Shabazz v. Cole
| Decision Date | 25 June 1999 |
| Docket Number | No. CIV. A. 96-10486-MBB.,CIV. A. 96-10486-MBB. |
| Citation | 69 F.Supp.2d 177 |
| Parties | Ramadan SHABAZZ, Plaintiff, v. Kathleen A. COLE and James Matesanz, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Ramadan Shabazz, Norfolk, MA, Pro se.
Judith Buckley Hayman, Nancy White, Joan T. Kennedy, Department of Correction, Robert Palumbo, Dept. of Correction, Boston, MA, for Kathleen A. Cole, James Matesanz, Defendants.
MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION TO DISMISS DEFENDANTS JAMES MATESANZ AND KATHLEEN COLE (DOCKET ENTRY # 79)
On January 8, 1999, defendants Kathleen A. Cole ("Cole") and James Matesanz ("Matesanz") (collectively: "defendants") filed their second motion to dismiss without seeking leave of court. (Docket Entry # 79). Initially, this court denied the motion on a procedural basis as untimely on January 19, 1999. Trial was set to commence in five days, the June 12, 1998 dispositive motion deadline having long since passed.
On January 20, 1999, defendants nevertheless filed a motion to reconsider the denial of the January 8, 1999 motion to dismiss. (Docket Entry # 120). In open court on January 25, 1999, with the venire waiting, this court reluctantly decided to allow the motion for reconsideration (Docket Entry # 120) based on the policy concerns supporting the qualified immunity doctrine and thereby consider the merits of the second motion to dismiss (Docket Entry # 79). Meanwhile, defendants' counsel agreed in open court to absorb plaintiff Ramadan Shabazz' costs of filing an opposition to the motion to dismiss.
Accordingly, the motion to dismiss filed on January 8, 1999, and the arguments raised in the motion for reconsideration to support dismissal are presently pending before this court. In a Procedural Order dated January 26, 1999, this court advised plaintiff Ramadan Shabazz ("Shabazz") to address the issues raised in the January 8, 1999 motion to dismiss (Docket Entry # 79) and in the January 20, 1999 motion for reconsideration (Docket Entry # 120).
On February 5, 1999, Shabazz filed: (1) an opposition to the motion for reconsideration (Docket Entry # 136); (2) an opposition to the January 8, 1999 motion to dismiss (Docket Entry # 137);1 and (3) an affidavit in support of his objections to the motion to dismiss (Docket Entry # 138). In addition to containing his own statements and averring to the truth of the factual allegations and exhibits in the complaint, Shabazz' affidavit refers to various affidavits filed in opposition to the first motion to dismiss. (Docket Entry # 138).
On a motion to dismiss under Rule 12(b)(6) ("Rule 12(b)(6)"), Fed.R.Civ.P., however, it is improper to consider documents not attached to the complaint or expressly incorporated therein. Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993). None of the narrow exceptions to this rule permit consideration of Shabazz' affidavit or the affidavits filed in opposition to the first motion to dismiss. See Watterson v. Page, 987 F.2d at 3 (listing exceptions).
Defendants captioned their motion as a motion to dismiss, summarized the relevant facts set forth in the complaint and failed to submit any affidavits and supporting documentation or a statement of undisputed material facts with page references to such affidavits and other documentation. See LR. 56.1. On the other hand, the body of the motion also sets forth the standard of review for a summary judgment motion filed under Rule 56, Fed.R.Civ.P., as well as the standard of review under a Rule 12(b)(6) motion. The motion also concludes by moving in the alternative for summary judgment.
Defendants' failure to include a material statement of undisputed facts with page references to affidavits and documentation "constitutes grounds for denial of the motion." LR. 56.1. Local Rule 56.1 expressly warns litigants that failure to submit the statement can result in the denial of the motion. In light of defendants' history and pattern of failing to comply with the Local Rules2 and repeated failure to comply with deadlines set by this court, defendants' additional failure to submit a statement of undisputed material facts with page references to affidavits and documentation provides an adequate basis to deny defendants' alternative motion for summary judgment. See generally Air Line Pilots Association v. Precision Valley Aviation, Inc., 26 F.3d 220, 224 (1st Cir.1994) ().
Consequently, this court treats the motion as one for dismissal under Rule 12(b)(6). When reviewing a Rule 12(b)(6) motion, this court accepts the factual allegations in the complaint as true and makes all reasonable inferences in favor of the plaintiff. Watterson v. Page, 987 F.2d at 3. Dismissal "is only appropriate if the complaint, so viewed, presents no set of facts justifying recovery." Cooperman v. Individual, Inc., 171 F.3d 43, 46 (1st Cir. 1999). Although "great specificity is ordinarily not required," Garita Hotel, Ltd. v. Ponce Federal Bank, 958 F.2d 15, 17 (1st Cir.1992), the plaintiff must nevertheless "set forth `factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.'" Cooperman v. Individual, Inc., 171 F.3d at 47.
Because defendants raise an argument as to the conclusory nature of the complaint's allegations, it is worth delineating the "dividing line between adequate `facts' and inadequate `conclusions.'" Cooperman v. Individual, Inc., 171 F.3d at 47. Conclusions become facts for purposes of supporting a Rule 12(b)(6) motion when the "conclusions are logically compelled, or at least supported, by the stated facts, that is, when the suggested inference rises to what experience indicates is an acceptable level of probability." Cooperman v. Individual, Inc., 171 F.3d at 47-48 (ellipses omitted).
With this framework in mind, the complaint and attached exhibits, which are also incorporated by reference, show the following.
Shabazz, an African-American inmate at the Bay State Correctional Center ("BSCC") in Norfolk, Massachusetts, worked in the law library at BSCC from 1991 to the time of his November 29, 1994 resignation. During this period, Cole was the Institutional Librarian and Matesanz was the Superintendent at BSCC.
As one of two law clerks assigned to the law library, Shabazz' work included assisting other inmates in drafting briefs and maintaining the law library's collection of legal materials. He consistently maintained a good work record and treated Cole with the appropriate level of deference.
Cole, however, repetitively used racial slurs when speaking to Shabazz throughout this time period. Shabazz details the consistent use of racial epithets directed at him by Cole in his November 29, 1994 resignation. He also avers to Cole's use of racial epithets to other inmates of Hispanic, African American and Asian descent.
On November 28, 1994, Cole issued the first of two disciplinary reports against Shabazz. Knowing that Monday was Shabazz' day off, Cole required Shabazz to report to work. After Sergeant Brien Gomez issued a direct order for Shabazz to report to work, Shabazz complied. Earlier that day, Cole "verbally abused" at least two other inmates in the library with respect to their use of the law library's computer.
Upon arriving at the law library, Shabazz spoke with Cole and advised her that it was his day off. After additional discussion, Cole stated that she simply wanted Shabazz to know that the law library needed coverage. Shabazz then returned to his cell with a correction officer.
When Shabazz reported to work the next day, Cole stated to Shabazz, in an abusive tone of voice, that she would not allow him "`to get away with what you did to me yesterday.'" (Docket Entry # 1, Ex. 2). Shortly thereafter, she used a "`purely' racial'" tone of voice to Shabazz. (Docket Entry # 1, Ex. 2). She then issued a disciplinary report against Shabazz charging him with: (1) disobeying an order or being insolent to a staff member; (2) an unexcused absence from work; and (3) conduct that disrupts the orderly running of the institution. 103 C.M.R. §§ 430.24(1), (5) & (8). The disciplinary officer dismissed all three of the charges as baseless.3
On the following day, November 29, 1994, Shabazz resigned from his job because he considered the environment intolerable. He also submitted a formal grievance describing Cole's use of ethnic expressions. The November 29, 1994 formal grievance was resolved by the grievance officer without further appeal.
On November 29, 1994, Alicia Ryan ("Ryan"), the Law Library Supervisor, called Shabazz to determine "what was going on in the library." (Docket Entry # 1, Ex. 2). Ryan asked Shabazz if he would be willing to speak with Matesanz about the situation. Two days later, on December 1, 1994, the administration required Cole to ask the other inmate/clerks if they also wanted to leave their positions without receiving a disciplinary report. Two inmates accepted the offer and left their positions in the library.
Since Shabazz filed the formal grievance and left his position, Cole repeatedly asked Shabazz to withdraw his resignation. She wanted to remove the damaging information from her employment folder because she felt it would harm her prospects for future employment.
In October 1995 a second incident occurred causing Cole to lodge additional disciplinary charges against Shabazz. On October 26, 1995, Shabazz entered the law library in order to photocopy a grievance or letter he planned to submit to Matesanz concerning Cole's charging inmates fees for photocopying legal documents. As set forth in the grievance, which Cole reviewed, section 478.11(4) of...
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