United States District Court, D. Massachusetts
SOROKIN UNITED STATES DISTRICT JUDGE
before the Court is the Amended Complaint [ECF #48] of state
prisoner Jordan Rice. Rice asserts claims for violations of
his rights under the First, Fifth, Sixth, Eighth and
Fourteenth amendments to the United States Constitution.
See Amend Compl. ¶¶ 159-164. He seeks
compensatory and punitive damages as well as injunctive
relief. See id. at 36-37.
review of the pleading pursuant to 28 U.S.C. §§
1915 and 1915A,  the Court hereby orders:
claims against Arthur DaSilva, Peter Diagle, Joshua Riley,
and Frederick Sleeper are DISMISSED for failure to state a
claim upon which relief may be granted because they are time
for violations of federal constitutional rights by state
actors must be brought under 42 U.S.C. § 1983
(“§ 1983”). See Arpin v. Santa Clara
Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001)
(“[A] litigant complaining of a violation of a
constitutional right does not have a direct cause of action
under the United States Constitution but [rather] must
utilize 42 U.S.C. § 1983.”) This statute provides
that any “person, ” acting under the color of
state law, who “subjects, or causes to be subjected,
any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured.” 42 U.S.C.
under § 1983 borrow the statute of limitations of the
forum state for personal injury claims. See
Rodriguez-Garcia v. Municipality of Cagus, 354 F.3d 91,
96 (1st Cir. 2004). Thus, Rice’s § 1983 claims
borrow the Massachusetts three-year statute of limitations
for tort and personal injury claims. See M.G.L. ch.
260, § 2A. The only alleged conduct by these four
defendants occurred on March 22, 2013, more than four years
before Rice commenced this action on June 6, 2017.
See Amend. Compl. ¶¶ 150-154. There is no
basis for the Court to infer that that the claims arising
from the alleged events of March 22, 2013 are timely filed.
claims against James Reed, Jr. (the older of the two
Reeds) are dismissed for failure to state a claim
upon which relief may be granted, and James Reed, Jr. shall
be terminated as a defendant in this action.
only allegation against this defendant is that he watched his
son, James Reed III, escort Rice from the “yard”
to the Behavioral Management Unit (“BMU”), during
which time James Reed III attempted to provoke Rice to engage
in a physical altercation. See id. ¶ 158. Rice
believes this was a “set up” because the elder
Reed wasn’t assigned to the BMU and “Father and
Son shouldn’t be working in the same unit
together.” Id. While the Court treats this
allegation as true for present purposes, it does not contain
enough factual material from which the Court can reasonably
infer that James Reed, Jr. violated Rice’s federal
claims against Thomas Turco, former Commissioner of the
Massachusetts Department of Correction (“DOC”)
are dismissed for failure to state a claim upon which relief
may be granted, and Turco shall be terminated as a party to
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). In other
words, a commissioner, superintendent, or other supervisory
employer cannot be held liable under § 1983 based solely
on the misconduct of a subordinate; the supervisor must have
had some form of direct involvement in the alleged
misconduct. See id.; Feliciano-Hernandez v.
Pereira-Castillo, 663 F.3d 527, 536 (1st Cir. 2011)
(“[N]ot every official who is aware of a problem
exhibits deliberate indifference by failing to resolve
it.” (internal quotation marks omitted)).
only allegation against Turco is that his failure to
“act on [his] knowledge of a substantial risk of
serious harm to Rice” violated Rice’s rights
under the United States Constitution. Id. ¶
161. This is a conclusory allegation that the Court is not
required to credit, and there are no other allegations in the
Amended Complaint from which the Court can reasonably infer
that Turco was directly involved in a violation of
claims against current DOC Commissioner Carol Mici shall be
dismissed and she shall be terminated as a party to this
action. Rice does not allege any misconduct by Mici but
rather names her as a defendant in her official capacity for
the purpose of procuring injunctive relief. Id. at
36-37. He asks that she be ordered to (1) arrange for Rice to
be transferred to the general population at NCCI Gardner; (2)
prohibit the placement of Rice in punitive segregation at
Souza-Baranowski Correctional Center or MCI Cedar Junction;
(3) prohibit the transfer of Rice to any out-of-state jails
or prisons; (4) compel all DOC correction officers to wear
body cameras; and (5) enter into a consent decree whereby
“the federal court monitors the Department of
only basis on which Rice may bring an official capacity claim
against the DOC Commissioner is if his pleading
“alleges an ongoing violation of federal law and seeks
relief properly characterized as prospective.”
Virginia Office for Protection & Advocacy v.
Stewart, 563 U.S. 247, 255 (2011) (citations omitted).
Rice’s pleading does not suggest that the alleged
misconduct of the other defendants is ongoing with regard to
him. Rice is no longer housed at MCI Cedar Junction, where
the alleged misconduct occurred. He does not allege that any
of the named defendants are now working at Old Colony
Correctional Center, where Rice is currently housed. Nothing
in the complaint suggests that the injunctive relief
requested by Rice would remedy an ongoing violation of
federal law by the defendants.
official capacity claims against the remaining defendants
(Badger, Borges, Chapman, Fagan, Hill, Kasprzak, Leavitt,
Pacheco, Pakuris, James Reed III, Resendes, Rodrigues, Saba,
Thibault, and Vogt) are DISMISSED. See Johnson v.
Rodriguez, 943 F.2d 104, 108 (1st Cir. 1991) (“It
is settled beyond peradventure, however, that neither a state
agency nor a state official acting in his official capacity
may be sued for damages in a ...