Chao v. Ballista

• Decision Date: 01 July 2009
• Docket Number: C.A. No. 07cv10934-NG.
• Citation: 630 F.Supp.2d 170
• Parties: Christina CHAO, Plaintiff, v. Moises BALLISTA, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

630 F.Supp.2d 170

Christina CHAO, Plaintiff, v. Moises BALLISTA, et al., Defendants.

C.A. No. 07cv10934-NG.

United States District Court, D. Massachusetts.

July 1, 2009.

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Thomas J. Butters, Matthew D. Thompson, Butters Brazilian LLP, Stephen G. Dietrick, MA Department of Correction, Boston, MA, for Defendants.

George L. Garfinkle, Attorney at Law, Brookline, MA, Benjamin B. Weisbuch, Law Office of Benjamin Weisbuch, Newton, MA, for Plaintiff.

MEMORANDUM AND ORDER RE: MOTION TO DISMISS

GERTNER, District Judge:

I. INTRODUCTION

Plaintiff Christina Chao ("Chao") alleges that, as an inmate at South Middlesex Correctional Center ("SMCC"), she had 50 to 100 sexual encounters with Defendant Moises Ballista ("Ballista"), who was a guard at the prison, and that supervisory officials failed to protect her from what amounted to sexual abuse. The law presumes that a prisoner cannot consent to sexual relations with her keepers, and punishes such conduct criminally. See Mass. Gen. L. ch. 268, § 21A. While Ballista has been prosecuted for his actions, Chao now seeks to recover under 42 U.S.C. § 1983 for the supervisory officials' failure to properly investigate and prevent this abuse.

Defendants, who are or were various officials at the Massachusetts Department of Correction ("DOC"),¹ have filed this Motion to Dismiss the instant complaint on a number of grounds, including the statute of limitations, the failure to adequately plead the personal involvement of supervisory officials, and qualified immunity. Separately, Chao has sought to amend her complaint to state claims against the Defendants in their individual capacities and to bring Carl Spencer, Former Director of Security for SMCC, into this action as a defendant.

While the statute of limitations question require factual clarification as described below, the Court concludes that, at a minimum, some portion of Chao's suit will survive this bar. Likewise, the Defendants' pleading arguments are rejected, notwithstanding the Supreme Court's decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The facts alleged are more than enough to raise the plausible inference that Defendants failed to adequately train, supervise, or investigate Ballista's yearlong sexual encounters with Chao. Finally, Defendants' argument that they are entitled to qualified immunity mainly because Chao denied a sexual relationship when questioned by officials is extraordinary. Plaintiff was a prisoner, after all, subject to the coercive dynamics frequently at play in these institutions; moreover, her environment was fully controlled by prison officials, who had a wide range of ways to monitor Chao's activities and investigate repeated rumors of sexual misconduct. The notion that Defendants' liability somehow begins and ends with her denials makes no sense. For the reasons stated below, the Defendants' Motion to Dismiss (document # 42) is DENIED, and Plaintiff's Motion to Amend (document # 39) is GRANTED in part and DENIED in part.

II. MOTION TO DISMISS

A. Prison Litigation Reform Act

As an initial matter, the Defendants argue that Chao, who was released from custody in 2004, is barred from bringing her suit by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e. In particular, they suggest that Chao's failure to file a grievance, in keeping with prison administrative procedures, at the time of these sexual encounters is an obstacle to her Eighth Amendment claims. The Court finds this argument wholly unavailing. The PLRA was intended to discourage idle prisoners from filling the federal courts with frivolous lawsuits; thus, it prohibits actions "by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Id. The Act does not apply to former prisoners, who presumably have better things to do with their freedom than pursue meritless claims. See Ahmed v. Dragovich, 297 F.3d 201, 210 n. 10 (3d Cir.2002) (citing cases); Greig v. Goord, 169 F.3d 165, 167 (2d Cir.1999); Torres Rios v. Pereira Castillo, 545 F.Supp.2d 204, 206 (D.P.R.2007).

B. Statute of Limitations

The Defendants also argue that this suit is barred by the three-year statute of limitations applicable to claims under 42 U.S.C. § 1983. See Street v. Vose, 936 F.2d 38, 39-40 (1st Cir.1991) (applying most closely analogous state statute of limitations to actions under Section 1983) (citing Mass. Gen. L. ch. 260, § 2A). Ballista began approaching Chao for sex in mid-2003, however the parties dispute whether these encounters ended in May 2004 or several months after that time. Because the instant suit was filed on May 16, 2007, the Defendants claim that all of the relevant events fall outside the three-year limitations period and therefore the case should be dismissed.

The Court must resolve, however, whether the Massachusetts "savings statute," Mass. Gen. L. ch. 260, § 32, applies to this action, which would bring Chao's claims within the statute of limitations. The savings statute provides one year for re-filing any suit dismissed "for any matter of form"—and that appears to be precisely what occurred in this case. Id. The instant suit was brought on the heels of an earlier complaint—filed August 3, 2006— which raised identical claims before Chief Judge Wolf. See Chao v. Ballista et al., Case No. 06-cv-11351. That complaint was dismissed without prejudice on April 23, 2007, for insufficient service of process under Fed.R.Civ.P. 4(j)(2), because the Plaintiff had only made service on the Massachusetts Attorney General's office, not the Department of Correction. See Mass. R. Civ. P. 4(d)(3).

There is no question that the first complaint was timely filed. And because Section 1983 draws upon state law for its statute of limitations, a state savings statute like Mass. Gen. L. ch. 260, § 32 is applicable. See Corliss v. City of Fall River, 397 F.Supp.2d 260 (D.Mass.2005) (applying saving statute to § 1983 suit), cited approvingly in Picciotto v. Continental Cos. Co., 512 F.3d 9, 19 (1st Cir.2008); Baker v. Chisom, 501 F.3d 920, 922 (8th Cir.2007) (holding Arkansas saving statute applicable to § 1983 claims). The savings statute provides in full:

If an action duly commenced within the time limited in this chapter is dismissed for insufficient service of process by reason of an unavoidable accident or of a default or neglect of the officer to whom such process is committed or is dismissed because of the death of a party or for any matter of form, or if, after judgment for the plaintiff, the judgment of any court is vacated or reversed, the plaintiff or any person claiming under him may commence a new action for the same cause within one year after the dismissal or other determination of the original action, or after the reversal of the judgment; and if the cause of action by law survives the executor or administrator or the heir or devisee of the plaintiff may commence such new action within said year.

Mass. Gen. L. ch. 260, § 32. In the Defendants' view, the savings statute only applies to the types of insufficient service of process specifically identified above—not, as here, after a suit has been dismissed for failure to comply with the service requirements of Fed.R.Civ.P. 4(j)(2) and Mass. R. Civ. P. 4(d)(3). They argue that the residual clause, "or for any matter of form," refers to other kinds of defects, such as filing an action in the wrong court or lack of personal jurisdiction.

Yet both the text of the statute and other courts' interpretation of this language belie the Defendants' position. The statute's residual clause does not express the type of limitation desired by the Defendants, but reflects the legislature's broad purpose to extend the time for filing suits dismissed for "any matter of form." Mass. Gen. L. ch. 260, § 32 (emphasis added). One such technicality, as the statute's examples convey, is defective service of process. Massachusetts courts have long interpreted the statute with precisely this breadth: "The provisions of G.L. c. 260, § 32, are to be construed liberally, in the interest of determining the parties' rights on the merits." Boutiette v. Dickinson, 54 Mass.App.Ct. 817, 818, 768 N.E.2d 562 (2002); see Liberace v. Conway, 31 Mass.App.Ct. 40, 42, 574 N.E.2d 1010 (1991) (identifying a "disposition not to clip the wings of the statute through narrow interpretation, so long as the plaintiff had given the defendant timely notice of recourse to a court"); Coffin v. Cottle, 33 Mass. 383, 16 Pick. 383, 385-86 (1835) (describing § 32's predecessor, Stat. 1786, ch. 52, § 1, as a "remedial statute" to be given liberal construction where "the plaintiff has been defeated by some matter not affecting the merits"); Loomer v. Dionne, 338 Mass. 348, 352, 155 N.E.2d 411 (1959) (suggesting that only a case of "gross negligence" will preclude a plaintiff from taking advantage of ch. 260, § 32). Accordingly, the Court finds that the Massachusetts savings statute may apply to a suit dismissed for the reasons here.

Even if the savings statute attaches to Chao's second complaint, the Defendants argue that it should only reach back to the date on which they had "actual notice" of Chao's lawsuit. As they point out, the "touchstone for what constitutes dismissal for reasons of matter of form is whether, within the original statute of limitations period, the defendant had actual notice that a court action had been initiated." Hallisey v. Bearse, 60 Mass.App.Ct. 916, 916, 805 N.E.2d 515 (2004) (quoting Liberace, 31 Mass.App.Ct. at 44, 574 N.E.2d 1010). In support, the Defendants have now submitted affidavits stating that they did not receive actual notice of Chao's lawsuit until they were served individually, on dates ranging from March 12 to April 26, 2007. See ...