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Jones v. Higgins-O'Brien

United States District Court, D. Massachusetts

February 16, 2018

EDWARD JONES, Plaintiff,



         I. Introduction

         On 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 exhibits.

         On 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.”).

         Before 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.

         II. Background

         On June 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.

         On 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.[1] 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. ¶33.

         On 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).

         A September 24, 2015, MPCH mental health progress note, purportedly by Daniel P. Bradley, MSW LICSCW, also captures Jones' reaction:

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.

         On 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 angry feelings.

Exhibit 65, ECF No. 1-2, p. 125, ref'd in Amend. Compl. ¶44. Again, there is no mention of retaliation in the progress note.

         Jones 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.

         On 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. ¶44.

         On 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.

         In 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. ¶47.

         On 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 ...

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