Opinion
18-P-828
10-16-2019
Wayne D. CROSBY v. Thomas A. TURCO, III, & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Wayne Crosby, appeals from a summary judgment entered in the Superior Court in favor of the defendants. He asserts that the judge erred in granting summary judgment, and also abused his discretion in refusing to permit Crosby to amend his complaint. We affirm.
Background. Crosby is an inmate in the custody of the Department of Correction (department), and is currently incarcerated at the Massachusetts Correctional Institution at Norfolk (MCI-Norfolk); he previously was incarcerated and transferred from the Massachusetts Correctional Institution at Shirley (MCI-Shirley). In November 2016, Crosby filed a complaint seeking relief for constitutional and civil rights violations he alleged he suffered while incarcerated at MCI-Shirley, and then later at MCI-Norfolk. In his complaint, Crosby contended that his due process rights were violated because postage stamps were retained improperly, and also because there were no written procedures for issuing extra toilet paper. Finally, he alleged that he was denied dental services by an outside provider.
The plaintiff was incarcerated at MCI-Shirley from May 25, 2010, through November 22, 2011, and has been incarcerated at MCI-Norfolk since October 16, 2012.
Michael McCue, a correction officer, then acting as "Institutional Grievance Coordinator," filed an affidavit in March, 2017. According to the affidavit, Crosby had filed with MCI-Norfolk four grievances regarding the confiscation of his postage stamps. The grievances were denied because the "issue was deemed to be non-grievable because it was a disciplinary matter." Crosby also had filed grievances regarding the lack of toilet paper. The institution addressed each grievance and Crosby exercised his right to appeal; each appeal was denied.
In April 2017, the defendants filed a motion to dismiss Crosby's complaint or, in the alternative, for summary judgment; in response, the judge issued a procedural order that treated the defendants' motion as one for summary judgment, and issued a schedule for Crosby to respond to the defendants' motion and supporting affidavits. Crosby did not file an opposition; he did, however, seek leave to amend his complaint. The defendants' motion to strike the "(proposed) amended complaint" was allowed because, as the judge explained, "[a]mending the complaint would be contrary to the court's intent in issuing the [May 15, 2017] [p]rocedural [o]rder."
On June 6, 2017, Crosby voluntarily withdrew and dismissed his "Part three" claim regarding the serving of cold food. As a result, that issue is not before us.
In the procedural order, the judge instructed the defendants, if they wished to continue to seek summary judgment, to file a renewed motion for summary judgment, incorporating their previously filed motion, and to include any response or opposition to the motion by Crosby.
In January 2018, the defendants refiled their motion for summary judgment accompanied by a memorandum of law and supporting affidavits. The motion was allowed "without opposition," and the case was closed. Crosby timely appealed.
Discussion. Summary judgment is appropriate where there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Choquette v. Isacoff, 65 Mass. App. Ct. 1, 3 (2005). See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). "The moving party bears the burden of affirmatively demonstrating that there is no triable issue of fact"; the evidence is viewed in the light most favorable to the nonmoving party. Moran v. Gala, 66 Mass. App. Ct. 135, 139 n.8 (2006), quoting Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 644 (2002). The opponent then bears the burden of introducing enough countervailing data to demonstrate the existence of a genuine material factual issue. See Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974). At the summary judgment stage, neither the plaintiff nor the defendant can "meet its burden by silence." Peters v. Haymarket Leasing, Inc., 64 Mass. App. Ct. 767, 771 (2005). "We review a grant of summary judgment de novo." Merrimack College v. KPMG LLP, 480 Mass. 614, 619 (2018).
In this case, the defendants established the absence of a triable issue. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). In their renewed summary judgment papers, the defendants offered competent evidence regarding the allegations raised in Crosby's complaint, which, if left undisputed, would entitle the defendants to judgment as a matter of law. Crosby did not oppose the renewed motion for summary judgment, but now asks us to look instead to his original opposition to the original motion. The failure to file an opposition contravened the judge's order requiring refiling of a renewed motion and opposition. However, even if we consider the pro se prisoner's original opposition, he fares no better, since he has not provided evidence that would place material facts in dispute.
The defendants contend that Crosby's claims regarding events that occurred while he was at MCI-Shirley were untimely; both his constitutional claims, and his Federal and Massachusetts civil rights claims were restricted by a three-year limitations period. See G. L. c. 260, §§ 2A and 5B. See also Pagliuca v. Boston, 35 Mass. App. Ct. 820, 822 (1994) ; Messere v. Murphy, 32 Mass. App. Ct. 917, 917-918 (1992). Crosby was incarcerated at MCI-Shirley until November 2011; he filed his complaint on November 15, 2016. Accordingly, any claims arising therefrom are time barred. In addition, Crosby's claim regarding the confiscation of his postage stamps in November 2012 while at MCI-Norfolk likewise is barred by the limitations period.
Second, Crosby failed to file grievances, as he was required to do, for the two other alleged incidents relating to deprivation of toilet paper (on December 23, 2015, and September 14, 2016). Because he did not exhaust all available administrative remedies for these two incidents, he cannot now raise them on appeal. See G. L. c. 127, § 38F.
With respect to certain claims against the defendants individually, Crosby named the incorrect parties. Defendant Marchilli became superintendent at MCI-Shirley on May 25, 2016. Because Crosby was transferred from that institution before Marchilli was the superintendent, Crosby has failed to state any viable claim against Marchilli, individually. Similarly, the deprivation of toilet paper claim that allegedly occurred at MCI-Norfolk on November 25, 2015, can be raised only against defendant Medeiros, as he was the superintendent of MCI-Norfolk at that time, but not against defendant Turco individually, as Turco did not become commissioner of the department until April 2016. As a result, Crosby has failed to allege adequately a claim against Turco individually with respect to the issuance of extra toilet paper. Cf. Iannacchino v. Ford Motor Co., 451 Mass. 623, 631 (2008).
With respect to those grievances remaining, Crosby's due process claim also fails. "It is well settled that ‘[p]rison inmates have the protections of procedural due process only if there is an existing liberty or property interest at stake.’ " Allen v. Department of Correction, 69 Mass. App. Ct. 682, 684 (2007), quoting Torres v. Commissioner of Correction, 427 Mass. 611, 617, cert. denied, 525 U.S. 1017 (1998). "[F]or prisoners, liberty interests are generally limited to ‘freedom from restraint which ... imposes atypical and significant hardship ... in relation to the ordinary incidents of prison life.’ " Butler v. Turco, 93 Mass. App. Ct. 80, 83 (2018), quoting Sandin v. Conner, 515 U.S. 472, 484 (1995).
It is undisputed that Crosby's postage stamps were last confiscated on March 6, 2014, while he was incarcerated at MCI-Norfolk, as the result of a disciplinary matter; the defendants claimed that the stamps were not returned to Crosby after the disciplinary hearing in accordance with the department search policy (103 DOC § 506.12[2] ), a copy of which was attached as exhibit "F" to the defendants' summary judgment memorandum. At the time Crosby filed his complaint on November 15, 2016, the defendants argued, the three-year contraband retention period dictated by the search policy had not fully run. As a result, they contend that his claim was premature. Crosby's opposition essentially conceded that contention. See Butler, 93 Mass. App. Ct. at 83.
Crosby's opposition recited that "[o]ver various dates starting in February 2011 and ending approx. March 2014 ... stamps were confiscated and placed into evidence. In each instance the plaintiff pled guilty for being in possession of contraband.... At the close of each disciplinary hearing plaintiff was informed that the stamps would be held for three years.... Accordingly the plaintiff's stamps were held in evidence starting in February 25th, 2011 .... The three year (hold) period ended February 25th 2014. These stamps were not returned to plaintiff.... Nowhere in the complaint does plaintiff challenge the confiscation of the stamps or the disciplinary process ...."
Finally, Crosby's claims under the Eighth Amendment to the United States Constitution, citing cruel and unusual punishment, also fail. "[C]onvicted prisoners may be punished as long as the punishment is not cruel and unusual under the Eighth Amendment." Abdullah v. Secretary of Pub. Safety, 42 Mass. App. Ct. 387, 393 (1997). "[T]o be held liable under the Eighth Amendment for depriving an inmate humane conditions of confinement, a prison official must know and disregard an excessive risk to inmate health or safety." Id. at 394. On this record, nothing indicates that the defendants deprived Crosby of his right to humane treatment.
Crosby failed to place facts in dispute to show that a lack of written procedure regarding the issuance of extra toilet paper caused him harm. Specifically, he did not recite facts that would show that the extra toilet paper was necessary or essential to preserve his health. See Butler, 93 Mass. App. Ct. at 87. Nor did he provide facts demonstrating that the defendants failed to provide him medically necessary dental care by the independently contracted dental provider, or that the defendants showed a "deliberate indifference" to Crosby's health and safety by not "enforcing" his dental treatment. Id.
Altogether, the defendants established that there is no genuine issue as to any material fact and that they are entitled to judgment as a matter of law. See Morrison v. Toys "R" Us, Inc., Mass., 441 Mass. 451, 454 (2004) ; Kourouvacilis, 410 Mass. at 716. Because Crosby failed to offer any countervailing evidence to demonstrate the existence of a genuine material factual issue, we discern no error in the judge's decision to grant summary judgment in the defendants' favor. See Barron Chiropractic & Rehabilitation, P.C. v. Norfolk & Dedham Group, 469 Mass. 800, 804-805 (2014).
In addition, we cannot say that the judge abused his discretion in denying Crosby's motion to amend his complaint; the judge, in his broad discretion, determined that amending the complaint during summary judgment proceedings "would be contrary to the court's intent in issuing the [p]rocedural [o]rder." We see no error. See Pielech v. Massasoit Greyhound, Inc., 441 Mass. 188, 197 (2004).
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Judgment affirmed.