WILLIAM SANTIAGO v. AUBREY ORLOFF & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-213
WILLIAM SANTIAGO
vs.
AUBREY ORLOFF & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, who is incarcerated at the Massachusetts
Treatment Center (MTC), filed a complaint against the defendants
contending that his civil rights were violated and that certain
defendants retaliated against him in violation of his Federal
and State Constitutional rights. He appeals from the judgment
dismissing his complaint and an order denying his motion for
reconsideration. We affirm.
Background. The plaintiff transferred to MTC at his own
request to begin voluntary sex offender therapy treatment. As
part of the assessment for treatment, the plaintiff participated
1 Wellpath, LLC; Counseling and Psychotherapy Center, Inc. (CPC);
Kathryn Degnan; the president of Wellpath, LLC; the president of
CPC; Brooke Berard; Kim Lyman; Krystal Hedge; Cheryl Sprague;
Lisa Black Sholudko; Katherine O'Neill; Stephanie Sullivan; and
David Duarte.
in three one-hour interviews with an intern employed by
Counseling and Psychotherapy Center, Inc. (CPC), a privately-
owned subcontractor of Wellpath, LLC (Wellpath).2 The interviews
were part of the comprehensive sexual offense assessment and
treatment evaluation (assessment). The plaintiff was diagnosed
with narcissistic personality disorder. The plaintiff disputed
the diagnosis, as well as other perceived errors in his
assessment, and tried to correct them by contacting Wellpath,
CPC, and Department of Correction employees; he also filed
grievances.
The plaintiff met with CPC employees to discuss the
assessment on February 12, 2020, and again on June 25, 2020.
Shortly after the second meeting, in response to the plaintiff's
request for modification of the assessment, CPC attached an
addendum to the assessment, which reduced the plaintiff's score
on one aspect of the assessment by two points. The addendum
also added additional facts to support the plaintiff's
diagnosis. The plaintiff lodged several complaints concerning
the addendum. During this time, the plaintiff had a one-on-one
therapeutic meeting with a CPC employee, who told the plaintiff
2 Wellpath is a privately-owned healthcare company contracted by
the Department of Correction to provide medical services at the
MTC. Pursuant to its subcontract with Wellpath, CPC provides
certain voluntary counseling services as part of the sex
offender treatment program.
2
that, were he to refile the grievance about the addendum that
she returned to him, he would not progress in the treatment
program. The plaintiff interpreted this as a threat and claimed
that it was made in retaliation for his filing grievances.
Nonetheless, the plaintiff continued to pursue his grievances,
including sending a letter to Wellpath complaining about the
perceived threat from the CPC employee.
Discussion. The defendants filed motions to dismiss the
complaint pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754(1974), for failure to state a claim upon which relief can be
granted. "We review the allowance of a motion to dismiss de
novo, accepting as true the factual allegations in the
plaintiff['s] complaint, as well as any favorable inferences
reasonably drawn from them" (quotations and citations omitted).3
Lopez v. Commonwealth, 463 Mass. 696, 700 (2012). To prevail,
the plaintiff's factual allegations must plausibly suggest his
entitlement to relief above the speculative level. See
Harrington v. Costello, 467 Mass. 720, 724 (2014).
Here, the plaintiff claims that the judge erred in
determining that the complaint failed to state a claim on which
relief can be granted for violation of his First Amendment
3 We review the judge's order denying the plaintiff's motion for
reconsideration for abuse of discretion. See Piedra v. Mercy
Hosp., Inc., 39 Mass. App. Ct. 184, 188 (1995).
3
rights.4 Assuming without deciding that the Wellpath and CPC
employees were government actors, we conclude that on the facts
alleged, the addendum did not constitute retaliation infringing
upon the plaintiff's First Amendment rights and that the CPC
employee's comment regarding the refiling of grievances did not
amount to a constitutional violation.
"[A] prison inmate retains those First Amendment rights
that are not inconsistent with his status as a prisoner or with
the legitimate penological objectives of the corrections
system." Lovell v. Superintendent, N. Cent. Correctional Inst.,
26 Mass. App. Ct. 35, 37 (1988), quoting Pell v. Procunier, 417
U.S. 817, 822 (1974). "[P]risoners have a right, subject to
reasonable limitations of time and place, to petition prison
authorities for the redress of grievances" (quotation and
citation omitted). Langton v. Secretary of Pub. Safety, 37
Mass. App. Ct. 15, 19 (1994). To prove that an adverse action
was instituted against him in retaliation for his filing of a
grievance, a plaintiff must first "overcome the defendants'
4 As the plaintiff only argues his First Amendment claims in a
manner rising to the level of appellate argument, we need not
address the remaining claims. See Mass. R. A. P. 16 (a) (9)
(A), as appearing in 481 Mass. 1628 (2019). See also Zora v.
State Ethics Comm'n, 415 Mass. 640, 642 n.3 (1993) (assertions
of error that lack legal argument and authority are not
considered adequate argument); Coraccio v. Lowell Five Cents
Sav. Bank, 415 Mass. 145, 146 n.1 (1993) (because plaintiff
failed to address dismissed counts in her brief, substantive
claims raised therein deemed waived).
4
showing that [they] had legitimate penological reasons for
imposing the [action] against him." Puleio v. Commissioner of
Correction, 52 Mass. App. Ct. 302, 310 (2001). To withstand a
motion to dismiss a First Amendment retaliation claim, a
plaintiff "must advance nonconclusory allegations establishing
(1) that the speech or conduct at issue was protected, (2) that
the defendant took adverse action against the plaintiff, and
(3) that there was a causal connection between the protected
speech and the adverse action" (citation omitted). Cariglia v.
Bar Counsel, 442 Mass. 372, 379 (2004). A prisoner must be able
to show that the decision would not have been made or action
taken "but for" the impermissible purpose of retaliation. See
Layne v. Vinzant, 657 F.2d 468, 475-476 (1st Cir. 1981);
McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979). "Even if
[prison officials] had an impermissible reason . . ., they are
not liable if they also had an independent, permissible reason
for doing so." See Puleio, supra.
Here, the allegations in the complaint, taken as true, do
not support inferences that the defendants took adverse action
against the plaintiff and did so because he had engaged in
protected conduct. See, e.g., Puleio, 52 Mass. App. Ct. at 313;
Messere v. Commissioner of Correction, 27 Mass. App. Ct. 542,
543-544, 548-549 (1989). First, the addendum, which included
redactions favorable to the plaintiff, did not constitute
5
retaliation. See Cariglia, 442 Mass. at 379-380. Second, the
statement by a CPC employee that the refiling of the grievance
would impede the plaintiff's completion of the program does not
rise to an adverse action. See Messere, 27 Mass. App. Ct. at
548-549. His right to file grievances remained intact and he
continued to exercise it well after the purported retaliation.
Nor does the conclusory allegation that the plaintiff learned
that he had failed his course in that meeting support an
inference of an adverse action. Even if the allegations were
sufficient to establish that the defendants took adverse action
against the plaintiff, the allegations were insufficient to
establish that but for the plaintiff's protected conduct, the
defendants would not have taken it.5 See Cariglia, supra at 379-
380 (requiring plaintiff to demonstrate nexus between exercise
of First Amendment rights and discipline). Cf. Langton, 37
Mass. App. Ct. at 16 (plaintiff claimed "he was coerced, under
threat of lock-up, to undergo a psychological examination and
that during the examination other threats were made to him"
5 We do not reach the plaintiff's additional factual allegations,
raised for the first time on appeal or absent from the
complaint, that Lyman failed him in all his psychoeducational
courses, stole his resubmitted psychoeducational courses, and
influenced others to interfere in the plaintiff's
rehabilitation. See Boss v. Leverett, 484 Mass. 553, 562-563
(2020); Coraccio, 415 Mass. at 146 n.1; General Motors
Acceptance Corp. v. Abington Cas. Ins. Co., 413 Mass. 583, 584
(1992).
6
because "he sent a letter to the Secretary [of Public Safety]
criticizing prison conditions").
Judgment affirmed.
Order denying motion for
reconsideration affirmed.
By the Court (Blake, Grant &
Smyth, JJ.6),
Clerk
Entered: April 26, 2023.
6 The panelists are listed in order of seniority.
7