United States District Court, D. Massachusetts
LEE P. UNITT
DANIEL BENNETT, et al.
MEMORANDUM AND ORDER
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE.
before the court are the Motion to Dismiss (#38) of Marylou
Sudders and Monica Bharel and the Motion to Dismiss (#50) of
Carol Gladstone. For the reasons stated below, the court will
GRANT the motions.
Lee Unitt complains of the conditions of confinement while
she was incarcerated at MCI Framingham. She claims, inter
alia, that she was exposed to dangerous airborne
particulates, housed in cells without sufficient circulation
or cooling, and subject to overcrowded conditions. According
to Unitt, these conditions aggravated her already serious
medical condition and caused her health to deteriorate.
brings claims for injunctive relief under the Toxic
Substances Control Act, 15 U.S.C. § 2601 et
seq. and the Clean Air Act, 42 U.S.C. § 7401 et
seq. She also brings claims under 42 U.S.C. § 1983
(“§ 1983”) seeking injunctive and monetary
relief. She sues Sudders and Bharel in their official and
individual capacities and Gladstone in her official capacity.
Claims for Injunctive Relief
commencing this action, Unitt has been released from
incarceration. In her opposition (#54), Unitt argues that her
release did not moot her request for injunctive relief
because, if she violates the terms of her 20-year period of
probation, she would return to MCI Framingham where the
dangerous conditions would continue to persist. See
Id. at 7. However, the mere possibility that Unitt will
be re-incarcerated for a probation violation sometime in the
next 20 years is too speculative to confer standing on her to
seek injunctive relief, whether her claim arises under the
Toxic Substances Control Act, the Clean Air Act, or §
1983. See Horne v. Flores, 557 U.S. 433, 445 (2009)
(“To establish standing, a plaintiff must present an
injury that is concrete, particularized, and actual or
imminent . . . .”).
§ 1983 Claims for Damages Against Bharel and Sudders
absence of standing to pursue injunctive relief, Unitt's
only remaining claims are those for damages under §
1983. Unitt is not pursuing such a claim against Gladstone.
regard to the § 1983 claims against Bharel and Sudders,
the court concludes that Unitt has failed to state a claim
upon which relief may be granted because she has not alleged
facts from which the court may reasonably infer that these
two defendants were personally involved in the deprivation of
context of a § 1983 claim, “only those individuals
who participated in the conduct that deprived the plaintiff
of his rights can be held liable.” Cepero-Rivera v.
Fagundo, 414 F.3d 124, 129 (1st Cir. 2005). The
allegations against Bharel, who is the Commissioner of the
Massachusetts Department of Public Health
(“DPH”), do not demonstrate that she was
personally involved in the Eighth Amendment violations of
which Unitt complains.
is required to make rules and regulations for prisons
“regarding . . . the ventilation of the building . . .
and the general health and safety of the detainee.”
M.G.L. ch. 111, § 21. Under the DPH's own
regulations, a representative of the DPH must inspect each
correctional facility at least two times a year and make a
written report. See 105 C.M.R. chs. 451.401,
451.402. Where correction is necessary, the DPH reviews the
facility's plan for remediation and can advise the
superintendent on the methods that should be employed to
correct the deficiencies. See 105 C.M.R. chs.
451.404-451.406. In extreme circumstances where the
Department of Correction fails to correct a deficiency that
poses a serious threat to health and safety, the Commissioner
of the DPH may ask the governor to declare a ...