Opinion
14-P-1435
05-05-2016
STEVEN JOHNSON & another v. KELLY A. RYAN.
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 pro se plaintiffs appeal from dismissal of their putative class-action complaint against the superintendent of MCI-Shirley in both her individual and her official capacity, alleging that she failed to provide adequate winter clothing to indigent prisoners at MCI-Shirley in violation of, inter alia, the Eighth Amendment to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights. The judge dismissed the complaint "for the reasons argued by the defendant in support of th[e] motion [to dismiss] as contained in her memorandum of law." These reasons were failure to state a claim for which relief could be granted, Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), and sovereign and qualified immunity. The superintendent also argued that one of the named plaintiffs, Steven Johnson, failed to exhaust his administrative remedies, 42 U.S.C. § 1997e(a) (2012), and G. L. c. 127, §§ 38E-38H.
The superintendent treats the pro se plaintiffs' three-page brief as though it seeks only to have the motion judge recused. We do not read it so narrowly. We think it is best read also to allege that the plaintiffs stated a claim and that their complaint should not have been dismissed.
The verified complaint alleges that prisoners at MCI-Shirley, including the plaintiffs, are denied winter clothing adequate to protect their health and comfort. It alleges that they are issued only a winter coat, and that if they want thermal underwear, heavy socks, hats, gloves, or winter footwear, they are required to pay for it out of their personal account at the property department. The plaintiffs' complaint alleges that indigent inmates, including themselves, are without funds to do so, and that, as a consequence, they are denied winter clothing adequate to protect their health and comfort in subfreezing weather, snow, rain, and wind, to which they are required to be subjected repeatedly daily, for example, while waiting outside buildings like the "chow hall," and while going to and from health services, and school and program buildings. The complaint alleges they are required to go outside daily, and may not remain in their housing units. It alleges that both the named plaintiffs had requested proper winter clothes, putting MCI-Shirley officials on notice of the situation and its risks, and that these officials, including the defendant, had refused to remedy the situation. The plaintiffs seek injunctive and declaratory relief under both Federal law, 42 U.S.C. § 1983 (2012), and State law, G. L. c. 12, § 11I, G. L. c. 231A, §§ 1 et seq.
In her memorandum in support of her motion to dismiss, the superintendent argued that, on the merits, the plaintiffs had failed to state a claim. We disagree. First, the plaintiffs have alleged that the defendant and other MCI-Shirley officials under her command violated Department of Correction (DOC) policies and Department of Public Health (DPH) regulations regarding clothing for inmates. The DOC policy provides that "[e]ach superintendent shall develop written procedures to ensure that, at a minimum, the following are provided: . . . The issuance of suitable clothing to all inmates to preserve health and comfort at all times of the year. Clothing is properly fitted, climatically suitable, durable, and presentable." 103 DOC Policy 755.03(1) (2015). The DPH regulation provides that "[e]ach inmate shall be furnished with proper clothing to preserve health and comfort at all times of the year if his own wardrobe is not permitted, or is not adequate for these purposes." 105 Code Mass. Regs. § 451.210 (1999). The plaintiffs have properly brought these claims under the declaratory judgment act, G. L. c. 231A, § 2. See Ivey v. Commissioner, 88 Mass. App. Ct. 18, 22 (2015).
General Laws c. 231A, § 2, as amended by St. 1974, c. 630, § 1, provides that a party may seek in the Superior Court "to enjoin and to obtain a determination of the legality of the administrative practices and procedures of any . . . state agency or official which practices or procedures are alleged to be in violation of the Constitution of the United States or the constitution or laws of the commonwealth, or are in violation of rules or regulations promulgated under the authority of such laws, which violation has been consistently repeated . . . ."
Second, under the Eighth Amendment, "[p]rison officials violate the Constitution when they provide inmates with clothing that is 'patently insufficient to protect [them] from the cold in the winter months.'" Gordon v. Faber, 800 F. Supp. 797, 800 (N.D. Iowa), aff'd, 973 F.2d 686 (8th Cir. 1992) (citation omitted). An allegation that the winter clothing provided to a prisoner is inadequate to protect his health as he engages in the required activities and routines of the prison, and that such provision was made with deliberate indifference by prison officials to his health or safety, Farmer v. Brennan, 511 U.S. 825, 834 (1994), thus states a claim upon which relief can be granted. The protection provided under art. 26 is greater. A claim that the official conduct created a substantial risk of serious harm and that prison officials were aware of but "ignore[d]" the risk is sufficient. Torres v. Commissioner of Correction, 427 Mass. 611, 616 (1998). The plaintiffs have sufficiently alleged violations of both the Eighth Amendment and art. 26 to state a claim for declaratory or injunctive relief under 42 U.S.C. § 1983 and G. L. c. 231A, § 2. Indeed, the superintendent in her memorandum in support of her motion to dismiss below cited our unpublished decision in Rasheed v. Commissioner of Correction, 55 Mass. App. Ct. 1112 (2002), in which we held that there was no violation of the Eighth Amendment or art. 26 because the plaintiff prisoners in that case were "provided (while housed at the [Souza-Baranowski Correctional Center]) with a winter coat, a knit hat and footwear (and now [because of an order of the trial judge], thermals)," and were not required "to participate in outdoor activities."
We agree, however, with the dismissal of the claim under the Massachusetts Civil Rights Act (MCRA), G. L. c. 12, § 11I. "To establish a claim under the [MCRA], 'a plaintiff must prove that (1) the exercise or enjoyment of some constitutional or statutory right; (2) has been interfered with, or attempted to be interfered with; and (3) such interference was by threats, intimidation, or coercion.'" Glovsky v. Roche Bros. Supermkts., Inc., 469 Mass. 752, 762 (2014), quoting from Currier v. National Bd. of Med. Examiners, 462 Mass. 1, 12 (2012). "For purposes of the act, we define 'threats, intimidation or coercion' as follows: a 'threat' consists of 'the intentional exertion of pressure to make another fearful or apprehensive of injury or harm'; 'intimidation' involves 'putting in fear for the purpose of compelling or deterring conduct'; and 'coercion' is 'the application to another of such force, either physical or moral, as to constrain him to do against his will something he would not otherwise have done.'" Glovsky, supra at 762-763, quoting from Haufler v. Zotos, 446 Mass. 489, 505 (2006).
As the plaintiffs have not alleged any threats or intimidation by the defendant, the only possible basis on which they could argue that they pleaded sufficient facts to satisfy the third prong of the MCRA is coercion. "[Coercion] is the active domination of another's will . . . . Thus, we have recognized that coercion may take various forms, and we have not limited its scope to actual or attempted physical force." Buster v. George W. Moore, Inc., 438 Mass. 635, 646 (2003). Although prison might be considered an inherently coercive environment, this argument is foreclosed by precedent. See Longval v. Commissioner of Correction, 404 Mass. 325, 333 (1989) ("[W]e see no coercion, within the meaning of the State Civil Rights Act, simply from the use of force by prison officials, authorized to use force, in order to compel a prisoner to do something he would not willingly do, even if it turns out that the official had no lawful right to compel the prisoner to take that action"). Thus, the claim for violation of the MCRA was properly dismissed.
The superintendent also argued that she was not subject to a damages award in either her official or her individual capacity. We need not resolve the issue here, however, because, except to the extent it seeks "such further relief th[e] Court may deem the[] [plaintiffs] are entitled to as a matter of law," this is not a damages action, but one for declaratory and injunctive relief. It is clear that sovereign immunity, upon which the superintendent sought to rely, is no bar to an injunctive action against a State official, Ex Parte Young, 209 U.S. 123, 159-160 (1908), nor, despite the superintendent's argument, is qualified immunity available in "[42 U.S.C.] § 1983 cases against individuals where injunctive relief is sought instead of or in addition to damages," Pearson v. Callahan, 555 U.S. 223, 242 (2009). The same is true in G. L. c. 12, § 11I, actions seeking injunctive relief and G. L. c. 231A, § 2, actions seeking declaratory relief. Longval, 404 Mass. at 332 (qualified immunity "would only preclude the recovery of damages against the defendants").
Finally, the superintendent argued correctly that one of the two named plaintiffs, Steven Johnson, failed to exhaust his administrative remedies. The State law requiring exhaustion, G. L. c. 127, §§ 38E-38H, however, explicitly provides that a court may consider a claim that may be the subject of a grievance under § 38E, even when the inmate has not exhausted the administrative remedy established pursuant to § 38E, "for actions seeking equitable relief." G. L. c. 127, § 38F, inserted by St. 1999, c. 127, § 133. Thus, none of Johnson's claims are barred by State law insofar as they seek equitable relief.
As to the Federal exhaustion requirement applicable to Johnson's claims under Federal law, the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), requires only that one of the named plaintiffs in a class action exhaust his administrative remedies. See, e.g., Chandler v. Crosby, 379 F.3d 1278, 1287 (11th Cir. 2004) ("[A] class of prisoner-plaintiffs certified under [Fed.R.Civ.P.] 23[b][2] satisfies the PLRA's administrative exhaustion requirement through 'vicarious exhaustion,' i.e., when 'one or more class members has exhausted his administrative remedies with respect to each claim raised by the class'" [citations omitted]). Thus, it was premature for the judge to dismiss the complaint on this ground before ruling on the plaintiffs' motion for class action certification.
That portion of the judgment dismissing the plaintiffs' claim under the Massachusetts Civil Rights Act, G. L. c. 12, § 11I, is affirmed. The judgment is otherwise reversed and the matter is remanded for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Rubin, Maldonado & Massing, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 5, 2016.