Opinion
18-P-1196
10-21-2019
Mac HUDSON v. Michael THOMPSON & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Mac Hudson, a prisoner in the custody of the Department of Correction (DOC), filed suit in Superior Court against various DOC officials and employees, seeking damages for alleged constitutional violations and for negligent infliction of emotional distress. After dismissal of the original complaint, the filing of an amended complaint, and rulings on various motions, a judge issued a memorandum and order dismissing the amended complaint as to defendant Thomas Turco, the Commissioner of DOC, for failure to state a claim. A judgment of dismissal then entered as to Turco and defendant Michael Thompson, superintendent of MCI-Concord. Hudson's motion for reconsideration of the decision on Turco's motion to dismiss was denied, and Hudson then filed a notice of appeal, designating the memorandum and order of dismissal and the denial of his motion for reconsideration as the rulings from which he appealed. On appeal, however, Hudson not only challenges an aspect of the dismissal of Turco but also argues that he still has viable claims against the other defendants. We affirm the orders regarding the dismissal of Turco and, assuming arguendo that Hudson's arguments as to the other defendants are properly before us, we reject those arguments.
Background. Hudson has not included his original complaint in his record appendix, but his amended complaint alleges the following. In 2014, Hudson requested an emergency furlough to attend the funeral of Pernell Powell, whom Hudson asserted was his biological father. Defendant Jason Lapomardo, the furlough coordinator for MCI-Concord, contacted Hudson's relatives, who verified that Powell was Hudson's father. But Lapomardo informed Hudson that a keeper of the records at MCI-Concord (defendant John Doe, see note 1, supra ) had reviewed Hudson's records and could find no verification that Powell was Hudson's father. Lapomardo told Hudson that he (Lapomardo) would include information about the relatives' verification when he forwarded Hudson's furlough application to defendant Thompson for final review, but the form sent to Thompson did not include that information. Thompson denied the furlough request on the ground that Hudson's relationship to Powell could not be verified. Hudson thus was unable to attend Powell's funeral and as a result suffered emotional distress.
The defendants have included the first two pages of that complaint in their supplemental record appendix.
Hudson then filed a grievance over the matter, requesting monetary compensation. The MCI-Concord grievance coordinator, Marcelo Silva, denied the grievance, stating that there were no DOC records verifying the familial relationship. Hudson appealed the denial and attached to his appeal two letters from DOC to Hudson from ten years earlier (2004) acknowledging that Powell was Hudson's father. Thompson denied the grievance appeal on the ground that Hudson's "records do not reflect any verification that Pernell Powell is [Hudson's] father."
Hudson then filed suit against Thompson, Lapomardo, Doe, and Silva. On Doe and Silva's motion, the complaint was dismissed, but Hudson was allowed to file an amended complaint. That amended complaint named as defendants Thompson, Lapomardo, and Doe, and, for the first time, Turco; it did not, however, name Silva, as had the original complaint. The amended complaint asserted (1) violations of Hudson's Federal constitutional rights to equal protection and against cruel and unusual punishment, (2) violations of various State constitutional rights, and (3) negligent infliction of emotional distress. Hudson sought only monetary relief. This appeal from the dismissal of the amended complaint as to Turco and the denial of the motion for reconsideration of that dismissal followed.
Discussion. Hudson's appeal brings before us the correctness only of the rulings on the two motions listed in the notice of appeal: Turco's motion to dismiss and Hudson's motion for reconsideration. See Siles v. Travenol Labs., Inc., 13 Mass. App. Ct. 354, 354 n.1 (1982) (validity of ruling not designated in notice of appeal "is not properly before this court and will not be considered on appeal"). We therefore consider whether the judge erred in dismissing the complaint as against Turco and abused his discretion in denying the motion for reconsideration of that dismissal. See Piedra v. Mercy Hosp., Inc., 39 Mass. App. Ct. 184, 188 (1995) (denial of motion to reconsider is reviewed for abuse of discretion). We also consider whether, assuming arguendo that Hudson's arguments as to defendants other than Turco are properly before us, Hudson retains viable claims against those defendants. We answer all of these questions in the negative.
Hudson argues that an appeal from a final judgment brings up for review all rulings underlying that judgment. But Hudson's notice of appeal does not list the judgment dismissing Turco (and Thompson), or any judgment, as a subject of his appeal.
1. Negligence claim. Under the Massachusetts Tort Claims Act, a person seeking damages for the negligent conduct of public employees may not obtain relief from those employees individually but may sue their public employer. See G. L. c. 258, § 2. Here, that public employer would be the Commonwealth, G. L. c. 258, § 1, although naming the relevant State agency, such as the DOC, would also appear to suffice. See, e.g., Coughlin v. Department of Correction, 43 Mass. App. Ct. 809 (1997).
Hudson, however, did not name the Commonwealth or the DOC as a defendant; he sued only DOC officials and employees. Hudson was placed on notice of this defect when Doe and Silva moved to dismiss his original complaint on this very ground, among others, and the judge allowed the motion "for the reasons set forth in defendants['] memorandum." Hudson failed to correct this defect when he filed his amended complaint. Hudson's motion for reconsideration asserted that he had offered, at the hearing on Turco's motion to dismiss, to file a second amended complaint to address this defect, but the judge was not obliged to allow this request, if it was in fact made. The negligent infliction of emotional distress claim against Turco was properly dismissed, and for similar reasons, Hudson has no viable negligence claim against any of the other defendants.
The judge dismissed the claim against Turco on the ground, among others, that the DOC owed no duty to grant Hudson a furlough. Although we affirm the dismissal on another ground, see Rasheed v. Commissioner of Correction, 446 Mass. 463, 478 (2006), we add that we would be loathe to recognize an enforceable duty to grant a furlough to an inmate, even if that inmate met threshold eligibility requirements.
2. Constitutional claims. To whatever extent Hudson's constitutional claims seek damages from any of the defendants in their official capacities, those claims fail. Hudson's Federal constitutional claims were asserted under 42 U.S.C. § 1983, which does not authorize official-capacity suits for damages. See O'Malley v. Sheriff of Worcester County, 415 Mass. 132, 140–141 (1993). As for Hudson's State constitutional claims, he may not recover damages in an official-capacity suit directly under the State Constitution, and he has not identified any statute authorizing him to assert such claims. See Doe, Sex Offender Registry Bd. No. 474362 v. Sex Offender Registry Bd., 94 Mass. App. Ct. 52, 64–65 (2018).
To the extent Hudson asserts constitutional claims against the defendants in their individual capacities, he cannot recover for State constitutional violations because he has not sued under any applicable procedural statute such as the Massachusetts Civil Rights Act. See Doe, Sex Offender Registry Bd. No. 474362, 94 Mass. App. Ct. at 64-65. This leaves Hudson's individual-capacity claims for Federal constitutional violations. We proceed to discuss these claims as they might apply to Turco and, assuming arguendo that the issue is before us, to the other defendants.
Section 1983 is unavailable because it does not authorize recovery for violations of State (as opposed to Federal) law. See Martinez v. Colon, 54 F.3d 980, 989 (1st Cir.), cert. denied, 516 U.S. 987 (1995) ; Baker v. Gray, 57 Mass. App. Ct. 618, 624 (2003).
We pass over these other defendants' arguments, which appear to have considerable force, that insofar as sued in their individual capacities, they were never properly served with the applicable complaint.
Turco cannot be liable for any such violations, because he was not the Commissioner of DOC at the time of the events described in the complaint and is not alleged to have had any personal involvement in them. See Martino v. Hogan, 37 Mass. App. Ct. 710, 719 (1994). Hudson concedes in his reply brief that he has no viable constitutional claims against Turco.
As for Silva, Hudson has failed to include in his record appendix a copy of his original complaint -- the only complaint naming Silva as a defendant. It is "a fundamental and long-standing rule of appellate civil practice" that the appellant has an obligation "to include in the appendix those parts of the [record that] are essential for review of the issues raised on appeal." Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass. 807 (1992). Hudson's omission leaves us without any basis to conclude that the judge erred in allowing Silva's motion to dismiss the original complaint for, among other things, failure to state a constitutional claim.
As for Lapomardo and Doe, the record indicates that they filed a motion to dismiss (based among other things on the amended complaint's failure to state a claim); that Hudson did not serve or file any opposition, timely or otherwise; and that Hudson (through counsel) assented to that motion, whereupon it was allowed. The record contains no support for Hudson's assertion, in his motion for reconsideration, that counsel did not intend that assent to apply to certain of the constitutional claims against Lapomardo and Doe. Having assented to the dismissal of the claims against those defendants, Hudson cannot challenge their dismissal in this appeal.
As for Thompson, we turn first to Hudson's Federal equal protection claim. Hudson argues that he has stated a "class of one" equal protection claim, in that he was treated differently from similarly-situated prisoners without any rational basis (and, Hudson adds, for an improper, retaliatory purpose). See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Hudson asserts that "the disparate treatment is not the granting of the furlough [to other prisoners], but the refusal of [the defendants] to engage in the basic review of [Hudson's records] that provided verification of his biological relation to Mr. Powell to qualify for the emergency furlough." But the amended complaint contains no allegations that Thompson was more diligent in reviewing other inmates' records than Hudson's. The most the amended complaint alleges in this regard is that during the relevant period, there were "many other prisoners, similarly situated, who received furloughs for various family issues," and that some of these prisoners (whose names Hudson listed) had prison behavior records that were similar to, or significantly worse than, Hudson's. Hudson's argument as to how he has stated a "class of one" claim simply has no basis in the allegations of the amended complaint.
We review the sufficiency of a complaint de novo, taking as true its factual allegations and drawing all reasonable inferences in the plaintiff's favor. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). "[W]e look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief." Id., citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008).
Turning finally to Hudson's claim under the Eighth Amendment to the United States Constitution (cruel and unusual punishment), such a claim requires an allegation of, among other things, " ‘deliberate indifference’ to a substantial risk of serious harm to an inmate." Farmer v. Brennan, 511 U.S. 825, 829 (1994). See Wilson v. Seiter, 501 U.S. 294, 303 (1991). We see nothing in the amended complaint alleging that Thompson was deliberately indifferent to any such risk of harm to Hudson.
We note that Thompson's affirmance of the denial of Hudson's grievance -- allegedly with knowledge of DOC records indicating that Powell was Hudson's father -- occurred after the denial of Hudson's furlough request and his consequent inability to attend the funeral, which allegedly caused him emotional distress. The denial of the grievance, which sought only monetary relief, cannot be viewed as having created a substantial risk of serious harm to Hudson.
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Conclusion. We affirm the October 24, 2017, order dismissing the amended complaint as against Turco and the November 30, 2017, order denying Hudson's motion for reconsideration.
So ordered.
Affirmed.