JOHN C. NIVISON, Magistrate Judge.
In this action, Plaintiff Nicholas Gladu, an inmate at the Maine Correctional Center, alleges that he was assaulted by a corrections officer while he was assigned to the Maine State Prison. The matter is before the Court on Plaintiff's Motion to Amend. (ECF No. 131.) In support of his motion, Plaintiff filed a Proposed Amended Complaint. (ECF No. 129.)
Following a review of the motion, and after consideration of the parties' written arguments, I recommend the Court grant in part and deny in part the motion.
In his original complaint, Plaintiff alleged he was assaulted by a corrections officer, Defendant Gowen. (Complaint, ECF No. 1.) Defendant Troy Ross moved to dismiss Plaintiff's complaint citing the absence of any factual allegations that would support a finding that he was involved in the incident, or that he had any knowledge Defendant Gowen would assault Plaintiff. Additionally, Defendant Ross argued that Plaintiff's assertions regarding the failure to train were conclusory. (ECF No. 16 at 3.) The Court concluded Plaintiff's allegations regarding the claim based on a failure to train were sufficient to state a plausible claim. (Order, ECF No. 37; Recommended Decision, ECF No. 29.)
On December 2, 2015, Defendant Ross filed a motion for summary judgment. In support of the motion, Defendant Ross provided record evidence that he was not responsible for training corrections officers and that Defendant Gowen received the standard use of force training provided to corrections officers. (Motion for Summary Judgment, ECF No. 38; Statement of Material Facts, ECF No. 39.) Because discovery had not yet been completed, upon Plaintiff's request pursuant to Federal Rule of Civil Procedure 56(d), the Court permitted Plaintiff the opportunity to identify the discovery he believed would be necessary to respond to the summary judgment motion. (Report of Conference and Order, ECF No. 42.)
Plaintiff subsequently expressed his intention "to demonstrate an affirmative link between the behaviors of Defendant Gowen and the inactions of Defendant Ross." (ECF No. 44-1.) Plaintiff, however, did not identify any specific discovery initiatives he believed were necessary. In an order dated January 4, 2016, the Court noted that in connection with Plaintiff's Rule 56(d) request, Plaintiff must make an actual proffer regarding the discovery he wished to conduct, and granted Plaintiff a further opportunity to make the proffer. (ECF No. 47.) Plaintiff supplemented his request for discovery on January 25, 2016. (ECF No. 49.) Based on Plaintiff's supplemental request, the Court ordered Defendant Ross to provide Plaintiff with copies of documents regarding complaints made about Defendant Gowen's use of excessive force, and to provide Plaintiff with copies of documents regarding the training Defendant Gowen received in connection with his employment.
On May 16, 2016, well after the expiration of 60 days, Plaintiff filed a motion requesting leave to amend his complaint to add state law claims and to revise his pleadings regarding his supervisory liability claim against Defendant Ross. (ECF No. 69.) Plaintiff, however, did not file an amended complaint, nor did Plaintiff respond to the summary judgment motion.
During a telephonic hearing on July 8, 2016, Plaintiff represented that he did not oppose summary judgment on his claim against Defendant Ross based on the failure to train, but wished to amend his complaint to assert an alternative claim. (See ECF No. 92 at 2.) Defendant Ross agreed to remain a party to the litigation because Plaintiff expressed his intent to amend the complaint to assert a different claim against Defendant Ross.
On July 11, 2016, the Court ordered Plaintiff to file a proposed amended complaint on or before July 29, 2016. (ECF No. 92 at 3.) Additionally, the Court issued a scheduling order. (Id. at 4 - 5.) The schedule established a deadline for amendment of the pleadings of July 29, 2016, and a discovery deadline of October 21, 2016. (Id.)
On that same date, I recommended the Court grant Defendant Ross's motion for summary judgment. (Recommended Decision, ECF No. 94.) In the recommended decision, I concluded the record established: (1) that Defendant Ross was not responsible for the training of corrections officers, (2) that training on the proper use of force is provided by the Department of Corrections' Director of Training as part of the training administered at the Maine Criminal Justice Academy, and (3) that Defendant Gowen successfully completed the eight hours of instruction on the use of excessive force before the alleged incident. (Recommended Decision at 2, citing Defendant's Statement of Material Facts, ¶¶ 1 - 4, ECF No. 39.)
Plaintiff did not file an amended complaint on or before July 29, 2016. Instead, on July 29, 2016, the Court docketed Plaintiff's objection to the recommended decision on the summary judgment motion. (ECF No. 95.) On August 10, 2016, the Court affirmed the recommended decision over Plaintiff's objection. (ECF No. 97.)
Although Plaintiff did not file a motion to amend before July 29 as ordered, based on several subsequent pleadings, the Court extended the deadline for the amendment of pleadings to November 21, 2016. (ECF No. 126.) On November 29 and November 30, 2016, the Court docketed Plaintiff's amended complaint executed November 20 and stamped by the Post Office on November 22, 2016, and Plaintiff's motion to amend dated November 21 and stamped on November 28. (ECF No. 129, 131.)
Through his motion to amend, Plaintiff seeks to join the Maine Department of Corrections as a party defendant, amend his allegations against Defendant Ross, and add certain state law claims.
Plaintiff is currently incarcerated at the Maine Correctional Center. At the time Defendant Gowen allegedly assaulted Plaintiff, Plaintiff was assigned to the Special Management Unit at the Maine State Prison. According to Plaintiff, on June 28, 2014, Defendant Gowen, a corrections officer, slammed the steel hatch of the tray slot on Plaintiff's cell door into Plaintiff's hand, causing significant injury. (Proposed Am. Compl. ¶¶ 26 - 28, ECF No. 129.) Plaintiff asserts that after the incident, several officers told him that they had watched a video of the incident and that they were shocked by how "enraged" Officer Gowen was. (Id. ¶ 35.)
After concluding an investigation, Defendant Ross (then Deputy Warden at the Maine State Prison) and various officials within the Department of Corrections stated that the incident was not captured on camera. (Id. ¶ 37.) Plaintiff asserts Defendant Ross and others "have conspired to deprive Plaintiff of video evidence that depicts him being assaulted." (Id. ¶ 38; see also id. ¶ 52.)
Plaintiff also alleges that the Department and Defendant Ross were "sufficiently informed of a series of incidents constituting dereliction or neglect of duties resulting in a pattern of mistreatment of inmates and [similar] behavior ... by correctional staff at MSP," (id. ¶ 40),
Plaintiff asserts that "incidents where a prisoner refuses to close his tray slot ... occur very frequently and typically result in no use of force" because "most times ... officers will ignore such behavior by prisoners." (Id. ¶ 43.) Citing Defendant Gowen's conduct, Plaintiff alleges that Defendant Ross was negligent in the supervision of Defendant Gowen, and "completely failed to train or instruct Gowen." (Id. ¶¶ 45 - 46.)
Plaintiff also asserts that after the incident Defendant Ross "engaged prison staff [to] invoke the code of silence ..., including fabricating and falsifying documents and testimony." (Id. ¶ 47.) He further alleges that the wrongful conduct of Defendants Gowen and Ross has been "authorized and ratified" by the Department of Corrections. (Id. ¶ 48.)
Based on his amended allegations, Plaintiff asserts the following causes of action in the proposed amended complaint:
Count I (§ 1983): a claim against (a) Defendant Gowen for excessive force; (b) Defendant Ross for deliberate indifference; and (c) the Department and Defendant Ross for approving or ratifying Defendant Gowen's conduct.
Count II (§ 1985): a claim against Defendant Ross for conspiring to deprive Plaintiff of his federal rights.
Count III (state law): claims against Defendant Gowen for assault and battery and intentional infliction of emotional distress.
Count IV (state law): a claim against Defendant Gowen for negligent infliction of emotional distress.
Count V (state law): a claim against the Department and Defendant Ross for negligent supervision and vicarious liability.
Rule 15(a)(1) of the Federal Rules of Civil Procedure permits a litigant to amend a pleading "once as a matter of course," subject to certain time constraints. Thereafter, leave of court is required, though leave should be granted "freely . . . when justice so requires." Fed. R. Civ. P. 15(a)(2); see also Foman v. Davis, 371 U.S. 178, 182 (1962). Because Plaintiff's motion to amend was filed after Defendant filed a responsive pleading, Plaintiff must obtain leave of court to further amend his pleading. To the extent a court determines a claim advanced by means of a motion to amend would be futile because the facts fail to state a claim for which relief may be granted, the court can deny the motion. Chiang v. Skeirik, 582 F.3d 238, 244 (1st Cir. 2009). In order to state a claim, a plaintiff must establish that the allegations raise a plausible basis for a fact finder to conclude that the defendant is legally responsible for the claim(s) at issue. Blanco v. Bath Iron Works Corp., 802 F.Supp.2d 215, 221 (D. Me. 2011).
Defendant Ross argues that several of Plaintiff's proposed claims are futile. (Response in Opposition, ECF No. 136.) Defendant Ross does not oppose Plaintiff's request to add certain state law claims against Defendant Gowen. Defendant Gowen did not file an opposition to the motion to amend.
To the extent Plaintiff references or asserts a claim based on the failure of Defendant Ross to train Defendant Gowen properly, the summary judgment record and the summary judgment entered against Plaintiff foreclose Plaintiff from reasserting the claim.
Under the federal civil rights act, 42 U.S.C. § 1983, a supervisory official may be liable for the behavior of a subordinate if (1) the behavior of the subordinate results in a constitutional violation, and (2) the supervisory official's action or inaction was affirmatively linked to the behavior. Estate of Bennett v. Wainwright, 548 F.3d 155, 176 - 77 (1st Cir. 2008). An affirmative link can be shown through supervisory encouragement, condonation or acquiescence, or by gross negligence amounting to deliberate indifference. Id. The applicable standard "contemplates proof that the supervisor's conduct led inexorably to the constitutional violation." Pineda v. Toomey, 533 F.3d 50, 54 (1st Cir. 2008) (quoting Hegarty v. Somerset Cnty., 53 F.3d 1367, 1380 (1st Cir. 1995)).
In his proposed amended complaint, Plaintiff has simply made general and conclusory allegations regarding Defendant Ross's prior knowledge about a "series of incidents" involving the "mistreatment of inmates" by "correctional staff." (Proposed Am. Compl. ¶ 40.) Significantly, he has not alleged any notice of prior conduct by Defendant Gowen of which Defendant Ross was aware. Just as importantly, Plaintiff has not alleged any facts that would support the necessary affirmative link between any action or inaction of Defendant Ross and the incident involving Plaintiff and Defendant Gowen. Plaintiff's alleged deliberate indifference claim against Defendant Ross thus would be futile.
To the extent Plaintiff proposes a claim against the Department, the Eleventh Amendment of the United States Constitution precludes Plaintiff's civil rights claims from proceeding in this Court against the Department. Town of Barnstable v. O'Connor, 786 F.3d 130, 138 (1st Cir. 2015). Accordingly, the proposed claim against the Department also would be futile.
Plaintiff alleges that Defendant Ross conspired to violate Plaintiff's rights. Simply stated, Plaintiff's allegation of a conspiracy is entirely conclusory. Plaintiff asserts no facts that would support a finding that Defendant Ross conspired with any other person to arrange for Defendant Gowen to assault Plaintiff or to otherwise deprive Plaintiff of a constitutional protection. Moreover, a claim under 42 U.S.C. § 1985 is actionable only under circumstances involving an equal protection violation, i.e., circumstances involving discriminatory class-based animus. Andrade v. Jamestown Hous. Auth., 82 F.3d 1179, 1192 (1st Cir. 1996). Plaintiff's amended pleading does not assert any such circumstances.
Plaintiff's request to amend his pleading to assert state law claims against Defendant Gowen is unopposed.
Plaintiff's request to amend the complaint to assert a negligent infliction of emotional distress claim is similarly unopposed. However, the Maine Supreme Judicial Court has held that a claim for negligent infliction of emotional distress is appropriately dismissed in the context of a state law claim of excessive force (assault and battery) because the emotional distress remedy "is subsumed in [the] excessive force [or assault and battery] claim." Richards v. Town of Eliot, 2001 ME 132, ¶ 34, 780 A.2d 281, 293; see also McDermott v. Town of Windham, 204 F.Supp.2d 54, 71 (D. Me. 2002). Plaintiff's proposed negligent infliction of emotional distress claim is thus futile.
Plaintiff alleges that the Department and Defendant Ross are vicariously liable on Plaintiff's assault and battery claim and intentional infliction of emotional distress claim. To the extent Plaintiff proposes that the claim proceed against the Department, the Eleventh Amendment of the United States Constitution precludes Plaintiff's attempt to join the Department in an action in this Court. O'Connor, 786 F.3d 130, 138 (1st Cir. 2015). Additionally, Plaintiff cannot proceed with a state law claim against Defendant Ross in his official capacity, regardless of the relief requested. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984) ("[I]t is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. Such a result conflicts directly with the principles of federalism that underlie the Eleventh Amendment.").
Finally, to the extent proposed Count V is asserted against Defendant Ross in his personal capacity, although a custodial relationship will give rise to a duty to protect another, given the uncontested summary judgment record that establishes Defendant Gowen received use of force training and that Defendant Ross, in any event, was not in charge of officer training at the Maine State Prison, Plaintiff has failed to allege a plausible factual basis that would support a finding that Defendant Ross breached a state law duty he owed to Plaintiff in connection with Defendant Gowen's alleged assault. Dragomir v. Spring Harbor Hosp., 2009 ME 51, ¶ 23, 970 A.2d 310, 317 ("[N]egligent supervision [is] a claim that necessarily requires [defendant] to have foreseen the need to control its employee."). Accordingly, Plaintiff's proposed negligent supervision and vicarious liability claims would be futile.
Based on the foregoing analysis, I recommend that the Court grant in part and deny in part Plaintiff's Motion to Amend. (ECF No. 131.) In particular, I recommend the Court:
