Tibbs v. Maloney

2008-MBAR-127

Jerome Tibbs v. Michael T. Maloney^[1] et al.^[2]

No. 002390C

Superior Court of Massachusetts

January 14, 2008

Opinion No.: 101363

As-is Docket Number: 00-2390C

Venue Worcester

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Lemire, James R., J.

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

Pro se plaintiff Jerome Tibbs ("Tibbs" or "plaintiff"), an inmate at the Massachusetts Correctional Institute at Cedar Junction ("MCI-Cedar Junction"), filed this action^[3] against the Commissioner of the Massachusetts Department of Corrections and various prison officials for violation of plaintiff's Eighth Amendment, Due Process, Equal Protection, and civil rights and for sexual harassment, sexual assault, infliction of emotional distress, denial of access to the courts, and violation of G.L.c. 127, §40.^[4] On September 14, 2001 the court determined that defendants' actions did not violate plaintiff's right to due process. Defendants now move for summary judgment as to the remaining claims. Plaintiff moves the court to take judicial notice of an alleged finding of the Appeals Court in Tibbs v Superintendent, Mass. Corr. Inst., Cedar Junction, No. 03-P-1211, 1 n.2 (App.Ct. Dec. 7, 2004). Plaintiff also requests the court to order defendants to file an answer beyond the filing of the administrative record of plaintiff's disciplinary proceedings. For the reasons stated below, the court DENIES defendants' motion as to plaintiff's intentional infliction of emotional distress and sexual harassment claims and otherwise ALLOWS the motion. The court DENIES plaintiff's motion to take judicial notice. The court ORDERS defendants to file their answer to the claims that survive defendants' motion for summary judgment.

BACKGROUND

Plaintiff alleges the following facts. While an inmate at MCI-Cedar Junction, plaintiff and defendant Guerrini, a correction officer at MCI-Cedar Junction, engaged in discussions about having a romantic relationship upon his release from prison. Plaintiff later determined, however, that he would not be interested to enter into a relationship with defendant Guerrini upon his release from prison and informed defendant Guerrini of his decision. Guerrini responded by giving plaintiff sexually explicit photos and a letter and by threatening plaintiff. Specifically, Guerrini stated that she would make plaintiff's time at MCI-Cedar Junction more difficult.

Guerrini later accused plaintiff of yelling to her from a window. Plaintiff does not allege that a disciplinary hearing occurred or that a sanction issued on account of this accusation. While conducting a search of plaintiff so that he could enter a room to receive a visitor, Guerrini fondled plaintiff's penis. Plaintiff alerted defendant Guerrini that he did not appreciate her actions. Plaintiff reported Guerrini's actions and threats to defendant Pepe and the acting Superintendent, but no corrective action was taken.^[5]

On September 18, 2000, plaintiff committed a disciplinary violation and was confined to the Mod Unit as a result. During this time, plaintiff was involved in other civil suits as a plaintiff. By letter to defendant Conley, plaintiff requested access to his papers pertaining to certain pending cases in time for depositions in those cases.^[6] Although defendant Conley had informed plaintiff that he would receive a legal exchange by the dates of the depositions, plaintiff did not receive a legal exchange in time for the hearings. As a result, plaintiff was not able to conduct meaningful depositions at the time and was forced to prolong the cases.^[7]

On or about October 10, 2000, plaintiff was segregated while awaiting action pending investigation.^[8] After the hearing on those offenses, which plaintiff alleges were made in retaliation against plaintiff's civil suits, plaintiff was sentenced to eight weeks and ten weeks of loss of canteen, television, phone, and radio. During this time, plaintiff was not permitted to clean his cell or use the prison laundry room. Plaintiff was also "den[i]ed medical attention."

Plaintiff filed his complaint on December 6, 2000. By way of answer, defendants have filed only the administrative record in the disciplinary proceedings.

Plaintiff argues that defendants' actions violate plaintiff's right to be free from cruel and unusual punishment; constitute sexual harassment and sexual assault; violate the prohibition, contained in G.L.c. 127, §40, against isolating prisoners for a period exceeding 15 days; violate plaintiff's rights of access to the courts, due process, and equal protection; caused plaintiff emotional distress; and violated his civil rights. Plaintiff requests the court to order defendants to file an answer beyond the filing of the administrative record of plaintiff's disciplinary proceedings. Plaintiff asks the court to take judicial notice of the Appeals Court's alleged finding that the defendants disciplined plaintiff as a direct result of his civil suit against them. The court previously reviewed plaintiff's disciplinary proceedings and determined that the decisions in those cases were not clearly erroneous. Defendants now move for summary judgment of all remaining claims. The court considers each claim below.

RULINGS OF LAW

Summary judgment is appropriate when the summary judgment record shows 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." Mass.R.Civ.P. 56(c); DuPont v Comm'r of Corr., 448 Mass. 389, 397 (2007). A fact is "material" if it would affect the outcome of the suit. Carey v. New England Organ Bank, 446 Mass. 270, 278 (2006); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is "genuine" where a reasonable finder of fact could return a verdict for the non-moving party. Flesner v. Technical Commc'ns Corp., 410 Mass. 805, 809 (1991), citing Anderson, 477 U.S. at 252. The moving party bears the initial burden of demonstrating the absence of a triable issue and that the summary judgment record entitles him to judgment as a matter of law. Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 644 (2002), citing Pederson v. Time, Inc., 404 Mass. 14, 17 (1989); Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706, 716 (1991). The moving party may satisfy its burden by submitting affirmative evidence that negates an essential element of the opposing party's case or by demonstrating that the non-moving party has no reasonable expectation of proving an essential element of his case at trial. Flesner, 410 Mass. at 809; Kourouvacilis, 410 Mass. at 716 (adopting reasoning contained in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), that "the burden on the moving party may be discharged by 'showing'... that there is an absence of evidence to support the nonmoving party's case"). In reviewing a motion for summary judgment, the court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in his favor. Jupin v. Kask, 447 Mass. 141, 143 (2006), citing Coveney v. President & Trs. of the Coll. of the Holy Cross, 388 Mass. 16, 17 (1983); see Simplex Techs., Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196, 197 (1999). If the moving party has carried its burden, and the plaintiff has not responded with specific facts to establish a genuine, triable issue, the court grants the motion for summary judgment. Cmty. Nat'l Bank v. Dawes, 369 Mass. 550, 554 (1976); see Ng Bros., 436 Mass. at 644 (stating that, even where the facts are disputed, "summary judgment is still available if the party with the burden of proof at trial... fails to present in the summary judgment record, taking everything it says as true and drawing all reasonable inferences in its favor, sufficient facts to warrant a finding in its favor"), citing White v. Univ. of Mass. at Boston, 410 Mass. 553, 557 (1991).

I. Summary Judgment

A. Denial of Constitutional Right of Access to the Courts

Plaintiff alleges that the defendants denied plaintiff timely access to materials in storage pertaining to civil suits, resulting in lack of preparation for depositions and delay of court proceedings. Plaintiff also alleges that he was denied access to the law library and that, as a result, he was unable to take an interlocutory appeal in the case of Tibbs v. Maloney, No. 99-CV-12617; was unable to file a reply to the defendant's opposition in the separate case of Tibbs v. D'Agostino, SJC No. 2000-0444; and was unable to appeal the case of Tibbs v. D'Agstino to the full Supreme Judicial Court. However, the defendants provided evidence to establish that plaintiff did, in fact, file an interlocutory appeal in the case of Tibbs v. Maloney, No. 99-CM-12617, that he did file a reply to the defendant's opposition in Tibbs v. D'Agostino, and that he did appeal the case of Tibbs v. D'Agostino to the full Supreme Judicial Court.

To make a successful claim for denial of a prisoner's constitutional right of access to the courts, a plaintiff must show (1) that he was denied access to his legal papers or that the library materials available to him were inadequate to meet his needs, Puleio v. Comm'r of Corr. 52 Mass.App.Ct. 302, 311 (2001), and (2) that he suffered actual injury, Jiles v. Dep't of Corr., 55 Mass.App.Ct. 658, 661-62 (2002); Puleio, 52 Mass.App.Ct. at 311, citing Lewis v. Casey, 518 U.S. 343, 351-53 (1996). The actual injury that a plaintiff must show is that "an actionable claim involving a challenge to a sentence or to conditions of confinement 'has been lost or rejected, or that the presentation of such claims is currently being prevented, because this capability of filing suit has not been provided.' " Jiles, 55 Mass.App.Ct. at 662, quoting...