Ortiz v. Officer Sullivan

• Court: District Court, D. Massachusetts
• Decided: August 16, 2018
• Docket: 4:17-cv-40143
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS MICHAEL ORTIZ, Plaintiff, CIVIL ACTION v. NO. 4:17-cv-40143-TSH OFFICER SULLIVAN, et al., Defendants. ORDER AND REPORT AND RECOMMENDATION August16,2018 Hennessy, M.J. Plaintiff Michael Ortiz,at all relevant times apre-trial detaineein custody ofthe Worcester County Sheriff’s Office, filed the present action pursuant to 42 U.S.C. §1983, alleging that Defendants Worcester County Sheriff Lewis Evangelidis (“Evangelidis”),1 Lieutenant Dan Mara (“Mara”),Sergeant Michael O’Neill (“O’Neill”), and Officer Corey Sullivan(“Sullivan”) violated his constitutional rights while he was incarcerated. Plaintiff alleges Mara, O’Neill, and Sullivan subjected him to excessive forcein violation of the Fourth and FourteenthAmendments; he has sued Evangelidis under a theory of supervisory liability; and he has brought Massachusetts state-law assault and battery claims against Mara, O’Neill, and Sullivan.

1Plaintiff spells this defendant’s name “Evangelitis.” According to the Worcester County Sheriff’s Office website, the correct spelling is “Evangelidis.” SeeMission,Worcester County Sheriff’s Office, https://worcestercountysheriff.com/about/mission/(last visitedAug. 16, 2018). The Court will refer to him as “Evangelidis.” Defendants havemovedto dismiss the complaint pursuant toFederal Rule of Civil Procedure 12(b)(6), docket #15,and Plaintiff has movedfor appointment of counsel, docket #11. District Judge Hillman referred both motions to me,the former for a report and recommendation, and the latter for a ruling. Seedocket #17. Lastly, Plaintiff’s opposition to the motion to dismiss contains a request that I recommend be construed as a motion to amend the complaint. See

docket #16 ¶11. For the reasons that follow, I RECOMMEND that Respondent’s motion to dismiss be DENIED as to Defendants Mara, O’Neill,and Sullivan and GRANTED as toDefendant Evangelidis. I RECOMMEND that Plaintiff’s motion to amend the complaint be DENIED WITHOUT PREJUDICE. Finally, IDENY WITHOUT PREJUDICE Petitioner’s motion for appointment of counsel. I. BACKGROUND Plaintiff’s complaint, docket #5, alleges that on September 25,2017,Plaintiff was placed on intensive mental health status at the Worcester County Jail due to suicidal ideation. Id.¶7-8.

Two days later,on September 27,2017,Plaintiff told Defendant Sullivan he was having suicidal thoughts and requested mental health care. Id. ¶ 9. Sullivanresponded,“Kill yourself.” Id.¶ 10. Plaintiff then began throwingurine onto the walls of his cell and on himself. Id.¶11. Sullivan responded by taunting Plaintiff and suggesting that Plaintiff“cover [his] camera,” referring to a camera monitoring Plaintiff’s cell. Id.¶12. Plaintiffcovered thecamera and a windowinto his cell, stating he would not uncover them until he had seen a mental health staff member. Id.¶13. Approximately fifteenminutes later, officers came to the door of Plaintiff’s cell and told him that if he did not uncover his cell window, “he was going to have a bad day.” Id.¶14. Plaintiff responded by again asking to see amental health staffmember. Id.¶15. Mara, O’Neill, and Sullivan then entered Plaintiff’s cell with a shield.2 Id.¶16-17. Sullivan, carrying the shield,pinnedPlaintiffto the wall, and O’Neill and Mara punchedPlaintiffrepeatedlyin the face and head from either side of the shield. Id.¶ 17-18. Next, Defendants “subdued”Plaintiff, brought him to the ground, and handcuffed his hands behind his back. Id. ¶19. Sullivan then

placed the shield on Plaintiff’s bed,knelt on Plaintiff’s neck, and began kneeinghim in the eye and forehead while yelling,“Stopresisting.” Id. ¶ 20. Plaintiff was raised to his feet,at which point he called Sullivan a“piece of shit.” Id.¶21. Sullivan replied,“You want to throw urine like an animal[,] we’re going to treat you like an animal.” Id. ¶22. After the incident, Plaintiff was taken to UMass Trauma Center for emergency medical careincluding a CT scan andaconsultation to rule out eye surgery. Id.¶27. He suffered a ruptured eye socket, concussion, bloody nose, and bruising on his forehead and body. Id.¶32. The complaint alleges that after the incident, prison officials “fail[ed] to provide grievances”to Plaintiff, and “fail[ed] to answer grievance appeals ...which were wr[itten] on

paper and submitted [via the] in[-]house mail system ....” Id.¶24. Plaintiff also alleges generally that he “has exhausted his administrative remedies with respect to all claims ....” Id. ¶46. The complaint contains the following language concerning Defendant Evangelidis: The defendant Sheriff Evangeli[d]is[,] who failed to train or supervise senior officer Lt. Mara and the other officers [i]nvolved, and his failure to adopt policies to respondto a well[-]known pattern of violence by his officers toward detainees, is causally connected to the violation of the plaintiff’s rights. This failure to train or supervise or adopt policy has resulted in a dangerous recklessness by [the] policy maker, and with that knowle[d]ge his subordinates abandoned their constitutional duties to protect the plaintiff under governmental control. [The] [p]olicy maker’s recklessness thus affected the balance of “equities” between the mental health detainee and theGovernment [that] exercises such control. This

2Another individual, referred to as “non-defendant [H]arrison,” also entered Plaintiff’s cell. Docket #5 ¶16. abandon[]ment of responsibility by the officers involved as [a] result of [the] policy maker’s failure to act constitutes deliberate indifference to the plaintiff’s constitutional rights. Sheriff Evangeli[d]is’[s] failure to act contributed to and proximately caused the above-d[e]scribed violation of the fourth amendment, violating the plaintiff[’]s civil right[s] under 42 USC §1983 [and U.S.] Const. Amend. 4, 14. Id. ¶42. In lieu of answering the complaint, Defendants filed the instant Rule 12(b)(6) motion to dismiss,arguing that Plaintiff failed to exhaust his administrative remedies within the prison grievance system before filing this case. Seedocket #15 at 3. In support of dismissal, Defendants submitted anaffidavit ofDetective Daniel Melhouse, Inmate Grievance Coordinator at the Worcester County Sheriff’s Office, averringthat Plaintiffnever filed a grievance related to the September 27incident. Docket #15-1. Plaintiff requests in his opposition to dismissal that the Court “add [Detective] Mellhouse [sic] to this complaint due to his position of detective/special service[s] officer.” Docket #16 ¶ 11. Defendants also moved todismiss the complaint as to Evangelidis on the ground that,as asupervisor, he cannot be held liable in this section 1983 action under a respondeat superior theory of liability alone. Docket #15 at 4-5. Separately, Plaintiff has moved for appointment of counsel. Docket #11. Defendants havenot opposedthat motion. II. RULE 12(b)(6) STANDARD OF REVIEW When considering a motion to dismiss underRule12(b)(6) of the Federal Rules of Civil Procedure, the Court “must assumethe truth of all well-plead[ed] facts and give the plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Theplaintiff’s complaint must present a claim “that is plausible on its face.” Bell Atl.Corp. v. Twombly,550 U.S. 544, 570 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level,on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id.at 555(citations omitted). “The plausibility standard is not akin to a

‘probability requirement,’but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal,556 U.S. at 678(quotingTwombly, 550 U.S. at 556). Dismissal is appropriate if the plaintiff’swell-pleaded facts do not “possess enough heft to show that plaintiff is entitled to relief.” Ruiz Rivera v. Pfizer Pharms. LLC, 521 F.3d 76, 84 (1st Cir. 2008) (quotation and alterations omitted). Though most Rule 12(b)(6) motions “are premised on a plaintiff’s putative failure to state an actionable claim, such a motion may sometimes be premised on the inevitable success of an affirmative defense.” Nisselson v. Lernout,469 F.3d 143, 150 (1st Cir. 2006)(citations omitted). “As a general rule, a properly raised affirmative defense can be adjudicated on a

motion to dismiss so long as (i) the facts establishing the defense are definitely ascertainable from the complaint and the other allowable sources of information, and (ii) those facts suffice to establish the affirmative defense with certitude.” Rodi v. S. New Eng. Sch. of Law,389 F.3d 5, 12 (1st Cir. 2004)(citing In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 16 (1st Cir. 2003)). Put another way, “a complaint may be subject to dismissal under Rule 12(b)(6) when an affirmative defense . . . appears on its face.” Jones v. Bock,549 U.S. 199, 212(2007)(quoting Leveto v. Lapina, 258 F.3d 156, 161 (3rd Cir. 2001))(citations omitted). Generally, acomplaint filed pro se is “liberally construed” and held to “less stringent standards than formal pleadings drafted by lawyers.” Estelle v. Gamble,429 U.S. 97, 106 (1976) (quoting Haines v. Kerner,404 U.S. 519,520 (1972)). This does not mean pro se plaintiffs need not plead basic facts sufficient to state a claim, but it does afford pro se plaintiffs additional leniency when facing a motion to dismiss. SeeFerranti v. Moran,618 F.2d 888, 890 (1st Cir. 1980)(citation omitted). III. MOTION TO DISMISS: DEFENDANTS MARA, O’NEILL, AND SULLIVAN

Defendants’ move to dismiss the complaint as to Defendants Mara, O’Neill, and Sullivan on the ground that Plaintiff failed to exhaust administrative remedies as required by the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(the “PLRA”). That statute provides: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). “To exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison’s administrative rules require.” Acosta v. U.S. Marshals Serv., 445 F.3d 509,512(1st Cir. 2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002)). “This exhaustion requirement applies to allegations of physical violence by prison guards.” Cruz Berrios v. Gonzalez-Rosario, 630 F.3d 7, 11 (1st Cir. 2010) (citing Porter v. Nussle, 534 U.S. 516, 532(2002)). The reason for the requirement is “to reduce the quantity and improve the quality of prisoner suits”and to give prison officials “time and opportunity to address complaints internally before allowing the initiation of a federal case.” Porter, 534 U.S. at 524-25. An unexhausted claim is subject to dismissal. SeeMedina-Claudio v. Rodriguez- Mateo, 292 F.3d 31, 36(1st Cir. 2002). Acomplaint need not allege that a plaintiffhas exhausted administrative remedies under the PLRA. SeeJones, 549 U.S. at 216. Rather, a plaintiff’s failure to exhaust administrative remedies under the PLRA is an affirmative defense, and thus “must be raised and proved by the defense.” Cruz Berrios, 630 F.3d at 11 (citingJones,549 U.S. at 216). By its terms, the PLRA requires a prisoner plaintiff to exhaust only administrative remedies that “are available.” 42 U.S.C. § 1997e(a). A prison grievance process is not “available” for purposes of this exhaustion requirement ifprison officials refuse to provide a

grievance form upon request, or fail to respond to a grievancethat is properly filed. See, e.g., Ojo v. Medic, No. 11-cv-210-JL, 2012 WL 7150497, at *4-6(D.N.H. Dec. 17, 2012)(surveying Circuit Court precedent), report and recommendation adopted, 2013 WL 593485 (D.N.H. Feb. 14, 2013). Defendants argue that Plaintiff failed toexhaust administrative remedies through the prison grievance system, rendering his claims subject to dismissal. Seedocket #15 at 3. I reject that argument. Because the PLRA’s exhaustion requirement gives rise to an affirmative defense, Plaintiff’s alleged failure to exhaust administrative remedies cannot be grounds for dismissal unless the properly considered facts “suffice to establish” such failure “with certitude.” Rodi,

389 F.3d at 12(citation omitted). This requirement is not satisfied here: the complaint alleges that Defendants “fail[ed] to provide grievances,” and “failed to answer grievance appeals . . . which were wr[itten] on paper and submitted [via the] in[-]house mail system. ...”3 Docket #5¶24. In light of these factual allegations—which must be credited as true for purposes ofthe instant motion to dismiss—it is plausible that the prison grievance system was not “available” to Plaintiff,as required for the PLRA’s exhaustion requirement to apply. Cf. Ojo, 2012 WL 7150497, at *4-6. Accordingly, it cannot nowbe said “with certitude”that Plaintiff failed to exhaust available administrative remedies. Rodi,389 F.3d at 12(citation

3For purposes of the instantmotion, I have not consideredallegationscontained in Plaintiff’s opposition brief. omitted). I therefore recommend that themotion to dismiss be denied as to Mara, O’Neill,and Sullivan.4 IV. MOTION TO DISMISS: DEFENDANT EVANGELIDIS Defendants argue that Plaintiff’s claim against Defendant Evangelidis should be dismissed because Plaintiff has failed to allege a viable supervisory liability claim. Seedocket

#15 at 4-5. I agree and recommend that the motion to dismiss as to Evangelidis be granted. “Section 1983 does not impose purelysupervisoryliability; it aims at ‘persons who have actually abused their positions of authority,’ and hence ‘only persons who were directly involved in thewrongdoing may be held liable.’” Martinez-Velez v. Rey-Hernandez, 506 F.3d 32, 41 (1st Cir. 2007)(first quoting Rizzo v. Goode, 423 U.S. 362, 375-77 (1976), then quoting Kostka v. Hogg, 560 F.2d 37, 39 (1st Cir. 1977)). An exception to this rule provides that asupervisor can be held liable for a subordinate’s act if the plaintiff can show that the supervisor’s “action or inaction was affirmatively linkedto that behavior in the sense that it could be characterizedas supervisory encouragement, condonation,or acquiescence[,] orgross negligence amounting to

deliberate indifference.” Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 902 (1st Cir. 1988) (quotations, alterations, and emphasis omitted). This is a demanding standard. Martinez-Velez, 506 F.3d at 41 n.5 (citing Seekamp v. Michaud, 109 F.3d 802, 808 (1st Cir. 1997)). “[I]solated instances of unconstitutional activity ordinarily are insufficient to establish a supervisor’s policy or custom, or otherwise to show deliberate indifference.” Maldonado-Denis v. Castillo- Rodriguez, 23 F.3d 576, 582(1st Cir. 1994)(citations omitted).

4Because I reject Defendants’ argument concerning the PLRA’s exhaustion requirement, Idecline to address whether that requirement applies to Plaintiff’s state-law assault and battery claims. Judges in this District have declined to apply thePLRA’s exhaustion requirement to state-law claims. SeeShaheed-Muhammad v. DiPaolo, 393 F. Supp. 2d 80,92 n.5 (D. Mass. 2005);see alsoRamos v. Flynn, No. 06-cv-10645-GAO, 2009 WL 2207191, at *10, 13(D. Mass. July 22, 2009) (applying Massachusetts exhaustion law, not the PLRA,to a prisoner’s state-law claim against prison officials). Thus, I recommend that Plaintiff’s assault and battery claims survive the motion to dismiss. The complaint does not allege that Evangelidis was present duringtheSeptember 27 incident. Accordingly, Plaintiff must “affirmatively link[]”Evangelidis’s conduct to a subordinate’s violative act or omission. Lipsett, 864 F.2d at 902(quotation and alteration omitted). Here, the complaint’s only paragraph referencingEvangelidis alleges in general terms, with no supporting facts, that hefailed to train or supervise officers and failed to respond to a

well-known pattern of violence against inmates. Docket #5 ¶42. The complaint further states that those alleged failures are “causally connected to the violation of the plaintiff’s rights,” amount to “dangerous recklessness,” and caused “deliberate indifference to the plaintiff’s constitutional rights.” Id. This categorical language amounts to bare legal conclusions not properly credited when deciding a Rule 12(b)(6) motion to dismiss. See Iqbal, 556 U.S. at 678. Absent are any plausible factual allegations supporting the legal assertion that Evangelidis’s acts or omissions and Mara, O’Neill, or Sullivan’s conduct are affirmatively linked—for example, an allegation that a specific form of training or supervision was lacking; or that Evangelidis, by a specific act

or omission,encouraged, condoned, or acquiesced in Mara, O’Neill, or Sullivan’s conduct; or factual allegations evidencing “a well[-]known pattern of violence by [Evangelidis’s] officers toward detainees,” docket #5 ¶42. Accordingly, I recommend that themotion to dismiss as to Evangelidis be granted. V. MOTION FOR LEAVE TO AMEND THE COMPLAINT In his opposition to the motion to dismiss, Plaintiff requests that Detective Daniel Melhouse be added as a defendant in this action. Seedocket #16 ¶11. According to an affidavit in support of dismissal, Melhouseis a “Detective/Correctional Officer” in the Worcester County Sheriff’s Office’s Special Services Investigative Division. Docket #15-1 ¶ 1. Melhouse’s affidavit avers that he also serves as Inmate Grievance Coordinator, andin that capacity “oversee[s] all inmate grievances including the database and internal filing system which tracks all inmate grievances at the [Worcester County Sheriff’s Office].” Id.¶2. Liberally construing Plaintiff’s pro sefiling,seeEstelle,429 U.S. at 106, I recommend that the Court treat Plaintiff’s request to addMelhouse as a motion to amend the complaint, and

that the motion be denied without prejudice. Plaintiff should comply with Federal Rule of Civil Procedure 15 and Local Rule 15.1, and file with the Court a proposed amended complaint that includes specific allegations against Melhouse,in accordance with Federal Rule of Civil Procedure 8. VI. MOTION FOR APPOINTMENT OF COUNSEL Finally, Plaintiffmoves for appointment of counsel. “The court may request an attorney to represent any person unable to afford counsel”in acivil case.5 28 U.S.C. §1915(e)(1). The decisionwhetherto appoint pro bono counsel lies within the District Court’s sound discretion. SeeCookish v. Cunningham, 787 F. 2d 1, 2 (1st Cir. 1986). “The threshold question is whether

there are merits to the indigent litigant’s claim.” Childs v. Duckworth,705 F.2d 915, 922 (7th Cir. 1983). Other salient factors include the litigant’s abilityto present the case; the complexity of the legal and factual issues; the litigant’s ability to investigate disputed facts; and whetherthe evidence may involve conflicting testimony, requiring cross-examination by a lawyer. Seeid. Idecline to appoint counsel to represent Plaintiff at this time. As an initial matter, there is potential merit to Plaintiff’s claims; soappointing an attorney to represent him would not be futile. That said,Plaintiff has shown the ability to present his case. The complaint is well- written in complete sentences, and reflects an ability to communicate. Its citations demonstrate

5Judge Hillman has determined that Plaintiff is indigent. Seedocket #8 (granting Plaintiff’s IFP motion). familiarity with relevant caselaw and the ability to use legal authority to support arguments and claims. At the same time, the complaint contains a short and plain statement of Plaintiff’s claims. Indeed, Defendants do not seek dismissal as to those allegedly involved directly in the September 27 incident on the ground that the complaint’s facts are inadequately set forth. Plaintiff also is able to distinguish among alleged tortfeasors, bringing no claim against an

officer who entered his cell, but against whom there is no allegation of excessive force. See docket #5 ¶16. Moreover, the complaint reflects Plaintiff’s understanding of other legal concepts implicated in this case, including state action, excessive force, and exhaustionof administrative remedies. Similarly, Plaintiff’s opposition to themotion to dismiss, docket #16,is well-focused on a key issue—whether Plaintiff exhausted administrative remedies under the PLRA. The opposition recites a number of steps Plaintifftook to exhaust remedies,and,consistent with allegations in the complaint,alleges that prison officials interfered with and frustrated his ability to access the prison grievance system. It specificallyidentifies prison officials who allegedly

denied Plaintiff grievance forms, and dates on which Plaintiff allegedly sent in-house mail requesting grievance forms. Seeid.¶¶4-5; see alsoid.¶¶2-3. I also find that the lack of complexity of the issues supports denying the motion. The main issues litigated thus far areexcessive force and exhaustion of remedies; as noted, Plaintiff’s filings show he understands those issues and is able to litigate them. Nor does it currently appear that Plaintiff is unable to investigate factual issues under dispute, or that the case will require cross-examination beyond Plaintiff’s abilities. Accordingly, I deny the motion to appoint counsel without prejudice to refileif,at a future time, Plaintiff becomes unable to adequately represent himself in this action. Conclusion I RECOMMEND that Respondent’s motion to dismiss, docket #15, be DENIED as to Defendants Mara, O’Neill,and Sullivanand GRANTED as to Defendant Evangelidis; and I RECOMMEND that Plaintiff’s motion toamend the complaint,seedocket #16¶11, be DENIED WITHOUT PREJUDICE.6

Further, I ORDER that Petitioner’s motion for appointment of counsel,docket #11,is DENIED WITHOUT PREJUDICE.

/s/ David H. Hennessy David H. Hennessy United States Magistrate Judge

6The parties are notified that any party who objects to these proposed findings and recommendations must file a written objection thereto within fourteen days of receipt of this Report and Recommendation. The written objections must identify with specificity the portions of the proposed findings, recommendations, or report to which objection is made, and the basis for each objection. SeeFed. R. Civ. P. 72(b)(2). The U.S. Court of Appeals for the First Circuit has repeatedly indicated that failure to comply with this rule waives the right to review of this Report and Recommendation in the District Court and precludes appellate review of the District Court’s order based on this Report and Recommendation. E.g.,Brenner v. Williams-Sonoma, Inc., 867 F.3d 294, 297 n.7 (1st Cir. 2017) (citation omitted); Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168(1st Cir. 2016) (citations omitted); see also Thomas v. Arn, 474 U.S. 140 (1985).