United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Talwani United States District Judge
se Plaintiff Jeremiah Doe, who formerly was incarcerated
at Souza-Baronowski Correctional Center (“SBCC”),
a Massachusetts Department of Corrections (“DOC”)
facility, brings this action against various Defendants
including Jason Boisvert, Daniel Church, David Citro, John
Labelle, Jordan Ryan, Alan Sanderson, and Bruce Gelb
(together, the “SBCC Defendants”), and Peter Pepe
and Luis Spencer (together, the “DOC
Defendants”). Plaintiff asserts federal and state law
claims against all Defendants, arising from the verbal and
physical abuse he allegedly suffered at the hands of
Defendants Boisvert, Church, Citro, Labelle, Ryan, Sanderson,
and Rolle, and from the DOC Defendants and Defendant
Gelb's alleged failure to stop such abuse. All Defendants
are sued in their individual capacity.
before this court is the SBCC Defendants' Motion to
Dismiss Plaintiff's Complaint [#13] and the DOC
Defendants' Motion to Dismiss Plaintiff's
Complaint [#35]. Plaintiff filed a Brief in
Opposition to [the SBCC] Defendants' Motion to
Dismiss [#38] but did not respond separately to the DOC
Defendants' motion. For the following reasons, the SBCC
Defendants' Motion to Dismiss Plaintiff's
Complaint [#13] is ALLOWED in part and DENIED in part,
and the DOC Defendants' Motion to Dismiss
Plaintiff's Complaint [#35] is ALLOWED. I.
Factual Background as Alleged in the Complaint In
March 2013, Plaintiff was convicted in Colorado of 120
charges of sexual exploitation, sexual assault, and unlawful
sexual contact with children. Compl. ¶ 10 [#1].
In July 2013, Plaintiff was moved to Massachusetts and
eventually transferred to SBCC, where he remained until
October 24, 2013. Id. ¶¶ 11-14, 103. At
all relevant times in the Complaint, Defendants Boisvert,
Church, Citro, Labelle, Ryan, Rolle, and Sanderson were all
corrections officers at SBCC. Id. ¶ 4.
Defendant Gelb was the superintendent of SBCC. Id.
¶ 5. Defendant Spencer was the Commissioner of the
Massachusetts DOC and Defendant Pepe was the Deputy
Commissioner of the Massachusetts DOC Prison Division.
Id. ¶¶ 7-8.
alleges that upon arrival at SBCC, he was placed into the
Segregation Unit. Id. ¶ 18. He alleges that on
or about July 13, 2013, Defendant Rolle told other inmates
within the unit that Plaintiff was in prison for over 239
charges of child rape and that Plaintiff had been a cop.
Id. ¶ 19. Plaintiff alleges further that
Defendant Rolle called Plaintiff a derogatory term for child
molester more than 30 times over a three-day period.
Id. ¶¶ 20-21. Approximately two days
later, Plaintiff was moved to the general population unit.
Id. ¶ 22. Prior to his transfer, Defendant
Citro allegedly told other inmates within the general
population unit about Plaintiff's crimes and former
occupation and instructed one inmate to “take care of
[Plaintiff].” Id. ¶¶ 23-25. Later,
when Plaintiff attempted to use the phone, Defendant Citro
allegedly told Plaintiff to get off of the phone and play
with “his new friends, ” referring to the inmates
to whom Defendant Citro had disclosed Plaintiff's former
occupation and crimes to. Id. ¶ 26. Plaintiff
alleges that at some point between July 15, 2013, and July
25, 2013, Defendant Citro used additional offensive language
and also called Plaintiff a derogatory term for child
molester 5 to 7 times. Id. ¶¶ 27-28.
29, 2013, Plaintiff was transferred back to the Segregation
Unit. Id. ¶ 32. Plaintiff alleges that upon his
return, Defendants Boisvert and Church initially denied him
bedding, id. ¶¶ 32-34, and Defendant
Boisvert told him multiple times to “hang it up,
” which is a reference to suicide. Id. ¶
41. Plaintiff alleges that on July 30, 2013, Defendant
Boisvert told another inmate that Plaintiff “was a cop
and is in here for child rape, ” subjecting Plaintiff
to verbal abuse from that inmate. Id. ¶¶
42-45. These taunts allegedly occurred for 5-10
minutes, with Defendant Boisvert participating. Id.
July 30, 2013 to August 20, 2013, Defendants Boisvert and
Church allegedly continued to make comments such as
“hang it up” or “we will get you sooner or
later” more than 10 times. Id. ¶ 46. On
August 22 and September 15, 2013, Defendant Ryan gave
Plaintiff Children's Tylenol instead of his proper
medication, allegedly to taunt him, and denied him his proper
medication. Id. ¶¶ 48-49, 83-84. Plaintiff
further alleges that from the end of August through September
5, 2013, Defendants Rolle and Sanderson taunted Plaintiff on
multiple occasions, using various slurs for child molester.
Id. ¶¶ 53-59.
alleges that on September 5, 2013, Defendant Sanderson
notified the inmate next to Plaintiff's cell that
Plaintiff was a “ripper, ” another derogatory
term for a child molester, and as he removed Plaintiff's
handcuffs, Sanderson allegedly “twisted them
hard” towards Plaintiff's thumbs and told Plaintiff
that someone would kill him in prison. Id.
¶¶ 60, 72-76. Plaintiff alleges that he received
bruises on both wrists and numbness in his fingers that
lasted between six months and a year as a result.
Id. ¶ 77. Plaintiff also alleges that Defendant
Sanderson told him to “hang it up.” Id.
¶ 82. On September 15, 2013, Defendant Ryan allegedly
closed a food tray slot on Plaintiff's hands, which
caused bruising and cuts on his knuckles and hands.
Id. ¶¶ 87-88. That same day, Defendant
Ryan allegedly did not allow Plaintiff to use the phone.
Id. ¶ 89. Plaintiff alleges that on September
29, 2013, while giving Plaintiff his lunch, Defendant Labelle
tried to spill juice on Plaintiff and then refused to give
Plaintiff anything to drink. Id. ¶¶ 90-95.
alleges that on August 16, September 2, 7, 9, 19, and October
5, 2013, Plaintiff's attorney sent letters to Defendants
Spencer, Pepe, and Gelb, notifying them of the above
incidents. Id. ¶ 101. Plaintiff alleges that
they never attempted to “stop the harassment and/or
physical assault from occurring.” Id. ¶
102. On October 24, 2013, Plaintiff was transferred to
another prison. Id. ¶ 103. II. Standard of
Review A motion under Rule 12(b)(6) of the Federal Rules
of Civil Procedure to dismiss a complaint for failure to
state a claim upon which relief can be granted is properly
allowed when the complaint does not 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 Atlantic Corp. v. Twombly, 550 U.S. 554, 570
(2007)). Considering the complaint in the light most
favorable to the plaintiff, see Germanowski v.
Harris, 854 F.3d 68, 71 (1st Cir. 2017), the court will
“determine whether the factual allegations are
sufficient to support the reasonable inference that the
defendant is liable.” Saldivar v. Racine, 818
F.3d 14, 18 (1st Cir. 2016) (quoting Cardigan Mtn. Sch.
v. N.H. Ins. Co., 787 F.3d 82, 84 (1st Cir. 2015)). III.
Discussion Plaintiff alleges multiple federal and
state claims, including: (1) a violation of Eighth Amendment
against Defendants Boisvert, Citro, Church, and LaBelle for
continuing verbal harassment; (2) a violation of the Eighth
Amendment against Defendants Sanderson and Ryan for alleged
use of physical force against Plaintiff; (3) a violation of
the Eighth Amendment against the DOC Defendants and Defendant
Gelb for deliberate indifference; (4) a violation of Due
Process Clause against Defendant Gelb for failure to provide
Plaintiff a hearing prior to moving him to the segregation
unit; (5) a violation of the First Amendment against
Defendant Ryan for refusing to allow Plaintiff to use the
telephone; (6) a violation of the Massachusetts Civil Rights
Act, M.G.L. c. 12 §§ 11H-I, against Defendants
Ryan, Sanderson, Boisvert, Rolle, Citro, Church, and LaBelle
for alleged physical abuse and verbal harassment; (7) assault
and battery against Defendants Ryan and Sanderson for alleged
use of physical force; (8) a violation of M.G.L. c. 265,
§ 43A against Defendants Boisvert, Rolle, Citro, Church,
and LaBelle for the continuing verbal harassment; and (9) the
tort of criminal harassment against Defendants Boisvert,
Rolle, Citro, Church, and LaBelle for the continuing verbal
Claims Survive Dismissal Based on the Statute of
Limitations Defendants argue that all of Plaintiff's
federal claims are barred by the statute of limitations. SBCC
Mem. at 8-9; DOC Mem. at 7-8. A statute of limitations
defense can prevail at the dismissal stage, provided that the
facts supporting the defense are “clear on the face of
plaintiff's pleading.” Trans-Speck Truck Serv.,
Inc. v. Caterpillar, Inc., 524 F.3d 315, 320 (1st Cir.
2008). If the complaint shows the limitations period has been
exceeded and “fails to sketch a factual predicate that
would warrant the application of either a different statute
of limitations period or equitable estoppel, dismissal is
the proper cause of action for Plaintiff's First, Eighth,
and Fourteenth Amendment claims is a 42 U.S.C. § 1983
claim. See Gomez v. Toledo, 446 U.S. 635, 638 (1980)
(§ 1983 “provides a cause of action for the
deprivation of any rights, privileges, or immunities secure
by the Constitutional and laws by any person acting under
color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory”). Claims brought
under 42 U.S.C. § 1983 do not have their own statute of
limitations and are governed by the forum state's
limitation period for personal injury causes of action.
Nieves v. McSweeney, 241 F.3d 46, 51 (1st Cir.
2001). In Massachusetts, the limitation period is three years
and “runs from each civil rights violation identified
in the complaint.” Id. (quoting Hernandez
Jimenez v. Calero Toledo, 576 F.2d 402, 404 (1st Cir.
1978)). The cause of action begins to accrue when the
“plaintiff knows, or has reason to know, of the injury
that is the basis of the claim.” Id. (quoting
Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 3 (1st
Cir. 1995)). According to the Complaint, the last incidents
of alleged abuse (including any abuse that may have occurred
after Plaintiff sent letters to Defendant Gelb and the DOC
Defendants) occurred on September 29, 2013. Id. at
¶¶ 91-95. Plaintiff's Complaint was not filed,
however, until October 20, 2016.
argues that because he is incarcerated, the court should look
to the date the Complaint was mailed, rather than the date it
was filed. Pl. Opp. at 4. The First Circuit has explained
that “the mailbox rule shall govern the determination
of when a prisoner's § 1983 filing has been
completed.” Casanova v. Dubois, 304 F.3d 75,
79 (1st Cir. 2002). Under this rule, “[s]o long as the
prisoner complies with the prison's procedures for
sending legal mail, the filing date for purposes of assessing
compliance with the statute of limitations will be the date
on which the prisoner commits the mail to the custody of
prison authorities.” Id. Here, although
Plaintiff has not provided an affidavit or notarized
statement specifying the date the mail was deposited in the
prison system, Defendants do not appear to dispute
Plaintiff's contention that the Complaint was mailed on
October 15, 2016, the date he signed the Complaint. Even
using that date, however, the Complaint was filed more than
three years after the abuse allegedly occurred.
further argues that he is entitled to equitable tolling for
the time spent exhausting his administrative remedies. Pl.
Opp. at 4. Specifically, he alleges in his Complaint that he
filed a grievance on or about October 2014 and did not
receive a final result until January 2016. Id.;
Compl. ¶ 107. Equitable tolling is granted in
“exceptional circumstances, ” Vistamar, Inc.
v. Fagundo-Fagundo, 430 F.3d 66, 71 (1st Cir. 2005), and
generally applicable where “circumstances beyond the
plaintiff's control precluded timely filing.”
Monrouzeau v. Asociación Del Hosp. Del Maestro,
Inc., 153 Fed.Appx. 7, 8 n.1 (1st Cir. 2005) (per
to the Prison Litigation Reform Act (“PLRA”),
prisoners are required to exhaust all available
administrative remedies prior to bringing suit. 42 U.S.C.
§ 1997(e)(a); Booth v. Churner, 532 U.S. 731,
739-741(2001); Silvestri v. Smith, et. al., No.
14-13137-FDS, 2015 WL 1781761, at *7 (D. Mass. Apr. 17,
2015). The rule applies to all levels of the prison grievance
process, including optional appeals. Silvestri, 2015
WL 1781761, at *7. Although this circuit has yet to rule on
this issue, multiple circuits have held that a prisoner is
entitled to equitable tolling during this administrative
period. See, e.g. Gonzalez v. Hasty, 651 F.3d 318,
323-324 (2d Cir. 2011); Brown v. Valoff, 422 F.3d
926, 942-943 (9th Cir. 2005); Johnson v. Rivera, 272
F.3d 519, 522 (7th Cir. 2011); Brown v. Morgan, 209
F.3d 595, 596 (6th Cir. 2000); Harris v. Hegmann,
198 F.3d 153 158 (5th Cir. 1999). “The purpose of that
tolling doctrine is to avoid putting prisoners in a
‘catch-22' wherein the ‘prisoner who files
suit . . . prior to exhausting administrative remedies
[would] risk dismissal based upon § 1997(e); whereas
the prisoner who waits to exhaust his administrative remedies
[would] risk dismissal based upon timeliness.”'
Silvestri, 2015 WL 1781761, at *7 (quoting
Johnson, 272 F.3d at 522).
the last incidents of alleged abuse occurred on September 29,
2013, and Plaintiff mailed his Complaint on October 15, 2016,
without equitable tolling, Plaintiff would be sixteen days
over the three-year statute of limitations. With equitable
tolling, excluding the time period between October 2014 to
January 2016, Plaintiff's Complaint would be well within
the three-year statute ...