United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper, United States District Judge.
Joseph Dyer (“Dyer”) has filed this lawsuit
pro se pursuant to 42 U.S.C. § 1983 and the
Massachusetts Civil Rights Act against the City of Boston,
Steward Health Care System LLC (“Steward
Health”), Carney Hospital, Dr. Michael Riley
(“Dr. Riley”), Zachary Crossen
(“Crossen”), Thuan Lai (“Lai”) and
Walter J. Ramos (“Ramos”) (collectively, the
“Defendants”). D. 1-1. Dyer alleges that the
Defendants violated his Fourth Amendment rights under the
United States Constitution, the Massachusetts Constitution
and Massachusetts Civil Rights Act (“MCRA”),
committed medical malpractice and violated Mass. Gen. L. c.
258. D. 1-1 at 7. He seeks monetary relief from all
Defendants. D. 1-1 at 18. The City of Boston, Crossen and Lai
(collectively, “City Defendants”) now move for
dismissal, D. 3, as do Steward, Carney Hospital, Ramos and
Riley (collectively, “Healthcare Defendants”), D.
14. Dyer also moves to withdraw his medical malpractice
claims. D. 16. For the reasons set forth below, the Court
ALLOWS IN PART and DENIES IN PART both motions to dismiss, D.
3; D. 14. The Court ALLOWS Dyer's motion to withdraw his
medical malpractice claims, D. 16.
Standard of Review
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
complaint must “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court
must distinguish between “the complaint's factual
allegations (which must be accepted as true) from its
conclusory legal allegations (which need not be
credited).” Morales-Cruz v. Univ. of P.R., 676
F.3d 220, 224 (1st Cir. 2012). “[N]o single allegation
need [establish] . . . some necessary element [of the cause
of action], provided that, in sum, the allegations of the
complaint make the claim as a whole at least
plausible.” Garayalde-Rijos v. Mun. of
Carolina, 747 F.3d 15, 24 (1st Cir. 2014) (quoting
Ocasio-Hernández v. Fortuño-Burset,
640 F.3d 1, 14-15 (1st Cir. 2011)). The plaintiff must show
that the combined allegations state “a plausible, not a
merely conceivable, case for relief.”
Sepúlveda-Villarini v. Dep't of Educ. of
P.R., 628 F.3d 25, 29 (1st Cir. 2010).
pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)) (internal quotation marks omitted). That
said, a pro se complaint survives the motion to
dismiss stage only if it “set[s] forth factual
allegations, either direct or inferential, respecting each
material element necessary to sustain recovery under some
actionable legal theory.” Gooley v. Mobil Oil
Corp., 851 F.2d 513, 515 (1st Cir. 1988).
following factual summary is based upon the allegations in
Dyer's complaint and attached exhibits, D. 1-1, which are
accepted as true for the consideration of Defendants'
motions to dismiss.
13, 2015, Dyer, an inmate at Donald W. Wyatt Detention
Center, was arrested for drug possession. D. 1-1 ¶ 1; D.
1-1 at 19. After a “physical altercation, ” Dyer
“began having chest pains.” D. 1-1 ¶ 2.
Emergency medical technicians instructed police officers
Crossen and Lai to escort Dyer to Carney Hospital. D. 1-1
¶ 4. In the ambulance, Crossen told Dyer that he
believed Dyer had drugs hidden in his rectum, and “that
‘he' was going to give [Dyer] a rectal exam.”
D. 1-1 ¶¶ 5-6.
they arrived at Carney Hospital, Crossen told Dyer he would
order a doctor to conduct an anal cavity search. D. 1-1
¶ 7. Crossen instructed hospital staff to place Dyer on
a gurney face-down, and Crossen and Lai handcuffed Riley to
the bottom of the gurney. D. 1-1 ¶¶ 7-8. Crossen
and Lai then removed Riley's clothes. D. 1-1 ¶ 9.
Crossen then allegedly “slapped” Riley's bare
buttocks and made offensive remarks referring to Dyer as his
“bitch, ” at which point Riley screamed for help.
D. 1-1 ¶¶ 10-11. Crossen then digitally penetrated
Dyer's rectum. D. 1-1 ¶ 11. Dyer continued screaming
for help. D. 1-1 ¶ 12.
Riley entered the room and saw Crossen removing his fingers
from Dyer. D. 1-1 ¶ 14. Dr. Riley then left the room
with Crossen and Lai. D. 1-1 ¶ 15. Outside, Crossen and
Lai informed Dr. Riley that Dyer had “a history of
packing drugs, hypodermic needles and other weapons in his
rectum.” D. 1-1 at 21 (internal quotation marks
omitted). When they returned, Dr. Riley explained that
Crossen and Lai told him that Dyer “got caught with
drugs in [his] buttocks today” and that the officers
had asked Dr. Riley to perform a rectal exam on Dyer. D. 1-1
¶¶ 16-17. Dr. Riley asked Dyer if he had drugs in
his rectum, and Dyer denied having any drugs. D. 1-1 ¶
23. Dr. Riley asked Dyer to consent to an anal cavity search,
but Dyer refused. D. 1-1 ¶ 24. Dr. Riley then
“drugged or sedated” Dyer, told Lai and Crossen
to hold Dyer down as Dyer continued to protest, and inserted
two fingers into Dyer's rectum. D. 1-1 ¶¶
25-32; D. 1-1 at 21. Nurses, hearing Dyer, occasionally
“yell[ed] and open[ed] the curtain” to keep Dyer
quiet. D. 1-1 ¶ 33. Dr. Riley then took an x-ray of
Dyer's pelvis. D. 1-1 ¶ 38.
alleged in the complaint, Boston Police Department rules
state that “[b]ody cavity searches may only be
conducted when authorized by a warrant.” D. 1-1 at 25
(attaching an excerpt from Boston Police Department Rules and
Procedures). A body cavity search, or an “internal
manual inspection of any human body cavity, ” may not
be conducted by a police officer. D. 1-1 at 24-25. Rather,
only a qualified medical professional-subsequent to a Duty
Supervisor's application for a warrant, issued by a
judge-may conduct a body cavity search. D. 1-1 at 25. The
search must then be recorded on an incident report. D. 1-1 at
the officers nor Dr. Riley possessed a warrant to conduct an
anal cavity search, D. 1-1 ¶¶ 18-20, and Dyer did
not consent to the x-ray or Dr. Riley's communication of
Dyer's x-ray results to Lai and Crossen, D. 1-1 ¶
39. Lai and Crossen did not indicate on Dyer's incident
report that they or Dr. Riley performed an anal cavity
search. D. 1-1 ¶ 43. Dyer alleges that the Boston Police
Department has a “custom, ” of which the Police
Commissioner is aware, whereby officers bring arrested
persons to hospitals and explain that the arrestee
“swallowed something, ” compelling doctors to
conduct warrantless searches and x-rays. D. 1-1 ¶¶
instituted this action in Suffolk Superior Court on May 16,
2017. D. 1. Defendants subsequently removed the case to this
Court on August 7, 2017. Id. The City Defendants
have now filed their motion to dismiss, D. 3, and the
Healthcare Defendants have also moved to dismiss, D. 14.
has not alleged distinct, enumerated counts in his amended
complaint, but has rather stated them in his opening
paragraphs, asserting the following claims: violations of 42
U.S.C. § 1983 (“§ 1983”), on the basis
of an unlawful body cavity search, in violation of the Fourth
and Fourteenth Amendments of the U.S. Constitution and
Article 14 of the Massachusetts Constitution; medical
negligence; and Mass. Gen. L. c. 258. D. 1-1 at 8-10. After
the Healthcare Defendants moved to stay discovery pending
review by a medical malpractice tribunal, D. 15, Dyer moved
to withdraw his claims of medical negligence and malpractice.