Booker v. Cruz et al
District Judge Leo T. Sorokin: ORDER ON MOTION TO DISMISS (DOC. NO. 11) entered. The Motion to Dismiss, Doc. No. 11, is ALLOWED without prejudice. re 11 Motion to Dismiss for Failure to State a Claim (Simeone, Maria)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ALDEN COWEN and JOHN DOE,
Civil No. 17-10717-LTS
ORDER ON MOTION TO DISMISS (DOC. NO. 11)
June 20, 2017
Defendant Cowen has moved to dismiss Plaintiff's claims against him. Plaintiff alleges
that “In failing to adopt an adequate policy or practice, Cowen acted with deliberate indifference
to the foreseeable consequence that inmates reporting misconduct would be beaten and injured.”
Doc. No. 7 at 3. Plaintiff also states that Cowen failed to adopt policies “knowing” that there was
this custom. Id. “[A] supervisor may be held liable for what he does (or fails to do) if his
behavior demonstrates deliberate indifference to conduct that is itself violative of a plaintiff’s
constitutional rights.” Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir. 1994).
“An important factor in making the determination of liability is whether the official was put on
some kind of notice of the alleged violations, for one cannot make a ‘deliberate’ or ‘conscious’
choice to act or not to act unless confronted with a problem that requires the taking of affirmative
steps. Once an official is so notified, either actually or constructively, it is reasonable to infer that
the failure to take such steps, as well as the actual taking of them constitutes a choice ‘from
among various alternatives.’” Lipsett v. Univ. of P.R., 864 F.3d 881, 902 (1st Cir. 1988) (quoting
Pembaur v. City of Cincinnati, 475 U.S. 469, 483–84 (1986)) (citation omitted).
Plaintiff’s allegations against Cowen "do little more than assert a legal conclusion about
the involvement of [Cowen] in the underlying constitutional violation." Sanchez v. PereiraCastillo, 590 F.3d 31, 49 (1st Cir. 2009). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2006) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The factual
allegations the Complaint does assert concern only the John Doe defendant; these allegations are
insufficient to support a reasonable inference capable of sustaining the claim against Cowen. The
Motion to Dismiss, Doc. No. 11, is ALLOWED without prejudice.
/s/ Leo T. Sorokin
Leo T. Sorokin
United States District Judge
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