Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Peixoto v. Russo

United States District Court, D. Massachusetts

December 22, 2016

BRIAN PEIXOTO, Plaintiff,
v.
LOIS A. RUSSO, et al., Defendants.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge

         I. Introduction

         Plaintiff Brian Peixoto (“Peixoto”) brings this lawsuit against Lois A. Russo (“Russo”), the superintendent of the Massachusetts Correctional Institution in Concord, Massachusetts (“MCI-Concord”);[1] 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.[2] 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.

         II. Standard of Review

         To 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)).

         Furthermore, 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).

         III. Factual Background

         The 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.

         Peixoto 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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 at 18.

         IV. Procedural History

         Peixoto 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.

         V. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.