# Washington v. St. Amand

> District Court, D. Massachusetts · April 9, 2018

URL: https://www.frixlaw.com/law-library/cases/10196591

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** April 9, 2018
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10196591

## How later opinions describe it (automated extraction)

- concluding that pain was wantonly inflicted by deploying excessive amount of pepper spray

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10196591. Public record. Not legal advice.