United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
Johnson (“Johnson”) claims that he was deprived
of his constitutional rights in violation of 42 U.S.C. §
1983 when he was assaulted by a number of correctional
officers while he was a pre-trial detainee at the Plymouth
County Correctional Facility (“Facility”). He
alleges that several unnamed correctional officers physically
assaulted him when he was being transported in a restraint
before the Court is Sheriff Joseph McDonald
(“McDonald”) and Superintendent Antone
Moniz's (“Moniz” and together with McDonald,
“Defendants”) motion to dismiss, [ECF No. 14].
For the reasons that follow, Defendants' motion to
dismiss [ECF No. 14] is GRANTED.
who has a diagnosed mental illness, claims that he was
subjected to an unwarranted cell extraction in which he was
moved to the Facility's “mental health
vicinity” and kept in segregation for twelve months.
[ECF No. 9-1 at 5]. Johnson further asserts that he was
placed in a restraint chair and that his face was covered in
a “spit mask” during the move because a Facility
employee claimed that Johnson had bitten him. [Id.
at 6]. He alleges that he was then assaulted by Facility
employees in a “blind spot, ” where Facility
security cameras could not record the attack. [Id.].
filed this lawsuit against the Plymouth County Sheriff's
Department and an unknown number of unidentified John Does
seeking monetary damages and dismissal of his underlying
criminal charges. [ECF No. 1]. On April 5, 2019, the Court
granted Johnson's motion for leave to proceed in
forma pauperis. [ECF No. 6]. The Court also dismissed
Johnson's claim against the Plymouth County Sheriff's
Department because the Sheriff's Department is an
“arm of the state” and is entitled to immunity
under the Eleventh Amendment. [Id. at 4]. The Court
ordered Johnson to file an amended complaint. [Id.
at 6]. On April 12, 2019, Johnson filed the amended complaint
that identified Defendants both in their official and
individual capacities. [ECF No. 9 at 2; ECF No. 9-1
30, 2019, Defendants moved to dismiss the amended complaint
under Rule 12(b)(1) of the Federal Rules of Civil Procedure,
asserting that Defendants are entitled to immunity under the
Eleventh Amendment where the claims seek damages and were
brought against Defendants in their official capacity. [ECF
No. 15 at 3]. They further claim that the amended complaint
should be dismissed under Rule 12(b)(6) because the amended
complaint fails to state a claim and Defendants are entitled
to qualified immunity in any event. [Id. at 3-7].
After Johnson, acting pro se, failed to timely
oppose the motion, the Court gave him leave to respond by
July 26, 2019. [ECF No. 18]. On July 22, 2019, Johnson filed
his opposition. [ECF No. 20]. Johnson's opposition does
not address Defendants' arguments, but rather requests
that the Court not dismiss his claims. [Id. at 1].
STANDARD OF REVIEW
court may not automatically treat a plaintiff's failure
[to oppose] a motion to dismiss as a procedural default
warranting dismissal irrespective of whether the Complaint
has merit, that is, the Court cannot simply allow
the motion to dismiss as a sanction [for] failure to oppose
the motion.” Phaneuf v. Lustig, Glaser & Wilson
P.C., 148 F.Supp.3d 72, 74 (D. Mass. 2015) (emphasis in
original). The Court will therefore evaluate the amended
complaint to determine whether it sufficiently states a
claim, despite Johnson's failure to address
Defendants' arguments. Pomerleau v. West Springfield
Pub. Sch., 362 F.3d 143, 145 (1st Cir. 2004).
evaluating a motion to dismiss under Rule 12(b)(1), the Court
must determine whether the facts alleged in the complaint,
“taken at face value, ” support subject matter
jurisdiction. Gordo-González v. United
States, 873 F.3d 32, 35 (1st Cir. 2017). Because Johnson
is invoking federal jurisdiction, he has the burden of
establishing that the Court has subject matter jurisdiction.
Amoche v. Guarantee Tr. Life Ins. Co., 556 F.3d 41,
48 (1st Cir. 2008). “When considering a motion to
dismiss under 12(b)(1) . . ., the Court should apply a
standard of review ‘similar to that accorded a
dismissal for failure to state a claim' under subsection
12(b)(6).” Rodriguez v. Mass. Parole Bd., No.
16-cv-11113, 2017 WL 706597, at *2 (D. Mass. Feb. 22, 2017)
(quoting Menge v. N. Am. Specialty Ins. Co., 905
F.Supp.2d 414, 416 (D.R.I. 2012)).
evaluate a motion to dismiss for failure to state a claim
under Rule 12(b)(6), the Court must “accept as true all
well-pleaded facts alleged in the complaint and draw all
reasonable inferences therefrom in the pleader's
favor.” A.G. ex rel. Maddox v. Elsevier, Inc.,
732 F.3d 77, 80 (1st Cir. 2013) (quoting Santiago v.
Puerto Rico, 655 F.3d 61, 72 (1st Cir. 2011)). The
complaint must set forth “a short and plain statement
of the claim showing that the pleader is entitled to relief,
” id. (quoting Fed.R.Civ.P. 8(a)(2)), and
should “contain ‘enough facts to state a claim to
relief that is plausible on its face, '”
id. (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
cross the plausibility threshold a claim does not need to be
probable, but it must give rise to more than a mere
possibility of liability.” Grajales v. P.R. Ports
Auth., 682 F.3d 40, 44- 45 (1st Cir. 2012) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“A determination of plausibility is ‘a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.'”
Id. at 44 (quoting Iqbal, 556 U.S. at 679).
“[T]he complaint should be read as a whole, not parsed
piece by piece to determine whether each allegation, in
isolation, is plausible.” Hernandez-Cuevas v.
Taylor, 723 F.3d 91, 103 (1st Cir. 2013) (quoting
Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 14
(1st Cir. 2011)). “The plausibility standard invites a
two-step pavane.” Maddox, 732 F.3d at 80.
First, the Court “must separate the complaint's
factual allegations (which must be accepted as true) from its
conclusory legal allegations (which need not be
credited).” Id. (quoting Morales-Cruz v.
Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)).
Second, the Court “must determine whether the remaining
factual content allows a ‘reasonable inference that the
defendant is liable for the misconduct alleged.'”
Id. (quoting Morales-Cruz, 676 F.3d at
deciding a motion to dismiss under Rule 12(b)(6) . . . a
pro se complaint must be evaluated upon less
stringent standards than those applicable to one drafted by
an attorney.” Ulatowski v. Ponte, 524 F.Supp.
1112, 1114 (D. Mass. 1981). The Court is therefore more
lenient when considering a complaint filed by a pro
se plaintiff. See, e.g., Elliott v.
Segal, No. 19-cv-10259-ADB, 2019 WL 5168448, at * 4 n.2
(D. Mass. Oct. 15, 2019) (“Because [Plaintiff] is
pro se [the Court] read[s] [her] complaint with an
extra degree of solicitude.” (alteration in original)
(quoting Malek v. Knightly, No. 94-cv-02113, 1995 WL
338178 (1st Cir. June 5, 1995))). Still, the Court will
“not conjure up unpleaded facts to support . . .
conclusory [allegations].” Cote v. Murphy, No.
04-2538, 152 Fed.Appx. 6, 7 (1st Cir. Oct. 21, 2005)
(alterations in original) (quoting Hurney v. Carver,
602 F.2d 993, 995 (1st Cir. 1979)).