Opinion
19-P-143
07-23-2020
RAMON OLAN v. BRIDGEWATER STATE HOSPITAL & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The plaintiff is a prisoner who is serving a criminal sentence and was transferred in 2012 to Bridgewater State Hospital (Bridgewater), to work as an inmate worker. Bridgewater is a Department of Correction (DOC) facility that houses convicted inmates as well as civilly committed persons referred to as "patients." On January 4, 2013, the plaintiff sustained injuries when he was attacked by a patient. The plaintiff, acting pro se, sued Bridgewater for "originally causing the beating and injuries," and requested damages of the statutory maximum of $100,000. See G. L. c. 258, § 2 (limiting damage awards against public employer). The plaintiff alleged that DOC employees who worked at Bridgewater were responsible for the plaintiff's safety and had negligently (1) failed to prevent the attack, (2) responded to the attack, and (3) provided inadequate medical care after the attack. According to the operative third amended complaint, the plaintiff alleged that the negligence was so severe that it amounted to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.
The plaintiff is serving criminal sentences for manslaughter, assault and battery by means of a dangerous weapon, and unarmed assault in a dwelling.
The plaintiff conceded below that the individual defendants were not personally liable to him in tort. See Taplin v. Chatham, 390 Mass. 1, 2 (1983) ("Under the Massachusetts Tort Claims Act [G. L. c. 258, § 2 . . . ], a public employee is not liable for 'personal injury or death caused by his negligent or wrongful act or omission while acting within the scope of his office or employment'").
Three years after the plaintiff instituted the action, and after the parties had engaged in discovery, the DOC filed a motion on behalf of all of the defendants to dismiss the complaint, or in the alternative, for summary judgment. A judge of the Superior Court considered the record sufficient to rule on the motion under the summary judgment standard. See Mass. R. Civ. P. 12 (b), 365 Mass. 754 (1974). The judge allowed the motion in a written decision, after concluding that (1) the plaintiff's negligence claims were barred by the provisions of G. L. c. 258, § 10 (b) and (j); and (2) the plaintiff had failed to raise a triable issue under the Eighth Amendment. See Mass. R. Civ. P. 56, 365 Mass. 824 (1974). The plaintiff appeals from the entry of summary judgment dismissing his complaint. We affirm.
Background. The third amended complaint alleges that sometime after August 2, 2012, when the plaintiff was transferred to Bridgewater as an inmate-worker, he was informed by an unidentified correction officer (CO) that COs would protect the plaintiff in the event a patient was threatening or assaultive. The plaintiff further alleged that he was told not to fight back or touch the patient lest he be charged with a crime. According to an affidavit from a DOC employee, submitted in support of the DOC's motion, it is standard operating procedure at Bridgewater "that the on-site commanding [COs] will not commit staff to engage with inmates or patients until [they] believe[] there is adequate staffing on site."
The plaintiff claims that on January 4 he was eating lunch when a patient he did not know entered the dining hall and, unprovoked, struck him in the head with a coffee mug. The record is silent as to the reasons for the patient's commitment. While the patient continued to hit him, the plaintiff lost consciousness. Video surveillance footage showed COs intervening and separating the patient from the plaintiff within sixteen seconds (although the plaintiff claims it actually took thirty seconds). The plaintiff was taken to a hospital, where he received eleven stitches for his injuries. The plaintiff alleges that, upon his return to Bridgewater, he did not receive adequate medical attention for his injuries.
Standard of review. Summary judgment is appropriate if the pleadings, discovery responses, and affidavits, if any, "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). We review a grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. Juliano v. Simpson, 461 Mass. 527, 529-530 (2012). Because the DOC would not have borne the burden of proof at trial, summary judgment was appropriate in this case if the DOC could demonstrate that the plaintiff had "no reasonable expectation of proving an essential element of [his] case." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).
Discussion. 1. Immunity. The judge agreed with the DOC's argument that "permitting inmates and patients to dine together is the type of decision, practice, or policy" for which the Commonwealth may not be sued under § 10 (b). The judge concluded that the Commonwealth could not be sued under § 10 (j) because (1) the DOC may not be held liable for the failure to prevent an unprovoked attack, and (2) even if the plaintiff was given explicit and specific assurances of safety, he could not establish that he relied on those assurances or that they were the original cause of his injury. We agree with the judge's reasoning.
Contrary to the plaintiff's contention, Devlin v. Commonwealth, 83 Mass. App. Ct. 530 (2013), does not stand for the proposition that the DOC had no discretion to allow inmates and patients to be together in common areas of Bridgewater. Our conclusion in Devlin was controlled by G. L. c. 123, § 35, which authorized Devlin's involuntary civil commitment for alcoholism and detoxification at Bridgewater; "provided, however, that [such persons so committed] shall be housed and treated separately from persons currently serving a criminal sentence." See Devlin, supra at 533-534. No such statute applies here; the plaintiff's complaint did not allege, and his summary judgment opposition materials included nothing tending to show, that his attacker had been civilly committed under § 35. In any event, rather than evincing an intent that inmates and patients at Bridgewater be kept separate at all times, that statute (which expressly addresses only housing and treatment areas, not dining halls) and G. L. c. 127, § 22, also cited by the plaintiff, demonstrate that the Legislature may mandate separation where such action is deemed necessary or appropriate. It did not do so here.
In pertinent part, G. L. c. 127, § 22, provides that "[m]ale and female prisoners shall not be put or kept in the same room in a jail or house of correction"; "[p]ersons committed for debt shall be kept separate from convicts and from persons who are confined upon a charge of an infamous crime"; "[m]inors shall be kept separate from notorious offenders and from persons convicted of an infamous crime"; and, finally, "[p]ersons committed on charge of crime shall not be confined with convicts, and prisoners charged with or convicted of a crime not infamous shall not be confined with those charged with or convicted of an infamous crime."
Turning to G. L. c. 258, § 10 (j), we note that the plaintiff did not file an affidavit in opposition to the DOC's motion, and relied solely on his unsworn allegations in his complaint that he was told by unnamed COs that he would be protected from violent patients. Contrast Lawrence v. Cambridge, 422 Mass. 406, 410 (1996). Those allegations alone could not suffice to create a triable issue that the plaintiff was given assurances of safety that were sufficiently "definite, fixed, and free from ambiguity" to justify waiving immunity. Id. See Mass. R. Civ. P. 56 (e) ("When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial"). In any event, there is no dispute the plaintiff was immediately rendered unconscious by the patient's first blow. Nothing in the record supports an inference that the plaintiff regained consciousness during the attack and decided not to fight back because of the assurances. On these uncontroverted facts, the plaintiff's injuries, necessarily, did not result "from reliance on those assurances." G. L. c. 258, § 10 (j) (1).
Finally, assuming without deciding that the DOC's decision to feed inmate-workers and patients at the same time is "an affirmative action" within the meaning of § 10 (j), Cormier v. Lynn, 479 Mass. 35, 40 (2018), that decision did not "originally cause[] [the] condition or situation," id., that led to the plaintiff's injuries. There is no dispute that the plaintiff did not know or have problems with the patient prior to the attack. Nor is there evidence that (1) the patient was previously violent, or (2) patients frequently created disturbances when comingled with inmates at Bridgewater. "[T]he 'originally caused' language refers to the 'condition or situation' in which the harmful consequences occurred, not to the 'violent or tortious conduct' of the third party who inflicted them." Kent v. Commonwealth, 437 Mass. 312, 317 n.8 (2002). Fairly read, the complaint alleges nothing more than that the COs failed to foresee and prevent the unprovoked, violent conduct of the patient, and then took too long to respond. The DOC's summary judgment materials support an inference, uncontroverted by the plaintiff, that the COs were following standard operating procedure by waiting for backup to arrive before intervening. However, even if the COs were not following procedure, the "failure to [intervene sooner] will not suffice" to defeat immunity under § 10 (j). Cormier, supra. See Devlin, 83 Mass. App. Ct. at 535. Summary judgment on the plaintiff's negligence claim was therefore appropriate.
2. Eighth Amendment. The plaintiff's Eighth Amendment claim fails for similar reasons. Whether the COs took thirty seconds to intervene, as the plaintiff claims, or sixteen seconds, as the evidence shows, the plaintiff's unsworn allegations do not create a triable issue that the defendants acted with deliberate indifference to a known and excessive risk to the plaintiff's health and safety. See Calderon-Ortiz v. Laboy-Alvarado, 300 F.3d 60, 63 (1st Cir. 2002), citing Farmer v. Brennan, 511 U.S. 825, 828 (1994). Nor do the plaintiff's allegations alone suffice to create a genuine dispute whether medical staff at Bridgewater acted with "deliberate indifference to a serious medical need, constituting an 'unnecessary and wanton infliction of pain.'" Baptiste v. Executive Office of Health & Human Servs., 97 Mass. App. Ct. 110, 116 (2020), quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976).
As we previously noted, there is no dispute that the plaintiff did not know the patient and no evidence that the patient had a history of violence with the plaintiff, or with any other incarcerated person or staffer.
Judgment affirmed.
By the Court (Sacks, Wendlandt & McDonough, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 23, 2020.