Opinion
No. 15–P–1399.
09-19-2016
Edward G. WRIGHT v. Steven J. O'BRIEN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal by the defendant, Steven J. O'Brien, who was at all relevant times the superintendent at the Old Colony Correctional Center (OCCC), from an amended judgment against him in the amount of $45,000 for violation of the Massachusetts Civil Rights Act (MCRA) and $45,000 for violation of the plaintiff's Federal civil rights. At the time of trial, defendants Harold W. Clarke (Commissioner of Correction), James R. Bender (Deputy Commissioner of Correction), and John O. Martins, a correction officer, were also defendants in this action. The jury returned verdicts in favor of both Clarke and Bender, and the plaintiff has not filed a cross appeal from that determination. The jury returned a verdict against Martins in the total amount of $47,500. Specifically, the jury awarded the plaintiff $7,500 on his claim for assault and battery, $20,000 for intentional infliction of emotional distress, $10,000 for his Federal civil rights claim, and $10,000 for his MCRA claim.
At trial, O'Brien (and the other defendants) moved for a directed verdict at the close of the evidence; the judge deferred ruling on the motion until the jury had returned their verdicts. After the verdicts, the defendants moved for judgment notwithstanding the verdicts, which motion was denied. The judge subsequently entered an order specifying that the verdicts against O'Brien were in his official capacity as superintendent of the OCCC, while the verdicts against Martins were in his individual capacity. The plaintiff then moved to correct the judgment to provide that the verdicts against O'Brien were in his individual capacity. The judge granted the motion, and an amended judgment against O'Brien individually entered . O'Brien filed his notice of appeal from the amended judgment. On appeal he argues that he is shielded from liability by qualified immunity and that there was insufficient evidence to support the jury's verdict.
Martins did not appeal from the amended judgment and is not a party to this appeal.
Statement of facts. We set forth the facts in the light most favorable to the plaintiff. Phelan v. May Dept. Stores Co., 443 Mass. 52, 55 (2004).
On Saturday, July 28, 2007, Officer David O. Martins conducted a pat search of the plaintiff, Edward G. Wright, when he was leaving the dining hall at the OCCC where he was an inmate. In the course of conducting the search, Martins hit Wright hard in the groin area, which caused him pain, and concluded by slapping Wright across the buttocks. Wright spoke with a captain about the sexual assault. After about three hours, Wright was instructed to speak to an Inner Perimeter Security (IPS) officer about the incident. The IPS officer with whom Wright spoke, Kenneth Martin, suggested that Wright file a grievance, which Wright agreed to do. Approximately two days later, Wright spoke to O'Brien about the incident. O'Brien indicated that he knew about Wright's complaint and was looking into it. Wright filed a grievance on August 4, 2007. IPS officer Kenneth Martin interviewed Officer Martins, who denied the allegations.
The plaintiff testified that he was convicted of murder in the first degree on April 10, 1985.
On August 18, 2007, Officer Martins again conducted a pat search of Wright as he was leaving the dining hall. Wright testified that Martins conducted the pat search in the same way that he had on July 28. After Martins completed the pat search, he told Wright that he was not done. Wright refused to allow Martins to pat search him again and asked that another officer perform the pat search. Wright filed a grievance for this incident. He received a disciplinary report for having refused to permit Martins to perform the pat search; O'Brien upheld the guilty finding on the disciplinary report.
Superintendent O'Brien testified that he had worked for the Department of Correction for thirty-two years. He became the superintendent of OCCC in April of 2007. Grievances against Martins filed by two other inmates, dated June 14, 2007, and June 29, 2007, setting forth allegations of sexually inappropriate pat searches similar to those of which Wright complained, were shown to O'Brien during the course of his testimony and were marked as exhibits. After reviewing those two grievances, O'Brien acknowledged that the complaints by two additional inmates concerning sexual misconduct by Martins would have “raise[d] a red flag.” Later during the course of his testimony, O'Brien indicated that he knew, at some point, that Martins had several dozen grievances filed against him for sexually assaultive pat searches. He then stated that the numerous complaints led him to want to “explore this as to what is happening .” He wanted supervisory officers to observe to make sure that Martins was doing his pat searches correctly. He also wanted to ascertain whether Martins was being targeted by the inmates because he conducted good searches.
O'Brien testified that Wright's grievances were referred to the internal affairs unit. The grievances contain notations verifying that they were referred to the internal affairs unit, in accordance with institutional policy. It was that office's responsibility to determine whether the grievance would be investigated outside the prison (by the internal affairs unit) or within the prison. The internal affairs unit decided that the grievances should be investigated internally; Wright's two grievances were combined for consideration.
O'Brien was also questioned about his knowledge and application of a Department of Correction (DOC) policy pertaining to the handling of allegations of staff sexual misconduct with inmates, entitled Staff Sexual Misconduct With Inmates, number 103 DOC 519 (the policy). The specific section about which inquiry was made was § 519.04 (2003), Investigation, which provides, in pertinent part that: “The staff member accused of sexual misconduct with an inmate may be placed on either ‘no inmate contact status' or detached with pay status pending an investigation of the matter.” Wright questioned O'Brien at length about his reasons for not putting Martins either on “no inmate contact status” or detaching him without pay while the grievances that preceded his were being investigated. O'Brien testified that because the section states that the staff member “may” be placed on “no inmate contact status” or detached without pay, he was not required to take either course of action while the investigation was ongoing. He stated, “[T]he allegation that was made is just an allegation in and of itself. The fact that an inmate complains during a pat search that is part of our normal business, I take the allegation seriously; but I understand that at times these things do occur. I also felt as long as we investigated that grievance, then that was satisfactory to me.” O'Brien testified that he used his “correctional professional judgment” to determine what steps to take when a grievance had been filed.
After these grievances had been sent to the internal affairs unit, they were then returned to the OCCC for internal investigation. The grievances were found to be unsubstantiated.
Discussion. The threshold question in this case is O'Brien's contention that he is shielded from individual liability under the doctrine of qualified immunity. “The doctrine of qualified immunity shields government officials, in the course of performing discretionary tasks, from liability for civil damages ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).” Clancy v. McCabe, 441 Mass. 311, 317 (2004). “To determine whether a reasonable official would have known that his conduct violated a clearly established right, we make an objective inquiry into the legal reasonableness of the official action. That determination is a question of law.... Finally we recognize that the qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.” Ahmad v. Department of Correction, 446 Mass. 479, 484–485 (2006) (quotations omitted). The doctrine provides a shield for liability from civil damages under Federal and State law. Id. at 484.
Wright first contends that O'Brien is not entitled to argue the application of the doctrine of qualified immunity because he did not specify his reliance on the doctrine in his motion for a directed verdict. The doctrine was pleaded as an affirmative defense in the defendant's answer. While it is true that O'Brien did not argue the doctrine when he initially argued his motion for a directed verdict, the judge immediately made clear that she was reserving any consideration of the motion until after the jury had returned their verdicts. When O'Brien made his motion for judgment notwithstanding the verdict, he clearly articulated his reliance on the doctrine. Further, from the memorandum that O'Brien submitted in support of his motion for judgment notwithstanding the verdict, it appears that the judge instructed the jury on the issue of qualified immunity. Finally, after the verdicts had been returned, the judge entered an order specifying that the judgment against O'Brien was in his individual capacity; after the plaintiff moved to correct this determination, the judge reversed herself and decided that the judgment was against O'Brien individually. Therefore, we consider the issue of the application of the doctrine of qualified immunity to be before us for review. Compare Lynch v. Boston, 180 F.3d 1, 13 n. 9 (1st Cir.1999) (while the defendant could have made the argument concerning qualified immunity more specifically in the motion for a directed verdict, where the assertion of qualified immunity had been made and the plaintiff could not have been surprised by it, issue could be considered).
The relevant portion of the memorandum states that “The Court instructed the jury that Superintendent O'Brien was entitled to qualified immunity when: 1) the conduct attributed to him was not prohibited by federal law; or 2) where that official action was so prohibited, if the plaintiff's right not to be subjected to such action was not clearly established at the time it was taken.” Neither party submitted the jury instructions to this court.
Although the majority of cases involving defenses of qualified immunity are resolved on pretrial motions for summary judgment which are then submitted for interlocutory appeal, see, e.g., White v. Gurnon, 67 Mass.App.Ct. 622, 623 (2006), the defendant remains “free to raise [the issue of qualified immunity] on any appeal.” Littles v. Commissioner of Correction, 444 Mass. 871, 880 (2005).
Wright's argument is that O'Brien's knowledge of the grievances filed by two other inmates before July 28, 2007, required O'Brien either to place Martins on “no inmate contact status” or detached without pay status, in accordance with the policy. It follows, according to Wright, that the failure to take one of these courses of action constituted a constitutional violation by O'Brien because it enabled Martins to sexually assault Wright, thereby violating the plaintiff's right to be free from cruel and unusual punishment as guaranteed by the Eighth Amendment to the United States Constitution.
On the other hand, O'Brien argues that it was well within his discretion to investigate the complaints, which he testified that he took very seriously, and to rely on the investigations in determining his course of action. He further testified that he read the policy language stating that a staff member “accused of sexual misconduct with an inmate may be placed on either ‘no inmate contact status' or detached with pay status” as providing him with those options but, in view of the word “may” (rather than “shall”), not requiring him to exercise either option. See Clancy v. McCabe, 441 Mass. at 323 (“[T]he reasonableness of the official's action should be treated as a question of law”). Here, the record indicates that O'Brien's actions were well within his “correctional professional” discretion and were not unreasonable. These discretionary actions do not constitute a violation of Wright's constitutional rights. O'Brien is entitled to immunity from suit under the facts of this case. Consequently, the portions of the amended judgment awarding damages against him must be reversed.
Because of our disposition of this issue, we do not consider the other issues raised by O'Brien.
Conclusion. Paragraphs V and VI of the amended judgment awarding damages to Wright against O'Brien are reversed, and a modified judgment shall enter specifying that Wright take nothing on his claims against O'Brien and that those claims be dismissed. In all remaining respects the amended judgment is affirmed.