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Abernathy v. Dewey

United States District Court, D. Massachusetts

July 7, 2016

FRANKLIN ABERNATHY, Plaintiff,
v.
SHAUN DEWEY, et al., Defendants.

          MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION TO AMEND AND DEFENDANTS’ MOTIONS TO DISMISS

          F. Dennis Saylor IV United States District Judge

         This action arises out of an alleged attack on a prisoner by correctional officers at Souza Baranowksi Correctional Center. Plaintiff Franklin Abernathy has brought claims for relief under 42 U.S.C. § 1983, Mass. Gen. Laws ch. 12, § 11I, and state tort law.

         The first amended complaint alleges that defendant Michael Rumery used excessive force in handcuffing Abernathy, and that defendants Gerard Breau and Kyle Sheldon assaulted him by aggressively pulling and twisting his arms through a slot in his cell door, severely injuring him. The complaint further alleges that defendant David Darling, who was the supervisor on duty, joined in the assault; that defendant Shawnn Gyles and an unidentified officer witnessed the assault but failed to intervene; and that defendant Shaun Dewey, a Department of Corrections official, attempted to cover up the incident. It alleges that defendant “Kristal, ” a nurse at UMass Correctional Health (“UMCH”), refused to provide medical treatment to Abernathy. Finally, it asserts a claim for supervisory liability against Thomas Groblewski, D.O., the medical director of UMCH.

         Defendants Sheldon, Dewey, Breau, and Gyles (the “DOC defendants”) have jointly moved to dismiss the complaint for a failure to exhaust administrative remedies as required by the Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a). Defendant Groblewski has moved to dismiss the complaint against him for insufficient service of process under Fed.R.Civ.P. 12(b)(5) and for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Plaintiff has opposed those motions and has filed a motion for leave to amend the complaint. For the following reasons, the DOC defendants’ motion to dismiss will be denied; Dr. Groblewski’s motion to dismiss will be denied without prejudice; and plaintiff’s motion for leave to amend will be granted in part and denied in part.

         I. Factual Background

         The facts are set forth as described in the proposed second amended complaint (“SAC”).

         On April 3, 2013, Franklin Abernathy was an inmate at Souza Baranowski Correctional Center. He was assigned to a cell in the Special Management Unit (“SMU”) with inmate Leon Shelby. (SAC ¶¶ 16-17). Kyle Sheldon, Gerard Breau, and Michael Rumery were correctional officers at SBCC assigned to Abernathy’s cell block. (Id. ¶¶ 7-9).

         On the morning of April 3, Rumery and “Kristal, ” a nurse employed by UMass Correctional Health, came to Abernathy’s cell to administer medication. (Id. ¶ 23).[1] The complaint alleges that Shelby had placed a blanket over the window of the cell door; when Rumery ordered Shelby to remove it, he refused. (Id. ¶ 24). Rumery then instructed Abernathy to remove the blanket, but he refused because the blanket belonged to Shelby. (Id. ¶ 25). According to the complaint, Rumery “told [Abernathy] that if he [did] not remove the blanket from the window, [Abernathy would] not be getting [his] medication.” (Id. ¶ 26). The complaint alleges that when Abernathy asked for his medicine, Rumery said, “Fuck him!” He then “slammed” the cell door slot closed, and told nurse Kristal not to give Abernathy his medicine that day. (Id. ¶ 26). The lack of medication caused Abernathy to suffer “severe excruciating chest pains and left shoulder and arm pain.” (Id. ¶ 27).

         Eventually, Shelby removed the blanket from the door. Later, as Gerard Breau was making his rounds on the tier, Abernathy “informed Breau that he was having severe chest pains and needed to see someone immediately.” (Id.). Breau denied the request and told him, “You get nothing!” (Id.).

         At about 11:30 a.m. the same day, an argument began between Shelby and Kyle Sheldon over a food tray. (Id. ¶¶ 28-31). Shortly thereafter, while Sheldon and Breau were collecting trays after lunch, Shelby threw a cup of water in Sheldon’s face. (Id. ¶ 32). Sheldon and Breau immediately left the tier, and returned with Rumery. (Id. ¶ 33). The three officers ordered Shelby to come to the cell door to be handcuffed, but he refused to do so. (Id. ¶ 33-36). The officers left again, and then returned once more with Shawnn Gyles and an unidentified correctional officer. (Id. ¶ 39).

         The five officers then handcuffed Shelby through the cell door slot without incident. (Id. ¶ 39). They informed Abernathy that he, too, needed to be handcuffed prior to opening the cell door. (Id.). The complaint alleges that when Abernathy complied, “Rumery in an aggressive manner grab[bed] and took hold of [his] right hand and slammed the handcuffs on [his]wrist with such force that the handcuff[s] [stabbed] through [his] skin” causing bleeding and pain. (Id. ¶ 41). According to the complaint, Breau and Sheldon then grabbed Abernathy’s arms and began twisting and pulling them, causing scratches and bruising. (Id. ¶ 42-44). “As [Abernathy] cried out in pain, Rumery, Breau, and Sheldon continued to laugh and encourag[ed] each other to pull harder and apply more force.” (Id. ¶ 46).

         The complaint alleges that David Darling, the supervisor for the section of the SMU where Abernathy was held, ran to the cell and started twisting Abernathy’s thumb and index finger, causing Rumery, Breau, and Sheldon to apply even more force. (Id. ¶ 49). It further alleges that defendants Gyles and “John Doe” merely “looked on” while the assault was occurring, and did nothing to intervene or stop the attack. (Id. ¶ 47). Eventually, the officers stopped the assault when Shelby slipped his handcuffs in front of his body, grabbed a pen, and began stabbing at the officers’ hands while they were pulling Abernathy’s hands through the cell door slot. (Id. ¶ 51).

         Abernathy and Shelby were placed in separate holding cells. (Id. ¶ 56). Abernathy was then removed from the cell and surrounded by Shaun Dewey (a DOC Captain assigned to the SMU), Darling, and Rumery. (Id. ¶ 57). According to the complaint, Dewey “told [Abernathy] in a threaten[ing] manner [to] ‘Drop the issue and act like nothing happen[ed], that way we can all live together.” (Id.). It alleges that as a result of Dewey’s statement, Abernathy was scared to say anything about the assault out of fear that he would be assaulted again. (Id.).

         Following the incident, nurse Kristal was called to provide medical treatment for Abernathy’s cuts, bruising, and swelling. (Id. ¶ 66). Kristal, however, refused to treat him, stating “[I] am not touching [him], he will have to wait [for] some other nurse to come and give him his medication and treat him.” (Id. ¶ 67).

         Defendant Thomas Groblewski was the medical director of proposed new defendant UMass Correctional Health, Inc., which provided medical care and treatment to inmates in the custody of the Department of Correction. (Id. ¶¶ 13-14). The second amended complaint alleges that Groblewski hired Kristal, (id. ¶ 15), and that he was responsible for supervising her in the performance of her duties. The complaint further alleges that prior to the date of the assault, UMCH and Groblewski were “aware by numerous grievances and complaints by inmates” that nurses were “denying [ ] adequate medical care and treatment” to inmates who were involved in physical altercations with correctional officers. (Id. ¶ 69). The complaint appears to allege that Groblewski and UMCH “had an unspoken policy regarding nurses at SBCC denying inmates medical care and treatment after inmates [were] assaulted and injured for long periods of time . . . .” (Id. ¶ 70). Specifically, the complaint alleges that it had been reported to Groblewski and UMCH that on “several occasions, ” Kristal “conspired with correctional officers to cover up the incident by denying [ ] adequate medical care and treatment, and not reporting the incident or filing reports.” (Id. ¶ 71).[2]

         The complaint alleges that as a result of the assault, Abernathy suffered “severe ‘black and blue’ bruising on both arms and wrists [scratches], numbness in both arms and wrist, nerve damage, loss [of] feeling, loss of sleep, fear, [and] physical and mental anguish.” (Id. ¶ 74).

         II. Procedural Background

         Plaintiff Abernathy filed the original complaint in this case on February 13, 2015, and an amended complaint on December 16, 2015. The first amended complaint includes eleven counts. Counts One through Five, in substance, assert claims for excessive force and a failure to protect under 42 U.S.C. § 1983 against the correctional officer defendants. Count Six asserts a claim under § 1983 against defendant Rumery only for “intentional interference with prescribed medication.” Count Seven asserts a § 1983 claim against nurse Kristal and Dr. Groblewski for “denial of medical care and treatment” and “failure to supervise.”[3] Count Eight asserts a claim against Dewey, Darling, and Rumery for “conspiracy to violate civil rights, ” also in violation of 42 U.S.C. § 1983. Count Nine asserts a claim against Darling, Rumery, Breau, and Sheldon under the Massachusetts Tort Claims Act, Mass. Gen. Laws ch. 258, § 1 et seq., for assault and battery. Count Ten asserts a claim against all defendants under the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I.[4] Count Eleven asserts a claim against Dewey, Darling, Rumery, Breau, Sheldon, Gyles, and Doe under the MTCA for intentional infliction of emotional distress.[5]

         The DOC defendants have jointly moved to dismiss the complaint for a failure to exhaust administrative remedies as required by the Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a). Defendant Groblewski has moved to dismiss the complaint against him for insufficient service of process under Fed.R.Civ.P. 12(b)(5), for failure to exhaust administrative remedies, and for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Plaintiff has opposed those motions and has also filed a motion for leave to amend the complaint again, together with a proposed Second Amended Complaint.

         III. Plaintiff’s Motion for Leave to Amend the First Amended Complaint

         The proposed Second Amended Complaint would add three new defendants to the existing claims. The proposed SAC also asserts a new cause of action for negligence against all defendants (new Count Twelve), a new cause of action against Gelb, Dewey, Darling, and Rumery for a failure to train and supervise (new Count Fourteen), and includes various additional factual allegations relevant to all claims. For the reasons described below, plaintiff’s motion for leave to add UMass Correctional Health as an additional defendant will be denied; leave to add new defendant Gelb to Count Eight will be denied; leave to add new defendants Gelb and Spencer to Count Fourteen will be granted; leave to add a negligence claim against the existing defendants will be granted; and leave to amend the complaint to add factual allegations will be granted.

         A. Legal Standard

         Fed. R. Civ. P. 15 provides that a party may amend its pleading only under certain circumstances. If the pleading is one to which a responsive pleading is required, a party may amend its pleading as a matter of course within 21 days of the service of the responsive pleading or service of a motion under Fed.R.Civ.P. 12, whichever is earlier. Fed.R.Civ.P. 15(a)(1)(B). After that time, “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). In determining whether to grant a motion to amend, the Court must “examine the totality of the circumstances and [ ] exercise its informed discretion in constructing a balance of pertinent considerations.” Palmer v. Champion Mortg., 465 F.3d 24, 30-31 (1st Cir. 2006) (citing Quaker State Oil Ref. Corp. v. Garrity Oil Co., 884 F.2d 1510, 1517 (1st Cir. 1989)). However, leave to amend may be denied for several reasons, including, among other things, “futility of amendment.” U.S. ex rel. Gagne v. City of Worcester, 565 F.3d 40, 48 (1st Cir. 2009).

         When considering an opposition to a motion to amend on the grounds of futility, the court must apply the standard applicable to a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Kenney v. State Street Corp., 2011 WL 4344452, at *2 (D. Mass. Sept. 15, 2011); Hatch v. Dep’t for Children, Youth & Their Families, 274 F.3d 12, 19 (1st Cir. 2001). Whether a complaint should survive a motion to dismiss depends upon whether the pleading satisfies the “plausibility” standard set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). A claim is plausible on its face if it raises a right to relief beyond a speculative level by pleading enough “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. While the court will generally accept all well-pleaded factual allegations in a complaint as true and draw all reasonable inferences in a plaintiff's favor, id., the court should disregard any “legal conclusion[s] couched as . . . fact” or “[t]hreadbare recitals of the elements of a cause of action.” Ocasio-Hernadez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011) (quoting Iqbal, 556 U.S. at 678).

         A document filed by a pro se party “is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (internal quotation marks omitted); see also Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do justice.”).

         B. Analysis

         1. New Defendants

         The proposed SAC seeks to add three new defendants-UMass Correctional Health, former Souza Baranowski Superintendent Bruce Gelb, and ...


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