BARRY v. DEPARTMENT OF CORRECTION (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Anthony Barry, brought this action against the defendants, the Department of Correction (DOC) and three DOC employees, in their official and individual capacities, (i) seeking judicial review of the denial of his grievance, in which he requested, inter alia, a single cell or a larger double-bunk cell with specific furnishings, and (ii) asserting that the defendants violated his constitutional rights, including his Eighth Amendment to the United States Constitution rights by housing him in a small prison cell with an inmate whom he alleged had a highly contagious and potentially fatal disease. The defendants moved for a judgment on the pleadings, pursuant to Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974). Concluding that the defendants' denial of Barry's grievance was supported by substantial evidence, but holding that Barry sufficiently pleaded an Eighth Amendment claim, we affirm in part, reverse in part, and remand for further proceedings consistent with this memorandum and order.

Background.³ In 2018, Barry, an inmate at MCI-Shirley, was assigned to a double-bunk cell with another inmate (cellmate). The cellmate, with whom Barry is confined in a small space for more than twelve hours per day, was diagnosed with Methicillinresistant Staphylococcus aureus (MRSA), which Barry describes as a highly contagious, potentially fatal, bacterial infection that is resistant to a broad spectrum of antibiotics. The cellmate had “oozing wounds,” and Barry would frequently find the cellmate squeezing the pus from the wounds into their shared sink. Barry alleged that he was in constant fear of contracting the disease, which is spread by touching contaminated surfaces and towels.

In July 2018, Barry cut his head, apparently by bumping it on the cellmate's upper bunk. He filed a grievance in which he claimed that his wound was the result of the failure of prison officials to comply with cell size standards set forth in 105 Code Mass. Regs. §§ 451.320 and 451.321 (2004).⁴ He also asserted that the failure to provide the cell with a second desk and adequate hooks for two towels resulted in unsanitary conditions. He stated that comingling of towels and other hygiene items in the correctional setting was particularly problematic because “ ‘scabies,’ ‘MRSA,’ HEP-C, STDs, Staphylococcus aureus, and other bacterial and septic infections are common” in that setting. According to Barry, the failure to provide him a particular cell size or a second set of specific furnishings placed him “in constant risk of serious harm, and cause[d him] significant ongoing mental and emotional anguish and harm.” He requested to be housed in a single-bunk cell or to be provided a second set of hooks and a second desk in a double-bunk cell larger than his current one. He also demanded $100,000 in compensatory and punitive damages.

The defendant Sandra M. Walsh, a grievance coordinator at MCI-Shirley, responded to Barry's grievance. According to Barry, Walsh is “[b]y regulation and statute” required to investigate complaints and has authority to provide a remedy. The administrative record shows that Walsh attempted to speak to Barry on three separate occasions; he was a “no show” each time. Meanwhile, Walsh spoke with a staff member at the Health Services Unit (HSU) in MCI-Shirley who stated there was “no risk of MRSA” for Barry.⁵ HSU had treated Barry for his wound. The details of the meeting between Barry and Walsh as set forth in the administrative record differ from Barry's version in the complaint. According to the administrative record, Barry refused to provide Walsh with any information concerning his allegation that he was exposed to MRSA. According to the complaint, however, Barry expressed his fear of catching MRSA in light of being housed with the cellmate. Dismissing Barry's concerns with a laugh, Walsh contacted and referred Barry to the mental health department. After consulting with defendant Steven P. Kenneway, the superintendent of MCI-Shirley, Walsh then denied his grievance.

Barry appealed the denial to Kenneway, who denied the appeal without further investigation. Subsequently, Barry sought a remedy with defendant Thomas Turco, whom, as the Commissioner of the DOC, Barry alleges is “constitutionally and statutorily required to provide for [Barry's] care and custody.” Specifically, Barry wrote a letter to Turco regarding his exposure to MRSA by virtue of his housing. Turco did not respond.

Barry then brought the present action seeking judicial review of the denial of his grievance, pursuant to G. L. c. 30A, § 14, and G. L. c. 127, § 38H. His complaint also alleged that the DOC and the named defendants, in their individual and official capacities, violated his Eighth Amendment rights and his rights under art. 26 of the Massachusetts Declaration of Rights (art. 26) by exposing Barry “to an unreasonable risk of harm” by “forc[ing Barry] to inhabit [an] insufficiently equipped and too small space with [the cellmate] while his oozing wounds are at their contagious peak.” Barry also apparently sought a judgment enforcing the cell size regulations upon which his grievance rested and appeared to claim the failure to follow the regulations, in and of itself, amounted to cruel and unusual punishment. He sought monetary damages and equitable relief pursuant to 42 U.S.C. § 1983 and G. L. c. 231A. Specifically, he sought a judgment declaring that the defendants violated his constitutional rights “by not following the standard of care protocols for the treatment of a patient with an infectious disease like MRSA” and an injunction preventing the defendants from housing him with an inmate “who suffers from a diagnosed, infectious disease.”

Pursuant to Massachusetts Superior Court Standing Order 1-96 (Feb. 1, 2015), the defendants filed, as their answer to the grievance appeal, a copy of the administrative record; they did not separately answer Barry's constitutional claims. They filed a motion for a judgment on the pleadings, pursuant to Mass. R. Civ. P. 12 (c). Although he had requested and been granted additional time to file an opposition, Barry did not oppose the defendants' motion; instead, he filed a motion for leave to file an amended complaint. The judge allowed the defendants' motion with prejudice. The judge also denied Barry's motion for leave as “moot” because the proposed amended complaint “essentially track[ed] his initial Complaint and add[ed] numerous allegations.” Barry appealed.

Discussion. We review the judge's allowance of the defendants' Mass. R. Civ. P. 12 (c) motion de novo. See Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 600 (2010).

1. Judicial review of grievance denial. When reviewing a denial of an inmate grievance pursuant to G. L. c. 127, § 38H, we do so in accordance with G. L. c. 30A, § 14. See Grady v. Commissioner of Correction, 83 Mass. App. Ct. 126, 129-130 (2013). We will not reverse such a decision if, based on the entire record, it is supported by substantial evidence. See Chadwick v. Board of Registration in Dentistry, 461 Mass. 77, 96 (2011). “Substantial evidence” is “such evidence as a reasonable mind might accept as adequate to support a conclusion.” G. L. c. 30A, § 1 (6). Where, as here, there is no alleged procedural irregularity, our review is limited to the administrative record. See She Enters., Inc. v. State Bldg. Code Appeals Bd., 20 Mass. App. Ct. 271, 273 (1985). That record shows as follows.

In his grievance, Barry complained that the conditions of his cell violated several regulations. First, he asserted that his cell size violated 105 Code Mass. Regs. §§ 451.320 and 451.321. As Walsh's investigation showed, however, the cited regulations set forth recommended standards, not requirements. 105 Code Mass. Regs. §§ 451.012, 451.320-451.321 (cell size standards are recommended standards that “should” be implemented). See note 3, supra. Second, Barry complained that the cell was not equipped with two desks and two sets of towel hooks. However, as Walsh concluded, the regulations do not require two sets of furnishings. See 105 Code Mass. Regs. §§ 451.011, 451.100-451.218 (“required standards” do not include number of furnishings per cell). See also Foster v. Commissioner of Correction (No. 1), 484 Mass. 698, 707 (2020) (Foster No. 1) (distinguishing between required and recommended standards).

Finally, Barry alleged that due to his head wound, the failure to provide him a single cell or a larger double-bunk cell with additional furnishings put him at risk for contracting a litany of diseases and resulted in mental and emotional anguish. Barry was medically treated for his head wound in the HSU. Accordingly, in response to Barry's grievance that his wound and current cell placement put him at risk for contracting infectious diseases, Walsh reached out to a staff member at the HSU, who stated there was “no risk of MRSA” for Barry. Walsh made three appointments to meet with Barry; Barry was a “no show” on each occasion. When Walsh finally interviewed Barry, Barry “stated overall [that] the department lacks the ability to follow policies, nothing specific.” When asked about the diseases he mentioned in his grievance form, “[Barry] didn't know what to say.” Given that Walsh learned from HSU that Barry was not at risk for MRSA, Barry's reticence to meet with Walsh, Barry's inability or unwillingness to explain his concerns regarding the diseases he listed in his grievance, and in light of his only other complaint being that he was afraid of contracting a disease, Walsh referred Barry to the mental health department in response to the grievance. On the basis of the administrative record, the denial of Barry's grievance was supported by substantial evidence.

2. Constitutional claims. a. Standard of review. Unlike our review of Barry's appeal of the denial of his grievance, our review of Barry's constitutional claims is not so constrained. Instead, we treat the defendants' rule 12 (c) motion as we would a rule 12 (b) (6) motion.⁶ We review the judge's decision de novo, accepting “the facts alleged in the complaint as true and drawing all reasonable inferences in the plaintiff['s] favor.” Baptiste v. Executive Office of Health & Human Serv., 97 Mass. App. Ct. 110, 114 (2020), quoting Edwards v. Commonwealth, 477 Mass. 254, 260 (2017). See Jarosz v. Palmer, 436 Mass. 526, 529-530 (2002). The factual allegations must “plausibly suggest[ ] (not merely [be] consistent with) an entitlement to relief” (citation and quotation omitted). Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully” (citation omitted). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

b. “Person” under § 1983. 42 U.S.C. § 1983 (1996) provides a private right of action to seek relief against any “person” who, under color of State law, violates a plaintiff's constitutional right. The defendants correctly assert that the DOC is not a “person” for purposes of § 1983 and is not liable pursuant thereto. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). Thus, Barry's § 1983 claims against the DOC (and Barry's claims against the named prison officials insofar as he purports to seek money damages from them in their official capacities) were properly dismissed. See id.

However, Barry's claims for injunctive relief against the prison officials in their official capacities are not barred. A State official in his or her official capacity may be sued for injunctive relief because “official-capacity actions for prospective relief are not treated as actions against the State.” Will, 491 U.S. at 71 n.10, quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985). See Ex parte Young, 209 U.S. 123, 160 (1908) (“The state has no power to impart to [a state officer acting in his official capacity] any immunity from responsibility to the supreme authority of the United States”). Similarly, Barry's claims for money damages against these defendants in their individual capacities are not barred. See O'Malley v. Sheriff of Worcester County, 415 Mass. 132, 142 (1993) (State officials may be liable for damages when sued in their individual capacities).

c. Eighth Amendment claim. Having determined the proper § 1983 defendants, we turn to determining whether Barry's allegations plausibly suggest an Eighth Amendment claim against these prison officials. To state an Eighth Amendment claim Barry must allege facts plausibly suggesting that “(1) a prison's conditions of confinement present a substantial risk of serious harm; and (2) prison officials acted with deliberate indifference to inmate health or safety” (quotations omitted). Torres v. Commissioner of Correction, 427 Mass. 611, 613-614 (1998).

i. Substantial risk of serious harm. With regard to the first prong of an Eighth Amendment claim, Barry alleged he was locked in small quarters for more than twelve hours per day with the cellmate who was diagnosed with MRSA. MRSA is a highly contagious, potentially fatal disease and can be transmitted by touching surfaces or items that have been exposed to the bacteria. The cellmate had an active MRSA infection with pus dripping from his open wounds into the sink he shared with Barry. At this stage, these allegations plausibly suggest a substantial risk of serious harm. See Helling v. McKinney, 509 U.S. 25, 33 (1993) (“one of the prison conditions for which the Eighth Amendment require[s] a remedy, even though it [is] not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed”). See also Foster No. 1, 484 Mass. at 719-720, quoting Lareau v. Manson, 651 F.2d 96, 109 (2d Cir. 1981) (aggrieved petitioners need not demonstrate that infectious disease has actually spread before issuing remedy).

The defendants' reliance on Baze v. Rees, 553 U.S. 35, 49-50 (2008), for the proposition that Barry has not alleged a risk of harm that is sufficiently “sure or very likely” to occur is misplaced.⁷ In Baze, the inmate's Eighth Amendment claim centered on an unsubstantiated hypothesis that a procedure, which the inmate conceded would not violate his Eighth Amendment rights if performed properly, might be performed improperly. Id. As such, the Court held that the inmate failed to show a sufficiently imminent danger to meet the first prong of the Eighth Amendment. Id. at 50. Here, by contrast, Barry's claim is not based on a hypothetical, remote risk. Barry alleges that he was actively being exposed to an extremely infectious and potentially fatal disease by virtue of his housing conditions. Prison officials may not “be deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms.” Helling, 509 U.S. at 33. See Foster No. 1, 484 Mass. at 718 (no real dispute of substantial risk of harm in increased risk of contracting COVID-19 where physical distancing may be infeasible to maintain in prisons).

ii. Deliberate indifference. “A plaintiff must demonstrate ‘deliberate indifference’ by showing (1) an unusually serious risk of harm ․ (2) defendant[s'] actual knowledge of (or, at least, willful blindness to) that elevated risk, and (3) defendant[s'] failure to take obvious steps to address that known, serious risk.” Ahearn v. Vose, 64 Mass. App. Ct. 403, 414 (2005), quoting Manarite v. Springfield, 957 F.2d 953, 956 (1st Cir. 1992). We turn then to examine Barry's allegations to determine whether they plausibly suggest this second prong of an Eighth Amendment claim. To begin, as discussed supra, Barry alleges he was exposed to an unusually serious risk of harm -- namely, risk of contracting MRSA by being housed with the cellmate in a small space for over twelve hours daily.

Next, Barry alleges that each of the defendants knew of (or were willfully blind to) the elevated risk. Specifically, Barry's grievance spelled out that he was being exposed to MRSA. Walsh was charged with investigating the grievance, and thus had knowledge of the risk. Kenneway was charged with the same knowledge both when he consulted with Walsh during her investigation and when he handled Barry's appeal; and, Turco was informed of the risk by letter from Barry. See Ahearn, 64 Mass. App. Ct. at 415-416 (whether prison official, who was placed on notice regarding unsanitary conditions, was deliberately indifferent presented triable issue). Barry also alleges that there is a common practice within MCI-Shirley that inmates diagnosed with highly infectious diseases such as MRSA are improperly treated yet returned to the general population to share small cells with other inmates. See Farmer v. Brennan, 511 U.S. 825, 842 (1994) (“a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious”).

Further, Barry alleges that the prison officials did not take obvious steps to address the risk. Walsh did not separate Barry from the cellmate despite, according to Barry, her duty and authority to provide a remedy;⁸ instead, she laughed when Barry expressed his concerns about his cellmate's infectious disease and dismissed Barry's grievance with a referral to the mental health department.⁹ Both Kenneway and Turco similarly failed to take any steps to address Barry's risk despite being informed of Barry's ongoing exposure to MRSA. Kenneway is the person authorized, according to Barry, to address his appeal of Walsh's denial, and discussed Barry's grievance with Walsh during her investigation. See King v. Higgins, 702 F.2d 18, 21 (1st Cir. 1983) (defendant superintendent of prison, as person designated to hear appeals, may be liable for constitutional violations). Turco's responsibilities include, according to Barry, responsibility for Barry's care and conditions of his custody. See Dimarzo v. Cahill, 575 F.2d 15, 18 (1st Cir. 1978) (defendant Commissioner of Correction “is a proper defendant because of his own statutory duty and subsequent failure to act [and the consequent constitutional injury] and not on the basis of the act of others”).

The defendants maintain that Barry has not alleged facts suggesting deliberate indifference because they cannot be liable simply for denying Barry's grievance or under a respondeat superior theory. This argument misapprehends Barry's Eighth Amendment claim. His claim is neither that the denial of his grievance is itself the constitutional violation nor grounded in supervisor liability; rather, his claim centers on the defendants' determination to house (or continue to house) Barry with the cellmate, thereby continually exposing Barry to MRSA despite their knowledge (gained, at the least, through the grievance procedure) that Barry was being placed at risk for contracting this potentially fatal disease. See Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008) (prison officials cannot be liable under respondeat superior theory, but may be liable for “implicitly authoriz[ing], approv[ing], or knowingly acquiesc[ing] in the unconstitutional conduct” [citation omitted] ); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (while prison officials are not liable merely for denying grievance, they may be liable for directly participating, encouraging, authorizing, or acquiescing in Eighth Amendment violation).

d. Constitutional claims to enforce cell size regulations. To the extent Barry seeks to enforce the cell size recommendations set forth in 105 Code Mass. Regs. §§ 451.320 and 451.321 or purports to assert a constitutional claim arising from the failure to abide by the cell size recommendations in and of itself, such a claim fails and was properly dismissed.¹⁰ See Rhodes v. Chapman, 452 U.S. 337 (1981) (no constitutional right to single cell); Loffredo v. Center for Addictive Behaviors, 426 Mass. 542, 546 (1998) (“private cause of action cannot be inferred solely from an agency regulation”); Butler v. Turco, 93 Mass. App. Ct. 80, 88-89 (2018) (no constitutional violation where DOC regulations give discretion to determine double occupancy of prison cells).

3. Motion to amend complaint. In light of the foregoing, the judge's denial of Barry's motion for leave to file an amended complaint because it was “moot” (apparently concluding that the amended complaint was futile ¹¹ ) was error.¹² See Lipsitt v. Plaud, 466 Mass. 240, 255 (2013) (“Because the factual allegations in [the] original complaint were sufficient to state a claim ․ it follows that a fortiori, [the] amended complaint, which expands on and supplements those factual allegations, is also sufficient”). Absent a motion and briefing by the newly added defendants, we decline to assess, on this appeal, whether Barry's claims against them are sufficiently pleaded.¹³

Conclusion. We vacate the portion of the judgment dismissing Barry's Eighth Amendment and art. 26 ¹⁴ claims brought pursuant to 42 U.S.C. § 1983 and G. L. c. 231A against the named prison officials. We affirm the remaining aspects of the judgment. The portion of the order denying Barry's motion for leave to file an amended complaint as pertains to his Eighth Amendment and art. 26 claims is reversed; the remaining portion of the order is affirmed. The matter is remanded for proceedings consistent with this memorandum and order.

So ordered.

FOOTNOTES

3.   We briefly recite the facts as alleged in Barry's complaint, supplemented by undisputed background facts from the administrative record. See Jarosz v. Palmer, 436 Mass. 526, 529-530 (2002); Doe v. American Guar. & Liab. Co., 91 Mass. App. Ct. 99, 100, 106 (2017).

4.   Title 105 Code Mass. Regs. § 451.320 provides: “Each cell or sleeping area in an existing facility should contain at least 60 square feet of floor space for each occupant, calculated on the basis of total habitable room area, which does not include areas where floor-to-ceiling height is less than eight feet” (emphasis added).Title 105 Code Mass. Regs. § 451.321 provides:“Each cell in a new facility or a part of a facility constructed after the effective date of 105 CMR 451.000 should contain:(A) For segregation and special management areas where inmates are usually locked in for greater than ten hours per day, at least 80 square feet of floor space for a single inmate.(B) For inmates usually locked in for less than ten hours per day, contain at least 70 square feet of floor space for a single inmate.“Provided, however, two inmates may occupy a room or cell designed for double occupancy which has a floor space of 120 square feet.“Floor space shall be calculated on the basis of total habitable room area which does not include areas where floorto-ceiling height is less than eight feet” (emphasis added).

5.   In the amended complaint, Barry asserts the HSU staff member's opinion was unfounded; the administrative record provides no further details as to the basis for the opinion.

6.   Indeed, the defendants did not separately answer the constitutional claims.

7.   The defendants' qualified immunity argument rests solely on this same mistaken assertion. Accordingly, at least at this early stage, they have not established that qualified immunity bars Barry's claim. See Longval v. Commissioner of Correction, 448 Mass. 412, 418 n.10 (2007) (decision on qualified immunity at motion to dismiss stage appropriate only where applicability of defense clear from allegations contained in complaint). It has been clearly established that deliberate indifference to the exposure of inmates to other inmates with highly infectious diseases in crowded cells is cruel and unusual punishment. See, e.g., Brown v. Plata, 563 U.S. 493, 520 (2011); Helling, 509 U.S. at 33; Hutto v. Finney, 437 U.S. 678, 682-683 (1978); Gates v. Collier, 501 F.2d 1291, 1303 (5th Cir. 1974); Foster No. 1, 484 Mass. at 701. Given this clearly established law, a reasonable official in the defendants' position should have understood Barry's exposure could support a constitutional claim. See Ahearn v. Vose, 64 Mass. App. Ct. 403, 420 (2005).

8.   The defendants' assertion that Barry is not entitled to a single cell concerns the appropriate remedy and does not relate to the question whether Barry has alleged sufficient facts regarding the defendants' deliberate indifference.

9.   At this stage, we cannot accept as true Walsh's notes in the administrative record that she attempted repeatedly to meet with Barry and that he refused to discuss his grievance. Our review is limited to Barry's allegations in his complaint, which include his statement that he told Walsh about the cellmate's condition and his exposure to MRSA and his attendant fears.

10.   This, of course, does not preclude consideration of cell size or configuration in determining what remedy, if any, is appropriate in light of Barry's Eighth Amendment claim, should he prevail on the merits.

11.   See Vakil v. Vakil, 450 Mass. 411, 417 (2008) (futility appropriate reason for denying motion to amend complaint).

12.   The amended complaint alleges additional facts in support of the existing defendants' deliberate indifference to Barry's risk of serious harm. For example, Barry's amended complaint alleges that the extent of Walsh's investigation regarding the spread of MRSA in double-occupied cells was limited to obtaining the HSU staff member's statement, but that the statement “ha[d] no basis in medical science or subjective medical analysis of MRSA or Barry or the conditions of confinement.” He also alleges that he informed Kenneway of his exposure to MRSA and that Kenneway is responsible for adopting formal infectious disease policies.

13.   At oral argument, both parties stated that the cellmate was no longer at the prison. The defendants indicated that the cellmate was released on parole in 2019. Barry further indicated that he has been moved to a single cell. These developing facts may affect the parties' positions on remand and ought to be considered, in the first instance, by the Superior Court judge with the benefit of full briefing. See Helling, 509 U.S. at 35-36.

14.   Because rights guaranteed under art. 26 are at least equally as broad as those guaranteed under the Eighth Amendment, we conclude for the same reasons that Barry sufficiently raised a claim of an art. 26 violation. See Michaud v. Sheriff of Essex County, 390 Mass. 523, 534 (1983). Such a claim can not support an award of damages, however, see Doe, Sex Offender Registry Bd. No. 474362 v. Sex Offender Registry Bd., 94 Mass. App. Ct. 52, 64–65 (2018); whether Barry's claims for injunctive relief are moot is a question we leave for the proceedings on remand.