Wigfall v. Duval

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

DORNELL WIGFALL, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO.

) 00-12274-DPW

ROBERT SHEA, )

LARRY MARSHALL, )

SHAUN DEWEY, )

)

Defendants. )

MEMORANDUM AND ORDER

OF

FINDINGS OF FACT

AND

CONCLUSIONS OF LAW

August 12, 2024

The late Plaintiff, Dornell Wigfall, pursued this

prisoner’s civil rights case pro se, alleging that certain

individual defendants violated his Eighth Amendment right to be

free from cruel and unusual punishment in connection with his

removal from a cell at Souza-Baranowski Correctional Center on

February 11, 1999.

By way of this Memorandum, providing an explanation

specifically regarding disposition of claims against the last

remaining defendants, I provide my general conclusion that Mr.

Wigfall did not demonstrate by a preponderance of the evidence a

violation of his Eighth Amendment rights by any served

defendant.

The following constitute my findings of fact and

conclusions of law pursuant to FED. R. CIV. P. 52 together with

associated observations relative to my orders of dismissal of

the other defendants before the jury waived trial of the

remaining three defendants. Final Judgment will enter

accordingly and the case will be closed.

I.

Following a bench trial, “the court must find the facts

specially and state its conclusions of law separately.” FED. R.

CIV. P. 52(a)(1). “[W]hen facts are in dispute the court weighs

the evidence and makes findings of credibility.” Woodman v.

United States, 602 F. Supp. 3d 265, 271 (D.N.H. 2022), appeal

dismissed, No. 22-1553, 2022 WL 18401460 (1st Cir. Dec. 6,

2022); “[c]redibility calls are for the trier.” Sawyer Bros.,

Inc. v. Island Transporter, LLC, 887 F.3d 23, 31 (1st Cir. 2018)

(quoting Carr v. PMS Fishing Corp., 191 F.3d 1, 7 (1st Cir.

1999)).

As trier of fact, I “need only make brief, definite,

pertinent findings and conclusions upon the contested matters;

there is no necessity for over-elaboration of detail or

particularization of facts.” Reich v. Newspapers of New

England, Inc., 44 F.3d 1060, 1079 (1st Cir. 1995) (citation

omitted). The process of review and reconsideration of the

record following Mr. Wigfall’s passing, as a predicate for

issuance of a final judgment in this case, fully satisfies me

that no other outcome than a judgment for defendants is

supportable. I chose to elaborate certain details and offer

further particularization of facts relating to preceding motion

practice to explain why this is so.

II.

On February 11, 1999, Mr. Wigfall was a convicted prisoner

in custody of the Massachusetts Department of Corrections in the

Special Management Unit (“SMU”) at the newly commissioned Souza-

Baranowski Correctional Center facility (“Souza-Baranowski”).

On February 10 and 11, 1999, Corrections Commissioner

Michael Maloney authorized an institution-wide search, a

procedure referred to as a “shakedown” by the parties in this

matter. Each cell in the institution was to be searched for

weapons and contraband. Deputy Commissioner Ronald Duval was

put in charge of the search.

Prison policy mandated that officers conduct a strip search

prior to searching each cell during such an event. The prisoner

was required to remove his clothing and pass it out the food

tray slot. Under prison policy, after officers checked the

clothing for contraband, they were to return it to the prisoner

so that he could re-dress. Pursuant to prison policy, officers

would handcuff the prisoner and he was to exit his cell while it

was searched.

“The resolution of factual disputes in a case such as this

often turns on assessing the reliability of competing and

conflicting testimony from the interested parties.” Werner v.

Therien, No. CIV.A. 99-12497-GAO, 2005 WL 1000010, at *6 (D.

Mass. Mar. 31, 2005). Under the circumstances, I have “a

substantial reason to suspect that the parties all have a

substantial motive to shade the truth or even flatly fabricate

to support their respective positions.” Id. (emphasis added).

Approaching the parties’ self-interested testimony warily in

this case has seemed prudent.

As will appear below, I find it is the testimony addressed

in support of Mr. Wigfall’s position that is the less reliable.

Because it is Mr. Wigfall’s “burden to prove the facts necessary

to support his claims by a preponderance of the evidence. . . .

he must prove that it is more likely than not that the events

occurred as he and his witnesses described them.” Id. I find

the evidence, as submitted during the travel of this case, does

not even approximate to 50/50 in support of Mr. Wigfall’s

position.

Mr. Wigfall initially refused to comply with orders to come

to the door of his cell and allow himself to be handcuffed (or

in other words, he refused to “cuff up”). After he refused,

members of the team told Deputy Commissioner Duval that Mr.

Wigfall would not comply. Deputy Commissioner Duval reviewed

the circumstances and authorized an order for use of force as to

Mr. Wigfall, who was known to be an aggressive individual

trained and skilled in the martial arts.

Members of the Special Operations Unit implemented the

order. Sergeant Larry Marshall, a member of the team assigned

to searching Mr. Wigfall’s cell, returned to Mr. Wigfall’s cell

to tell him that if he did not comply with the order to cuff up,

chemical agents would be used to remove him from the cell

forcibly. Although Mr. Wigfall was given several orders to cuff

up, he still refused. At that point, Sergeant Marshall, who was

certified to use chemical agents, administered two one-second

blasts of the chemical agent over the top of the door, as was

standard procedure in such circumstance.

While Mr. Wigfall testified that he saw Sergeant Marshall

empty the entire can of chemical agent into his cell, I do not

find this testimony credible. If Sergeant Marshall used an

entire can of chemical agent, it would have suffused the site so

thoroughly it would have affected anybody in that general area.

In particular, Sergeant Marshall himself would have required a

gas mask. Yet there is no evidence Sergeant Marshall needed or

used a gas mask during the incident, nor is there any evidence

that other inmates or prison employees nearby were affected by

contaminant, as would have been the case if the entire can were

used. Mr. Wigfall has failed to establish by a preponderance of

the evidence that Sergeant Marshall sprayed more than two one-

second bursts into his cell.

Although Mr. Wigfall testified that Lieutenant Shea and

Director Dewey were present during the use of chemical agent, he

has not presented credible evidence that either defendant was

actively involved in spraying his cell.

Mr. Wigfall testified, that after Sergeant Marshall sprayed

the site, he was dragged out of the cell and thrown to the

ground. He testified that his face was “slammed” to the ground,

by someone other than one of the identified defendants, leaving

an identifiable injury over his eye.

Mr. Wigfall did not present credible evidence that the

defendants now remaining before me were involved in his move

from the cell. Sergeant Marshall testified that after he

sprayed the chemical agent, the move team took over to execute

the extraction. I find that typical policy was followed

regarding Mr. Wigfall such that the search and move teams

remained separate during his extraction on February 11, 1999. I

credit Lieutenant Robert Shea’s testimony that he was not

involved in removing Mr. Wigfall from his cell. I similarly

credit Captain Dewey’s testimony that, as director of security,

he would not play a role in removing a prisoner from his cell

and hence was not involved in Mr. Wigfall’s extraction. Mr.

Wigfall himself testified that none of the three defendants were

involved in slamming his face into the ground. I find more

broadly that, after Sergeant Marshall sprayed the chemical

agent, the three defendants were no longer engaged with Mr.

Wigfall.

In any event, Mr. Wigfall contends someone he cannot

identify put leg shackles onto him and walked him to the medical

station. He testified that the officers escorting him pulled

him by his handcuffs and on cross-examination stated they

partially “dragg[ed]” him to the medical station while

unnecessarily parading him in a state of undress in front of

various staff members. I find this testimony overstated.

Mr. Wigfall testified that a medic checked him right after

the incident, but did not loosen the handcuffs, which he

testified were causing significant swelling of his wrists. Mr.

Wigfall stated that his shackles and cuffs were not removed, nor

was he given clothing or a shower to remove the contaminant,

until much later. On cross-examination, however, he conceded

that his eyes were cleaned. And medical records dated February

12, 1999 state that no meaningful wrist swelling was observed;

if such swelling had been severe, it would have lasted into the

following day and the condition would have been noted in medical

records, but it was not.

III.

Section 1983 provides a civil cause of action for “the

deprivation of any rights, privileges, or immunities secured by

the Constitution and laws.” 42 U.S.C. § 1983. Broadly stated,

Mr. Wigfall contended that the defendants violated his Eighth

Amendment right when they used a chemical agent and removed him

from his cell on February 11, 1999.

“A claim of cruel and unusual punishment in violation of

the Eighth Amendment has two components -- one subjective,

focusing on the defendant's motive for his conduct, and the

other 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 standard can vary based

on the type of Eighth Amendment violation alleged. Wilson v.

Seiter, 501 U.S. 294, 302 (1991) (comparing subjective intent in

excessive force and conditions of confinement matters). Here,

Mr. Wigfall submits two theories for a violation of the Eighth

Amendment: (1) excessive force and (2) deliberate indifference

to his serious medical needs.

A. Excessive Force

When a plaintiff alleges that prison officials used

excessive force, the objective prong requires that “the alleged

wrongdoing was objectively ‘harmful enough’ to establish a

constitutional violation,” Hudson v. McMillian, 503 U.S. 1, 8

(1992) (quoting Wilson, 501 U.S. at 303), “in light of

‘contemporary standards of decency,’” Wright, 554 F.3d at 268

(quoting Hudson, 503 U.S. at 8). “The subjective prong turns on

‘whether force was applied in a good faith effort to maintain or

restore discipline or maliciously and sadistically for the very

purpose of causing harm.’” Staples, 923 F.3d at 13 (quoting

Whitley v. Albers, 475 U.S. 312, 320–21 (1986)).

As I have found, there is no credible evidence that any of

the three defendants, other than Sergeant Marshall, used force.

None of those defendants were involved in moving Mr. Wigfall,

and only Sergeant Marshall sprayed the chemical agent.

Accordingly, for purposes of the findings and conclusions, I

need only determine whether the force Sergeant Marshall used

when he sprayed the chemical agent offends the Eighth Amendment.

In drawing my conclusions, I observe that the use of a

chemical agent is not “per se unconstitutional.” Staples, 923

F.3d at 17 (quoting Williams v. Benjamin, 77 F.3d 756, 763 (4th

Cir. 1996)). I must consider all “of the circumstances,

including the provocation, the amount of [spray] used, and the

purposes for which the [spray] is used [to] determin[e] the

validity of the use of [spray] in the prison environment.” Id.

(alterations in original) (quoting Williams, 77 F.3d at 763)

(describing considerations in summary judgment context).

Here, Sergeant Marshall, who was engaged in a shakedown of

a newly commissioned facility populated with inmates from

diverse other facilities and confronted by a recalcitrant and

belligerent prisoner, used a minimal amount of chemical agent to

induce Mr. Wigfall to exit his cell. Cf. Skinner v. Cunningham,

430 F.3d 483, 488 (1st Cir. 2005)(no constitutional violation

where, inter alia, “the extraction team sprayed a non-lethal

chemical irritant (derived from cayenne pepper) into the cell to

make [plaintiff] exit the cell without direct physical force”).

Sergeant Marshall used the chemical agent only after Mr. Wigfall

refused to comply with prison procedures and Deputy Commissioner

Duval approved the use of force. Cf. Burns v. Eaton, 752 F.3d

1136, 1140 (8th Cir. 2014) (affirming grant of summary judgment

to prison officials where officer warned prisoner that he would

use pepper-spray if he failed to “catch the cuffs,” the prisoner

did not comply, and “small amount[s] of paper spray” were used).

Moreover, this is not a case where there was “no warning

this force would be used, no apparent purpose other than

inflicting pain, use of unnecessary ‘super-soaker’ quantities of

the chemical, refusal to allow the victim to wash off the

painful chemical for days, and/or use of additional physical

force,” id, such that there is a “reasonable inference that the

officers acted maliciously in an effort to cause harm,” id.

(citation omitted) (describing cases where summary judgment to

defendants may not be appropriate in chemical agent use of force

cases). The facts, as I have found them from the bench trial,

do not permit me to conclude that Sergeant Marshall applied the

chemical agent “maliciously and sadistically for the very

purpose of causing harm.” Whitley, 475 U.S. at 320–21 (citation

omitted). Because Mr. Wigfall has failed to establish that the

defendants had the subjective intent required, he has not proven

by a preponderance of the evidence that his Eighth Amendment

right was violated by Sergeant Marshall’s use of force.

B. Deliberate Indifference to Serious Medical Needs

“Prison officials must provide ‘humane conditions of

confinement,’ including adequate medical care.” Leite v.

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

Brennan, 511 U.S. 825, 832 (1994)). However, “deliberate

indifference to medical needs amounts to an Eighth Amendment

violation only if those needs are ‘serious.’” Hudson, 503 U.S.

at 9. To satisfy the objective prong of this claim, a plaintiff

must “prove that [he] has a medical need ‘that has been

diagnosed by a physician as mandating treatment, or one that is

so obvious that even a lay person would easily recognize the

necessity for a doctor's attention.’” Zingg v. Groblewski, 907

F.3d 630, 635 (1st Cir. 2018) (quoting Kosilek v. Spencer, 774

F.3d 63, 82 (1st Cir. 2014) (en banc)). Care need not be

“ideal, or of the prisoner’s choosing.” Kosilek, 774 F.3d at

82. The Constitution only protects against care “so inadequate

as to shock the conscience.” Sires v. Berman, 834 F.2d 9, 13

(1st Cir. 1987).

“[E]ven if medical care is so inadequate as to satisfy the

objective prong,” plaintiff must also demonstrate “deliberate

indifference to [his] needs.” Kosilek, 774 F.3d at 83.

Deliberate indifference requires a showing stronger than

negligence; it “has been likened to the standard for determining

criminal recklessness.” Leite, 911 F.3d at 53 (quoting Giroux

v. Somerset Cty., 178 F.3d 28, 32 (1st Cir. 1999)). “[T]he

plaintiff must provide evidence that the defendant had ‘actual

knowledge of impending harm, easily preventable,’ and yet failed

to take the steps that would have easily prevented that harm.”

Zingg, 907 F.3d at 635 (citation omitted). There may be

“overlap” in the subjective and objective inquiries; “[s]imilar

evidence, including evidence of adverse effects, may be relevant

to both components.” Leavitt v. Corr. Med. Servs., Inc., 645

F.3d 484, 498 (1st Cir. 2011) (alteration in original) (quoting

Smith v. Carpenter, 316 F.3d 178, 187 n. 12 (2d Cir. 2003)).

Although pro se litigants are afforded “a liberal reading”

of pleadings, F.H. Cann & Assocs., Inc. v. Moorman, 605 F. Supp.

3d 232, 238 (D. Mass. 2022) (citation omitted), and I have

considered the evidence submitted by the pro se plaintiff here

in a liberal fashion, I cannot “put flesh on the bare bones of

an underdeveloped argument,” id. (citation omitted),

particularly when weighing impartially the evidence as it has

been finally received at trial. The contours of the deliberate

indifference theory are challenging to define under these

circumstances where Mr. Wigfall himself testified that

immediately after Sergeant Marshall sprayed him with a chemical

agent, he was brought to a medical station for attention.

Moreover, I have found that the remaining defendants played no

role after Mr. Wigfall was removed from his cell.

It appears that Mr. Wigfall claims his medical care was cut

short. His claims cannot be squared with the record. As a

preliminary matter, Mr. Wigfall has not proven, by a

preponderance of the evidence, that he has met either prong of

the deliberate indifference inquiry. There is no credible

evidence documenting a serious physical injury; Mr. Wigfall

testified that he was taken to the medical station after the

incident, and a medical report from February 12, 1999 suggests

that the nurse did not observe any wrist swelling. However,

from all that appears, prison officials “responded reasonably to

the risk[s]” presented by Mr. Wigfall’s injuries. Kosilek, 774

F.3d at 84 (quoting Giroux, 178 F.3d at 33). And a closer

examination of the record suggests Mr. Wigfall was not fully

forthcoming or compliant with medical advice.

Mr. Wigfall’s claim of deliberate indifference faces

another hurdle; he has not proven by a preponderance of the

evidence that any of the remaining three defendants in the bench

trial were involved after the chemical agent was used or ignored

their duty to obtain medical care for him. Indeed, on these

independent grounds more fully developed at trial, it is evident

Mr. Wigfall could not meet his burden with respect to

establishing deliberate indifference by any defendant.

IV.

While this case was under advisement, Mr. Wigfall was

released from custody but thereafter passed away. Mr. Wigfall’s

daughter, Angelique Wigfall, came forward pro se purporting to

be the legal representative “for [her] father’s case” and filed

an Application to Proceed in forma pauperis. I alerted Ms.

Wigfall that she may not herself proceed pro se or in forma

pauperis in this matter.

In an effort to formalize the precise basis for her status,

at my direction, procedural instructions were provided by my

then Deputy Clerk, Jarrett Lovett. Members of Mr. Wigfall’s

family submitted his death certificate under seal [Dkt. No. 194]

as relevant to Mr. Wigfall’s incapacity to pursue or defend this

litigation. On October 27, 2015, Ms. Wigfall then filed her

Letters of Authority for Personal Representative [Dkt. No. 199],

showing that she had been appointed and qualified as Personal

Representative in her father’s estate by the Plymouth Probate

and Family Court [id.]. Thereafter, I issued a Notice of

Impending Disposition [Dkt. No. 202], observing that despite Ms.

Wigfall’s personal representative notice, no attorney had filed

a notice of appearance on behalf of the estate [Id.]. Ms.

Wigfall, nevertheless, continued to proffer herself pro se as

what she characterized as the legal representative for her

father’s case. To date, no attorney has entered an appearance

in this matter.

The Local Rules of this court state that an “estate, or

other entity that is not an individual may not appear pro se.”

L.R. 83.5.5(c). Ms. Wigfall has undertaken to represent her

father’s estate pro se, without strict compliance with the Local

Rule, and the pertinent federal law, 28 U.S.C. § 1654, which

states that parties may only “plead and conduct their own cases

personally or by counsel” (emphasis added).

District court case law in this Circuit has recognized an

exception to the rule: where a personal representative is the

“sole beneficiary of an estate with no creditors,” she may

represent the estate pro se. Bourne v. Gardner, 468 F. Supp. 3d

426, 427 (D. Mass. 2020). The First Circuit itself has

apparently not weighed in on this issue, however, other Circuits

have applied this exception. See, e.g., Rodgers v. Lancaster

Police & Fire Dep't, 819 F.3d 205, 211 (5th Cir. 2016) (“A

person with capacity under state law to represent an estate in a

survival action may proceed pro se if that person is the only

beneficiary and the estate has no creditors.”); Guest v. Hansen,

603 F.3d 15, 17 (2d Cir. 2010) (same).

As an initial matter, it appears that Ms. Wigfall has not

established she is the sole beneficiary of her father’s estate.

I am informed that she has appeared in the Clerk’s Office from

time to time with her mother to inquire regarding the status of

this case. Her mother is likely a beneficiary separately.

Moreover, it has also come to my attention that MassHealth has

filed a Notice of Claim in Mr. Wigfall’s estate. In re Wigfall,

No. PL15P1967EA, Dkt. No. 8 (Mass. Prob. Ct. Jan. 11, 2016).

Accordingly, Mr. Wigfall’s estate has at least one creditor,

independently foreclosing the possibility of applying the

exception.

To bring this case to conclusion after fair notice to Ms.

Wigfall regarding her rights and responsibilities, I now hereby

DENY her application [Dkt. No. 203] to proceed pro se and in

forma pauperis. See Nickerson v. Champion Mortg. Co. LLC, No.

19-10401-NMG, 2019 WL 3546479, at *1 (D. Mass. Mar. 11, 2019)

(“[B]ecause an estate is not a natural person, it cannot proceed

in forma pauperis under 28 U.S.C. § 1915.”). Should she desire

to appeal this decision, it appears she will need to do so with

the assistance of counsel in the Court of Appeals.

I had dismissed Mr. Wigfall’s claims as to other defendants

on March 29, 2002, noting that “the remaining defendants do not

appear to have been specifically alleged as being directly

involved in the incident.” [Dkt. No. 69]. After the bench

trial, Mr. Wigfall moved [Dkt. No. 174] to reinstate defendant

Ronald Duval, contending that the evidence at trial demonstrated

he had given the order to use force on February 11, 1999. I

denied Mr. Wigfall’s motion by electronic order on September 22,

2009, and briefly summarize my reasoning here to put in

perspective the travel of the case.

FED. R. CIV. P. 15(b)(2), which permits a party “to amend

[its] pleadings to conform them to the evidence” when “an issue

not raised by the pleadings is tried by the parties' express or

implied consent” does not apply. There is no evidence that Mr.

Duval was put on notice prior to testifying that Mr. Wigfall

intended to raise new claims against him, and “[i]t is not

enough that an issue may be inferentially suggested by

incidental evidence in the record; the record must demonstrate

that the parties understood that the evidence was aimed at an

unpleaded issue.” In re Fustolo, 896 F.3d 76, 84 (1st Cir.

2018) (alteration in original) (quoting Galindo v. Stoody Co.,

793 F.2d 1502, 1513 (9th Cir. 1986)). In any event, if Mr.

Wigfall had been able to bring a supervisory liability claim

against Mr. Duval, he would fail on the merits — such a claim

requires an underlying constitutional violation. See Perry v.

Dickhaut, 125 F. Supp. 3d 285, 299 (D. Mass. 2015). I find that

Mr. Wigfall has not proven by a preponderance of the evidence

that his constitutional rights were violated.

Ms. Wigfall’s application to proceed pro se, independently

and in forma pauperis is DENIED.

V. CONCLUSION

Mr. Wigfall failed to prove by a preponderance of the

evidence alleged or proven in an evidentiary hearing that any of

the defendants violated his Eighth Amendment right.

Accordingly, it is hereby ORDERED that judgment enter for

defendants.

/s/ Douglas P. Woodlock

DOUGLAS P. WOODLOCK

United States District Judge