United States District Court, D. Massachusetts
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
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”).(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.
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).
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.
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).
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)
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).
seeks to dismiss the complaint based on Eleventh Amendment
sovereign immunity pursuant to Fed.R.Civ.P. 12(b)(1)
(“Rule 12(b)(1)”). (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)).
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
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
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). Viewed under either standard, Eleventh
Amendment immunity applies as to MTCD for reasons explained
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).
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).
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).
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).
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).
SCHOC's Motion to Dismiss
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. (Docket Entry ## 12, 13).
Plaintiff opposes a dismissal. (Docket Entry # 29).
Policy, Custom, or Procedure
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 ...