# Wigfall v. Duval

> District Court, D. Massachusetts · August 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10649225

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** August 12, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10649225

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10649225. Public record. Not legal advice.