United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
SOROKIN UNITED STATES DISTRICT JUDGE.
August 15, 2016, pro se prisoner plaintiff Edward Jones filed
a voluminous complaint against three groups of defendants:
(1) the Commonwealth of Massachusetts, Department of
Corrections (“DOC”), the Executive Office of
Public Safety; (2) Daniel Bennett, Carol Higgins-O'Brien,
Thomas Turco, Christopher Fallon, Lisa Mitchell, Douglas
Bower, Michael Devine, John F. Camelo, Scott Steever, Hank
LaValley, Marta Leon; and, (3) the Massachusetts Partnership
for Correctional Health, Neal Norcliffe and Todd Derbyshire.
ECF No. 1. The 96-page complaint consisted of 273 paragraphs
and nine counts. Attached to the complaint were 142 pages of
October 12, 2016, the Court ordered Jones to file an amended
complaint. ECF No. 9. On November 18, 2016, Jones timely
filed an Amended Complaint, bringing six counts against
defendants Higgins-O'Brien, Mitchell, Bower, Devine,
Camelo, Steever, Leon, Norcliffe, and Derbyshire. ECF No. 17
(referenced herein as “Amended Compl.”).
the Court are defendant Higgins-O'Brien's motion to
dismiss for lack of service of process (ECF No. 56),
defendants Mitchell, Bower, Devine, Camelo, Steever, and
Leon's (“the DOC Defendants”) motion to
dismiss for failure to state a claim upon which relief may be
granted (ECF No. 60), and defendants Norcliffe and
Derbyshire's (the “MPCH Defendants”) motion
to dismiss for failure to state a claim upon which relief may
be granted (ECF No. 50). Jones opposed the motions. ECF Nos.
57, 58 and 67. For the reasons stated below, the DOC
Defendants' motion is hereby allowed in part and denied
in part, MPCH Defendants' motion to dismiss is hereby
allowed, and Higgins-O'Brien's motion to dismiss is
denied as moot. The action will be stayed pending the
Court's attempt to locate pro bono counsel for
Jones on the surviving claims.
13, 2013, Jones, a mentally ill state prisoner suffering from
Post-Traumatic Stress Disorder, was designated to the
Residential Treatment Unit (“RTU”) at Old Colony
Correctional Center (“OCCC”). Amended Compl.
¶¶14-17; see Exhibit 54, ECF 1-2, p. 114,
ref'd at Amend Compl. ¶¶44, 50. At or around
that time, another inmate, Vernon Thompson, was housed in a
cell next to Jones. Amended Compl. ¶17. Thompson
sexually harassed and targeted Jones. Amended Compl.
¶17. Soon after Thompson's arrival to RTU in June
2015, Jones began reporting the harassment to RTU clinicians.
Id. From July 2015 through August 2015, Correctional
Officer Captain John Camelo and Deputy Superintendent of
Operations Michael Devine were notified by RTU mental health
clinicians about Jones' reports of harassment, but they
failed to prevent the sexual harassment. Amended Compl.
¶¶18-19. For example, Camelo and Devine failed to
follow procedures upon receiving these reports. Amended
Compl. ¶¶21-22. Jones was later physically
assaulted. Amended Compl. ¶¶18-19. More broadly,
Jones claims in a conclusory manner that “from June
2015 thru (sic) October 2015, the sexual harassment(s)
continued inspite (sic) of “Defendants” having
been notified.” Amended Compl. ¶20.
August 19, 2015, Inner Perimeter Security issued a
“keep-away” order that Thompson be kept away from
Jones. Amend Compl. ¶26. On August 26, 2015, Thompson
purportedly made false allegations that Jones had been
involved in a sexual incident, otherwise known as a PREA
incident. Amend. Compl. ¶ 30, Exhibits 64 ECF
1-2, p. 124, ref'd at Amend Compl. ¶¶44, 50.
Jones concludes, without a plausible factual basis, that
Camelo knew the claims were false yet initiated the PREA
investigation. As part of the investigation of the PREA
incident, Jones was subjected to apparently routine medical
and psychological screenings for suspected sexual abuse, but
which nevertheless purportedly traumatized Jones because he
was a victim of sexual abuse as a child. Amended Compl.
September 24, 2015, Jones claims that defendant Camelo
“retaliated” against Jones by placing him in
“Awaiting Action” status “absent any
disciplinary infractions”, in an attempt to stop Jones
from reporting harassment and his issues with Thompson.
Amended Compl. ¶23. Contemporaneous records submitted by
Jones contradict this conclusory allegation. On September 24,
2015 and September 25, 2015, Jones reported to defendant OCCC
Superintendent Lisa Mitchell allegations of sexual harassment
and his dissatisfaction with being placed on Awaiting Action
status. Amended Compl. ¶24. In a September 25, 2015
letter, Jones wrote to Mitchell:
As a result of myself, and, at least five (5) other
prisoners' addressing our uncomfortability and fears
concerns about Vernon Thompson to RTU mental health staff.
Myself only, was escorted, out of the RTU office to
new man unit questioned by IPS Sgts., and then placed on
awaiting action status. Where I now remain --because I refuse
to, and fail to, allow inmate Vernon Thompson to victimize,
traumatize, harass, and abuse me verbally any
longer…Instead of stopping Vernon Thompson from
sexually victimizing, abusing, traumatizing and harassing
myself and others [, ] [c]orrectional staff at this
facility/site…failed to issue …disciplinary
reports, and or sanctions … and hold him accountable
for his unlawful actions…Refusing to hold inmate
Vernon Thompson accountable…makes you complicit in
what…[he]… is doing. …[I]t is clear that
he is not getting any better and should be sent or classified
to the Treatment Center for help. Because it is clear that
his intention and mind-set is to victimize again sexually.
All I want is to be able to complete my time in peace. Get
the treatment I need without being subjected to victimization
over and over again.
Exhibit 11, ECF 1-2, pp. 27-29, ref'd in Amend. Compl.
¶24. In response, Mitchell sent a letter to Jones
acknowledging receipt of the letter and September 24, 2015
grievance. Exhibit 11, ECF No. 1-2, p. 26, ref's at Amend
Compl. ¶ 24. Although Jones was perhaps singled out,
there is nothing in his grievance indicating that Camelo
segregated Jones to silence him. Indeed, Jones also alleges,
in contradiction to a retaliatory conspiracy, that the reason
DOC personnel “were going through any means to keep
inmate Thompson at O.C.C.C., was because inmate Thompson
could not be housed at any other DOC institutions due to
enemy situations with other prisoners.” Amended Compl.
¶34 (quotations omitted).
September 24, 2015, MPCH mental health progress note,
purportedly by Daniel P. Bradley, MSW LICSCW, also captures
Mr. Jones has an open mental health case. [T]hough currently
on AA status, client was seen in HSU as a MH Check-in
secondary to his concerns this afternoon regarding being
placed on AA status for his response to the return of another
inmate to his housing unit. The inmate in question had
accused Mr. Jones of inappropriate behavior, and Mr. Jones
was appropriately reporting frustration and anger (within
appropriate limits) with climate issues and with being placed
on AA as a result. Inmate used this contact to express his
concerns appropriately regarding his frustration with
apparent false accusations, feeling that security staff has
not taken his concerns seriously enough.
Exhibit 64, ECF No. 1-2, p. 124, ref'd in Amend. Compl.
¶44. There is no mention of retaliation against Jones.
September 25, 2015, Jones was again seen by MPCH staff. In an
MPCH mental health progress note, Vanessa Martino-Fleming,
LMHC, documented her concerns for Jones' safety and her
voicing those concerns to DOC:
Inmate…was extremely frustrated with the events that
occurred yesterday and with mental health and the DOC. Writer
acknowledged that the DOC's decision to place other RTU
inmate that he had a previous issue with back on the unit was
a stressful situation for him. Writer reiterated that
writer and all other RTU staff had made it abundantly clear
to the DOC that there were numerous concerns with placing
this other inmate back on the unit. Writer recognizes that
inmate had experienced some increased symptoms related to
previous incidents as well as with current DOC decision.
..Writer reiterated that mental health had made their
clinical opinion clear to the DOC that this other RTU
inmate's safety was at risk. Writer praised the inmate
for coming over to the RTU yesterday instead of acting on his
Exhibit 65, ECF No. 1-2, p. 125, ref'd in Amend. Compl.
¶44. Again, there is no mention of retaliation in the
claims that Mitchell failed to protect Jones from sexual
harassment and/or assault. Amended Compl. ¶24.
Specifically, Jones claims that Mitchell disregarded the
serious risk to Jones by ignoring an August 19, 2015
“keep-away” order by releasing Thompson to OCCC
general population with Jones, and ignoring recommendation by
mental health clinicians that Jones be separated from
Thompson by institution. Amended Compl. ¶¶26-27.
October 20, 2015, Jones was again seen by Martino-Fleming.
Her progress note reflects concern over Jones' and the
other inmate's proximity--concern that four days later
would appear prescient:
[Jones] reported that he still had ongoing frustrations with
alleged PREA allegation and other inmate being moved to
A-2…It should be noted that this writer and the RTU
mental health team have been expressing their concerns for
this inmate and other inmate's safety. This writer had
expressed on previous case conference her concerns with not
separating inmates by institution.
Exhibit 69, ECF 1-2, p.126, ref'd in Amend. Compl.
October 24, 2015, Jones was assaulted and sexually harassed
by Thompson in the dining hall. Amended Compl. ¶28.
Jones alleges that he was stabbed with a fork, resulting in a
laceration, nerve damage and pain. Id.
early November 2015, Mental Health Director Neal Norcliffe
was notified by RTU mental health clinicians of Jones'
mental and physical symptoms as a result of issues from the
“undocumented” PREA investigation and sexual
harassment. Amended Compl. ¶45-46. MPCH records
submitted by Jones indicate that he suffers from PTSD and
that symptoms increased coinciding with the interactions with
inmate Thompson and “undocumented” PREA
incidents. MPCH Mental Health Treatment Plan Review, Exhibit
54, ECF No. 1-2, pp. 114-117, ref'd in Amended Compl.
¶¶44, 50. Norcliffe failed to acknowledge or
respond to a request from mental health clinicians for a
special accommodation of a single cell order. Amended Compl.
¶46. On November 27, 2015, Jones initiated a
“crisis call” because of symptoms relating to his
mental condition. Amended Compl. ¶¶45, 47.
Norcliffe purportedly “retaliated” against Jones
for initiating the crisis call, by subjecting Jones to
purportedly “inappropriate and non-emergency”
seclusion in a mental health watch cell. Amended Compl.
December 3, 2015, Jones claims that Camelo initiated a second
“undocumented” PREA investigation based upon
false allegations. Amended Compl. ¶ 32. As part of the
investigation, Jones was subjected to medical and
psychological screenings for suspected sexual abuse which
traumatized the Jones, because he was a victim of sexual
abuse as a child. Amended Compl. ¶33. As part of the
PREA screening, RTU mental health clinician Todd Derbyshire