Latimore v. Tompkins

• Docket Number: Civil Action 14-13378-MBB
• Decision Date: 03 December 2021
• Parties: JASON LATIMORE, Plaintiff, v. SHERIFF STEVEN TOMPKINS, KENNETH TROTMAN, RYAN DORGAN, ROSEANNE BARROWS, RICHARD LIBBY, PAULA SULLIVAN, and DANIEL ALLEN, Defendants.
• Court: U.S. District Court — District of Massachusetts

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JASON LATIMORE, Plaintiff, v. SHERIFF STEVEN TOMPKINS, KENNETH TROTMAN, RYAN DORGAN, ROSEANNE BARROWS, RICHARD LIBBY, PAULA SULLIVAN, and DANIEL ALLEN, Defendants.

Civil Action No. 14-13378-MBB

United States District Court, D. Massachusetts

December 3, 2021

MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 242)

MARIANNE B. BOWLER, United States Magistrate Judge

Pending before this court is a motion for summary judgment filed by defendants Kenneth Trotman (“Trotman”), Ryan Dorgan (“Dorgan”), Roseanne Barrows (“Barrows”), Richard Libby (“Libby”) Paula Sullivan (“Sullivan”), and Daniel Allen (“Allen”) (collectively “defendants”). (Docket Entry # 242). Plaintiff Jason Latimore (“plaintiff”) opposes the motion. (Docket Entry # 252).

PROCEDURAL BACKGROUND

In August 2014, plaintiff filed a pro se complaint against the Suffolk County House of Correction (“SCHOC”) and two John Doe Correctional Officers.^[1] (Docket Entry # 1). SCHOC moved to dismiss the complaint under Fed R. Civ. P. 12(b)(6) (“Rule 12(b)(6)”) (Docket Entry # 9), which this court allowed (Docket Entry # 24) on December 1 2015.^[2] Docketed one day after the dismissal but filed prior to the dismissal under the mailbox rule, plaintiff moved to amend the original complaint and filed a proposed amended complaint. (Docket Entry ## 25, 25-1). On January 8, 2016, this court allowed the motion to amend and explicitly advised plaintiff that, “An amended complaint supersedes an original complaint, Brait Builders Corp. v. Mass., Div. of Cap. Asset Mgt., 644 F.3d 5, 9 (1st Cir. 2011), and the defendants in this action are therefore only Kenneth Trotman and Ryan Dorgan.” On March 3, 2016, this court ordered (Docket Entry # 35) the clerk to issue summonses to the defendants named in the amended complaint (Trotman and Dorgan) (Docket Entry # 37), and they both waived service (Docket Entry ## 42, 43). At an October 25, 2016 hearing, this court allowed plaintiff leave to file an amended complaint on or before November 15, 2016, as “the operative complaint.” (Docket Entry # 92). Plaintiff filed the operative complaint on November 15, 2016. (Docket Entry # 100).

As set out in a subsequent Memorandum and Order (Docket Entry # 157, pp. 2-3), ^[3] this operative complaint sets out the following claims: (1) conversion against Trotman, Dorgan, and Barrows (“Count I”); (2) violations of the First Amendment under 42 U.S.C. § 1983 (“section 1983”) against Trotman and Dorgan (“Count II”); (3) a section 1983 deprivation of counsel in violation of the Sixth Amendment against Trotman and Dorgan (“Count III”); (4) a section 1983 deprivation of due process in violation of the Fourteenth Amendment against Trotman, Dorgan, and Barrows (“Count IV”); (5) violations of the Massachusetts Civil Rights Act, section 11I of Massachusetts General Laws chapter 12 (“MCRA”), against Trotman, Dorgan, and Barrows for a May 29, 2014 incident and Trotman for an August 7, 2014 incident (“Count V”) (Docket Entry # 100, ¶¶ 68-73) (Docket Entry # 157, pp. 2, 12-15); (6) intentional infliction of emotional distress (“IIED”) against Trotman, Dorgan, and Barrows (“Count VI”); (7) a section 1983 claim of improper supervision resulting in the destruction of legal materials in violation of the Fourteenth Amendment against Barrows (“Count VII”); (8) a failure to train, supervise, and discipline as well as fostering a hostile work environment resulting in violations of the Eighth and Fourteenth Amendments against defendant Sheriff Steven Tompkins (“Tompkins”) (“Count VIII”); and (9) section 1983 claims of breaches of equal protection and substantive due process under the Fourteenth Amendment and cruel and unusual punishment under the Eighth Amendment against Trotman, Dorgan, and Barrows, and, as to Tompkins, the Eighth Amendment (“Count IX”). (Docket Entry # 100) (Docket Entry # 157, pp. 2-3).

On December 23, 2016, Trotman, Dorgan, Barrows, and Tompkins filed a Rule 12(b)(6) motion to dismiss all claims made against them in their official capacity. (Docket Entry # 105). In an opposition to the motion to dismiss, plaintiff conceded that such claims should be dismissed. (Docket Entry # 108, p. 2). Trotman, Dorgan, and Barrows further moved to dismiss Count V alleging the MCRA violations, Count VI setting out the IIED claim, and Count IX with respect to the alleged equal protection violation. (Docket Entry ## 105, 106). Tompkins sought to dismiss “all counts” asserted against him, i.e., Counts VIII and IX, because he did not participate in the underlying incidents and respondeat superior does not apply to section 1983 claims. (Docket Entry # 106).

On August 23, 2017, this court allowed in part and denied in part the motion (Docket Entry # 105) to dismiss.^[4] (Docket Entry # 157). In particular, this court dismissed all claims against Trotman, Dorgan, Barrows, and Tompkins in their official capacities; Count V (the MCRA claim) against Barrows and Dorgan; Count V against Trotman as it relates to the May 29, 2014 incident against Trotman;^[5] Count VI (the IIED claim) as it relates to the August 7, 2014 incident; Count XIII against Tompkins; the equal protection claims in Count IX; and the Eighth Amendment claim in Count IX against Tompkins. (Docket Entry # 157, p. 28).

The Memorandum and Order on the motion to dismiss comprehensively sets out the factual allegations in the operative complaint. (Docket Entry # 157, pp. 5-11). The operative complaint depicts the events regarding the May 29, 2014 incident, which resulted in missing or destroyed legal materials and personal property, and the related grievances. (Docket Entry # 100). It also describes the August 7, 2014 incident and the missing or destroyed additional legal materials. (Docket Entry # 100).

In October 2017, this court allowed plaintiff's motion for leave to amend the complaint to include Sullivan and Allen and denied the motion insofar as it sought to add other defendants and additional causes of action. (Docket Entry # 174). Significantly, the Memorandum and Order rejected plaintiff's attempt to add additional facts to the operative complaint and characterized the May 2014 and the August 2014 incidents as “the gravamen of the existing complaint (Docket Entry # 100).” (Docket Entry # 174, pp. 4, 10).^[6] In no uncertain terms, the Memorandum and Order also instructed plaintiff to file a statement of facts followed by an identification of the existing causes of action he seeks to bring against Sullivan and Allen:

With respect to Sullivan and Allen, plaintiff shall file a short statement of the facts that provide the basis for liability against Sullivan and Allen followed by identifying the causes of action in the existing complaint that plaintiff seeks to bring against Sullivan and Allen. This is not an opportunity to add new causes of action against Sullivan and Allen at this late date in these proceedings . . . [T]his court is denying plaintiff leave to amend the complaint to include new causes of action against Sullivan and Allen.

. . . Together with the existing complaint (Docket Entry # 100), the statement shall constitute the operative complaint.

(Docket Entry # 174, p. 7) (emphasis in original).^[7]

On December 13, 2017, the parties filed stipulations of dismissal for Count I against Barrows (Docket Entry # 178) and Count V against Trotman (Docket Entry # 179). On December 27, 2017, plaintiff filed a motion to substitute Libby for Trotman in Count V (the MCRA claim) in light of defendants' counsel's identification of Libby as “associated with” the August 7, 2014 incident. (Docket Entry # 184). In a series of rulings on May 15, 2018, this court: reiterated that the amended complaint (Docket Entry # 100) and the short statement of facts (Docket Entry # 185) would comprise “the operative complaint in this case”;^[8] allowed the motion to substitute Libby for Trotman in the MCRA claim (Docket Entry # 184);^[9] and permitted a limited reopening of discovery in relation to Libby.

In light of the foregoing, the claims in the governing complaint against defendants are: (1) the conversion of property claim against Trotman, Dorgan, and Sullivan (Count I); (2) section 1983 First Amendment retaliation claims against Trotman, Dorgan, Sullivan, and Allen, and a section 1983 First Amendment free speech claim against Trotman and Dorgan (Count II);^[10] (3) a section 1983 Sixth Amendment claim for deprivation of counsel against Trotman, Dorgan, and Sullivan based on the alleged destruction of legal materials (Count III); (4) section 1983 Fourteenth Amendment due process violations against Trotman, Dorgan, and Barrows (Count IV); (5) MCRA violations against Sullivan and Allen for the May 29, 2014 incident, and an MCRA violation against Libby for the August 7, 2014 cell search (Count V); (6) IIED claims against Barrows, Trotman, Dorgan, Allen, and Sullivan based on the May 29, 2014 incident (Count VI); (7) a section 1983 Fourteenth Amendment claim against Barrows and Sullivan for failure to supervise the May 2014 inventory of plaintiff's property (Count VII); and (8) section 1983 Fourteenth Amendment substantive due process and Eighth Amendment violations against Trotman, Dorgan, Barrows, Allen, and Sullivan for “cruel and unusual punishment” based on the alleged intentional disposal of legal materials and property (Count IX).^[11] In connection with the pending summary judgment motion, defendants filed a motion to strike plaintiff's LR. 56.1 statement of material facts. (Docket Entry # 258). A separate Memorandum and Order (Docket Entry # 271) addresses this motion and adjudicates what facts are stricken from the facts in the summary judgment record for purposes of this opinion.

STANDARD OF REVIEW

Summary judgment is...