against the Commonwealth
Entity Defendants. Furthermore, all claims against any Commonwealth Personnel Defendants for
monetary damages for actions taken in their official capacities are likewise subject to dismissal.
Defendant Massachusetts Partnership for Correctional Health is not a “person” subject to suit
pursuant to 42 U.S.C. § 1983. To the extent any claims could survive against other defendants,
the plaintiff will need to amend his complaint to comply with Rule 8.
b. Count VI - Negligence
Claims made in this count against any of Commonwealth Entity Defendants, and
Commonwealth Personnel Defendants in their official capacities for monetary damages are barred
by sovereign immunity and are subject to dismissal, for the reasons set forth in Part II(C)(1)(a),
supra. Moreover, claims the Commonwealth Personnel Defendants in their individual capacities
are barred. Pursuant to the Massachusetts Torts Claims Act, Mass. Gen. Laws ch. 258, § 2, “no
... 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[.]” Jaundoo v. Clarke, 690 F. Supp. 2d 20, 29 (D. Mass. 2010)(citing Martinez v.
Wolferseder, 997 F.Supp. 192, 195 (D.Mass.1998). As to any remaining claims in this count, the
plaintiff will need to amend his complaint to comply with Rule 8.

that deprived the plaintiff of his rights can be held liable’” under § 1983. Velez-Rivera v. AgostoAlicea, 437 F.3d 145, 156 (1st Cir. 2006) (quoting Cepero-Rivera v. Fagundo, 414 F.3d 124, 129
(1st Cir. 2005)). In the absence of personal involvement, a supervisor is liable for the acts of a
subordinate only if (1) the subordinate’s behavior results in a constitutional violation and (2) the
supervisor’s action was “affirmatively linked” to the behavior only in the sense that it could be
characterized as supervisory encouragement, condonation or acquiescence or gross negligence
amounting to deliberate indifference. Hegarty v. Somerset County, 53F. 3d 1367, 1379-1380 (1st
Cir. 1995).
8

c. Count VII - Intentional Infliction of Emotional Distress
Claims made in this count against any of Commonwealth Entity Defendants and
Commonwealth Personnel Defendants in their official capacities for monetary damages are barred
by sovereign immunity and are subject to dismissal, for the reasons set forth in Part II(C)(1)(a),
supra. As to any remaining defendants, however, this count suffers from Rule 8 deficiencies.
Specifically, among other things, the count lumps together different defendants and claims making
it difficult to discern the contours of the claim.
d. Count VIII - 42 U.S.C § 10801-10851 Violation of Congressional
Findings and Statement of Purpose for Individuals with
Disabilities and Count IX - 42 U.S.C. §12131 Violation of
Americans with Disabilities Act.
Plaintiff adds two conclusory counts at the end of the complaint. They are not properly
pleaded under Rule 8. Specifically, among other things, the claims against multiple defendants
are overly broad and lumped together. To the extent the plaintiff seeks to assert these claims he
must amend the complaint.
2.

Order to File an Amended Complaint

In light of the above, if plaintiff wishes to proceed in this matter, in addition to paying the
filing fee, he must file, within 28 days of the date of this Memorandum and Order, an Amended
Complaint curing the substantive and pleading deficiencies and setting forth plausible claims upon
which relief may be granted. In preparing the amended complaint, plaintiff should not reiterate
his allegations or set forth his claims in chronological, narrative paragraphs, nor should he include
names of individuals that do not have any direct involvement with his legal claims against the
named defendants.

His amended complaint should focus on the legal claims against each
9

defendant, and the basis for such claims. In other words, plaintiff should set forth minimal facts
as to who did what to whom, when, where, and why. He should not assert claims collectively
against the defendants, but should parcel out the claims against each defendant separately. He
also should not assert multiple causes of action against a defendant in one count; he should identify
separately each cause of action and the grounds therefore. Further, plaintiff should distinguish
those claims based on action or inaction in an individual capacity from those based action or
inaction in an official capacity. With respect to exhibits, plaintiff may submit exhibits in support
of his Amended Complaint, but is not required to do so. He may refer to exhibits previously filed
with his Complaint, but he cannot rely on the exhibits to constitute his allegations; these must be
set forth in the Amended Complaint itself. Finally, plaintiff should amend his complaint mindful
of the legal impediments discussed herein.
In order to facilitate the filing of an amended complaint that comports with the above
directives, the Court suggests, but does not require, that plaintiff use the template attached to this
Memorandum and Order, as Appendix “A.”
III.

Conclusion and Order

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

Plaintiff's renewed Motion for Leave to Proceed in forma pauperis (ECF No. 8) is
DENIED. Within 28 days of the date of this Memorandum and Order, plaintiff shall
pay the $400.00 filing fee or this action shall be dismissed without prejudice.
Plaintiff may seek reconsideration of the denial of his in forma pauperis motion
within the 28-day period, if he cannot pay the filing fee from his prison savings
account.

2.

Plaintiff’s motion for appointment of counsel (ECF No. 4) is DENIED without
prejudice to the plaintiff filing a renewed motion if summonses are eventually
issued in this action.

10

3.

Within 28 days of the date of this Memorandum and Order, Plaintiff shall file an
Amended Complaint curing the substantive deficiencies and pleading deficiencies
in accordance with Rule 8 of the Federal Rules of Civil Procedure.

4.

Failure to comply with this Order will likely result in the dismissal of this action.

SO ORDERED.
DATED: October 12, 2016

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

11

APPENDIX “A”

NAME OF
DEFENDANT
(specify if
sued in individual
and/or official
capacity)

LEGAL
THEORY OF
LIABILITY
(e.g., 42
U.S.C. § 1983;
negligence, intentional
infliction of emotional
distress, etc.)

DATE
AND PLACE OF
THE ALLEGED
WRONGFUL
ACTION

BRIEF
DESCRIPTION OF
UNDERLYING
FACTS
SURROUNDING
THE
ALLEGED EVENT

TYPE OF
RELIEF SOUGHT
(e.g.,
compensatory
damages, punitive
damages, injunctive
relief, etc.)

EXAMPLE:
John Doe #1

negligence

Boston, MA;
1/1/16

defendant
drove through a red
light and hit my car
causing me personal
injuries

EXAMPLE
John Doe #1

defamation

Boston, MA;
1/2/16

defendant
told a third party I was
driving drunk before
the accident

EXAMPLE
Jane Doe #1

breach of
contract

Lenox, MA;
1/1/2015,

12

defendant
failed to repair the
bicycle I purchased
from him

money
damages to
compensate my pain
and suffering and lost
wages

money
damages

I want a new
bicycle or an order for
the bicycle to be
repaired