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Morales v. Spencer

United States District Court, D. Massachusetts

October 9, 2014

MIGUEL A. MORALES, Plaintiff,
v.
LUIS S. SPENCER, Commissioner, BRUCE GELB, Superintendent, OSVALDO VIDAL, Deputy Superintendent of Operations, STEVE CARRIER, Administrative Captain, and D. LEABMAN, Mailroom Officer, Defendants

Miguel A. Morales, Plaintiff, Pro se, Shirley, MA.

For Luis Spencer, Bruce Gelb, Osvaldo Vidal, Steve Carrier, D. Leabman, Defendants: C. Raye Poole, LEAD ATTORNEY, Department of Correction, Legal Division, Boston, MA.

Page 363

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS

F. Dennis Saylor IV, United States District Judge.

This is a civil rights action under 42 U.S.C. § § 1983 and 1985. Plaintiff Miguel A. Morales, an inmate at Souza-Baranowski Correctional Center, has filed suit against various prison officials, contending that they violated his constitutional rights by confiscating as contraband multiple art books on the ground that the books contained nudity and sexually explicit material.

Defendants have moved to dismiss the complaint for insufficient service of process under Fed.R.Civ.P. 4(m) and 12(b)(5). For the reasons set forth below, the motion will be granted.

I. Background

A. Factual Background

According to the complaint, Morales is an inmate at the Souza-Baranowski Correctional Center in Shirley, Massachusetts. On June 11, 2013, the mailroom officer at that facility delivered to Morales a contraband slip indicating that prison officials had confiscated two books that he had ordered, entitled Fairy Song and the Art of Roca. On June 21, 2013, Morales filed a grievance, contending that he was entitled to possess the books because they are art books and because similar books had been allowed into the facility. That grievance was denied. On July 18, 2013, he appealed the denial, contending that books were educational and, alternatively, that the ban on pornography in prisons should be removed. That appeal was denied.[1]

On August 17, 2013, Morales received a second contraband slip from the mailroom officer, informing him that a book that he had ordered entitled Blasphemy: Art That Offends had been confiscated. Morales wrote to the Deputy Superintendent of Operations, explaining why he believed he should be allowed the book. That request was denied. On September 2, 2013, despite having had his grievance privileges suspended, Morales filed an informal grievance about the confiscation of Blasphemy.

A February 19, 2014 letter from the Superintendent of Souza-Baranowski, Bruce Gelb, states that the books are considered contraband due to " pictures of full and graphic nudity, exposed genitalia, and severe body mutilation" and therefore are not in compliance with the policies of the Department of Correction. (Dkt. No. 15-2).

B. Procedural Background

On September 30, 2013, Morales filed a complaint in this Court, asserting claims under 42 U.S.C. § § 1983 and 1985 for denial of his rights under the First, Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. The complaint named as defendants Luis S. Spencer, Commissioner of the Department of Correction; Bruce Gelb, Superintendent of Souza-Baranowski; Osvaldo Vidal, ...


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