Diaz v. Massachusetts Department of Correction et al

Filing 15

District Judge Leo T. Sorokin: ORDER entered The unobjected to 12 Report and Recommendation, after de novo review, is ADOPTED. The recommendations set forth on page 4 (numbered 1 to 7) are adopted as Orders of the Court. This case is referred to Magistrate Judge Kelley for all purposes. (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JUAN DIAZ, JR.,
Plaintiff,

CIVIL ACTION NO.
16-11894-MPK

v.
MASSACHUSETTS DEPARTMENT
OF CORRECTION, ET AL.,
Defendants.
ORDER FOR REASSIGNMENT TO A DISTRICT
JUDGE AND REPORT AND RECOMMENDATION
KELLEY, M.J.
I.

Background
A.

Procedural Background

On September 22, 2016, plaintiff Juan Diaz, Jr., a Massachusetts prisoner currently
serving a life sentence at the United States Penitentiary (USP) in Coleman, Florida (pursuant to a
contract program between Massachusetts and the Federal Bureau of Prisons (BOP)), filed a pro
se complaint against the Massachusetts Department of Correction (DOC) and a number of its
employees.1 Diaz alleged that the defendants denied him access to the courts by failing to
provide him state legal materials that he requested and needed in order to challenge his
Massachusetts conviction.
On November 22, 2016, this Court issued a Memorandum and Order (#7) allowing
Diaz’s Motion for Leave to Proceed in forma pauperis and directing Diaz to file an amended
complaint by January 4, 2017. The Court outlined the problems with the original complaint.
First, it was not clear whether Diaz sought to reassert claims that had been raised in his prior
closed civil actions. See Diaz v. Spencer, et al., Civil Action No. 12-12154-DPW (alleging

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These included: (1) Thomas Turco, current Commissioner of the DOC; (2) Carol Mici,
Assistant Deputy Commissioner of the DOC; and (3) Douglas Cabral, Manager of the County,
Federal and Interstate Compact Unit Classification Division. In the body of the complaint Diaz
named a fifth defendant, Carol Higgins O’Brien, Commissioner of the DOC at the time of the
alleged violations. In an attachment, he named Christopher Fallon, Director of Communications
for the DOC, as the sixth and final defendant.

deliberate indifference to a serious medical need) and Diaz v. Spencer, et al., Civil Action No.
13-10994-DPW (alleging denial of access to the court due to lack of state legal materials).
Second, the sum total of the defendants was not clear given the discrepancies in identifying the
defendants in the caption, the body of the complaint, and the attachment. Third, Diaz asserted
amorphous claims against certain defendants (Mici, O’Brien, and Fallon) for the failure to train
and supervise their subordinates, without any underlying facts in support, and thus failed to state
plausible claims under Rule 8 of the Federal Rules of Civil Procedure. Fourth, Diaz alleged that
he was entitled to good time credits for programming work while in BOP custody, and that his
Second Amendment right to bear arms had been violated, claims which also did not comport
with Rule 8. Fifth, Diaz’s allegations of liability of the DOC were not plausible, because: (1)
Eleventh Amendment sovereign immunity barred Diaz’s claims for monetary damages; and (2)
the DOC was not liable under 42 U.S.C. § 1983 under a theory of respondeat superior.
Finally, this Court attached to the Memorandum and Order a template chart to assist Diaz
in formulating his causes of action against each defendant so as to comply with Rule 8.
On January 3, 2017, Diaz filed an amended complaint (#11).
B.

Allegations in the Amended Complaint

The amended complaint is not set forth on the template chart, nor does it contain separate
paragraphs and brief statements of the claims against each defendant separately, as required by
Rule 8. Moreover, the amended complaint incorporates legal argument. Nevertheless, from
what can be discerned, Diaz has limited his claims to § 1983 civil rights claims based on the
denial of access to the Court, because of the refusal of the defendants to provide legal materials
so that he may challenge his conviction based on ineffective assistance of counsel. He contends
that he needed the legal materials so he could make an informed decision on what challenges to
assert on appeal, and absent such materials, he had to rely on his counsel to make arguments that

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ultimately were rejected.2
In the amended complaint, Diaz now names as defendants: (1) Thomas Turco; (2) Carol
Mici; (3) Douglas Cabral; (4) Carol Higgins-O’Brien; and (5) Christopher Fallon. He asserts
these defendants had knowledge of his request and were deliberately indifferent to his
constitutional rights.
As relief, Diaz seeks $1 million for every year he was denied the right to access the
courts. He also seeks to have any procedural default excused in order to litigate his challenges to
his conviction, and further seeks an injunction to prison officials to ensure he receives legal
materials while he is housed by the BOP pursuant to the interstate compact, or else he seeks an
order for transfer to a Massachusetts state prison.
II.

Discussion
Although the amended complaint is not pristine, this Court construes it to present issues

solely relating to Diaz’s “access to the courts” claims. In light of this, Diaz’s other claims in the
original complaint (i.e., Second Amendment claims, good time credit claims, claims against the
DOC based on respondeat superior liability, and, if any, deliberate indifference to a serious
medical need) should be deemed to have been WITHDRAWN by Diaz and that the amended
complaint constitute the operative pleading in this action. The Court also considers that
summonses should issue with respect to the individuals identified as defendants in the amended
complaint.
Accordingly, because the parties have not consented to proceed before a Magistrate Judge
at this time, the Court will order that this action be REASSIGNED to a District Judge for further
proceedings, and makes RECOMMENDATIONS to the District Judge to whom the case is
assigned, as set forth below.

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In addition to seeking state procedural rules and other legal materials, it appears Diaz
also sought legal assistance in determining what legal materials would be relevant to his
challenge to his criminal conviction.

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III.

Order and Recommendation
It is Ordered that this action be REASSIGNED to a District Judge.
It is RECOMMENDED to the District Judge to whom the case is assigned that the

following Orders enter:
1.

The amended complaint (#11) supersedes the original and is the operative pleading in this
action;

2.

This action is limited solely to claims alleging denial of access to the courts by the alleged
refusal to provide plaintiff with requested legal materials in order to challenge his
conviction; all other claims contained in the original complaint are deemed to be
WITHDRAWN;

3.

The clerk shall terminate the Massachusetts Department of Correction as a party to this
action;

4.

The clerk shall issue summonses to: (1) Thomas Turco; (2) Carol Mici; (3) Douglas
Cabral; (4) Carol Higgins-O'Brien; and (5) Christopher Fallon;

5.

The plaintiff may elect to have service made by the United States Marshal Service. If
directed by the plaintiff to do so, the United States Marshal Service shall serve the
summons, the amended complaint, the consent package, and this Memorandum and Order
upon the defendants, in the manner directed by the plaintiff, with all costs of service to be
advanced by the United States Marshal Service;

6.

Notwithstanding the directive to the United States Marshal Service, it is the plaintiff’s
responsibility to provide all the necessary paperwork and information required by the
United States Marshal Service; and

7.

The plaintiff shall have 90 days from the date of issuance of the summonses to complete
service.

IV.

Notice of Right to Object to The Report and Recommendation
Any objections to this Report and Recommendation must be filed with the Clerk of Court

within 14 days of receipt of the Report and Recommendation to which objection is made and the
basis for such objection. See Rule 72(b), Fed. R. Civ. P. The written objection(s) must
specifically identify the portion of the recommendation, or report to which objection is made, and
the basis for such objections. See Fed. R. Civ. P. 72.
Plaintiff is further advised that the United States Court of Appeals for this Circuit has
repeatedly indicated that failure to comply with Fed. R. Civ. P. 72(b) will preclude further
appellate review of the District Court’s order based on this Report and Recommendation. See

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Phinney v. Wentworth Douglas Hospital, 199 F.3d 1 (1st Cir. 1999); Sunview Condo. Ass’n v.
Flexel Int’l, 116 F.3d 962 (1st Cir. 1997); Pagano v. Frank, 983 F.2d 343 (1st Cir. 1993).

SO ORDERED.
/s/ M. Page Kelley
M. PAGE KELLEY
UNITED STATES MAGISTRATE JUDGE
DATED: January 17, 2017

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