United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER
ZOBEL SENIOR UNITED STATES DISTRICT JUDGE
Steven Provost and Jason Pike bring this action against
defendants Massachusetts Department of Correction
(“DOC”), Superintendent of the Namansket
Department of Correction, Steven J. O'Brien, and
Commissioner of the Department of Correction, Thomas A. Turco
III. Plaintiffs contend that defendants violated their right
to be free from illegal detention, in violation of 42 U.S.C.
§ 1983, and their Fourth, Eighth, and Fourteenth
Amendment rights (Count I). Plaintiff Provost also asserts
that defendants violated his civil rights under the
Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12,
§ 11I, through threats, intimidation, and coercion
(Count II). Docket # 13. Before me now are defendants'
motions for summary judgment (Docket # 10), to strike (Docket
# 29), and to dismiss Pike's claim (Docket # 31).
summarize the relevant facts in the light most favorable to
plaintiffs, the non-moving parties. See Planadeball v.
Wyndham Vacation Resorts, Inc., 793 F.3d 169, 172 (1st
Superior Court Proceedings Related to Provost
March 2008, a jury returned a verdict finding that Provost
was a sexually dangerous person. Docket # 12-1, at 30.
Subsequently, Provost was committed to the Massachusetts
Treatment Center at Bridgewater (the “MTC”)
“for an indeterminate period of a minimum of one day
and a maximum of his natural life until discharged pursuant
to the provisions of [Mass. Gen. Laws ch. 123A, ] section
9.” Id. On November 19, 2012, Provost filed a
petition in the Hampden Superior Court for examination and
discharge pursuant to Massachusetts General Laws chapter
123A, section 9. Id. at 35. A jury trial was held in
April 2016, which concluded on Friday, April 22, 2016, when
the jury returned a verdict that Provost was no longer
sexually dangerous. Id. at 39. There is a dispute
about certain events that transpired after the jury's
verdict. Plaintiff asserts that the superior court judge
initially allowed his request for immediate release, but that
the DOC objected and interfered by informing court officers
that Provost had to return to the MTC until correct paperwork
relating to Provost's intended residence was submitted to
the Sex Offender Registry Board (“SORB”).
See Docket # 13, at ¶¶ 29-35; see
also Docket # 23-1, at ¶¶ 8-15. Provost had
initially submitted to SORB the address of the Southampton
Street Shelter as his intended address, but on the last day
of trial, he provided DOC counsel with the address of the
Boston Rescue Mission. Provost claims that the DOC informed
his counsel that it “needed Mr. Provost to remain
incarcerated until they had submitted the ‘correct'
address of the Boston Rescue Mission in Boston to
SORB.” Docket # 23-1, at ¶ 11. Defendants move to
strike such assertions because, they contend, these
statements are hearsay. In any event, it is undisputed that
rather than ordering Provost to be immediately released, the
superior court issued an Order of Discharge signed by the
session clerk ordering Provost to be “discharged from
custody and released from the Massachusetts Treatment Center
no later than the end of the business day on Monday April 25,
2016.” Docket # 12-1, at 39. Provost was eventually
released on April 25 at approximately noon. Id. at
State Proceedings Related to Pike
2002, Pike was involuntarily civilly committed as a sexually
dangerous person pursuant to Massachusetts General Laws
chapter 123A, section 9, and he remains committed in the MTC.
Like Provost, Pike filed a petition for examination and
discharge, and his trial is scheduled to begin on November 4,
2019. Docket # 13, at ¶ 53.
United States District Court Proceedings
October 17, 2016, Provost filed his original complaint
against defendants in this court. Docket # 1. After several
assented-to motions for extension of time to respond,
defendants moved for summary judgment on April 11, 2017.
Docket # 10. On May 1, 2017, Provost filed an amended
complaint, adding Jason Pike as a named plaintiff and
clarifying that plaintiffs are suing defendants Turco and
O'Brien in their individual capacities. See
Docket # 13, at ¶¶ 6-7. In response to
plaintiffs' opposition to their motion for summary
judgment, defendants moved to strike portions of
plaintiffs' statement of undisputed facts and affidavit
of Michael Ryan (the “Ryan Affidavit”), who was
co-counsel for Provost in the state court proceeding. Docket
judgment is appropriate when the moving party “shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “An issue is ‘genuine'
for purposes of summary judgment if ‘the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party, ' and a ‘material fact' is one
which ‘might affect the outcome of the suit under the
governing law.'” Poulis-Minott v. Smith,
388 F.3d 354, 363 (1st Cir. 2004) (quoting Hayes v.
Douglas Dynamics, Inc., 8 F.3d 88, 90 (1st Cir. 1993)).
“In order to defeat a motion for summary judgment, the
nonmovant may not rest upon some combination of conclusory
allegations, improbable inferences, and unsupported
speculation, but must instead present definite, competent
evidence to rebut the motion.” Advanced Flexible
Circuits, Inc. v. GE Sensing & Inspection Techs.
GmbH, 781 F.3d 510, 516 (1st Cir. 2015).
to Fed.R.Civ.P. 12(b)(1), a defendant may move to dismiss an
action based on lack of federal subject matter jurisdiction.
In opposing such motion, the plaintiff bears the burden of
establishing that the court has jurisdiction. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992).
“[A] plaintiff, however, may not rest merely on
unsupported conclusions or interpretations of law.”
Murphy v. United States, 45 F.3d 520, 522 (1st Cir.
1995) (citations omitted). “Dismissal is appropriate
where a ‘district court lacks the statutory or
constitutional power to adjudicate' the case.”
Seow v. Grondolsky, No. 10-cv-40174-TSH, 2012 WL
5392322 at *1 (quoting Makarova v. United States,
201 F.3d 110, 113 (2d Cir. 2000)).