Noone v. Carpenter et al

Filing 44

District Judge Angel Kelley: MEMORANDUM AND ORDER entered. For the reasons stated in the attached Memorandum and Order, Wellpath’s Motion to Dismiss [Dkt. 24] is GRANTED, and Carpenter, Charleston, Gray, Kinzer, Parady, and Shosey’s Mo tion to Dismiss [Dkt. 41] is GRANTED IN PART and DENIED IN PART. Noone’s Eighth Amendment claim for excessive force, brought pursuant to 42 U.S.C. § 1983, against Carpenter, Shosey, Kinzer, Parady, and Charleston is the only claim to survive the Motion to Dismiss. (Lara, Miguel)

Case 1:21-cv-10959-AK Document 44 Filed 05/09/22 Page 1 of 18

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
Daniel NOONE,
)
)
Plaintiff,
)
)
v.
)
)
Civil Action No. 21-cv-10959-AK
Richard A. CARPENTER, Jason E. SHOSEY,
)
Christopher C. KINZER, Michael J. PARADY,
)
Charlotte C. FERRO, Matthew
)
CHARLESTON, WELLPATH,
)
and Dean GRAY,
)
)
Defendants.
)
)
MEMORANDUM AND ORDER
A. KELLEY, D.J.
Plaintiff Daniel Noone (“Noone”), an inmate at the Souza-Baranowski Correctional
Center (“SBCC”) in Massachusetts, brings this action under 42 U.S.C. § 1983, alleging
violations of the Eighth Amendment right to be free from cruel and unusual punishment and the
Fourteenth Amendment’s Equal Protection Clause. Noone also brings a claim pursuant to the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and a state law claim of intentional
infliction of emotional distress. Noone names six SBCC correction officers as defendants:
Richard Carpenter (“Carpenter”), Jason Shosey (“Shosey”), Christopher Kinzer (“Kinzer”),
Michael Parady (“Parady”), Charlotte Ferro (“Ferro”), and Matthew Charleston (“Charleston”).
Noone also names Dean Gray (“Gray”), the Superintendent of SBCC, and Wellpath, the
healthcare provider at SBCC, as defendants.
Wellpath filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
[Dkt. 24]. Carpenter, Shosey, Kinzer, Parady, Charleston, and Gray (the “DOC Defendants”)

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also filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). 1 [Dkt. 41].
For the reasons that follow, Wellpath’s Motion to Dismiss is GRANTED, and the DOC
Defendants’ Motion to Dismiss is GRANTED IN PART and DENIED IN PART.
I.

Factual Allegations
Unless otherwise noted, the facts are presented as alleged in the Complaint. [See Dkt. 1

(“Complaint”)]. Noone, an inmate at SBCC, has been diagnosed with “serious mental illness”
and was, at relevant times, housed in the “Secure Treatment Program” (“STP”) Unit, where
inmates with serious mental illnesses receive care. [Id. at 1-2, ¶ 11]. Sometime during the
morning on November 7, 2020, Noone informed an unidentified officer in the STP Unit that he
was in “a crisis” and needed to speak to a mental health clinician. [Id. at ¶ 12]. This unnamed
officer ignored Noone. [Id.]. While Noone waited to speak with a clinician, another inmate who
had called for a clinician was taken from his cell to speak with “Medic 5,” 2 the “code used at
SBCC for crisis related matters.” [Id. at ¶ 14]. Noone then held a phone in front of his cell to
attract an officer’s attention, and when Parady responded, Noone “made his concerns known” to
him. [Id. at ¶ 15]. Parady “was adamant that this is not how things work if he wants some
attention,” and Noone continued to wait to see Medic 5. [Id.]. In due course, Noone saw the
other inmate return from his meeting with Medic 5. [Id. ¶¶ 15-16]. When nobody summoned
Noone to see Medic 5 thereafter, Noone “covered his cell window to block the view inside his
cell,” refused his medication when offered, and again requested to see Medic 5. [Id. at ¶ 17].

Charlotte Ferro (“Ferro”), appearing specially through counsel, filed a Motion to Dismiss due to Noone’s failure to
effectuate service according to Federal Rule of Civil Procedure 4. [Dkt. 39]. The Court has already addressed this
Motion. [See Dkt. 43].
2
Noone uses “Medic 5” and clinician seemingly interchangeably. The Court does so as well, mirroring the
language used in the Complaint for particular allegations.
1

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After officers checked on Noone by looking into the cell through the food slot around
11:00 AM, Noone placed a noose around his neck, tied a sheet to the cell’s window frame,
kneeled on a bench, and leaned forward until he passed out. [Id. at ¶¶ 18-19]. Noone awoke and
lost consciousness three times before yelling to a passing officer that he needed help. [Id. at
¶¶ 20, 22]. Noone then passed out again and awoke after he was sprayed with chemical agents.
[Id. at ¶¶ 22-23]. At this point, Noone heard Charleston give an order to enter the cell and
“smash him.” [Id. at ¶ 24]. Noone was thrown against the back wall of his cell when officers
entered, after which he was handcuffed and shackled. [Id.]. Noone was then put on a gurney,
seen by a nurse, transported to a hospital, and monitored upon his return to SBCC later that day.
[Id. at ¶¶ 25-27].
Noone alleges multiple causes of action against the defendants, including violations of
the Eighth Amendment’s prohibition on cruel and unusual punishment (“Count I”); the “Equal
Protection Clause,” which the Court interprets as a reference to the Fourteenth Amendment
(“Count II”); the Americans with Disabilities Act (the “ADA”) (“Count III”); and a state law
claim of intentional infliction of emotional distress (“Count IV”). [Id. at ¶¶ 47-64]. The Court
previously dismissed Noone’s official capacity claims for damages under 42 U.S.C. § 1983.
[Dkt. 5 at 2]. The Court has also already dismissed all individual capacity claims under the
ADA. [Id.]. The DOC Defendants and Wellpath have moved to dismiss the remainder of the
action for failure to state a claim upon which relief can be granted. Noone has opposed only
Wellpath’s Motion to Dismiss. [See Dkts. 37, 38].
II.

Legal Standard
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a

complaint must allege sufficient facts to state a claim for relief that is “plausible on its face” and

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actionable as a matter of law. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Reading the complaint “as a whole,” the Court
must conduct a two-step, context-specific inquiry. García-Catalán v. United States, 734 F.3d
100, 103 (1st Cir. 2013). First, the Court must perform a close reading of the complaint to
distinguish factual allegations from conclusory legal statements. Id. Factual allegations must be
accepted as true, while legal conclusions are not entitled to credit. Id. A court may not disregard
properly pleaded factual allegations even if actual proof of those facts is improbable. OcasioHernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). Second, the Court must determine
whether the factual allegations present a “reasonable inference that the defendant is liable for the
misconduct alleged.” Haley v. City of Bos., 657 F.3d 39, 46 (1st Cir. 2011) (citation omitted).
Although the Court is “required to construe liberally a pro se complaint,” a plaintiff’s “pro se
status does not insulate [him or her] from complying with procedural and substantive law.”
Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). When resolving a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6), the Court is generally limited to “the complaint,
documents attached to it, and documents expressly incorporated into it.” Foley v. Wells Fargo
Bank, N.A., 772 F.3d 63, 71-72 (1st Cir. 2014).
III.

Discussion
Noone brings his constitutional claims pursuant to 42 U.S.C. § 1983. He brings his ADA

claim separately, in addition to a supplemental state law claim for intentional infliction of
emotional distress, which are based on the same allegations underlying the constitutional claims.
A. Section 1983
Section 1983 provides that “[e]very person” acting “under color of any statute, ordinance,
regulation, custom, or usage of any State or Territory or the District of Columbia” who subjects

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or causes to subject someone “to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws” shall be liable to the injured party. 42 U.S.C. § 1983. An
individual asserting a Section 1983 claim must show that the challenged conduct is “attributable
to a person acting under color of state law” and that the conduct was a “denial of rights secured
by the Constitution or by federal law.” Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997); see
Graham v. Connor, 490 U.S. 386, 393-94 (1989) (citation omitted) (explaining that Section 1983
is “not itself a source of substantive rights, but merely provides a method for vindicating federal
rights elsewhere conferred”). The defendants do not dispute that they were acting “under color
of state law.” Rather, they dispute that the injuries alleged amount to a violation of Noone’s
Eighth and Fourteenth Amendment rights.
1. Eighth Amendment
Noone alleges that Carpenter, Shosey, Kinzer, Parady, and Charleston’s conduct 3 before
and after his suicide attempt on November 7, 2020 deprived him of his Eighth Amendment right
to be free from cruel and unusual punishment. [Complaint at ¶ 48]. In particular, Noone claims
that they were deliberately indifferent to Noone’s requests for help prior to his attempted suicide
and that they used excessive force causing “wanto[n] and unnecessary infliction of pain” when
responding to his suicide attempt. [Id.]. Noone separately alleges that Gray and Wellpath have
violated the Eighth Amendment by “failing to remedy the systematic deficiencies in the delivery
of medical services” and “failing to properly train officers and staff.” [Id. at ¶ 49].

Noone includes Ferro in this allegation, but the Court limits its discussion to the other named officers, as the Court
has already resolved Ferro’s separate Motion to Dismiss. [See Dkts. 39, 43].

3

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a)

Carpenter, Shosey, Kinzer, Parady, and Charleston (the “DOC
Officers”)

Noone’s Eighth Amendment claims against the DOC Officers stem from two separate
incidents. The first is the allegedly inadequate medical treatment prior to Noone’s suicide
attempt. Specifically, Noone contends that the DOC Officers ignored his pleas for help, would
not allow him to meet with a mental health clinician while he was in “a state of crisis,” and
allowed and prompted him to attempt suicide. [Id. at ¶ 48]. The second is the use of excessive
force when responding to his suicide attempt. Noone claims that spraying him with a chemical
agent while he was unconscious and using excessive force upon entering the cell caused him
wanton and unnecessary infliction of pain. [Id.].
A party alleging a violation of the Eighth Amendment due to denied or inadequate
medical care must “satisfy both of two prongs: (1) an objective prong that requires proof of a
serious medical need, and (2) a subjective prong that mandates a showing of prison
administrators’ deliberate indifference to that need.” Kosilek v. Spencer, 774 F.3d 63, 82 (1st
Cir. 2014). The risk of harm “must have been obvious to the particular officials who are
defendants” to satisfy the second element. Ruiz-Rosa v. Rullan, 485 F.3d 150, 157 (1st Cir.
2007). Noone’s allegations satisfy neither facet.
A medical need is “serious” if it has been “diagnosed by a physician as mandating
treatment” or is “so obvious that even a lay person would easily recognize the necessity for a
doctor’s attention.” Leavitt v. Corr. Med. Servs., Inc., 645 F.3d 484, 497 (1st Cir. 2011). Here,
Noone states that he was diagnosed with “serious mental illness” without providing further
details. [Complaint at 1]. Records attached to the Complaint show that Noone was diagnosed
with major depressive disorder in March 2020. [See, e.g., Dkt. 1-2 at 8]. They also state that
Noone was diagnosed with borderline and antisocial personality disorders in October 2018.

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[Id.]. The Court does not doubt the challenges and seriousness of living with a mental illness.
However, Noone’s “serious mental illness” diagnosis and requests to see a clinician regarding a
“crisis,” as generally alleged in the Complaint, fall short of showing an obvious medical need
necessitating a doctor’s immediate attention. 4 A “future risk of suicidality” that is a “clear risk
of future harm” may “suffice to sustain an Eighth Amendment claim,” but Noone does not state
that, at the time of the incident, he was at risk of imminent suicide, nor does he allege previous or
ongoing suicidal ideation. Kosilek, 774 F.3d at 90. He also does not allege a physician had
diagnosed him as at risk for suicide. While hindsight may be 20/20 in light of Noone’s later
suicide attempt, Noone’s vague allegations of a “crisis” do not establish a serious medical need
capable of sustaining an Eighth Amendment claim.
Even if Noone had adequately alleged a serious medical need, he has failed to satisfy the
second element required to demonstrate inadequate medical care. Only “deliberate indifference”
to the serious medical needs of prisoners violates the Eighth Amendment. Estelle v. Gamble,
429 U.S. 97, 106 (1976). Deliberate indifference is “conduct that offends evolving standards of
decency in a civilized society,” DesRosiers v. Moran, 949 F.2d 15, 18 (1st Cir. 1991), and it can
include the denial of needed medical treatment to punish an inmate or wanton disregard of a
prisoner’s needs akin to criminal recklessness, Kosilek, 774 F.3d at 83. A plaintiff must allege
that each defendant was “aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists” and that each defendant did, in fact, “draw that
inference.” Ruiz-Rosa, 485 F.3d at 156; see also Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.
1999) (“It is axiomatic that the liability of persons sued in their individual capacities under

The Court considers Noone’s later suicide attempt a separate “serious medical need,” and Noone does not allege
that the defendants’ medical response to the suicide attempt was inadequate. Rather, he focuses on their alleged
indifference prior to the incident.

4

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section 1983 must be gauged in terms of their own actions.”). The only named defendant with
whom Noone spoke prior to his suicide attempt was Parady. Noone states that he “made his
concerns known” to Parady, “but he was adamant that this is not how things work if he wants
some attention,” and Noone continued to wait for Medic 5. [Complaint at ¶ 15]. None of the
other DOC Officers knew of Noone’s alleged crisis, and the facts alleged do not suggest that
Parady was aware of “a strong likelihood” of an imminent suicide attempt. See Penn v.
Escorsio, 764 F.3d 102, 110 (1st Cir. 2014) (citation omitted) (“In a suicide case, a finding of
deliberate indifference requires a strong likelihood, rather than a mere possibility, that selfinfliction of harm will occur. The conduct must encompass acts or omissions so dangerous (in
respect to health and safety) that a defendant’s knowledge of a large risk can be inferred.”). As
such, Noone has failed to state a claim for inadequate medical care in violation of the Eighth
Amendment as to the DOC Officers.
Whether there is a plausible claim that the DOC Officers used excessive force in
violation of the Eighth Amendment when responding to the suicide attempt is a closer question.
Only the “unnecessary and wanton infliction of pain” constitutes cruel and unusual punishment.
Whitley v. Albers, 475 U.S. 312, 319 (1986). When examining accusations of excessive force in
violation of the Eighth Amendment, the inquiry is “whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v.
McMillian, 503 U.S. 1, 7 (1992).
Noone alleges he “had been sprayed with chemical agents multiple times” while passed
out. [Complaint at ¶¶ 22, 23]. He also claims that Charleston gave the order to enter the cell and
“smash him.” [Id. at ¶ 24]. Noone further alleges that he was “violently thrown against the back
wall,” hit his head, and was “thrown on the ground to be handcuffed and shackled.” [Id.]. With

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the exception of Charleston’s directive, Noone’s Complaint does not describe any specific acts
by any of the named DOC Officers, and instead provides general allegations that “the officers”
entered his cell. [See id. at ¶¶ 22-24]. He appears to include the other DOC Officers in this
action based on incident reports they each filed, which Noone attached to the Complaint. [See
Dkt. 1-2 at 19-25]. These reports acknowledge the use of a chemical agent, and none suggest
Noone was thrown against the wall upon the DOC Officers’ entry into his cell. [See id.].
Although these incident reports describe the DOC Officers’ participation in the incident, Noone
also vaguely alleges the DOC Officers tried “to cover up crime by committing perjury on
reports.” [See id.; Complaint at ¶ 14].
While force “applied in a good faith effort to maintain or restore discipline” does not
constitute cruel and unusual punishment, the Court cannot say, accepting the allegations in the
Complaint as true as it must at this stage, that the use of a chemical agent and physical force
upon entry into Noone’s cell when he was unconscious was not excessive. Whitley, 475 U.S. at
320-21 (citation omitted); see Washington v. Amand, 308 F. Supp. 3d 497, 504 (D. Mass. 2018)
(citing Iko v. Shreve, 535 F.3d 225, 240 (4th Cir. 2008)) (“While the use of chemical agents is
not excessive force per se, the amount of force used must be proportionate to the need for
force.”); but see Schultz v. Doher, 335 F. Supp. 3d 177, 187 (D. Mass. 2018) (finding that the
plaintiff could not prove deliberate indifference where the defendants used a chemical agent
“briefly and sparingly” only after they “implored the plaintiff to exit his cell and unambiguously
warned him that they would have to use an agent if he refused”). As such, Noone’s Complaint is
sufficient to state a claim for relief as to the DOC Officers’ alleged use of excessive force. The
Court therefore denies the DOC Defendants’ Motion to Dismiss as to the DOC Officers in Count
I, limiting the claim to the DOC Officers’ use of excessive force after Noone’s suicide attempt.

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b)

Gray

Noone claims that Gray, the Superintendent of SBCC, has violated his Eighth
Amendment right to be free from cruel and unusual punishment by failing to “remedy the
systematic deficiencies in the delivery of medical services,” to “properly train officers and staff,”
and to correct violations after they occurred. [Complaint at ¶ 49]. The Court reads Noone’s
allegations as seeking to impose supervisory liability on Gray. Supervisors “may only be held
liable under § 1983 on the basis of their own acts or omissions.” Whitfield v. Melendez-Rivera,
431 F.3d 1, 14 (1st Cir. 2005). Generally, this requires the supervisor to be a “primary violator
or direct participant in the rights-violating incident” or to supervise, train, or hire a subordinate
with “deliberate indifference toward the possibility that deficient performance of the task
eventually may contribute to a civil rights deprivation.” Wilmont v. Tracey, 938 F. Supp. 2d
116, 141 (D. Mass. 2013) (citing Sanchez v. Pereira-Castilla, 590 F.3d 31, 49 (1st Cir. 2009)).
There must be an “affirmative link” between the alleged constitutional violation and the
supervisor’s conduct “that amounts to condonation or tacit authorization.” Velez-Rivera v.
Agosto-Alicea, 437 F.3d 145, 156 (1st Cir. 2006) (citation omitted).
Noone has not alleged that Gray participated in the provision of any medical care (or lack
thereof) prior to his suicide attempt or in the use of force when the DOC Officers entered his cell
while responding to his medical emergency. In fact, Noone does not claim that Gray even knew
about the DOC Officers’ actions at the time. Noone does not allege any act or omission by Gray
beyond broad statements that Gray encourages punishment and fails to reprimand his staff. [See
Complaint at ¶¶ 45, 49]. This is insufficient to state a plausible claim to relief against Gray in his
individual capacity. See Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 56 (1st Cir. 2005) (citations omitted) (noting that the Court is “not bound to credit ‘bald

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assertions, unsupportable conclusions, periphrastic circumlocutions, and the like’”). Noone also
does not identify Gray’s role in establishing any particular policies or supervising any training—
let alone the underlying policies and trainings themselves—and “[g]eneralized allegations of a
failure to train and supervise are insufficient to state a claim.” See Wilmont, 938 F. Supp. 2d at
142 (finding that the plaintiff failed to state a claim for supervisory liability based on the
defendants’ “roles in establishing policy or engaging in supervision and training” where the
plaintiff “failed to put forth facts identifying the policy at issue or what training was allegedly
omitted”). Therefore, the Court grants the DOC Defendants’ Motion to Dismiss as to Gray in
Count I.
c)

Wellpath

Noone alleges Wellpath violated his Eighth Amendment right to be free from cruel and
usual punishment by showing deliberate indifference to his serious medical needs and by failing
to properly train officers and staff. [Complaint at ¶ 49]. Noone, however, does not implicate
Wellpath in any of the alleged acts or omissions prior to his suicide attempt or the DOC Officers’
response when they entered his cell after discovering him. In fact, Noone does not even state
that Wellpath or its employees knew he was in “a crisis” prior to his suicide attempt. Although
Noone states that Wellpath “denied him Medic 5 along with officers and refused to meet with the
Plaintiff,” he fails to provide any facts supporting this statement. [See id. at ¶ 46]. Rather,
Noone’s allegations of deliberate indifference to his serious medical needs stem from the acts of
the DOC Officers, not Wellpath or its employees. Noone also does not point to any specific
deficiencies in the delivery of medical care services generally—and certainly not any systematic
deficiencies—prior to his suicide attempt, nor does he explain how Wellpath staff are improperly

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trained. As such, Noone has failed to state a claim against Wellpath for deliberate indifference to
his serious medical needs.
Any attempt to impose supervisory liability on Wellpath also fails. As already explained,
supervisors are not liable for the conduct of those under their command unless there is direct
participation in the challenged conduct or an affirmative link between the alleged constitutional
violation and the supervisor’s conduct amounting to “condonation or tacit authorization.” VelezRivera, 437 F.3d at 156. Noone has not alleged any facts indicating Wellpath was a primary
violator or direct participant in the underlying incident, nor has he named any Wellpath
subordinates who contributed to Noone’s alleged civil rights deprivation or any particular
failures of Wellpath to supervise or train such employees. Cursory allegations of “failing to
properly train officers and staff” are insufficient to state a plausible claim to relief. See
Peñalbert-Rosa v. Fortuño-Burset, 631 F.3d 592, 595-96 (1st Cir. 2011) (citing Bell Atl. Corp.,
550 U.S. at 557 n.5) (explaining that “some allegations, while not stating ultimate legal
conclusions, are nevertheless so threadbare or speculative that they fail to cross ‘the line between
the conclusory and the factual’” and that “pure speculation” and “mere possibility [are] not
enough to state a claim”); see also Wilmont, 938 F. Supp. 2d at 142.
To the extent that Noone argues Wellpath’s policies and customs caused his injuries, such
a claim also fails. Wellpath cannot be liable under Section 1983 “unless its official policy or
custom was the ‘moving force’ behind the alleged violation of constitutional rights.” Hayden v.
Grayson, 134 F.3d 449, 456 (1st Cir. 1998) (citing Monell v. Dep’t of Soc. Serv., 436 U.S. 658,
694 (1978)). 5 Where a complaint fails to identify “the custom or practice at issue,” it has failed

While the First Circuit has not explicitly held that a private entity such as Wellpath should be treated as a
municipality for the purposes of Section 1983, other district courts in this Circuit have imposed the requirements of
a Monell claim on such entities. See, e.g., Nesbitt v. Wellpath, No. 20-cv-12126-FDS, 2022 WL 617514, at *5 (D.
Mass. Mar. 2, 2022).
5

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to state a claim that the policies or customs caused the alleged constitutional deprivation. See
Nesbitt v. Wellpath, No. 20-cv-12126-FDS, 2022 WL 617514, at *6 (D. Mass. Mar. 2, 2022)
(citation omitted). Noone names no Wellpath policies or customs that contributed to a deliberate
indifference to his medical needs or a failure to train employees. He therefore fails to state a
plausible claim that Wellpath’s policies or customs caused his alleged injury. Moreover, where
there is no underlying constitutional tort by the employees of the private entity or municipality,
there can be no liability predicated on policy or custom. See Leavitt, 645 F.3d at 504. As
explained, Noone alleges only that the DOC Officers’ actions caused his Eighth Amendment
deprivation—not Wellpath employees.
For all of these reasons, the Court grants Wellpath’s Motion to Dismiss as to Count I.
2. Fourteenth Amendment
Although Noone alleges a violation of the “Equal Protection Clause,” which the Court
presumes is a reference to the Fourteenth Amendment, he does not list any particular defendant
as the actor. [See Complaint at ¶¶ 54-55]. This alone is enough to dismiss Count II as to all the
defendants. See Peñalbert-Rosa, 631 F.3d at 594-95 (“[A]n adequate complaint must include not
only a plausible claim but also a plausible defendant. Yet there is nothing in the complaint
beyond raw speculation to suggest that the named defendants participated—either as perpetrators
or accomplices—in the [alleged injustice].”). Even if Noone did name specific defendants, his
Fourteenth Amendment claim falls short.
The Equal Protection Clause “prohibits a state from treating similarly situated persons
differently because of their classification in a particular group.” Mulero-Carrillo v. RomanHernández, 790 F.3d 99, 105-06 (1st Cir. 2015). To survive a motion to dismiss, an equal
protection claim must allege facts plausibly demonstrating that, compared with others similarly

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situated, the plaintiff was “selectively treated” based on “impermissible considerations such as
race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad
faith intent to injure a person.” Id. at 106 (citations omitted). Noone does not specify a
protected class in the Complaint, though he vaguely references his status as a “convicted felon.”
[See Complaint at ¶ 54]. Noone’s response to Wellpath’s Motion suggests that he seeks to assert
a protected class of inmates with disabilities or serious mental illness. [See Dkt. 38 at 11].
Regardless, Noone has failed to identify any facts demonstrating he was treated differently than
inmates not diagnosed with serious mental illness. The only allegations in the Complaint that
could relate to disparate treatment are Noone’s claims that another inmate spoke with Medic 5
before him. However, Noone does not allege that this inmate was able to see a clinician before
him due to some impermissible consideration. In fact, the Complaint suggests that this inmate, a
convicted felon housed alongside Noone in the STP Unit for inmates with serious mental
illnesses, saw Medic 5 before Noone simply because he requested to speak with a clinician
before Noone did. [See Complaint at ¶ 14]. Noone’s Complaint is devoid of facts supporting
any element of a Fourteenth Amendment claim. Accordingly, the Court grants the DOC
Defendants and Wellpath’s Motions to Dismiss as to Count II.
B. Americans with Disabilities Act
Noone brings an ADA claim against all of the defendants. 6 [Complaint at ¶ 57]. Noone
specifically alleges that Gray and Wellpath violated the ADA by “concealing the acts and
omissions of its staff” and by failing to remedy systematic deficiencies in the delivery of health
services. [Id. at ¶¶ 59, 62]. Title II of the ADA prohibits discrimination against persons with

6

See supra note 3.

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disabilities by “public entities,” and it is this provision that the Court uses to evaluate Count III.
See Dkt. 5.
Title II provides that “no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the services, programs,
or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C.
§ 12132; see Parker v. Universidad de P.R., 225 F.3d 1, 5 (1st Cir. 2000). To state a claim under
Title II, a plaintiff must allege “(1) that he is a qualified individual with a disability; (2) that he
was either excluded from participation in or denied the benefits of some public entity’s services,
programs, or activities or was otherwise discriminated against; and (3) that such exclusion,
denial of benefits, or discrimination was by reason of the plaintiff's disability.” 7 Parker, 225
F.3d at 5.
Noone provides only the most cursory allegations in support of Count III. He states
that “Plaintiff has a disability as described in th[e] ADA definition.” [Complaint at ¶ 56]. The
Court presumes he refers to his “serious mental illness” diagnosis. [See id. at ¶ 1]. Even if this
vague reference were sufficient to establish that Noone is a qualified individual with a disability,
Noone has failed to provide facts demonstrating that he did not receive adequate medical care
based on that diagnosis. The delay Noone experienced after he requested to speak with a mental
health clinician is not suggestive of exclusion or a denial of benefits, nor does Noone provide
any facts suggesting this delay was by reason of his mental health diagnosis. The ADA does not
provide relief to individuals simply because they believe their care was inadequate. Moreover,

Wellpath argues that, as a private contractor, it is not a “public entity” under Title II and, regardless, Noone has
failed to allege facts sufficient to state a plausible claim for relief. The First Circuit has yet to decide whether
private contractors are public entities subject to Title II, though some courts in this Circuit have determined that they
are not. See, e.g., Sosa v. Mass. Dep’t of Corr., No. 18-cv-12223-NMG, 2019 WL 3557701, at *3 (D. Mass. 2019).
The Court need not address this issue here, as Noone has otherwise failed to state a plausible ADA claim against all
of the defendants.
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Noone’s generalized statements that Wellpath and Gray have failed to remedy systematic
deficiencies in “staffing, facilities, equipment, and procedures” in the areas of “mental health
evaluations,” “treatment planning,” “medication planning,” and “mental health treatment on
crisis watch” are also insufficient to state a plausible claim to relief under the ADA. Beyond
these conclusory allegations, there are no facts to suggest that Wellpath and Gray excluded or
denied benefits to Noone because of his mental health diagnosis, and Noone does not cite any
specific examples or instances of discrimination connected to these deficiencies. Noone also
fails to identify any acts of discrimination related to any of the defendants other than the alleged
deficiencies of Gray and Wellpath described above. See Ocasio-Hernández, 640 F.3d at 12
(explaining that the factual allegations must allow for a “reasonable inference that the defendant
is liable for the misconduct alleged”); Peñalbert-Rosa, 631 F.3d at 594-95.
For these reasons, the Court grants the DOC Defendants and Wellpath’s Motions to
Dismiss as to Count III.
C. Intentional Infliction of Emotional Distress
Noone alleges Carpenter, Shosey, Parady, Charleston, Wellpath, and Gray 8 intentionally
inflicted emotional distress. 9 [Complaint at ¶ 63]. In particular, Noone claims that the use of
excessive force, deliberate indifference to medical needs, and the failure to remedy systematic
deficiencies in the delivery of medical services caused him emotional distress. [Id.]. To state a
Massachusetts law claim for intentional infliction of emotional distress, a plaintiff must show
that (1) the actor “intended to inflict emotional distress” or “knew or should have known” that
emotional distress would result from the conduct; (2) the conduct was “extreme and outrageous,”

See supra note 3.
The Court reads Count IV as a claim for intentional, not negligent, infliction of emotional distress, given Noone’s
use of “deliberate and intentional” in his description of the claim. [See Complaint at ¶ 63].

8
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“beyond all possible bounds of decency,” and “utterly intolerable in a civilized community”; (3)
the defendant’s actions caused the plaintiff’s distress; and (4) the plaintiff’s emotional distress
was “severe” such that no reasonable person could be expected to endure it. Doyle v. Hasbro,
Inc., 103 F.3d 186, 195 (1st Cir. 1996) (citing Agis v. Howard Johnson Co., 355 N.E.2d 315,
318-19 (Mass. 1976)).
Noone has not alleged any facts suggesting that the defendants intended to inflict
emotional distress when responding to his suicide attempt, nor that their conduct amounts to
“extreme and outrageous behavior beyond all bounds of decency” that is “utterly intolerable in a
civilized community.” Id. (citations and internal quotation marks omitted) (“Recovery on such a
claim requires more than that the defendant has acted with an intent which is tortious or even
criminal, or that he has intended to inflict emotional distress, or even that his conduct has been
characterized by malice or a degree of aggravation which would entitle the plaintiff to punitive
damages for another tort.”). Moreover, beyond the conclusory statement that the defendants’
actions caused Noone “uncertainty, apprehension, fear, anguish, anxiety, and traumatic mental
and emotional suffering” [Complaint at ¶ 63], Noone fails to provide sufficient facts suggesting
the “requisite level of severity” of emotional distress “that no reasonable [person] could be
expected to endure,” Boyle v. Barnstable Police Dep’t, 818 F. Supp. 2d 284, 310 (D. Mass.
2011). Emotional responses, such as “anger, sadness, anxiety, and distress” are “often not
legally compensable” even if “blameworthy.” Id. (citations omitted). The generalized
allegations in the Complaint simply do not meet the “very high” standard for making a claim of
intentional infliction of emotional distress. Id. Therefore, the Court grants the DOC Defendants
and Wellpath’s Motions to Dismiss as to Count IV.

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IV.

Conclusion
For the foregoing reasons, Wellpath’s Motion to Dismiss [Dkt. 24] is GRANTED, and

the DOC Defendants’ Motion to Dismiss [Dkt. 41] is GRANTED IN PART and DENIED IN
PART. All counts are dismissed as to Wellpath and the DOC Defendants, with the exception of
Noone’s Eighth Amendment claim, brought pursuant to 42 U.S.C. § 1983, against Carpenter,
Shosey, Kinzer, Parady, and Charleston for their alleged use of excessive force.

Dated: May 9, 2022

/s/ Angel Kelley
Hon. Angel Kelley
United States District Judge

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