Velez v. Turco

CAMILO VELEZ Plaintiff, v. THOMAS A. TURCO, III, Former Commissioner of the Massachusetts Department of Correction, STEVEN SILVA, Former Superintendent of the Souza Baranowski Correctional Center, EFRAIN LOPEZ, Correction Officer, and JOHN McLEAN, Correction Officer, Defendants.

Civil Action No. 20-10957-MBB

United States District Court, D. Massachusetts

August 10, 2021

MEMORANDUM AND ORDER RE: MOTION TO DISMISS (DOCKET ENTRY # 18)

MARIANNE B. BOWLER, UNITED STATES MAGISTRATE JUDGE

Pending before this court is a motion to dismiss filed by defendants Thomas A. Turco, III (“Turco”), Efrain Lopez (“Lopez”), and John McLean (“McLean”) (collectively “defendants”) under Fed.R.Civ.P 12(b)(6) (“Rule 12(b)(6)”). (Docket Entry # 18). Plaintiff Camilo Velez (“plaintiff”) did not file an opposition.

PROCEDURAL BACKGROUND

Plaintiff an inmate at the Souza Baranowski Correctional Center (“SBCC”), filed this action pro se, claiming that defendants failed to protect him from another inmate's attack in violation of the Eighth and Fourteenth Amendments and 42 U.S.C. § 1983 (“section 1983”).^[1] (Docket Entry # 1). The complaint alleges that defendants failed to protect plaintiff and that their policy of “‘force moving'” prisoners into protective custody units violates plaintiff's Eighth and Fourteenth Amendment rights under section 1983. (Docket Entry # 1).

In seeking dismissal, defendants argue that the allegations do not show they had actual knowledge of a substantial risk of serious bodily harm to plaintiff. (Docket Entry ## 18, 19). In the alternative, defendants submit this action should be stayed or dismissed under the Colorado River^[2] doctrine because this case is duplicative of an earlier-filed action pending in Massachusetts Superior Court (Suffolk County) (“state court action”). (Docket Entry ## 18, 19).

STANDARD OF REVIEW

The standard of review for a Rule 12(b)(6) motion is well established. To survive a Rule 12(b)(6) motion to dismiss the complaint must contain “enough facts to state a claim to relief that is plausible on its face, ” even if actual proof of the facts is improbable. Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007); Miller v. Town of Wenham, 833 F.3d 46, 51 (1st Cir. 2016). The “standard is ‘not akin to a “probability requirement, ” but it'” requires “‘more than a sheer possibility that a defendant has acted unlawfully.'” Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016) (citations omitted). “‘[W]here a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'”'” In re ARIAD Pharms. Sec. Litig., 842 F.3d 744, 756 (1st Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “[A]ll reasonable inferences” are drawn “in the pleader's favor.” Sanders v. Phoenix Ins. Co., 843 F.3d 37, 42 (1st Cir. 2016). Legal conclusions are not considered. See Dixon v. Shamrock Fin. Corp., 522 F.3d 76, 79 (1st Cir. 2008).

Defendants attached three documents to a supporting memorandum to the motion to dismiss. (Docket Entry ## 19-1, 192, 19-3). This court considers two of them, namely, the docket and the complaint in the state court action (Docket Entry ## 191, 19-2), because they fall within one or more exceptions which allow consideration of documents extraneous to a complaint without “turning the 12(b)(6) motion into a motion for summary judgment.” Newman v. Lehman Bros. Holdings Inc., 901 F.3d 19, 25 (1st Cir. 2018) (allowing court to “consider extrinsic documents, such as ‘documents the authenticity of which are not disputed by the parties'” and “‘official public records'”) (citations omitted); Giragosian v. Ryan, 547 F.3d 59, 65-66 (1st Cir. 2008) (allowing consideration of documents susceptible to judicial notice).

FACTUAL BACKGROUND

Plaintiff was an inmate at SBCC throughout the relevant time period. (Docket Entry # 1). Turco was the Commissioner of Correction, defendant Steven Silva (“Silva”) was the Superintendent of SBCC, and Lopez and McLean were correctional officers during the relevant time period. (Docket Entry # 1).

On or about March 12, 2018, another inmate, Fabian Warner (“Warner”), was moved into the same protective custody unit (“Unit G-1”) that housed plaintiff. (Docket Entry # 1, pp. 34). Warner initially refused to move to Unit G-1 from his location in the restrictive housing unit (“RHU”). (Docket Entry # 1, p. 4). He was therefore “forcefully moved into the” G-1 Unit. (Docket Entry # 1, p. 4, ¶ 7). Once there, Warner proceeded to flood his cell with water and feces whereupon he was removed from Unit G-1 and returned to RHU. (Docket Entry # 1, p. 4).

On or about March 14, 2018, defendants “force[] moved” Warner in restraints from RHU back to Unit G-1.^[3] (Docket Entry # 1, p. 4, ¶ 9). Upon entering the unit, Warner “yelled out in the unit for everyone to hear, that he was going to stab a prisoner on G-1.” (Docket Entry # 1, p. 4, ¶ 10). Lopez and McLean were assigned to Unit G-1 at the time and heard Warner's announcement. (Docket Entry # 1, p. 5). They did not do anything in response. (Docket Entry # 1, p. 5).

On the same day, “plaintiff entered the shower and locked the door.” (Docket Entry # 1, p. 5, ¶ 12). Warner asked Lopez and McLean to unlock the shower door, and they complied. (Docket Entry # 1, p. 5). “Warner then entered the shower and began stabbing and slashing plaintiff with an instrument” that had been fashioned into a knife. (Docket Entry # 1, p. 5, ¶ 13).

On March 30, 2019, plaintiff filed the state court action against defendants and two other individuals in Massachusetts Superior Court (Suffolk County).^[4] (Docket Entry # 19-2, pp. 115). The complaint revolves around Warner's March 2018 attack on plaintiff and alleges an Eighth Amendment section 1983 violation as well as other causes of action. (Docket Entry # 19-2). In the state court action, discovery is closed, and the court scheduled a final pretrial conference for late October 2020.^[5] (Docket Entry # 19-1). The state court denied a motion to appoint counsel and a motion for leave to file an amended complaint filed by plaintiff on April 16 and 21, 2020, respectively. (Docket Entry # 19-1, p. 9). Plaintiff filed this action on May 18, 2020. (Docket Entry # 1). On September 11, 2020, the state court denied a motion plaintiff filed in July 2020 to voluntarily dismiss the action. (Docket Entry # 19-1, p. 10).

DISCUSSION

Defendants present two arguments in support of their motion. First, they argue that the complaint is subject to dismissal because the allegations fail to plausibly suggest that defendants were deliberately indifferent to a substantial risk of serious bodily harm. (Docket Entry # 19, pp. 4-7). They Superintendent.” (Docket Entry # 19-2, p. 1). note that the complaint “does not allege that the prison staff knew that [plaintiff's] alleged assailant had a weapon that the inmate had a known propensity of attacking inmates, or that [plaintiff] was in a unique situation that placed him in some particular risk of an attack.” (Docket Entry # 18). They further point out that deliberate indifference “requires ‘an actual, subjective appreciation of the risk to inmates that is analogous to the standard for determining criminal recklessness, '” which is absent from the complaint. (Docket Entry # 19, p. 5) (quoting Brown v. Corsini, 657 F.Supp.2d 296, 306 (D. Mass. 2009)).

Second, in the event this court does not dismiss the complaint under Rule 12(b)(6), defendants argue this action should be dismissed or stayed under the “Colorado River abstention doctrine” because it is duplicative of the state court action. (Docket Entry # 19, pp. 7-11). Addressing eight factors often considered by courts in the First Circuit, defendants maintain that “wise judicial administration” strongly counsels against allowing this federal action to proceed. (Docket Entry # 19, pp. 6-11). This court considers the arguments in the order defendants present them.

A. Deliberate Indifference

“Under the Eighth Amendment, ‘prison officials have a duty to protect prisoners from violence at the hands of other prisoners.'” Lakin v. Barnhart, 758 F.3d 66, 70 (1st Cir. 2014) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)). An Eighth Amendment failure to protect claim requires: (1) the inmate to “‘show that he is incarcerated under conditions posing a substantial risk of serious harm'”; and that (2) “the prison official . . . acted, or failed to act, with ‘deliberate indifference to inmate health or safety.'”^[6] Id. (quoting Farmer, 511 U.S. at 834). Under the first prong, “‘the alleged deprivation of adequate conditions must be objectively serious, i.e., “the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.”'” Cordero v. Dickhaut, Civil Action No. 11-10098-FDS, 2014 WL 6750064, at *6 (D. Mass. Sept. 19, 2014) (quoting Giroux v. Somerset Cnty., 178 F.3d 28, 32 (1st Cir. 1999) (quoting Farmer, 511 U.S. at 834)). Under the second prong, “a prison official . . . must ‘possess[] a sufficiently culpable state of mind, namely one of “deliberate indifference” to an inmate's health or safety.'” Norton v. Rodrigues, 955 F.3d 176, 185 (1st Cir. 2020) (citation omitted).

As noted, defendants submit the complaint fails to plausibly suggest they acted with deliberate indifference to a substantial risk of harm. Demonstrating “deliberate indifference requires knowledge of a substantial risk of serious harm and an unreasonable response to the same” by the prison official. Id. The “‘“deliberate” part of “deliberate indifference” requires that a prison official subjectively “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm...