Washington v. St. Amand

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

DERRICK WASHINGTON, )

)

Plaintiff, )

)

)

v. ) Civil Action

) No. 11-10771-PBS

PETER S. AMAND, et al., )

Defendants. )

___________________________________)

MEMORANDUM AND ORDER

April 9, 2018

SARIS, Chief U.S.D.J.

I. INTRODUCTION

Derrick Washington brings this action pursuant to 42 U.S.C.

§ 1983, alleging that six corrections officers used excessive

force by spraying a chemical agent while extracting him from a

recreation yard at MCI Cedar Junction in Walpole, Massachusetts.

He further alleges that defendant Lieutenant Glenn Doher

retaliated against him for filing grievances against him and

other officers. The defendants are Lieutenant Glenn Doher,

Sergeant John Dankievitch, and Corrections Officers James

Cronin, Jeffrey Clement, John Capodilupo, Jr., and Michael

Savastano. Defendants filed a motion to dismiss or in the

alternative for summary judgment. After hearing, the motion is

ALLOWED in part and DENIED in part. (Dkt. No. 202).

II. FACTUAL BACKGROUND

When all reasonable inferences are drawn in favor of the

nonmoving party, the following facts are taken from the

admissible evidence in the record. Many facts are disputed.

A. The Extraction and Use of Force

On September 25, 2008, Derrick Washington was moved to cell

36 in 10 Block, the segregation unit at MCI Cedar Junction.

Doher Aff. ¶ 16, Dkt. No. 134; Washington Dep. at 77, Dkt. No.

216-1. On September 28, 2008, he was moved to cell 19. Doher

Aff. ¶ 16; Washington Dep. at 77. On September 29, 2008, when he

was reassigned back to cell 36, Washington refused to exit the

10 Block recreation cage and return to his assigned cell.

Disciplinary Report, Dkt. No. 129-5 at 2. He believed cell 36

contained “black mold” that would trigger his asthma. See Video;

Washington Aff. ¶ 11, Dkt. No. 216-2 at 4. Doher entered the

yard and gave Washington several direct orders to exit the yard,

and he refused. He also stated: “You are filing a lot of

grievances against my officers.” Washington Dep. Tr. at 102.

After notifying the shift commander, Doher was assigned to be

the leader of the extraction team. Before the team was

assembled, Doher said that the Health and Safety Officer

examined cell 36 and told Doher that there was no mold in the

cell. Doher Aff. ¶ 19; Washington. Dep. Tr. at 110-11.

The Superintendent of MCI Cedar Junction authorized the use

of force, including the use of a chemical agent. Multiple

corrections officers participated in the “planned use of force”

to extract Washington from the 10 Block recreational yard after

he refused to leave on his own.1 The officers were Jeffrey

Clement, James Cronin, Michael Savastano, Paul Young,2 Sergeant

John Dankievitch, and Glenn Doher, who was a Lieutenant on the

day of the extraction. Dkt. No. 129-5 at 7. Defendants obtained

advance authorization from the Superintendent to use force and

chemical agents if necessary. See Video; Dkt. No. 129-5 at 8,

18. Jacqui Bernard, a Licensed Practical Nurse (LPN), filled out

a Use Of Chemical Agents checklist at 11:40 a.m. prior to

Washington’s extraction, which specified no contraindications

for the use of chemical agents. Dkt. No. 129-5 at 22.

1 “A planned use of force occurs when the level of threat by

the inmate is not immediate, e.g., refusal to be put in

restraints and exit a cell, threatening behavior, possession of

a weapon, and property damage. There is time to activate a team,

suit up in full extraction gear, and brief team members on

strategy to be used. Every attempt should be made to diffuse the

situation prior to a planned use of force.” 103 Mass. Code Regs.

505.07.

2 Corrections Officer Paul Young was terminated from the case

on August, 3, 2017. Dkt. No. 167.

Specifically, she indicated (incorrectly) that Washington did

not have asthma, any current respiratory infections, recent

hospitalizations, or medical conditions that would preclude the

use of force or chemical agents. Id.

An audio and visual recording of the extraction captured

the event. The parties did not submit a transcript, but the

discussion was mostly audible. Prior to the use of force,

Intervention Specialist/Mental Health Clinician Erica Corley,

LCSW, approached Washington in the recreation yard, with at

least two members of the extraction team present, and asked if

he was willing to comply with the order to return to his cell.

Washington informed Corley and the corrections officers that

they were “forcing [him] to move in a cell with black mold in

it. I’ve complied every time [Correction Officers] asked me to

move; I have no problem moving. Tell them to clean the black

mold off the cell first. Once they clean it, I have no problem

moving.” Video. However, he said he was “highly allergic” to

black mold and would not move into or clean a cell with black

mold in it. See id.; Dkt. No. 129-5 at 21. He told Corley,

“Lieutenant Doher said I’m forced to clean the cell by myself

with black mold; I’m not doing that. Clean the cell off, I’ll

move inside the cell once they clean the cell off. If they can’t

do that, I’m not moving into a cell with black mold in it.”

Video. Corley informed him that the cell had been checked by

officers “and was capable to be lived in.” Id. He retorted,

“black mold is not capable to be lived in.” Id. Washington told

Corley “he moved five times in the last month for no reason. The

reason for me moving, [Lieutenant Doher] said, was because he

was reading my grievances, which is supposed to be confidential

. . . . There should be no reason for him knowing that

confidential information.” Id. Corley informed him he would be

put in the cell regardless of his wishes. Washington reasserted

that he would go compliantly if the black mold was cleaned.

Corley and the extraction team then left the recreation yard.

About six minutes later, the extraction team entered the

recreation yard and Lieutenant Doher ordered Washington to allow

them to put him in restraints. Washington repeated he would not

move into a cell with black mold. He was sprayed with a chemical

agent three times by Sergeant John Dankievitch. Dkt. No. 129-5

at 11, 17. Washington attempted to avoid the spray by placing a

shirt in front of his face. The extraction team entered the

recreation yard, took down Washington, handcuffed him, and

force-walked him back into the prison. According to Washington,

they slammed his head into the floor. After he requested medical

treatment, the nurse offered to wash out his eyes, but he

refused. According to the nurse in the medical unit, he had

“superficial” lacerations on his forehead, right temple, the

left elbow, bilateral knee, and right heel.3 He was disoriented

and told the nurse, “I can’t think right now.” Video. He was

returned to cell 36.

The defendants dispute the assertion that the cell

contained black mold. Plaintiff received a disciplinary report,

resulting in a guilty finding. Doher Aff. ¶ 22.

B. History of Asthma

Washington was born with asthma and uses an inhaler for

treatment. Washington Dep. Tr. at 107; Washington Aff. ¶ 2. His

medical records show that on June 23, 2008, he was prescribed

albuterol for his asthma. Dkt. No. 216-2 at 10. A Chronic

Disease Management form filled out on July 22, 2008 noted that

Washington was using albuterol for mild or intermittent asthma.

Id. at 11. On September 15, 2008, there was a fire on 10 Block.

See Doher Aff. ¶ 18. Washington suffered from smoke inhalation

and was unable to breathe after smoke came through his door. He

submitted a request to be seen by the healthcare staff and noted

that he had asthma. Dkt. No. 216-2 at 15-22. He received medical

attention, and records indicated that he was an asthmatic. Id.

3 In his deposition, he also said he had a broken hand, but

this claim has not been pressed in the briefs.

C. History of Grievances

Washington has filed upwards of 30 or 40 grievances against

corrections officers. Washington Dep. Tr. at 115. At one point,

his grievance privileges were suspended because of the number of

grievances he filed, mostly while he was in 10 block. Id. at

103-04. Some of his grievances were filed specifically about

Lieutenant Doher. Others pertained to Corrections Officers who

appeared to have good relationships with Lieutenant Doher. When

he filed a grievance against one Corrections Officer in

particular, on that same day he was moved to cell 36, the cell

which allegedly contained black mold. Washington Dep. Tr. at 94-

96.

Doher has written two disciplinary reports against

Washington. The first on July 24, 2008 for participating in a

group demonstration for which he was found guilty, and the

second on December 13, 2008, for a similar offense for which he

was found not guilty. Doher Aff. ¶ 22.

III. LEGAL STANDARDS

A. Summary Judgment

Summary judgment is appropriate when there is “no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). To succeed

on a motion for summary judgment, the moving party must

demonstrate that there is an “absence of evidence to support the

nonmoving party’s case.” Sands v. Ridefilm Corp., 212 F.3d 657,

661 (1st Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 325 (1986)). The burden then shifts to the nonmoving party

to set forth specific facts showing that there is a genuine

issue of material fact for trial. Quinones v. Buick, 436 F.3d

284, 289 (1st Cir. 2006). A genuine issue exists where the

evidence is “sufficiently open-ended to permit a rational

factfinder to resolve the issue in favor of either side.” Nat’l

Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.

1995). A material fact is “one that has the potential of

affecting the outcome of the case.” Calero–Cerezo v. U.S. Dep’t

of Justice, 355 F.3d 6, 19 (1st Cir. 2004) (citing Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986)).

B. Qualified Immunity

Qualified immunity protects all public officials except the

“plainly incompetent [and] those who knowingly violate the law.”

Malley v. Briggs, 475 U.S. 335, 341 (1986). To defeat qualified

immunity, an inquiring court must ask

whether the facts, taken most favorably to the party

opposing summary judgment, make out a constitutional

violation. Second, we inquire whether the violated

right was clearly established at the time that the

offending conduct occurred. The second, “clearly

established,” step itself encompasses two questions:

whether the contours of the right, in general, were

sufficiently clear, and whether, under the specific

facts of the case, a reasonable defendant would have

understood that he was violating the right.

Ford v. Bender, 768 F.3d 15, 23 (1st Cir. 2014) (internal

citations omitted).

The First Circuit has recognized that applying the

qualified immunity standard at this stage is difficult. “[T]he

summary judgment standard requires absolute deference to the

nonmovant’s factual assertions (as long as those assertions are

put forward on personal knowledge or otherwise documented by

materials of evidentiary quality), whereas qualified immunity,

when raised on summary judgment, demands deference to the

reasonable, if mistaken, actions of the movant.” Morelli v.

Webster, 552 F.3d 12, 18–19 (1st Cir. 2009) (internal citations

omitted). To ease the difficulty, the First Circuit instructs

lower courts to “first identify[] the version of events that

best comports with the summary judgment standard and then ask[]

whether, given that set of facts, a reasonable officer should

have known that his actions were unlawful.” Id. at 19.

IV. ANALYSIS

A. Excessive Force

To make out a claim of excessive force under the Eighth

Amendment, a prisoner must prove an “unnecessary and wanton

infliction of pain,” which is not just a lack of due care but,

rather, an “obduracy and wantonness.” Whitley v. Albers, 475

U.S. 312, 319 (1986). A corrections officer’s use of excessive

physical force may constitute cruel and unusual punishment even

when a prisoner suffers no serious injury. Hudson v. McMillian,

503 U.S. 1, 4 (1992). The key question in determining whether

excessive force was used under the Eighth Amendment when a

security measure is undertaken to resolve a disturbance is

“whether force was applied in a good-faith effort to maintain or

restore discipline, or maliciously and sadistically to cause

harm.” Id. at 7 (citing Whitley, 475 U.S. at 320-21). See

Skinner v. Cunningham, 430 F.3d 483, 488 (1st Cir. 2005).

“[N]ot . . . every malevolent touch by a prison guard gives

rise to a federal cause of action,” nor does “every push or

shove, even if it may later seem unnecessary in the peace of a

judge’s chambers, violate[] a prisoner’s constitutional rights.”

Hudson, 503 U.S. at 9 (citing Johnson v. Glick, 481 F.2d 1028,

1033 (2d Cir. 1972)). However, the fact of incarceration does

“not require inmates to be subjected to the malicious whims of

prison guards.” DeSpain v. Uphoff, 264 F.3d 965, 978 (10th Cir.

2001). Courts look at various factors in evaluating whether the

use of force was malicious and sadistic, or used in good faith,

including the “need for application of force, the relationship

between that need and the amount of force used, the threat

reasonably perceived by the responsible officials, . . . any

efforts made to temper the severity of a forceful response,” and

the extent of injury suffered by an inmate. Davis v. Rennie, 264

F.3d 86, 110 (1st Cir. 2001) (citing Hudson, 503 U.S. at 7). See

also Whitley, 475 U.S. at 321.

Each named defendant must be personally knowledgeable and

responsible for the use of excessive force to be held liable:

Since there is no respondeat superior liability under

section 1983, . . . liability in damages can only be

imposed upon officials who were involved personally in the

deprivation of constitutional rights . . . . The requisite

personal involvement of a prison official may be

established by showing that the official knew of a

prisoner's personal danger yet failed to provide

protection.

Pinto v. Nettleship, 737 F.2d 130, 132 (1st Cir. 1984) (internal

citations omitted).

The crux of Washington’s argument is that the knowing use

of the chemical agents on an inmate who is asthmatic constitutes

excessive force. Dkt. No. 216. Generally, under Massachusetts

regulations, “a planned use of force” is “authorized force” when

a prisoner repeatedly fails to obey an order by refusing to be

put in restraints and exit a cell. 103 Mass. Code Regs. 505-07.

Spraying an inmate with chemical agents is a use of force. 103

Mass. Code Regs. 505.10. Chemical agents, like pepper spray,

disable prisoners “by causing ‘intense pain, a burning sensation

that causes mucus to come out of the nose, an involuntary

closing of the eyes, a gagging reflex, and temporary paralysis

of the larynx. It sometimes also causes ‘disorientation,

anxiety, and panic’ in the person sprayed.” Danley v. Allen, 540

F.3d 1298, 1309 (11th Cir. 2008) (overruled on other grounds as

recognized by Randall v. Scott, 610 F.3d 701, 709 (11th Cir.

2010)) (internal citations omitted). While the use of chemical

agents is not excessive force per se, the amount of force used

must be proportionate to the need for force. See Iko v. Shreve,

535 F.3d 225, 240 (4th Cir. 2008) (concluding that pain was

wantonly inflicted by deploying excessive amount of pepper

spray).

One key disputed fact issue is whether the defendants had

knowledge of Washington’s asthma condition prior to the use of

the chemical agents. Washington alleges that all of the officers

knew of his asthma. In his view, Lieutenant Doher knew of his

asthma because “he was the officer residing over [sic] 10 Block

while [Washington] was getting treatment for [his] asthma

condition.” Washington Dep. Tr. at 107. The video evidence shows

that Washington informed the extraction team that he is allergic

to black mold. Also, there was a fire in the unit a few weeks

prior to the extraction, where Washington’s asthma was triggered

after inhaling smoke. He alleges that Doher “was the officer-in-

charge during the incidents where [he] was being treated for

[his] asthma condition. And everything goes through the officer-

in-charge in 10 Block.” Washington Dep. Tr. at 106.

Defendants point out that prior to the use of the chemical

agent, “[m]edical staff . . . was consulted to see if there were

any contraindications for the use of chemical agent.” Doher Aff.

¶ 21. In similar cases, checking with medical professionals

before the use of a chemical agent absolves corrections officers

of liability. See, e.g., Conner v. Kirkegard, et al., No. CV 15-

81-H-DLC, 2018 WL 830142, at *5 (D. Mont. Feb. 12, 2018)

(finding no liability after defendant and cellmate were

medically cleared for spray prior to cell extraction in

accordance with policies); Thomas v. Johnson, No. 1:05CV197 LMB,

2007 WL 2885341, at *6 (E.D. Mo. Sept. 27, 2007) (granting

motion for summary judgment when officer properly checked with

medical staff before applying the pepper spray with noncompliant

inmate).

This medical clearance is not dispositive here because

plaintiff has presented evidence of a well-documented history of

asthma in the prison. Because Lieutenant Doher was in charge of

10 Block during the fire which triggered Washington’s asthma

attack, the Court concludes that there is a genuine dispute

about whether Doher knew of Washington’s asthma when he ordered

the use of a chemical agent. Indeed, Doher has not disputed

knowledge about the asthma. See Blackfoot v. Mijares, No. CV 07-

6044-JVS PJW, 2011 WL 3477024, at *4 (C.D. Cal. June 27, 2011),

report and recommendation adopted, No. WD CV 07-6044-JVS, 2011

WL 3476573 (C.D. Cal. Aug. 9, 2011). Accordingly, it is a jury

question as to whether Doher knowingly authorized the use of

force on an asthmatic and whether it was excessive in the

circumstances.

The record is thin on whether the other officers knew of

Washington’s asthma. None of the other officers submitted an

affidavit on point. While Plaintiff told the extraction team he

was allergic to black mold, an allergy to black mold is not the

same as having asthma. The officers were not assigned to 10

Block, and there is no evidence that Washington interacted with

them before the extraction. See Cronin Aff. ¶ 2, Dkt. No. 131;

Clement Aff. ¶ 2, Dkt. No. 130; Dankievitch Aff. ¶ 2, Dkt. No.

132; Savastano Aff. ¶ 2, Dkt. No. 135. Moreover, although

Washington argues that there is a question of fact as to whether

it was reasonable to use a chemical agent on a noncompliant

prisoner, DOC regulations allow for the use of force when an

inmate “refus[es] to be put in restraints and exit a cell.” 103

Mass. Code Regs. 505.07.

Therefore, the Court concludes that the other defendants

are protected by qualified immunity on the excessive force

claim.4 As such, claims against Sergeant Dankievitch and Officers

4 Plaintiff does not appear to be pressing a claim based on

the earlier allegations that his head was slammed into the floor

or his hand was broken.

Capodilupo, Jr., Clement, Cronin, and Savastano are dismissed,

but the claim against Lieutenant Doher will go forward.

B. Retaliation

Washington alleges that Lieutenant Doher retaliated against

him for filing so many grievances.5 To survive summary judgment

on a retaliation claim, “a prisoner must make out a prima facie

case by adducing facts sufficient to show that he engaged in a

protected activity, that the state took an adverse action

against him, and that there is a causal link between the former

and the latter.” Hannon v. Beard, 645 F.3d 45, 48 (1st Cir.

2011).

Washington testified that on the day he filed a grievance

against an officer who had a close relationship with Doher, he

was moved to a cell that contained black mold. Washington also

testified that when he was in the recreation cage, and prior to

the use of force, Lieutenant Doher “look[ed] me in my eye” and

said, “you have been writing grievances against my officers.”

Washington Dep. Tr. at 101. He claims Doher authorized the use

of chemical agents against him, despite knowing of his asthma,

5 In his deposition testimony, Washington alleges various

actions by Lieutenant Doher he considered retaliatory. He

testifies that Doher authorized unnecessary cell searches,

ordered moves from cell to cell, permitted officers to treat his

items carelessly, and falsified tickets against him. Washington

Dep. Tr. at 76, 90. However, in his brief, he does not press

these allegations.

as a means of targeting, harassing, and retaliating against him.

Washington Dep. Tr. at 105.

Doher argues that he has never seen any of Washington’s

grievances or taken any action in retaliation against Washington

for filing grievances against him. He alleges that Washington

was moved due to security issues and to repair a broken door;

moreover, he had not seen mold in cell 36. Doher Aff. ¶¶ 16-18.

With respect to the retaliation claim, Lieutenant Doher is

not entitled to summary judgment because the right not to be

retaliated against for filing grievances is clearly established

in this Circuit, and plaintiff has presented evidence that Doher

was motivated by plaintiff’s frequent filing of grievances.

ORDER

Defendant Doher’s motion for summary judgment is DENIED.

The motion for summary judgment filed by the remaining

defendants is ALLOWED. (Dkt No. 202).

/s/ PATTI B. SARIS

Patti B. Saris

Chief U.S. District Judge