Filed: Aug. 30, 2013
Latest Update: Aug. 30, 2013
Summary: MEMORANDUM AND ORDER MARK L. WOLF, District Judge. Pro se plaintiff Joseph Messere, who is incarcerated, brought the two above-captioned cases against defendants, who are or were officials of the Massachusetts Department of Corrections, individually and in their official capacities. Because the allegations in the two complaints overlapped and were in some respects duplicative, on March 29, 2013, the court granted plaintiff's motion to consolidate the cases for all purposes. See Mar. 29, 20
Summary: MEMORANDUM AND ORDER MARK L. WOLF, District Judge. Pro se plaintiff Joseph Messere, who is incarcerated, brought the two above-captioned cases against defendants, who are or were officials of the Massachusetts Department of Corrections, individually and in their official capacities. Because the allegations in the two complaints overlapped and were in some respects duplicative, on March 29, 2013, the court granted plaintiff's motion to consolidate the cases for all purposes. See Mar. 29, 201..
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MEMORANDUM AND ORDER
MARK L. WOLF, District Judge.
Pro se plaintiff Joseph Messere, who is incarcerated, brought the two above-captioned cases against defendants, who are or were officials of the Massachusetts Department of Corrections, individually and in their official capacities. Because the allegations in the two complaints overlapped and were in some respects duplicative, on March 29, 2013, the court granted plaintiff's motion to consolidate the cases for all purposes. See Mar. 29, 2013 Mem. and Order ¶1.
At the same time, the court allowed defendants' motion to dismiss plaintiff's claims in C.A. No. 11-12166-MLW ("Spencer"), regarding prison disciplinary reports he received in or before 2008. As the court explained, assuming without deciding that a federal court has jurisdiction to decide issues concerning such reports, the claims in Spencer were time-barred by the applicable 60-day statute of limitations, which expired long before that case was filed in 2011. See Mar. 29, 2013 Mem. and Order at 6-9, ¶2. The court further elaborated its reasoning in a June 27, 2013 Memorandum and Order denying plaintiff's motion to reconsider. See June 27, 2013 Mem. and Order at 5-7.
Plaintiff also seeks relief in C.A. No. 11-12166-MLW ("Clarke") for disciplinary reports issued and administratively appealed in 2008 and 2009. See Clarke Comp. at 18-20; Ex. G to Clarke Comp. The complaint in Clarke was also filed in 2011. For the reasons explained in detail in the March 29, 2013 Memorandum and Order in Spencer, at 6-9, and again in the June 27, 2013 Memorandum and Order in Spencer, at 5-7, plaintiff's claims concerning the disciplinary reports in Clarke are time-barred. They are, therefore, being dismissed.
In both Spencer and Clarke, plaintiff also alleges that defendants violated his right not to be subject to cruel and unusual punishment because they were deliberately indifferent to his serious medical need for adequate treatment for his degenerative spine disease. See Clarke Comp. at 2; Spencer Comp. at 4. More specifically, plaintiff alleges that defendants refused to permit him to see a neurosurgeon, which exacerbated his disease. See, e.g., Clarke Comp. at 8. In both cases plaintiff seeks compensatory and punitive damages, injunctive relief, and reasonable costs and attorneys' fees.
In the March 29, 2013 Memorandum and Order the court denied without prejudice defendants' motion to dismiss plaintiff's deliberate indifference claim in Spencer. As the court explained:
Construing Messere's other claims liberally, they appear to allege that defendants violated his Eighth Amendment rights by being deliberately indifferent to his spine disease. Complaint ¶¶ 1 ("callous indifference"), 2 (Eighth Amendment); see Erickson, 551 U.S. at 94 (liberal construction of pro se plaintiff pleadings); Ahmed, 118 F.3d at 890 (court may intuit correct cause of action for pro se plaintiff). The court finds that Messere should be given an opportunity to oppose the Motion to Dismiss these claims. Therefore, with respect to Messere's claims that are unrelated to the Disciplinary Report, the Motion to Dismiss is being denied without prejudice. Defendants may either rely on the Motion to Dismiss or in the Alternative for Summary Judgment in Clarke (Docket No. 21) or file a revised motion by May 1, 2013.
Mar. 29, 2013 Mem. and Order at 9. Defendants did not file a revised motion. Therefore, the court has before it the Motion to Dismiss or in the Alternative for Summary Judgment filed in Clarke, which now is deemed pending in both cases.
On March 29, 2013, the court also established a schedule for plaintiff's response to the motion to dismiss or for summary judgment. More specifically, the court wrote:
The court is allowing Messere an extension until May 31, 2013 to file an opposition to the motion, or any revised version of it defendants file by May 1, 2013. The court will not, however, grant any further extensions to Messere, whose opposition is long overdue under Local Rules 7.1(b)(2) and 56.1. If Messere believes that the motion should be addressed as a request for summary judgment, and that he cannot yet present facts essential to justify his opposition, he should "act diligently and proffer . . . an affidavit or other authoritative submission that (i) explains [his] current inability to adduce the facts essential to filing an opposition, (ii) provides a plausible basis for believing that the sought-after facts can be assembled within a reasonable time, and (iii) indicates how those facts would influence the outcome of the pending summary judgment motion." Jones v. Secord, 684 F.3d 1, 6 (1st Cir. 2012) (internal quotation marks omitted); see Fed. R. Civ. P. 56(d).
Mar. 29, 2013 Mem. and Order at 9-10. Plaintiff was also ordered to respond to the motion in the manner required by Rule 56.1 of the Local Rules of the United States District Court for the District of Massachusetts. Id. at 11, ¶3.
Plaintiff timely filed his opposition to the motion to dismiss or for summary judgment. However, he evidently did not understand that the court had afforded him the opportunity to assert that granting summary judgment would be premature because discovery was needed. See Opposition at 21. In addition, plaintiff's opposition was not submitted in the manner required by Local Rule 56.1, in part because it did not include the Statement of Undisputed Facts required by that Rule.1
When, as they must be, the complaints are construed liberally because plaintiff is representing himself, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), plaintiff has alleged a plausible claim of deliberate indifference to a serious medical need. Therefore, the request to dismiss that claim is not meritorious. See Bell Atlantic v. Twombly, 550 U.S. 554, 559 (2007); Morales-Tanon v. Puerto Rico Power Authority, 524 F.2d 15, 18 (1st Cir. 2008).
Because plaintiff has not addressed whether discovery should be conducted before the motion for summary judgment is decided, it is not possible for the court to make a properly informed decision concerning whether discovery is essential to reaching a fair judgment on the issues related to deliberate indifference.2 Moreover, as plaintiff has not attempted to identify admissible evidence that might put material facts in genuine dispute, it would be very difficult, if not impossible, for the court to examine the voluminous record and reliably determine whether any such dispute exists. Therefore, it is not clear whether the motion for summary judgment is premature and, if not, is meritorious.
The court does not find plaintiff's failure to comply properly with its orders to be willful. Rather, the court infers that plaintiff lacks the ability to litigate his complex case competently. As stated earlier, he has alleged a plausible claim. In addition, the record indicates that after plaintiff filed these cases, he was seen by a neurosurgeon, and his spine was operated on in 2012. See Pl.'s Opp. At 2, 8 n.2. Plaintiff asserts that he no longer has pain in his spine, but continues to experience pain in his thigh. Id. In view of this evidence, the court finds that requiring plaintiff to proceed pro se may be fundamentally unfair and, in any event, not in the interests of the administration of justice. Therefore, the court has decided to offer plaintiff the opportunity to be represented by counsel. See DesRosiers v. Moran, 949 F.2d 15, 23-4 (1st Cir. 1991).
Accordingly, it is hereby ORDERED that:
1. The defendants' Motion to Dismiss or in the Alternative for Summary Judgment (Docket No. 21) is ALLOWED with respect to all claims in Clarke regarding prison disciplinary reports issued to plaintiff, and those claims are DISMISSED.
2. With respect to all other claims in Clarke and Spencer, the Motion to Dismiss or in the Alternative for Summary Judgment (Docket No. 21) is DENIED without prejudice.
2. Plaintiff shall, by September 27, 2013, file a motion requesting appointment of counsel, and attest that he cannot afford to retain counsel, or report that he does not request appointed counsel.
3. If counsel is appointed to represent plaintiff, the court will issue a revised scheduling order, which may include an opportunity for plaintiff's counsel to move to amend the pending complaints.
