United States District Court, D. Massachusetts
MEMORANDUM AND ORDER RE: DEFENDANTS’ RENEWED MOTION TO DISMISS (DOCKET ENTRY # 33)
MARIANNE B. BOWLER United States Magistrate Judge
This case involves a commitment of plaintiff, an inmate at the Massachusetts Correctional Institution at Cedar Junction (“MCI-Cedar Junction”), to the department disciplinary unit (“DDU”) resulting from a disciplinary infraction. Initially committed to the DDU when he was a pretrial detainee, plaintiff’s status changed to a convicted inmate, thereafter to a pretrial detainee and then again to a convicted prisoner. Plaintiff submits that he was not given an additional hearing when his status changed and when he returned to MCI-Cedar Junction from the Nashua Street Jail in June 2013 and in April 2014.
Pending before this court is a converted motion for summary judgment filed by defendants Luis Spencer, Thomas Dickhaut, James Saba, Carol Lawton and Denise McDonough (“defendants”) to dismiss counts II and VIII from a complaint filed by plaintiff James Jacks (“plaintiff”). (Docket Entry # 33). Plaintiff did not file an opposition to the motion. Count II alleges a violation of plaintiff’s right to be free from cruel and unusual punishment secured by the Eighth Amendment of the United States Constitution and Count VIII alleges a violation of 103 C.M.R. 430 et seq. based on the failure to afford plaintiff the foregoing hearings.
On September 30, 2015, this court denied plaintiff’s motion for summary judgment and allowed defendants’ motion for summary judgment except for counts II and VIII, which both plaintiff and defendants failed to address in their memorandums. (Docket Entry ## 16 & 22). On December 12, 2015, defendants filed the motion to dismiss and a supporting memorandum addressing the remaining claims in counts II and VIII. (Docket Entry ## 33 & 34). On March 16, 2016, this court advised the parties it converted the motion to dismiss into a motion for summary judgment and gave them a reasonable opportunity to provide additional material. See Fed.R.Civ.P. 12(d). Plaintiff did not provide any materials and, as noted above, did not file an opposition to the motion.
STANDARD OF REVIEW
Summary judgment is designed to “‘pierce the boilerplate of the pleadings and assay the parties’ proof in order to determine whether trial is actually required.’” Tobin v. Federal Express Corp., 775 F.3d 448, 450 (1st Cir. 2014) (quoting Wynne v. Tufts University School of Medicine, 976 F.2d 791, 794 (1st Cir. 1992)). It is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). It is inappropriate “if the record is sufficiently open-ended to permit a rational factfinder to resolve a material factual dispute in favor of either side.” Pierce v. Cotuit Fire District, 741 F.3d 295, 301 (1st Cir. 2014); see also Ruiz-Rosa v. Rullan, 485 F.3d 150, 155 (1st Cir. 2007) (applying same legal standard applied by district court when reviewing summary judgment ruling).
“Genuine issues of fact are those that a factfinder could resolve in favor of the nonmovant, while material facts are those whose ‘existence or nonexistence has the potential to change the outcome of the suit.’” Green Mountain Realty Corp. v. Leonard, 750 f.3d 30, 38 (1st Cir. 2014) (quoting Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd’s of London, 673 F.3d 53, 56 (1st Cir. 2011)). The evidence is viewed “in the light most favorable to the non-moving party” and “all reasonable inferences” are drawn in his favor. Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). In reviewing a summary judgment motion, a court may examine “all of the record materials on file, ” id., “including depositions, documents, electronically stored information, affidavits or declarations . . . or other materials.” Fed.R.Civ.P. 56(c)(1); see Ahmed v. Johnson, 752 F.3d at 495. “Unsupported allegations and speculation, ” however, “do not demonstrate either entitlement to summary judgment or the existence of a genuine issue of material fact sufficient to defeat summary judgment.” Rivera-Colon v. Mills, 635 F.3d 9, 12 (1st Cir. 2011); see Serra v. Quantum Servicing, Corp., 747 F.3d 37, 39-40 (1st Cir. 2014) (“allegations of a merely speculative or conclusory nature are rightly disregarded”).
“Affidavits need not be notarized to be cognizable on summary judgment so long as they are made under penalties of perjury in accordance with 28 U.S.C. § 1746.” Uncle Henry’s Inc. v. Plaut Consulting, Inc., 240 F.Supp.2d 63, 69 (D.Me. 2003); see Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit International, Inc., 982 F.2d 686, 689-690 (1st Cir. 1993) (noting that pursuant to 28 U.S.C. § 1746 “an unsworn statement signed under penalty of perjury may be used, in lieu of a sworn statement or affidavit, to support or oppose a motion for summary judgment”). Plaintiff typed his name at the end of a previous memorandum in support of his summary judgment motion underneath a statement verifying the facts as true under the pains and penalties of perjury. (Docket Entry # 16, p. 24). A typed name is not the equivalent of a signature. See generally Becker v. Montgomery, 532 U.S. 757, 764 (2001). Because even accepting the facts in the memorandum as part of the summary judgment record does not alter the decision to allow defendants’ current summary judgment motion, this court will consider the facts in the memorandum as part of the summary judgment record. Speculation, conclusory statements and legal arguments in the memorandum are not part of the summary judgment record.
Finally, because plaintiff did not oppose a specific paragraph or statement in defendants’ statement of undisputed facts (Docket Entry # 34, pp. 1-4), the uncontroverted statements are “deemed admitted.” LR. 56.1; see Cochran v. Quest Software, Inc., 328 F.3d 1, 12 (1stCir. 2003) (plaintiff’s failure to contest date in LR. 56.1 statement of material facts caused date to be admitted on summary judgment); see also Sutliffe v. Epping School Dist., 584 F.3d 314, 321 (1st Cir. 2009) (“pro se status did not relieve” plaintiffs “of their responsibility to comply with procedural rules”). Adhering to this framework, the record sets out the following.
Familiarity with the record is presumed. The facts on summary judgment are set out in the prior memorandum and order. Accordingly, this court briefly summarizes such facts highlighting those that are relevant to the two remaining claims.
On July 25, 2012, plaintiff arrived at MCI-Concord as a pretrial detainee (Number A121074) awaiting trial in Massachusetts Superior Court (Suffolk County) (“Suffolk Superior Court”) on a charge of armed assault with intent to murder, Criminal Action Number 2001-10289 (“CR 2001-10289”). (Docket Entry # 34-1, ¶ 3). While awaiting trial, plaintiff was issued a disciplinary report on November 23, 2012 for an altercation on November 8, 2012 with another inmate (“DR 269361”). (Docket Entry # 34-1, ¶ 4). At a disciplinary hearing on February 20, 2013, plaintiff was found guilty of aggravated assault on DR 269361 and sentenced to 24 months in the DDU with 21 months to be served. (Docket Entry # 34-1, ¶ 5).
Plaintiff began serving the DDU sanction on May 5, 2013, although he was not brought into the DDU at MCI-Cedar Junction until May 8, 2013 due to bed space availability. (Docket Entry # 34-1, ¶ 6). On June 20, 2013, plaintiff was taken to Suffolk Superior Court to stand trial on an unrelated criminal charge, Criminal Action Number 2013-10302 (“CR 2013-10302”). (Docket Entry # 34-1, ¶ 7) (Docket Entry # 1, p. 21). On that same day, plaintiff was remanded ...