Burnett v. Maloney, 9901423

2006-MBAR-109

Anthony Burnett v. Michael Maloney, Commissioner of Correction et al.

No. 9901423

Superior Court of Massachusetts

April 11, 2006

Opinion No.: 93167

As-is Docket Number: 99-01423

Venue Middlesex

File Date: April 14, 2006

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Staffier-Holtz, Nancy, A.J.

Opinion Title: MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

The plaintiff Anthony Burnett has moved for summary judgment on all remaining claims of plaintiff's complaint. For the reasons set forth below, that motion is denied.

DISCUSSION

The plaintiff, Anthony Burnett ("Burnett"), has named as defendants the following individuals in a 42 U.S.C. §1983 claim arising out of an incident that occurred while he was serving time at the Souza Baranowski Correctional Center ("SBCC"): Michael Maloney ("Maloney") former Commissioner of the Department of Corrections; Paul DiPaolo ("DiPaolo"), former Superintendent of the SBCC; Eugene Marsolais ("Marsolais"), former Commander of the Department of Correction Special Operations Command Group; Gary Mendes ("Mendes"), assistant to Marsolais; Shaun Dewey ("Dewey"), former Director of Security for SBCC; and members of the Special Operations Tactical Team 3: Robert Daigle ("Daigle"), Lawrence Marshall ("Marshall"), Scott Bell ("Bell"), Arthur Bruele ("Bruele"), Mark Naverole ("Naverole"), Robert Hopkins ("Hopkins"), Jay Silvia ("Silvia"), Barry Forget ("Forget").^[1] Section 1983 provides that if any person, acting under the color of state law deprives another of "any rights, privileges or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress..." 42 U.S.C. §1983.

The Plaintiff Bring Suit Against the Defendants in Their Individual Capacities

The defendants assert that Burnett brings suit against them solely in their official capacities, rather than in their individual capacities. The capacity in which §1983 defendants are sued effects the entire nature of the case. An official-capacity suit is tantamount to bringing a suit against the governmental entity of which the named official is an agent. Hafer v. Melo, 502 U.S. 21, 25 (1991); Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). For this reason, only immunities that the governmental entity possesses are available to the defendant in an official-capacity suit. Hafer, 502 U.S. at 25, citing Graham, 473 U.S. at 167. Conversely, a plaintiff bringing an action against a government officer in their individual capacity is seeking to impose personal liability for actions taken under the color of state law. Hafer, 502 U.S. at 25. "On the merits, to establish personal liability in a §1983 action, it is enough to show that the official, acting under color of state law caused the deprivation of a federal right." Id at 25, citing Graham, 473 U.S. at 166 (emphasis in original). There is no need to establish a connection between the contested actions and governmental policy or custom. Hafer 502 U.S. at 25. A defendant in an individual-capacity suit may assert personal immunity defenses not available to those sued in their official capacity. Id., citing Graham, 473 U.S at 166-67. For instance, these defenses include objectively reasonable reliance on existing law and qualified immunity. See Hafer, 502 U.S. at 25, citing Graham, 473 U.S. at 166-67.

Plaintiffs may bring §1983 cases suing government officers personally, in their official capacity, or both. If the type of suit is not apparent from the face of the complaint, the court should look to the substance of the pleadings and the course of the proceedings to determine the nature of the liability sought to be imposed. Powell v. Alexander, 391 F.3d 1, 5-6, 22 (1st Cir. 2004) (joining "the majority of circuits in adopting the 'course of proceedings' test"), citing Pride v. Does, 997 F.2d 712, 715 (10th Cir. 1993); see O'Malley v. Sheriff of Wooster Cty., 415 Mass. 132, 141 n.14 (1993).^[2] "Factors relevant to this analysis include 'the nature of the plaintiff's claims, requests for compensatory or punitive damages, and the nature of the any defenses raised in response to the complaint, particularly claims of qualified immunity.' " Powell, 391 F.3d at 22, quoting Moore v. City of Harriman, 272 F.3d 769, 772 n.1 (6th Cir. 2001). No one factor is dispositive, as "the underlying inquiry remains whether the plaintiff's intention to hold a defendant personally liable can be ascertained fairly." Powell, 391 F.3d at 22-23, quoting Biggs v. Meadows, 66 F.3d 56, 61 (4th Cir. 1995).

Here, the Complaint does not specify the capacity in which the defendants are being sued. Still, relevant factors are present that indicate that Burnett intended to sue the defendants in their individual capacities. Burnett's claims are based upon the individual actions of the defendants and he does not seek to establish that the defendants acted in accordance with governmental policy or custom, as is required when asserting an official-capacity suit. See Powell, 391 F.3d at 24; see also Biggs, 66 F.3d at 61; Hill v. Shelander, 924 F.2d 1370, 1374 (7th Cir. 1991); Conner v. Reinhard, 847 F.2d 384, 394 n.8 (7th Cir. 1988). In fact, Burnett has made an effort to point out the ways in which the defendant's conduct failed to conform with the policy and rules promulgated by the government. The defendants have also raised and argued at length that they are protected by the affirmative defense of qualified immunity. See Powell, 391 F.3d at 23. "Because qualified immunity is available only in a personal capacity suit... the assertion of that defense indicates that the defendant[s] interpreted the plaintiff's action as being against them personally." Biggs, 66 F.3d at 61 [citations omitted]; see id. Viewed in its entirety, the course of proceedings indicate that Burnett intended to sue the defendants in their individual capacities and that the defendants were aware of that intent as well.

"[A] party moving for summary judgment in a case in which the opposing party [has] the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to materials described in Mass.R.Civ.P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Ahearn v. Vose, 64 Mass.App.Ct. 403, 412-13 (2005), citing Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Where the nonmoving party completely fails to offer proof concerning an essential element, there exists "no genuine issue as to any material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

Here, the defendants base their motion for summary judgment almost exclusively on the assertion that they are protected by the affirmative defense of qualified immunity. The doctrine of qualified immunity grants government officials immunity against liability for civil damages so long as, in the course of performing discretionary tasks, they did not "violate clearly established statutory or constitutional rights of which a reasonable person would have known." Clancy v. McCabe, 441 Mass. 311, 317 (2004), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, because the defendants argue qualified immunity, the inquiry does not concentrate merely on Burnett's ability to prove the elements of the §1983 claim.^[3] Instead, "the relevant question is whether a reasonable official could have believed his actions were lawful in light of clearly established law and the information the official possessed at the time of his allegedly unlawful conduct." Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 91 (1st Cir. 1994), quoting McBride v. Taylor, 924 F.2d 386, 389 (1st Cir. 1991); Clancy, 441 Mass. at 317; Ahearn, 64 Mass.App.Ct. at 413. The defendants have the burden of persuasion with regard to the applicability of qualified immunity. Navedo v. Maloney, 172 F.Supp.2d 276, 286 (D.Mass. 2001).

Analysis of the qualified immunity defense requires the court to consider: "(1) whether the facts as alleged make out a constitutional violation; (2) whether that right was clearly established; and (3) whether a similarly situated reasonable official would have understood that her conduct violated clearly established law." Masonoff v. Dubois, 336 F.Supp.2d 54, 57 (D.Mass. 2004), quoting from Fabiano v. Hopkins, 352 F.3d 477, 453 (1st Cir. 2003); Ahearn, 64 Mass.App.Ct. at 413. Throughout the analysis, the court must review the facts in the light most favorable to the plaintiff. Febus-Rodriguez, 14 F.3d 87, 89 (1st Cir. 1994).

Burnett alleges that the defendants violated his constitutional rights when they used excessive force in removing him from his cell on November 11, 1998. As the alleged violations occurred at the hands of prison officials while Burnett was serving time as a convicted prisoner, the Eighth Amendment is the applicable constitutional provision.^[4] "After incarceration, only the 'unnecessary and wanton infliction of pain'... constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Whitley v. Albers, 475 U.S. 312, 319 (1986) (citations omitted). When dealing specifically with accusations of excessive physical violence by prison officials in violation of the Cruel and Unusual Punishment Clause, "the core judicial inquiry is... whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. MacMillian, 503 U.S. 1, 6-7 (1992); see id.

The "unnecessary and wanton" standard takes into consideration the need of prison officials "to maintain and restore discipline" in the face of disturbances....