Carter v. Spencer et al

Filing 107

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER regarding 83 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT. Defendants motion to dismiss all claims against them is: 1) as to Correction Officers Dominique and Collins (Claims I through V), DENIED; 2) as to Correction Officer Hines (Claims I, II, III and V), DENIED; and 3) as to the supervisor defendants Spencer, OBrien and Gelb (Claims I, II and III), ALLOWED(Rynne, Michelle)

United States District Court
District of Massachusetts

Antwan Carter,
Plaintiff,
v.
Luis Spencer, et al.,
Defendants.

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Civil Action No.
16-12052-NMG

MEMORANDUM & ORDER
GORTON, J.
This suit arises out of the plaintiff’s claims that two
correction officers assaulted him while he was incarcerated at
Souza-Baranowski Correctional Center under 42 U.S.C. § 1983.
The plaintiff further alleges that a third correction officer
threatened him with sexual assault.

As a result of those

incidents, the plaintiff filed two inmate grievances with the
Massachusetts Department of Correction both of which were
denied.

He then appealed the denial of the first grievance.

He

now seeks damages for his § 1983 and state law claims against
the officer defendants and their supervisors.
I.

Background
Antwan Carter (“plaintiff” or “Carter”) is an inmate at

Souza-Baranowski Correctional Center (“Souza”).

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He alleges that

he was attacked by Correction Officers (“CO”) Gregory Dominique
(“Dominique”) and Jason Collins (“Collins”) on October 16, 2013,
and that he filed an inmate grievance regarding the assault
(“Grievance 1”) with the Massachusetts Department of Correction
(“the DOC”) the next day.

In Grievance 1, Carter requested that

the incident be thoroughly investigated.

On October 25, 2013,

the Internal Grievance Coordinator (“IGC”) referred the matter
to Internal Affairs (“IA”).
The plaintiff also alleges that on October 23, 2013, CO
Patrick Hines (“Hines”) taunted and threatened him with sexual
assault.

He filed another grievance (“Grievance 2”) and asked

for a remedy of a “safer environment” that same day.

The IGC

reached a “decision” with respect to Grievance 2 by referring
the matter to IA on November 14, 2013.
In January, 2014, the Chief of the Internal Affairs Unit,
Philip Silva, gave written notice to the plaintiff that his
grievances were under investigation.

In September, 2014,

Superintendent Bruce Gelb (“Gelb”) notified Carter in writing
that his allegations as to staff misconduct were “not sustained”
and that Gelb considered the matter closed.
The plaintiff appealed the IGC decision on Grievance 1 in
November, 2016, seeking monetary damages.

The following day,

Superintendent Steven Silva (“Silva”) returned the appeal
because the plaintiff had inserted the wrong grievance number.

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Shortly thereafter, Superintendent Silva denied Grievance 1
noting that time limits for filing an appeal had expired.
Carter did not appeal the decision on Grievance 2.
The plaintiff avers that between the time he was assaulted
and the date he filed his appeal on Grievance 1, he was
transferred to different facilities several times.

He claims he

was unable to file an appeal with respect to Grievance 1 during
the course of those transfers because he had lost his legal
papers but that he promptly filed his appeal as soon as he
received copies of Grievance 1 in mid-October, 2016.
The plaintiff filed an amended complaint in January, 2017,
alleging the following claims against COs Dominique and Collins:
1) use of excessive force under 42 U.S.C. § 1983; 2) use of
excessive force under Article XXVI of the Massachusetts
Constitution; 3) threats, intimidation and coercion against the
plaintiff under M.G.L. c. 12 § 11H; 4) assault and battery and
5) intentional infliction of emotional distress.
With respect to Claims I, II and III, the plaintiff
incorporates the same allegations against the supervisors at
Souza on the grounds that Commissioners Luis Spencer (“Spencer”)
and Carol Higgins O’Brien (“O’Brien”) and Superintendent Bruce
Gelb (“Gelb”) (collectively referred to as “supervisor
defendants”) failed to train, supervise or discipline
correctional staff.

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Finally, the plaintiff alleges that CO Hines: 1) engaged in
threats, intimidation and coercion against the plaintiff in
violation of 42 U.S.C. § 1983 (Claim I), 2) engaged in threats,
intimidation and coercion against the plaintiff in violation of
the Massachusetts Constitution (Claim II), 3) engaged in
threats, intimidation and coercion against the plaintiff in
violation M.G.L. c. 12 § 11H (Claim III) and 4) is liable for
intentional infliction of emotional distress (Claim V).
This Court previously dismissed Count VI of the plaintiff’s
amended complaint (Docket No. 70) and dismissed the claims
against Superintendent Osvaldo Vidal for lack of service (Docket
No. 71).

Pending before the Court is defendants’ motion to

dismiss all remaining claims (Docket No. 83).
II.

Motion to Dismiss
A. Standard of Review
To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to “state a claim
to relief that is plausible on its face”. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).

In considering the merits of

a motion to dismiss, the Court may look only to the facts
alleged in the pleadings, documents attached as exhibits or
incorporated by reference in the complaint and matters of which
judicial notice can be taken. Nollet v. Justices of Trial Court

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of Mass., 83 F. Supp. 2d 204, 208 (D. Mass. 2000), aff’d, 248
F.3d 1127 (1st Cir. 2000).
Furthermore, the Court must accept all factual allegations
in the complaint as true and draw all reasonable inferences in
the plaintiff’s favor. Langadinos v. Am. Airlines, Inc., 199
F.3d 68, 69 (1st Cir. 2000).

If the facts in the complaint are

sufficient to state a cause of action, a motion to dismiss the
complaint must be denied. See Nollet, 83 F. Supp. 2d at 208.
Although a court must accept as true all the factual
allegations contained in a complaint, that doctrine is not
applicable to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662
(2009).

Threadbare recitals of legal elements which are

supported by mere conclusory statements do not suffice to state
a cause of action. Id.

Accordingly, a complaint does not state

a claim for relief where the well-pled facts fail to warrant an
inference of any more than the mere possibility of misconduct.
Id. at 1950.
B. Claims Against the Correction Officer Defendants
The defendants submit that the plaintiff’s claims are
barred because he failed to exhaust all administrative remedies
pursuant to the Prison Litigation Reform Act (“PLRA”), 42 U.S.C.
§ 1997e(a) (1996), and M.G.L. c. 127 § 38F.

Specifically, they

contend that as to Grievance 1, the plaintiff failed to file a

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timely appeal and that as to Grievance 2, he failed to appeal
the grievance at all.
Grievance 1
As to Grievance 1, the defendants assert that Carter did
not file an appeal within ten days of receiving a decision from
the IGC and thus his untimely appeal must be dismissed for
failure to exhaust all administrative remedies.

Defendants also

contend that because Carter did not allege monetary damages as
part of his remedy in the grievance, as required by 103 CMR
491.09 (2)(E), his claim is barred.

Finally, defendants aver

that Carter did not file any grievances against Commissioners
O’Brien and Spencer, Superintendent Gelb or Correction Officers
Collins and Hines and thus the claims regarding use of excessive
force under § 1983 (Claim I) should be dismissed as to those
defendants.
Carter contends that he did not have access to his legal
papers because they were not returned to him and that courts
have waived strict exhaustion requirements if prison officials
are responsible for an inmate’s procedural default.
Defendants respond that because the plaintiff failed to
satisfy the procedural requirement of providing a reason for the
proposed extension of time for filing, the grievance process was
properly terminated.

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The Court will consider the claims against the supervisor
defendants separate and apart from those against the CO
defendants Dominique and Collins to which it turns first.

The

Supreme Court has held that the exhaustion of administrative
remedies “demands compliance with an agency’s deadlines and
other critical procedural rules”.
90–91 (2006).

Woodford v. Ngo, 548 U.S. 81,

The regulation governing inmate grievances in

Massachusetts, 103 CMR 491.12(1), requires that an appeal of a
decision on a grievance must be filed within ten working days
from receipt of the decision.

The regulation also requires that

the inmate provide a copy of the original grievance as part of
the appeal form to the Superintendent.

As such, Carter, by

filing his appeal three years after receiving a decision from
the IGC, would normally be barred from bringing this suit.
This Court has, however, held that where there is a genuine
dispute of fact as to whether an inmate’s attempt to file a
grievance is thwarted by either government incompetence or
misconduct, it will not dismiss the complaint for lack of
subject matter jurisdiction. Carter v. Newland, 441 F. Supp. 2d
208, 211 (D. Mass. 2006) (refusing to dismiss the claim where
the plaintiff alleged, at the motion to dismiss stage, that the
officers told him they tore up his grievance forms); see also
Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002) (joining
the Eighth and Fifth circuits in finding that an official’s

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failure to respond to an inmate grievance rendered those
administrative remedies “exhausted" as they were “unavailable”).
The plaintiff has proffered that, despite asking for his
legal paperwork, he did not receive it, nor did he get a copy of
his initial grievance which was required for the appeal, until
Mid-October, 2016.

He claims that prison officials withheld his

legal paperwork as he was transferred to different medical
facilities over that three-year period.

Moreover, the initial

IGC decision noted that the grievance had been referred to IA.
It was not until September, 2014, that the plaintiff received
written notice that Superintendent Gelb determined that his
allegations of staff misconduct had no merit.

Drawing all

inferences in favor of the non-moving party, the plaintiff has
alleged sufficient facts that, if proven, would indicate that
the prison officials played a role in delaying his ability to
file an appeal.

As such, Carter’s untimely appeal falls under a

limited exception recognized by several circuits that a remedy
becomes unavailable if prison employees use “affirmative
misconduct to prevent a prisoner from exhausting”. Lewis, 300
F.3d at 833.
Defendants’ argument that the plaintiff should have
specified the reason for the delay when filing his appeal is
well taken. See 103 CFR 491.18 (stating that time for an appeal
may be extended if the inmate presents a legitimate reason for

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requesting an extension); 103 CFR 419.19 (denoting that failure
to comply with time restrictions unless waived by the IGC or
Superintendent terminates the grievance process).

In support of

that proposition, defendants cite Cannon v. Washington, but in
that decision, the Seventh Circuit noted that the prison
specifically invited the inmate to seek reconsideration of his
untimely grievance so long as he explained the delay. 418 F.3d
714, 718 (7th Cir. 2005).
Defendants have proffered no evidence that they
specifically informed the plaintiff of how he could cure his
untimely complaint (i.e., by stating a legitimate reason for
extending the filing deadline).

In fact, upon receipt of the

appeal in November, 2016, Superintendent Silva instructed Carter
to refile his appeal because he mistakenly inverted the
grievance number on the appeal form.

Superintendent Silva then

denied the appeal on time limit grounds three weeks later.
Because there is no evidence that the plaintiff was informed of
the subject regulation (103 CFR 491.19), and because all facts
must be drawn in favor of the non-moving party, the Court finds
that the plaintiff has alleged sufficient facts to call into
question the government’s role in thwarting the plaintiff’s
ability to exhaust his available remedies.
Finally, 103 CMR 491.09 (2)(E) does not require inmates to
allege monetary damages at the grievance stage.

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It only directs

that an inmate must request a remedy for the grievance, which
the plaintiff did here.

Moreover, courts have not held, as

defendants suggest, that a failure to request monetary damages
at the grievance stage necessitates dismissal of a complaint.
Cf. Booth v. Churner, 532 U.S. 731, 739 (2001) (finding that one
“exhausts” processes, not forms of relief).
As such, drawing all inferences in favor of the non-moving
party, the Court finds that the plaintiff has alleged sufficient
facts to allow all claims to proceed against defendants
Dominique and Collins and defendants’ motion to dismiss with
respect to those defendants will be denied.
Grievance 2
As to Grievance 2, the defendants claim that the plaintiff
failed to file an appeal of the grievance decision at all, thus
failing to exhaust all remedies before seeking suit.

They

further assert that because the plaintiff failed to allege
physical or psychological injuries and did not seek monetary
damages in his grievance, his claim should be barred.

Finally,

the defendants argue that the plaintiff has not alleged that
defendants O’Brien, Spencer, Gelb, Dominique and Collins have
committed any wrongdoing with respect to this grievance.
they submit that claims against those defendants should be

Thus,

dismissed.

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The plaintiff submits that under 103 CMR 491.10(4) inmates
must be informed of their right to appeal an adverse decision
and that the letter terminating the IA investigation did not
contain any reference to an appeal.

As such, Carter believed

that he had exhausted his administrative remedies.

Moreover, he

claims that where a substantive determination on the merits of a
grievance has been made, the administrative remedies have been
exhausted.
This Court concludes that the plaintiff has effectively
exhausted his available remedies with respect to Grievance 2
despite his failure to file an appeal.

In the January 2014 IA

letter, Carter was informed that all of his grievances were
under investigation and had been forwarded to Superintendent
Gelb.

In September, 2014, Superintendent Gelb notified Carter

that his allegations against correctional staff were meritless
and thus the matter was “considered closed”.
Although Superintendent Gelb’s letter refers to an intake
number that does not correlate with either Grievances 1 or 2,
Carter was not advised as to any right of appeal and he
reasonably believed that he had exhausted all available remedies
when he received a substantive decision on the merits from the
Superintendent as to all allegations regarding alleged staff
misconduct. See 42 U.S.C. § 1997e(a) (an action cannot be
brought until all available administrative remedies are

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exhausted); M.G.L. c. 127 § 38F (an inmate cannot file an appeal
of a grievance claim unless he has exhausted the administrative
remedy established); Porter v. Nussle, 534 U.S. 516, 524 (2002)
(finding that all “available” remedies must be exhausted); Camp
v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000) (holding that when
a substantive determination has been reached at the highest
level, an inmate is not required to jump through any further
“administrative hoops” to get the same answer).

As such, this

Court finds that the plaintiff has satisfied his obligation to
exhaust all available administrative remedies.
Finally, although this Court will allow the plaintiff’s
claims to proceed against CO Hines, it notes that at least with
respect to the § 1983 claim (Claim I), the law is settled that
emotional damage by verbal harassment does not amount to an
infringement of a constitutional right. See Pittsley v.
Warish, 927 F.2d 3, 7–8 (1st Cir. 1991).

Because neither party

has raised that issue in their memoranda, the Court declines at
this stage to rule on the viability of the plaintiff’s § 1983
claim against CO Hines.
Accordingly, defendants’ motion to dismiss Claims I, II,
III and V of plaintiff’s claim against CO Hines will be denied.
C. Claims I, II and III Against the Supervisor Defendants
With respect to the claims against Commissioners O’Brien
and Spencer, and against Superintendent Gelb, the plaintiff has

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made no allegations as to their involvement in the alleged
assault, threats or purported failure to train, supervise or
discipline correctional staff as to those incidents.

Because

the plaintiff makes only bald legal conclusions with respect to
the supervisors’ involvement in the incidents, he has not
sufficiently pled facts to proceed against those defendants. See
Ashcroft, 556 U.S. at 678 (holding that a complaint does not
suffice if it tenders naked assertions devoid of further factual
enhancement).

Accordingly, defendants’ motion to dismiss Claims

I, II and III against the supervisor defendants O’Brien, Spencer
and Gelb will be allowed.
ORDER
Defendants motion to dismiss all claims against them is:
1) as to Correction Officers Dominique and Collins (Claims
I through V), DENIED;
2) as to Correction Officer Hines (Claims I, II, III and
V), DENIED; and
3) as to the supervisor defendants Spencer, O’Brien and
Gelb (Claims I, II and III), ALLOWED.

So ordered.

_/s/ Nathaniel M. Gorton____
Nathaniel M. Gorton
United States District Judge
Dated December 5, 2018

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