United States District Court, D. Massachusetts
ORDER REPORT AND RECOMMENDATION ON DEFENDANT
TURCO'S MOTION TO DISMISS (#39).
M. PAGE KELLEY UNITED STATES MAGISTRATE JUDGE
September 20, 2016, Juan Diaz, Jr. brought this action under
42 U.S.C. § 1983 alleging violation of his First and
Fourteenth Amendment rights against defendants: Massachusetts
Department of Correction (DOC); Thomas Turco, current
Commissioner of the DOC; Carol Micci, Assistant Deputy
Commissioner of the DOC; Douglas Cabral, Manager of the
County, Federal and Interstate Compact Unit Classification
Division; Christopher Fallon, Director of Communications for
the DOC; and Carol Higgins O'Brien, former Commissioner
of the DOC. (#1.) On January 3, 2017, pursuant to this
court's November 22, 2017 Order (#7), plaintiff filed the
operative amended complaint (#11). Now before the court is
defendant Turco's motion to dismiss the amended complaint
for failure to state a claim pursuant to Fed.R.Civ.P.
12(b)(6) (#39), to which plaintiff has responded in
early 2007, the Supreme Judicial Court of Massachusetts (SJC)
affirmed plaintiff's conviction of first-degree murder,
for which he is currently serving a life sentence without the
possibility of parole. Commonwealth v. Diaz, 448
Mass. 286, 287 (2007). In accordance with a contract program
between the DOC and the Federal Bureau of Prisons (FBOP),
Diaz currently is confined in a federal penitentiary in
Coleman, Florida. (#11 at 5.)
alleges that defendants violated his First and Fourteenth
Amendment rights by denying him access to the courts when
they refused to provide him with Massachusetts case law and
legal materials necessary to litigate his conviction, despite
his repeated requests, without an explanation for the
refusal. Id. at 3-4. He complains he was subject to
the decisions made by his appellate counsel, specifically,
the decision to appeal directly his conviction on ineffective
counsel grounds instead of moving for a new trial, and that
the lack of Massachusetts legal materials prevented him from
researching his own claims to present to his attorney.
Id. at 4, 6. He alleges he would not have directly
appealed his conviction if he had been provided with
Massachusetts case law and that he wanted to raise a
potential conflict of interest claim, but could not do so
because the DOC did not provide him with Massachusetts legal
materials. Id. at 5-6. In 2010, Diaz's appellate
counsel filed an untimely petition to appeal which was
denied. Id. at 4. Plaintiff contends that had he
been provided with Massachusetts legal materials, he would
not have wasted his constitutional right to appeal on such a
claim. Id. at 5. He alleges the DOC was, and is,
aware that the FBOP is not obligated to provide him with
Massachusetts legal materials, so defendants violated his
constitutional right of access to the courts when they
refused his requests for them. Id. at 5.
Standard of Review.
12(b)(6) motion to dismiss challenges a party's complaint
for failing to state a claim. In deciding such a motion, a
court must “‘accept as true all well-pleaded
facts set forth in the complaint and draw all reasonable
inferences therefrom in the pleader's favor.'”
Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir.
2011) (quoting Artuso v. Vertex Pharm., Inc., 637
F.3d 1, 5 (1st Cir. 2011)). When considering a motion to
dismiss, a court “may augment these facts and
inferences with data points gleaned from documents
incorporated by reference into the complaint, matters of
public record, and facts susceptible to judicial
notice.” Haley, 657 F.3d at 46 (citing In
re Colonial Mortg. Bankers Corp., 324 F.3d 12, 15 (1st
order to survive a motion to dismiss under Rule 12(b)(6), the
plaintiff must provide “enough facts to state a claim
to relief that is plausible on its face.” See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The
“obligation to provide the grounds of [the
plaintiff's] entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Id. at 555 (quotation marks and alteration omitted).
The “[f]actual allegations must be enough to raise a
right to relief above the speculative level, ” and to
cross the “line from conceivable to plausible.”
Id. at 555, 570.
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556). However,
the court is “‘not bound to accept as true a
legal conclusion couched as a factual allegation.'”
Id. at 678 (quoting Twombly, 550 U.S. at
555). Simply put, the court should assume that well-pleaded
facts are genuine and then determine whether such facts state
a plausible claim for relief. Id. at IV.
1983 is a procedural mechanism through which constitutional
and statutory rights are enforced. Albright v.
Oliver, 510 U.S. 266 (1994).
legal framework pertaining to a section 1983 claim is well
established. ‘Section 1983 supplies a private right of
action against a person who, under color of state law,
deprives another of rights secured by the Constitution or by
federal law.' Redondo-Borges v. U.S. Dep't of
HUD, 421 F.3d 1, 7 (1st Cir. 2005) (quoting Evans v.
Avery, 100 F.3d 1033, 1036 (1st Cir. 1996)). To make out
a viable section 1983 claim, a plaintiff must show both that
the conduct complained of transpired under color of state law
and that a deprivation of federally secured rights ensued.
v. Puerto Rico, 655 F.3d 61, 68 (1st Cir. 2011).
basis for plaintiff's § 1983 claim is that he was
denied access to the courts due to defendants' refusal to
provide him with Massachusetts legal materials while he was
confined in an out-of-state prison. (#11 at 3.) He alleges he
needed the legal materials to research bases on which to
challenge his conviction and the lack of materials caused him
to rely on his appellate counsel, who advanced arguments that
were ultimately rejected. Id. at 4. Turco presents
two arguments in his motion to dismiss: first, that plaintiff
was not denied access to the courts because he had adequate
access to legal counsel; and, ...