Couchon v. Cousins

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 17-10965-RGS

ANTHONY COUCHON

v.

FRANK COUSINS, et al.

MEMORANDUM AND ORDER ON

CROSS MOTIONS FOR SUMMARY JUDGMENT

August 31, 2018

STEARNS, D.J.

On October 14, 2013, during a fight with another inmate, Anthony

Couchon – then a pretrial detainee at the Essex County Correctional Facility

(ECCF) – was bitten by a K-9 dog at the order of its handler, Correctional

Officer Leonardo Jorge. After his release from custody, Couchon brought

suit in Suffolk Superior Court against Jorge, Sheriff Frank Cousins, and

Superintendent Michael Marks (collectively, defendants), seeking damages

and alleging unconstitutional conditions of confinement. Defendants

removed the case to the federal district court. Before the court are the

parties’ cross-motions for summary judgment.

BACKGROUND

K-9 units are a fixture of daily life at ECCF, where they are deployed to

maintain institutional order. Pl.’s SOF, Dkt #35 ¶¶ 19-21. Before being

assigned to ECCF, K-9 handlers and their dogs receive “extensive in-house

training” at the Essex County Sheriff’s Department (ECSD) and the Boston

Police Academy. Defs.’ Mem., Dkt #32 at 16. While on duty, the K-9 units

are governed by an ECCF use of force policy that provides as follows:

K-9 teams may be used only under the direct control of handlers

with prior authorization by the Superintendent or Director of

Security. Authorization is not required for regular routine

searches or patrol within or outside the facility, during which

under normal circumstances there is limited contact with

inmates and injuries would not normally result. There may be

rare situations where an employee will have to use a K-9 without

prior authorization. Any such use of a K-9 will be strictly

reviewed to determine that it was not possible to get timely

authorization and it was reasonable for the employee to believe

that an emergency existed requiring the immediate use of a K-9

to prevent death or serious bodily injury to himself or others.

Pl.’s SOF ¶ 28. Among the “rare situations” in which a K-9 officer can act

without prior authorization are fights between prisoners and cases of

prisoner “non-compliance.” Id. ¶ 23. Between May 5, 2009, and June 30,

2016, ECCF documented fourteen K-9 bite incidents involving inmates. Id.

¶ 49. ECCF is unique in being the only correctional facility in Massachusetts

that deploys K-9s throughout the institution on a regular basis. Id. ¶ 65.

On October 14, 2013, Couchon got into a brawl with another inmate in

ECCF’s gymnasium building. The fight quickly attracted a crowd. Id. ¶¶ 5-

6; Defs.’ Mem. at 5. Lieutenant Heath Carafa was the first officer to respond;

he succeeded in tackling Couchon to the ground. Pl.’s SOF ¶ 8. Couchon

“landed with his hands and arms underneath his body,” and allegedly refused

to follow “orders to place his hands behind his back.” Id. When Officer Jorge

and his K-9 “Gunny” arrived at the scene, Couchon was on the ground. Jorge

ordered Couchon to stop resisting and show his hands. Defs.’ Mem. at 5.

When Couchon refused, Jorge – concerned that Couchon was concealing a

weapon – ordered Gunny to bite him. Pl.’s SOF ¶¶ 11, 13. Although the exact

number of bites is disputed, there is no question that Gunny bit Couchon

more than once. Id. ¶ 15. Couchon sustained injuries to both of his legs and

was taken to the infirmary. Id.; Defs.’ Mem. at 6. Couchon claims that his

wounds took several weeks to heal, and that the physical scarring and

emotional trauma from the dog bites still affect him. Pl.’s SOF ¶ 16.

Pursuant to the ECCF use of force policy, the K-9 Review Board

conducted an investigation regarding Gunny’s deployment, as Jorge had not

received prior authorization to use the K-9. Id. ¶¶ 14, 17. The Review Board

unanimously concluded that while “Officer Jorge did his best to help his

fellow officers during a stressful situation . . . the K-9 should not have been

deployed in this manner in this instance.” Id. ¶ 17; Pl.’s SOF, Ex. 10 (Essex

K-9 Review Board Findings).

Couchon was released from custody on March 23, 2016. Pl.’s Opp’n,

Dkt #40 at 2. On October 13, 2016, Couchon filed this Complaint alleging

violations of (1) the Federal Civil Rights Act, 42 U.S.C. § 1983 (excessive force

and unconstitutional conditions of confinement), (2) the Massachusetts Civil

Rights Act, Mass. Gen. Laws ch. 12, § 11I (excessive force), (3) Articles I, X,

and XII of the Massachusetts Declaration of Rights, and (4) common-law

claims of assault and battery and intentional infliction of emotional distress.

Compl. ¶¶ 56-74.

STANDARD OF REVIEW

Summary judgment is appropriate when “the movant shows that 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). “[T]he mere existence of

some alleged factual dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment; the requirement is that

there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-248 (1986) (emphases in original). A material fact is one

which has the “potential to affect the outcome of the suit under the applicable

law.” Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir.

1993). In assessing the genuineness of a material dispute, the facts are to be

“viewed in the light most flattering to the party opposing the motion.” Nat’l

Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995). On

cross-motions for summary judgment, each motion is considered on its own

merits with all reasonable inferences being drawn in favor of the respective

non-moving party. See OneBeacon Am. Ins. Co. v. Commercial Union

Assurance Co. of Can., 684 F.3d 237, 241 (1st Cir. 2012).

DISCUSSION

Section 1983 Claims1

A. Excessive Force

Couchon asserts that Officer Jorge used excessive and unreasonable

force in violation of the Due Process Clause of the Fourteenth Amendment2

1 While defendants argue that Couchon failed to exhaust his

administrative remedies under the Prison Litigation Reform Act (PLRA), this

is an affirmative defense that was not raised by defendants in their Answer

and was therefore waived. See Soc’y of Holy Transfiguration Monastery,

Inc. v. Gregory, 689 F.3d 29, 58 (1st Cir. 2012) (“The law is clear that if an

affirmative defense is not pleaded pursuant to Fed. R. Civ. P.’s 8(c)

requirements, it is waived.”). The court denied defendants’ untimely attempt

to amend the Answer to include the defense for failure to show good cause.

See Dkt #43. In any event, Couchon had been released from custody at the

time he filed this Complaint, and the PLRA exhaustion requirement applies

only to persons who are prisoners at the time they file suit. See, e.g.,

Talamantes v. Leyva, 575 F.3d 1021, 1024 (9th Cir. 2009).

2 The Supreme Court has explained that the Due Process Clause of the

Fourteenth Amendment is the proper vehicle for an excessive force claim

by ordering Gunny to attack him. Defendants in response contend that

Officer Jorge is protected by qualified immunity. “A government official

sued under § 1983 is entitled to qualified immunity unless the official

violated a statutory or constitutional right that was clearly established at the

time of the challenged conduct.” Carroll v. Carman, 135 S. Ct. 348, 350

(2014) (per curiam). “This doctrine ‘gives government officials breathing

room to make reasonable but mistaken judgments,’ and ‘protects all but the

plainly incompetent or those who knowingly violate the law.’” Id., quoting

Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).

In determining whether a defendant is entitled to qualified immunity,

the court applies a two-part test:

First, we inquire 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 citation omitted).

brought by a pretrial detainee, see, e.g., Kingsley v. Hendrickson, 135 S. Ct.

2466 (2015), while the Eighth Amendment’s Cruel and Unusual Punishment

Clause governs claims brought by convicted prisoners.

In order to make out a prima facie case of a Fourteenth Amendment

excessive force claim, “[a] pretrial detainee must show only that the force

purposely or knowingly used against him was objectively unreasonable.”

Kingsley, 135 S. Ct. at 2473 (emphasis added). The facts of the present case,

viewed in the light most favorable to Couchon, make out a plausible violation

of Couchon’s constitutional rights. According to the K-9 Review Board, there

were ten “ECSD officers . . . in close proximity to the altercation,” and two

officers, including Lt. Carafa, “were already subduing the inmates” when

Officer Jorge arrived with his dog. Pl.’s SOF, Ex. 10. Couchon was face-down

on the floor, and “[n]one of the officers appeared to be in imminent danger.”

Id. Officer Jorge nonetheless ordered Gunny to bite Couchon. The Review

Board unanimously agreed that “the K-9 [Gunny] should not have been

deployed in this manner.” Id. Compounding matters, the Review Board

observed that instead of preserving safety and order, Officer Jorge’s actions

compromised institutional security. Officer Jorge had left “a large group of

inmates . . . unattended in the weight training area,” which “created a very

unsafe environment.” Id. Officer Jorge’s actions – viewed again in the light

most favorable to Couchon – could be found by a jury to have been

objectively unreasonable under the circumstances.

Finding that the first prong of the qualified immunity test is satisfied,

the court now turns to the issue of whether “the violated right was clearly

established at the time that the offending conduct occurred.” Ford, 768 F.3d

at 23. Whether the constitutional right asserted by a plaintiff is “clearly

established” is a matter of law for the court. Siegert v. Gilley, 500 U.S. 226,

232 (1991). The Supreme Court has recently cautioned that when analyzing

qualified immunity in the context of an excessive force claim, a court is to

proceed carefully. Because of the fact-intensive nature of the inquiry, the

qualified immunity doctrine has special force. See Kisela v. Hughes, 138 S.

Ct. 1148, 1152-1153, 1154 (2018) (per curiam) (cautioning courts against

undue generality in their approach and noting that under its precedent

officers are entitled to qualified immunity unless a prior case “squarely

governs,” and further cautioning that “a reasonable officer is not required to

foresee judicial decisions that do not yet exist in instances where the

requirements of the Fourth Amendment are far from obvious”). See also

Danese v. Asman, 875 F.2d 1239, 1242 (6th Cir. 1989) (“The right in question

. . . cannot be simply a generalized right, like the right to due process. . . . It

must be clearly established in a ‘particularized’ sense, so that ‘the contours

of the right' are clear enough for any reasonable official in the defendant's

position to know that what the official is doing violates that right.”), quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987).

As a general proposition, “pretrial detainees (unlike convicted

prisoners) cannot be punished at all, much less ‘maliciously and

sadistically.’”3 Kingsley, 135 S. Ct. at 2475, quoting Ingraham v. Wright,

430 U.S. 651, 671-72 n.40 (1977). Less clear, however, is whether the

deployment of a properly trained police dog under the circumstances Officer

Jorge found himself in was clearly forbidden by established law.

In the context of subduing a fleeing or uncooperative suspect, the law

has been relatively forgiving of the police. See Jarrett v. Town of Yarmouth,

331 F.3d 140, 148 (1st Cir. 2003) (declining to find the release of a dog trained

to “bite and hold” either a use of deadly force or per se unlawful); Chew v.

Gates, 27 F.3d 1432, 1447 (9th Cir. 1994) (same); Robinette v. Barnes, 854

3 Defendants’ argument that Couchon’s injuries were de minimis and

therefore not actionable fails, in part because the record establishes that

Couchon suffered injuries that, while not grave, were palpable and left

emotional scars. Cf. Bastien v. Goddard, 279 F.3d 10, 14 (1st Cir. 2002)

(“Although the severity of the injury also may be considered . . . we have

stated explicitly that a ‘serious injury’ is not a prerequisite to recovery.”); see

also Chambers v. Pennycook, 641 F.3d 898, 906 (8th Cir. 2011) (“[I]t may

well be that most plaintiffs showing only de minimis injury can show only a

corresponding de minimis use of force . . . [but] [t]he degree of injury should

not be dispositive.”). Excessive force claims can comprehend emotional as

well as physical injuries. McDonald v. Haskins, 966 F.2d 292, 294 (7th Cir.

1992).

F.2d 909, 912 (6th Cir. 1988) (same); Vathekan v. Prince George’s Cty., 154

F.3d 173, 178-179 (4th Cir. 1998) (same, so long as a verbal warning is given

before the dog is released); compare Campbell v. City of Springboro, Ohio,

700 F.3d 779, 789 (6th Cir. 2012) (inadequately trained dog unleashed

without warning).

As previously noted, the Supreme Court has instructed that “[a]

pretrial detainee must show only that the force purposely or knowingly used

against him was objectively unreasonable.” Kingsley, 135 S. Ct. at 2473. This

determination is to be made “from the perspective of a reasonable officer on

the scene, including what the officer knew at the time,” as well as the need

“to preserve internal order and discipline and to maintain institutional

security.” Id., see also Graham v. Connor, 490 U.S. 386, 396-97 (1989)

(“The calculus of reasonableness must embody allowance for the fact that

police officers are often forced to make split-second judgments — in

circumstances that are tense, uncertain, and rapidly evolving — about the

amount of force that is necessary in a particular situation.”). Here, as the

Review Board noted in its decision, Officer Jorge was operating in “a stressful

situation,” and concerned that Couchon was concealing a weapon. See Roy

v. City of Lewiston, Maine, 42 F.3d 691, 695 (1st Cir. 1994) (“[W]hether

substantive liability or qualified immunity is at issue, the Supreme Court

intended to surround the police who make these on-the-spot choices in

dangerous situations with a fairly wide zone of protection in close cases.”).

Under the circumstances, I find that the law as it existed at the time

Officer Jorge unleashed Gunny (as is still the case today) does not clearly

establish the unreasonableness of using a trained dog to subdue a

noncompliant inmate. I therefore conclude that Officer Jorge is entitled to

qualified immunity.

B. Respondeat Superior and Failure to Supervise

Because it is possible, albeit in “rare cases,” for a supervisor or a

municipal employer to be liable where an officer has been granted good-faith

qualified immunity in spite of a constitutional violation, see Walker v.

Waltham Hous. Auth., 44 F.3d 1042, 1047 (1st Cir. 1995), I will briefly

address Couchon’s supervisory liability claims. Couchon contends that

Sheriff Cousins and Superintendent Marks failed to “properly supervise,

train, and discipline K-9 officers, including Officer Jorge . . . causing the use

of excessive force.” Compl. ¶ 59. Under section 1983, “supervisory law

enforcement officers incur no respondeat superior liability for the actions of

their subordinates.” Hegarty v. Somerset Cty., 53 F.3d 1367, 1379 (1st Cir.

1995). Rather, absent direct participation on the part of the supervisor in the

challenged conduct at issue,

[a] supervisor “can be held liable . . . [only] if (1) the behavior of

[his] subordinates results in a constitutional violation and (2) the

[supervisor’s] action or inaction was ‘affirmative[ly] link[ed]’ to

the behavior in the sense that it could be characterized as

‘supervisory encouragement, condonation or acquiescence’ or

‘gross negligence [of the supervisor] amounting to deliberate

indifference’” . . . . Deliberate indifference will be found only if “it

would be manifest by any reasonable official that his conduct was

very likely to violate an individual’s constitutional rights” . . . .

The “affirmative link” requirement contemplates proof that the

supervisor’s conduct led inexorably to the constitutional

violation.

Id. at 1379-1380 (emphases in original) (internal citations omitted). In his

opposition to summary judgment, Couchon offers no factual support

demonstrating a lack of training or supervision of K-9 handlers and their

dogs, much less any plausible evidence that Sheriff Cousins and

Superintendent Marks exhibited deliberate indifference or that their actions

were affirmatively linked to Officer Jorge’s conduct. This is true whether the

issue is a failure to provide Officer Jorge and K9 Gunny with adequate

training4 or one of ignoring warning signals that a constitutional violation

was likely to occur.5 Quite the contrary: “Officer Jorge and K-9 Gunny have

4 “Failure to train [must] reflect . . . deliberate indifference to the

constitutional rights of [the facility’s] inhabitants.” City of Canton v. Harris,

489 U.S. 378, 392 (1989).

5 “An important factor in determining whether a supervisor is liable to

the extent he has encouraged, condoned, acquiesced, or been deliberately

indifferent to the behavior of a subordinate, is whether the official was put

on notice of behavior which was likely to result in the violation of the

graduated from, and are certified by, the Boston Police Academy as a patrol

dog handler and K-9,” and “the record fails to allege even a single prior

incident which might have put either Cousins or Marks on notice that Jorge

and K-9 Gunny’s work was inadequate.” See Pl.’s SOF, Ex. 10; Defs.’ Mem.

at 17.

C. Unconstitutional Conditions of Confinement

Couchon claims – in the wake of the Supreme Court’s Kingsley

decision – that the court should follow those circuit courts that have adopted

a purely objective standard for assessing unconstitutional conditions of

confinement. More specifically, Couchon argues that ECCF’s K-9 policy, as

promulgated by Superintendent Marks and Sheriff Cousins, created an

unconstitutional condition of confinement which placed him at substantial

risk of serious harm. Defendants, for their part, contend that they are

protected from Couchon’s claims by qualified immunity.

Prior to the Supreme Court’s ruling in Kingsley, the First Circuit had

established a two-step analysis under the Fourteenth Amendment for a

pretrial detainee’s conditions of confinement claims:

First, the plaintiff must establish that, from an objective

standpoint, the conditions of his confinement deny him the

constitutional rights of citizens.” Febus-Rodriguez v. Betancourt-Lebron, 14

F.3d 87, 93 (1st Cir. 1994).

minimal measure of necessities required for civilized living . . . .

Second, the plaintiff must show that, from a subjective

standpoint, the defendant was deliberately indifferent to inmate

health or safety . . . . Deliberate indifference, in this sense, is a

mental state akin to criminal recklessness.

Suprenant v. Rivas, 424 F.3d 5, 18-19 (1st Cir. 2005). In Kingsley the

Supreme Court, ruling in an excessive force context, held that a “pretrial

detainee must show only that the force purposely or knowingly used against

him was objectively unreasonable,” essentially objectivizing the subjective

prong for excessive force claims brought by pretrial detainees. Kingsley, 135

S. Ct. at 2473. Several circuits have since carried the Kingsley analysis over

into conditions of confinement cases. The Second Circuit, for example, in

Darnell v. Pineiro, held that “Kingsley’s broad reasoning extends beyond the

excessive force context in which it arose.” 849 F.3d 17, 36 (2d Cir. 2017).

“The same objective analysis,” the Second Circuit reasoned, “should apply to

an officer’s appreciation of the risks associated with an unlawful condition of

confinement in a claim for deliberate indifference under the Fourteenth

Amendment.” Id. at 35. Similarly, the Ninth Circuit, sitting en banc, noting

“the broad wording of Kingsley,” opined that “[t]he Court did not limit its

holding to ‘force’ but spoke to ‘the challenged governmental action’

generally.” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1070 (9th Cir.

2016), quoting Kingsley, 135 S. Ct. at 2473. Accordingly, the Ninth Circuit

was “persuaded that Kingsley applies” to all claims “brought by pretrial

detainees against individual defendants under the Fourteenth Amendment.”

Castro, 833 F.3d at 1070.

While there is much to be said for the reasoning of the Second and

Ninth Circuits, in the absence of a Supreme Court decision squarely on point,

this court is bound by existing precedent in the First Circuit. In this circuit,

the deliberate indifference test contains both objective and subjective

components, as set out in Suprenant, supra. See also Burrell v. Hampshire

Cty., 307 F.3d 1, 7-8 (1st Cir. 2002). But in any event, whether Kingsley will

ultimately be extended by the First Circuit to encompass conditions of

confinement claims has no bearing on the outcome of this case.

As with the analysis of Officer Jorge’s qualified immunity defense, the

court must first determine whether Marks’s and Cousins’ actions – weighed

in the light most favorable to Couchon – make out a constitutional violation,

starting with the prison conditions themselves. There is “no static ‘test’ . . .

by which courts determine whether conditions of confinement are cruel and

unusual,” because the Eighth Amendment (and, as here, its Fourteenth

Amendment counterpart) “must draw its meaning from the evolving

standards of decency that mark the progress of a maturing society.” Rhodes

v. Chapman, 452 U.S. 337, 346 (1981), quoting Trop v. Dulles, 356 U.S. 86,

101 (1958) (plurality opinion). However, these “‘judgments should neither

be nor appear to be merely the subjective views’ of judges.” Id. at 352,

quoting Rummel v. Estelle, 445 U.S. 263, 275 (1980).

Courts cannot assume that . . . prison officials are insensitive to

the requirements of the Constitution or to the perplexing

sociological problems of how best to achieve the goals of the

penal function in the criminal justice system: to punish justly, to

deter future crime, and to return imprisoned persons to society

with an improved change of being useful, law-abiding citizens.

Id.

Even viewing the record in the light most favorable to Couchon, the

court cannot find that ECCF’s K-9 program rises to the level of a

constitutional deprivation of “the minimal measure of necessities required

for civilized living.” Ford, 768 F.3d at 23. While there are risks inherent in

maintaining a K-9 program throughout a prison – including the likelihood

of bites and even serious injury to inmates – courts give prison

administrators wide latitude in “achiev[ing] the goals of the penal function

in the criminal justice system,” finding unconstitutional conditions of

confinement in only the most egregious cases. Rhodes, 452 U.S. at 352;

compare Hutto v. Finney, 437 U.S. 678, 682 (1978) (affirming

unconstitutional conditions of confinement claim for sustained “punitive

isolation” and starvation); Rivas, 424 F.3d at 19 (upholding unconstitutional

conditions of confinement claim for “around-the-clock segregation,”

withholding of hygienic services, and multiple daily strip-searches). As

nothing in the record suggests that Couchon’s prison experience approaches

this high bar, the conditions of confinement claim fails.

Remaining State Law Claims

As the First Circuit has recently noted, “when all federal claims have

been dismissed, it is an abuse of discretion for a district court to retain

jurisdiction over the remaining pendent state law claims if doing so would

not serve ‘the interests of fairness, judicial economy, convenience, and

comity.’” Wilber v. Curtis, 872 F.3d 15, 23 (1st Cit. 2017), quoting Desjardins

v. Willard, 777 F.3d 43, 45-46 (1st Cir. 2015); see also Carnegie-Mellon Univ.

v. Cohill, 484 U.S. 343, 350 n. 7 (1988) (“[I]n the usual case in which all

federal-law claims are eliminated before trial, the balance of factors to be

considered under the pendent jurisdiction doctrine – judicial economy,

convenience, fairness, and comity – will point toward declining to exercise

jurisdiction over the remaining state law claims.”). Because the court finds

the entry of summary judgment in favor of the defendants to be appropriate

as to the sole federal law count contained in the Complaint, the remaining

state law claims will be remanded to Suffolk Superior Court for further

proceedings, as to the merits of which the court takes no position.

ORDER

For the foregoing reasons, defendants’ motion for summary judgment

is ALLOWED with respect to Count One. Couchon’s partial motion for

summary judgment is DENIED. The remaining claims brought under state

constitutional, statutory, and common law are REMANDED to the Superior

Court for further proceedings.

SO ORDERED.

/s/ Richard G. Stearns____________

UNITED STATES DISTRICT JUDGE