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Doe v. Sanderson

United States District Court, D. Massachusetts

March 30, 2018

JEREMIAH DOE, Plaintiff,
v.
ALAN SANDERSON, II, et al., Defendants.

          MEMORANDUM AND ORDER

          Indira Talwani United States District Judge

         Pro 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”).[1] 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.

         Pending 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.

         Plaintiff 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.

         On July 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.[2] These taunts allegedly occurred for 5-10 minutes, with Defendant Boisvert participating. Id. ¶ 45.

         From 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.

         Plaintiff 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.

         Plaintiff 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 harassment.

         A.Plaintiff's 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 appropriate.” Id.

         Here, 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.[3] Id. at ¶¶ 91-95. Plaintiff's Complaint was not filed, however, until October 20, 2016.

         Plaintiff 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.

         Plaintiff 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 curiam).

         Pursuant 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).

         Because 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 ...


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