# Schultz v. Doher

> District Court, D. Massachusetts · September 27, 2018

URL: https://www.frixlaw.com/law-library/cases/10197074

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** September 27, 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/10197074

## How later opinions describe it (automated extraction)

- finding excessive force where the plaintiff was not resisting forced entry or being placed in restraints

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10197074. Public record. Not legal advice.