Wilborn v. Walsh, Civil Action No. 07-11245-PBS.

• Decision Date: 31 October 2008
• Docket Number: Civil Action No. 07-11245-PBS.
• Citation: 584 F.Supp.2d 384
• Parties: Bruce WILBORN, Plaintiff, v. Maureen E. WALSH, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

584 F.Supp.2d 384

Bruce WILBORN, Plaintiff, v. Maureen E. WALSH, et al., Defendants.

Civil Action No. 07-11245-PBS.

United States District Court, D. Massachusetts.

October 31, 2008.

Scott A. Katz, Office of the Attorney General, Boston, MA, for Defendants.

Mollie M. Kornreich, Keren Zwick, Sexuality and Gender Law Clinic, Morningside Heights Legal Services, Columbia University School of Law, New York, NY, Neal E. Minahan, Jr., McDermott Will & Emery LLP, Boston, MA, for Plaintiff.

ORDER

PATTI B. SARIS, District Judge.

After hearing, I adopt the well-reasoned opinion of the Magistrate Judge.

REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS

DEIN, United States Magistrate Judge.

I. INTRODUCTION

Plaintiff Bruce Wilborn ("Wilborn") is currently incarcerated at Bay State Correctional Center ("BSCC") where he is serving a life sentence for second degree murder with the possibility of parole. In November 2006, Wilborn had a parole hearing before the Massachusetts Parole Board which he claims was tainted by the Parole Board members' hostility and bias against him due to his professed homosexuality. He further alleges that he was subsequently denied parole because of his sexual orientation. He brings this action against Parole Board members Maureen Walsh, Mark Conrad, Doris Dottridge, Candace Kochin, Pamela Lombardini, Deborah McDonagh, and Thomas Merigan (collectively the "Parole Board") in their official capacities. The First Amended Complaint (Docket No. 17) sounds in four counts and alleges violations of Wilborn's federal constitutional rights to equal protection (Count I) and due process (Count II), as well as violations of his Massachusetts state constitutional rights to equal protection (Count III) and due process (Count IV).

The matter is presently before the court on the Defendants' "Motion to Dismiss First Amended Complaint" ("Motion to Dismiss") (Docket No. 21). Defendants argue that plaintiff's complaint should be dismissed because (1) his state-law claims for declaratory and injunctive relief (Counts III and IV) are barred by the Eleventh Amendment and sovereign immunity, (2) his due process claims (Counts II and IV) are not cognizable because Wilborn has no constitutionally protected liberty interest in parole, and (3) all of his claims fail to state a claim because Wilborn has failed to allege sufficient facts to demonstrate that his parole was denied on the basis of his sexual orientation. Because Wilborn has alleged sufficient facts to support his federal due process and equal protection claims, but this court is barred from issuing declarative and injunctive relief against the Parole Board members regarding violations of state law, this court recommends to the District Judge to whom this case is assigned that the Defendants' Motion to Dismiss (Docket No. 21) be ALLOWED as to Wilborn's state law claims (Counts III and IV) and DENIED as to his federal claims (Counts I and II).

II. STATEMENT OF FACTS

Motion to Dismiss Standard of Review

"Federal Rule of Civil Procedure 8(a)(2) requires only `a short and plain statement of the claim showing that the pleader is entitled to relief.' Specific facts are not necessary; the statement need only `give the defendant fair notice of what the claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (additional citations and internal punctuation omitted)). Nevertheless, to survive a motion to dismiss "the factual allegations in a complaint must `possess enough heft' to set forth `a plausible entitlement to relief.'" Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir.2008) (quoting Twombly, 127 S.Ct. at 1966-67). "In considering a motion to dismiss, a court must take the allegations in the complaint as true and must make all reasonable inferences in favor of the plaintiffs." Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993). In doing so, the court may consider documents attached to or expressly incorporated in the Complaint, as well as "documents the authenticity of which are not disputed by the parties," "official public records," "documents central to the plaintiffs claim," and "documents sufficiently referred to in the complaint" without converting the motion into one for summary judgment. Id. at 3-4 and cases cited.

Applying these standards, the relevant facts are as follows.

Statement of Facts

Bruce Wilborn pled guilty to second-degree murder in 1985 and was sentenced to life in prison with the possibility of parole. (Plaintiff's First Amended Complaint ("Compl.") at ¶ 22). He is currently incarcerated at Bay State Correctional Center ("BSCC") in Norfolk, Massachusetts, and describes himself as an "openly gay prisoner." (Id. at ¶ 5). The defendants are all voting members of the Massachusetts Parole Board and are sued only in their official capacity. (Id. at ¶¶ 6-13). With the exception of Conrad and Lombardini, all were voting members in November 2006 when the events at issue in this case took place. Since this action was filed, McDonagh has completed her term on the Board and will be replaced as a party when her successor is named. (Plaintiff's Opposition to Defendants' Motion to Dismiss (Docket No. 26) ("Opp.") at 2).¹

Wilborn's Term of Incarceration

Wilborn has been incarcerated for twenty-four years. (Compl. at ¶ 14). He contends that he has been a model prisoner, with only one notable, fifteen-year-old disciplinary infraction on his record.² (Id.). Wilborn has participated in many of the rehabilitative and educational opportunities offered at BSCC as well as in community service activities. (Id. at ¶¶ 15, 17). He has developed a supportive relationship with Pastor James Lydon, a Universalist pastor at the Community Church of Boston. (Id. at ¶ 16). Wilborn has also authored two published books while incarcerated and is currently working on his third. (Id. at ¶ 18).

Wilborn does not have any drug, alcohol, or mental health issues. (Id. at ¶ 19; see also Massachusetts Parole Board Record of Decisions ("Dec.") at 2).³ Since his incarceration, Wilborn has had one other parole hearing before the Parole Board in November 2001. (Compl. at ¶ 24). The Parole Board denied parole, by a 4-2 vote, "based on a dispute over Mr. Wilborn's role in the 1983 crime" and set a term of five years for future reconsideration. (Id.).

The November 2006 Parole Board Hearing

Wilborn had his second hearing before the Parole Board on November 7, 2006. (Id. at ¶ 27.) During the time between his hearings, Wilborn contends that he did not commit any disciplinary infractions and that he continued to be involved in the rehabilitative and community programs at the prison. (Id. at ¶ 26). In addition, Wilborn submitted to a polygraph test before the 2006 hearing to "[address] the Board's reasoning for denying parole in 2001" and presented this and other evidence to prove his secondary role in the 1983 crime. (Id. at ¶ 50). In its Decision, the Board acknowledged this evidence, but found that "there is strong evidence that Mr. Wilborn was the individual who stabbed Mr. Weinstock" 36 times. (Dec. at 1-2). Nevertheless, the Board expressly stated that "the issue of who actually committed the murder is not relevant" to its decision denying parole, and that it "will take no position" as to who stabbed the victim. (Id. at 2).

Statements Made By Board Members

During the course of the hearing, several members of the Board made statements that Wilborn alleges indicated bias against him on the basis of his homosexuality. (Compl. at ¶ 28). These allegedly suspect statements were made by three of the six voting Board members: Dottridge, Walsh, and Merigan. As Wilborn alleges in relevant part:

Defendant Dottridge said that Mr. Wilborn's openness about being gay demonstrated a lack of rehabilitation. Defendant Dottridge said, "[W]hatever lifestyle you have chosen ... I think you go overboard with it. And I wonder if you've done any counseling to address that because you've gone from hiding it to now throwing it out every minute ... I don't know if you've learned anything."

Defendant Dottridge also stated, "We've all had things happen to us, whether you are gay, whether you are black, whether you are Hispanic, we could carry that card or play those cards all day long ... [T]his whole conversation it's been about you being gay." She went on to assert, "I don't have a problem with that—with him sayin' that he's gay. I just think using it over and over again, just like, I don't go around sayin' I'm a heterosexual all day long."

(Id. at ¶¶ 29-30). Wilborn alleges that contrary to these assertions, he "only referred to his homosexuality when discussing what he considered his positive steps toward rehabilitation, including his coming to terms with being gay" and that it was not him, but rather the Parole Board members "who focused so much attention on his sexual orientation." (Id. at ¶ 31). He also contends that Dottridge treated the fact that he had come to terms with his sexual orientation as a negative factor, and that by her statements Dottridge indicated that the fact that Wilborn is openly gay makes him less suitable for parole than other prisoners. (Id. at ¶¶ 32-33).

With respect to Walsh, the chairman of the Board, Wilborn alleges that he "made statements suggesting that Mr. Wilborn['s] homosexuality would be a permanent, hidden risk for future crimes, in contrast with a drug addiction." (Id. at ¶ 34). In particular, Wilborn challenges the following statement allegedly made by Walsh:

[I]f you cure the drug addiction, you've cured the breaking and entering ... I am worried of [sic] whether you'd be able to be supervised out in the community by an average parole officer in the street because testing you for drugs or alcohol won't show that you're a risk to the community.

(Id. at ¶ 34). Wilborn alleges that this...