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Latimore v. Trotman

United States District Court, D. Massachusetts

August 23, 2017



          MARIANNE B. BOWLER, United States Magistrate Judge

         Pending 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 (“Tompkins”) (collectively “defendants”). (Docket Entry # 105). Plaintiff Jason Latimore (“plaintiff”) opposes the motion. (Docket Entry # 108).


         On 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).

         On June 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).

         The 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).

         Against 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 violations.

         Defendants 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).


         To 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).

         Taking 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.


         On May 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[1] (“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).

         As the 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).

         Before he was escorted out of the unit and placed in segregation, plaintiff reminded Allen and Sergeant Sullivan[2](“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).

         Once in 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.[3] (Docket Entry # 100, p. 5).

         At 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).

         Plaintiff 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).

         Video 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.[4] (Docket Entry # 100, p. 6).

         On June 3, 2014, plaintiff was released from segregation. (Docket Entry # 100, p. 6). Sergeant Depina[5] 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).

         After 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).

         On 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. ...

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