United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON MOTIONS FOR TEMPORARY
RESTRAINING ORDER, PRELIMINARY INJUNCTION, AND TO
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
Jose Rodriguez, proceeding pro se, filed this
lawsuit pursuant to 42 U.S.C. §§ 1983 and 1988
alleging violations of Massachusetts law and the federal
constitution. Rodriguez seeks declaratory and injunctive
relief against the Massachusetts Parole Board (“Parole
Board”) and three groups of defendants: the
“Parole Board defendants, ” who are past or
current Parole Board members (Josh Wall, Cesar Archilla,
Charlene Bonner, Sheila Dupre, Tonomey Coleman, Lucy
Soto-Abbe, and Ina Howard-Hogan); the “DOC defendants,
” who are current employees of the Massachusetts
Department of Corrections (Thomas A. Turco III and Richard
Pizzuto); and the “District Attorney defendants”
(Norfolk County District Attorney Michael Morrissey and
Assistant District Attorney Marguerite Grant).
19, 2016, the Court dismissed all counts against the Parole
Board as a state agency but allowed the counts against the
individual defendants to proceed. [ECF No. 14]. Now before
the Court are three motions: 1) Rodriguez's motion for a
temporary restraining order (TRO) and preliminary injunction
[ECF No. 10], which the Parole Board and District Attorney
defendants oppose [ECF No. 42]; 2) the Parole Board and
District Attorney defendants' motion to dismiss [ECF No.
41], which Rodriguez opposes [ECF No. 52]; and 3) the DOC
defendants' motion to dismiss [ECF No. 55], which
Rodriguez also opposes [ECF No. 66]. For the reasons stated
below, this Court hereby GRANTS the motions to
dismiss submitted by the DOC, Parole Board, and District
Attorney defendants, and DENIES Rodriguez's
motion for a TRO or preliminary injunction.
is a Massachusetts state prisoner serving a life sentence
with the possibility of parole following convictions in the
late 1970's. [ECF No. 20 (hereinafter the
“Complaint”) at ¶¶ 1b, 16]. On July 16,
2013, he had his third parole hearing in front of the Parole
Board. Id. at 18. At that hearing, two of the Parole
Board defendants, Defendant Bonner and Defendant Wall,
allegedly examined Rodriguez's Criminal Offender Record
Information (CORI) report including sealed juvenile records.
Id. at ¶¶ 19-21. ADA Grant, who was
present at the Parole Board hearing, also allegedly provided
CORI and juvenile records to the Parole Board. Id.
at ¶ 1e. The Parole Board, partially relying on this
information, refused to parole Rodriguez. Id. at
¶ 29. The allegations that CORI and juvenile offender
records were relied upon in denying Rodriguez parole form the
basis for the counts in the amended complaint against the
Parole Board defendants, id. at Counts 1-9, 14, 17,
and for some of the counts against the District Attorney
defendants, id. at Counts 14, 16.
also alleges that the DOC defendants have kept him at custody
levels (i.e. minimum, medium, and maximum security) higher
than the one warranted by his situation through the use of a
“Class C Non-Discretionary Override, ” which
overrides his objective classification score. Id. at
¶¶ 38-40; see also 103 Mass. Code Regs.
420.06 (definitions of “non- discretionary
override” and “objective classification
system”). Rodriguez asserts that the Parole Board's
refusal to grant him parole blocks his ability to obtain a
lower security designation in prison. Compl. at ¶¶
47-49, 59. According to Rodriguez, the DOC defendants
violated their own rules and regulations by keeping him at a
high security facility, and, further, the regulations
pertaining to Class C Non-Discretionary Overrides are
unconstitutional. Id. at ¶¶ 60-61. These
claims form the basis for the counts against the DOC
defendants. Id. at Counts 10, 11, 13, 14.
next claims that District Attorney Defendant Morrissey
entered into an unlawful agreement with the DOC defendants to
keep Rodriguez in a higher security setting, id. at
¶¶ 61-62, and that the District Attorney defendants
used the Parole Board's decision denying parole as an
exhibit to their opposition to Rodriguez's motion for a
new trial in the Norfolk Superior Court, id. at
¶¶ 50, 65, in violation of the state and federal
constitutions. Id. at ¶¶ 65-66. These
facts form the basis for the remaining counts against the
District Attorney defendants. Id. at Counts 12, 15.
MOTIONS TO DISMISS
defendants named in the pending complaint have filed motions
to dismiss pursuant to either Federal Rule of Civil Procedure
12(b)(1) (lack of subject matter jurisdiction) or Federal
Rule of Civil Procedure 12(b)(6) (failure to state a claim
upon which relief may be granted).
Standard of Review
withstand a motion to dismiss under Rule 12(b)(6), a
complaint must allege a claim for relief that is
“plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Assessing the
plausibility of a claim is a two-step process. “First,
the court must sift through the averments in the complaint,
separating conclusory legal allegations (which may be
disregarded) from allegations of fact (which must be
credited). Second, the court must consider whether the
winnowed residue of factual allegations gives rise to a
plausible claim to relief.” Rodriguez-
Reyes v. Molina-Rodriguez, 711 F.3d 49, 53 (1st Cir.
2013) (citation omitted). Along with all well-pleaded facts,
the Court must draw all logical inferences from a complaint
in favor of the plaintiff. Frappier v. Countrywide Home
Loans, Inc., 750 F.3d 91, 96 (1st Cir. 2014). “If
the factual allegations in the complaint are too meager,
vague, or conclusory to remove the possibility of relief from
the realm of mere conjecture, the complaint is open to
dismissal.” Rodriguez-Reyes, 711 F.3d at 53
(quoting SEC v. Tambone, 597 F.3d 436, 442 (1st Cir.
2010) (en banc)).
considering a motion to dismiss under subsection 12(b)(1) of
the Federal Rules of Civil Procedure, the Court should apply
a standard of review ‘similar to that accorded a
dismissal for failure to state a claim' under subsection
12(b)(6).” Menge v. N. Am. Specialty Ins. Co.,
905 F.Supp.2d 414, 416 (D.R.I. 2012) (quoting Murphy v.
United States, 45 F.3d 520, 522 (1st Cir. 1995)). A
motion to dismiss pursuant to Rule 12(b)(1) is the usual
vehicle for dismissal under the Eleventh Amendment.
Sepulveda v. UMass Corr. Health Care, 160 F.Supp.3d
371, 383 (D. Mass. 2016).
Claims Under the Federal Constitution
Fourth, Fifth, and ...