SOUCY v. SERGEANT THOMAS AVERILL

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

RICKY SOUCY, SR., )

)

Plaintiff, )

)

v. ) 1:20-cv-00024-JDL

)

MAINE DEPARTMENT OF )

CORRECTIONS, et al., )

)

Defendants )

RECOMMENDED DECISION ON DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT AND

ORDER ON MOTIONS TO SEAL

Plaintiff, an inmate incarcerated at the Maine State Prison (MSP), alleges

Defendants1 violated the Americans with Disabilities Act (ADA), the Rehabilitation Act,

and his Eighth Amendment rights when he was transferred from the Close Unit to the

Medium Unit of the MSP.

The matter is before the Court on Defendants’ motion for summary judgment. (ECF

No. 61.) Defendants also moved to seal their statement of facts and exhibits and their reply

statement of facts. (Motions, ECF Nos. 59, 69.) After a review of Defendants’ motions

1 In his complaint, Plaintiff asserted claims against multiple defendants. After review of Plaintiff’s

complaint pursuant to 28 U.S.C. §§ 1915(e) & 1915A, the Court dismissed all Plaintiff’s claims except his

Eighth Amendment claims against Defendants Touchette, Soper and Averill, and his claims under the ADA

and Rehabilitation Act against the State of Maine. (Recommended Decision and Order Adopting

Recommended Decision, ECF Nos. 13 & 15; Supplemental Recommended Decision and Order Adopting

Supplemental Recommendation, ECF Nos. 24, 29.)

and the record, I grant in part the motions to seal and I recommend the Court grant the

motion for summary judgment.

MOTIONS TO SEAL

In support of the motions to seal, Defendants cite 34-A M.R.S. § 1216, which

provides that the Maine Department of Corrections (MDOC) cannot disclose

administrative and medical information regarding an inmate, except under certain

circumstances. The information can be disclosed pursuant to a court order. 34-A M.R.S. §

1216(C).

When a court considers a motion to seal, the court must be mindful that the law

recognizes a presumption “of public access to judicial proceedings and records.” United

States v. Kravetz, 706 F.3d 47, 52 (1st Cir. 2013). As the First Circuit has acknowledged,

however, “[t]hough the public’s right to access is vibrant, it is not unfettered. Important

countervailing interests can, in given instances, overwhelm the usual presumption and

defeat access.” Id. at 59 (quoting Siedle v. Putnam Inv., Inc., 147 F.3d 7, 10 (1st Cir.

1998)). In its assessment of a request to seal, a court is required to “carefully balance the

presumptive public right of access against the competing interests that are at stake in a

particular case.” Id.

Plaintiff asserts claims based on his medical condition and his medical treatment.

In his complaint, Plaintiff included relatively detailed information about his medical

condition. Plaintiff thus has placed his medical condition in issue and has disclosed

information that might otherwise be subject to the confidentiality requirement of § 1216.

Plaintiff’s privacy interest, therefore, is somewhat diminished by his disclosure of the

information. Furthermore, the information regarding Plaintiff’s medical condition is

relevant, if not essential to the Court’s assessment of the summary judgment motion. By

rule, the statements of material facts are the principal source of the summary judgment

record. The public interest in access to the statements of fact to assess the merits of the

Court’s decision, therefore, is significant.

The balancing of the respective interests does not militate in favor of the seal of

Defendants’ statements of material fact. However, because the medical and other records

included as exhibits to the statements contain information that is not material to Plaintiff’s

claims and the Court’s decision, the seal of some of the attachments (ECF Nos. 59-1, 59-

2, 59-3, 59-4) to Defendants’ Statement of Material Facts shall be sealed. The Statement

of Material Facts (ECF No. 59-5) and the Reply Statement of Material Facts (ECF No. 69-

1) shall not be sealed. 2

SUMMARY JUDGMENT RECORD

When presented with a summary judgment motion, a court ordinarily considers only

the facts included in the parties’ statements of material facts, which statements must be

supported by citations to evidence of record. Federal Rule of Civil Procedure 56(c) and

2 After the briefing on the motion for summary judgment was complete, Plaintiff filed what he styled, in

part, as a “Motion not to Seal Defendants’ Dockets and to Dismiss Statements Made by Dr. Ali.” (ECF No.

72.) The Court docketed the filing as a sur-reply. Plaintiff does not directly address the issue of which

documents he contends should be sealed or unsealed. He contends, however, that he did not give Raziuddin

Ali, M.D., one of Defendants’ declarants and Regional Medical Director for Wellpath, the company

contracted with MDOC to provide healthcare services to inmates, permission to disclose, or testify

regarding, his medical files. (See Declaration of Dr. Raziuddin Ali, ECF No. 60-10.) As noted above,

through the allegations he asserted in this case, Plaintiff placed certain portions of his medical history at

issue. To the extent Plaintiff moves to strike the Ali Declaration, therefore, the Court denies Plaintiff’s

request.

District of Maine Local Rule 56(b)-(d) require the specific citation to record evidence. In

addition, Local Rule 56 establishes how parties must present their factual statements and

the evidence on which the statements depend. A party’s pro se status does not relieve the

party of the obligation to comply with the court’s procedural rules. Ruiz Rivera v. Riley,

209 F.3d 24, 27-28 & n. 2 (1st Cir. 2000); Marcello v. Maine, 489 F. Supp. 2d 70, 77 (D.

Me. 2007).

By rule, a party seeking summary judgment must file, in addition to its summary

judgment motion, a supporting statement of material facts setting forth each fact in a

separately numbered paragraph, with each factual statement followed by a citation to

evidence of record that supports the factual statement. D. Me. Loc. R. 56(b). A party

opposing a motion for summary judgment must file an opposing statement in which it

admits, denies, or qualifies the moving party’s statements by reference to each numbered

paragraph, with citations to supporting evidence, and in which it may set forth additional

facts, in separately numbered paragraphs, with citation to supporting evidence. D. Me.

Loc. R. 56(c). If an additional statement is introduced by the non-moving party, the moving

party must file a reply statement in which it admits, denies, or qualifies the non-moving

party’s additional statements by reference to each numbered paragraph, with citations to

supporting evidence. D. Me. Loc. R. 56(d).

“Facts contained in a supporting or opposing statement of material facts, if

supported by record citations as required by this rule, shall be deemed admitted unless

properly controverted.” D. Me. Loc. R. 56(f). Additionally, “[t]he court may disregard

any statement of fact not supported by a specific citation to record material properly

considered on summary judgment.” Id. Finally, “[t]he court shall have no independent

duty to search or consider any part of the record not specifically referenced in the parties’

separate statement of facts.” Id.

Plaintiff filed a statement of fact, which lacked citation to the record and did not

specifically respond to Defendants’ statements of fact. (Plaintiff’s Statement of Fact, ECF

No. 66.) The Court will consider Defendants’ uncontroverted statements of fact and

Plaintiff’s statements to which the Defendants admitted in their reply statement of material

facts.3 (See ECF No. 69-1.)

In addition, where a pro se litigant has failed to comply strictly with the summary

judgment rules, this Court has considered the sworn assertions of record. See Clarke v.

Blais, 473 F. Supp. 2d 124, 128-30 (D. Me. 2007) (“The First Circuit has not addressed

this notice debate directly, but has said, in the summary judgment context, that

unrepresented plaintiffs’ opposing affidavits and opposition papers are to be read

‘liberally.’” (citing Posadas de Puerto Rico, Inc. v. Radin, 856 F.2d 399, 401 (1st Cir.

1988), and Mas Marques v. Digital Equip. Corp., 637 F.2d 24, 27 (1st Cir. 1980));

Demmons, 484 F. Supp. 2d at 182-83. The Court, therefore, will consider Plaintiff’s

deposition testimony.4 (Transcript (Tr.), ECF No. 60-14.)

3 While in some instances, a court might consider the assertions in a pro se verified complaint when

assessing the merits of a summary judgment motion, see, e.g., Demmons v. Tritch, 484 F. Supp. 2d 177,

182-83 (D. Me. 2007), in this case, neither Plaintiff’s complaint nor the amendment of his complaint can

be considered a verified pleading.

4 As referenced above, Plaintiff submitted additional documents after Defendants filed their reply. Plaintiff

entitles the submission a “Motion not to Seal Defendants’ Dockets and to Dismiss Statements Made by Dr.

Ali and to Allow these Statements of Facts. Motion for [Summary] Judgment in My Behalf.” (Sur-reply,

ECF No. 72.) The Court docketed the submission as a sur-reply as it is primarily a sur-reply (but see

SUMMARY JUDGMENT FACTS

From 2004 when he entered the MSP to 2017, Plaintiff was assigned to the second

floor of the Close Unit in a single cell without a roommate. (Defendants’ Statement of

Material Fact (DSMF) ¶¶ 4, 8-10; Tr. 68:11-19.) Plaintiff was diagnosed with several

serious health conditions and complained of chronic pain to MSP’s health services

contractor.5 (DSMF ¶¶ 11-13, 26-27.) Although he had some difficulty walking,6 he was

neither wheelchair-bound nor assigned his own wheelchair. (DSMF ¶¶ 14-15, 26-28; Tr.

13:24-14:18.) MSP’s healthcare providers did authorize Plaintiff’s use of a wheelchair.7

(DSMF ¶¶ 29-35, 87-90.)

footnote 2 above.) “Neither the Federal Rules nor the Local Rules permit[] a party to file a sur-reply to the

moving party’s reply[;] therefore, sur-replies are disfavored and granted only in rare circumstances.”

Primary Prods. LLC v. Apple, Inc., 2:21-sv-00137-JDL, 2021 WL 3610507, at *1 n.1 (D. Me. Aug. 13,

2021) (citations and quotation marks omitted). Although Plaintiff states that his sur-reply is a declaration

pursuant to 28 U.S.C. § 1746, he failed to provide the jurat required under § 1746(2) that his statements are

true and correct under penalty of perjury. In any event, because Plaintiff’s submission reiterates arguments

made in his opposition which are addressed below, references a subsequent disciplinary matter that is not

at issue, and attaches medical records regarding a current medical condition, the filing does not include any

additional material record evidence.

5 Healthcare providers at MSP issue annual Physical Activity Limitation (PAL) sheets to alert non-medical

MDOC staff, including correctional officers, to any medical conditions an inmate has that require

restrictions, to the nature of the restrictions (if any), to the inmate’s special needs (if any), and to any

appliances the inmate is permitted to use. (DSMF ¶ 29.) Non-medical MDOC staff do not have direct

access to the PAL sheets; rather, the information regarding an inmate’s medical restrictions is also contained

in the inmate’s “Current Alerts,” to which MDOC staff have direct access. (DSMF ¶ 30.) Among the

restrictions in Plaintiff’s operative PAL sheet in August 2017 were no running, no prolonged standing

greater than 10 minutes without a 15 minute rest, and no strenuous physical activity; his special needs

consisted of a need to have a bottom bunk and a double or air mattress. (DSMF ¶ 32.)

6 Plaintiff used handrails to walk around the second floor, as well as up and down the stairs to and from the

first floor. (Tr. 13:24-14:18.)

7 Plaintiff’s PAL sheet, as well as the “Current Alerts,” listed a wheelchair among Plaintiff’s site appliances,

but neither expressly stated any medical restriction on Plaintiff’s ability to walk, nor specified any

circumstances in which the wheelchair should be used. (DSMF ¶¶ 32-34.) Plaintiff considered the

wheelchair as an appliance he could use “whenever [he] needed it ….” (Tr. 19:20-21:2.)

Inmates who are wheelchair-bound or regularly rely on a wheelchair are not

typically assigned to live on an upper floor. (DSMF ¶ 14.) Plaintiff declined to have a

wheelchair allocated to him, but he did use one from time to time. (DSMF ¶ 15; Tr. 16:2-

13, 23:24-24:14.) He could walk from his cell down the stairs to the ground floor and back

as often as twice daily for meals, to get his mail, to go to the recreation yard, or occasionally

to go to the medical clinic accompanied by guards. (DSMF ¶¶ 16-17; Tr. 13:23-16:23;

23:9-24:6.) Plaintiff would also push the meal cart from the hallway into the pod on the

first floor. (DSMF ¶¶ 20-22; Tr. 17:25-23:4.)

On or before August 31, 2017, MDOC officials reclassified Plaintiff from Close

custody to Medium custody and ordered MSP personnel to move Plaintiff from the Close

Unit to the Medium Unit. (DSMF ¶ 37.) Defendants Averill, Touchette and Soper were

correctional guards working in the Close Unit on August 31, 2017; none of them was

involved in the decision to move Plaintiff. (DSMF ¶¶ 38, 44.) An officer told Plaintiff he

was being moved from Close to Medium and to pack his belongings. (DSMF ¶ 39; Tr.

36:20-25.) Plaintiff did not pack because he did not want to move and, for mental health

reasons, he believed that it would be unsafe for him to have a roommate. (DSMF ¶ 40; Tr.

37:1-38:18.) He asked to speak with the officers in the sergeant’s office, and then walked

down to the first floor to do so. (DSMF ¶¶ 42-43; Tr. 39:5-40:1, 55:11-19.)

Plaintiff told Defendants Averill, Touchette and Soper and another officer that a

mental health provider informed him that he could hurt someone if he was in a cell with

another person and that there was an agreement that he would remain in a single cell.

(DSMF ¶¶ 44, 46; Tr. 38:19-39:4, 41:17-42:7.) Plaintiff became loud during this

conversation and demanded to be taken to segregation. (DSMF ¶¶ 47-48; Tr. 40:19-4.)

The officers put Plaintiff on Emergency Observation Status and Defendants Touchette and

Soper placed him in hand restraints behind his back, as they had been instructed to do.

(DSMF ¶¶ 49-50; Tr. 41:11-13.) According to Plaintiff, he requested a wheelchair, but the

request was denied. (Tr. 41:5-11.) Defendants Averill, Touchette and Soper stated they

had seen Plaintiff walking around the unit, but none remembers ever seeing him use a

wheelchair.8 (DSMF ¶ 36.)

Defendants Touchette and Soper walked on either side of Plaintiff from the Close

Unit to the Medium Unit, with each holding him by one of his upper arms and supporting

his weight occasionally when his legs gave out. 9 (DSMF ¶¶ 51, 54; Tr. 46:14-47:7.) At

the time, Plaintiff weighed approximately 300 pounds. (DSMF ¶ 55; Tr. 52:2-4.) Plaintiff

states that during the walk, he fell on stairs in the Medium Unit, cutting his leg. (DSMF ¶

58; Tr. 48:20-49:2, 59:14-60:5, 69:11-70:20.) After Plaintiff stumbled on the stairs,

Defendants Touchette and Soper helped him up and they continued walking. (DSMF ¶

58.) Defendant Averill accompanied Plaintiff and Defendants Touchette and Soper, but he

did not touch Plaintiff. (DSMF ¶ 52; Tr. 46:14-47.)

Plaintiff asked to see a mental health provider; and after he arrived in the Medium

Unit, a mental health provider was contacted. (DSMF ¶¶ 60, 63-65.) After Defendants

8 Plaintiff was told that someone contacted the medical department and that medical department personnel

said that Plaintiff did not need a wheelchair to go to the Medium Unit. (Tr. 56:9-20.)

9 Plaintiff describes his move to the Medium Unit as being “dragged;” he was on his feet with the officers

holding him up during the escort to the Medium Unit. (DSMF ¶ 54; Tr. 47:8-53:23.)

Averill, Touchette and Soper left Plaintiff in the Medium Unit, a mental health provider

spoke with Plaintiff and observed him injuring himself. (DSMF ¶¶ 60-70, 75-76.) The

nurse who treated the injury to his wrist noted that there were three spots of blood on

Plaintiff’s pant leg. (DSMF ¶¶ 71-72.) Plaintiff asserts the cut on his leg bled, but he did

not inform the nurse of his leg injury or any other injuries and he refused to go to the

medical department to be evaluated. (DSMF ¶¶ 72-74; Tr. 61:11-18; 65:23-71:2.) The

medical records do not reflect any reports by Plaintiff of injuries sustained as a result of

the move to the Medium Unit.10 (DSMF ¶¶ 78-80, 97-106.) Plaintiff rubbed his wrist

causing an injury because he was upset and nervous and asked again to go to segregation,

to which he was transported from the Medium Unit. (Tr. 61:5-21.)

Plaintiff was returned to the Close Unit on September 1, 2017. (DSMF ¶¶ 75-77.)

Plaintiff resided on the second floor of the Close Unit, declining to have a wheelchair

assigned to him, until he was transferred to another facility in 2018. (DSMF ¶¶ 18, 105-

06, 108-09; Tr. 78:24-80:4.) Plaintiff believes that his medical conditions were

exacerbated by being forced to walk to the Medium Unit. (Tr. 74:-11-76:16.)

SUMMARY JUDGMENT STANDARD

“The court shall grant summary judgment if the movant shows that 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). “After the moving party has presented evidence in support

of its motion for summary judgment, ‘the burden shifts to the nonmoving party, with

10 Plaintiff asserts that his biceps were bruised during the move. (Tr. 74:6-10.)

respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact

reasonably could find in his favor.’” Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st

Cir. 2013) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 158 (1st Cir. 1998)).

A court reviews the factual record in the light most favorable to the non-moving

party, resolving evidentiary conflicts and drawing reasonable inferences in the non-

movant’s favor. Perry v. Roy, 782 F.3d 73, 77 (1st Cir. 2015). If a court’s review of the

record reveals evidence sufficient to support findings in favor of the non-moving party on

one or more of the Plaintiff’s claims, a trial-worthy controversy exists, and summary

judgment must be denied as to any supported claim. Id. at 78 (“The district court’s role is

limited to assessing whether there exists evidence such that a reasonable jury could return

a verdict for the nonmoving party.” (internal quotation marks omitted)). Unsupported

claims are properly dismissed. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

DISCUSSION

I. Plaintiff’s Eighth Amendment Claims

Plaintiff claims that Defendants Averill, Touchette and Soper violated his Eighth

Amendment rights by refusing to provide him with a wheelchair for his transport from the

Close Unit to the Medium Unit and by injuring him during the transport.

A claim of constitutional harm caused by state actors, as Plaintiff has alleged, is

actionable under the Civil Rights Act, 42 U.S.C. § 1983, which provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom,

or usage, of any State …, subjects, or causes to be subjected, any citizen of

the United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress, ….

42 U.S.C. § 1983. “Section 1983 provides a cause of action when an individual, acting

under color of state law, deprives a person of constitutional rights.” Saldivar v. Racine,

818 F.3d 14, 18 (1st Cir. 2016); see 42 U.S.C. §1983. To maintain a claim under section

1983, “a plaintiff must show that ‘the challenged conduct [is] attributable to a person acting

under color of state law’ and that ‘the conduct must have worked a denial of rights secured

by the Constitution or by federal law.’” Freeman v. Town of Hudson, 714 F.3d 29, 37 (1st

Cir. 2013) (alteration in original) (quoting Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir.

1997)).

The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.”

U.S. Const. amend. VIII. “It is undisputed that the treatment a prisoner receives in prison

and the conditions under which [the prisoner] is confined are subject to scrutiny under the

Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993). Under the Eighth

Amendment, prison conditions cannot be inhumane, but they need not be comfortable.

Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth Amendment “imposes duties

on [prison] officials, who must provide humane conditions of confinement; prison officials

must ensure that inmates receive adequate food, clothing, shelter, and medical care, and

must ‘take reasonable measures to guarantee the safety of the inmates.’” Id. (quoting

Hudson v. Palmer, 468 U.S. 517, 526-527 (1984)).

Plaintiff’s contention that Defendants Averill, Touchette and Soper violated his

Eighth Amendment rights appears to be based on claims of deliberate indifference to his

serious medical needs and the use of excessive force. See McNeeley v. Wilson, 649 F.

App’x 717, 721 (11th Cir. 2016) (Eighth Amendment claims may be premised on charges

of deliberate indifference, conditions of confinement, and/or excessive use of force). As

discussed below, the record does not support his claims.

A. Deliberate Indifference to Medical Needs

Defendants’ obligation regarding Plaintiff’s medical care is governed by the Due

Process Clause of the Fourteenth Amendment. The Due Process Clause imposes on states

the “substantive obligation” not to treat prisoners in their care in a manner that reflects

“deliberate indifference” toward “a substantial risk of serious harm to health,” Coscia v.

Town of Pembroke, 659 F.3d 37, 39 (1st Cir. 2011), or “serious medical needs,” Feeney v.

Corr. Med. Servs., 464 F.3d 158, 161 (1st Cir. 2006) (quoting Estelle v. Gamble, 429 U.S.

97, 105-106 (1976)). To be actionable, a deliberate indifference claim must satisfy both

an objective and a subjective standard. Leavitt v. Corr. Med. Servs., 645 F.3d 484, 497 (1st

Cir. 2011).

The objective standard evaluates the seriousness of the risk of harm to one’s health.

For a medical condition to be objectively “serious,” there must be “a sufficiently substantial

‘risk of serious damage to [the inmate’s] future health.’” Farmer v. Brennan, 511 U.S.

825, 843 (1994) (quoting Helling v. McKinney, 509 U.S. 25, 35 (1993)). A medical need

is serious if it has been diagnosed by a physician as mandating treatment or is so obvious

that even a lay person would recognize a need for medical intervention. Leavitt, 645 F.3d

at 497; Gaudreault v. Mun. of Salem, 923 F.2d 203, 208 (1st Cir. 1990), cert. denied, 500

U.S. 956 (1991)).

The subjective standard concerns the culpability of the defendant. There must be

evidence that a defendant possessed a culpable state of mind amounting to “deliberate

indifference to an inmate’s health or safety.” Farmer, 511 U.S. at 834 (internal quotation

marks omitted). Deliberate indifference is akin to criminal recklessness, “requiring actual

knowledge of impending harm, easily preventable.” Feeney, 464 F.3d at 162 (quoting

Watson v. Caton, 984 F.2d 537, 540 (1st Cir. 1993)). The focus of the deliberate

indifference analysis “is on what the jailers knew and what they did in response.” Burrell

v. Hampshire Cnty., 307 F.3d 1, 8 (1st Cir. 2002).11

To prove facts that satisfy the objective standard, therefore, unless the need for a

specific treatment or the use of an assistive device is obvious even to a lay person, a plaintiff

must establish that a physician has made a diagnosis mandating that treatment. Leavitt,

645 F.3d at 497. Additionally, a plaintiff must prove that the defendants in question

demonstrated deliberate indifference to the plaintiff’s serious medical need by disregarding

11 Deliberate indifference must be distinguished from negligence. As the First Circuit explained:

A finding of deliberate indifference requires more than a showing of negligence. Estelle

v. Gamble, 429 U.S. 97, 106 (1976) (holding that “[m]edical malpractice does not become

a constitutional violation merely because the victim is a prisoner”); Sires v. Berman, 834

F.2d 9, 13 (1st Cir. 1987). A plaintiff claiming an eighth amendment violation with respect

to an inmate’s serious mental health or safety needs must allege “acts or omissions

sufficiently harmful to evidence deliberate indifference.” Estelle, 429 U.S. at 106; see also

Cortes-Quinone v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S.

823 (1988). Although this court has hesitated to find deliberate indifference to a serious

need “[w]here the dispute concerns not the absence of help, but the choice of a certain

course of treatment,” Sires, 834 F.2d at 13, deliberate indifference may be found where the

attention received is “so clearly inadequate as to amount to a refusal to provide essential

care.”

Torraco v. Maloney, 923 F.2d 231, 234 (1st Cir. 1991).

“impending harm, easily preventable,” Feeney, 464 F.3d at 162, or “a refusal to provide

essential care,” Torraco, 923 F.2d at 234.

Here, the facts in the summary judgment record do not support a finding of an Eighth

Amendment violation based on deliberate indifference to a serious medical need. A review

of the record reveals no evidence that a physician diagnosed Plaintiff with a condition

mandating the use of a wheelchair, or that Plaintiff’s need for a wheelchair was obvious to

a lay person. The evidence establishes that Plaintiff often walked around both floors of the

Close Unit, went up and down stairs, pushed the meal cart, and occasionally walked to the

medical department and recreation yard. Defendants Averill, Touchette and Soper

observed him walking in the Close Unit. The evidence also establishes that Plaintiff

declined to have a wheelchair assigned specifically to him. In sum, the record does not

support an inference that Plaintiff’s need for a wheelchair to move from the Close Unit to

the Medium Unit was obvious to a lay person.

Even if the need was obvious, Plaintiff’s claim fails because Plaintiff has not

satisfied the subjective prong of the deliberate indifference standard. Plaintiff admits that

he could walk at least some distance with support and Defendants regularly saw him

walking within the Close Unit. Defendants Averill, Touchette and Soucy were unaware of

any medical restriction on Plaintiff’s ability to walk, and they confirmed that Plaintiff did

not require a wheelchair for the move. Defendants Touchette and Soucy physically

supported Plaintiff during the escort to the Medium Unit. Upon Plaintiff’s arrival at the

Medium Unit, as Plaintiff requested, contact was made with a mental health provider.

There is no evidence in the record “of actual medical risk to the plaintiff[] as to make it

unreasonable to conclude that the [Defendants] knowingly disregarded such a risk,” Nunes

v. Mass. Dep’t of Corr., 766 F.3d 136, 143 (1st Cir. 2014.),

B. Excessive Force

Plaintiff’s excessive force claim is also governed by the Eighth Amendment. A

claim of excessive force in violation of the Eighth Amendment “has two components – one

subjective, focusing on the defendant’s motive for his conduct, and other objective,

focusing on the conduct’s effect.’” Staples v. Gerry, 923 F.3d 7, 13 (1st Cir. 2019) (quoting

Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009)).

The subjective component focuses on determining “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.” Whitley v. Albers, 475 U.S. 312, 320-21 (1986). Factors

relevant to that determination include “ʻthe extent of the threat to the safety of staff and

inmates, as reasonably perceived by the responsible officials,’ ‘the need for the application

of force,’ ‘the relationship between the need and the amount of force that was used,’ ‘the

extent of the injury inflicted,’ and ‘any efforts made to temper the severity of a forceful

response.’” Staples, 923 F.3d at 13 (quoting Whitley, 475 U.S. at 321).

Plaintiff’s unsupported contentions about the pain and injuries he allegedly suffered

and his assertion that the walk exacerbated existing medical conditions, without more, do

not support a finding of a constitutional violation. The record thus does not establish that

“the alleged wrongdoing was objectively ‘harmful enough’ to establish a constitutional

violation.” Staples, 923 F.3d at 13 (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)).

Regardless of whether the record could satisfy the objective prong, Plaintiff has not

satisfied the subjective prong of deliberate indifference. The mere fact that Plaintiff

suffered minor injuries in or experienced pain following the incident alone cannot support

a finding that the force used included the necessary wantonness. To constitute

cruel and unusual punishment, conduct that does not purport to be

punishment at all must involve more than ordinary lack of due care for the

prisoner’s interests or safety….. It is obduracy and wantonness, not

inadvertence or error in good faith, that characterize the conduct prohibited

by the Cruel and Unusual Punishments Clause…. The infliction of pain in

the course of a prison security measure, therefore, does not amount to cruel

and unusual punishment simply because it may appear in retrospect that the

degree of force authorized or applied for security purposes was unreasonable,

and hence unnecessary in the strict sense.

Whitley, 475 U.S. at 319 (citations omitted). In this case, Plaintiff refused to pack his

belongings, argued with the officers regarding the move to the Medium Unit, raised his

voice, and advised that a provider told him that he might hurt someone if he had to live in

a cell with another inmate. Under the circumstances, no reasonable factfinder would

conclude that Defendants’ decision to put Plaintiff in hand restraints to escort him to the

Medium Unit was unreasonable as part of Defendants’ responsibility to maintain security

and order. 12 Staples, 923 F.3d at 10-14.

12 Defendant Averill also argues that any claim against him would be based on supervisory liability under

§ 1983 because Plaintiff does not assert that he either dragged Plaintiff or directly caused any of Plaintiff’s

alleged injuries. Any claim for supervisory liability against Defendant Averill fails because, for the reasons

stated above, Plaintiff cannot establish that Defendants Touchette or Soper violated his constitutional rights.

See Hegarty v. Somerset Cty, 53 F.3d 1367, 1379-80 (1st Cir. 1995) (to establish supervisory liability, there

must be “proof that the supervisor’s conduct led inexorably to [a] constitutional violation.”).

Defendants Averill, Touchette and Soper also argue that they are entitled to qualified immunity.

Government officers are entitled to qualified immunity unless they violate a constitutional right that was

“clearly established” when they engaged in the conduct at issue. Hunt v. Massi, 773 F.3d 361, 367 (1st Cir.

II. Plaintiff’s Claims Under the ADA and Rehabilitation Act

Plaintiff alleges Defendant State of Maine violated his rights under the ADA and

the Rehabilitation Act.

The ADA and Rehabilitation Act “provide, in nearly identical language, 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.’” Nunes, 766 F.3d at 144.13

Disability discrimination can consist of (a) the imposition of adverse consequences on a

prisoner based on the prisoner’s disability, (b) a prison policy that is neutral in its terms,

but impacts prisoners with a disability more significantly, or (c) the refusal by the prison

administrators to grant the prisoner a reasonable accommodation so that the prisoner can

have meaningful access to a prison program or service. Id. at 145.

To prevail on a claim of disability discrimination, Plaintiff must show that he (1) is

a qualified individual with a disability, (2) who was either excluded from participation in

or denied the benefits of the State’s services, programs, or activities or was otherwise

discriminated against, (2) and that such exclusion, denial of benefits or discrimination was

by reason of his disability. Id. at 144.

2014). Because I have determined that the facts do not support a finding of a constitutional violation, I do

not address the qualified immunity argument.

13 Title II prohibits such conduct by public entities. 42 U.S.C. § 12132. Title III prohibits discrimination

in places of public accommodation. 42 U.S.C. § 12182(a). Section 504 of the Rehabilitation Act prohibits

discrimination under any program or activity receiving federal financial assistance. 29 U.S.C. § 794(a).

Plaintiff’s allegation that he was refused the use of a wheelchair to move from one

unit in the prison to another could be construed as a claim that he was denied a reasonable

accommodation. Id. at 145. The record, however, lacks the necessary medical evidence

that Plaintiff required a wheelchair to travel the distance from the Close Unit to the Medium

Unit. To the contrary, the uncontroverted evidence establishes that Plaintiff walked around

the Close Unit without a cane or walker, climbed up and down the stairs, pushed the chow

cart through the hallway, and occasionally walked to and from the medical department and

rec yard. The record also lacks evidence that would establish the assistance provided by

the officers would not constitute a reasonable accommodation if Plaintiff had difficulty

walking to the Medium Unit. That is, on this record, no reasonable factfinder could find

that the assistance Plaintiff received from Defendants Touchette and Soper during the walk

to the Medium Unit, accompanied by Defendant Averill, did not constitute a reasonable

accommodation. Id. at 146. Defendant State of Maine, therefore, is entitled to summary

judgment on Plaintiff’s ADA and Rehabilitation Act claims.

CONCLUSION

I grant in part Defendants’ motions to seal. Certain attachments (ECF Nos. 59-1,

59-2, 59-3, 59-4) of Defendants’ Statement of Material Facts shall be sealed. The

Statement of Material Facts (ECF No. 59-5) and the Reply Statement of Material Facts

(ECF No. 69-1) shall not be sealed.

Based on the foregoing analysis, I also recommend the Court grant Defendants’

motion for summary judgment and enter judgment in favor of Defendants on all claims.

NOTICE

Any objections to the order on the motions to seal shall be filed in

accordance with Federal Rule of Civil Procedure 72.

A party may file objections to those specified portions of a magistrate

judge’s report or proposed findings or recommended decisions entered

pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district

court is sought, together with a supporting memorandum, within fourteen

(14) days of being served with a copy thereof. A responsive memorandum

shall be filed within fourteen (14) days after the filing of the objection.

Failure to file a timely objection shall constitute a waiver of the right

to de novo review by the district court and to appeal the district court's order.

/s/ John C. Nivison

U.S. Magistrate Judge

Dated this 21st day of September, 2021.