United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION TO
AMEND AND DEFENDANTS’ MOTIONS TO DISMISS
Dennis Saylor IV United States District Judge
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.
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.
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.
facts are set forth as described in the proposed second
amended complaint (“SAC”).
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.
morning of April 3, Rumery and “Kristal, ” a
nurse employed by UMass Correctional Health, came to
Abernathy’s cell to administer medication.
(Id. ¶ 23). 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. ¶
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
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.
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).
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).
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.).
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).
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).
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.
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.” 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. Count Eleven
asserts a claim against Dewey, Darling, Rumery, Breau,
Sheldon, Gyles, and Doe under the MTCA for intentional
infliction of emotional distress.
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
Plaintiff’s Motion for Leave to Amend the First
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.
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).
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).
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
proposed SAC seeks to add three new defendants-UMass
Correctional Health, former Souza Baranowski Superintendent
Bruce Gelb, and ...