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Perna v. Martinez

United States District Court, D. Massachusetts

July 5, 2018

MARIANN PERNA, Plaintiff,
v.
JOSE F. MARTINEZ, MASSACHUSETTS TRIAL COURT DEPARTMENT, NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS, AND STRAFFORD COUNTY HOUSE OF CORRECTIONS, Defendants.

         REPORT AND RECOMMENDATION RE: DEFENDANT STRAFFORD COUNTY HOUSE OF CORRECTIONS' MOTION TO DISMISS (DOCKET ENTRY # 12); DEFENDANT NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS' MOTION TO DISMISS (DOCKET ENTRY # 16); DEFENDANT MASSACHUSETTS TRIAL COURT DEPARTMENT'S MOTION TO DISMISS (DOCKET ENTRY # 18) MEMORANDUM AND ORDER RE: PLAINTIFF MARIANN PERNA'S MOTION TO AMEND THE COMPLAINT (DOCKET ENTRY # 53) ORDER

          MARIANNE B. BOWLER UNITED STATES MAGISTRATE JUDGE

         Pending before this court are a motion to dismiss filed by defendant Strafford County House of Corrections (“SCHOC”), a motion to dismiss filed by defendant New Hampshire Department of Corrections (“NHDOC”), and a motion to dismiss filed by defendant Massachusetts Trial Court Department (“MTCD”).[1](Docket Entry ## 12, 16, 18). Plaintiff Mariann Perna (“plaintiff”) opposes the motions. (Docket Entry ## 29, 38, 39). Also pending before this court is a motion to amend the complaint filed by plaintiff (Docket Entry # 53), which defendants oppose. (Docket Entry ## 54, 55, 57). After conducting a hearing on April 10, 2018, this court took the motions (Docket Entry ## 12, 16, 18, 53) under advisement.

         PROCEDURAL BACKGROUND

         Neither the original complaint nor the proposed amended complaint seeks injunctive relief. In seeking compensatory and punitive damages as well as attorney's fees, the complaint sets out causes of action for “[c]ruel and [a]busive [t]reatment” in violation of the Eighth Amendment under 42 U.S.C. § 1983 (“section 1983”); violation of substantive due process under the Fourteenth Amendment pursuant to section 1983; violation of the Equal Protection Clause under the Fourteenth Amendment under section 1983; and negligence under the Massachusetts Tort Claims Act, Massachusetts General Laws chapter 258 (“MTCA”) as to MTCD, and New Hampshire Revised Statutes Annotated section 541-B (“section 541-B”) as to SCHOC and NHDOC. (Docket Entry # 1).

         On March 29, 2018, plaintiff filed the motion to amend the complaint. (Docket Entry # 53). The proposed changes to the complaint include the following: (1) paragraphs nine and ten are supplemented to provide additional factual information relative to plaintiff's reports of sexual assaults made to NHDOC and SCHOC representatives in 2009; (2) a document is added as an exhibit, which consists of an “Information Report” setting out plaintiff's description of the assault to SCHOC Officer Jake Collins (“Collins”) and SCHOC program counselor Quinn Brackett (“Brackett”); and (3) paragraph 16 is added to provide factual information that defendant Jose F. Martinez (“Martinez”) was charged with rape in Massachusetts in 2014 and, in the spring of 2017, Martinez admitted to having sexual contact with plaintiff in 2014 while she was being held in custody at the Massachusetts District Court Department (Lawrence Division) (“Lawrence District Court”). (Docket Entry ## 53-1, 53-2). The proposed amended complaint does not change the causes of action asserted in the original complaint.

         STANDARD OF REVIEW

         To survive a Fed.R.Civ.P. 12(b)(6) (“Rule 12(b)(6)”) motion to dismiss, the complaint “must contain ‘enough facts to state a claim to relief that is plausible on its face'” even if actual proof of the facts is improbable. Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007); Miller v. Town of Wenham Massachusetts, 833 F.3d 46, 51 (1st Cir. 2016). The “standard is not akin to a probability requirement, but [instead] asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted); see also Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint . . . has not show[n] that the pleader is entitled to relief.” Feliciano-Hernandez v. Pereira-Castillo, 663 F.3d 527, 533 (1st Cir. 2011) (internal quotation marks and citations omitted).

         Taking the facts in the complaint as true, the complaint “must state a plausible, not a merely conceivable, case for relief.” Sepulveda-Villarini v. Dep't of Educ. of Puerto Rico, 628 F.3d 25, 29 (1st Cir. 2010). Construing the “well-pleaded facts in the light most favorable to the plaintiff[, ] . . . [the] factual allegations must be enough to raise a right to relief above the speculative level.” Gorelik v. Costin, 605 F.3d 118, 121 (1st Cir. 2010) (internal quotation marks and citations omitted). Legal conclusions in a complaint are not credited. See In re Ariad Pharmacy, Inc. Securities Litigation, 842 F.3d 744, 750 (1st Cir. 2016); see also Dixon v. Shamrock Financial Corp., 522 F.3d 76, 79 (1st Cir. 2008) (rejecting unsupported conclusions or interpretations of law when reviewing Rule 12(b)(6) dismissal).

         Although motions to amend a complaint pursuant to Fed.R.Civ.P. 15(a) (“Rule 15(a)”) are generally granted, the court has discretion in deciding whether to allow or deny an amendment. See Foman v. Davis, 371 U.S. 178, 182 (1962). A court may deny a motion to amend because of “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure[s] to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment.” Id. “‘Futility' means that the complaint as amended, would fail to state a claim upon which relief could be granted.” Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 2009). “In assessing futility, the district court must apply the standard which applies to motions to dismiss under Rule 12(b)(6).” Adorno v. Crowley Towing And Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006).

         NHDOC seeks to dismiss the complaint based on Eleventh Amendment sovereign immunity pursuant to Fed.R.Civ.P. 12(b)(1) (“Rule 12(b)(1)”).[2] (Docket Entry # 16) (Docket Entry # 17, p. 5). “Rule 12(b)(1) is ‘[t]he proper vehicle for challenging a court's subject-matter jurisdiction,' including on the basis of sovereign immunity.” Bradley v. Cruz, 13-CV-12927-IT, 2017 WL 3443212, at *1 (D. Mass. Aug. 10, 2017) (quoting Valentin v. Hospital Bella Vista, 254 F.3d 358, 362 (1st Cir. 2001)).

         When a district court considers a Rule 12(b)(1) motion, it credits the plaintiff's well-pled factual allegations and draws all reasonable inferences in the plaintiff's favor. Merlonghi v. U.S., 620 F.3d 50, 54 (1st Cir. 2010) (citing Valentin v. Hospital Bella Vista, 254 F.3d at 363); Sanchez ex rel. D.R.-S. v. U.S., 671 F.3d 86, 92 (1st Cir. 2012) (“credit[ing] the plaintiff's well-pled factual allegations and draw[ing] all reasonable inferences in the plaintiff's favor” under Rule 12(b)(1)). “The district court may also ‘consider whatever evidence has been submitted, such as the depositions and exhibits submitted.'” Merlonghi v. U.S., 620 F.3d at 54 (quoting Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996)). Because neither NDHOC nor plaintiff provides additional evidence, the Rule 12(b)(1) record tracks the Rule 12(b)(6) record. See also Claudomir v. Commonwealth of Massachusetts, Civil Action No. 15-CV-12867-IT, 2016 WL 492754, at *1, 3-4 (D. Mass. Feb. 8, 2016) (“[i]n ruling on a motion to dismiss, whether for lack of jurisdiction or for failure to state a claim, the court must accept the plaintiff's well-pleaded factual allegations and draw all reasonable inferences in the plaintiff's favor”).

         “A party claiming sovereign status bears the burden of demonstrating that it is an arm of the state.” U.S. v. University of Massachusetts, Worcester, 812 F.3d 35, 40 (1st Cir. 2016), cert. denied sub nom., U.S. and Massachusetts ex rel. Willette v. U. of Massachusetts, Worcester, 137 S.Ct. 617 (2017); accord Grajales v. Puerto Rico Ports Auth., 831 F.3d 11, 15 (1st Cir. 2016) (defendant “PRPA bears the burden of proving that it is an ‘arm'”). “It is the plaintiff's burden to identify a waiver of sovereign immunity, and if he is unable to do so, his claim must be dismissed on jurisdictional grounds.” Soares v. Massachusetts Dept. of Youth Services, Civil Action No. 12-10573-DJC, 2013 WL 5211556, at *4 (D. Mass. Sept. 12, 2013); Hanley v. U.S., No. 94-1315, 1994 WL 723678, at *2 (1st Cir. Oct. 5, 1994) (“plaintiff has the burden of showing a waiver of sovereign immunity”) (per curiam); Tierney v. Town of Framingham, 292 F.Supp.3d 534, 542 (D. Mass. 2018) (plaintiff bears burden of proving “‘waiver of sovereign immunity'”); Villeneuve v. State of Connecticut, Civil No. 09-13-P-S, 2009 WL 2022009, at *6 (D. Me. July 13, 2009) (“plaintiff has the burden of showing a waiver of sovereign immunity”); see Neo Gen Screening, Inc. v. New Eng. Newborn Screening Program, 187 F.3d 24, 26-27 (1st Cir. 1999) (not addressing waiver because “Neo Gen has not argued . . . that there was any waiver of Eleventh Amendment immunity by defendants”). Plaintiff's brevis, two- sentence argument against Eleventh Amendment immunity as to NDHOC is devoid of any reference to the existence of a waiver. (Docket Entry # 39). Plaintiff makes the exact, same two-sentence argument, albeit with an introductory sentence, in opposing MTCD's Eleventh Amendment Immunity argument. (Docket Entry # 38). Here again, she does not mention any waiver but simply argues that sovereign immunity regarding whether a state agency is an extension of the state presents a question of fact. (Docket Entry # 38). She therefore waived the issue of a sovereign immunity waiver, a matter upon which she bears the burden of proof. See Vallejo v. Santini-Padilla, 607 F.3d 1, 7 & n.4 (1st Cir. 2010) (“[p]laintiffs have not cited a single authority in support of their assertion that their failure to timely oppose the motion to dismiss did not constitute waiver” and noting that “[p]laintiffs did not properly raise their arguments below”); Coons v. Industrial Knife Co., Inc., 620 F.3d 38, 44 (1st Cir. 2010) (“district court was ‘free to disregard' the state law argument that was not developed in Coons's brief”); see also Curet-Velazquez v. ACEMLA de Puerto Rico, Inc., 656 F.3d 47, 54 (1st Cir. 2011) (“[a]rguments alluded to but not properly developed before a magistrate judge are deemed waived”). Accordingly, this court declines to address the existence of a waiver of sovereign immunity as to NDHOC and MTCD.

         MTCD also relies on the Eleventh Amendment bar to dismiss the complaint. It does not, however, refer to either Rule 12(b)(1) or Rule 12(b)(6).[3] Viewed under either standard, Eleventh Amendment immunity applies as to MTCD for reasons explained below.

         FACTUAL BACKGROUND[4]

         In July of 2009, plaintiff, a resident of Farmington, New Hampshire, was a detainee being held in custody at the Lawrence District Court in Lawrence, Massachusetts, in connection with scheduled court appearances for pending criminal charges. (Docket Entry # 1). On one of these dates in July 2009, plaintiff was subjected to incidents of non-consensual sexual contact by Martinez, an individual employed by MTCD as a court officer. (Docket Entry # 1). One of the incidents, which occurred in an elevator, involved Martinez touching plaintiff's buttocks while plaintiff was handcuffed and shackled. (Docket Entry # 1). During another incident, while plaintiff was in a cell, Martinez touched plaintiff inappropriately and entered her vagina with his penis while plaintiff was shackled. (Docket Entry # 1).

         Later that day, plaintiff was transported to Strafford County Jail in Dover, New Hampshire, where she was held in custody for other pending criminal charges. (Docket Entry # 1). While at the Strafford County Jail “in 2009, ” plaintiff reported the sexual assaults to representatives of NHDOC and SCHOC. (Docket Entry # 1). The proposed amended complaint adds the exact date in 2009, i.e., November 24, 2009, that she reported the incidents of non-consensual sexual contact by Martinez to SCHOC representatives. It also identifies the representatives by name and title as Brackett, a program counselor at SCHOC, and Collins, a program administer at SCHOC. (Docket Entry # 53-1). After reporting the incidents on November 24, 2009, plaintiff was not contacted by any representative of NHDOC, SCHOC, MTCD, or any other government representative of New Hampshire or Massachusetts. (Docket Entry # 53-1).

         In September and October of 2014, plaintiff was again held in custody at the Lawrence District Court as a detainee in connection with scheduled court appearances for pending criminal charges. (Docket Entry # 1). In September 2014, plaintiff was subjected to incidents of non-consensual contact by Martinez. (Docket Entry # 1). One incident, which occurred while plaintiff was shackled in a cell, involved Martinez slipping his hands through the metal trap door and groping plaintiff's vagina over her clothing. (Docket Entry # 1). During another incident, which occurred in a stationary elevator, Martinez kissed plaintiff, groped her breasts and vagina, entered her vagina with two fingers, exposed his penis, and attempted to enter her vaginally with his penis, all while plaintiff was shackled. (Docket Entry # 1). While in a stationary elevator, Martinez took a photograph or photographs of plaintiff's vagina with a cell phone. (Docket Entry # 1). Prior to this incident, Martinez had stopped the elevator and removed plaintiff's handcuffs. (Docket Entry # 1).

         In October 2014, plaintiff was again subjected to incidents of non-consensual sexual contact by Martinez while at the Lawrence District Court. (Docket Entry # 1). These incidents occurred when Martinez removed plaintiff from her cell without handcuffs, though plaintiff was still shackled, and brought her beneath a stairway in an unoccupied hallway, which was accessed by passing through a locked, “employees only” door with a swipe card. (Docket Entry # 1). Martinez kissed plaintiff, groped her beneath her clothing, exposed his penis, and entered her vaginally with his penis, ejaculating while inside her. (Docket Entry # 1). Prior to entering her vaginally, Martinez removed one of plaintiff's legs from the shackles. (Docket Entry # 1). Plaintiff was later transported to the New Hampshire State Prison for Women, where she was again held in custody for a parole violation. (Docket Entry # 1).

         In 2014, while at the New Hampshire State Prison for Women, plaintiff reported the sexual assaults that occurred in 2009 and 2014 to representatives of NHDOC. (Docket Entry # 1). As set out in the proposed amended complaint, Martinez was charged with rape in 2014. (Docket Entry # 53-1). During the trial in the spring of 2017, Martinez testified and admitted to having sexual contact with plaintiff in 2014 while she was being held in custody at the Lawrence District Court as a detainee. (Docket Entry # 53-1).

         DISCUSSION

         I. SCHOC's Motion to Dismiss

         SCHOC moves to dismiss the complaint under Rule 12(b)(6) on a number of grounds including because: (1) it fails to identify a policy, custom or procedure as the moving force of the acts alleged for a section 1983 claim; and (2) the statute of limitations bars the claims.[5] (Docket Entry ## 12, 13). Plaintiff opposes a dismissal. (Docket Entry # 29).

         A. Policy, Custom, or Procedure

         SCHOC argues for dismissal of the section 1983 claims because the complaint does not identify any custom or policy that contributed to the violation of constitutional rights. (Docket Entry # 13). Plaintiff maintains that liability exists based on a single decision by a ...


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