Opinion
18-P-899
06-04-2019
KYLE BRYANT v. STEVEN SILVA & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Kyle Bryant, sued the defendants, all officials in the Department of Correction, under the Eighth Amendment to the United States Constitution and Massachusetts Tort Claims Act (MTCA), alleging inadequate and low quality meals at the Souza-Baranowski Correctional Center. A Superior Court judge granted the defendants' motion for summary judgment on all counts. On appeal, the plaintiff contends that the judge should not have granted summary judgment because (1) there was a genuine dispute as to the amount of food the plaintiff received; and (2) summary judgment is premature where the discovery process was not complete. We affirm.
The plaintiff's amended verified complaint does not mention the MTCA, but the asserted claims for negligence and negligent infliction of emotional distress against public officials are only cognizable under the MTCA. G. L. c. 258, § 2, first par. See also Lamoureux v. Superintendent, Massachusetts Correctional Inst., Walpole, 390 Mass. 409, 410 n.4 (1983) (pro se filings interpreted liberally, but the court will not advance legal theories neglected to be presented).
Discussion. 1. Genuine disputes as to material facts. We review the summary judgment record de novo, viewing the evidence in the light most favorable to the plaintiff, who was the non-moving party. Pinti v. Emigrant Mtge. Co., 472 Mass. 226, 231 (2015). Summary judgment is only appropriate when there are no genuine disputes as to material facts and the moving party is entitled to judgment as a matter of law. Id. Where, as here, the moving party would not bear the burden of proof at trial, it may satisfy its burden at summary judgment by demonstrating that proof of an essential element of the plaintiff's claim "is unlikely to be forthcoming at trial." Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991).
To prevail on his Eighth Amendment claims, the plaintiff must show that (1) the "conditions of confinement present 'a substantial risk of serious harm'; and (2) prison officials acted with 'deliberate indifference' to [his] health or safety." Torres v. Commissioner of Correction, 427 Mass. 611, 613-614
(1998), quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994). "[O]nly those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation" (citations omitted). Hudson v. McMillan, 503 U.S. 1, 9 (1992). Such necessities include "adequate food, clothing, sanitation, medical care, and communication with others." Torres, supra at 615. "[W]hether prison conditions are sufficiently harmful to establish an Eighth Amendment violation, is a purely legal determination for the court to make," id. at 614, and thus, because the adequacy of the plaintiff's meals under the Eighth Amendment is a purely legal issue, there is no factual dispute. Our inquiry shifts, therefore, to whether the defendants are entitled to judgment as a matter of law.
Here, the plaintiff's proof shows at best that he did not receive the portion sizes equal to those listed in Department of Correction menus. However, there is no evidence that his meals or portions are nutritionally inadequate, see Torres, supra at 614 (food provided by prison officials need only be "adequate"). Nor is there any indication that such evidence would be forthcoming. Although the plaintiff noted in his amended complaint that the portion size of his meals caused him to lose weight, there is nothing in the record to substantiate that bald claim. See United States Trust Co. of N.Y. v. Herriott, 10 Mass. App. Ct. 313, 318 (1980) (to avoid summary judgment, party may not rely on "pleadings or bald conclusions"). In any event, moderate weight loss alone is insufficient to show a substantial risk of serious harm. See McEachin v. McGuinnis, 357 F.3d 197, 199 (2d Cir. 2004) (three-pound weight loss due to diet insufficient to support Eighth Amendment claim).
Even assuming proper presentment of the plaintiff's MTCA claims, see G. L. c. 258, § 4, those claims also fail. The MTCA states: "no . . . public employee . . . shall be liable for any injury or loss of property or personal injury or death caused by his negligent or wrongful act or omission while acting within the scope of his office or employment." G. L. c. 258, § 2, first par. Here, there is no indication that the defendants acted outside the scope of their employment. Accordingly, the plaintiff is barred from suing on these purported grounds.
2. Discovery. We are also not persuaded that the judge erred in granting summary judgment before the plaintiff received discovery from the defendants.
"A court may grant summary judgment despite an opposing party's claim that discovery would yield additional facts where the opposing party has not alleged specific facts that could be developed through such discovery." E.A. Miller, Inc. v. South Shore Bank, 405 Mass. 95, 102 (1989), quoting Taylor v. Gallagher, 737 F.2d 134, 137 (1st Cir. 1984). Here, the plaintiff has not alleged that discovery would develop any specific facts that would assist his claims. Accordingly, we discern no error.
Judgment affirmed.
By the Court (Maldonado, McDonough & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 4, 2019.