Ortiz v. Sullivan, CIVIL ACTION NO. 4:17-cv-40143-TSH
| Decision Date | 16 August 2018 |
| Docket Number | CIVIL ACTION NO. 4:17-cv-40143-TSH |
| Parties | MICHAEL ORTIZ, Plaintiff, v. OFFICER SULLIVAN, et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Hennessy, M.J.
Plaintiff Michael Ortiz, at all relevant times a pre-trial detainee in custody of the 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 force in violation of the Fourth and Fourteenth Amendments; 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.
Defendants have moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), docket #15, and Plaintiff has moved for 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. See docket #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 to Defendant Evangelidis. I RECOMMEND that Plaintiff's motion to amend the complaint be DENIED WITHOUT PREJUDICE. Finally, I DENY WITHOUT PREJUDICE Petitioner's motion for appointment of counsel.
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. Sullivan responded, "Kill yourself." Id. ¶ 10. Plaintiff then began throwing urine 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. Plaintiff covered the camera and a window into his cell, stating he would not uncover them until he had seen a mental health staff member. Id. ¶ 13.
Approximately fifteen minutes 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 a mental health staff member. Id. ¶ 15. Mara, O'Neill, and Sullivan then entered Plaintiff's cell with a shield.2 Id. ¶ 16-17. Sullivan, carrying the shield, pinned Plaintiff to the wall, and O'Neill and Mara punched Plaintiff repeatedly in 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 kneeing him in the eye and forehead while yelling, "Stop resisting." 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 care including a CT scan and a consultation 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 respond to 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 the Government [that] exercises such control. Thisabandon[]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.
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. See docket #15 at 3. In support of dismissal, Defendants submitted an affidavit of Detective Daniel Melhouse, Inmate Grievance Coordinator at the Worcester County Sheriff's Office, averring that Plaintiff never filed a grievance related to the September 27 incident. 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 to dismiss the complaint as to Evangelidis on the ground that, as a supervisor, 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 have not opposed that motion.
When considering a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court "must assume the 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 isinapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff'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 (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if the plaintiff's well-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, a complaint 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. See Ferranti v. Moran, 618 F.2d 888, 890 (1st Cir. 1980) (citation omitted).
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...
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