GRAINGER, J.
The plaintiff, Robert Williams, was incarcerated at Old Colony Correctional Center (Old Colony) beginning in September, 2005. He appeals the dismissal on summary judgment of his complaint seeking damages against the Commonwealth, the prison and several correction officers for injuries he suffered as the result of being stabbed by another inmate. We recite the allegations of the complaint and record on summary judgment, which describe troubling and unprofessional conduct on the part of correction officers, in some detail.
Background. Viewed in the light most favorable to Williams, see Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991), the record on summary judgment establishes the following: From the time of his arrival at Old Colony, Williams repeatedly informed correction officers and prison administrators that he believed his life was in danger because he had been labeled a "snitch" or informer. Among those to whom he made these statements were the intake processing officer and the director of classification, the defendant Carol Lawton. Williams asserted specifically that inmate Mark Thomas, a known gang leader, had put out a contract for his death and that inmate Michael Holiet, who had previously stabbed another inmate, was slated to be his executioner. He stated this to the defendant Captain Philip Poirier, also complaining that prison staff, including an Officer Clarence,
Within a few days of his complaint to Captain Poirier, Williams was told by Clarence that he would be placed in a cell with Holiet whether he liked it or not. The officer continued, "You are a snitch, now move away from my desk," and then yelled out in front of several inmates, "I will personally make sure you and [Holiet] are sent to unit A-4 and placed in a cell together." Williams again complained to Captain Poirier, this time also reporting the remarks made by Clarence; Poirier repeated that he would take care of it.
Wholly unsatisfied that he would survive his incarceration,
Shortly after this incident, O'Brien succeeded Brady as superintendent and, exactly as Clarence had promised, Williams was moved into a cell in unit A-4 with Holiet. Williams was told by O'Brien that because Brady had since been transferred, O'Brien would not honor Brady's previous order that Williams be placed in a single cell.
In August of 2007, almost two years after his arrival at Old Colony, Williams filed a grievance, number 28777, asserting that correction officers were intentionally putting him in harm's way "for personal satisfaction and display of authority to other inmates," and ignoring the "enemy situation" (the threat posed by inmates Thomas and Holiet) about which he previously had spoken to prison officials. The grievance reflects Williams's confusion as to why, in lieu of the single cell he was promised, officers would transfer him to unit A-4, subsequently characterized in Williams's affidavit as the most dangerous unit in Old Colony. Specifically, the grievance recited that Williams had advised the defendants that he needed to be moved out of Old Colony. Under the grievance form section entitled "Provide your Requested Remedy," Williams wrote "Removal from this facility."
Six months later, in February of 2008, Williams filed a second grievance, numbered 32300 and marked "Emergency." In this second grievance Williams advised the defendants of a threatening interaction with a prison officer who told Williams that he was being punished because he "ran [his] mouth." According to Williams the officer then attempted to egg Williams on, telling him: "Do something, your door is open. Do something!" Williams asserted that this incident put him in harm's way; he again concluded with a request that he be transferred from Old Colony.
In late February, Williams and Holiet had a serious argument during which Holiet banged and kicked the cell door, and
Less than two weeks later, on March 11, 2008, Holiet attacked Williams in the prison's computer room. Holiet stabbed Williams in the face, head, neck and back with a shank, or homemade knife. Williams alleges that Holiet was able to bring the shank into the space where the attack occurred because the defendants had removed a metal detector from the checkpoint covering that area. Williams required eighty-seven stitches and numerous staples for his wounds, and spent five months in the prison health unit subsequent to his release from the hospital. His claims of injury include that he was almost killed, suffered permanent nerve damage, and required the eighty-seven stitches.
Some five months after the stabbing, in August of 2008, Williams was transferred from Old Colony. At no time prior to his transfer did Williams receive any official response to his grievances. In January, 2009, Williams initiated the present action alleging negligence and a violation of his civil rights in the defendants' failure to heed his repeated pleas for a transfer out of Old Colony.
Discussion. The second amended complaint, the one here at issue, asserts in count one a violation of the Massachusetts Civil Rights Act (MCRA), G. L. c. 12, §§ 11H and 11I, and in count two claims of negligence against all of the defendants. We consider each in turn.
1. Violation of civil rights. To establish a claim under the MCRA the plaintiff must prove that "(1) [his] exercise or enjoyment of rights secured by the Constitution or laws of either the
The first was that the individual defendants were not sued in their personal capacities. It is well established that the MCRA incorporates the standard of immunity for public officials developed under 42 U.S.C. § 1983, and accordingly "public officials are not liable under the [MCRA] for their discretionary acts, unless they have violated a right under Federal or State constitutional or statutory law that was `clearly established' at the time." Duarte v. Healy, 405 Mass. 43, 47 (1989), citing Anderson v. Creighton, 483 U.S. 635, 639-640 (1987). Recognizing this principle, our review of the record reveals that, while the plaintiff identified the defendants' titles and duties at the prison, he did not specify in which capacity — personal or official — the individual defendants were named. Accordingly, for purposes of summary judgment, where we draw all inferences in favor of the nonmoving party, DiPietro v. Sipex Corp., 69 Mass.App.Ct. 29, 30 (2007), dismissal on this basis was improper.
Second, the judge found that there was "no evidence that these three individuals did anything to Williams by way of threats, intimidation or coercion" as the MCRA requires. It is true that the great majority of threats and intimidation alleged in the complaint and summary judgment materials are ascribed to Officer Clarence, who is not a defendant, and to another officer,
2. Exhaustion of administrative remedies. It is undisputed that Williams filed two grievances before the stabbing. The judge considered one of these and disregarded the other.
We determine as well that our consideration of the letter dated February 29, 2008, is not precluded by Ryan v. Pepe, 65 Mass.App.Ct. 833, 837-838 (2006), as the judge concluded below. Unlike that case, in which a letter was the sole evidence of any grievance on which an exhaustion of remedies could be claimed, this case includes two formal grievances as well as reference to innumerable conversations and the (less formal) written complaint in letter form.
The defendants chose to ignore these complaints, not only denying Williams a transfer but also deliberately placing him in a cell with Holiet. While they can legitimately raise the location of the stabbing as a fact pertinent to causation, they are not entitled to summary judgment even if the grievances were read incorrectly as limited to requesting a single cell.
3. Negligence. The Commonwealth has waived sovereign immunity for claims covered by the Massachusetts Tort Claims Act including, here pertinent, "the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment." G. L. c. 258, § 2, added by St. 1978, c. 512, § 15. Here, again, the judge relied on a determination
The duty of these defendants to protect Williams against unreasonable harm while in their custody is a long recognized and fundamental tenet of the law of negligence. It specifically applies to the "Risk of Intentional or Criminal Conduct ... [w]here the actor has brought into contact or association with the other a person whom the actor knows or should know to be peculiarly likely to commit intentional misconduct, under circumstances which afford a peculiar opportunity or temptation for such misconduct." Restatement (Second) of Torts § 302B comment e (1965). And it extends also to "the acts of third persons, whether they be innocent, negligent, intentional, or even criminal." Id. at § 314A comment d. The defendants assert that at most they may be charged with negligence and omission when acting in their official scope of their duties and that such conduct is protected. See G. L. c. 258, § 10(j). The allegations, however encompass deliberate acts that placed Williams in jeopardy including placing him in a cell with Holiet, calling him a "snitch" in public and other threatening behavior.
The defendants point to the basic principle of statutory authority in derogation of the common law and characterize the complaint and supporting materials as deficient under the standards of G. L. c. 258, § 10(j), which provides immunity for negligence and omissions in the performance of official duties when actual harm is caused by a third person. We do not agree that this statute avails the defendants. The allegations recite deliberate acts including calling Williams a "snitch" in front of other inmates and purposefully placing him in a cell with Holiet. Section 10(j) does not apply to "any claim based upon intervention of a public employee which ... places the victim in a worse position than he was in before the intervention." G. L. c. 258, § 10(j)(2), added by St. 1978, c. 512, § 15.
We note as well that Williams alleges that the defendants removed a metal detector which would have detected Holiet's possession of a shank before he could use it.
So ordered.