(PC) Bowell v. California Department of Corrections

Opinion

JAMES BOWELL, No. 2:17-cv-0981 KJM KJN P Plaintiff, v. CORRECTIONS, et al., RECOMMENDATIONS Defendants. Plaintiff is a state prisoner, who proceeds without counsel and in forma pauperis, in this civil rights action filed pursuant to 42 U.S.C. § 1983. This case proceeds on the first amended complaint, against defendants K. Allison and J. Lewis.1 Presently pending are defendants’ motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), and motion to strike plaintiff’s unauthorized filings, and request for judicial notice. For the reasons that follow, the undersigned grants the motion to strike and the request for judicial notice, and recommends that defendants be granted qualified immunity. I. The First Amended Complaint Plaintiff alleges violations of his Eighth, Ninth and Fourteenth Amendment rights based on forced tuberculosis (“TB”) skin tests, citing Mills v. Rogers, 457 U.S. 291 (1982), and Rogers 1 Defendants Fitter and Ha and plaintiff’s putative state law claims were dismissed based on plaintiff’s voluntary requests. (ECF Nos. 52, 55, 62.) v. Okin, 478 F. Supp. 1342 (1979). Plaintiff alleges that on an unidentified date he was forced to have a TB skin test, which he claims caused a “resurgence” of his skin cancer on May 3, 2016. (ECF No. 16 at 3.) He cites California Code of Regulations, Title 15 § 3351(e). (ECF No. 16 at 4.) Plaintiff also claims that defendants deprived plaintiff of his right to refuse TB test injections which should not be administered to persons who previously experienced a severe reaction. (ECF No. 16 at 7, citing pgs. 16, 27, 31, & 57-59.) Plaintiff alleges that defendant Allison, the Director of the Division of Adult Institutions, Sacramento, California, is directly responsible for enforcing the annual tuberculosis skin test, and requiring that inmates who refuse the test will receive a CDCR-115 rule violation. Plaintiff refers to and provides the 2015 notice requiring annual inmate TB testing, which states that California State Law requires that every inmate be tested yearly for TB. (ECF No. 16 at 4, 14.) The notice states that inmates who refuse the test “will be evaluated for forced testing, which could result in disciplinary action.” (ECF No. 16 at 14.) Further, plaintiff alleges that J. Lewis, Deputy Director, is in charge of Policy & Risk Management Services for the California Correctional Health Care Services, and personally participates in forcing prisoners to receive injections of Aplisol and Tubersol chemicals. (ECF No. 16 at 3.) Plaintiff alleges such chemicals are described as carcinogens, and accompanied by certain high risk warnings. (ECF No. 16 at 3, 25-34.) Plaintiff seeks money damages.2 (ECF No. 16 at 12.) II. Defendants’ Motion to Strike Plaintiff filed multiple documents in response to defendants’ motion to dismiss and reply. On October 30, 2019, plaintiff was granted an extension of time to file one opposition to the motion to dismiss. (ECF No. 61.) On November 12, 2019, plaintiff filed his opposition.3 (ECF No. 64.) On November 20, 2019, defendants filed a motion to strike plaintiff’s subsequently-filed

2 Plaintiff also sought appointment of counsel, which was denied on March 6, 2020. (ECF No. 72.) 3 Plaintiff’s opposition was signed November 5, 2019, and specifically references the court’s order (ECF No. 61) in the title of his opposition. (ECF No. 64.) addendum and supporting authority. (ECF Nos. 65 & 66.) Plaintiff filed objections to the motion to strike based on his status as a prisoner, but then further argued the merits of his opposition to the motion, and included facts and exhibits concerning medical treatment at R.J. Donovan for an unrelated medical condition concerning his eye. (ECF No. 68.) The Local Rules do not authorize the routine filing of a sur-reply. Nevertheless, a district court may allow a sur-reply “where a valid reason for such additional briefing exists, such as where the movant raises new arguments in its reply brief.” Hill v. England, 2005 WL 3031136, at *1 (E.D. Cal. 2005); accord Norwood v. Byers, 2013 WL 3330643, at *3 (E.D. Cal. 2013) (granting the motion to strike the sur-reply because “defendants did not raise new arguments in their reply that necessitated additional argument from plaintiff, plaintiff did not seek leave to file a sur-reply before actually filing it, and the arguments in the sur-reply do not alter the analysis below”), adopted, 2013 WL 5156572 (E.D. Cal. 2013). In the present case, defendants opted not to file a reply. Plaintiff did not seek leave to file a sur-reply, and his reiterated arguments and supplemental authorities do not alter the court’s analysis. For these reasons, defendants’ motion to strike is granted, and the court strikes plaintiff’s filings (ECF Nos. 65 and 66). III. Defendants’ Request for Judicial Notice Defendants request the court take judicial notice of California Penal Code §§ 7570, 7572, 7573, and 7574, and California Code of Regulations, Title 15 § 3351, all governing mandatory TB testing. (ECF No. 56-2.) Plaintiff did not address defendants’ request. The court may judicially notice a fact not subject to reasonable dispute because it “(1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Judicial notice is proper for public records whose accuracy is not in dispute. See Anderson v. Holder, 673 F.3d 1089, 1094 n.1 (9th Cir. 2012) (“[A court] may take judicial notice of records and reports of administrative bodies.” (internal quotation marks omitted)); United States v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003) (same). In addition, courts may take judicial notice of state statutes and their legislative history. See Anderson, 673 F.3d at 1094 n.1 (“Legislative history is properly a subject of judicial notice.”); Chaker v. Crogan, 428 F.3d 1215, 1223 n.8 (9th Cir. 2005) (taking judicial notice of the legislative history of California Penal Code § 148.6). The Court finds the requested judicial notice is appropriate. The state statutes and regulation provided by defendants contain facts that can be readily determined from accurate sources. Moreover, in his operative pleading, plaintiff referred to and provided the notice that California state law requires the administration of TB tests, and that forced testing may be imposed. (ECF No. 16 at 14.) Plaintiff also cites to California Code of Regulations, Title 15 § 3351. (ECF No. 16 at 4.) Accordingly, the Court takes judicial notice of such documents, “without converting the motion to dismiss into a motion for summary judgment.” Ritchie, 342 F.3d at 908 (citations omitted). IV. Motion to Dismiss In screening plaintiff’s pleading, the undersigned found that plaintiff stated potentially cognizable Fourth and Fourteenth Amendment claims based on his allegations that he was involuntarily forced to submit to a TB skin test. (ECF No. 16 at 3.) A. Legal Standards Governing Motion to Dismiss Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “As a general rule, ‘a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.’” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (quoting Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994)). Otherwise, the motion is treated as one for summary judgment. Id. There are exceptions for material which is properly submitted as part of the complaint and “matters of public record” which may be judicially noticed. Id. at 688-89. “If the documents are not physically attached to the complaint, they may be considered if the documents’ ‘authenticity . . . is not contested’ and ‘the plaintiff’s complaint necessarily relies’ on them.” Id. at 688(quoting Parrino v. FHD, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998). A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court’s liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). B. The Parties’ Positions 1. Defendants’ Motion Defendants contend that plaintiff fails to state a claim for administration of a TB skin test. First, plaintiff fails to identify the particular administration of the TB test he challenges. He does not allege any facts regarding when or how he was forcibly subjected to a test he allegedly refused, or how the defendants participated in the administration of such test, including the April 29, 2016 test mentioned in the appended exhibits. Plaintiff does not allege how any testing mentioned in his pleading or its attachments was “unreasonable or inconsistent with the penological goal of protecting the health and safety of inmates and staff.” (ECF No. 56-1 at 3, citing Washington v. Cambra, No. C 95-3216 TEH, 1996 WL 507313, at *4 (N.D. Cal. Aug. 27, 1996.) Second, defendants argue that plaintiff’s unexplained reliance on California Code of Regulations (“CCR”) section 3351(e) is unavailing because it expressly exempts TB tests, and California Penal Code section 7574 permits the involuntary testing of an inmate. Id. Also, in Rhinehart, the district court evaluated medical “treatment” under a similar section, CCR section 3355, and found that section 3355 did not apply “because the TB test alone was not intended as a treatment or medication, but rather was intended to “prevent the spread of an infectious disease.” Rhinehart v. Gomez, No. 93-cv-3747, 1995 WL 364339, at *4 (N.D. Cal. June 8, 1995). Plaintiff fails to show how the administration of the TB test was unreasonable, and defendants contend the mere administration of the test, standing alone, is insufficient to state a claim. Further, defendants argue they are entitled to qualified immunity because there is no established law finding that the involuntary administration of a TB test violates an individual’s due process rights. Tuberculosis “is a highly contagious disease in prison populations,” and protecting inmates’ health and preventing the spread of disease in prison are legitimate penological goals. Funtanilla v. Campbell, 95 F.3d 1157 (9th Cir. 1996). California Penal Code Section 7574 has provided for mandatory TB testing since at least 2012, and both defendants acted in compliance with § 7574 by mandating annual TB testing, and would not have reasonably believed or understood such conduct to be unlawful. Similarly, defendants are entitled to qualified immunity from plaintiff’s Fourth Amendment claim because there is no binding case law finding a Fourth Amendment violation for the general administration of a TB skin test. Finally, defendants ask the court to disregard plaintiff’s claims that defendant Lewis failed to provide plaintiff a waiver to comply with a TB test because plaintiff fails to identify the particular TB test at issue, and plaintiff’s exhibits demonstrate he was aware of the change in policy in May 2016 that permits inmates to opt out of TB testing, undercutting any claim by plaintiff that he was forced to submit to a TB test after May of 2016. (ECF No. 56-1 at 7.) //// 2. Plaintiff’s Opposition On November 12, 2019, plaintiff filed a four-sentence opposition signed under penalty of perjury. Plaintiff claims that “[t]he California Dept. of Corrections and Rehabilitation is liable for the ‘cancer causation’ created via state personnel and contracted physicians,” and is “fully responsible for monetary damages in civil jury trial.” (ECF No. 64 at 1.) Plaintiff claims this makes “qualified immunity inapplicable issue for” defendants. (Id.) C. State Laws and Regulations Governing TB Testing Tuberculosis testing in California prisons is required under California Penal Code § 7570: [T]he Legislature hereby finds and declares that tuberculosis is a serious contagious disease. It is vital to the health and safety of inmates, employees, and the public at large, to conduct appropriate examinations, testing, and treatment in order to control the spread of tuberculosis in California's institutions. Id. (ECF No. 56-2 at 5.) “The chief of medical services, or his or her designee” is tasked with “full powers” to investigate incidents of TB and to “ascertain the source” of such infection. Cal. Penal Code § 7572. (ECF No. 56-2 at 6.) The chief medical officer of a state prison is authorized to administer TB tests “on all inmates” “at least annually.” Cal. Penal Code § 7573(b). (ECF No. 56-2 at 7.) Moreover, prison staff may test inmates against their will and may impose disciplinary action against an inmate who refuses to be tested. Cal. Penal Code § 7574. (ECF No. 56-2 at 8.) California Code of Regulations, Title 15 § 3351(e) confirms that involuntary testing for TB is permitted: Health care treatment, including medication, shall not be forced over the objections of a mentally competent inmate; the guardian of a mentally incompetent inmate; or a responsible relative of a minor inmate, except in an emergency, or as required to complete the examination or tests for tuberculosis infection, or to implement the treatment for tuberculosis disease, or unless the provisions of Probate Code Sections 3200 et seq. or the procedures set forth in Penal Code (PC) Section 2602 are followed. Cal. Code Regs. tit. 15, § 3351(e). (ECF No. 56-2 at 11.) //// //// //// V. Qualified Immunity A. Legal Standards Qualified immunity applies when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. White v. Pauly, 137 S. Ct. 548, 551 (2017). Officers are entitled to qualified immunity under § 1983 unless (1) the officers violate a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was “clearly established at the time.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018); White, 137 S. Ct. at 551. “Clearly established” means that the statutory or constitutional question was “beyond debate,” such that every reasonable official would understand that what he is doing is unlawful. See Wesby, 138 S. Ct. at 589; Vos v. City of Newport Beach, 892 F.3d 1024, 1035 (9th Cir. 2018). This is a “demanding standard” that protects “all but the plainly incompetent or those who knowingly violate the law.” Wesby, 138 S. Ct. at 589 (citing Malley v. Briggs, 475 U.S. 335, 341 (1986)). To be “clearly established,” a rule must be dictated by controlling authority or by a robust consensus of cases of persuasive authority. Wesby, 138 S. Ct. at 589; see also Perez v. City of Roseville, 882 F.3d 843, 856-57 (9th Cir. 2018) (noting that Ninth Circuit precedent is sufficient to meet the “clearly established” prong of qualified immunity); Hamby v. Hammond, 821 F.3d 1085, 1095 (9th Cir. 2016) (“[D]istrict court decisions -- unlike those from the courts of appeals -- do not necessarily settle constitutional standards or prevent repeated claims of qualified immunity.”). In examining whether a rule/right is clearly established, courts are to define the law to a “high degree of specificity,” and not “at a high level of generality.” Wesby, 138 S. Ct. at 590; Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018). The key question is “whether the violative nature of particular conduct is clearly established” in the specific context of the case. Vos, 892 F.3d at 1035 (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). Although it is not necessary to identify a case that is “directly on point,” generally the plaintiff needs to identify where an officer acting under similar circumstances was held to have violated federal right. Wesby, 138 U.S. at 577; Vos, 892 F.3d at 1035; Felarca v. Birgeneau, 891 F.3d 809, 822 (9th Cir. 2018); Shafer v. City of Santa Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017). In a § 1983 action, plaintiffs bear the burden of showing defendants violated their clearly established rights. Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991); see also LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000) (“Once the defense of qualified immunity is raised by the defendant, the plaintiff bears the burden of showing that the rights allegedly violated were ‘clearly established.’” (citation omitted)). “If that burden is satisfied, the defendant must prove that his conduct was ‘reasonable.’” LSO, Ltd., 205 F.3d at 1157. B. Discussion Defendants invoke qualified immunity on both plaintiff’s Fourth and Fourteenth Amendment claims. In opposition, plaintiff cites no authority demonstrating that defendants are not entitled to qualified immunity on either claim. (ECF No. 64.) Plaintiff does not argue that there was no legitimate penological purpose for the TB skin tests he was required to have. Thus, plaintiff fails to bear his burden to show that the rights plaintiff alleges were violated were clearly established. “[T]uberculosis is particularly dangerous in a prison environment, where overcrowding and poor ventilation can hasten the spread of this airborne disease.” See Madrid v. Gomez, 889 F. Supp. 1146, 1205 (N.D. Cal. 1995). As early as 1993, the State of California has recognized that tuberculosis is a serious contagious disease, which presents a serious risk to inmates’ health. Cal. Penal Code Section 7570 (effective Oct. 8, 1993). The notice to inmates provided by plaintiff confirms that the TB skin test is required under California state law, and explains the serious nature of TB and why the TB skin test is important. (ECF No. 16 at 14.) Such legislative action demonstrates that the requirement that prison inmates be tested for TB on an annual basis is a legitimate penological goal in order to avoid the spread of a contagious disease and the serious risk to the health of other inmates and prison staff. No party has cited, and the undersigned has not found, a published Ninth Circuit or Supreme Court case addressing the mandatory or forced administration of TB tests on prison inmates. However, in unreported decisions, two California district courts have upheld the punishment of inmates who refused the TB test. Washington v. Cambra, 1996 WL 507313 at 2-4; Rhinehart, 1995 WL 364339 at *4 (Washington v. Harper justifies prison policy of involuntary testing and treatment for TB). Other courts outside the Ninth Circuit have similarly upheld mandatory and forced TB testing of prisoners. See Mack v. Campbell, 1991 WL 243569 (6th Cir. 1991) (administrative segregation for refusing TB screening test does not violate due process); Karolis v. New Jersey Dept. of Corr., 935 F. Supp. 523, 527-28 (D. N.J. 1996) (involuntary administration of TB test to prisoner upheld against challenge under Religious Freedom Restoration Act because there is a compelling interest in stopping the spread of TB in a prison); Hasenmeier-McCarthy v. Rose, 986 F. Supp. 464 (S.D. Ohio Jan. 7, 1998) (mandatory TB testing accomplished legitimate penological interest of protecting other inmates and staff from infectious diseases); Dunn v. Zenk, 2007 WL 2904170, at *3 (N.D. Ga. Oct. 1, 2007) (“states have a legitimate penological interest in controlling the spread of tuberculosis such that involuntary administration of a test for the disease does not offend the Constitution,” finding the former inmate’s claim that he was forced to take the TB test against his will failed to state a cognizable civil rights claim.). In Rhinehart, the plaintiff, a practicing Muslim, argued in his underlying administrative appeal that his religious beliefs prevented him from submitting to mandatory TB testing, but in his moving papers argued that the TB testing violates due process by “unjustified intrusions [sic] on personal security.” Id. at *1. Rhinehart was physically compelled by prison staff to submit to TB testing during a cell extraction. The district court relied on Harper, 494 U.S. at 210, to find that the defendants had a “right to administer involuntary TB tests because the tests can prevent harm both to the prisoner and to others,” and such legitimate interest outweighed Rhinehart’s interests. Rhinehart, 1995 WL 364339 at *3. In Cambra, two inmates refused to submit to TB testing because they had been tested twelve weeks prior. Prison staff forcibly extracted the inmates from their cell using pepper spray so the inmates could be involuntarily tested for TB. The district court stated that, absent a showing that TB testing is reasonably related to a legitimate penological goal, TB testing may violate a prisoner’s constitutional rights under the Fourth or Fourteenth Amendments, but concluded that the practice of testing inmates when they arrived at the prison, and again twelve weeks later to determine whether the inmate had been exposed to TB, was reasonable and constitutional. Cambra, 1996 WL 507313, at *3. Here, plaintiff does not allege that either defendant physically forced plaintiff to take TB tests, or that he was otherwise punished for any alleged refusal to be tested. Rather, plaintiff argues that defendants required or enforced the TB tests, and defendant Lewis refused to exempt plaintiff from the April 29, 2016 TB testing. In determining whether defendants are entitled to qualified immunity, the question is whether it would have been clear to a reasonable Director or Deputy Director knowing what such defendants knew, viewed in the light most favorable to plaintiff, that requiring or enforcing mandatory TB testing as required under California state law posed such a substantial risk of serious harm that it would be constitutionally impermissible. Plaintiff’s amended complaint and its attachments, viewed in the light most favorable to plaintiff, confirms that defendants were acting in compliance with California state statutes. Defendants were obligated to test plaintiff for TB under California law, and had authority to impose TB tests on prisoners involuntarily. Cal. Penal Code Sections 7570, 7574. Such code sections have not been found to be unconstitutional. Moreover, at the time of this incident, it was not clearly established that prison administrators tasked with requiring or enforcing the administration of annual mandatory TB testing would violate an inmate’s constitutional rights by doing so. Plaintiff provides no legal authority demonstrating defendants violated any established constitutional right. Plaintiff cites no legal authority showing that it is beyond debate that enforcing the annual mandatory TB testing for prison inmates, required under state law, is not performed for a legitimate penological goal, or that defendants would not have reasonably believed or understood their conduct in enforcing the requirement would be lawful. Indeed, he provided no legal authority in opposition to defendants’ motion.4 The undersigned finds that a reasonable Director or Deputy Director in defendants’ 4 In his pleading, plaintiff relies on Mills v. Rogers, 457 U.S. 291 (1982), and Rogers v. Okin, 478 F. Supp. 1342 (D. Mass. 1979). In Mills, the Court addressed the involuntary administration of antipsychotic medications for involuntarily committed mental health patients, and therefore is distinguishable from the instant case. Id. Rogers, an out-of-circuit district court case, addressed whether a committed, mentally ill patient could, without a judicial proceeding, be forced to take mind-altering drugs in a non-emergency situation, and thus is distinguishable and also has no persuasive value. Rogers, 478 F. Supp. 1342, aff’d in part, rev’d in part and remanded, 634 F.2d MASE 2b POU YO LING INTTING IN VUUTIOCTIL OU POC VEO e OY AO VE te

positions could have believed that requiring or enforcing a TB test on plaintiff did not offend the Constitution, under either the Fourth or the Fourteenth Amendments. Therefore, the undersigned recommends that defendants be granted qualified immunity and this action be dismissed. VI. Conclusion For the foregoing reasons, IT IS HEREBY ORDERED that: 1. Defendants’ motion (ECF No. 67) to strike is granted; 2. Plaintiffs filings (ECF Nos. 65, 66) are stricken; 3. Defendants’ request for judicial notice (ECF No. 56) is granted. Further, IT IS RECOMMENDED that: 1. Defendants’ motion to dismiss (ECF No. 56) be granted in part; 2. Defendants be granted qualified immunity; and 3. This action be dismissed without prejudice. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within twenty-one days after being served with these findings and recommendations, petitioner any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). Dated: July 30, 2020 Aectl Aharon UNITED STATES MAGISTRATE JUDGE /vowe0981.mtd.12b6 650 Cist Cir. 1980), vacated and remanded sub nom., Mills v. Rogers, 457 U.S. 291 (1982), certified questions answered sub nom., Rogers v. Commissioner of Mental Health, 390 Mass. 489, 458 N.E.2d 308 (1983), remanded, Rogers v. Okin, 738 F.2d 1 (1st Cir. 1984). 12