Clergeau v. Department of Correction

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

____________________________________

)

PERICLES CLERGEAU, )

)

)

Plaintiff, )

) Civil Action No. 1:21-CV-10136-AK

v. )

)

MASSACHUSETTS DEPARTMENT OF )

CORRECTION, et al., )

)

Defendants. )

)

MEMORANDUM AND ORDER ON

MOTION FOR SUMMARY JUDGMENT

ANGEL KELLEY, D.J.

Plaintiff, Pericles Clergeau brings this action, alleging a lack of adequate health treatment

and the use of excessive force against him as an inmate at the Souza Baranowski Correctional

center (“SBCC”). Plaintiff filed this action against the Department of Correction (“DOC”),

Correctional Officers Alexander Lussier, Nicholas Polak, David Keeler, Thomas Evans, and

Christopher Shaw, former Correctional Officer Joseph Sampson, Former Superintendents at

SBCC Steven Silva and Steven Kenneway, Standing Superintendent at SBCC Dean Gray, and

Commissioner of Correction Carol Mici (together “the Defendants”). [Dkt. 1-1]. Clergeau

asserts that he was subjected to the excessive use of force during an incident when he had an

altercation with one or more Correctional Officers (“CO” or “Officer Defendants”) and that he

was subjected to differential medical treatment because of his mental illness. [Dkt. 1 at 4]. The

Defendants move for summary judgment on all claims including Clergeau’s claims of excessive

use of force and assault and battery and Clergeau’s claims under the Americans with Disabilities

Act (“ADA”).1 [Dkt. 75].

On January 26, 2021, Plaintiff filed his Complaint against the Defendants. [Dkt. 1].

Defendants filed their Motion of Summary Judgment on August 1, 2023. [Dkt. 75]. The Court

heard oral argument on Defendants’ Summary Judgment motion on December 14, 2023 and took

the matter under advisement. [Dkt. 102].

For the following reasons, the Defendants’ Motion for Summary Judgment is

GRANTED IN PART and DENIED IN PART. The Motion is GRANTED as to Plaintiff’s

claims that the Defendants violated the ADA, when they failed to provide necessary medical care

or tend to his mental health needs, as well as claims alleging a failure to provide proper training

regarding the use of excessive force, and claims of retaliation, because he lacks sufficient

evidence to support these claims. The Motion is also GRANTED as to all claims brought against

Officer Keeler, DOC, Steven Silva, Stephen Kenneway, Dean Gray, and Carol Mici. The

Motion is DENIED as to the Eighth Amendment claims for excessive use of force along with

assault and battery, brought against the Officer Defendants Alexander Lussier, Nicholas Polak,

Thomas Evans, and Christopher Shaw in their personal capacities.

I. BACKGROUND

Unless otherwise noted, the facts below are undisputed and are pulled from the

Defendants’ statement of material facts [Dkt. 82], Plaintiff’s response to that statement [Dkt. 84],

and Plaintiff’s additional statement of facts. [Dkt. 87]. Facts that are undisputed shall be

1 Prior to securing counsel, Clergeau’s filed his complaint pro se. [Dkt. 1]. The format is not entirely clear and it is

difficult to discern the basis for each claim. The Court understands Clergeau to be bringing claims for violation of

the Eighth Amendment and excessive force, assault, and battery (Count III and IV) for his treatment during the

altercation; indifference to Clergeau’s medical needs in violation of the ADA and Eighth Amendment (Counts II,

III, and V) both after the altercation and throughout his incarceration; inadequate training and supervision on the

part of the prisons’ leadership (Counts II, III, and IV); and retaliation (Count III) for his treatment following the

altercation.

considered admitted for the purposes of this motion. See Local Rule 56.1. Below is a summary

of some of the critical facts. Additional facts will be addressed as necessary in the discussion

section.

A. Altercation between Clergeau and the Defendant Officers

The Souza Baranowski Correctional Center (“SBCC”) is a maximum-security state

prison located in Shirley, MA. [Dkt. 87 at ¶ 1]. COs Lussier and Shaw were the only officers

assigned to Clergeau’s housing unit the morning of June 30, 2018. [Id. at ¶ 2]. Officer Shaw

started the morning with the Inmate Count, which required him to walk to each cell door and

check on each inmate. [Id. at ¶¶ 4-5]. Clergeau alleges that when Shaw came to his door, Shaw

taunted him about Clergeau’s mental health and then threatened and provoked him. [Dkt. 100-13

(“Clergeau Tr.”) at 12:18-13:5]. Clergeau could not recall exactly Shaw’s words or his own

response. [Id. at 13:3-10]. He does assert that Shaw came back to his door and challenged him

to a fight. [Id. at 13:11-24]. These allegations are partially corroborated by another inmate,

Tamik Kirkland, who reported observing Shaw refer to Clergeau with derogatory language,

threaten him with harm. [Dkt. 87-2 at ¶¶ 3-5]. Like the Plaintiff, Shaw feels his memory is

“distorted” from the injuries he sustained, and he has no recollection of what words were

exchanged at that time. [Dkt. 95-2 (“Shaw Tr.”) 25:2-8].

When the cell doors opened, Clergeau went down the stairs from his cell and saw Officer

Shaw; he immediately “felt threatened,” “had a mental breakdown,” and could not recall fully

what happened after that. [Clergeau Tr. at 15:12-16]. Officer Lussier reports he observed

Clergeau come down the stairs from his cell. [Dkt. 87 at ¶ 12]. Clergeau walked towards Shaw,

although the Officers dispute whether he did so in an aggressive or normal manner. [Dkt. 87 at

¶¶ 15-17; Dkt. 87-4 at 7].2 Clergeau then started to strike Shaw. [Dkt. 87 at ¶ 19].

When Clergeau attacked Shaw, the two began to struggle with one another; both fell into

Lussier and then into a backroom where the balance of the altercation was not captured on

camera. [Dkt. 87 at ¶ 18]. Clergeau struck Lussier and Shaw multiple times with punches and

the officers struck him back with punches to his mid-section and groin. [Dkt. 95-1 (“Lussier

Tr.”) at 19:2-21; Dkt. 87-4 at 6]. While waiting for the emergency response, Shaw and Lussier

attempted to gain control of Clergeau by grabbing his arms and striking him. [Dkt. 87 at ¶ 25;

Dkt. 87-4 at 6; Lussier Tr. 23:1-7]. Within half a minute of Clergeau being pulled into the

backroom, several other officers arrived on the scene and at least two officers entered the

backroom. [Dkt. 87-5 SUOF 364 P1 DR1 (“backroom video”) 7:38-39]. Clergeau was on his

stomach the entire time he was in the backroom, which was for an excess of five minutes, per the

available camera footage. [Dkts. 87 at ¶ 29; backroom video].

Once he was in the backroom, Clergeau was shackled almost immediately. [Clergeau

Tr. 21:10-13; Dkt. 100-14 (“Polak Tr.”) 21:11-22]. At some point, while Clergeau was being

held by his legs and was going in and out of consciousness, he recalls officers standing up in

front of him and kicking him in the head. [Clergeau Tr. 17:1-10; 20:2-22]. Clergeau recalls

Lussier saying provocative things about him, though Clergeau does not recall exactly what those

things were. [Id. at ¶ 21:14-22:7]. Clergeau identifies Officer Sampson as one of the officers

who kicked him in his face.3 [Id. at 22:21-23:2]. He also said that his eyes were shut from his

injuries, which prevented him from seeing clearly. [Id. at 22:17-20].

2 While some of the beginning and aftermath of the altercation was captured on video, the bulk of the altercation

took place out of view of any camera.

3 Ex-Correctional Officer Joseph Sampson is no longer employed by the DOC and is not a party to the Defendant’s

Motion for Summary Judgment here. [Dkt. 75]. Therefore, his actions as an individual officer will not be the focus

When Officer Polak arrived on the scene, he observed Clergeau lying face down; he

described Clergeau as being non-compliant but also not an immediate threat to staff any longer.

[Polak Tr. 21:11-22]. Polak recalled seeing Lussier placing Clergeau in what appeared to be a

headlock. [Id. at 20:20-21]. Polak then relieved Lussier because Lussier looked like he was

injured and had blood on his face. [Polak Tr. 21:7-10]. Lussier testified that he first gained

control of Clergeau’s legs and put the restraints on them. [Lussier Tr. 24:22-24].4 The officers

who arrived in the backroom also assisted Lussier in grabbing Clergeau’s legs and placing those

restraints. [Id. at 24:19-24]. One of those officers was Officer Evans, who Clergeau alleges took

part in the beating. [Dkt. 100-5 (“Evans Tr.”) at 17:3-6; Compl at ¶ 20]. Clergeau did not see

Shaw in the backroom. [Dkt. 87 at ¶ 32]. Clergeau asserts that the shackles were put on him

within seconds of being there. [Clergeau Tr. 19:20-21].

When Lt. Keeler arrived, he saw that the officers had the situation “under control” with

Clergeau in restraints. [Dkt. 99 (“Keeler Tr.”) 15:2-24]. Keeler instead focused on securing the

area and returning other inmates to their cells. [Id. at 16:1-2; Backroom video 7:38:24-34; Dkt.

87 at ¶ 50]. Shortly after leaving the backroom, Officer Shaw walked out and collapsed on the

floor. [Dkt. 87 at ¶ 53; Backroom video 7:38-39]. A medical emergency was called for Shaw,

and he was removed from the unit on a gurney, taken to a trauma room, and then to an outside

hospital. [Dkt. 87 at ¶¶ 54, 56].5

of the Court’s inquiry here as it evaluates the liability of the Officer Defendants. Ex-CO Sampson is a named

Defendant in this case. [Dkt. 1]. Summons for him were served to Attorney Meville. [Dkt. 50]. Attorney Melville

asserts that she returned the summons to Clergeau because she did not represent Sampson as an ex-employee. [Dkt.

102].

4 Officer Evans also testified that he was the one who restrained Clergeau’s legs. [Evans Tr. 18:3-6].

5 Officer Shaw attests that he suffered a concussion, was out of work for several months, had to undergo vestibular

rehabilitation which affected his balance, light sensitivity, and became bedridden for a period of time. [Shaw Tr.

32:22-33:4].

After handcuffs and leg irons were placed on Clergeau, Officers Polak, Lussier, and

Sampson stood Clergeau up and escorted him out of the unit towards the Health Services Unit

(HSU) for treatment. [Polak Tr. 19:11-15]. Clergeau, claims that he did not see a nurse or

medical staff when he was brought to the HSU room and that he was tortured by officers for 20-

30 minutes, all while the medical staff waited for clearance from the officers to see him.

[Clergeau Tr. 24:15-24]. Clergeau asserts that while in a room of the HSU, he was being held

down on his stomach forcibly and officers, in particular Lussier, said things like, “you are going

to spend the rest of your life in prison. We’re going to make sure of that. You’re going to be

treated like shit from now on.” [Clergeau Tr. 27:8-18]. No video footage exists of Clergeau’s

treatment while he was inside the HSU backroom.

HSU staff determined that Clergeau should be sent to a hospital and Clergeau was then

secured in a holding cell in the HSU where his restraints were removed. [Polak Tr. 19:16-20].

Clergeau asserts that the medical staff in the HSU was concerned about his injuries and argued

with the officers for clearance to take him sooner; eventually the officers transported Clergeau to

the hospital themselves. [Clergeau Tr. 26:2-21].

Clergeau’s injuries from that day included one broken tooth (and possibly another lost

tooth), dislocated fingers, a fracture at the top of his jaw, swelling that shut his eyes, a contusion

on his eyeball and orbital tissues, permanent damage to his right eye, a contusion of the scalp,

and pain in both wrists. [Dkt. 87 at ¶ 29; Clergeau Tr. 47:1-11; 87-13 at 1-2]. Clergeau asserts

the beatings exacerbated his mental health conditions causing him anxiety attacks. [Clergeau Tr.

48:18-49:1].

B. Clergeau’s medical needs

Beyond that altercation, Clergeau’s complaint blames the facility’s mental healthcare

system for its failure to treat his mental illness and he brings suit against the facility’s leadership

to address this. Clergeau has been diagnosed with multiple mental illnesses. [Clergeau Tr. 11:1-

5]. He alleges that the defendants implement customs and practices that deny him mental health

treatment and allow retaliation by staff. [Dkt. 1-1 (“Compl.”) at ¶ 35-40; Clergeau Tr. 37:3-13].

Clergeau asserts that there are systemic deficiencies in the prison’s provision of mental health

care through a smattering of allegations. [Dkt. 87 at ¶ 59]. He did not submit any requests for a

reasonable accommodation under the Americans with Disabilities Act (“ADA”) for his mental

health disabilities. [Clergeau Tr. at 44:12-18]. Clergeau responds he is not an expert on his

conditions and is unaware as to what accommodations could be requested. [Id. at 44:23-45:5].

He did file a written grievance with Superintendent Silva. [Id. at 44:5-11].

C. Use of Force Training

Clergeau challenges the use of force training provided for DOC correctional officers as

being insufficient to prevent the excessive use of force used upon him. The Officer Defendants

underwent initial training, including the DOC’s standard operating procedures regarding the use

of force a decade or more ago. [Dkt. 87 at ¶ 63]. Their more recent training would have

included the annual in-service training on inmate procedures, an annual use of force on inmates

and proper use of restraints training, and a de-escalation refresher. [Id. at ¶ 64; Dkt. 76-6 at 40,

50, 66]. Among the policies the COs would have been trained on would have included 103

CMR 505, which requires staff members to intervene when they observe other staff members

using excessive force. [Dkt. 87-7 at 6]. Another provision of the CMR requires staff to attempt

to use de-escalation tactics before the use of any force. [Id.].

D. Retaliation Against Clergeau

Clergeau also asserts that since the altercation, the Officer Defendants and other COs

have continued to retaliate against him in a variety of ways. These include Officer Shaw

laughing and joking about the incident in front of Clergeau; Officer Lussier telling him he would

“mess him up” if they ever fought again; being refused lunch in the prison; being placed in watch

cells; and an incident where an unnamed officer touched him inappropriately. [Clergeau Tr.

29:13-30:20; 32:2-10; 35:7-13; 41:22-43:7; 52:13-20]. Clergeau also alleges that Officer Titus6

went around his cell, threw his things around, and told Clergeau that he did so for getting Officer

Sampson fired. [Id. at 34:6-20].

II. LEGAL STANDARD

The purpose of summary judgment is to “pierce the pleadings and to assess the proof in

order to see whether there is a genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d 816,

822 (1st Cir. 1991) (citing Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)).

Summary judgment may be granted when the record, viewed in the light most favorable to the

non-moving party, presents “no genuine issue of material fact,” and the moving party is entitled

to judgment as a matter of law. Paul v. Murphy, 948 F.3d 42, 49 (1st Cir. 2020) (citation

omitted). The Court must consider (1) whether a factual dispute exists; (2) whether the factual

dispute is “genuine,” such that a “reasonable fact-finder could return a verdict for the nonmoving

party on the basis of the evidence;” and (3) whether a fact genuinely in dispute is material, such

that it “might affect the outcome of the suit under the applicable substantive law.” Scott v.

Sulzer Carbomedics, Inc., 141 F. Supp. 2d 154, 170 (D. Mass. 2001); see also Napier v. F/V

DEESIE, Inc., 454 F.3d 61, 66 (1st Cir. 2006). Courts must evaluate “the record and [draw] all

6 Officer Titus is not one of the named defendants.

reasonable inferences therefrom in the light most favorable to the non-moving parties.” Est. of

Hevia v. Portrio Corp., 602 F.3d 34, 40 (1st Cir. 2010) (citing Houlton Citizens’ Coal. v. Town

of Houlton, 175 F.3d 178, 183–84 (1st Cir. 1999)). A non-moving party may “defeat a summary

judgment motion by demonstrating, through submissions of evidentiary quality, that a trial

worthy issue persists.” Paul, 948 F.3d at 49 (citation omitted).

III. DISCUSSION

Clergeau brings claims for violation of the ADA (Count II)7, violation of the Eighth

Amendment (Count III), physical injury from the use of excessive force (Count IV), and

retaliation (Count III).8 [Compl. at ¶¶ 44-62].

A. Eighth Amendment and Excessive Force, Assault, and Battery (Counts III and IV)

Clergeau’s Eighth Amendment claims are brought pursuant to 42 U.S.C. § 1983, which

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.” [Compl. at 4]. An Eighth Amendment

violation has two components: “one subjective, focusing on the defendant's motive for his

conduct, and the other objective, focusing on the conduct’s effect.” Staples v. Gerry, 923 F.3d 7,

13 (1st Cir. 2019). As far as the subjective prong, in the prison context “only the unnecessary

and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the

7 Clergeau’s pro se complaint does not include a Count I. [Dkt. 1-1]. The Court notes that Clergeau filed the

complaint as a pro se plaintiff and later acquired counsel. In parts of his complaint, Clergeau makes reference to

violations of state regulations and policies. [Id. at 14-15]. However, “a private cause of action cannot be inferred

solely from an agency regulation.” Frawley v. Police Com’r of Cambridge, 473 Mass. 716, 46 N.E.3d 504, 511

(Mass. 2016) (quoting Loffredo v. Center for Addictive Behaviors, 689 N.E.2d 799, 803 (Mass. 1998). Therefore,

any claim for damages that Clergeau seeks that is based solely on the failure to enforce state regulations is not

viable.

8 Clergeau’s complaint describes Count V as being emotional distress. [Compl. at ¶¶ 61-62]. This does not appear to

be a separate claim for emotional distress, but rather a description of the injuries Clergeau suffers from that

Defendants inflicted.

Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319 (1986). The “critical question”

becomes “whether the force was applied ‘maliciously and sadistically for the very purpose of

causing harm . . . rather than ‘in a good-faith effort to maintain or restore discipline.’” Skinner v.

Cunningham, 430 F.3d 483, 488 (1st Cir. 2005) (quoting Hudson v. McMillian, 503 U.S. 1, 7

(1992) and Whitley, 475 U.S. at 320–21).9 “Unless it appears that the evidence, viewed in the

light most favorable to the plaintiff, will support a reliable inference of wantonness in the

infliction of pain under the standard we have described, the case should not go to the jury.”

Whitley, 475 U.S. at 322. The objective harm requires that the injury alleged against the

incarcerated individual be more than de minimis. Mullen v. Dep’t of Corr. of Mass., 643 F.

Supp. 3d 238, 247 (D. Mass. 2022).

Clergeau’s case largely turns on who should be believed about what occurred in the five

minutes while he was in the backroom, as well as while he was in the HSU when the parties were

out of sight from any cameras. There are several factual disputes about what occurred, many of

which could alter the outcome of the case. While Clergeau and Shaw may have verbally clashed

earlier in the day, it is not in dispute that Clergeau was the one who initiated the physical

altercation between the two. Clergeau does not recall what happened, while Shaw and Lussier

attest that they saw Clergeau move towards Shaw and strike him multiple times. [Clergeau Tr. at

15:2-16:19; Dkt. 87 at ¶ 17; Dkt. 87-4 at 6-7]. Shaw attests that Clergeau struck him in the head

with multiple punches. [Shaw Tr. at 32:9-11]. Lussier also attests that he was struck by

Clergeau multiple times and sustained injuries. [Lussier Tr. at 19:2-21; Polak Tr. 22:7-10].

Even if Shaw’s injuries were the result of his head hitting the ground, the confrontation with

Clergeau was clearly violent enough that it led to the incapacitation of Officer Shaw immediately

9 Defendants do not dispute the fact that they were acting under color of state law or that one or more of them used

force. [Dkt. 76 at 14].

after he leaves the backroom. [Backroom video 7:38-39; Shaw Tr. 31:3-4, 33:22-34:4, Dkt. 87-3

at. 39:7-9].

At the same time, when viewing the facts in the light most favorable to Clergeau, a

reasonable factfinder could find that Clergeau was subjected to a level of force beyond that

which was necessary, especially in the time period after he was no longer a threat to the officers

around him. Clergeau and Officer Polak attest that he was handcuffed almost immediately upon

being dragged into the backroom, yet Clergeau remained on his stomach the entire time he was

in that room, which was in excess of five minutes. [Dkt. 87 at ¶ 29; Clergeau Tr. 17:1; 21:1-12;

Polak Tr. 17:9-10; 22:11-22]. He was also swiftly shackled and placed in leg restraints, which

Clergeau believes happened within seconds. [Lussier Tr at 24:19-24; Clergeau Tr. 19:20-21].

At some point after the restraints were placed on his legs and he was fully shackled, the

officers felt the situation was under control. [Keeler Tr. 18:17-23]. At this juncture, the factual

dispute between the parties is at its apex. Clergeau recalls being kicked in the face multiple

times, although he only named Officer Sampson in his deposition. [Clergeau Tr. 17:1-10, 22:21-

23:2]. This does not mean, however, that Officer Sampson is the only Officer who may have

kicked him in his face. Clergeau names Officer Lussier as the individual responsible for his

dislocating his fingers. [Clergeau Tr. 17:23-24]. Clergeau emerges from the room with his face

bloodied and with multiple injuries including dislocated fingers, a fractured jaw, and significant

damage to his eye, which together indicate that a serious amount of force was applied.10 [Id. at

47:1-11; Dkt. 87-13 at 1, 6; Dkt. 87-5 SUOF North 1 to Elevator]. The timeline here is unclear

but given the number of officers who subdued Clergeau, the length of time he remained on his

10 While it is unclear when these injuries were sustained, given Clergeau’s allegation that he was also physically

abused in the HSU room, the video shows that at least some of the injuries were sustained before he arrived in the

HSU. [Dkt. 87-5 SUOF North 1 to Elevator].

stomach in the room, and the speed at which he may have been put in restraints, there is a dispute

of fact as to whether Clergeau was beaten severely and disproportionately after he was no longer

a threat. A jury could find that the Officer Defendants used force “maliciously and sadistically

for the very purpose of causing harm . . . rather than in a good-faith effort to maintain or restore

discipline.” Skinner, 430 F.3d at 488. The question of what force was applied after the threat

Clergeau posed subsided presents a trial-worthy issue. The same is true of any force that may

have been used to subdue Clergeau when he was in the HSU, where Clergeau alleges he was

“tortured” and which the other witnesses do not address. [Clergeau Tr. 24:15-24; 27:4-18].

A challenge for Clergeau is that the officers’ memories are much clearer than his own.

Clergeau states that he cannot fully remember what happened after he confronted Shaw.

[Clergeau Tr. at 16:10-16:19]. However, it is not the case that he claims to remember nothing at

all. Clergeau testified that he was going in and out of consciousness from being struck in the

head and that he remembers enough to recall how and where he was receiving those blows.

[Clergeau Tr. 16:13-14; 20:1-22; 22:23-23:2]. Clergeau also attested that his vision was

obscured from his eyes being shut from the damage, and this is partially corroborated by the

medical evidence. [Id. at 22:17-20; 87-13 at 1, 6].

It is true that the Officer Defendants who were subduing Clergeau faced a unique set of

circumstances involving a prisoner’s assault on an officer, and the Court must give some leeway

to their instant decisions made in such a dangerous situation. See Saucier v. Katz, 533 U.S. 194,

205 (2001) (“the reasonableness of the officer’s belief as to the appropriate level of force should

be judged from that on-scene perspective” and the court should give some “deference to the

judgment of reasonable officers on the scene”). At the same time however, the concern

underlying the Court’s decision here is not based on the split-second use of force by the officers

against Clergeau, but by their alleged continued use of force after the danger subsided.

Consequently, less deference is owed to an officer’s conduct when he continues to employ the

use of force after it no longer serves any legitimate purpose. Plaintiff also raises the question of

whether there was a realistic window during which de-escalation techniques could have been

used, as none of the officers reported employing any such techniques during and in the lead-up to

the altercation. [See Dkt. 87 at ¶ 17, 21; Shaw Tr. 35:20-24; 38:7-10]. His assertion may not be

particularly strong, yet Plaintiff has defended his claim sufficiently for his excessive use of force

claim to survive.

Qualified Immunity

Because of the factual disputes that remain unanswered here, the Court is unable to

ascertain whether the Officer Defendants are entitled to qualified immunity. Qualified immunity

shields government officials “from liability for civil damages” when “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 ‘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) (quoting Pagán v.

Calderón, 448 F.3d 16, 31 (1st Cir. 2006)). The Court must determine whether the officers

reasonably believed their actions were lawful in light of clearly established law and the

information they possessed at the time of their allegedly unlawful conduct. Lowinger v.

Broderick, 50 F.3d 61, 65 (1st Cir. 1995). An officer can avoid liability so long as their belief in

the lawfulness of their conduct was reasonable, even if that belief was later found to be mistaken.

Id. While qualified immunity is a question of law for the judge, and ideally should be resolved

in advance of trial, sometimes disputes as to material facts will preclude summary judgment

from being granted. Kelley v. LaForce, 288 F.3d 1, 7 (1st Cir. 2002) (internal quotations

omitted). In such instances, the Court can wait until after the facts have been settled to

determine whether the officer’s conduct was objectively reasonable and falls under the qualified

immunity umbrella. Id.

The Officer Defendants may be entitled to qualified immunity if it bears out that they

honestly and reasonably thought the level of force they used was necessary, even if the facts

established later that the level of force used was more than what was needed. See Lowinger, 50

F.3d at 65. However, Defendants would not be entitled to qualified immunity if the facts

establish that Clergeau continued to be beaten well after the officers knew the use of force was

no longer necessary. Hope v. Pelzer, 536 U.S. 730, 738, 741 (2002) (finding the use of a hitching

post was violation of the Eighth Amendment and not protected by qualified immunity because it

caused a “substantial risk of physical harm” and “unnecessary pain” long after “any safety

concern had long since abated”). It is beyond dispute that the use of force for the sake of

inflicting harm, such as for retribution for his assault on officers, is unlawful. See Whitley, 475

U.S. at 319; Skinner, 430 F.3d at 488.

Accordingly, Defendants’ Motion for Summary Judgment on Clergeau’s claims related to

the use of force is denied as to Officers Polak, Evans, Lussier, and Shaw.11 However, given that

there are no factual allegations that Officer Keeler spent any time in the backroom, took any part

in subduing Clergeau, or participated in any additional violence in the HSU [see Dkt. 87], the

claims against Officer Keeler are dismissed.

11 While Shaw was not in the room for the duration of the altercation, given that he left after suffering a significant

injury, he appears to have been in the room for some period of time after Clergeau was restrained. Therefore, there is

a factual dispute as to his participation in any excessive force that allegedly occurred in the backroom. [See Lussier

Tr at 24:19-24; Clergeau Tr. 19:20-21; backroom video 7:35-39].

B. Indifference to Clergeau’s medical needs in violation of ADA and Eighth

Amendment (Counts II, III, and V)

Clergeau also asserts claims of inadequacy of his health treatment, including the

Defendants’ indifference to the injuries he sustained after the altercation and for the Defendants’

deliberate indifference to his need for mental health treatment in violation of the ADA. [Compl.

at ¶¶ 47-51, 54, 57-58]. Under the Eighth Amendment’s prohibition on cruel and unusual

punishment, when individuals are incarcerated and the state has deprived them of their ability to

provide for themselves, the failure to provide adequate care “may actually produce physical

‘torture or a lingering death.’” Brown v. Plata, 563 U.S. 493, 510 (2011) (quoting Estelle v.

Gamble, 429 U.S. 97, 103 (1976)). To demonstrate an Eighth Amendment violation for

inadequate care, a prisoner must show: (1) “an objective prong that requires proof of a serious

medical need[;]” and (2) “a subjective prong that mandates a showing of prison administrators’

deliberate indifference to that need.” Kosilek v. Spencer, 774 F.3d 63, 82 (1st Cir. 2014). The

first prong does not impose “a duty to provide care that is ideal, or of the prisoner’s choosing.”

Id. The second refers to “a narrow band of conduct” Feeney v. Corr. Med. Servs. Inc., 464 F.3d

158, 162 (1st Cir. 2006) and “requires evidence that the failure in treatment was purposeful.”

Kosilek, 774 F.3d at 83. The Court must also consider security considerations that go into

maintaining the functioning of the prison. Id.

As far as the deficiencies in the medical care that Clergeau received after the incident, the

facts fail to support an Eighth Amendment claim. While there may have been a delay in his

treatment as a result of conversations between the medical staff and the COs, Clergeau was taken

to a hospital where he received treatment shortly after. [Clergeau Tr. 26:2-21]. The medical

records confirm Clergeau was admitted and treated at Umass Memorial Health Care by 9:17 AM

and was discharged before 1:00 PM. [Dkt. 87-13 at 2]. Clergeau does not allege that he suffered

consequences from his delay in treatment. Even if Clergeau had established that he had a serious

medical need, the facts are not sufficient to support an inference of deliberate indifference.

Despite his dissatisfaction, the Defendants did not have “a duty to provide care that is ideal, or of

the prisoner’s choosing.” See Kosilek, 774 F.3d at 83. To sustain a deliberate indifference

claim, the plaintiff must also have “evidence that the failure in treatment was purposeful.” Id.

The care that Clergeau did receive after the incident does not indicate that the Defendants had the

requisite intent to deprive him of medical treatment.

As part of his Eighth Amendment claim, Clergeau highlights not just the care he received

in the aftermath of the incident, but also the care he has received since, particularly when it

comes to his mental health. Clergeau points to his mental health ailments, which were apparent

to Defendants before the incident, and the deterioration of his mental health thereafter as

evidence of deliberate indifference to his need for treatment. [Dkt. 80 at 9]. He also argues that

his “Medic-5” requests, wherein he asks to speak with a mental health clinician, is an insufficient

response to his mental health needs. [Id.]. He points to his impeded efforts to obtain mental

health services in the weeks that followed the incident as further evidence. [Id. at 12].

The medical/mental health care provided for state inmates is provided by licensed

medical professionals employed by an independent contractor, in this case the Massachusetts

Partners for Correctional Health. [Dkt. 87 at ¶¶ 65-66]. However, the DOC’s leadership and

health officials are still responsible for the implementation and monitoring of its medical services

policies and the level of medical care provided to inmates. [Dkt. 87-8 at 1].

Clergeau’s perception is that when he called Medic-5, the responding clinician

interrogated him and told him it was his issue to resolve. [Clergeau Tr. 37:22-39:2]. To call

Medic-5, Clergeau had to first ask the Sergeant, which he asserts led to the denial or lack of

access to mental health treatment. [Id. at 43:8-24]. Clergeau also points to his experiences in a

watch cell, also known as a crisis cell, which limits his ability to turn off lights that officers can

keep on at will, and his access to soap and other hygiene products. [Id. at 41:22-42:24].

Clergeau claims to have been in those crisis cells on many occasions. [Id. at 42:19-22].

Clergeau’s complaints about the deficiencies in his mental health treatment fail to

establish a viable Eighth Amendment claim, as the issues Clergeau raises cannot fairly be said to

be equivalent to the denial of treatment—purposeful or otherwise. Random and conclusory

statements about the failure to provide mental health care are insufficient, and so are the

examples Clergeau highlights to support his claim. Clergeau first points to the Medic-5 process

where nurses speak to him in a hostile manner, more akin to an officer. [Clergeau Tr. 37:22-

39:22; 40:15-24]. He also points to delays that occur where he requests that officers allow him

to speak with a mental health worker before he is taken to a room to speak with one himself. [Id.

at 40:3-8]. Again, such care may not be ideal, but perfection is not required. See Kosilek, 774

F.3d at 83. To survive at this stage requires some factual underpinning, and Clergeau’s claim

fails here because it does not connect the particular flaws in his treatment to his need for

additional care. See id. at 82. Nor does it imply that the Defendants have the requisite intent of

deliberate indifference towards Clergeau’s needs. See id. Clergeau does state that he has been

denied access to support from mental health staff, even when he is in a crisis, despite raising the

issue with the supervisors of the unit he was in. [Clergeau Tr. 43:8-44:3]. Clergeau does not tie

this denial to any of the named defendants. The only exception is the Defendants who are the

prison’s administrators and are responsible for overseeing the work of third-party health vendors.

The facts here, however, are too bare bones to connect that oversight, or lack thereof, to the

particular deficiencies Clergeau highlights.

The same fate befalls Clergeau’s ADA claim. Title II of the ADA provides that “no

qualified individual with a disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services, programs, or activities of a public entity,

or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. This discrimination

can include scenarios wherein “deliberately requiring a plaintiff to endure unnecessary hardship

in order to access a program or service, when that hardship could easily be eliminated by a

reasonable accommodation.” Shedlock v. Dep’t of Corr., 442 Mass. 844, 855 (2004). The court

must take into account the “reasonable requirements of effective prison administration” and the

broader prison environment into its assessment of the request for accommodation. Id.

As in his deliberate indifference claim, Clergeau’s criticism of the treatment he receives

fails to explain how the facts substantiate his ADA claim. Clergeau has a serious mental illness

that requires treatment, but his disappointment in the Medic-5 process does not amount to a

denial of that treatment. Clergeau mentions the hostile manner with which healthcare workers

sometimes treat him. [Clergeau Tr. 37:22-39:22; 40:15-24]. He does not describe how that

conduct resulted in his being “excluded from participation in or be[ing] denied the benefits”

available to others at SBCC. See 42 U.S.C. § 12132. Clergeau also raises grievances about his

time in a segregated unit and about his denial of access to care. [Clergeau Tr. 43:8-24; 44:23-

45:12]. These claims are devoid of sufficient factual allegations, especially regarding the

treatment Clergeau expected to receive and where the care Clergeau did receive fell short. [Id. at

44:23-45:4]. Clergeau also makes no suggestion as to whether a reasonable accommodation

would alleviate the hardship—as would usually be required for him to sustain such a claim. See

Kiman v. New Hampshire Dep’t of Corr., 451 F.3d 274, 283 (1st Cir. 2006) (“In cases where the

alleged violation involves the denial of a reasonable modification/accommodation, the ADA’s

reasonable accommodation requirement usually does not apply unless ‘triggered by a request’”

unless the need for that accommodation is obvious) [id. at 44:23-45:4].

C. Inadequate Training and Supervision on the Part of DOC, Commissioner Mici,

Superintendents Silva, Kenneway, and Gray (Counts II, III, and IV)

Plaintiff claims that the leadership of DOC and SBCC, failed to adequately supervise and

train their officers. [Compl. at ¶¶ 53-58]. Under Section 1983, there is no liability for

supervisors under a respondeat superior basis and any liability that does attach to supervisors

must be based on their own acts or omissions.12 Justiniano v. Walker, 986 F.3d 11, 20 (1st Cir.

2021). In the context of a failure to train or supervise claim, where a subordinate violates the

constitutional rights of the plaintiff, the supervisor defendant’s actions must amount to deliberate

indifference to those violations. Id. Causation is an essential element in such a claim, which is

demonstrated by showing that the “lack of training caused [the officer] to take actions that were

objectively unreasonable and constituted excessive force.” Id. (quoting Young v. City of

Providence ex rel. Napolitano, 404 F.3d 4, 27 (1st Cir. 2005)).

Causation can be demonstrated by “showing inaction in the face of a ‘known history of

widespread abuse sufficient to alert a supervisor to ongoing violations.’” Id. at 21 (quoting

Maldonado–Denis v. Castillo–Rodríguez, 23 F.3d 576, 582 (1st Cir. 1994)). At the same time, a

plaintiff is still obligated to demonstrate how the identified deficiencies would have been

remedied by that training. Baptiste v. Sheriff of Bristol Cnty., 617 N.E.2d 641, 644 (Mass. App.

1993) (explaining that under Section 1983, the sheriff overseeing the jail was not liable for a

stabbing that used scissors from the jail’s barbershop because plaintiff failed to demonstrate how

12 For this same reason, Clergeau’s Eighth Amendment claims brought against Mici, Silva, Kenneway, and Gray for

the actions of the officers during the altercation are not viable. The available facts, and allegations in the Complaint,

do not indicate that they participated in, ordered, or were otherwise aware of or indifferent to the alleged use of

excessive force against Clergeau.

the additional training would have prevented the incident); McLeod-Lopez v. Algarin, 603 F.

Supp. 2d 330, 337 n.2 (D.P.R. 2009) (“an assertion that a supervisor ‘failed to train’ his

subordinates and that he should be held liable for such failure, without identifying the factual

underpinnings of such failure, nor identifying the causal nexus between the failed training and

the . . . misconduct, is not enough”).

Clergeau’s claim of inadequate training and supervision fails to establish the connection

between the use of excessive force and any training that would have prevented it. See id. There

are examples of poor behavior and misconduct that Clergeau highlights, including Officer Shaw

threatening Clergeau despite knowing that he had significant mental health challenges. [Dkt. 80

at 13]. All the examples provided though stem from the individual altercation, which does not

establish causation by itself. [Id.]. That single incident is not equivalent to “a history of

widespread abuse” or the narrow circumstance “where a violation ‘is a highly predictable

consequence of a failure to equip law enforcement officers with specific tools to handle recurring

situations.’” Echavarria v. Roach, 565 F. Supp. 3d 51, 89 (D. Mass. 2021) (quoting Justiniano,

986 F.3d at 20-21). Clergeau points to the failure of any officers to use de-escalation techniques

or to adequately deal with the mental health conditions they knew he had. [Dkt. 80 at 14-15].

Again, however, without any facts indicating how additional or altered training would have

avoided the same outcome, Clergeau does not have enough for his inadequate training claim to

survive. See Baptiste, 617 N.E.2d at 644.

D. Retaliation (Count III)

“Government actors offend the First Amendment when they retaliate against an

individual for constitutionally protected speech.” González–Droz v. González–Colón, 660 F.3d

1, 16 (1st Cir. 2011). To articulate a First Amendment retaliation claim, the plaintiff must: (1)

show that his conduct was constitutionally protected; and (2) show a causal connection between

his protected speech and the retaliatory response. Goldstein v. Galvin, 719 F.3d 16, 30 (1st Cir.

2013). The latter is established by showing that “the plaintiff's conduct was a ‘substantial’ or

‘motivating’ factor in bringing about the allegedly retaliatory action.” Id. (quoting Mt. Healthy

City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).

Clergeau highlights a number of instances in which he was treated poorly by COs

following the incident, but his retaliation claim fails because he does not show the connection

between that treatment and any of his own First Amendment protected activities. [Dkt. 80 at 15-

16]. The Officer Defendants’ alleged behavior is troubling, including their laughing at

Clergeau’s injuries, threatening him further, and any changes they may have made to the

conditions of his confinement. [Id.]. However, Clergeau does not connect any of these issues to

any conduct of his that was protected by the First Amendment. He does raise an instance where

his cell was ransacked and some of his grievance papers were destroyed in retaliation for his

assistance in getting an officer fired. [Id.]. However, the officer he names as responsible for

this, Officer Titus, is not one of the named defendants. [Id.]. Clergeau thus has not shown that

his constitutionally protected conduct produced a retaliatory response from the Defendants. See

Goldstein, 719 F.3d at 30. Therefore, his retaliation claim is not viable and is thus dismissed.

IV. CONCLUSION

For the foregoing reasons, the Defendants’ Motion for Summary Judgment [Dkt. 75] is

GRANTED IN PART and DENIED IN PART. The Motion is DENIED as to the Eighth

Amendment claims for excessive use of force and assault and battery that is brought against the

Officer Defendants in their personal capacity, with the exception of Officer Keeler (Count III).

The Motion is GRANTED as to the claims against Officer Keeler. The Motion is GRANTED

as to Plaintiff’s claims that Defendants violated the ADA (Count II), failed to provide necessary

medical care or tend to his mental health needs (Count II and III), failed to offer or undergo

proper training regarding the use of excessive force (Counts II, III, and IV), and as to the claim

that Defendants improperly retaliated against him (Count III). The Motion is GRANTED as to

any claims brought against the DOC, Steven Silva, Stephen Kenneway, Dean Gray, and Carol

Mici (Counts II, III, IV, V).

SO ORDERED.

Dated: January 27, 2024 /s/ Angel Kelley

Hon. Angel Kelley

United States District Judge