United States District Court, D. Massachusetts
RICHARD G. STEARNS, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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
Motion for Leave to Proceed in Forma Pauperis
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).
Review of the Complaint
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,
Eleventh Amendment Immunity
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).
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,