United States District Court, D. Massachusetts
MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION TO
DISMISS FOR FAILURE TO STATE A CLAIM (DOCKET ENTRY #
MARIANNE B. BOWLER, United States Magistrate Judge
before this court is a motion to dismiss filed under
Fed.R.Civ.P.12(b)(6) (“Rule 12(b)(6)”) by
defendants Kenneth Trotman (“Trotman”), Ryan
Dorgan (“Dorgan”), Roseanne Barrows
(“Barrows”), and Sherriff Steven Tompkins
“defendants”). (Docket Entry # 105). Plaintiff
Jason Latimore (“plaintiff”) opposes the motion.
(Docket Entry # 108).
August 14, 2014, plaintiff filed a pro se complaint against
Suffolk County House of Correction (“SCHOC”) and
two John Doe Correction Officers. SCHOC timely filed a motion
to dismiss, which this court allowed on December 15, 2015. On
March 3, 2016, plaintiff filed an amended complaint
identifying the John Doe defendants as Trotman and Dorgan.
(Docket Entry # 37).
13, 2016, this court allowed plaintiff's motion to amend
the complaint to add Barrows and Tompkins as defendants. At
an October 25, 2016 hearing, this court granted plaintiff
leave to file another amended complaint. Plaintiff filed a
third amended complaint on November 15, 2016. (Docket Entry #
100). The instant motion to dismiss is in response to this
complaint. (Docket Entry # 105).
governing amended complaint (“the complaint”)
sets out the following claims: (1) Count One for conversion
against Trotman, Dorgan, and Barrows; (2) Count Two for
violations of the First Amendment against Trotman and Dorgan;
(3) Count Three for deprivation of counsel in violation of
the Sixth Amendment against Trotman and Dorgan; (4) Count
Four for deprivation of due process in violation of the
Fourteenth Amendment against Trotman, Dorgan, and Barrows;
(5) Count Five for violations of the Massachusetts Civil
Rights Act, Massachusetts General laws chapter 12, section
11I (“MCRA”) against Trotman, Dorgan, and
Barrows; (6) Count Six for intentional infliction of
emotional distress (“IIED”) against Trotman,
Dorgan, and Barrows; (7) Count Seven for improper supervision
resulting in the destruction of legal materials in violation
of the Fourteenth Amendment against Barrows; (8) Count Eight
for failing to train, supervise, and discipline as well as
for fostering a hostile work environment resulting in
violations of the Eighth and Fourteenth Amendments against
Tompkins; and (9) Count Nine for breaches of equal protection
and due process and acts of cruel and unusual punishment in
violation of the Eighth and Fourteenth Amendments against all
defendants. Plaintiff asserts the foregoing claims against
defendants in their official and individual capacities.
(Docket Entry # 100, 18-19).
Trotman and Dorgan individually, plaintiff asserts claims for
conversion; First Amendment violations; Sixth Amendment
violations; Eighth Amendment violations; Fourteenth Amendment
violations; MCRA violations; and IIED. As against Barrows
individually, plaintiff asserts a claim for conversion;
Eighth and Fourteenth Amendment violations; MCRA violations;
and IIED. As against Tompkins, plaintiff alleges Eighth and
Fourteenth Amendment due process and equal protection
move to dismiss all claims made against them in their
official capacity. (Docket Entry # 105). In the opposition to
the defendants' motion to dismiss, plaintiff concedes
that all such claims should be dismissed. (Docket Entry #
108). Trotman, Dorgan, and Barrows further move under Rule
12(b)(6) to dismiss Count Five alleging a violation of the
MCRA, Count Six alleging the IIED claim, and Count Nine with
respect to the alleged equal protection violation. (Docket
Entry ## 105, 106). Tompkins seeks to dismiss “all
counts” asserted against him, i.e. counts eight and
nine, because he did not participate in the underlying
incidents and respondeat superior does not apply to section
1983 claims. (Docket Entry # 106). He also asserts a
qualified immunity defense. (Docket Entry ## 105, 106).
survive a Rule (12)(b)(6) motion to dismiss, the complaint
must include factual allegations that when taken as true
demonstrate a plausible claim to relief even if actual proof
of the facts is improbable. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-58 (2007). Thus, while
“not equivalent to a probability requirement, the
plausibility standard asks for more than a sheer possibility
that a defendant has acted unlawfully.” Boroian v.
Mueller, 616 F.3d 60, 65 (1stCir. 2010)
(internal quotation marks omitted). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint . . . has
not show[n] that the pleader is entitled to relief.”
Feliciano-Hernández v. Pereira-Castillo, 663
F.3d 527, 533 (1st Cir. 2011) (internal quotation
marks and citations omitted).
the facts in the governing complaint as “true and read
in a plaintiff's favor” even if seemingly
incredible, the complaint “must state a plausible, not
a merely conceivable, case for relief.”
Sepúlveda-Villarini v. Dep't of Educ. of
Puerto Rico, 628 F.3d 25, 29-30 (1st Cir.
2010). “[A]ccepting . . . all well-pleaded facts in the
complaint and making all reasonable inferences in the
plaintiff's favor, ” Boroian v. Mueller,
616 F.3d at 64, the “factual allegations ‘must be
enough to raise a right to relief above the speculative
level.'” Gorelik v. Costin, PA-C, 605 F.3d
118, 121 (1st Cir. 2010). Drawing reasonable
inferences in plaintiff's favor but eschewing reliance on
“‘bald assertions, . . . unsubstantiated
conclusions, '” Fantini v. Salem State
College, 557 F.3d 22, 26 (1st Cir. 2009), and
legal conclusions, see Dixon v. Shamrock Financial
Corp., 522 F.3d 76, 79 (1st Cir. 2008)
(rejecting unsupported conclusions or interpretations of law
in reviewing Rule 12(b)(6) dismissal), the complaint sets out
the following facts.
29, 2014, plaintiff, then serving a sentence at SCHOC, was
playing basketball on the recreation deck of the 3-2 unit
when a disturbance occurred in the day room. (Docket Entry #
100, p. 4). Plaintiff and other inmates noticed the
Sherriff's Escort and Response Team (“SERT”)
respond to the event and approached the day room to see what
caused the disturbance. (Docket Entry # 100, p. 4). None of
the inmates was wearing their uniform tops. (Docket Entry #
100, p. 4). Plaintiff and the other inmates were
approximately 20 feet into the unit when Correction Officer
Allen (“Allen”) ran into the unit
and yelled at the inmates who had left the deck. (Docket
Entry # 100, p. 4). While the other inmates returned to the
deck, plaintiff waived five fingers at Allen and told him to
calm down. (Docket Entry # 100, p. 4).
inmates resumed the basketball game, Allen entered the deck
and instructed no one in particular to “lock in.”
(Docket Entry # 100, p. 4). When all of the inmates on the
deck reached for their uniforms and gear, Allen indicated he
was referring to plaintiff. (Docket Entry # 100, p. 4).
Plaintiff asked Allen why he wanted him to lock in and Allen
then radioed the SERT team that plaintiff had refused an
order. (Docket Entry # 100, p. 4). Video recording of the
event shows plaintiff's arm outstretched in an attempt to
retrieve his uniform before Allen called SERT to respond.
(Docket Entry # 100, p. 4).
he was escorted out of the unit and placed in segregation,
plaintiff reminded Allen and Sergeant Sullivan(“Sullivan”) to secure his
legal materials. (Docket Entry # 100, p. 4). Plaintiff's
cell was “located directly behind the CO's
desk.” (Docket Entry # 100, p. 5). Prior to this
incident, Allen and Sullivan targeted plaintiff with
“constant harassment, threats, and intimidation”
and both officers previously commented with
“disgust” and “animus” about
plaintiff's pro se litigant status and daily legal
studies. (Docket Entry # 100, pp. 4-5).
segregation, plaintiff spoke to an unidentified sergeant and
requested he call Barrows and instruct her to oversee or
assign someone other than Allen or Sullivan to inventory his
cell. (Docket Entry # 100, p. 5). The sergeant indicated he
would do so immediately. (Docket Entry # 100, p. 5).
Ultimately, plaintiff believes that Dorgan was assigned to
inventory the property in plaintiff's cell. Additionally,
plaintiff believes that Trotman, who was later terminated
from the Suffolk County Sherriff's Department
(“SCSD”), assisted Dorgan in the
inventory. (Docket Entry # 100, p. 5).
around 11:30 that night, Dorgan brought plaintiff's
property to segregation. (Docket Entry # 100, p. 5). Although
it is unclear whether he actually inventoried the property,
Dorgan initialed and signed the inventory form. (Docket Entry
# 100, p. 5). Because the form was not complete, however,
plaintiff refused to sign it. (Docket Entry # 100, p. 5).
Although the form indicated plaintiff was given
“Miscellaneous: Legal Mail, ” plaintiff never
received this property. (Docket Entry # 100, p. 6). The
current location of this material is unknown and plaintiff
contends it was “confiscated and destroyed.”
(Docket Entry # 100, p. 6). When plaintiff demanded the
return of his legal materials, Dorgan stated he
“‘had no knowledge of the whereabouts of any
legal materials.'” (Docket Entry # 100, p. 6).
ultimately received a disciplinary report for the May 29th
incident with Allen. (Docket Entry # 100, p. 5). He was found
guilty of two of the four alleged infractions. (Docket Entry
# 100, p. 5).
recording shows Barrows present for all events. (Docket Entry
# 100, p. 6). Plaintiff contends Barrows condoned,
acquiesced, and allowed the disposal of plaintiff's legal
and non-legal property by Dorgan, Trotman, and possibly
Sullivan and Allen. (Docket Entry # 100, p. 6). Because
plaintiff filed formal grievances against these officers
prior to the May 29, 2014 incident, Barrows and “the
administration” had prior knowledge of the
“retaliatory, threatening and coercive actions
of” Allen and Sullivan. (Docket Entry # 100, p. 6).
Prior to the inventory of plaintiff's cell, Barrows was
made aware of the potential for violations in policy
regarding inmate property. (Docket Entry # 100, p. 6).
Further, Barrows witnessed and was present during and after
the incident which led to the violations of the property
policy. (Docket Entry # 100, p. 6).
3, 2014, plaintiff was released from segregation. (Docket
Entry # 100, p. 6). Sergeant Depina brought plaintiff some of
his property from booking including a box of legal cases from
inmate legal services and assorted canteen items. (Docket
Entry # 100, p. 6). The rest of his property, however, was
missing. (Docket Entry # 100, p.6). Plaintiff filed five
grievances regarding the confiscation but received no
response from property staff. (Docket Entry # 100, p. 6).
Plaintiff contends that, without his legal materials, he was
unable to adequately defend himself in three pending criminal
cases. (Docket Entry # 100, p. 6). Plaintiff contends the
disposal of his legal work was egregious, malicious, and
intentional. (Docket Entry # 100, p. 6).
plaintiff filed three to five grievances, internal affairs
conducted a recorded interview with plaintiff relative to the
lost “legal materials and lost personal
paperwork.” (Docket Entry # 100, p. 6). The
Sherriff's Investigative Division possesses institutional
video recordings depicting Trotman and Dorgan taking
plaintiff's property from his cell onto an elevator.
(Docket Entry # 100, p. 7).
August 7, 2014, Trotman ransacked all of plaintiff's
legal materials during a cell search. (Docket Entry # 100, p.
7). At the time, Trotman told plaintiff “he had better
throw away some of this trash or he would do it for
him.” (Docket Entry # 100, p. 7). Trotman then looked
at the mess and asked plaintiff if he was a pro se defendant.