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Silvestri v. Smith

United States District Court, D. Massachusetts

April 17, 2015

MARK SILVESTRI, Plaintiff,
v.
JAMES SMITH, et al., Defendants.

MEMORANDUM AND ORDER ON MOTION TO AMEND

F. DENNIS SAYLOR, IV, District Judge.

This action arises out of two alleged attacks on a prisoner by corrections officers at the Plymouth County Correctional Facility ("PCCF") in Plymouth, Massachusetts. Plaintiff Mark Silvestri has brought claims for relief under both 42 U.S.C. § 1983 and state tort law. The complaint alleges that defendants, all corrections officers or their supervisors, either participated in or enabled two separate physical attacks against him in July 2011 while he was in pretrial detention at PCCF. He further alleges that the attacks were motivated by an illegitimate purpose-specifically, defendants' friendship or acquaintance with a police detective that Silvestri had accused of acting corruptly.

On January 12, 2015, plaintiff-who had recently obtained counsel after initially filing pro se -moved to file a second amended complaint. Defendants oppose the proposed second amended complaint in part, as they contend that Counts 1, 5, 7 through 10, and 12 do not state a claim upon which relief can be granted and thus amendment of the complaint as to those counts would be futile. They also contend that Count 11, which alleges intentional infliction of emotional distress as to all defendants, likewise does not state a claim upon which relief can be granted as to defendant Briggs and therefore amendment would be futile.

For the reasons stated below, plaintiff's motion to amend the complaint will be granted in part and denied in part.

I. Background

A. Factual Background

Unless otherwise stated, the following facts are presented as stated in the proposed second amended complaint.[1]

On or about March 4, 2010, Mark Silvestri became involved in an argument with Elizabeth Delaney, his girlfriend at the time. (Proposed 2d Am. Compl. ¶ 17). Following the argument, Delaney contacted Brockton Police Detective Ernest Bell, whom Delaney knew personally. ( Id. ¶ 18). After inviting Delaney to his house, Detective Bell convinced her to seek an emergency restraining order against Silvestri based (according to the complaint) upon false allegations that he had threatened and physically assaulted her. ( Id. ¶¶ 18-19). On March 5, 2010, Delaney filed for such a restraining order; it was granted shortly thereafter, and an arrest warrant for Silvestri was issued. ( Id. ¶ 19).

On March 8, 2010, Delaney recanted her allegations, stating in an affidavit that Silvestri did not assault, threaten, or kidnap her. ( Id. ¶ 20). Delaney also informed Silvestri that Detective Bell had persuaded her to make the false accusations against him. ( Id. ).

Also on March 8, 2010, Silvestri was arraigned in Brockton District Court on charges of kidnapping, assault and battery, assault with a dangerous weapon, intimidation of a witness, and threats. ( Id. ¶ 21). Following his arraignment, Silvestri was detained at PCCF. ( Id. ¶ 22). From March 2010 until January 2011, Silvestri was housed in protective custody at PCCF; in January 2011, he was transferred to the general population. ( Id. ¶ 25).

During his pretrial detention, Silvestri took an active role in investigating the factual circumstances surrounding the pending charges against him, in an effort to prove that the allegations against him had been falsified at Detective Bell's direction. ( Id. ¶ 23). Both inmates and staff at PCCF were aware of Silvestri's ongoing investigative efforts. ( Id. ¶ 24). According to the complaint, because Detective Bell had friends and acquaintances among both the inmates and the staff, Silvestri feared that their knowledge of his investigation could represent a threat to his own safety. ( Id. ¶ 26).

According to the complaint, during the time he was detained at PCCF, Silvestri received verbal threats, including threats of physical violence, from "many" correctional officers. ( Id. ¶ 28). At least some of the threats included references to Detective Bell. ( Id. ).

In March 2011, the court presiding over Silvestri's pending criminal matter ordered the seizure of Delaney's cell phone and the preservation of the cell phone records of both Delaney and Detective Bell for the period from December 1, 2009, through March 1, 2011. ( Id. ). According to the complaint, those records contained text messages between Delaney and Detective Bell, as well as GPS information, that would have proved Detective Bell's involvement in convincing Delaney to make false accusations against Silvestri. ( Id. ).

On July 2, 2011, Silvestri was assaulted while he was sleeping in his cell at PCCF. ( Id. ¶ 30). He does not remember the assault or the identity of his assailant or assailants. ( Id. ). He woke up after the attack with multiple facial injuries, including injuries to both eyes, both cheeks, both sides of his jaw, and his nose. ( Id. ¶ 31). A CT scan at Jordan Hospital, performed on July 2, 2011, revealed that he had suffered multiple facial fractures-including a left maxillary fracture, a medial orbital wall fracture, and an orbital floor fracture-as well as septal deviation. ( Id. ¶ 32). Those injuries caused him severe pain. ( Id. ¶ 33).

After returning to PCCF from the hospital, Silvestri's concern for his safety increased. ( Id. ¶ 34). Fearing a further assault, he attempted to spend as much time as possible in sections of PCCF that were under video surveillance. ( Id. ).

On July 6, 2011, apparently in an effort to "secure video surveillance and a transfer out of his unit, " Silvestri indicated that he planned to go on a hunger strike. ( Id. ¶ 35). As a result, he was informed that he was to be transferred to booking and placed on mental-health watch. ( Id. ).[2]

On July 6, defendant Joseph Briggs, a correctional officer at PCCF, escorted Silvestri to booking. ( Id. ¶¶ 7, 37). Silvestri was handcuffed behind his back and wore ankle restraints. ( Id. ). During the walk, Briggs allegedly told Silvestri that he was friends with Detective Bell, that he knew Silvestri was trying to expose police corruption, and that he was going to make sure Silvestri never made it home. ( Id. ¶ 40). He also allegedly told Silvestri that he was going to "re-break his face." ( Id. ¶ 41).

According to the complaint, while in an area not subject to video surveillance, Briggs suddenly grabbed Silvestri and slammed him to the ground with severe force. ( Id. ¶¶ 38, 42).[3] He then twisted Silvestri's broken nose and smashed his face against the concrete floor several times. ( Id. ¶ 42). The attack lasted several minutes and caused Silvestri extreme pain, in part because it re-aggravated the facial injuries he had suffered four days earlier. ( Id. ¶¶ 43-45). Those injuries were plainly visible at the time of the Briggs attack on July 6, 2011. ( Id. ¶ 45). The Briggs attack exacerbated Silvestri's facial injuries and caused him further disfigurement. ( Id. ¶ 48).

On July 15, 2011, Silvestri underwent surgery at Tufts Medical Center to repair his displaced nasal fracture. ( Id. ¶ 49). The surgery resulted in a tangible improvement in his facial structure. ( Id. ).

According to the complaint, the July 6 attack increased Silvestri's level of fear for his safety, as he feared another attack by Briggs or other officers associated with Detective Bell. ( Id. ¶ 50). On July 16, 2011, he wrote a letter to Brian Gillen, the Superintendent of PCCF, describing the July 6 attack and his concerns and requesting a transfer to a different facility. ( Id. ¶¶ 12, 52).[4] On July 18, 2011, he filed a grievance with PCCF in which he described the July 6 attack. ( Id. ¶ 53). In the same general time period, Silvestri allegedly spoke with Gillen personally, at which time he reiterated his concerns and the transfer request he had made in the letter. ( Id. ¶ 54). Silvestri's attorneys also made several attempts to contact PCCF staff in an effort to secure Silvestri's transfer. ( Id. ¶ 51). Gillen did not transfer Silvestri to a different facility or provide him with any additional protection. ( Id. ¶ 55).

On July 29, 2011, Silvestri was informed by PCCF staff that he would be escorted from his cell to a dental appointment at PCCF. ( Id. ¶ 56). While being escorted to the appointment on that same day, Silvestri was restrained with handcuffed and ankle restraints. ( Id. ¶ 57). After reaching the "bay" (the area without video surveillance), defendants George Kelsch, James Smith, and Patrick Kelly-all correctional officers at PCCF-allegedly ordered Silvestri to sit on a table in the bay. ( Id. ¶¶ 3, ...


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