De Armas v. Elsmore

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

RAFAEL DE ARMAS, )

Plaintiff, )

) Civil Action

v. ) No. 21-11069

)

NELSON ALVES and )

JOSEPH L. ELSMORE, )

)

Defendants. )

)

MEMORANDUM AND ORDER

March 18, 2024

Saris, D.J.

INTRODUCTION

Rafael De Armas sues Officer Joseph L. Elsmore and

Superintendent Nelson Alves pursuant to 42 U.S.C. § 1983 for

violating his Eighth Amendment rights. De Armas, who was

incarcerated under Defendants’ supervision, alleges that Elsmore

used excessive force against him by slamming him to the ground on

February 21, 2021. De Armas claims that Alves subsequently decided

to confine him in a restricted housing unit for over six months

despite his well-documented and serious mental illness. Defendants

counter that De Armas’s excessive-force claim against Elsmore

fails as a matter of law and even if not, both Elsmore and Alves

are entitled to qualified immunity. After a hearing and review of

the record, the motion is DENIED as to Elsmore but ALLOWED as to

Alves (Dkt. 59).1

BACKGROUND

Drawing all inferences in favor of De Armas, the Court

considers the following facts undisputed unless otherwise noted.

I. Parties

Plaintiff De Armas is a sixty-nine-year-old man incarcerated

by the Commonwealth of Massachusetts. At all times relevant to

this case, De Armas was incarcerated at Massachusetts Correctional

Institution at Norfolk (“MCI-Norfolk”), a medium-security facility

in Norfolk, Massachusetts. De Armas suffers from depression and

bipolar disorder, which are considered serious mental illnesses by

the Department of Correction (“DOC”). Under DOC supervision, he

regularly takes prescribed medications -- Wellbutrin and lithium

-- to manage his mental illnesses.

Defendant Elsmore is a corrections officer who has worked at

MCI-Norfolk since 2017. Defendant Nelson Alves has been the

Superintendent of MCI-Norfolk since 2020.

1 De Armas also raised claims under the Fourteenth Amendment’s

Equal Protection Clause and Due Process Clause. See Dkt. 1 at

16-17. De Armas does not contest the grant of summary judgment on

those claims, so Defendants’ motion is ALLOWED as to De Armas’s

standalone Fourteenth Amendment claims.

II. Use of Force

On the night of February 21, 2021, De Armas took his

medications at the MCI-Norfolk hospital’s medication line and

began walking back to his living quarters. De Armas paused in an

alleyway near MCI-Norfolk’s grass Quad. Around the same time,

Elsmore, who had just left his post at the medication line, entered

the alleyway. Elsmore asked De Armas what he was doing and then

ordered him to stop and submit to a search. De Armas refused and

became agitated because he mistook Elsmore for a corrections

officer who had assaulted him at a previous facility. Francesco

Rondinelli, a fellow corrections officer who had been posted near

the Quad, witnessed the encounter between Elsmore and De Armas

from afar and began approaching when he saw Elsmore

waving for assistance.2

Surveillance footage captured some of what followed. See

Dkt. 61, Exh. F at 19:17:34-19:17:57. As De Armas kept walking

through the alleyway toward his housing unit, Elsmore walked

slightly ahead of De Armas and to his left. Elsmore continually

2 Elsmore claims that as he approached De Armas, he saw De Armas

wrapping pills in cellophane. He alleges that when he confronted

De Armas, De Armas threw the wrapped pills into the snow around a

nearby fire escape and continued to walk toward his housing unit.

Elsmore also claims that at some point, he saw a pill in De Armas’s

mouth. After the incident, another officer reported that he found

a pill wrapped in cellophane in the area, although it did not match

the color of the pills Elsmore claimed he saw De Armas handling.

There is no evidence of the recovered pill’s chemical composition,

nor whether it matched De Armas’s medication.

placed himself in De Armas’s path and extended his right arm toward

De Armas. For about thirteen seconds, De Armas walked forward and

slightly to the right, distancing himself from Elsmore, while

waving his open hands and telling Elsmore he had nothing in them.

See id. at 19:17:34-19:17:47; Dkt. 76 at 6.

As De Armas and Elsmore approached a T-junction in the

sidewalk, De Armas began to turn left toward his housing block,

into Elsmore’s extended arm. See Dkt. 61, Exh. F at 19:17:49. By

this time, Rondinelli was approaching within Elsmore’s line of

sight. Id. Elsmore, still positioned in front of De Armas, stopped

ceding ground and held his arm out to De Armas’s chest, physically

preventing De Armas from turning left. Id. at 19:17:52. De Armas

attempted to move Elsmore’s arm out of the way twice. Id. at

19:17:51-19:17:54; Dkt. 76 at 5. As Rondinelli arrived just a few

feet away, De Armas pushed Elsmore’s arm away a third time. See

Dkt. 61, Exh. F at 19:17:54. Elsmore then pulled De Armas in by

his right shoulder and wrapped his arms around De Armas’s torso

from the rear. See id. at 19:17:54-19:17:55. The surveillance

footage is unclear as to what happened next. Under De Armas’s

version, Elsmore lifted him off the ground and slammed him onto

the pavement below. See id. at 19:17:54-19:17:57. Elsmore and

Rondinelli restrained De Armas on the ground for around a minute

before other officers arrived, although it is not clear from the

footage whether they used any additional force on the ground. See

id. at 19:17:54-19:19:03. No one other than Elsmore, Rondinelli,

and De Armas appears in the footage until around forty seconds

after the takedown. See id. at 19:18:21.

Elsmore, who is 6’3” tall, is larger and a full head taller

than De Armas in the surveillance footage. See id. at 19:17:54;

see also Dkt. 61-4 at 43:3-9. The encounter left De Armas’s right

hand bloodied, bruised, scraped, and swollen. De Armas still

suffers pain in his right shoulder and arm from the incident. A

nurse at MCI-Norfolk treated his physical injuries, noted he had

a “mental health condition,” and cleared him for placement in a

Restrictive Housing Unit (“RHU”). Dkt. 76 at 7. RHU entailed being

confined to a cell for twenty-two hours per day.3 Massachusetts

regulations require that “[b]efore placement in Restrictive

Housing, an inmate shall be screened by a Qualified Mental Health

Professional to determine if the inmate has a serious mental

illness” or “if Restrictive Housing is otherwise clinically

contraindicated.” 103 Mass. Code Regs. § 423.08. An offsite mental

health clinician was “notified” about De Armas’s placement in the

RHU but did not assess him or opine on his fitness for solitary

confinement. See Dkt. 76 at 7; Dkt. 61-3 at 65:17-67:24. However,

qualified mental health professionals did see De Armas on February

22nd, 23rd, and 24th. See Dkt. 64. The clinician who saw him on

3 DOC has since discontinued RHU in favor of arrangements with more

out-of-cell time. See Dkt. 61-3 at 51:16-22.

February 22nd reported that De Armas “denied current [mental

health] concerns” and “reported he . . . will be able to manage in

RHU.” Id. at 3. That clinician concluded that he was “[s]table”

and “cleared to RHU.” Id. Clinicians coded De Armas as “2AB” or

“MH2AB” on mental health assessments, indicating among other

things that he met the “definition for Serious Mental Illness.”

See id. at 1, 5, 9; 103 D.O.C. § 650.06(B)(1).

Elsmore also received treatment the night of February 21st

for injuries to his right hand and elbow. Elsmore says he took

De Armas down because he felt threatened by De Armas “yelling at

[him], enter[ing] his personal space,” pushing his arm, and

refusing to comply with his orders. See Dkt. 76 at 6. Elsmore’s

shift commander submitted a “use of force package” that concluded

Elsmore had complied with DOC policy. See id. at 8. Alves reviewed

the package and agreed with the shift commander’s conclusion.

III. Solitary Confinement

After receiving treatment for injuries to his hand, De Armas

was immediately placed in the RHU. On February 22nd, De Armas

received notice from Alves that he had been placed there because

he was awaiting a disciplinary hearing and posed an “unacceptable

risk . . . to the operation of the facility.” Dkt. 61-15 at 1; see

also Dkt. 76 at 18 (noting that “Plaintiff was in awaiting action

status and housed within the RHU at MCI-Norfolk, pending the

outcome of [his] disciplinary report”). The notice estimated that

De Armas would be in the RHU only for a week. It also stated that

there was no available placement for De Armas in a Secure Treatment

Unit (“STU”) or Secure Adjustment Unit (“SAU”) -- housing

arrangements that provide specialized services to individuals with

serious mental illnesses, see 103 Mass. Code Regs. § 423.06 -- and

that De Armas’s housing would “be identified following the

disciplinary process.” Dkt. 61-15 at 1; see 103 Mass. Code Regs.

§ 423.09(2)(a) (requiring that incarcerated people with serious

mental illness may not be placed in the RHU unless an official

certifies that “there is no available placement in an STU or SAU,”

attests that “efforts are being undertaken to find appropriate

housing,” and provides “the status of the efforts”). MCI-Norfolk

did not have SAU or STU units, but Alves had the authority to

transfer De Armas to other facilities with open slots pending his

hearing. See 103 Mass. Code Regs. § 423.11 (allowing transfer of

an incarcerated person “awaiting a hearing for a violation of

institution rules” to STU or SAU “following recommendation from

the Placement Review Committee and a determination by the

Superintendent” that “the inmate no longer requires Restrictive

Housing but cannot be placed in general population”); but see

Dkt. 61-3 at 81:16-82:16 (Alves testifying that transferring

De Armas to a different facility for SAU or STU “wouldn’t be my

call until the . . . disciplinary proceeding is done”).

Pursuant to 103 Mass. Code Regs. § 423.09(1)(a), a Placement

Review Committee met every Monday, Wednesday, and Friday to

determine whether to keep De Armas in the RHU, transfer him to an

SAU or STU, or release him back to general population. The

Committee included Alves, security personnel, medical and mental

health staff, and others. Regulations required the Committee to

consider the totality of De Armas’s case, including “mental health

issues,” and to keep him in the RHU “only if the Superintendent

. . . determine[d] that [De Armas] pose[d] an unacceptable risk”

to other people, property, or the operation of the facility. 103

Mass. Code Regs. § 423.09(1)(b)-(c). From De Armas’s placement in

the RHU on February 22nd until March 11th, the Placement Review

Committee’s notes stated that although Alves believed De Armas

still posed a threat to the facility, he was “not reasonably

expected over 30 days [in the] RHU.” Dkt. 76 at 16.

On March 11th, MCI-Norfolk’s Correctional Program Officer

(“CPO”) reviewed De Armas’s confinement in the RHU as required by

103 Mass. Code Regs. § 423.09(3)(a). The CPO reiterated that

De Armas had been “confined to restrictive housing awaiting a

hearing” and that confining him to the RHU was appropriate because

of the nature of his disciplinary report. Dkt. 76 at 16. As

required by 103 Mass. Code Regs. § 423.09(3)(a)(4), De Armas was

provided “Standards and Goals” indicating how to increase his

chances of being released from the RHU. Alves reviewed the CPO’s

report and concurred with its rationale for keeping De Armas in

the RHU. Alves later testified that even if De Armas had complied

with all the standards and goals provided, the Placement Review

Committee would not have released him pending his hearing. See

Dkt. 61-3 at 97:12-19. The following day, the Placement Review

Committee’s notes indicated that De Armas was “reasonably expected

over 30 days [in the] RHU,” and that per the March 11th review,

Alves had determined De Armas still posed a threat to the

facility’s operation. Dkt. 76 at 16.

De Armas learned on March 9th that his disciplinary hearing

before DOC’s Central Inmate Disciplinary Unit would occur later

that month, on March 30th. On March 24th, he received notice that

he would have his hearing a day ahead of schedule, on March 29th.

However, on April 2nd, his hearing was postponed to April 13th.

On May 13th, pursuant to 103 Mass. Code Regs. § 423.09(3)(c),

a three-person committee of MCI-Norfolk employees formally

reviewed De Armas’s continued confinement in the RHU. Alves was

not on the committee. The committee determined that “[c]ontinued

retention in restrictive housing [wa]s warranted” because of the

seriousness of his alleged misconduct. Dkt. 61-13 at 4. Alves

denied De Armas’s appeal of the committee’s report and again

concurred in its rationale. He also noted that De Armas’s hearing

had been postponed twice and would now occur on May 27th. Notably,

neither the report nor Alves’s review mentioned De Armas’s serious

mental illness. On June 2nd, De Armas was informed that his hearing

had again been postponed, this time until June 10th.4

At his June 10th disciplinary hearing, De Armas was found

guilty of one charge, and the other twelve charges against him

were dismissed. Alves did not participate in the hearing. De Armas

received a sanction of four months in the Department Disciplinary

Unit, a restrictive housing unit where DOC sends incarcerated

people found guilty of misconduct, with his four months in the RHU

credited as time served.

De Armas appealed his sanction on June 30th. Because De Armas

was found guilty at his hearing, Alves decided to place him in

custody status review to determine whether he should be

reclassified. De Armas’s appeal of his sanction was denied on

August 3rd and on August 13th, the reclassification board raised

his classification and recommended transferring him to Souza-

Baranowski Correctional Center (“SBCC”), a maximum-security

facility. Dkt. 76 at 12; Dkt. 61-3 at 156:4-16. De Armas appealed

his reclassification, but this appeal also was denied on August

4 The record is unclear as to whether De Armas received notice of

each continuance prior to each scheduled hearing date. See Dkt.

61-3 at 126:23-127:9 (Alves testifying that he did not know whether

De Armas “would’ve received a notice of continuance before March

30th if [his hearing] wasn’t going to happen on March 30th”).

29th. Two days later, De Armas was transferred to SBCC, where he

remains today. From June 10th, when De Armas finished serving his

four-month sanction, to August 31st, when he was transferred to

SBCC, De Armas remained housed in MCI-Norfolk’s RHU.

According to De Armas’s log on MCI-Norfolk’s Inmate

Management System, during his 191-day placement in the RHU, he

interacted with qualified mental health professionals forty-one

times. See Dkt. 61, Exh. U. Although the log is unclear as to how

long most of these interactions lasted and where they occurred,

De Armas met with a clinician outside his cell at least six times.

See id. (noting out-of-cell visits on March 24th, April 12th, May

7th, June 9th, June 29th, and July 21st).

IV. Mental Health Evaluation

De Armas submits a mental health report written by Dr. James

Greer, a licensed psychiatrist, for this litigation. See Dkt. 77-2.

Dr. Greer reviewed De Armas’s past mental health records and

interviewed De Armas via video-call on May 22, 2023. De Armas has

been hospitalized at Bridgewater State Hospital four times.

According to Dr. Greer, De Armas suffers from depression and

bipolar disorder with signs of paranoia. Dr. Greer opines that

De Armas’s past “decompensations have been directly attributed to

his lengthy placements in segregation,” and that, “based on a

reasonable degree of medical certainty,” De Armas’s six-month

placement in the RHU “caused significant mental harm, was dangerous

to his wellbeing, and was inappropriate given his medical

diagnosis.” Dkt. 71-1 at 5-6.

LEGAL STANDARD

Summary judgment is appropriate when there is “no genuine

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

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine

dispute exists where the evidence “is such that a reasonable jury

could resolve the point in the favor of the non-moving party.”

Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 87 (1st Cir.

2018) (quoting Cherkaoui v. City of Quincy, 877 F.3d 14, 23-24

(1st Cir. 2017)). A material fact is one with the “potential of

changing a case’s outcome.” Doe v. Trs. of Bos. Coll., 892 F.3d

67, 79 (1st Cir. 2018).

In general, “a party seeking summary judgment always bears

the initial responsibility of informing the district court of the

basis for its motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). “To succeed, the moving party must show that there is an

absence of evidence to support the nonmoving party’s position.”

Rogers v. Fair, 902 F.2d 140, 143 (1st Cir. 1990). Once it has

made the requisite showing, the burden shifts to the nonmovant to

“present definite, competent evidence to rebut the motion” and

demonstrate that a “trialworthy issue persists.” Vineberg v.

Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008) (internal citations

and quotations omitted). “The court must view the facts in the

light most favorable to the non-moving party and draw all

reasonable inferences in [his] favor.” Carlson v. Univ. of New

Eng., 899 F.3d 36, 43 (1st Cir. 2018).

Where the record includes “a videotape capturing the events

in question,” the Court should “view[] the facts in the light

depicted by the videotape.” Scott v. Harris, 550 U.S. 372, 378,

381 (2007). And if “opposing parties tell two different stories,

one of which is blatantly contradicted” by the video “so that no

reasonable jury could believe it, a court should not adopt that

version of the facts.” Id. at 380.

DISCUSSION

I. Excessive Force

De Armas claims that Elsmore violated his Eighth Amendment

rights by “lift[ing] him into the air” and “gratuitously body

slamm[ing] him to the pavement." Dkt. 75 at 2. The Eighth Amendment

protects against “cruel and unusual punishments,” including

“unnecessary and wanton infliction of pain” during incarceration.

U.S. Const. amend. VIII; Whitley v. Albers, 475 U.S. 312, 319

(1986). An Eighth Amendment claim for excessive force has two

components. First, the plaintiff must show that “the alleged

wrongdoing was objectively ‘harmful enough’ to establish a

constitutional violation.” Staples v. Gerry, 923 F.3d 7, 13 (1st

Cir. 2019) (quoting Hudson v. McMillan, 503 U.S. 1, 8 (1992)).

Second, the plaintiff must show that 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.” Id. (quoting Whitley, 475 U.S. at 320-21). Elsmore

argues that De Armas fails both prongs because he suffered only a

de minimis injury, and because Elsmore used force reasonably in

response to De Armas “yelling at [him], enter[ing] his personal

space,” pushing his arm, and refusing to comply with his orders.

See Dkt. 76 at 6.

First, the objective prong. “[D]e minimis uses of physical

force” cannot constitute Eighth Amendment violations, see Hudson,

503 U.S. at 10, but “there is no requirement of ‘serious injury,’”

Mullen v. Dep’t of Corr., 643 F. Supp. 3d 238, 247 (D. Mass. 2022)

(citing Bastien v. Goddard, 279 F.3d 10, 14-16 (1st Cir. 2002)).

Elsmore, who was thirty-five years old and 6’3” tall, allegedly

lifted De Armas, who was sixty-six years old and several inches

shorter, off the ground and slammed him onto pavement. This left

De Armas with a bruised, bloody, swollen right hand, and allegedly

with continuing pain in his shoulder and arm. A jury could

reasonably find that Elsmore’s conduct was “objectively harmful

enough to establish a constitutional violation.” Staples, 923 F.3d

at 13 (cleaned up); see Carter v. Symmes, No. 06-10273, 2008 WL

341640, at *5 (D. Mass. Feb. 4, 2008) (holding that a single shove

rose beyond de minimis use of force because prison official knew

incarcerated person was “severely injured in his hip and knee”).

Turning to the subjective prong, “[t]he critical question

. . . is 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) (cleaned up) (first quoting

Whitley, 475 U.S. at 320-21; and then quoting Hudson, 503 U.S. at

7). Courts consider “the need for application of force, the

relationship between that 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.”

Hudson, 503 U.S. at 7 (cleaned up). The severity of the plaintiff’s

injuries may inform whether the officer’s conduct was malicious

and sadistic. See Wilkins v. Gaddy, 559 U.S. 34, 38-39 (2010).

Whether Elsmore used force reasonably is a question for the

jury. Elsmore was significantly taller and younger than De Armas.

On the night in question, De Armas was walking alone back to his

living quarters. After Elsmore positioned himself in front of

De Armas and placed his arm up to physically block De Armas’s path,

De Armas pushed Elsmore’s arm away to try to walk past him. Moments

later, Elsmore brought De Armas down onto the pavement even though

Rondinelli, whom Elsmore had waved over for assistance, was just

a few feet away. On these facts, which are disputed, a jury could

reasonably find that although De Armas refused to follow Elsmore’s

orders, Elsmore applied force disproportionately to any threat

De Armas legitimately posed to Elsmore or the facility’s orderly

operation. Cf. Orwat v. Maloney, 360 F. Supp. 2d 146, 154 (D. Mass.

2005) (noting that plaintiff’s “gesture and words, though

concededly belligerent, were not threatening” enough to justify

defendant hitting plaintiff in the face). Defendants’ reliance on

Scott v. Harris is misplaced. A jury could find, for example, that

Elsmore could reasonably have de-escalated or restrained De Armas

given his significant and known mental health condition rather

than taking him to the ground.

Alternatively, Elsmore argues that he is entitled to

qualified immunity. Qualified immunity protects government

officials from being sued in their individual capacities for

damages unless “(1) they violated a federal statutory or

constitutional right, and (2) the unlawfulness of their conduct

was ‘clearly established at the time.’” Irish v. Fowler, 979 F.3d

65, 76 (1st Cir. 2020) (quoting Dist. of Columbia v. Wesby, 583

U.S. 48, 62-63 (2018)). On the first prong, as noted above, the

jury could reasonably find that Elsmore violated De Armas’s Eighth

Amendment Rights. As to the second prong, the Court considers

“whether under the plaintiff’s version of the facts[,] a reasonable

officer should have known that the degree of force used was plainly

excessive.” Morelli v. Webster, 552 F.3d 12, 25 (1st Cir. 2009).

As of 2021, caselaw clearly established that force applied not “in

a good-faith effort to maintain or restore discipline” would

violate the Eighth Amendment. See Hudson, 503 U.S. at 7; Mullen,

643 F. Supp. 3d at 249-50; see, e.g., Carter, 2008 WL 341640, at

*5 (denying summary judgment where the prisoner alleged the officer

shoved him knowing he was “severely injured in his hip and knee”);

Abrams v. Waters, No. 17-1659, 2018 WL 691717, at *7 (D. Conn.

Feb. 2, 2018) (finding that a corrections officer responding to a

fight violated the Eighth Amendment when, after the fight had

ended, he slammed an incarcerated person onto the floor). Whether

Elsmore reasonably perceived De Armas as threatening, whether he

actually saw De Armas wrapping and throwing pills, and whether his

conduct was excessive are factual questions for the jury. See

Dkt. 61-4 at 20:19-21:11 (Elsmore testifying that DOC regulations

allow for spontaneous use of force “[t]o prevent self[-]harm or

serious threat of injury, bodily injury to yourself or others,”

and to prevent escape). The Court declines to grant summary

judgment for Elsmore on the defense of qualified immunity.

II. Deliberate Indifference

De Armas also claims that Alves violated his Eighth Amendment

rights by continually approving his lengthy placement in solitary

confinement despite knowing he suffered from serious mental

illnesses. Alves moves for summary judgment based on qualified

immunity. As noted above, a public official is entitled to

qualified immunity unless “(1) [he] violated a federal statutory

or constitutional right, and (2) the unlawfulness of [his] conduct

was ‘clearly established at the time.’” Irish, 979 F.3d at 76

(quoting Wesby, 583 U.S. at 62-63).

“A prison official’s ‘deliberate indifference’ to a

substantial risk of serious harm to an inmate violates the Eighth

Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1994). Making

out a claim for deliberate indifference requires two showings:

first, that the deprivation alleged was “objectively,

‘sufficiently serious,’” and second, that the prison official

showed “‘deliberate indifference’ to inmate health or safety.”

Leite v. Bergeron, 911 F.3d 47, 52 (1st Cir. 2018) (quoting Farmer,

511 U.S. at 832-34). “A prison official is deliberately indifferent

where [he] ‘knows of and disregards an excessive risk to inmate

health or safety.’” Id. (quoting Farmer, 511 U.S. at 837).

The Supreme Court and the First Circuit have “rejected the

idea that prolonged isolation [i]s in itself cruel and unusual

punishment.” See Jackson v. Meachum, 699 F.2d 578, 584 (1st Cir.

1983) (citing Hutto v. Finney, 437 U.S. 678, 685-86 (1978)).

However, segregated confinement “may violate the Eighth Amendment

if, in the circumstances, it is extremely disproportionate,

arbitrary[,] or unnecessary.” See O’Brien v. Moriarty, 489 F.2d

941, 944 (1st Cir. 1974) (“Imposed inappropriately, or for too

long a period, even the permissible forms of solitary confinement

might violate the Eighth Amendment.”); Hutto, 437 U.S. at 686

(“[T]he length of confinement cannot be ignored in deciding whether

the confinement meets constitutional standards.”). Prolonged

solitary confinement also may violate the Eighth Amendment if the

prisoner is not provided “systematic, periodic review of [his]

condition, his ability to reenter the general population, and the

feasibility of providing means of lessening the rigors of his

segregation.” Jackson, 699 F.2d at 584 & n.5 (citing Rhodes v.

Chapman, 452 U.S. 337, 346 (1981)).

A growing number of circuit courts have held that keeping a

person with a serious mental illness in prolonged solitary

confinement5 violates the Eighth Amendment if he is not provided

access to adequate mental healthcare.6 In Palakovic v. Wetzel, the

5 The record does not fully detail the conditions in the RHU but

nevertheless supports the conclusion that the RHU constituted

solitary confinement. People incarcerated in the RHU were confined

to their cells for at least twenty-two hours per day. See 103 Mass.

Code Regs. § 423.06; Davis v. Ayala, 576 U.S. 257, 286 (2015)

(Kennedy, J., concurring) (equating “administrative segregation”

to “solitary confinement”). Additionally, Alves seemed to equate

restrictive housing to solitary confinement during his deposition.

See, e.g., Dkt. 61-3 at 73:24-74:3, 74:15-20 (Alves agreeing that

he found it “justified to place [De Armas] in solitary confinement

to await his disciplinary hearing”).

6 See Crane v. Utah Dep’t of Corrs., 15 F.4th 1296, 1306-07 (10th

Cir. 2021) (acknowledging district court cases holding that

“isolating mentally ill inmates in conditions that seriously and

predictably exacerbate their mental illness is cruel and unusual”

but finding the law not “clearly established”); Melendez v. Sec’y,

Fla. Dep’t of Corrs., No. 21-13455, 2022 WL 1124753, at *11-12

(11th Cir. Apr. 15, 2022) (per curiam) (affirming grant of

preliminary injunction where plaintiff alleged, among other

things, that his “mental illness was exacerbated” by six years in

solitary confinement). The Seventh Circuit has taken a different

approach. See Vasquez v. Braemer, 586 F. App’x 224, 227-28 (7th

Cir. 2014) (rejecting Eighth Amendment claim because defendants

decedent’s parents sued prison officials and medical personnel for

subjecting their son, who suffered from mental health issues

including depression and suicidal ideation, to “multiple 30-day

stints” of solitary confinement over the course of thirteen months.

854 F.3d 209, 216-17 (3d Cir. 2017). The complaint noted that

during the decedent’s confinement, the Department of Justice had

investigated the prison and ultimately found:

[A] “system-wide failure of security staff to consider

mental health issues appropriately,” a “fragmented and

ineffective” mental healthcare program, insufficient

mental healthcare staffing to meet the prison

population’s needs, “[p]oor screening and diagnostic

procedures,” poor recordkeeping “contributing to a

dysfunctional system that undermined continuity of

care,” “[d]eficient oversight mechanisms, including the

failure to collect necessary information on critical

incidents, such as acts of self-harm,” and a lack of

training in the proper response to warning signs by

prisoners with serious mental illness.

Id. (second and third alterations in original). The Third Circuit

held that the plaintiffs had “state[d] a plausible claim that [the

decedent] experienced inhumane conditions of confinement to which

the prison officials . . . were deliberately indifferent” and

reversed dismissal. Id. at 225-26.

Similarly, in Disability Rights Montana, Inc. v. Batista, an

advocacy organization sued prison officials in Montana for Eighth

Amendment violations on behalf of “all prisoners with serious

did not believe plaintiff specifically would face serious harm,

notwithstanding his known mental illness).

mental illness” confined in state prison. 930 F.3d 1090, 1093 (9th

Cir. 2019). The Ninth Circuit reversed dismissal because the

plaintiff alleged not only that people with mental illnesses were

placed in solitary confinement, but also “that prisoners with

serious mental illness [we]re denied diagnosis and treatment of

their conditions,” that “defendants did not respond appropriately

to threats of suicide by mentally ill prisoners,” and that “the

defendants’ policies caused prisoners’ mental health to get

substantially worse, result[ing] in prisoners inflicting self-harm

. . . [and] committing suicide.” Id. at 1098.

Based on the undisputed facts in the record, no reasonable

jury could find that Alves acted with deliberate indifference to

an excessive risk to De Armas’s health and safety. Notably,

De Armas does not allege that Alves neglected to provide him with

proper mental health screening, diagnosis, or treatment. Although

his solitary confinement was unduly prolonged,7 De Armas received

7 The First Circuit recently held that “solitary confinement of

more than ninety days” implicates a liberty interest under the

federal Due Process Clause. See Perry v. Spencer, No. 16-2444,

2024 WL 702348, at *15 (1st Cir. Feb. 21, 2024) (en banc).

Likewise, the Massachusetts Supreme Judicial Court has held that

under the federal and state Due Process Clauses, “in no

circumstances may an inmate be held in segregated confinement on

awaiting action status for longer than ninety days without a

hearing.” LaChance v. Comm’r of Corr., 978 N.E.2d 1199, 1207 (Mass.

2012). De Armas was confined in the RHU for a total of 191 days,

109 of which were on awaiting action status pending his hearing.

As noted above, De Armas does not contest the grant of summary

judgment on his due process claims.

a mental health assessment the day after his placement in the RHU

and told the clinician that he “w[ould] be able to manage in RHU.”

Dkt. 64 at 3. He interacted with qualified mental health

professionals at least forty-one times -- including at least six

visits outside his cell -- during his confinement in the RHU. See

id., Exh. U. Although De Armas’s expert opined based on De Armas’s

past placements in segregated housing that his mental health may

have deteriorated because of his confinement in the RHU, there is

no evidence his condition actually worsened during this six-month

solitary confinement, or that Alves was subjectively aware of any

decline. See Scarver v. Litscher, 434 F.3d 972, 975 (7th Cir. 2006)

(“Probably [he] should have known, but that would make [hi]m guilty

merely of negligence and not of deliberate indifference (the mental

state required to establish an Eighth Amendment violation), which

would require proof that [he] w[as] conscious of the risk.”).

Because De Armas cannot show that Alves’s conduct rose to the level

of an Eighth Amendment violation, Alves is entitled to qualified

immunity. See Irish, 979 F.3d at 76.

ORDER

For the reasons stated above, Defendants’ Motion for Summary

Judgment is DENIED as to Elsmore but ALLOWED as to Alves (Dkt. 59).

SO ORDERED.

/s/ PATTI B. SARIS

Patti B. Saris

United States District Judge