United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge
Brian Peixoto (“Peixoto”) brings this lawsuit
against Lois A. Russo (“Russo”), the
superintendent of the Massachusetts Correctional Institution
in Concord, Massachusetts
(“MCI-Concord”); Mark Smith (“Smith”),
the inner parameter security sergeant at MCI-Concord; and
Marcelo Silva (“Silva”), the institutional
grievance coordinator at MCI-Concord (collectively, the
“Defendants”). D. 1 ¶¶ 2-5. Peixoto
brings claims under 42 U.S.C. § 1983 (“§
1983”), the Massachusetts Civil Rights Act, Mass. Gen.
L. c. 12, § 11I (“MCRA”) and Mass. Gen. L.
c. 265, § 37 by the Defendants in their individual and
official capacities. D. 1 ¶¶ 1,
72-80. Pursuant to Fed.R.Civ.P. 12(b)(6), the
Defendants have moved to dismiss all claims. D. 14. For the
reasons set forth below, the Court ALLOWS IN PART and DENIES
IN PART the Defendants' motion.
Standard of Review
survive a motion to dismiss, a complaint must contain
sufficient facts to “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). In determining
whether a plaintiff has met this burden, the Court must first
“isolate and ignore statements in the complaint that
simply offer legal labels and conclusions or merely rehash
cause-of-action elements.” Schatz v. Republican
State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012).
Then the Court must “take the complaint's well-pled
(i.e., non-conclusory, non-speculative) facts as true,
drawing all reasonable inferences in the pleader's favor,
and see if they plausibly narrate a claim for relief.”
Id. at 55 (emphasis omitted). Ultimately, in
determining whether the complaint “crosses the
plausibility threshold, ” the Court must draw on its
“judicial experience and common sense.”
García-Catalán v. United States, 734
F.3d 100, 103 (1st Cir. 2013) (internal quotation mark and
citation omitted). Because this is a context-specific
inquiry, the allegations within the complaint need not have
“a high degree of factual specificity.”
Id. (quoting Grajales v. P.R. Ports Auth.,
682 F.3d 40, 47 (1st Cir. 2012)).
in deciding a motion to dismiss, the Court may consider
documents that are “attached to or fairly incorporated
into the complaint, ” Schatz, 669 F.3d at 55
(internal quotation marks and citation omitted), as well as
“documents central to [the] plaintiff[‘s]
claim[s], ” “the authenticity of which are not
disputed by the parties, ” Rivera v. Centro
Médico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir.
2009) (internal quotation mark and citation omitted).
following is based upon the allegations set forth in
Peixoto's complaint, D. 1, which the Court must accept as
true for the purpose of considering Defendants' motion to
dismiss, D. 14.
is a prisoner under the care and custody of the Massachusetts
Department of Correction (“DOC”) and is currently
incarcerated at MCI-Concord. D. 1 ¶ 2. On May 8, 2014,
after undergoing an extensive screening process, id.
¶¶ 9-12, Peixoto was accepted into the National
Education for Assistance Dogs Services Prison PUP Program
(“NEADS Program”), id. ¶¶ 6,
13, a rehabilitative program in which fifteen DOC inmates are
entrusted with raising, caring for and training service dogs
to be placed with disabled individuals, id.
¶¶ 6 n.2, 7. Inmates who participate in the program
are given certain privileges not available through other DOC
programs: (1) housing in a “smaller, quieter, less
restrictive program unit”; (2) residence in “the
only single cells in the facility”; (3) the ability to
remain outside of their prison cells for up to five
additional hours a day; (4) ten days a month of
“good-time” (for inmates with eligible
sentences); and (5) ten dollars a week in compensation.
Id. ¶ 8. Through the NEADS Program, Peixoto
successful trained three dogs who were placed with disabled
individuals and, due to his performance in the program, was
promoted to the position of “Primary Dog
Handler.” Id. ¶¶ 14, 43, 48-49.
August 25, 2015, Peixoto was contacted by Gus Garcia-Roberts
(“Garcia-Roberts”), a reporter who was interested
in writing a feature story for Boston Magazine about
Peixoto's alleged wrongful criminal conviction.
Id. ¶ 15. Peixoto agreed to be interviewed by
Garcia-Roberts for the feature story. Id. On
November 3, 2015, the DOC Central Office granted
Garcia-Roberts's request for permission to enter
MCI-Concord on November 16, 2015 to interview Peixoto.
Id. ¶ 20. On November 6, 2015, in anticipation
of the upcoming interview, Garcia-Roberts began conducting
preliminary phone interviews with Peixoto. Id.
¶ 21. These conversations were recorded by the
MCI-Concord phone system. Id.
November 10, 2015, after normal business hours, Smith called
Peixoto into the inner parameter security office and then led
him to an isolated room where he proceeded to question
Peixoto regarding his upcoming media interview. Id.
¶¶ 22-24. Uncomfortable with Smith's line of
questioning, Peixoto informed Smith that he was determined to
participate in the interview and that any further questions
regarding the interview should be addressed to his attorney.
Id. ¶ 25. Angered by Peixoto's response,
Smith warned him that participating in the interview would
put his position in the NEADS Program “at risk.”
Id. ¶ 26.
November 12, 2015, Russo revoked Garcia-Roberts's
permission to conduct the interview with Peixoto on November
16, 2015. Id. ¶ 30. In response, Garcia-Roberts
immediately contacted the DOC Central Office to report
Russo's cancellation of the interview and, the next day,
the DOC Central Office overruled the cancellation.
Id. ¶¶ 31-32. The same day as the MDOC
Central Office's ruling, Russo revoked Peixoto's
permission-which he had been given long before-to keep and
play his guitar in his cell to practice for religious service
performances. Id. ¶¶ 33-34. Pursuant to
Russo's orders, the property sergeant confiscated
Peixoto's guitar. Id. ¶ 35.
November 16, 2015, Garcia-Roberts, accompanied by a
photographer for Boston Magazine, interviewed and
photographed Peixoto. Id. ¶¶ 38-40. On
February 8, 2016, Boston Magazine published a feature article
about Peixoto's alleged wrongful criminal conviction, his
romantic relationship with a former DOC employee-who was
caught bringing a cellphone into prison-and the alleged
abuses he suffered while under the care and custody of the
DOC. Id. ¶ 41; D. 15-1.
February 10, 2016, Peixoto completed training the dog he had
been raising for the past fifteen months and the dog was
placed with a disabled child. D. 1 ¶ 42. As such, on
February 22, 2016, the NEADS Program liaison informed Peixoto
that in two days he would be entrusted with a new puppy to
train over the next eighteen to twenty-four months.
Id ¶ 45. A day later, however, the NEADS
Program liaison informed Peixoto that, pursuant to orders
from the DOC's administration, Peixoto had been removed
from the NEADS Program, effective immediately. Id.
¶ 46. Peixoto was thus removed from his single cell in
the NEADS Program unit and placed in a two-man cell in a
larger unit. Id ¶ 47.
March 4, 2016, Peixoto submitted a written appeal of his
removal from the NEADS Program to Russo. Id ¶
57; D. 1-1 at 12-13. Russo never responded to this appeal. D.
1 ¶ 58. On March 18, 2016, Peixoto submitted DOC Inmate
Grievance 87563 to Silva, claiming that Russo's decision
to remove Peixoto from the NEADS Program two weeks after the
publication of the Boston Magazine article was
“arbitrary, retaliatory, and punitive
punishment.” Id ¶ 61; see D. 1-1
at 14-16. On April 5, 2016, Silva denied Peixoto's
grievance, finding that his claim had “no basis in
fact” and that his removal was permissible under a work
assignment policy. D. 1 ¶ 62; see D. 1-1 at 17.
On April 18, 2016, Peixoto appealed Silva's denial of his
grievance to Russo. Id. ¶ 64. On April 20,
2016, Russo denied the appeal. Id. ¶ 65; D 1-1
brought this action against Defendants on July 25, 2016. D.
1. Defendants moved to dismiss for failure to state a claim
for relief on October 5, 2016. D. 14. The Court heard the
parties on the pending motion on December 1, 2016 and took
the matter under advisement. D. 23.