Orwat v. Maloney, CIV.A.2002-10409-WGY.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtCollings
Citation360 F.Supp.2d 146
PartiesJustin ORWAT, Plaintiff, v. Michael T. MALONEY, etc., et al., Defendants.
Docket NumberNo. CIV.A.2002-10409-WGY.,CIV.A.2002-10409-WGY.
Decision Date10 February 2005
360 F.Supp.2d 146
Justin ORWAT, Plaintiff,
Michael T. MALONEY, etc., et al., Defendants.
No. CIV.A.2002-10409-WGY.
United States District Court, D. Massachusetts.
February 10, 2005.

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Gregory A Connly, Dolan, Connly & Flaherty, PC, Boston, for Justin Orwat, Plaintiff.

Richard C. McFarland, Department of Correction, Boston, for Department of Correction, Ernest J. Therien, Jeffrey Padula, Michael T. Maloney, Peter Allen, Peter A. Pepe, William Grossi, William Shugrue, Defendants.

C. Raye Poole, Department of Correction Legal Division, Boston, for Department of Correction, Ernest J. Therien, Jeffrey Padula, Michael T. Maloney, Peter Allen, Peter A. Pepe, William Grossi, William Shugrue, Defendants.

Jeffrey M Sankey, Law Office of Jeffrey M. Sankey, Mansfield, for Justin Orwat, Plaintiff.


COLLINGS, United States Magistrate Judge.


This matter is before the Court on the Defendants' Motion for Summary Judgment (# 53). The Plaintiff, Justin Orwat ("Orwat"), was, at all relevant times, an inmate at MCI-Cedar Junction ("Cedar Junction"), a state correctional facility in

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Walpole, Massachusetts. Orwat brings this civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of the First, Eighth and Fourteenth Amendments, and various state laws, against officials of the Department of Correction for the Commonwealth of Massachusetts, various correctional officers at Cedar Junction,1 and the Department of Correction itself. The complaint stems from an incident in which a correctional officer, defendant Jeffrey Padula, struck Orwat in the face during a strip search of Orwat and an inspection of Orwat's cell. Orwat was treated for a fractured jaw following the incident. (Memorandum of Law in Support of Defendants' Motion for Summary Judgment, # 54, Statement of Undisputed Facts, at 4 ¶ 9).

Previously, the Defendants in this action filed a motion to dismiss (# 11) and, following a hearing (January 6, 2003) on the matter, this Court recommended that Counts 4 (Violation of 18 U.S.C. § 1964(c)) and 10 (Negligence-Massachusetts Tort Claim Act) be dismissed as unopposed by the Plaintiff. (Report and Recommendation on Defendants' Motion to Dismiss, # 26). This Court, in its Amended Report and Recommendation (# 31) otherwise recommended that Defendants' Motion to Dismiss all other claims be denied without prejudice to Defendants filing a motion for summary judgment. The District Court adopted these recommendations, and further dismissed any claims for damages against the Defendants in their official capacities absent a waiver of the Commonwealth's sovereign immunity. (Order, # 36). See Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 3099, 3107, 87 L.Ed.2d 114 (1985) (Eleventh Amendment bars suit for money damages against state officials in their official capacity); Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989) (state officials are not "persons" within the meaning of section 1983).

At this juncture, then, the Defendants have moved for summary judgment on all the remaining federal claims. The Defendants further move to dismiss for failure to state a claim two of the pendent state law claims (Counts 7 and 9) and alternatively urge the Court to dismiss all the state law claims in the absence of a viable federal cause of action and pendent jurisdiction.

The Plaintiff has submitted an Opposition to the Defendants' Motion for Summary Judgment. (# 55). In that Opposition, the Plaintiff, based upon facts learned during discovery, agrees to dismiss Count 3 against Maloney and Pepe. The Plaintiff also agrees to dismiss Counts 5, 6, 7 and 9 against defendant Therien only. At this juncture, then, the remaining claims are: Counts 1 and 2, asserting Eighth Amendment claims against Padula and Shugrue; Count 5, asserting a conspiracy to violate civil rights against Padula, Shugrue and Grossi; Count 6, asserting procedural due process violations against Maloney, Pepe and Allen; Count 7, asserting a violation of the Massachusetts Civil Rights Act, against all remaining defendants; Count 8, asserting assault and battery against Padula;

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and Count 9, asserting intentional infliction of emotional distress against Padula, Shugrue and Grossi. The Defendants have submitted a Memorandum in Reply to Plaintiff's Opposition for Summary Judgment. (# 56). The motion is therefore ripe for disposition on the remaining claims. For the following reasons, as more fully explained below, the Court recommends granting the Defendants' motion in part, and denying the motion in part.


The following facts are not in dispute. Orwat was at all relevant times an inmate at Cedar Junction. The defendants William Shugrue ("Shugrue") and Jeffrey Padula ("Padula") were members of the Inner Perimeter Security unit ("IPS") that investigated crimes within the prison. (# 54 at 2 ¶ 2). Defendant William Grossi ("Grossi") was the Supervisor of the IPS unit at the time of the incident. Id. On January 26, 2001, Shugrue and Padula entered Essex 1 housing unit in order to search inmate Robert Veins ("Veins"), who was housed in cell # 34. Id. ¶ 3. During this search, Orwat, who was housed in cell # 32, held a mirror out of his cell to see what was going on. Id. ¶ 5. Padula told Orwat to take the mirror back into the cell. Id. Initially, Orwat refused, but ultimately complied. Id. At some point (disputed by the parties), Padula and Shugrue decided to search Orwat's cell. According to Orwat, Padula and Shugrue decided to enter Orwat's cell with the intention to confront and assault Orwat in retaliation for exchanging insulting words. (Complaint, # 1 ¶ 14). Padula and Shugrue both maintain that, on passing by Orwat's cell on their way to search Vein's cell, they observed Orwat jump up to flush the toilet; they believed he was disposing of contraband. (# 54 at 2 ¶ 4). In any event, Shugrue and Padula entered Orwat's cell. Padula, in an attempt to position himself at the back of the cell, squeezed by Orwat, who asked "why are you walking so close to me?" (# 54 at 3 ¶ 7). Padula and Shugrue asked Orwat to strip.

The parties dispute the details of the ensuing incident. According to Padula, Orwat "thrust his right hand with his middle finger extended, directly toward Padula's face." (# 54 at 3 ¶ 7). Padula perceived the gesture as "threatening his safety" and he struck Orwat in the face. Id. Orwat disputes this account, and testified that during the search, he raised his hand "slowly in a real sarcastic manner" with his middle finger extended, and he "hung it there in front of [Padula's] face for an instant or two and ... looked at him, real slow and deliberate." (# 55 at 3 ¶ 7). Orwat further testified that Padula hit him three to five times, including the punch to the jaw. (# 54, Exh. E at 80). Following this incident, Orwat was taken to Boston Medical Center where he was surgically treated for his injuries, which included a fractured jaw. (# 54 at 4 ¶ 9; Exh. E at 100). Orwat spent two days at Boston Medical Center and approximately three and one half weeks at the Health Services Unit of the Souza-Baranowski Correctional Center (SBCC). (# 54, Exh. F).

Padula filed a disciplinary report, (# 55 Exh.G), charging Orwat with several disciplinary offenses, including using obscene, abusive, threatening language or gestures and attempting to assault Padula. Following his release from the infirmary, Orwat was place on "awaiting action" status pending the hearing on the matter. In August, 2001, the hearing officer, Captain Donna Rizzi ("Rizzi"), issued a written opinion finding Orwat guilty of the disciplinary charges. She recommended that the eight months Orwat had served in

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segregation was a sufficient sanction. (# 55 Exh. I at 4C).

A. Standard of Review

Summary judgment is appropriate when the record shows that "the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" if it "carries with it the potential to affect the outcome of the suit under the applicable law." Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1 Cir., 2000) (internal quotations and citation omitted.). "[A]n issue is `genuine' if the evidence presented is such that a reasonable jury could resolve the issue in favor of the nonmoving party." Fajardo Shopping Center, S.E. v. Sun Alliance Ins. Co. of Puerto Rico, Inc., 167 F.3d 1, 7 (1 Cir., 1999); see also Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1 Cir.), cert. denied, 515 U.S. 1103, 115 S.Ct. 2247, 132 L.Ed.2d 255 (1995).

The party moving for summary judgment "bears the initial burden, which may be discharged by pointing to the absence of adequate evidence supporting the nonmoving party's case." Michelson v. Digital Financial Services, 167 F.3d 715, 720 (1 Cir., 1999) (citations omitted). Once the moving party has met its burden, "the onus is on the nonmoving party to present facts that show a genuine issue for trial." Id. (citations omitted). In determining whether summary judgement is proper, the Court "view[s] all facts in the light most favorable to the nonmoving party and indulge[s] all inferences advantageous to that party, provided they arise reasonably from the record." Villanueva v. Wellesley College, 930 F.2d 124, 127 (1 Cir.) (citation omitted), cert. denied, 502 U.S. 861, 112 S.Ct. 181, 116 L.Ed.2d 143 (1991). The party opposing summary judgment, however, "may not rest on mere allegations or denials of his pleading...." Barbour v. Dynamics Research Corp., 63 F.3d 32, 37 (1 Cir., 1995)...

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