United States District Court, D. Massachusetts
EMMETT S. MULDOON, Plaintiff,
DEPARTMENT OF CORRECTION, et al., Defendants.
MEMORANDUM AND ORDER
J. Casper United States District Judge
Emmett Muldoon (“Muldoon”) filed this lawsuit
against Defendants Department of Correction
(“MDOC”), Carol Higgins O'Brien (also spelled
as Higgins-O'Brien in some pleadings), Sean Medeiros,
Barbara Baker and William Mongelli (collectively the
“Defendants”), alleging violations under the
First Amendment, the Fourth Amendment, the Fourteenth
Amendment, Articles IX and XIV of the Massachusetts
Declaration of Rights, 42 U.S.C. § 1983 (“§
1983”), Mass. Gen. L. c. 12, § 11I, Mass. Gen. L.
c. 127 §§ 32, 87, Mass. Gen. L. c. 214 § 1B
and Health Insurance Portability and Accounting Act
(“HIPAA”). D. 26-1 at 1-2. Defendants moved to
dismiss. D. 40. For the reasons discussed, the Court
ALLOWS in part and DENIES
in part Defendants' motion to dismiss, D. 40.
Standard of Review
Court will grant a motion to dismiss pursuant to Rule
12(b)(6) if the complaint fails to plead sufficient facts
that “state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). The Court “must assume the truth of
all well-plead[ed] facts and give the plaintiff the benefit
of all reasonable inferences therefrom.” Ruiz v.
Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st
Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77
(1st Cir. 1999)). “Exhibits attached to the complaint
are properly considered part of the pleading ‘for all
purposes, ' including Rule 12(b)(6).” Pare v.
Northborough Capital Partners, LLC, 133 F.Supp.3d 334,
336 (D. Mass. 2015) (quoting Trans-Spec Truck Serv., Inc.
v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir.
plaintiff files a complaint pro se, the Court
applies a liberal reading and holds pro se litigants
to a less stringent pleading standard than that applied to
lawyers. Kruskall v. Sallie Mae Serv., Inc., No.
15-cv-11780, 2016 WL 1056973, at *1 (D. Mass. Mar. 14, 2016)
(citing Green v. Com. of Mass., 108 F.R.D. 217, 218
(D. Mass. 1985)). A pro se plaintiff, however, must
still comply with procedural and substantive law and
“dismissal remains appropriate . . . when the complaint
fails to even suggest an actionable claim.” Overton
v. Torruella, 183 F.Supp.2d 295, 303 (D. Mass. 2001).
is an inmate at NCI-Norfolk. D. 26-1 ¶¶ 2, 7.
Muldoon's complaint centers on three sets of alleged
violations. First, Muldoon asserts that Defendants have
delayed his outgoing legal and non-legal mail. Muldoon states
that on or about May 28, 2014 and on or about June 17, 2014,
he attempted to mail legal documents without stamps to the
Dedham Superior Court and the Norfolk County District
Attorney, but that these documents were improperly returned
to him. Id. ¶¶ 9-10. Muldoon further
alleges that on or about December 24, 2014, he attempted to
mail a non- legal letter without stamps, but that this letter
was not mailed and instead returned to him. Id.
¶ 16. Muldoon also contends that he attempted to mail
legal documents to the Dedham Superior Court and Norfolk
County District Attorney without stamps on or about January
15, 2015, but that these documents were returned to him.
Id. ¶ 20. Each time mail was returned to
Muldoon, it was accompanied by forms that stated that Muldoon
was not considered indigent. Id. ¶¶ 9-10,
16, 20; D. 26-2 at 8-10, 19-21, 38-40. In response to these
delays in getting his legal and non-legal mail delivered,
Muldoon filed formal grievances, D. 26-1 ¶¶ 11,
17-19, 24, and spoke with MDOC officials Sean Medeiros
(“Medeiros”) and Barbara Baker
(“Baker”) regarding these incidents, id.
¶¶ 12, 17, 21-23.
also pleads facts related to incidents centered on the
opening and inspecting of his incoming mail. Muldoon first
asserts that DOC officials opened medical documents sent by
Lemuel Shattuck Hospital outside of Muldoon's presence in
November 2014. Id. ¶ 15. Muldoon alleges that
similar incidents in which his incoming medical
correspondence was opened outside of his presence occurred in
February 2015, May 2015 and July 2015. Id.
¶¶ 26, 31, 33, 36. Muldoon states that he filed
grievances related to some of these incidents. Id.
¶¶ 27, 29, 32, 34-35.
Muldoon seeks redress for incidents arising from his
interactions with law librarian, William Mongelli
(“Mongelli”). On April 3, 2013, Muldoon alleges
that he requested copies of documents to support a motion to
withdraw his guilty plea which included letters from his
attorney, medical and psychiatric records and documents
related to his social security proceedings. Id.
¶¶ 8, 38. When making his request, Muldoon
explained to Mongelli that he did not want to leave his
documents with an unsupervised inmate clerk, but Mongelli
denied Muldoon's request to be present during the copying
of his documents. Id. ¶ 38. Muldoon's
initial grievance and appeal about this incident were denied.
Id. ¶ 39. As a result, Muldoon did not get his
Rule 30(b) motion copied until February 2014. Id.
instituted this action on November 12, 2015. D. 1. The
Defendants have now filed a motion to dismiss for failure to
state a claim, D. 40.
42 US.C. § 1983 Claims Against MDOC and Individual
Defendants in Their Official Capacities (Counts I, II and
lodge an adequate § 1983 claim, Muldoon must allege that
a “person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . .,
subject[ed], or cause[d] [him] to be subjected, . . . to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws . . . .” 42 U.S.C. §
1983. To do so, Muldoon must demonstrate (1) that the conduct
complained of transpired under the color of state law; and
(2) as a result, he suffered a deprivation of his rights.
Klunder v. Brown Univ., 778 F.3d 24, 30 (1st Cir.
2015) (citing Santiago v. Puerto Rico, 655 F.3d 61,
68 (1st Cir. 2011)).
first contend that Muldoon fails to state a claim under his
multiple § 1983 claims as to MDOC because a state agency
does not qualify as a “person” under this
statute. D. 42 at 10. States and their agencies are not
subject to § 1983 liability because these entities are
not “person[s]” under this statute. See Will
v. Mich. Dep't of State Police, 491 U.S. 58, 71
(1989); McNeil v. Massachusetts, No.
14-cv-14370-DJC, 2014 WL 7404561, at *3 (D. Mass. Dec. 30,
2014) (citing Will, 491 U.S. at 66). MDOC is an
agency of the Commonwealth, Sepulveda v. UMass Corr.
Health, Care, No. 14-cv-12776-ADB, 2016 WL 475168, at
*15 (D. Mass. Feb. 5, 2016), and thus is not subject to
§ 1983 liability for this reason. To the extent that any
of Muldoon's § 1983 claims in Counts I, II and III
are brought against MDOC, the Court grants dismissal.
next contend that the individual defendants who have been
sued in their official capacities are not
“persons” pursuant to § 1983, and claims for
monetary damages against these individuals should be
dismissed. D. 42 at 10. Muldoon's prayer for relief seeks
compensatory and punitive damages against Carol Higgins
O'Brien (“Higgins O'Brien”), Medeiros and
Baker in their official capacities in Counts I, II and III
under § 1983. D. 26-1 at 18. Claims for damages against
defendants in their official capacity are not cognizable
under § 1983 because these defendants are not
“persons” under the statute. Will, 491
U.S. at 71 & n.10; Greene v. Cabral, No.
12-cv-11685-DPW, 2015 WL 4270173, at *4 n.2 (D. Mass. July
13, 2015) (citing Will, 491 U.S. at 71);
McNeil, 2014 WL 7404561, at *3 (citing
Will, 491 U.S. at 65-66); Villanueva v. Franklin
Cty. Sheriff's Office, 849 F.Supp.2d 186, 190 (D.
Mass. 2012) (citing Will, 491 U.S. at 71;
Johnson v. Rodriguez, 943 F.2d 104, 108 (1st Cir.
1991)). As to defendants in their official capacity, the
Court grants dismissal with respect to Muldoon's §
1983 claims for monetary damages.
however, also asserts claims for injunctive relief against
defendants in their official capacity such that these
defendants. D. 26-1 at 19-20; see also D. 55 at 2-3
(explaining that Muldoon sought injunctive relief against
Higgins O'Brien, Medeiros and Baker). While a plaintiff
cannot bring a § 1983 claim for damages against a state
official in their official capacity, see supra, a
plaintiff is allowed to seek injunctive relief against these
same officials pursuant to § 1983. See O'Neil v.
Baker, 210 F.3d 41, 47 (1st Cir. 2000) (citing Erwin
Chemerinsky, Federal Jurisdiction §
7.5, at 389 (2d ed. 1994)); Greene, 2015 WL 4270173,
at *4 n.2 (citing Will, 491 U.S. at 71 n.10).
the Court dismisses Counts I, II and III against MDOC in full
and dismisses Counts I, II and III against the individual
defendants in their official capacity as to Muldoon's
prayer for relief for damages. The § 1983 claims raised
in Counts I and III that remain are (1) those claims against
Higgins O'Brien, Medeiros and Baker in their personal
capacities and (2) claims for injunctive relief against
Higgins O'Brien, Medeiros and Baker in their official
capacities. The § 1983 claims in Count II that remain
are (1) those claims against Higgins O'Brien, Medeiros,
Baker and Mongelli in their personal capacities and (2)
claims for injunctive relief against Higgins O'Brien,
Medeiros and Baker in their official capacities.
MCRA Claims Against MDOC and Individual Defendants
(Counts I, III)
Counts I and III, Muldoon asserts state civil rights claims
under Mass. Gen. L. c. 12, § 11I, the Massachusetts
Civil Rights Act (“MCRA”). D. 26-1 ¶¶
42-47, 51-54; see McClure v. Town of E. Brookfield,
No. 972004B, 1999 WL 1323628, at *2 (Mass. Super. Mar. 11,
1999). “To establish a claim under the [MCRA], the
plaintiffs must prove that (1) their exercise or enjoyment of
rights secured by the Constitution or laws of either the
United States or of the Commonwealth, (2) have been
interfered with, or attempted to be interfered with, and (3)
that the interference or attempted interference was by
threats, intimidation or coercion.” Do Corp. v.
Town of Stoughton, No. 13-cv-11726-DJC, 2013 WL 6383035,
at *12 (D. Mass. Dec. 6, 2013) (quoting Swanset Dev.
Corp. v. City of Taunton, 423 Mass. 390, 395 (1996))
(alteration in original).
assert that these counts should be dismissed as to MDOC and
the defendants in their official capacity because the MCRA
does not provide for claims against either state agencies or
individuals sued in their official capacity. D. 42 at 10-11.
First, Muldoon cannot raise an MCRA claim against MDOC.
Neither the state nor its agencies are considered
“persons” within the meaning of the MCRA.
Latimore v. Suffolk Cty. House of Corrs., No.
14-cv-13378-MBB, 2015 WL 7737327, at *6 (D. Mass. Dec. 1,
2015) (citing Maraj v. Massachusetts, 836 F.Supp.2d
17, 30 (D. Mass. 2011)); Greene, 2015 WL 4270173, at
*10 (citing Kelley v. LaForce, 288 F.3d 1, 11 n.9
(1st Cir. 2002)). MDOC is part of the Commonwealth,
Sepulveda, 2016 WL 475168, at *15, and is not a
“person” within the meaning of the MCRA. Muldoon
also cannot maintain an MCRA cause of action against Higgins
O'Brien, Medeiros and Baker in their official capacities,
D. 26-1 at 18, because these defendants do not qualify as
“persons” under the MCRA. Greene, 2015
WL 4270173, at *10 (citing Kelley, 288 at 11 n.9).
The Court dismisses these claims.
extent that Muldoon can otherwise assert MCRA claims against
Higgins O'Brien, Medeiros, Baker and Mongelli in their
personal capacities, those claims fail too. As discussed
above, under the MCRA, “[a]n interference with a
secured right is only a violation of the Act if it is
accomplished through threats, intimidation, or
coercion.” Kennie v. Nat. Res. Dep't of
Dennis, 451 Mass. 754, 763 (2008) (citing Freeman v.
Planning Bd. of W. Boylston, 419 Mass. 548, 565-66,
cert. denied, 516 U.S. 931 (1995)). Pleading a legal
violation alone does not by itself provide the necessary
allegations to show that this violation occurred via threats,
intimidation or coercion. Barbosa v. Conlon, 962
F.Supp.2d 316, 331-32 (D. Mass. 2013) (collecting cases).
“A threat is ‘the intentional exertion of
pressure to make another fearful or apprehensive of injury or
harm.'” Ayasli v. Armstrong, 56
Mass.App.Ct. 740, 750 (2002) (quoting Planned Parenthood
League of Mass., Inc. v. Blake, 417 Mass. 467, 474,
cert. denied, 513 U.S. 868 (1994)). Intimidation
equates to putting someone “in fear for the purpose of
compelling or deterring” his or her conduct.
Id. “[C]oercion is ‘the application . .
. of such force, either physical or moral, as to constrain
him to do [something] against his will . . . .'”
Id. at 750-51 (quoting Deas v. Dempsey, 403
Mass. 468, 471 (1988)). Moreover, the requisite threats,
intimidation and coercion need to be separate from the
alleged constitutional violation. Parks v. Town of
Leicester, No. 10-cv-30120-FDS, 2011 WL 864823, at *5
(D. Mass. Mar. 9, 2011) (citing Sarvis v. Bos. Safe
Deposit and Trust Co., 47 Mass.App.Ct. 86, 93 (1999)).
has not met the threshold requirements for bringing an MCRA
claim. First, Muldoon does not provide any allegations that
any of the individual defendants used or threatened physical
force, or physically intimidated him. See Blake, 417
Mass. at 475-76 (affirming judgment because defendants
“prevent[ed] others physically from entering, leaving,
or using medical facilities to obtain abortions to which they
were . . . entitled”); Haufler v. Zotos, 446
Mass. 489, 506-07 (2006) (determining that defendant's
conduct that included running toward an individual with a
rake in hand, shouting epithets and forcing a worker
accompanied by a law enforcement officer off of property
constituted threats and intimidation).
also does not allege any coercion cognizable under the MCRA.
First, there are no claims of intimidation or coercion by
Higgins O'Brien. D. 26-1. Second, the complaint provides
only two allegations that arguably are of this nature as to
Baker and Medeiros. Muldoon alleges that when he tried to
discuss his complaints about delays in mailing his legal
documents, Baker “aggressively stated to him;
‘Your [sic] not indigent.” D. 26-1 ¶ 22. In
addition, Muldoon asserts Medeiros told Muldoon that all of
the inmates needed to manage their money better. D. 26-1
¶ 23. “[T]he exception for claims based on
non-physical coercion remains a narrow one.” Meuser
v. Fed. Express Corp., 564 F.3d 507, 519 (1st Cir. 2009)
(quoting Meuser v. Fed. ExpressCorp., 524
F.Supp.2d 142, 148 (D. Mass. 2007)). The statements here do
not rise to ...