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Pace v. Massachusetts Department of Correction

United States District Court, D. Massachusetts

July 15, 2019

ANDRE PACE
v.
MASSACHUSETTS DEPARTMENT OF CORRECTION, et al.

          ORDER

          RICHARD G. STEARNS, UNITED STATES DISTRICT JUDGE.

         For the reasons stated below, the court will (1) grant the plaintiff's motion for leave to proceed in forma pauperis; (2) order that certain claims and defendants be dismissed; (3) order that summonses issue for seven defendants; and (4) deny without prejudice the plaintiff's motion for appointment of counsel.

         BACKGROUND

         On April 4, 2019, pro se litigant, Andre Pace, who is incarcerated at the Souza-Baranowski Correctional Center (“SBCC”) filed a complaint, a motion for leave to proceed in forma pauperis, and a motion for the appointment of counsel. In this preliminary review of the complaint, the court accepts, as it must, the veracity of all well-pleaded facts and draws all inferences in favor of Pace.

         In 2009, Pace was convicted of a sexual offense, but it was not for child molestation. On various occasions in 2016 and 2019, four correction officers at SBCC falsely informed other inmates that Pace is a child molester. The officers broadcasted the falsehood knowing, and even with the intent, that the announcement would prompt inmates to physically assault Pace. Pace indeed was physically attacked by inmates who stated they didn't like child molesters and who threatened to kill him. At one point, a response team of correctional officers quickly removed Pace from a housing unit where he was being assaulted by inmates. During this operation, two correction officers used excessive force against him. On another occasion, one of the correction officers involved in the use of excessive force against conducted a search of Pace, during which the correction officer inappropriately squeezed Pace's buttocks.

         The Complaint is in seven counts. Count I is a claim under 42 U.S.C. § 1983 (“§ 1983”) for the violation of Pace's rights under the Eighth and Fourteenth amendments. See Compl. at 19. Count II is a claim under the Massachusetts Civil Rights Act, M.G.L. ch. 12, §§ 11H, 11I (“MCRA”) for violating the prohibition in Article 26 of the Massachusetts Constitution against cruel or unusual punishment. See Compl. at 20-21. In Count III, Pace alleges that the defendants violated their duty of care to him. See Id. at 22. Counts IV, VI, and VII assert claims for the deliberate infliction of emotional distress, negligence, and the negligent infliction of emotional distress. See Id. at 22-23, 25-26. Count V is a claim under Title II of the Americans with Disabilities Act (“ADA”). See Id. at 24.

         Pace names the following defendants: the Massachusetts Department of Correction (“DOC”); DOC Commissioner Carol Mici; former DOC Commissioner Thomas Turco; SBCC Superintendent Steven Kenneway; former SBCC Superintendent Steven Silva; and, Correction Officers Slamoan, Vallade, Mashakca, Boiduc, Davui, and Chaput. All of the individual defendants are sued in their individual and official capacities. With the exception of the ADA claim in Count V, Pace refers collectively to “Defendants” in all the Counts.

         DISCUSSION

         I. Motion for Leave to Proceed in Forma Pauperis

         Upon review of Pace's Motion for Leave to Proceed in Forma Pauperis, the court concludes that Pace is without income or assets to prepay the filing fee. The court will grant the motion and, pursuant to 28 U.S.C. § 1915(b)(1), assess an initial partial filing fee of $5.34. The remainder of the fee, $344.66, shall be collected in accordance with 28 U.S.C. § 1915(b)(2).

         II. Review of the Complaint

         Summonses have not issued pending the court's preliminary review of the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. These statutes authorize a federal court to dismiss an in forma pauperis or prisoner complaint sua sponte if the claims therein are frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). In conducting this review, the court liberally construes the Complaint because Pace is proceeding pro se. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

         A. Eleventh Amendment Immunity

         The Eleventh Amendment of the United States Constitution generally is recognized as a bar to suits in federal courts against a State, its departments and its agencies, and its employees acting in their official capacities unless the State has consented to suit or Congress has overridden the State's immunity. See Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997); Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam); Hudson Sav. Bank v. Austin, 479 F.3d 102, 105-06 (1st Cir. 2007).

         Here, with the exception of claim under Title II of the ADA, the Court cannot discern any claim for relief against the DOC or its employees acting in their official capacities for which the Commonwealth of Massachusetts has waived its immunity or Congress has overridden it. Moreover, a state, its departments or agencies, and its employees acting in an official capacity are not “persons” for purposes of § 1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989); Johnson v. Rodriguez, 943 F.2d 104, 108 (1st Cir. 1991). Therefore, the ...


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