CHRISTINA CHAO, Plaintiff, v. MOISES BALLISTA, ET AL., Defendants.

C.A. No. 07-cv-10934-NG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

October 24, 2008, Decided

MEMORANDUM AND ORDER GRANTING MOTION TO DISMISS OF DEFENDANTS DENNEHY, RYAN, AZZATO, TORTORA, AND MASSACHUSETTS DEPARTMENT OF CORRECTION

I. INTRODUCTION

Plaintiff Christina Chao ("Chao"), a former inmate at South Middlesex Correctional Center ("SMCC") in Framingham, Massachusetts, has brought [*2] this action against Defendant Moises Ballista ("Ballista"), a former prison guard at SMCC, various prison officials (the "DOC Defendants"), 1 and the Massachusetts Department of Correction ("MDOC") itself. Her allegations are very, very troubling. Chao sues for injuries arising from 50 to 100 sexual encounters with Ballista while Chao was incarcerated. Under Massachusetts law, an inmate cannot consent to sexual relations with a guard, and an official who engages in such activity may be criminally punished by up to five years' imprisonment and a fine of $ 10,000.00. See Mass. Gen. L. ch. 268, § 21A. The sexual relationship extended over a year before Defendant Ballista was suspended from his position and later criminally charged. He ultimately pleaded guilty to multiple counts of sexual relations with an inmate.

FOOTNOTES

1 The "DOC Defendants" include Kathleen Dennehey, Commissioner of the Massachusetts Department of Corrections; Kelly Ryan, Superintendent of SMCC; Randy Azzato, Director of Security at SMCC; and Chris Tortora, Security Officer of SMCC.


In this civil action, Chao alleges that prison officials did not properly supervise or train SMCC employees and that they failed to properly investigate [*3] accusations of sexual abuse and misconduct by Ballista. According to the Complaint, SMCC failed to conduct a thorough investigation even after supervisory officials heard rumors of the sexual relationship on three separate occasions and the nurse practitioner at SMCC prescribed birth control pills to Chao. Indeed, Plaintiff has alleged that even after receiving these reports, the Defendants assigned Ballista to the night shift, giving him greater access to the Plaintiff in her single-bed cell. As the Supreme Court has noted, being "assaulted in prison is simply not 'part of the penalty that criminal offenders pay for their offenses against society.'" Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981)).

This suit is one for damages only. In her Amended Complaint of January 18, 2008 (document # 16), the Plaintiff alleges four state law causes of action, three of them under the Massachusetts Tort Claims Act, Mass. Gen. L. ch. 258, and three federal causes of action under 42 U.S.C. § 1983. The state claims include assault and battery against Defendant Ballista, negligence against all Defendants, wanton and reckless conduct against all Defendants, [*4] and intentional infliction of emotional distress against all Defendants (Counts I to IV). The federal causes of action include violations of her constitutional rights cognizable under 42 U.S.C. § 1983 (Counts V to VII).

All Defendants except for Ballista have now filed a Motion to Dismiss and/or for Summary Judgment (document # 24). 2 The problems raised by the Defendants are procedural ones -- the failure of the Plaintiff to make a demand on the appropriate state officer, and her failure to seek damages from the Defendants in their individual capacities as federal law requires. However substantial the merits of this action may be, the case cannot proceed until these issues are addressed and addressed with some urgency. 3

FOOTNOTES

2 Also pending are Plaintiff's Motion to Compel (document # 19) and Defendant's Motion to Stay Discovery (document # 22). These motions are DENIED as moot, based on the Court's resolution of Defendants' Motion to Dismiss.

3 The Court reaches only Defendants' arguments on sovereign immunity and the failure to make proper presentment under Mass. Gen. L. ch. 258. Defendants may renew their other arguments, including their qualified immunity and statute of limitations claims, [*5] when and if the occasion arises.


On the question of the demand on the state: Prior to the filing of this action, on February 10, 2005, the Plaintiff sent a presentment letter to Defendant Kathleen Dennehey, Commissioner of MDOC, describing the basis for her impending lawsuit. She sent a second presentment letter on December 12, 2007, this time addressed to Harold W. Clarke, the new Commissioner of MDOC. The problem was that, under Massachusetts law, her demand had to be served on the Secretary of Public Safety because the Department of Correction is an agency within the Executive Office of Public Safety. Thus, while her February 10, 2005, presentment letter was timely, it was sent to the wrong person. Receiving no reply to either letter, on May 16, 2007, the Plaintiff filed suit against Defendant Ballista; MDOC; Dennehy; Kelly Ryan, Superintendent of SMCC; Randy Azzato, Director of Security at SMCC; and Chris Tortora, Security Officer of SMCC. On the status of the individual DOC Defendants: Chao has only sued the individual DOC Defendants in their official capacities, which is inappropriate. Sovereign immunity and the Eleventh Amendment bar recovery of money damages from both the states [*6] themselves and from state officials sued in their official capacities. Section 1983 suits may only be brought against these defendants in their individual capacities.

Accordingly, Defendants' Motion to Dismiss is GRANTED. Nonetheless, the Plaintiff may file a Motion to Amend by November 23, 2008, if she in fact seeks to hold the DOC Defendants liable in their individual capacities or to allege in good faith that the proper state official had actual notice of the impending claim. The Court will consider the merits of such an amendment at that time.

II. STANDARD OF REVIEW

When a defendant files a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court must decide whether the plaintiff has stated a claim upon which relief can be granted. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002) (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). The claims in the complaint will be taken as true, with all reasonable inferences drawn in favor of the plaintiff. Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). A complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of its claim. Miranda v. Ponce Fed'l Bank, 948 F.2d 41, 44 (1st Cir. 1991) [*7] (citing Conley, 355 U.S. at 45). The plaintiff's factual allegations, however, must be more than speculative, and require more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1964, 167 L. Ed. 2d 929 (2007).

III. ANALYSIS

A. Massachusetts Tort Claims Act

1. Immunity

The Complaint lodges claims of negligence (Count II), wanton and reckless conduct (Count III), and intentional infliction of emotional distress (Count IV) under the Massachusetts Tort Claims Act ("MTCA"), Mass. Gen. L. ch. 258, against both the individual DOC Defendants and MDOC. As a general matter, sovereign immunity protects the states from suit unless that immunity has been expressly waived. "The Commonwealth may not be sued unless its sovereign immunity has been waived." Vining v. Commonwealth, 63 Mass. App. Ct. 690, 692, 828 N.E.2d 576 (2005) (citing Irwin v. Commissioner of Dept. of Youth Servs., 388 Mass. 810, 812, 448 N.E.2d 721 (1983)). The MTCA operates as such a limited waiver: it provides the exclusive state law remedy for torts allegedly caused by the negligent acts or omissions of state employees acting within the scope of their employment. See Mass. Gen. L. Ch. 258, § 2.

Importantly, the statute shields individual employees from liability [*8] for state law claims to the extent that the employee was acting within the scope of his or her employment. Id.; Taplin v. Town of Chatham, 390 Mass. 1, 2, 453 N.E.2d 421 (1983). In this case, even if the SMCC Defendants failed to train and supervise their employees, as alleged by the Plaintiff, there is no question that prison officials were acting within the scope of their state employment and therefore covered by the statute. Thus, Counts II, III, and IV must be dismissed as to the individual DOC Defendants.

With respect to MDOC itself, the initial question is whether Chao's claims fall within the scope of the MTCA's limited waiver of sovereign immunity. "The Act abrogates the doctrine of sovereign immunity, but only to the extent provided in the statute." Chaabouni v. City of Boston, 133 F. Supp. 2d 93, 95 (D. Mass. 2001). The Commonwealth and its agencies continue to be immunized against "any claim arising out of an intentional tort," including intentional infliction of emotional distress as asserted in Count IV. Mass. Gen. L. ch. 258, § 10 (c). Accordingly, Defendants' Motion to Dismiss Count IV against MDOC is GRANTED.

Counts II and III, however, which assert claims for negligence and wanton and [*9] reckless conduct against MDOC, respectively, present a harder question. The Defendants argue that Section 10(c) of the MTCA precludes liability for intentional torts, and thus that any injuries arising from Defendant Ballista's intentional activities are barred. But Section 10(c) only immunizes MDOC from claims based on Ballista's intentional torts themselves, not from the Defendants' independent acts of negligence or recklessness, even if broadly related to the guard's actions. See Chaabouni v. City of Boston, 133 F. Supp. 2d 93, 98 (D. Mass. 2001) (finding plaintiff's claim against city for negligent officer training to be an "independent negligent act" from the police officer's intentional assault and battery); Doe v. Town of Blandford, 402 Mass. 831, 838, 525 N.E.2d 403 (1988) (holding that a "narrow construction of the [10(c)] exclusion" was appropriate by allowing plaintiff to proceed with claim against city for negligent hiring of teacher with previous assaults on students). Nor does Count III, Wanton and Reckless Conduct, fall within Section 10(c)'s exclusion, because the MTCA's immunity applies only to intentional, but not to wanton, willful, or reckless conduct. See Forbush v. City of Lynn, 35 Mass. App. Ct. 696, 699, 625 N.E.2d 1370 (1994) [*10] (holding that, for the purposes of the MTCA, reckless conduct does not qualify as an intentional tort).

Defendants separately argue that Plaintiff's claims of negligent supervision, training, and investigation under Counts II and III are barred by Section 10(j), which prohibits "any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person." Mass. Gen. L. ch. 258, § 10(j). To be sure, this language generally prohibits a claim based on negligent supervision. See Bonnie W. v. Commonwealth, 419 Mass. 122, 125, 643 N.E.2d 424 (1994) ("It is clear that the plaintiff's claim [of] negligent failure to supervise [the parolee] and to thereby prevent [him] from gaining access to the plaintiff's mobile home where the alleged assault occurred, is barred by § 10(j)."). But the 10(j) exclusion has its own exception: it does not apply when "the intervention of a public employee . . . places the victim in a worse position than he was in before the intervention." G.L. c. 258, § 10(j)(2). The Plaintiff has alleged that even after hearing reports and rumors of Ballista's sexual relationship with the [*11] Plaintiff, the Defendants nonetheless assigned Ballista to a shift from 11 p.m. to 7 a.m., allowing him greater access to the Plaintiff in her single-bed cell. Statement of Christina Chao, Aff. in Support of Def.'s Mot. to Dismiss, Exh. 4 (document # 28-4); Pl.'s Mem. of Law in Opp. to Def.'s Mot. to Dismiss at 19 (document # 31). Taking all reasonable inferences in the Plaintiff's favor, as the Court must at this stage of the proceedings, this affirmative act falls within Section 10(j)(2)'s exception. Assigning Ballista to a late-night shift in the prison when officials knew of potential sexual misconduct may plausibly have exposed the Plaintiff to additional abuse, aggravating her injuries. The MDOC's Motion to Dismiss Counts II and III, alleging negligence and wanton and reckless conduct, cannot be granted on these grounds.

2. Presentment

Though the Plaintiff has made a colorable argument for proceeding on her negligence and reckless conduct claims against MDOC, she failed to properly present her claim before filing it in this Court. Before any action for damages may be brought against a public employer, a claimant must present her claim to the "executive officer of such public employer [*12] within two years after the date upon which the cause of action arose." Mass. Gen. L. ch. 258, § 4. The relevant executive officer in this action is the Secretary of Public Safety because the Department of Correction is an agency within the Executive Office of Public Safety. The Plaintiff incorrectly addressed both her timely February 10, 2005, presentment letter and her December 12, 2007, presentment letter to the Commissioner of the Massachusetts Department of Correction. Mem. of Law in Supp. of Def.'s Mot. to Dismiss, Exh. 1 (document # 25-2).

The requirement that timely, written presentment be made to the designated executive officer is strictly enforced. Weaver v. Commonwealth, 387 Mass. 43, 47, 438 N.E.2d 831 (1982) (notice to the Commissioner of the Department of Mental Health and the administrator of the state hospital held to be defective presentment where the plaintiff should have addressed her letter to the Secretary of the Executive Office of Human Services); Martin v. Commonwealth, 53 Mass. App. Ct. 526, 529, 760 N.E.2d 313 (2002) ("the [*13] 'strict compliance' precept is concerned . . . with whether presentment has been made to the proper executive officer (proper party noticed) in a timely fashion (timeliness)"). Even if the Plaintiff understandably misconstrued the identity of the correct executive officer to be notified, a misinterpretation of the statute cannot excuse proper presentment. Daveiga v. Boston Public Health Commission, 449 Mass. 434, 443, 869 N.E.2d 586 (2007) (holding that a presentment letter addressed to the mayor was insufficient because the executive director of the Boston Health Commission, and not the mayor, had direct authority to investigate negligence claims at shelter).

The Plaintiff urges the Court to infer that the Secretary of Public Safety, or alternatively, the Attorney General, had actual notice of her claim because they were aware of the criminal investigation of Defendant Ballista. The purpose, however, of the presentment requirement is to "ensur[e] that the responsible public official receives notice of the claim so that that official can investigate to determine whether or not a claim is valid, preclude payment of inflated or nonmeritorious claims, settle valid claims expeditiously, and take steps [*14] to ensure that similar claims will not be brought in the future." Id. at 439 (quoting Gilmore v. Commonwealth, 417 Mass. 718, 721-722, 632 N.E.2d 838 (1994)). Because the requirement stands to provide the Commonwealth with these opportunities to examine and resolve specific claims, the presentment requirement is a strict one. Here, general knowledge of potentially criminal acts does not suffice to provide actual notice of an upcoming civil suit. See Robinson v. Commonwealth, 32 Mass. App. Ct. 6, 10, 584 N.E.2d 636 (1992) (notoriety of racially-motivated assault after World Series game found insufficient to give notice to Attorney General of potential lawsuit); Berube v. City of Northampton, 413 Mass. 635, 637, 602 N.E.2d 560 (1992) (constructive notice not inferred when school trustees may have known of incident where carpentry student was struck in the eye with nail by fellow student).

Even in cases where those responsible for the investigation and settlement of potential lawsuits had been in direct contact with the plaintiff, Massachusetts courts have determined that constructive notice did not fulfill the requirement of notifying the proper official. See Garcia v. Essex County Sheriff's Department, 65 Mass. App. Ct. 104, 108, 837 N.E.2d 284 (2005) [*15] (presentment letter addressed to chief fiscal officer of sheriff's department held insufficient to notify sheriff even though plaintiff received responses from department lawyer on official letterhead with sheriff's name on it); Bellanti, 70 Mass. App. Ct. at 408 (presentment letters sent to the Boston Public Health Commission generally and the Boston Emergency Medical Services Deputy Superintendent found insufficient to notify Commission's Executive Officer, even when Superintendent investigated claim and told family that he was "the contact for Boston EMS relative to any claim.").

Finally, the Plaintiff argues that the failure to properly present her claim might be excused either because she was "lulled" into believing that her claim had been adequately presented or, alternatively, because the State had actual notice. In order to "lull a plaintiff into believing that presentment is not an issue, the defendant must affirmatively indicate that the presentment requirement has been met or is waived." Garcia, 65 Mass. App. Ct. at 111. The Plaintiff has not alleged any affirmative indications by the Commonwealth or its officials; rather, she cites the lack of any response whatsoever. Pl.'s [*16] Mem. of Law in Opp. to Def.'s Mot. to Dismiss 15-17. This assertion does not support any inference that the Plaintiff was invited to believe the presentment requirement had been met.

In "unique circumstances," a party may overcome the presentment requirement by showing that the proper person had actual notice of the impending claim. See Lopez v. Lynn Housing Authority, 440 Mass. 1029, 1030-1031, 800 N.E.2d 297 (2003) (although presentment letters were not addressed to the executive officer, the statutory purpose was fulfilled because the officer directly responded to the claim). But the Plaintiff has not pleaded any facts to support such an inference. In particular, she has not asserted that either the Secretary of Public Safety or the Attorney General had actual notice from the Superintendent of MDOC that the she planned to file a lawsuit, only that they knew of the disciplinary and criminal proceedings against Defendant Ballista. Pl.'s Mem. of Law in Opp. to Def.'s Mot. to Dismiss 18. Because Plaintiff failed to properly present her state claims as required by the MTCA, Mass. Gen. L. ch. 258, § 4, the Defendants' Motion to Dismiss Counts II, III, and IV is GRANTED.

B. 42 U.S.C. § 1983

Counts V, VI, [*17] and VII of the Complaint assert claims against the Defendants for violations of the Plaintiff's constitutional rights under 42 U.S.C. § 1983. Crucially, the Plaintiff has sued each of the individual defendants, with the exception of Defendant Ballista, in his or her official capacity. Am. Compl. 2-3. Sovereign immunity and the Eleventh Amendment, however, generally bar recovery of money damages from both the states themselves and from state officials sued in their official capacities. See Edelman v. Jordan, 415 U.S. 651, 666, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1975) (reaffirming the principle that the Eleventh Amendment bars a plaintiff from recovering compensatory damages from a state); Quern v. Jordan, 440 U.S. 332, 335, 99 S. Ct. 1139, 59 L. Ed. 2d 358 (1979) (applying this rule to state defendants sued under 42 U.S.C. § 1983); Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991) ("Suits against state officials in their official capacity therefore should be treated as suits against the State.").

In short, an official-capacity suit is for all purposes a suit against the State, in which recovery of compensatory damages is barred by the Eleventh Amendment. A plaintiff may recover money damages only by suing current or former state officials in their individual or personal [*18] capacities. See Hafer v. Melo, 502 U.S. 21, 27, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991) (holding that a government official sued in her individual capacity may be liable for damages as a "person" under Section 1983); Powell v. Alexander, 391 F.3d 1, 22 (1st Cir. 2004). Plaintiff has not done so here, naming the individual DOC Defendants only in their individual capacities. For this reason, Defendants' Motion to Dismiss Counts V, VI, and VII is GRANTED pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii). If the Plaintiff wishes to sue these Defendants in their individual capacities, she must file a motion to Amend the Complaint within 30 days, no later than November 23, 2008, which the Court will consider at that time. See Hill v. Shelander, 924 F.2d 1370, 1372-73 (7th Cir. 1991).

IV. CONCLUSION

For the foregoing reasons, Defendants' Motion to Dismiss (document # 24) is GRANTED. In sum, all claims against Defendant Ballista remain; all claims against the SMCC Defendants and the MDOC are dismissed. If the Plaintiff seeks to hold the DOC Defendants liable in their individual capacities, a set of claims not addressed here, or if plaintiff can allege in good faith that the proper officer had actual notice of the impending claim she [*19] may file a Motion to Amend the Complaint by November 23, 2008. The Court will examine the merits of such an amendment as necessary.

Finally, given the Court's resolution of Defendants' Motion to Dismiss, Plaintiff's First Motion to Compel Discovery (document # 19) and Defendants' Motion to Stay Discovery (document # 22) are DENIED AS MOOT.

SO ORDERED.

Date: October 24, 2008

/s/ Nancy Gertner

NANCY GERTNER, U.S.D.C.