Ferreira v. Corsini
| Decision Date | 11 August 2016 |
| Docket Number | CIVIL ACTION NO. 13-12863-IT |
| Parties | DANNY FERREIRA, Plaintiff, v. MICHAEL CORSINI, NELSON JULIUS, GREG HYDE and JUSTIN PRARIO, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
(DOCKET ENTRY # 28)
This case arises out of an alleged sexual assault on pro se plaintiff Danny Ferreira ("plaintiff") that took place on November 6, 2010 at the Massachusetts Department of Correction Treatment Center ("the Center") in Bridgewater, Massachusetts. (Docket Entry # 10). Pending before this court is a motion to dismiss filed by defendants Michael Corsini ("Corsini"), Nelson Julius ("Julius"), Greg Hyde ("Hyde") and Justin Prario ("Prario") under Fed.R.Civ.P. 12(b)(6) ("Rule 12(b)(6)"). (Docket Entry # 26).
Corsini, Julius, and Hyde seek to dismiss an amended complaint ("the complaint") based on lack of service of process. (Docket Entry # 26, p. 23). In opposing the motion to dismiss, plaintiff moves for an order of default under Mass.R.Civ.P. 55 ("Rule 55"). (Docket Entry # 17).
In addition to seeking dismissal based on insufficient service, Corsini, Julius, Hyde and Prario ("defendants") move to dismiss an Eighth Amendment claim alleging a violation of 42 U.S.C. § 1983 ("section 1983") grounded upon defendants' failure to protect plaintiff from the sexual assault and an equal protection claim alleging a section 1983 violation under Rule 12(b)(6). (Docket Entry # 26). They also seek qualified immunity on the Eighth Amendment claim. (Docket Entry # 26).
In seeking dismissal under Rule 12(b)(6) defendants argue: (1) the Eighth Amendment claim against Prario fails because he was not involved in the assault until being informed of the events on November 15, 2010 and the complaint fails to include any facts indicating that Prario knew or should have known of the threat of a sexual assault by Shawn Milliken ("Milliken"), an inmate at the Center, against plaintiff and, accordingly, there is an absence of facts to support the necessary element of deliberate indifference; (2) there is no supervisory liability on the part of Corsini and Julius based on the Eighth Amendment violation because they were not the primary violators or direct participants in the incident and had no knowledge of any substantial risk of harm to plaintiff; (3) there is no liability on the part of defendants based on a failure to train given the absence of facts in the complaint relative to training; and (4) defendants are entitled to qualified immunity on the Eighth Amendment claim because the law was clearly established that their conduct did not violate the Eighth Amendment. (Docket Entry # 26). In addition, defendants argue that any section 1983 claim based on a violation of equal protection regarding the decision to transfer plaintiff to North Central Correctional Institute ("NCCI") in Gardner, Massachusetts is subject to dismissal because it is conclusory and plaintiff is not a member of a suspect class. (Docket Entry # 26).
After defendants moved to dismiss the complaint, plaintiff moved to amend the complaint. (Docket Entry # 28). The proposed amended complaint ("amended complaint") is based on the same incident but adds additional facts; alters the prayer for relief; omits references to various statutes set out in the introductory paragraph of the complaint; reduces the causes of action to two section 1983 claims based on a failure to protect and a common law negligence claim; and removes a number of defendants named in the complaint, including Prario. (Docket Entry # 28). Corsini, Julius and Hyde, the named defendants in the amended complaint, oppose the motion to amend on the basis of futility and undue delay. (Docket Entry # 30).
The complaint raises a claim of deliberate indifference to the substantial risk of an inmate-to-inmate assault and a failure to intervene to protect plaintiff's safety under the Due Process Clause of the Fourteenth Amendment in violation of section 1983. (Docket Entry # 10, pp. 18, 19). It also raises a section 1983 claim based on the Equal Protection Clause. (Docket Entry # 10, p. 19). In addition, the complaint alleges violations of 42 U.S.C. § 1981 ("section 1981"), 42 U.S.C. § 1985 ("section 1985"); 18 U.S.C. § 241 ("section 241"); section 37 of Massachusetts General Laws chapter 265 ("section 37"); section one of Massachusetts General Laws chapter 231A ("section one"); and the "Civil Rights of Institutional Person Act of 1980." (Docket Entry # 10).1
In opposing the motion to amend, Corsini, Julius and Hyde argue that, for reasons set out in defendants' motion to dismiss related to service, the statute of limitations and the failure to protect claim, the amended complaint is futile. (Docket Entry # 30, pp. 2, 3). They also submit that the official capacity claims against them are futile. (Docket Entry # 30, p. 2). In addition to futility, Corsini, Julius and Hyde oppose the amendment as untimely. (Docket Entry # 30, p. 1).
Both the complaint and the amended complaint state that plaintiff is a prisoner civilly committed to the custody of the Massachusetts Department of Correction ("DOC"). (Docket Entry ## 10, 28-1). The complaint states that at all relevant times, plaintiff was under the care and custody of the Superintendent of the Center. (Docket Entry # 10, p. 3).
Corsini was Superintendent of the Center. (Docket Entry ## 10, 28-1). Julius was the Director of Security for the Center. (Docket Entry ## 10, 28-1). Hyde was a correctional officer at the Center. (Docket Entry ## 10, 28-1). Prario was a correctional officer of the Inner Perimeter Security Team ("IPS") at the Center. (Docket Entry # 10, p. 4). Each defendant is being sued in his official and individual capacities in the complaint. (Docket Entry # 10, pp. 3-5).
Defendants first seek to dismiss the complaint as to Corsini, Julius and Hyde based on insufficient service. The facts pertaining to service begin with plaintiff's attempt to serve defendants with the complaint. On November 25, 2014, this court directed the U.S. Marshal to serve a copy of the complaint as directed by plaintiff on defendants within 120 days. (Docket Entry # 12). Service was attempted on each defendant on May 1, 2015 at the Center. (Docket Entry # 15). On May 1, 2015 at 11:00 a.m., service was attempted on Corsini at the Center. (Docket Entry # 15, p. 1). As stated in the return of service, the U.S. Marshal attempting service noted that Corsini "was no longer at this facility." (Docket Entry # 15, p. 1). On May 1, 2015 at 11:00 a.m., service was attempted on Julius at the Center. (Docket Entry # 15, p. 1). As also stated in the return of service as to Julius, the U.S. Marshal attempting service noted that Julius "was no longer at institution." (Docket Entry # 15, p. 3). On May 1, 2015 at 11:00 a.m., service was attempted on Hyde at the Center. (Docket Entry # 15, p. 5). As reflected in the return of service as to Hyde, the U.S. Marshal attempting service remarked that Hyde "was no longer at facility." (Docket Entry # 15, p. 5). On May 1, 2015 at 11:00 a.m., service was successfully effectuated on Prario at the Center. (Docket Entry # 15, p. 7).
On November 4, 2015, plaintiff moved for an order of default against defendants due to their failure to answer or plead a defense. (Docket Entry # 17). According to plaintiff's affidavit attached to the motion for default, the U.S. Marshal's office served the summons and complaint on defendants. (Docket Entry # 17-1, p. 5).
After plaintiff moved for order of default, Corsini, Julius and Hyde entered a limited appearance for the purpose of asserting the defense of failure to make proper service. (Docket Entry # 18). Prario moved for an extension of time to file a response to plaintiff's motion for order of default, which was granted. (Docket Entry # 20). Prario then filed an opposition to the motion for entry of default. (Docket Entry # 24). Finally, in response to the motion to amend, Corsini, Julius and Hyde filed an opposition objecting to the amendment because of the continued failure to serve them with the amended complaint. (Docket Entry # 30).
In order to "exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987); see Vázquez-Robles v. CommoLoCo, Inc., 757 F.3d 1, 4 (1st Cir. 2014) () (citing Omni Capital, 484 U.S. at 104); United Elec., Radio & Mach. Workers of America v. 163 Pleasant St. Corp., 960 F.2d 1080, 1085 (1st Cir. 1992) ().
The burden of proof to establish proper service in accordance with Fed.R.Civ.P. 4 ("Rule 4") is upon the plaintiff. Vásquez-Robles v. CommoLoCo, Inc., 757 F.3d at 4 (); see also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 612 n.28 (1979) (); Lensel Lopez v. Cordero, 659 F.Supp. 889, 890 (D.P.R. 1987) (). Absent proof of service of process, a federal court lacks jurisdiction to render judgment against a defendant. See James v. United States, 709 F.Supp. 257, 259 (D.D.C. 1989).
In order to discharge the burden, it is not enough for plaintiff to rely on conclusory statements. See Sikhs for Justice v. Nath, 850 F.Supp.2d 435, 440 (S.D.N.Y. 2012). Rather, plaintiff must come forward with affidavits or other proof showing that proper service was...
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