Schultz v. Doher

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

JASON J. SCHULTZ,

Plaintiff,

No. 16-CV-12311-DLC

v.

GLENN A. DOHER, et al.,

Defendants.

MEMORANDUM & ORDER

CABELL, U.S.M.J.

Pro se plaintiff Jason Schultz contends that prison guards

violated his constitutional rights in the course of removing him

from his cell. Pending before the court is the Defendants’ Motion

to Dismiss and/or For Summary Judgment. (Dkt. No. 36) For the

following reasons, the motion will be granted in part and denied

in part.

I. THE PARTIES

The events underlying the lawsuit occurred in 2015 when the

plaintiff was incarcerated at the Souza-Baranowski Correctional

Center (SBCC) in Shirley, Massachusetts. Defendant Glenn Doher

was at all relevant times a Department of Correction (DOC) officer

with the rank of captain. Defendant James J. Tetreault was a DOC

officer with the rank of Sergeant. Defendants Eric Phattamachak1

and Joshua Frates were DOC officers.

II. RELEVANT FACTUAL BACKGROUND

As no discovery has yet taken place, and as neither party has

submitted a traditional statement of facts, the court begins by

describing the major sources of the facts recited below.

The defendants’ memorandum “incorporates by reference”

affidavits submitted by defendants Doher, Tetreault, Frates,

Phattamachak, and a prison investigator named Jamie Brousseau.

Defendant Doher’s affidavit in turn incorporates several other

documents, including separate incident reports written by

defendants Tetreault, Frates, Phattamachak, and two other officers

who were present but are not named as defendants. Each of the

defendant officers in turn submits an affidavit in which he adopts

and authenticates his own incident report.

Defendant Doher also appends the report of two social workers

who spoke with the plaintiff prior to his being removed from his

cell, the report of a nurse who treated the plaintiff after the

removal, various disciplinary reports against Schultz, the inmate

grievance form submitted by Schultz, as well as the results of the

investigation of that grievance, and a video of the removal

incident. The reports of the nurse and social worker are arguably

1 Officer Phattamachak’s name is spelled differently throughout the pleadings;

the court uses the spelling that is provided on the docket.

inadmissible hearsay for Rule 56 purposes where neither has

submitted an affidavit, but the social worker’s interactions with

the plaintiff are also captured on the video.

As for the plaintiff, he submits two documents, including (1)

a “Plaintiff’s Statement of Disputed Factual Issues” and (2) a

“Declaration in Opposition to Defendants’ Motion for Summary

Judgment.” Although the statement of disputed issues is “short

and concise,” it is not “supported by appropriate record citations”

as required by Local Rule 56.1(a). However, the plaintiff repeats

the principal alleged disputed facts in his Declaration, and that

document, while containing some factual assertions not supported

in the record, has been verified by the plaintiff pursuant to 28

U.S.C. § 1746. Accordingly, the court will rely on assertions in

these documents to the extent they appear to be based on the

plaintiff’s personal knowledge.

A. The Incident

On April 6, 2015, the plaintiff was speaking to his attorney

by telephone when the call “was internally cut–off due to an error

with the phone system.” (Plaintiff’s Declaration In Opposition to

Defendant’s Motion to Dismiss and/or For Summary Judgment,

[Plaintiff’s Declaration], ¶ 6). Sergeant Tetreault refused to

reconnect the call and the plaintiff in response blocked the window

of his cell with his mattress, an act that is prohibited for safety

reasons. (Id. at ¶¶ 7-8; Affidavit of James Tetreault [Tetreault

Aff.], ¶ 3). The parties agree that DOC officers convened outside

the plaintiff’s cell at approximately 12:50 p.m. to address the

situation but offer different versions of what happened

thereafter.

i. The Defendants’ Version

According to the defendants, Sergeant Tetreault was informed

at approximately 12:50 p.m. that Schultz had covered his cell door

window and was asking to speak with a mental health clinician.

(Tetreault Aff., at ¶ 3). Sergeant Tetreault went to Schultz’s

cell and ordered him to uncover the window. (Id. at ¶¶ 5-6).

Schultz repeatedly cursed at Tetreault and refused to comply, and

dared the staff to physically remove him from his cell.2 (Id. at

¶¶ 6, 11, 13). Sergeant Tetreault again asked Schultz to comply

with his order, and offered him the opportunity to contact his

attorney at a later time. Schultz refused both offers. (Id. at

¶¶ 7, 10). Sergeant Tetreault and two mental health clinicians

then spent several minutes in an unsuccessful attempt to persuade

the plaintiff to comply and uncover his window. (Id. at ¶¶ 11-

16). After one last unsuccessful request to Schultz, Sergeant

Tetreault at approximately 1:25 p.m. radioed for assistance. (Id.

at ¶ 19).

2 Such statements included: “I’m all set. I’m not uncovering shit”; “It’s too

late to f**king talk now. I’m not coming out, and bring on the move team”;

and “It’s too late to talk now. I’m going all the way with this, and bring on

the move team.”

A “Move Team,” which included Officers Tetreault, Frates,

Phattamachak and a fourth unidentified officer, donned protective

gear and convened outside Schultz’s cell. Based on authorization

from Captain Doher, the team prepared to administer a chemical

agent into Schultz’s cell in order to subdue and remove him. (Id.

at ¶¶ 20-22). Sergeant Tetreault warned Schultz of the impending

use of the chemical agent and, after receiving no response from

Schultz, administered the agent through the crack at the top of

the door. (Id. at ¶¶ 22-23). After issuing another warning,

Tetreault administered a second blast. The blasts proved

ineffective because Schultz continued to block the door with his

mattress. (Id. at ¶ 24).

After the second application of the chemical agent, Sergeant

Tetreault continued to issue commands to Schultz to come to the

door but Schultz did not comply. (Id. at ¶ 25). The team opened

the cell door, although it was initially difficult to open because

objects had been placed in the door track. (Id. at ¶ 26). Once

opened, the team entered the cell and saw Schultz standing “at the

back of the cell in a fighting stance.” Schultz then began to

move forward. (Id. at ¶¶ 27-28; Affidavit of Eric Phattamachak

[Phattamachak Aff.] ¶ 4). The plaintiff charged towards Officer

Phattamachak, who protected himself with the shield and guided

Schultz to the floor, where he was restrained. (Id. at ¶ 4).

Schultz was then removed from the cell to be treated by the medical

staff.

ii. The Plaintiff’s Version

According to Schultz, Sergeant Tetreault ordered him to

submit to being removed from his cell but he declined. (Id. at ¶¶

18-19). Sergeant Tetreault told him that a Move Team was prepared

to use a chemical agent in order to subdue the plaintiff if he did

not comply. (Id. at ¶¶ 20, 27). Subsequently, Sergeant Tetreault

administered an initial burst of the chemical agent through the

top of the door and it forced the plaintiff to “the center of cell”

“with his back to the door, eyes shut, burning from contact” with

the chemical agent. (Id. at ¶ 21). Schultz then removed a mattress

from the door, apparently to reposition it to better prevent the

agent from hitting him in the face. (Plaintiff’s Decl. at ¶ 9).

Without warning, though, Sergeant Tetreault administered another

burst of the chemical agent which caused the plaintiff to suffer

“severe pain in his chest and burning on his exposed skin.”

(Compl. at ¶¶ 22, 26).

After the second spray, the door to plaintiff’s cell was

opened and the Move Team entered, consisting of Tetreault, Frates,

Phattamachak and others. (Id. at ¶¶ 23, 28). Officer

Phattamachak’s poly-captor shield struck the plaintiff “with

enough force to knock [him] airborne” into a metal desk in his

cell. (Id. at ¶ 29). Schultz went to the ground and Officer

Frates “smashed” the plaintiff’s face onto the floor four times,

and struck him five times with closed fist punches to the side of

his head. (Id. at ¶ 31). Schultz maintains that he never

physically resisted during the incident. (Id. at ¶¶ 17, 30).

Schultz was ultimately placed in leg and hand restraints and

transported to the Trauma Room in the prison’s infirmary for a

medical evaluation. Id. at ¶ 33.

Complementing the parties’ respective accounts, a camera

filmed events outside the cell but did not record any sound.

Consistent with the parties’ narratives, the film shows an officer

emitting a short burst of a chemical agent into the cell and, after

an interval of several seconds, emitting a second short burst.

Five officers dressed in protective gear then enter the cell while

a sixth officer in regular uniform stands outside, and eventually

walks away. One of the five officers who entered emerges briefly

after a minute and then reenters the cell several seconds later.

After an overall total of approximately 90 seconds inside the cell,

the officers and Schultz walk out of the cell. Schultz is in full

hand and leg restraints and is noticeably bleeding from an unseen

head wound. Blood extends from his forehead to his lip, and his

right eye appears to be red and puffy

Following the incident, Dr. Somers assessed Schultz and noted

an abrasion 1.5 centimeters in diameter on Schultz’s temple and a

superficial laceration approximately 1 centimeter in length above

the other temple. (Affidavit of Glenn Doher [Doher Aff.] ¶ 11).

Both areas were cleaned and Dr. Somers applied steri-strips to the

lacerations. (Id.) Schultz did not mention any other medical

related complaints. (Id.). Schultz also refused a shower after

being medically cleared to return to his cell. Once there, his

restraints were removed and he was secured in his cell. (Id. at

¶¶ 30-31). Schultz later apologized to the staff for his actions

and stated that “he was just having a bad day.” (Id. at ¶ 32).

B. The Grievance

Schultz filed an internal grievance the following day. He

claimed that he was “viciously beaten by unknown officers” and he

requested an investigation. (Dkt. No. 43-4, Ex. D: Inmate

Grievance Form). On April 17, 2015, staff from DOC’s Internal

Affairs section interviewed the plaintiff again but he had nothing

new to add.

On April 29, 2015, a prison investigator reported that he was

extending the length of time of Schultz’s grievance by ten days

“to further research the matter.” Id., at pg. 5.

The investigation apparently continued longer than that. On

September 23, 2015, another prison investigator named Jamie

Brousseau attempted to interview the plaintiff concerning his

allegations of maltreatment. (Affidavit of Jamie Brousseau

[Brousseau Aff.] ¶ 2). According to Brousseau, when Schultz was

asked to describe what happened that day, he replied “I don’t want

to speak on this incident.” When asked why he refused to comment

he said “just don’t want to speak on it.” When asked if he would

answer any questions he said no, that he would not. Brousseau

then ended the interview. (Id. ¶¶ 4-6).

On September 25, 2015, the investigation resulted in a finding

that the plaintiff’s use of force allegation was unfounded. The

finding was based in large part on the fact that “Schultz did not

identify any specific officer as using excessive force and when

interviewed to find out more detail, Schultz refused to comment.”

(Dkt. No. 43-5, Exhibit E: Investigation Report, pg. 12).

III. THE COMPLAINT

The complaint asserts three violations of Schultz’s

constitutional rights pursuant to 42 U.S.C. § 1983. Paraphrasing,

Count I alleges that officers Tetreault, Phattamachak, and Frates

used excessive physical force and a dangerous chemical agent in

removing the plaintiff from his cell, in violation of his Eighth

Amendment right to be free from cruel and unusual punishment.

Count II alleges that Sergeant Tetreault failed to determine that

the plaintiff was “hyper sensitive” to “chemical agents” and thus

was deliberately indifferent to the plaintiff’s serious medical

needs. Finally, Count III alleges a general claim against Captain

Doher for his involvement in the underlying incident.

IV. LEGAL STANDARD

Where a party on a motion to dismiss for failure to state a

claim presents matters outside the pleadings, the motion shall be

treated as one for summary judgment and disposed of as provided in

Rule 56 after the parties have been given a “reasonable opportunity

to present all material made pertinent to such a motion by Rule

56.” Fed. R. Civ. P. 12(b). In that regard, the plaintiff has

not complained in opposing the defendants’ motion that he has not

been given a reasonable opportunity to present any desired evidence

to the court.

When the court is presented with a motion for summary

judgment, it shall grant it “if the movant shows that there is no

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

to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The

moving party bears the initial burden of “assert[ing] the absence

of a genuine issue of material fact and then support[ing] that

assertion by affidavits, admissions, or other materials of

evidentiary quality.” Mulvihill v. Top-Flite Gold Co., 335 F.3d

15, 19 (1st Cir. 2003). Once the moving party meets that burden,

in order to avoid summary judgment, the opposing party must “show

that a factual dispute does exist, but summary judgment cannot be

defeated by relying on improbable inferences, conclusory

allegations, or rank speculation.” Fontanez-Nunez v. Janssen

Ortho LLC, 447 F.3d 50, 54-55 (1st Cir. 2006)(quoting Ingram v.

Brink’s Inc., 414 F.3d 222, 228-29 (1st Cir. 2005)). Indeed, the

opposing party must “produce specific facts, in suitable

evidentiary form, to establish the presence of a trail worthy

issue.” Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir.

2006)(quoting Triangle Trading Co. v. Robroy Indus. Inc., 200 F.3d

1, 2 (1st Cir. 1999)).

When determining whether summary judgment is appropriate, “a

court must view the record in the light most favorable to the

nonmoving party and give that party the benefit of all reasonable

inferences in its favor.” Id.(citing Nocolo v. Philip Morris,

Inc., 201 F.3d 29, 33 (1st Cir. 2000)). The Federal Rules require

“the entry of summary judgment, after adequate time for discovery

and upon motion, against a party who fails to make a showing

sufficient to establish the existence of an element essential to

that party’s case, and on which that party will bear the burden of

proof at trial.” Celotex Corp v. Catrett, 477 U.S. 317, 322

(1986)(citing Fed R. Civ. P. 56)). “Where the record taken as a

whole could not lead a rational trier of fact to find for the

nonmoving party, there is no genuine issue for trial.” Scott v.

Harris, 550 U.S. 372, 380 (2007)(quoting Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986))(internal

quotation marks omitted).

V. ANALYSIS

A. Failure to Exhaust Administrative Remedies

The defendants argue as a threshold matter that Schultz has

failed to exhaust his administrative remedies. They argue that

because his grievance did not mention the use of a chemical agent,

he has not exhausted his remedies with respect to any claim

implicating its use. They argue also that Schultz failed to

provide “a complete statement of facts relevant to the grievance”

and that this failure coupled with his subsequent refusal to fully

cooperate with the investigator should be treated as a failure to

follow the process through to resolution.

Under the Prison Litigation Reform Act of 1995 ("PLRA"), 42

U.S.C. § 1997e(a), “[n]o action shall be brought with respect

to prison conditions under 42 U.S.C. § 1983...or any other Federal

law, by a prisoner...until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a). This limitation

on the ability of prisoners to sue “applies to all inmate suits

about prison life, whether they involve general circumstances or

particular episodes, and whether they allege excessive force or

some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, (2002).

The DOC's grievance policy requires “a brief statement of

facts.” 103 C.M.R. 491.09(2)(d). It states that “inmates may

process their grievance by obtaining an institution grievance

form.” 103 C.M.R. 491.09(1). The grievance must be filed within

ten working days of the actual incident. 103 C.M.R. 491.08(4).

The Institutional Grievance Coordinator must “interview the inmate

and, if appropriate, the staff person responsible for the area

where the problem occurred.” 103 C.M.R. 491.10(1)(c).

The primary purpose of a grievance system is to alert prison

officials of problems, not to act as notice that a particular

prison official may be sued. Mallory v. Marshall, 659 F. Supp. 2d

231, 238 (D. Mass. 2009). Massachusetts regulations also do not

require that inmates list causes of action in a grievance. See

Faust v. Cabral, 2013 WL 3933021, at *3 (D. Mass. July 30, 2013).

Thus, in order to determine whether an agency received sufficient

notice “to investigate and consider all grounds” for the prisoner’s

complaint, the Court looks to see whether the “claims in the

complaint are ‘like or reasonably related’ to the allegations in

the grievance.”

Accepting that Schultz could have been more complete in

articulating the nature of his grievance, and more solicitous and

verbose in conveying details underlying the grievance to the

investigators, the court cannot find that he failed to exhaust his

administrative remedies. The relevant inquiry in determining

whether a grievant’s administrative claims were adequate is

whether they were “like or reasonably related” to the claims

brought in the present action, which turns on a consideration of

“whether a reasonable investigation of the administrative claim

would have uncovered the allegations of the civil rights

complaint.” See Carter v. Symmes, No. 06-10273-PBS, 2008 U.S.

Dist. LEXIS 7680, at * 10 (February 4, 2008)(citing Villegas v.

Robinson, No. CIVSO22225FCDPANP, 2005 WL 1683934, at *2 (E.D. Cal.

July 12, 2005). Courts have liberally applied the “like or

reasonably related” exception in PLRA failure to exhaust claims.

Compare Garcia v. Mule Creek State Prison, No. S 03-1947 MCEPANP,

2005 WL 1366515, at *2 (E.D. Cal. May 31, 2005) (holding that a

prisoner's grievance alleging a discrete instance of deficient

medical care was sufficient to cover all claims arising from his

ongoing course of treatment because the claims were factually

similar, and thus reasonably related, despite the temporally vague

nature of the prisoner's later-alleged claims), with Sheptin v.

United States, No 99 C 8459, 2000 WL 1788512, at *3 (N.D. Ill. Dec

5, 2000) (finding the reasonably related exception inapplicable

where the original grievance alleged inadequate medical care and

plaintiff-prisoner later sought to add factually different claims

for, among other things, harassment by prison employees, filing of

a false incident report, and failure to comply with a subpoena).

Here, Schultz submitted an administrative complaint alleging

that officers had beaten him in the course of removing him from

his cell. Even though Schultz failed to identify the officers

involved or to reference the use of a chemical agent, the officers

wrote incident reports summarizing the incident and noted

explicitly that a chemical agent was used. Presuming that the

prison’s investigation of Schultz’s complaint necessarily included

a review of the officers’ incident reports, it follows that the

excessive force investigation incorporated the fact that officers

who were identified used a chemical agent. Consequently, the court

finds no basis to conclude that the plaintiff meaningfully failed

to exhaust administrative remedies.

B. Excessive Force Claim

Turning then to the plaintiff’s specific claims, the

defendants argue that they are entitled to judgement on the

plaintiff’s excessive force claim because the use of force was de

minimis and was for a “justifiable penological purpose…with all

contact being incidental to the restraint and extraction of Schultz

from his cell in as efficient a manner as possible.” The

defendants argue that a physical confrontation occurred only

because Schultz refused their entreaties that he comply, and that

his injuries were inadvertent and occurred as an “unintended and

unforeseen consequence” of Schultz’s recalcitrance. As noted

above, though, Schultz contends that although he declined to leave

his cell when asked, that he was standing with his back to the

door when they entered, and that he did not resist the officers’

advances. He contends that Officer Phattamachak nonetheless hit

him with his shield with enough force to knock him airborne into

a metal desk causing a head wound. He also alleges that Frates

smashed Schultz’s face into the concrete floor, and that Sergeant

Tetreault used excessive force when he sprayed a chemical agent

into Schulz’s cell.

Where an excessive force claim arises in the context of an

inmate’s interactions with correction officers, it is most

properly characterized as one invoking the protections of the

“cruel and unusual punishment” clause of the Eighth Amendment.

See Framer v. Brennan, 511 U.S. 825, 832 (1994); Maraj v.

Massachusetts, 836 F. Supp. 2d 17, 26 (D. Mass. 2011). The

relevant inquiry when such a claim is made is whether “force was

applied in a good-faith effort to maintain or restore discipline,

or maliciously and sadistically to cause harm.” Orwat v. Maloney,

360 F. Supp. 2d 146, 153 (D. Mass. 2005)(quoting Hudson v.

McMillian, 503 U.S. 1, 6-7 (1992)). “Factors such as the need for

application of force, the relationship between the need and the

amount of force used, the threat reasonably perceived by the

responsible officials, and any efforts made to temper the severity

of a forceful response are relevant in determining whether a prison

official used excessive force.” Perry v. Dickhaut, 125 F. Supp.

3d 285, 296 (D. Mass. 2015)(quoting Hudson, 503 U.S. at 7).

Applied here, there is a dispute of material fact as to

whether the defendants used force in a good faith effort to effect

the plaintiff’s compliance or to maliciously and sadistically

cause him harm. Although the court agrees that the defendants

would be entitled to judgment if the facts are as they allege them,

a reasonable juror crediting the plaintiff’s version of events

could conclude that the officers applied more force than was

necessary to bring about his removal, and that “such use of [force]

on a defenseless and non-resistant inmate was non de minimis force

applied maliciously and sadistically for the very purpose of

causing harm, rather than in a good-faith effort to maintain or

restore discipline.” Summary judgment is therefore not

appropriate on this claim. See Perry, 125 F. Supp. 3d at

297(finding excessive force where the plaintiff was not resisting

forced entry or being placed in restraints)(internal citations

omitted).

The defendants argue that they should be entitled to qualified

immunity even assuming they did use excessive force. Qualified

immunity serves as a shield to government officials “from liability

for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). It does not, however, shield public

officials who, from an objective standpoint, should have known

that their conduct was unlawful. Haley v. City of Boston, 657

F.3d 39, 47 (1st Cir. 2011). Courts use a two-part test to

determine whether qualified immunity applies: (1) whether the

facts alleged by the plaintiff make out a violation of a

constitutional right; and if so (2) whether the right was clearly

established at the time of the alleged violation. MacDonald v.

Town of Eastham, 745 F.3d 8, 11 (1st Cir. 2014).

Here, and as noted above, there is a genuine dispute of

material fact as to whether defendants Frates, Phattamachak, and

Tetreault used excessive force in subduing and removing the

plaintiff from his cell. Assuming a jury were to conclude that

they did, the law was clearly established at the time of the

incident that a prison official cannot use excessive force on an

inmate for the sole purpose of causing harm. See Perry, 125 F.

Supp. 3d at 298 (“It was clearly established in 2010 that a prison

official may not inflict unnecessary and wanton pain and suffering

by using force against an inmate maliciously and sadistically for

the very purpose of causing harm.”); Nascarella v. Cousins, No.

13-cv-10878-IT, 2015 WL 1431054, at *6 (D. Mass. Mar. 27,

2015)(“Eighth Amendment precedent predating July 3, 2012, clearly

prohibits the unjustified use of force against prisoners.”). It

follows that the defendants are thus not entitled to qualified

immunity here.

C. Medical Indifference Claim

The plaintiff alleges in Count II that Sergeant Tetreault was

deliberately indifferent to his medical needs because the officers

knew he had asthma but nonetheless used a chemical agent as part

of the plan to effect his removal. In order to prove an Eighth

Amendment violation based on deliberate indifference, a prisoner

must show that the official: (1) engaged in “objectively,

sufficiently serious” conduct; and (2) acted with “deliberate

indifference” to an inmate's health or safety. Calderon-Ortiz v.

LaBoy-Alvarado, 300 F.3d 60, 64 (1st Cir. 2002)(citing Farmer v.

Brennan, 511 U.S. 825, 834 (1994)).

The court finds that the plaintiff cannot prove deliberate

indifference on this record. Even assuming arguendo that the use

of a chemical agent on an inmate with asthma could constitute

objectively serious conduct, there is no evidence that Sergeant

Tetreault acted with deliberate indifference to the plaintiff’s

safety here. On the contrary, the record supports a finding that

Sergeant Tetreault and others were demonstrably not indifferent to

the plaintiff’s safety. They implored the plaintiff to exit his

cell and unambiguously warned him that they would have to use an

agent if he refused. Moreover, when the plaintiff did refuse and

an agent was used, the video makes plain that it was used briefly

and sparingly. Further, while not dispositive, it is notable that

the plaintiff did not appear to be in any distress when he emerged

from the cell, did not seek medical treatment for irritation from

the agent, and did not complain about the use of a chemical agent

when he submitted his grievance. Indeed, the plaintiff does not

meaningfully address this portion of the defendants’ motion in his

opposition. Summary judgment will therefore enter in Sergeant

Tetreault’s favor on this claim.

D. Supervisory Liability Claim

Count III alleges a claim against Captain Doher but the court

cannot readily discern its specific nature or scope. The complaint

alleges (1) that Captain Doher authorized the use of a chemical

agent, (2) that he “was in a position to prevent” [the officers]

from maliciously and sadistically inflicting harm” on the

plaintiff but failed to intervene or report it, (3) that he “has

routinely overlooked” incidents of excessive force on other

prisoners, and (4) that he has been the shift commander in at least

one other incident where the plaintiff also alleged excessive

force.

It is not clear whether the plaintiff intends for each of

these assertions to be read separately, that is, to allege four

separate claims against Captain Doher, or alternatively to be read

together to assert one specific claim. If it is the former, the

claims are too conclusory and vague to state a viable claim for

relief. If it is the latter, it remains unclear whether the

plaintiff is alleging a failure to supervise or a failure to train,

or asserting a claim of excessive force or deliberate indifference.

The court therefore will dismiss count III for failure to state a

viable claim, but without prejudice, subject to the plaintiff’s

ability to amend to set out a short and plain statement of the

claim showing that the plaintiff is entitled to relief. Fed. R.

Civ. P. 8(a)(2); see McDonald v. Hall, 610 F.2d 16 (1st Cir.

1979)(the court is not required to "conjure up unpled allegations,"

notwithstanding the duty to be less stringent with pro se

complaints); Chandler v. Greater Boston Legal Servs., No. 13-

12979-GAO, 2013 U.S. Dist. LEXIS 173919, at *9 (December 10,

2013)(citing Terrance v. Cuyahoga County, No. 1:05CV1926, 2005

U.S. Dist. LEXIS 48466, at *1 (N.D. Ohio 2005)(finding that

requiring "[the courts] to explore exhaustively all

potential claims of a pro se plaintiff, ... would ... transform

the district court from its legitimate advisory role to the

improper role of an advocate seeking out the strongest arguments

and most successful strategies for a party.").

VI. CONCLUSION

For the foregoing reasons, the Defendants’ Motion for Summary

Judgment (Dkt. No. 36) will be GRANTED IN PART and DENIED IN PART.

Specifically, summary judgment is DENIED on Count I and GRANTED on

Count II. Count III is DISMISSED, without prejudice, with 30 days

for leave to file an amended complaint that addresses the issues

noted here by the court.

SO ORDERED.

/s/ Donald L. Cabell

DONALD L. CABELL, U.S.M.J.

DATED: September 27, 2018