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.

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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).

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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).

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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

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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).

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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.

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