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Facey v. Dickhaut

United States District Court, D. Massachusetts

September 30, 2014


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For Valentino Facey, Plaintiff: Victoria E. Thavaseelan, LEAD ATTORNEY, McDermott, Will & Emery LLP, Boston, MA; Evan D. Panich, Matthew L. Knowles, McDermott Will & Emery, Boston, MA.

For Thomas Dickhaut, Superintendent, Defendant: Joan T. Kennedy, Department of Correction, Boston, MA.

For Anthony Mendonsa, R. Raymond, Defendants: Joan T. Kennedy, Department of Correction, Boston, MA; Richard Elkins Gordon, Jr., Massachusetts Department of Correction, Legal Division, Boston, MA.

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Plaintiff Valentino Facey brought suit under 42 U.S.C. § 1983 against defendants Thomas Dickhaut, Anthony Mendonsa, and Ronald Raymond. All three defendants are or were officials at the Souza-Baranowski Correctional Center (" SBCC" ), operated by the Massachusetts Department of Correction (" DOC" ). At the time of the complaint, Dickhaut was the Superintendent of SBCC, Mendonsa was Deputy Superintendent, and Raymond was the assignment officer who made inmate housing recommendations, subject to Mendonsa's approval. Facey, who is currently serving a life sentence in SBCC for murder, alleges that the three defendants violated his Eighth Amendment right to be free from cruel and unusual punishment when they knowingly placed him in danger by assigning him to a housing unit, known as the H-1 cell block, where he was isolated from his fellow gang members, leading to an injurious attack by members of a rival gang.

On September 25, 2012, the court allowed in part and denied in part the defendants' Motion to Dismiss. See Facey v. Dickhaut, 892 F.Supp.2d 347 (D. Mass. 2012). The court dismissed all claims against the defendants in their official capacities on the grounds of sovereign immunity, and dismissed all claims against Dickhaut because the plaintiff had not adequately alleged that Dickhaut had violated his rights under the Eighth Amendment. The claims against Mendonsa and Raymond in their individual capacities, however, survived the motion to dismiss.

Following the completion of discovery, the remaining defendants moved for summary judgment. The defendants argue that, based on the evidence developed in discovery, there are no genuine disputes of material fact and that they are, therefore, entitled to have the constitutional question summarily decided in their favor. They also argue that, even if there are facts sufficient to support a claim of deliberate indifference in violation of the Eighth Amendment, they are nevertheless shielded by qualified immunity.

The defendants have also filed a Motion to Strike Affidavit in Support of Motion, asking the court to strike Exhibit 11, an article from the Boston Globe, from the plaintiff's opposition to the motion for summary judgment. The defendants argue that because this article is hearsay and would not be admissible at trial, the court

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may not consider it in evaluating the motion for summary judgment.

In addition to his opposition to the motion for summary judgment, the plaintiff has filed a Motion to Strike Portions of the Affidavit of Anthony Mendonsa. The plaintiff contends that Mendonsa's affidavit, which was filed with the defendant's memorandum in support of their motion for summary judgment, contains information about which Mendonsa lacks " personal knowledge" and, therefore, the court should exclude it for failure to satisfy federal Rule of Civil Procedure 56(c)(4), which specifies the kinds of evidence a court may consider in deciding a motion for summary judgment.

The plaintiff also objects to the defendants' use of various prison records, which were not provided in discovery and which were first mentioned in the defendants' reply brief.

For the reasons explained below, the court is allowing the defendants' motion to strike, allowing in part and denying in part the plaintiff's motion to strike, allowing the defendants' assented-to motion for leave to file late, allowing the defendant's motion for leave to file under seal, and denying the defendants' motion for summary judgment.


Facey is an inmate at Souza-Baranowski Correctional Center (" SBCC" ), where he is serving a life sentence without possibility of parole for murder. On April 14, 2011, facey filed a pro se complaint against three defendants in their official and individual capacities. As indicated earlier, they were: Dickhaut, then the Superintendent of SBCC; Mendonsa, then the Deputy Superintendent of SBCC; and Raymond, then a sergeant and Assignment Officer at SBCC. The complaint alleges a single count pursuant to 42 U.S.C. § 1983 for violation of Facey's rights under the Eighth Amendment, stemming from the defendants' alleged failure to protect Facey from severe injuries sustained in an attack by other inmates on June 7, 2010. Facey's complaint seeks damages and other relief.

A. The Motion to Dismiss for Failure to State a Claim

All three defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, raising several arguments. The defendants asserted that the plaintiff's claim should be dismissed because he had failed to exhaust his administrative remedies, as is required by the Prison Litigation Reform Act (" PLRA" ), 42 U.S.C. § 1997e(a). The defendants also argued that the doctrine of sovereign immunity protected them from being sued in their official capacities for damages, that the complaint did not allege sufficient facts to state a claim for relief under the Eighth Amendment, and that they were entitled to qualified immunity.

The court allowed the motion in part and denied the motion in part. See Facey v. Dickhaut, 892 F.Supp.2d 347, 359-60 (D. Mass. 2012). The court first rejected the argument that the case should be dismissed because of any failure by the plaintiff to exhaust his administrative remedies. Although the court agreed that exhaustion of administrative remedies is mandatory under the PLRA, see id. at 352, the court also explained that failure to exhaust is an affirmative defense and that a plaintiff need not plead or demonstrate exhaustion in his complaint. See id. at 354 (citing Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007)). Furthermore, the court stated that even if it could consider Facey's administrative review

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process, " the records are not inconsistent with Facey's claim that he did not receive a response to his initial grievance," which would support his contention that any failure to exhaust would not bar his claim. See id. at 355.[1]

Second, the court found that the sovereign immunity preserved by the Eleventh Amendment protected the defendants from the claims for money damages against them in their official capacities. See id. (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 70-71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)).

Third, the court found that the complaint was sufficient to state a claim against defendants Mendonsa and Raymond, explaining that:

The complaint alleges that " [t]he Defendants" were aware of the feud between the Bloods and the Gangster Disciples, that the plaintiff is a " known member" of the Bloods, that " [a]ll prisoners" are checked for enemy situations before being housed, and that " [t]he Defendants" placed him on the South Side of the facility, where all the Gangster Disciples reside. It further alleges that Mendonsa assigns " all prisoners" to their housing areas, and that Raymond is the Assignment Officer and carries out his orders. Although the plaintiff might have more artfully stated a claim against these officials by alleging that Mendonsa and Raymond assigned him to be housed on the South Side, both of these allegations can be readily inferred from the complaint itself. " [L]iberally construed," the pro se complaint sufficiently alleges that Mendonsa and Raymond knowingly disregarded a substantial risk of serious harm to the plaintiff by housing him in an area with his known enemies.

Facey, 892 F.Supp.2d at 356 (alterations in original) (quoting Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)).

However, the court found that the plaintiff had not adequately stated a claim against Superintendent Dickhaut. Noting that the doctrine of respondeat superior does not apply to alleged constitutional violations, see id. at 357 (citing Sanchez v. Pereira-Castillo, 590 F.3d 31, 49 (1st Cir. 2009)), the court concluded that the complaint's minimal " allegations of [Dickhaut's] knowledge and direct participation [were] too 'threadbare' and 'speculative' to be accorded the presumption of truth, particularly given the absence of any other allegation specifically linking Dickhaut to the events of the case," id. (quoting Penalbert-Rosa v. Fortuno-Burset, 631 F.3d 592, 595 (1st Cir. 2011)). Accordingly, the court dismissed the claims concerning Dickhaut. See id.

Finally, the court rejected the defendants' argument that the complaint should be dismissed because the defendants were shielded by qualified immunity, which " prevents suits against federal and state officials for money damages 'unless (1) the facts alleged or shown by the plaintiff make out a violation of a constitutional right and (2) such right was clearly established at the time of the defendants' alleged violations.'" Id. (quoting Feliciano-Hernández v. Pereira-Castillo, 663 F.3d 527, 532 (1st Cir. 2011)).

The court found that, because the inquiry under the first prong was identical to the inquiry into whether the complaint had stated a claim under the Eighth Amendment, it was satisfied with respect to Mendonsa and Dickhaut. Next, the court concluded that the pleadings were adequate to satisfy the second prong, finding that the

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right the defendants were alleged to have violated was clearly established and that if the alleged facts were proven, " a reasonable defendant would have understood that his conduct violated the [plaintiff's] constitutional rights." Id. at 359 (alteration in original) (quoting Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009)) (internal quotation marks omitted).

In summary, the court dismissed all of the claims against Dickhaut, and dismissed the claims against Mendonsa and Raymond in their official capacities, but not in their individual capacities.

B. The Motion for Summary Judgment

At the outset of the case, the court denied without prejudice the plaintiff's Motion to Appoint Counsel. See June 27, 2013 Memo. & Order at 3. After the completion of discovery, the plaintiff renewed his request. The court allowed the motion and appointed Victoria Thavaseelan, Esq., of McDermott Will & Emery LLP, to serve as Facey's counsel. Defendants filed a motion for summary judgment, which plaintiff opposed, and defendants filed a reply.

On May 23, 2014, the court held a hearing on the defendants' motion for summary judgment, as well as related motions regarding the evidence that the court could consider when deciding whether summary judgment is appropriate. The court then took the motion for summary judgment under advisement. The court also ordered the plaintiff to request any additional discovery concerning the inmate populations on the North and South Sides of SBCC by May 30, 2014, and ordered the defendants to respond to any such request by June 13, 2014. See May 27, 2014 Order. The court subsequently granted the defendants an extension until July 31, 2014, to respond to the plaintiff's discovery request. See June 30, 2014 Order.


Because the motions to strike bear on the evidence that the court may consider in deciding the defendants' motion for summary judgment, it is considering them first. However, because these motions to strike involve the admissibility of evidence concerning matters that occurred after the complaint was filed, the resolution of these motions does not affect the merits of the motion for summary judgment.

A. Legal Standard

Federal Rule of Civil Procedure 56(c) (4) requires that " [a]n affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." In deciding a motion for summary judgment, " a court may take into account any material that would be admissible or usable at trial [but] inadmissible evidence may not be considered." Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993). If evidence cannot be presented in a form that would be admissible at trial, the court may not rely on it. See Fed.R.Civ.P. 56(c)(2); Gorski v. N.H. Dep't of Corr., 290 F.3d 466, 475-76 (1st Cir. 2002); Vazquez v. Lopez-Rosario, 134 F.3d 28, 33 (1st Cir. 1998).

A motion to strike is the appropriate means of objecting to the use of affidavit evidence on a motion for summary judgment. See Casas Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668, 682 (1st Cir. 1994). " The moving party must specify the objectionable portions of the affidavit and the specific grounds for objection. Furthermore, a court will disregard only those portions of an affidavit

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that are inadmissible and consider the rest of it." Id. (citation omitted); see also Perez v. Volvo Car Corp., 247 F.3d 303, 315-16 (1st Cir. 2001).

B. Plaintiff's Motion to Strike

First, the plaintiff has filed a motion to strike several portions from the affidavit of defendant Mendonsa (Defs.' Memo. in Supp. of Mot. for Summ. J. Ex. 1). In particular, the plaintiff objects to the admission of paragraphs 12, 14-15, 17-21, 26, and 31 of that affidavit " on the grounds that the sworn statements in those paragraphs are not based on personal knowledge, do not contain admissible facts, or both." Pl.'s Mot. to Strike ¶ 2.

As Mendonsa states in his affidavit, he retired from the DOC on June 30, 2012. See Mendonsa Aff. ¶ 1. However, at several points in the affidavit, Mendonsa refers to Facey's activities in the Massachusetts correctional system after Mendonsa's retirement. See, e.g., Mendonsa Aff. ¶ 12(5) (noting that Facey received counseling " on May 9, 2013, when he was transferred to lower security to MCI-Shirley" ). For many of these statements, Mendonsa cites prison disciplinary records created after his retirement. For other statements, however, no such citations are provided. Accordingly, the plaintiff argues that Mendonsa lacked personal knowledge of those activities, and that any assertions in Mendonsa's affidavits not based on personal knowledge should be stricken from the record. The plaintiff does not, however, claim the statements at issue are not relevant.

The defendants make two arguments for the admissibility of the statements based on the prison reports. First, they assert that the statements are not hearsay because the reports are not offered for their truth. More specifically, they contend that, " [t]he DDU Hearing Package is not offered to prove that plaintiff engaged in the obstreperous conduct noted therein." Defs.' Mot. in Opp. to Pl.'s Mot. to Strike at 2. Second, they argue that even if the reports contain hearsay, they fall under the business records exception created by Federal Rule of Evidence 803(6).

The relevance of information about Facey's prison history after the June 2010 attack is unclear, largely because the focus of the deliberate indifference standard is what the prison officials knew at the time the inmate was injured. Accordingly, this information does not affect the analysis concerning the alleged constitutional violation.

The defendants do not explain any other purpose to which the prison reports might be put beyond their admission for the truth. They imply that they relate to the prison officials' knowledge and beliefs concerning Facey's behavior as a prisoner, which would bear upon the reasonableness of their decision to place him in the H-1 cell block, where he was attacked.

The documents in dispute appear to be admissible under either Rule 803(6), as business records, or Rule 803(8), as public records. See United States v. Chong, 98 F.Supp.2d 1110, 1118-19) (D. Haw. 1999) (finding that prison disciplinary records fell within ambit of Rule 803(6)); Ellis v. Capps, 500 F.2d 225, 226 n.1 (5th Cir. 1974) (prison records admissible as official records). As the defendants note, " prison administrators, particularly with regard to inmate disciplinary records, are required to maintain such records by state regulation." Defs.' Opp. to Mot. to Strike at 3 (citing 103 Mass. Code Regs. § 430.17(4)).

Motions to strike have been denied even when the declarant did not personally experience the matters discussed in the affidavit, but did review business or public

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records and included information from those records with the affidavit. See, e.g., Bay State Sav. Bank v. Baystate Fin. Servs., L.L.C, 484 F.Supp.2d 205, 2007 WL 6064455, at *9 (D. Mass. 2007) (Saylor, J.) (citing cases) (" Although the affiants In the cases defendant cites were not present when the relevant events occurred, they later learned what had happened and explained the basis for their knowledge. Furthermore, all documents forming the basis of their testimony were attached to their affidavits." ) Here, Mendonsa reviewed the records, which evidently fall within a hearsay exception, and has cited them in his affidavit. Therefore, at least where Mendonsa has cited business/public records -- paragraphs 17, 18, 19, 21, and 26 -- the motion to strike is being denied.

However, the motion is being allowed with respect to paragraphs 12, 14, 15, 20, and 31 of Mendonsa's affidavit. These paragraphs include information of which Mendonsa has not demonstrated personal knowledge, and each lacks any reference to prison reports. The defendants have offered no argument to support their contention that he had personal knowledge of these events.

C. Defendants' Motion to Strike

The defendants have moved to strike Exhibit 11 of the Knowles Affidavit, provided by the plaintiff in opposition to the motion for summary judgment. See Defs.' Mot. to Strike.

Exhibit 11 is a copy of a June 19, 2012 Boston Globe article entitled " Shirley Prison Chief Removed," which states that Mendonsa was removed from his position as SBCC Superintendent on June 8, 2012, and would be officially retiring on June 30, 2012. See Knowles Aff. Ex. 11. The article reports that although the reasons for Mendonsa's retirement were not officially disclosed, unidentified state officials had stated that ...

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