# MULLEN v. Department of Corrections of Massachusetts

> District Court, D. Massachusetts · November 28, 2022

URL: https://www.frixlaw.com/law-library/cases/10200688

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** November 28, 2022
- **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/10200688

## How later opinions describe it (automated extraction)

- applying Eighth Amendment standards to pre-trial detainee

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
JASON MULLEN, )
) CIVIL ACTION
Plaintiff, ) NO. 4:21-40116-TSH
)
v. )
)
DEPARTMENT OF CORRECTIONS OF )
MASSACHUSETTS, CHRISTOPHER )
PHILLIPS, JAMES GEARIN, WILLIAM )
STNAHOPE, JAMES TETREAULT, )
NICHOLAS CARPENO, ERICK )
COLSTON, MATTHEW BADJO, and )
DAVID BOURGEOIS, )
)
Defendants. )
______________________________________ )

ORDER AND MEMORANDUM ON DEFENDANTS’ MOTION TO DISMISS (Docket
No. 19)

November 28, 2022
HILLMAN, D.J.
Jason Mullen (“Plaintiff”) filed this action against the Massachusetts Department of
Corrections (“DOC”), Acting Superintendent Christopher Phillips1 (“Superintendent Phillips”),
Lieutenant James Gearin (“Lieutenant Gearin”), IIPS Officer William Stanhope (“Officer
Stanhope”), Sergeant James Tetreault (“Sergeant Tetreault”), Correctional Officer Nicholas
Carpeno (“Officer Carpeno”), Correctional Officer Erick Colston (“Officer Colston”),
Correctional Officer Matthew Badjo (“Officer Badjo”), and Correctional Officer David

1 Plaintiff refers to this defendant as “Phelps” throughout the complaint. The Court assumes the
name on the docket is correct.
Bourgeois (“Officer Bourgeois”), (collectively, “the defendants”) alleging various federal civil
rights claims and common law tort claims arising from an incident on November 21, 2018.2
Defendants move to dismiss all claims. (Docket No. 19). For the following reasons, the
Court grants in part and denies in part the motion.

Background
The following facts, taken from the complaint, are accepted as true. See Rosenberg v.
City of Everett, 328 F.3d 12, 15 (1st Cir. 2003). The plaintiff is incarcerated at Souza-
Baranowski. (Comp. at ¶ 8). In January 2017, the plaintiff participated in a riot at Souza-
Baranowski, after which he was transported to MCI – Walpole, charged criminally, and faced
disciplinary actions. (Id. at ¶¶ 18-23). Upon his return to Sousa-Baranowski in the summer of
2018, the plaintiff was regularly threatened by correctional officers for his participation in the
riot, including by Officer Carpeno. (Id. at ¶¶ 26-30).
On November 21, 2018, the plaintiff was removed from his cell and brought to the non-
contact visiting area and put in a temporary 4’ x 6’ cell while his cell was inspected. (Id. at ¶¶

32-33). Officer Stanhope informed Mullen that scratch marks were found on the floor of the cell
and the plaintiff was informed he would be restrained and escorted to the special management
unit. (Id. at ¶¶ 34-35). The plaintiff protested and said there were no scratch marks. (Id. at ¶ 36).
Five minutes later, Officer Stanhope returned with a video camera and the “Move Team”
including Lieutenant Gearin, Sergeant Tetreault, Officer Carpeno, Officer Colston, Officer

2 Counts I and V of the complaint allege failure to provide medical care against DOC, Count II alleges
excessive force against Officers Carpeno and Colston, Sergeant Tetreault and Superintendent Phelps,
Count III alleges a duty to intervene against Lieutenant Gearin, Sergeant Tetreault, and Officers
Stanhope, Badjo, and Bourgeois, Count IV alleges inadequate investigation against DOC, Count VI
alleges assault and battery against Officers Carpeno and Colston, and Count VII alleges intentional
infliction of emotional distress against Officers Carpeno and Colston.
Badjo, and Officer Bourgeois. (Id. at ¶¶ 38-40). Officer Stanhope contacted Superintendent
Phillips and requested the use of force including oleoresin capsicum (“O.C.”) spray, which
Superintendent Phillips granted. (Id. at ¶¶ 42-43). Sergeant Tetreault used O.C. spray, which
disabled the plaintiff. (Id. at ¶ 44). Although the plaintiff alleges he offered no resistance,

Officers Carpeno and Colston knocked the plaintiff to the floor then placed him in handcuffs and
leg irons. (Id. at ¶¶ 45-49). After the plaintiff was secured in handcuffs and leg irons, Officers
Carpeno and Colston both punched Mullen in the head 15-20 times, knocking the plaintiff
unconscious. When he regained consciousness, Officers Carpeno and Colston were still
punching him in the head. (Id. at ¶¶ 50-53). The other members of the move team did not
intervene. (Id. at ¶¶ 54-55). When Officers Carpeno and Colston eventually stopped beating him,
a gurney was required to move the plaintiff out of the room and into the medical ward and while
on the gurney, he lost consciousness. (Id. at ¶¶ 56, 61-62). The plaintiff alleges Officer Stanhope
averted the camera to avoid capturing the beating. (Id. at ¶ 93).
In the medical ward, the plaintiff was eventually revived. (Id. at ¶¶ 63-65). The plaintiff

complained of blurry vision in his right eye and was informed by the medical staff that his
injuries were serious, and a nurse told him that an ambulance was coming. (Id. at ¶¶ 67-69).
Lieutenant Gearin3 escorted the nurse away from the plaintiff’s earshot, and when the nurse
returned the plaintiff was informed the ambulance was cancelled. (Id. at ¶¶ 70-71). After the
ambulance was cancelled, the medical staff did not re-check the plaintiff’s eyes or vital signs and
he was left in a bed in a cell in the medical ward. (Id. at ¶¶ 73-75). The next day, November 22,

3 In this paragraph of the complaint, plaintiff refers to the defendant as “Geurin.” The Court
assumes, based on the defendants’ brief and the use of the name “Gearin” throughout the complaint,
including in a reference to this event later in the complaint, that this is a typo.
2018,4 the plaintiff was discovered unconscious in his own vomit and, being unable to revive
him, medical staff contacted an ambulance and the plaintiff was transported to Leominster
Hospital. At the hospital, staff informed him he should have been transported the previous
evening. (Id. at ¶¶ 76-79).

On November 28, 2018, the plaintiff filed an Inmate Grievance Form complaining of the
attack. (Id. at ¶ 89). An investigation was conducted, and it was determined there was no
evidence to support the plaintiff’s allegations. (Id. at ¶¶ 90-91, 98). Those reports determined
that the plaintiff’s injuries were “non-serious,” and did not include the detail that the plaintiff
was found unconscious in his own vomit. (Id. at ¶¶ 95-96).
As a result of the use of force, the plaintiff sustained a 2-to-3-inch gash above his left
eye, ecchymosis of the left eye, ten to twelve large hematomas on the top, side, and back of his
head, significant bruising on the side and back of the head, and a swollen and bruised ear. (Id. at
¶ 66). The plaintiff experienced a lack of vision in his left eye as well as pain and headaches. (Id.
at ¶ 80). After his requests for medical assistance were initially rejected, he was eventually

transported to Boston Medical Center (“BMC”) on December 16, 2019. (Id. at ¶¶81-84). The
medical staff at BMC noted his difficulties seeing, ordered an MRI on his “orbits,” and ordered a
return visit within six months. (Id. at ¶¶ 85-87). The plaintiff was brought to Shattuck Hospital
where MRIs were conducted on his brain, not his orbits, and he has not been brought back to see
an eye doctor since. (Id. at ¶¶ 86, 88, 108). The plaintiff maintains he still suffers from physical
pain, worsening vision in his left eye, and psychological trauma. (Id. at ¶¶ 106-107).
The plaintiff alleges that it is the functional policy of the DOC to not conduct neutral or
complete investigations of grievances, to not interview third parties, and to allow officers under

4 The complaint indicates the “next day” was “November 22, 2021”; the Court understands this to
be a typo given that he filed this complaint on November 20, 2021.
investigation to work while investigations are ongoing with detainees who have pending
grievances against them. (Id. at ¶ 105). The plaintiff further alleges that DOC does not
adequately punish personnel when charges of excessive force are proven, and does not support
medical personnel’s decisions to transport detainees injured by excessive force to outside

hospitals. (Id.).
Standard of Review
In evaluating a Rule 12(b)(6) motion to dismiss, the Court must determine “whether,
construing the well-pleaded facts of the complaint in the light most favorable to the plaintiff[],
the complaint states a claim for which relief can be granted.” Cortés-Ramos v. Martin-Morales,
956 F.3d 36, 41 (1st Cir. 2020) (quoting Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 7 (1st
Cir. 2011)). The complaint must allege “a plausible entitlement to relief.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 559 (2007). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “While legal

conclusions can provide the framework of a complaint, they must be supported by factual
allegations.” Id. at 679.
Analysis
1. Official and personal capacities under 42 U.S.C. § 1983.
Plaintiff has sued the individual defendants in both their official and personal capacities.
Defendants argue they can only be sued in their personal capacities, not their official capacities,
under § 1983. That is true for damages under § 1983, but not injunctive relief. Will v. Michigan
Dep’t of State Police, 491 U.S. 58, 71 n. 10 (1989). Therefore, if there is valid injunctive relief
requested against a defendant, the suit must be allowed to go forward against them in their
official capacity.5
The request for injunctive relief against the individual defendants is to “[p]ermanently
enjoin and prohibit the Defendants from interfering with Plaintiff[’s] constitutionally and

statutorily protected right to adequate medical care.” The complaint does not allege that the
individual defendants have continued to deny the plaintiff care after November 21, 2018. More
importantly, it does not allege that any of them have the power to deny his requests for follow-up
vision care. Regardless of the violations they may have committed, the Court has no power to
order a defendant to comply with the Constitution absent an ongoing violation or a clear threat of
a future violation. Efreom v. McKee, 46 F.4th 9, 21-22 (1st Cir. 2022); American Postal Workers
Union v. Frank, 968 F.2d 1373, 1376-77 (1st Cir. 1992). The harm alleged by the plaintiff is the
ongoing denial of medical care, which a careful reading of the complaint shows is not
attributable to any of the individual defendants.
Therefore, the Court grants the individual defendants’ motion to dismiss the claims

against them in their official capacity.
The plaintiff also alleges “Monell” violations against the DOC and requests injunctive
relief and damages. However, claims under § 1983 are only available against “local government
units which are not considered part of the State for Eleventh Amendment purposes.” Will, 491
U.S. at 70 (citing Monell v. Dep’t of Social Services, 436 U.S. 658, 690 n. 54 (1978)). State
agencies, including the DOC, are not proper defendants under § 1983, whether the relief
requested is compensatory or injunctive. Poirier v. Mass. Dep’t of Correction, 558 F.3d 92, 97
(1st Cir. 2009). To be clear, this doctrine does not foreclose the relief the plaintiff seeks. He

5 Because there are no valid claims for injunctive relief, there is no need to address the arguments
the defendants make about compliance with the Prison Litigation Reform Act.
could have named the appropriate DOC officials in their personal or official capacity to bring
claims for damages or injunctive relief, respectively. Hafer v. Melo, 502 U.S. 21, 27-28 (1991);
Will, 491 U.S. at 71 n. 10; see, e.g., Poirier, 558 F.3d at 94 (naming the commissioner of the
DOC as a defendant). Because this suit is not brought pro se, the Court cannot rename the proper

defendants for the plaintiff.
Therefore, the Court grants the motion to dismiss all claims6 against the DOC.
2. Eighth Amendment Excessive Force and Common Law Assault Claims
Section 1983 provides a cause of action for the “deprivation of any rights, privileges, or
immunities secured by the Constitution and laws” by any person acting “under color of any
statute, ordinance, regulation, custom, or usage, of any State or Territory.” The defendants do
not dispute they were acting under color of law. Therefore, the analysis below is limited to the
violations.
The plaintiff alleges violations of the “Fourth and Fourteenth Amendments.” However,
excessive force claims brought by incarcerated individuals against prison officers are to be

brought under the Eighth Amendment’s prohibition on cruel and unusual punishment, not the
Fourteenth or Fourth Amendment’s Due Process Clauses. Graham v. Connor, 490 U.S. 386, 395
n. 10 (1989). However, “[p]leadings must be construed so as to do justice.” F.R.C.P. Rule 8(e).
Given that the parties have correctly briefed the Eighth Amendment case law, the Court will
move forward with an Eighth Amendment analysis on the primary claims.
“A claim of cruel and unusual punishment in violation of the Eighth Amendment has two
components -- one subjective, focusing on the defendant’s motive for his conduct, and the other

6 Count Five alleges a policy of failing to provide medical care only against the DOC, but
plaintiff alleges a similar claim against Lieutenant Gearin in his brief opposing the motion to dismiss. The
plaintiff may not amend his complaint in his brief, especially after the deadlines in Rule 15 have passed.
Therefore, the Court does not analyze this hypothetical claim.
objective, focusing on the conduct’s effect.” Staples v. Gerry, 923 F.3d 7, 13 (1st Cir. 2019)
(citing Wright v. Goord, 554 F.3d 255, 258 (2d Cir. 2009)). The objective prong requires the
plaintiff to show “the alleged wrongdoing was objectively harmful enough to establish a
constitutional violation.” Id. (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)). “The subjective

prong turns on ‘whether force was applied in a good faith effort to maintain or restore discipline
or maliciously and sadistically for the very purpose of causing harm.’” Id. (citing Whitley v.
Albers, 475 U.S. 312, 320-21 (1986)).
The inclusion of an objective prong, while generally correct in Eighth Amendment cases,
is in tension with Supreme Court precedent analyzing claims of excessive force against
incarcerated individuals. Indeed, the Court in Hudson qualifies the language quoted in Staples by
noting that whether something is “harmful enough” under the Eighth Amendment is governed by
“contemporary standards of decency,” 503 U.S. at 8, but that:
In the excessive force context, society’s expectations are different. When prison
officials maliciously and sadistically use force to cause harm, contemporary
standards of decency always are violated. This is true whether or not significant
injury is evident.

Id. at 9 (emphasis added). Furthermore, the Supreme Court has reversed other circuits for
requiring a threshold higher than de minimis injury, ruling that the opinion in Hudson did not
merely lower the “significant harm” threshold of the objective test; it “aimed to shift the ‘core
judicial inquiry’ from the extent of the injury to the nature of the force—specifically, whether it
was nontrivial and ‘was applied . . . maliciously and sadistically to cause harm.’” Wilkins v.
Gaddy, 559 U.S. 34, 39 (2010) (citing Hudson, 503 U.S. at 7). The only objective measure of
harm Hudson arguably retained was a bar on recovery for de minimis injuries. 503 U.S. at 9-10.7

7 Though even that is less than clear. See, e.g., Baldwin v. Tessier, No. 05-cv-10898-DPW, 2006
WL 753244, at *4-*8 (D. Mass. Mar. 22, 2006) (holding that the inquiry bars de minimis uses of force,
not de minimis injuries); accord Pereira v. Clarke, No. 10-cv-10238-RWZ, 2010 WL 4181387, at *2 (D.
To be sure, in determining whether the conduct was malicious in the first place the court
will consider the severity of the harm in light of the circumstances. And the First Circuit has held
that there is no requirement of “serious injury.” Bastien v. Goddard, 279 F.3d 10, 14-16 (1st Cir.
2002). Reconciling First Circuit precedent—which has never conclusively established a quantum

of harm above de minimis harm—and Supreme Court precedent, the Court determines that the
only quantum of harm that must be alleged in excessive force cases against incarcerated
individuals is that it is more than de minimis.
Defendants argue they are entitled to qualified immunity for all excessive force claims. In
the First Circuit, the qualified immunity analysis consists of determining whether the allegations
“make out a violation of a constitutional right” and, if so, “whether the right was clearly
established at the time of the defendant’s alleged violation.” Penate v. Hanchett, 944 F.3d 358,
366 (1st Cir. 2019). “Where a plaintiff alleges both a § 1983 excessive force claim and common
law claims for assault and battery, our determination of the reasonableness of the force used
under § 1983 controls our determination of the reasonableness of the force used under the

common law assault and battery claims.” Raiche v. Pietroski, 623 F.3d 30, 40 (1st Cir. 2010).
Therefore, those claims rise and fall together.
a. Officers Colston and Carpeno
The plaintiff alleges that Officers Colston and Carpeno used excessive force when they
punched his head while he was handcuffed and in leg irons and not resisting until he lost
consciousness, and continued to do so after he lost consciousness. To determine if this meets the
“subjective” standard of excessive force, the Court needs only to return to the facts of Hudson:
McMillian then placed Hudson in handcuffs and shackles, took the prisoner out of
his cell, and walked him toward the penitentiary's “administrative lockdown”

Mass. Oct. 20, 2010); Cutts v. Dennehy, No. 07-cv-10587-GAO, 2010 WL 1325465, at *9 (D. Mass. Mar.
31, 2010).
area. Hudson testified that, on the way there, McMillian punched Hudson in the
mouth, eyes, chest, and stomach while Woods held the inmate in place and kicked
and punched him from behind.

503 U.S. at 4. The Supreme Court held that conduct met the standard of “clearly excessive and
occasion[ing] unnecessary and wanton infliction of pain.” Id. at 5. That conduct is not
appreciably different from the conduct alleged in the complaint. Both prisoners were in
handcuffs and leg irons. Both prisoners were not resisting. Both prisoners were in the midst of a
transport. And both prisoners were repeatedly beaten in the head. There was no reasonable
justification to continue to use force, especially at the level alleged, after the prisoner had been
handcuffed, shackled, and was not resisting. Finally, though this is not necessary for the analysis,
plaintiff has supplied a motive: Officer Carpeno had threatened the plaintiff with extrajudicial
punishment for his participation in the riot.
Defendants argue the use of force was reasonable because plaintiff was non-compliant
and resisting the corrections officers. On a motion to dismiss, the Court cannot credit those
factual disputes.
Turning to the “objective” prong, defendants also argue the injuries are de minimis. De
minimis injuries in the First Circuit include a bloody lip, Calabria v. Dubois, 23 F.3d 394, at *2
(1st Cir. 1994) (unpublished), or shoving, pushing, and verbal abuse, Leavitt v. Allen, 46 F.3d
1114, at *3 (1st Cir. 1995) (unpublished). Courts in this district have considered de minimis two
brief kicks, Hernandez v. Ashe, 745 F. Supp. 2d 15, 18-19 (D. Mass. 2010), or verbal threats,
Mattei v. Dunbar, No. 13-cv-12195-FDS, 2015 WL 926044, at *4 n.3 (D. Mass. Mar. 4, 2015).
Furthermore, a court in this district noted a single shove—in context—can rise beyond a de
minimis injury. Carter v. Symmes, No. 06-cv-10273-PBS, 2008 WL 341640, at *5 (D. Mass.
Feb. 4, 2008). Again, returning to Hudson, the Supreme Court found “bruises, swelling, loosened
teeth, and a cracked dental plate” are not de minimis. 503 U.S. at 10. Accordingly, the Court
finds that bruises, swelling, and repeatedly falling into unconsciousness for the next several
hours are not de minimis injuries, regardless of any disputes regarding the consequences to
plaintiff’s long-term vision.

As such, plaintiff has sufficiently alleged a violation of the Eight Amendment with regard
to Officers Colston and Carpeno.
Having established a violation, the plaintiff must show the law was clearly established at
the time of the violation; this requires both an inquiry into the clarity of the law itself as well as
an inquiry into “whether a reasonable defendant would have understood that his conduct violated
the plaintiff’s constitutional rights.” Penate, 944 F.3d at 366 (citing Drumgold v. Callahan, 707
F.3d 28, 42 (1st Cir. 2014)).
Again, the Court need not go further than Hudson. As early as 1992 it was firmly
established that the Eighth Amendment protected inmates against uses of force that did not
further any sort of disciplinary or safety rationale and merely inflicted pain. Indeed, this Court

held as much seven years ago. Perry v. Dickhaut, 125 F. Supp. 3d 285, 298 (D. Mass. 2015). As
to whether a “reasonable defendant” would have known his conduct was unconstitutional, the
Court reiterates that there is nothing novel about the facts in this case. An inmate was allegedly
restrained, did not resist, and was repeatedly punched in the head, such that he lost
consciousness—during which the beating did not stop. The Court breaks no new ground in
holding that such a use of force is a violation of the Eight Amendment’s prohibition on cruel and
unusual punishment. The officers were clearly on notice that this conduct was unconstitutional.
The motion to dismiss as to Officers Colston and Carpeno is denied.
b. Sergeant Tetreault
The plaintiff’s complaint alleges in the facts portion that Sergeant Tetreault used O.C.
spray, but lists Lieutenant Gearin in “Count Two” as the individual who used O.C. spray. The
Court assumes that the facts section is correct and the claim is intended to be against Sergeant
Tetreault. Because both defendants will continue to be parties to this litigation after the motion to

dismiss, it will not prejudice Tetreault to have this claim continue against him even if it turns out
in discovery it was Lieutenant Gearin who used the O.C. spray.
The only basis for an excessive force claim against Sergeant Tetreault is that he sprayed
O.C. spray into plaintiff’s temporary cell to disable him. At the time O.C. spray was used,
plaintiff was in a temporary 4’ x 6’ cell, but was not in handcuffs or leg irons. Plaintiff does not
allege he was resisting at the time O.C. spray was used. The plaintiff admits that he had protested
when he was initially moved to the temporary cell, and the Court cannot credit plaintiff’s legal
conclusion that the force was “unjustified” without additional details. However, drawing all
reasonable inferences in favor of the plaintiff, five minutes had passed from his last protestation
and the use of the O.C. spray. The Court concludes that the complaint alleges the officers used

the O.C. spray to preemptively disable the plaintiff, not in response to any attempt to resist or as
the result of contemporaneous non-compliant behavior.
Although not as clear cut as the claims against Officers Colston and Carpeno, plaintiff
has alleged a violation of the Eighth Amendment. The primary inquiry is “whether force was
applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for
the very purpose of causing harm.” Staples, 923 F.3d at 13 (citing Whitley, 475 U.S. at 320-21)).
The plaintiff concedes in his complaint that the purpose of the OC spray was to “disable” him.
Defendants argue that there is no proof the use of force was used merely to harm him. In
considering the “subjective” prong, whether the force was “malicious,” the Court determines
whether the use of force is proportionate to the disciplinary interest. Hudson, 503 U.S. at 7.
In a similar case, a court in this district held that spraying O.C. spray into a cell, absent
any sort of threat or misbehavior from the prisoner, was enough to allege an Eighth Amendment

claim on a motion to dismiss. Hinds v. Pepe, No. 15-cv-10073-LTS, 2016 WL 1643742, at *6
(D. Mass. Apr. 25, 2016). The Court agrees: absent some indication of resistance or non-
compliance from a prisoner, prison officers may not, consistent with the Eighth Amendment, use
chemical sprays to disable an inmate merely to make extractions easier. Such an action is
malicious, even if the malice is grounded tenuously in furthering discipline. To the “objective”
prong, the complaint alleges that the O.C. spray “disabled” the prisoner. This is far from the
shoves and pushes that courts in this district have held to be “de minimis.”
Again, defendants insert facts in their response that either were not in the complaint or
contradict the complaint; claiming that the plaintiff “refused to comply with Officers’ orders to
be moved” and “continued to not comply with Officer’s orders.” After discovery, defendants

may be entitled to summary judgment, but they cannot insert those disputes into the analysis at
this stage of the proceedings.
As to qualified immunity, the law was clear in 2018 that malicious use of force not in
service of disciplinary interests would violate the constitution. In determining whether a
reasonable defendant would have known their conduct violated that standard, a survey of related
case law is helpful. First, as referenced above, a court in this district, concerning the DOC, held
that using O.C. spray against a prisoner in a cell who does not pose a risk or threat is
unconstitutional. A survey of other cases concerning the use of O.C. spray show that courts have
upheld the use of O.C. spray where an inmate poses a threat to safety, is fighting, or disobeys an
order. Grissom v. Palm, No. 21-3194, 2022 WL 3571410, at *6 (10th Cir. Aug. 19, 2022);
Gibson v. Flemming, 837 F. App’x 860, 862 (3d Cir. 2020); Hernandez v. Woods, 731 F. App’x
643, 645–46 (9th Cir. 2018); Banks v. Meck, 531 F. App’x 205, 207-08 (3d Cir. 2013); Scroggins
v. Davis, 346 F. App’x 504, 505 (11th Cir. 2009); Thomas v. Comstock, 222 F. App’x 439, 442

(5th Cir. 2007); Fischer v. Ellegood, 238 F. App’x 428, 432 (11th Cir. 2007). The Court could
not locate a single case concerning an instance where O.C. spray was used to preemptively
disable an inmate who was not resisting officers or somehow not complying. To the contrary,
there is precedent the use of O.C. spray is not justified against inmates who “passively resisted”
officers. Guy v. Metro. Gov’t of Nashville & Davidson Cnty., 687 F. App’x 471, 476 (6th Cir.
2017) (applying Eighth Amendment standards to pre-trial detainee). A reasonable officer would
know that using O.C. spray without any misbehavior or threat from the inmate would violate the
Eighth Amendment.
Therefore, the motion to dismiss as to Sergeant Tetreault is denied.
c. Superintendent Phillips

Superintendent Phillips is alleged to have explicitly authorized both the O.C. spray and
the use of force to extract the plaintiff. Although the complaint is not clear, the Court assumes,
based on plaintiff’s description of the events and the failure to intervene claim discussed below,
that Superintendent Phillips was not physically present for any of the events.
Supervisory liability may not be established by the doctrine of respondeat superior in §
1983 cases. City of Canton v. Harris, 489 U.S. 378, 385 (1989). Instead, after plausibly alleging
a primary violation, the plaintiff must then “forge an affirmative link between the abridgement
and some action or inaction on the supervisor’s part.” Parker v. Landry, 935 F.3d 9, 14 (1st Cir.
2019). The primary violation has been plausibly alleged for both violations, as discussed above.
To show the “affirmative link,” the plaintiff must allege “behavior that constitutes ‘supervisory
encouragement, condonation or acquiescence[,] or gross negligence . . . amounting to deliberate
indifference.’” Id. at 14-15 (citing Grajales v. P.R. Ports Auth., 682 F.3d 40, 47 (1st Cir. 2012)).
Deliberate indifference requires “(1) that the officials had knowledge of facts, from which (2) the

official[s] can draw the inference (3) that a substantial risk of serious harm exists.” Guadalupe-
Báez v. Pesquera, 819 F.3d 509, 515 (1st Cir. 2016) (citations omitted).
There is no dispute that Superintendent Phillips authorized the use of force, and the
alleged use of force amounted to an Eighth Amendment violation. However, the complaint fails
to allege—nor are there any reasonable inferences to the contrary—that Superintendent Phillips
was on notice that the use of force requested was unjustified. He authorized the use of O.C.
spray, but there is no allegation he knew the plaintiff was not resisting. There is no allegation
that he had any knowledge “that a substantial risk of serious harm exist[ed].” Nor is there any
indication he sanctioned or even knew about the specific use of force against the plaintiff after he
was handcuffed and put in leg irons. The Court cannot credit the plaintiff’s bare allegation that

the authorization was unjustified.
Therefore, the motion to dismiss as to Superintendent Phillips is granted.
3. Duty to intervene (Lieutenant Gearin, Officer Stanhope, Sergeant Tetreault, Officer
Badjo, and Officer Bourgeois – “bystander defendants”)

Unlike the excessive force claim, the duty to intervene arises from the Fourteenth
Amendment’s substantive due process doctrine. Davis v. Rennie, 264 F.3d 86, 97-98 (1st Cir.
2001). The plaintiff must adequately allege that the defendants (1) were present, (2) actually
observed the excessive force, (3) were in a position to realistically prevent the use of excessive
force, and (4) there was sufficient time to prevent the use of excessive force. Id. at 97-98 (citing
Gaudreault v. Salem, 923 F.2d 203, 207 n. 3 (1st Cir. 1990)). There is no requirement of a
showing that the action “shocks the conscience” when the incarcerated individual is not resisting
the force, as alleged here. Id. at 98-99. And a showing of deliberate indifference is only required
if “actual deliberation is practical.” Id. at 101 (citing Farmer v. Brennan, 511 U.S. 825, 837
(1994)). Because the use of force was relatively short, the Court concludes the deliberate

indifference standard is inapplicable.
The complaint adequately alleges that the bystander defendants (1) were present and (2)
actually observed the excessive force. Any requirement implicit in the second prong that a
reasonable officer would recognize the force as excessive is satisfied by the qualified immunity
analysis above because any reasonable officer would recognize the force allegedly applied by
Officers Colston and Carpeno was excessive, whether applying it themselves or witnessing it.
An attack that is over “in a matter of seconds” cannot normally give rise to liability under
a duty to intervene claim because it is not realistic to expect other officers to quickly intervene—
the third and fourth prongs fail. Gaudreault, 923 F.2d at 207 n. 3. However, the analysis is
context-specific and depends on the proximity of the officers and the length of the attack. See,

e.g., Davis, 264 F.3d at 104 (refusing to overturn a jury’s determination that defendants had an
opportunity to intervene in an attack that only lasted a few seconds).The allegation here is that
the bystander defendants failed to intervene after Officers Colston and Carpeno used excessive
force against the plaintiff by repeatedly punching him in the head after he had been disabled by
the O.C. spray, handcuffed and put in leg irons, and was no longer resisting. Plaintiff alleges he
was punched 15-20 times, lost consciousness, and when he regained consciousness, was still
being punched in the head. The description is not of an attack that lasted a few seconds—there
was time to intervene. Furthermore, the bystander defendants were “gathered around the door to
the cell” and outnumbered Officers Carpeno and Colston by over two-to-one and therefore were
in a realistic position to intervene. Given the facts alleged, the plaintiff has made out an
adequate violation of his substantive due process rights.
The defendants correctly point out that if there were no violation by Officers Carpeno and
Colston, there can be no failure to intervene. However, a violation has been adequately alleged

against Officers Carpeno and Colston. The defendants also argue that the plaintiff has not
adequately alleged how the defendants could have intervened. Given the facts alleged, the Court
has no trouble inferring that five officers in tactical gear standing a few feet away could have
prevented—or at least mitigated—the excessive force used against the plaintiff by Officers
Colston and Carpeno.
The motion to dismiss against the bystander defendants is denied.
4. Intentional Infliction of Emotional Distress (“IIED”) (Officers Carpeno and Colston)
To make out a claim for IIED in Massachusetts, the plaintiff must show:
(1) that the [defendant] intended to inflict emotional distress or that he knew or
should have known that emotional distress was the likely result of his conduct; (2)
that the conduct was extreme and outrageous, was beyond all possible bounds of
decency and was utterly intolerable in a civilized community; (3) that the actions
of the defendant were the cause of the plaintiff's distress; and (4) that the
emotional distress sustained by the plaintiff was severe and of a nature that no
reasonable man could be expected to endure it.

Limone v. United States, 579 F.3d 79, 94 (1st Cir. 2009) (citing Agis v. Howard Johnson Co.,
371 Mass. 140, 144-45, 355 N.E.2d 315, 318-19 (1976)).
Given the excessive force claim against Officers Carpeno and Colston required the Court
to find that the force was used “for the very purpose of causing harm,” the first prong is easily
met.
The defendants are correct that it is not “enough that the defendant has acted with an
intent which is tortious or even criminal, or that he has intended to inflect emotional distress,” to
meet the standard put forth in the second prong. Foley v. Polaroid Corp., 400 Mass. 82, 99, 508
N.E.2d 72, 82 (1987), Nonetheless, beating a prisoner into unconsciousness while he is not
resisting and in handcuffs and leg irons is “utterly intolerable in a civilized community.” Cf.
Hudson, 503 U.S. at 8 (“When prison officials maliciously and sadistically use force to cause

harm, contemporary standards of decency always are violated”). To the third prong, there is no
serious dispute that it was this beating, rather than something else, that caused plaintiff’s distress.
However, it is not clear that plaintiff has adequately pleaded the severity of emotional
distress required to uphold an IIED claim under the fourth prong. Plaintiff claims that he has
“sustained . . . psychological trauma” and “continues to experience . . . psychological damage.”
There is precedent suggesting that the emotional damage must be quantified with some
exactness. See, e.g., Kennedy v. Town of Billerica, 617 F.3d 520, 530-31 (1st Cir. 2010).
However, in cases where there is a physical attack and relatively severe injuries, emotional
distress may be inferred. Poy v. Boutselis, 352 F.3d 479, 485–86 (1st Cir. 2003). Because the
plaintiff is incarcerated, the Court will not fault him for failing to provide specific psychological

reports. Although plaintiff did not receive the lasting disfigurement that the plaintiff in Poy
suffered, the extreme nature of the beating is sufficient to meet the fourth prong of an IIED
claim.
Finally, “[t]he defendant must have acted without privilege.” Polay v. McMahon, 468
Mass. 379, 386, 10 N.E.3d 1122, 1129 (2014) (citations omitted). Because the allegations
adequately make out a constitutional violation, the use of force was not privileged.
Therefore, the motion to dismiss the IIED claim is denied.
Conclusion
For the reasons stated above:
The motion to dismiss Count One is granted.
The motion to dismiss Count Two as to Superintendent Phillips is granted, and the
motion to dismiss count 2 as to all other defendants is denied.
The motion to dismiss Count Three is denied.

The motion to dismiss Count Four is granted.
The motion to dismiss Count Five is granted.
The motion to dismiss Count Six is denied.
The motion to dismiss Count Seven is denied.

SO ORDERED
/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10200688. Public record. Not legal advice.