MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Salahuddin Ali, an inmate at the Massachusetts Correctional Institution at Shirley (MCI Shirley), appeals from a Superior Court summary judgment dismissing his complaint against Department of Correction (DOC) officials Thomas Turco and Raymond Marchilli. See notes 1, 2, supra. Alis complaint alleged that in January of 2015, he was transferred from another prison to MCI Shirley, placed in solitary confinement (also referred to as the special management unit or SMU), and otherwise deprived of liberty and property, based on religious animus against him as a Black Muslim and in violation of his due process rights. The official capacity claims having been dismissed earlier in the case, the summary judgment ruling dealt only with the individual capacity claims for damages. We conclude that because the judge erroneously denied Alis motion to compel discovery responses and his related request under Mass. R. Civ. P. 56 (f), 365 Mass. 824 (1974), for additional time to oppose summary judgment, the judgment must be vacated.
1. Motion to compel. On November 6, 2019, Ali filed a motion to compel further responses to various discovery requests. The judge denied the motion primarily on the ground, erroneously advanced by the defendants, that it failed to identify deficiencies in specific discovery responses as required by Rule 9C (c) of the Rules of the Superior Court (2018).
Although Ali did not provide a specific list of deficient responses, Alis motion clearly referred to all of the defendants’ “responses to interrogatories and request[s] for documents, [in which] defendants repeatedly claim[ed] ․ that ‘the [c]ourt dismissed the claim underlying this request in its April 4, 2018 [m]emorandum and [o]rder on defendants’ [m]otion to [d]ismiss.’ ” Ali also attached an exhibit to the motion containing excerpts from the defendants’ responses to requests for admissions and for production of documents, wherein the defendants declined to respond to certain requests on the ground that they related to claims that had already been dismissed.
As to those requests and responses, Alis motion was sufficient to comply with the specificity requirement of Superior Court Rule 9C (c). Moreover, we agree with Alis argument that the asserted ground for refusing to respond was erroneous; other claims remained pending as to which the discovery requests appeared to be relevant. Notably, the defendants have not argued otherwise, either in their opposition to the motion to compel or in their brief on appeal.
We therefore conclude that, as to the particular requests cited in the margin,
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it was an abuse of discretion to deny Alis motion to compel for lack of specificity, and the order must be vacated to the extent that it did so. See Cardone v. Boston Regional Med. Ctr., Inc., 60 Mass. App. Ct. 179, 191 (2003) (order on motion to compel is reviewed for abuse of discretion). And, because the judges order denying Alis rule 56 (f) request was expressly predicated her denial of the motion to compel, that order must be vacated as well. On remand, in ruling on the motion to compel, the judge should consider the defendants’ other objections to those particular requests, as asserted in their original discovery responses.
Although Alis motion to compel raised other arguments, we see no abuse of discretion in the judges order to the extent that it explicitly or implicitly rejected those arguments. First, the motion asserted that at the defendants’ depositions, counsel improperly instructed them not to answer certain questions. We agree with the judge that counsel was correct to explain to Ali that her objections merely preserved issues for later resolution and did not mean that the witness would not answer.
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On those occasions when the witness did not proceed to answer after counsels objection, Ali could have requested or awaited an answer, but he did not do so and instead posed another question.
Second, Alis motion attached a proposed order to compel discovery that set forth thirty-four additional interrogatories and fifteen additional document requests. But the motion did not demonstrate, nor can we discern from the record before us, how those additional requests related to any of the previous requests to which defendants gave insufficient responses. The judge did not abuse her discretion in declining to order responses to the additional requests.
2. Remaining issues. Although we vacate the judgment based on the partially erroneous denial of Alis motion to compel and the denial of his rule 56 (f) motion, we comment on certain of Alis other challenges to the summary judgment ruling, as those issues may recur on remand.
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a. Turcos personal involvement. Ali challenges the motion judges ruling that, because it was undisputed that Turco was not personally involved in causing any of the alleged harm to Ali, Turco could not be liable in damages under 42 U.S.C. § 1983. Ali acknowledges that Turco was not the Commissioner of Correction at the time of the alleged violations of Alis rights. Ali nevertheless argues that Turco is still liable because Turco learned of the violations once he became commissioner, knew that Ali had requested information on the status of an alleged investigation of Ali conducted by an outside agency, and “fail[ed] to remedy the ongoing violation” or respond to Alis request.
On the record before her, the judge was correct in rejecting Alis argument. “Governmental actors ․ may be liable under § 1983 [only] if the governmental actors themselves subject[ ] a person to a deprivation of rights or cause[ ] a person to be subjected to such deprivation․ [A]gency officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” (Quotations and citations omitted.) Baptiste v. Executive Office of Health & Human Servs., 97 Mass. App. Ct. 110, 115 (2020), cert. denied, 141 S. Ct. 2626 (2021). Mere “knowledge and acquiescence in ․ subordinates’ ” unlawful conduct is insufficient (quotation omitted). Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). Because nothing in the summary judgment record suggests that Turco caused or subjected Ali to a violation of Alis rights, Turco cannot be liable for § 1983 damages on this record.
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Whether any further discovery turns up evidence of sufficient personal involvement by Turco remains to be seen.
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b. Marchillis motivation. The judge ruled that, to the extent Marchilli was personally involved in ordering Alis placement in the SMU at MCI Shirley, Ali had not proffered evidence from which it could reasonably be inferred that Marchilli was motivated by Alis religion.
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Although the possibility of further discovery makes it unnecessary for us to resolve this issue, we are inclined to think that that the circumstances surrounding the transfer and placement -- including its timing, the unexplained loss or confiscation of some of Alis religious materials, and Marchillis statement as recounted in Alis affidavit, see note 8, supra -- may give rise to an inference of religious motivation. That Ali also asserts the placement came at the request of an outside Federal agency does not, at the summary judgment stage, necessarily negate the inference. And, as the judge noted, the defendants (despite various requests) have never proffered any explanation for Alis placement in the SMU.
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c. Procedural due process claim. The judge ordered summary judgment for the defendants on Alis procedural due process claim, on the ground that Alis confinement in the SMU was reviewed more frequently than required by applicable regulations. On appeal, however, Ali presses, as he did in his summary judgment opposition papers, a different procedural due process claim: that he was confined in the SMU for twenty-one days without a hearing. Ali relies on Cantell v. Commissioner of Correction, 475 Mass. 745 (2016); Haverty v. Commissioner of Correction, 437 Mass. 737 (2002), S.C., 440 Mass. 1 (2003); and State regulations discussed therein. The judge did not address that claim, and the defendants have not addressed it in their appellate brief. We trust that the claim will be addressed on remand.
d. Exhaustion. The judge ordered summary judgment for the defendants on the additional ground that Ali had failed to file grievances regarding most of his claims; that the grievances he did file were untimely; and, accordingly, that Ali had failed to exhaust his administrative remedies, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) and G. L. c. 127, § 38F. On appeal, however, Ali presses, as he did in his summary judgment opposition papers, the argument that the defendants waived any exhaustion defense based on the timeliness of the grievances by addressing them on their merits. See Mallory v. Marshall, 659 F. Supp. 2d 231, 237 (D. Mass. 2009). The judge did not address that claim, and the defendants have not addressed it in their appellate brief. If Alis waiver argument is correct, then Ali would appear to have exhausted his remedies as to claims fairly within the scope of the grievance. We leave the issue to be briefed further and resolved, if necessary, on remand.
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Conclusion. The judgment is vacated. That portion of the order denying Alis motion to compel discovery as to requests numbered 5, 14, 19, and 20 is vacated; the order is otherwise affirmed. The order denying Alis motion under rule 56 (f) is vacated. The case is remanded for further proceedings consistent with this memorandum and order.
So ordered.
Affirmed in part; vacated in part and remanded
FOOTNOTES
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. The requests to be considered on remand are Alis requests for production of documents, numbers 5, 14, 19, and 20. As to the other requests Ali identified, even where defendants’ response asserted that the relevant claims had already been dismissed, we conclude that Ali has not shown his entitlement to relief, because the defendants nevertheless furnished an additional response with which Alis motion found no fault.
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. Although there were a few instances in which counsel expressly instructed the defendants not to answer, Alis motion did not specifically challenge the reasons given for counsels instructions in those instances.
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. Our review of whether there remained any genuine issues of material fact has been hampered by Alis failure to furnish us with the documents supporting the defendants’ assertions in their Superior Court statement of undisputed material facts and the documents supporting Alis contentions in response thereto that certain facts were disputed. In any appeal that challenges a summary judgment ruling, the appellant should include in the record appendix all of the factual materials contemplated by Superior Court Rule 9A (b) (5).
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. Alis reliance on DiMarzo v. Cahill, 575 F.2d 15, 18 (1st Cir.), cert. denied, 439 U.S. 927 (1978), is unavailing. Nothing in that decision addresses State officials’ liability for § 1983 damages in their individual capacities; the decision concerned only injunctive relief to remedy ongoing violations. See OMalley v. Sheriff of Worcester County, 415 Mass. 132, 140-141 & n.13 (1993). To whatever extent Grinter v. Knight, 532 F.3d 567 (6th Cir. 2008), may suggest that § 1983 damages liability may be imposed solely because a supervisor “knowingly acquiesced in the unconstitutional conduct of the offending subordinate” (quotation omitted), id. at 575, it is unpersuasive after the subsequent decision in Iqbal, and we decline to follow it. See Commonwealth v. Masskow, 362 Mass. 662, 667 (1972) (lower Federal courts’ decisions on issues of Federal law are not binding on State courts, although “we give respectful consideration to such lower Federal court decisions as seem persuasive”).
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. Ali argues that he may also obtain damages (apparently from the defendants in their individual capacities) for violations of the Massachusetts Declaration of Rights, either directly or under the Massachusetts Civil Rights Act (MCRA), G. L. c. 12, § 11I. But the two Superior Court decisions Ali cites on the existence of a direct claim did not actually conclude that such a claim was viable, and he cites no other applicable authority. Because the Legislature has allowed similar claims under the MCRA, a court should be cautious about implying the existence of such a claim outside of the MCRAs bounds. See Martino v. Hogan, 37 Mass. App. Ct. 710, 720 (1994) (MCRA “may be thought ․ to occupy the field”). And Alis complaint did not allege any “threats, intimidation or coercion,” as is required for a MCRA claim. See Bally v. Northeastern Univ., 403 Mass. 713, 717 (1989), quoting G. L. c. 12, § 11H. See also Longval v. Commissioner of Correction, 404 Mass. 325, 333 (1989) (“A direct violation of a persons rights does not by itself involve threats, intimidation, or coercion”).
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. Although the defendants assert that there was no evidence that Marchilli ordered the transfer to MCI Shirley, and although Marchilli testified at his deposition that he did not know who ordered that transfer, the judge differentiated between Alis claim based on his transfer to MCI Shirley (which had previously been dismissed on a ground unrelated to Marchillis personal involvement, and his placement in the SMU once at MCI Shirley. The judge cited a passage of Marchillis deposition testimony in which Marchilli was asked whether, on January 9, 2015, he “ordered that the plaintiffs [sic] allow ․ Ali to be placed in segregation,” and Marchilli responded, “I dont know if that was the date” (emphasis added). (Alis mistaken reference to “the plaintiffs” was at least partially clarified in the discussion following that testimony.) In what appears to be Marchillis affidavit, there is a denial of any religious reason for Alis placement in the SMU, but the record appendix does not include a complete copy of the affidavit. Paragraph 30 of Alis affidavit in opposition to summary judgment offers some support for Alis claim that Marchilli was personally involved in the SMU placement decision. We are unable to determine on this record whether Ali relied on this affidavit to properly controvert, in accordance with Superior Court Rule 9A (b) (5), the defendants’ claim that there was no dispute as to Marchillis lack of involvement. See note 5, supra. See also Godfrey v. Globe Newspaper Co., 457 Mass. 113, 121 (2010) (judge must be able to rely on statements of undisputed and disputed facts under Rule 9A [b] [5]).
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. Ali also asserted claims against Marchilli individually based on the denial of Alis access to legal materials during his SMU confinement and his loss of a prison job and program access. Because of the gaps in the record appendix as furnished by Ali, we have no basis to disagree with the judges conclusion that there was no dispute of material fact as to Marchillis lack of personal involvement in those matters. Whether further discovery discloses a basis for a factual dispute remains to be seen.
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. Ali further argues that his claims for declaratory relief were equitable in nature and thus exempt from the exhaustion requirement of G.L. c. 127, § 38F (“the court may consider [an unexhausted] claim ․ for actions seeking equitable relief”). See Grady v. Commissioner of Correction, 83 Mass. App. Ct. 126, 137 n.9 (2013). It is unclear whether the claims for declaratory relief were asserted and would lie against the defendants in their individual capacities, and the official capacity claims were already dismissed and are not pressed on appeal. As neither party has briefed that issue, or whether Ali has met the usual requirements for declaratory relief (including the existence of an actual controversy), we leave those issues for resolution, if necessary, on remand.