Nascarella v. Cousins, Jr. et al

Filing 77

Judge Indira Talwani: ORDER entered. As set forth in the attached MEMORANDUM AND ORDER, Defendants Motion for Summary Judgment [#54] is ALLOWED IN PART and DENIED IN PART. (MacDonald, Gail)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ANDREW NASCARELLA,
Plaintiff,
v.
FRANK G. COUSINS, JR., et al.,
Defendants.

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Civil Action No. 13-cv-10878-IT

MEMORANDUM & ORDER
March 27, 2015
TALWANI, D.J.
I.

Introduction
This case involves allegations that two correctional officers violated a prisoner’s rights

under federal and state law by using excessive force against him while he was incarcerated at a
county facility and that other defendants failed to properly train, supervise, and discipline these
officers. Plaintiff Andrew Nascarella (“Nascarella”) brings claims against Correctional Officer
Patrick Marks (“Officer Marks”); Correctional Officer Travis Mustone (“Officer Mustone”); the
Superintendent of the Essex County Correctional Facility, Michael Marks (“Superintendent
Marks”); the Sheriff of Essex County, Frank J. Cousins (“Sheriff Cousins”); and the
Commonwealth of Massachusetts.1 Currently before the court is Defendants’ Motion for
Summary Judgment [#54], which seeks an entry of final judgment in favor of all Defendants on
all claims. With some exceptions detailed below, this motion is DENIED as to Officer Mustone,

1

The Defendants are sued in their individual capacities. See Compl. ¶ 12. Claims against the
prison’s healthcare provider and the treating nurse were voluntarily dismissed with prejudice.
See Stipulation Dismissal [#61]; Stipulation Dismissal [#63].

Officer Marks, Superintendent Marks, and the Commonwealth, but ALLOWED as to Sheriff
Cousins.
II.

Factual Background
In deciding this motion for summary judgment, the court properly construes the facts in

the light most favorable to Nascarella, the nonmovant. See, e.g., Prescott v. Higgins, 538 F.3d
32, 39 (1st Cir. 2008).
A.

The Events of July 3, 2012

The following facts are undisputed.
On July 3, 2012, Nascarella was housed in the segregation unit at the Essex County
Correctional Facility (“the Facility”). Defs.’ Statement Undisputed Material Fact ¶¶ 1-2 [#56]
[hereinafter Defs.’ Facts]; Pl.’s Resp. Defs.’ Statement Undisputed Material Facts & Pl.’s
Statement Additional Material Facts ¶¶ 1-2 [#70] [hereinafter Pl.’s Facts]. During the unit’s
scheduled recreation time, Nascarella was in a common area with other inmates. Defs.’ Facts ¶
3; Pl.’s Facts ¶ 3. When recreation time ended, Officer Mustone ordered the inmates to return to
their cells. Defs.’ Facts ¶ 4; Pl.’s Facts ¶ 4. Nascarella failed to follow this order. Defs.’ Facts ¶
5; Pl.’s Facts ¶ 5.
The parties dispute what occurred next.
According to Nascarella, after the prisoners were ordered to return to their cells, he asked
Officer Mustone—as he had several times before—to speak to a lieutenant about certain personal
property that had been lost when he transferred units. Pl.’s Facts ¶¶ 18-19, 21. Officer Mustone
reacted angrily, “storm[ing] towards” Nascarella aggressively. Id. ¶ 22. Upon reaching
Nascarella, who was standing in the common area with his arms handcuffed in front of his body,

2

Officer Mustone grabbed Nascarella and threw him to the ground. Id. ¶¶ 20, 23-25. Nascarella
had not behaved aggressively or otherwise provoked this attack. Id. ¶¶ 23-24.
After hitting the ground, Nascarella immediately felt extreme pain in his back, curled into
a fetal position, and yelled out that he was injured. Id. ¶¶ 29, 38. While he lay dormant on the
ground, Officer Mustone and Officer Marks—who had joined Officer Mustone—struck
Nascarella repeatedly with their knees, including several strikes by Officer Mustone to
Nascarella’s already-injured back. Id. ¶¶ 31-34. Nascarella pled for Officer Marks and Officer
Mustone to stop, exclaiming that he was hurt and that his eye had been injured by their blows.
Id. ¶ 35. In response, Officer Mustone proclaimed “No, now your eye’s fucked up” before
punching Nascarella in the face. Id. Throughout this attack, Nascarella never resisted Officer
Mustone and Officer Marks or attempted to attack them. Id. ¶¶ 37-38.2
B.

Resulting Injuries

Nascarella was treated at a local hospital, where he was diagnosed with: (1) an “[a]cute
minor head injury without signs of intracranial bleed or fracture”; (2) a nasal fracture; (3) a 3.5
cm long laceration over his right eyebrow; (4) multiple facial contusions; (5) a cervical strain;
and (6) “a mild acute anterior compression fracture” in his upper back. Pl.’s Facts, Ex. N at 5-6.
(Nascarella’s medical records). While hospitalized, Nascarella met with a psychologist and was
diagnosed with anxiety. Id. ¶ 57, Ex. S at 4, 6. The psychologist’s report stated that Nascarella
“was fearful that he would be killed if he returned to his sending institution” and that he “was

2

Nascarella submitted a video recording of this incident with his opposition to summary
judgment. See Pl.’s Facts at Ex A. The video does not include sound and does not resolve
certain disputed facts. For example, because Nascarella’s back is to the camera when he is on
the ground, the video does not show whether Nascarella resisted the officers or attempted to
attack them while on the ground. Nonetheless, the video’s contents are generally consistent with
Nascarella’s version of events.
3

unable to form any type of safety plan related to how he could function in the institution” given
his fear. Id. Ex. S at 6.
C.

Training, Supervision, and Discipline at the Facility

Nascarella provides the following evidence regarding the Facility’s use-of-force training
and supervision of correctional officers. Except where otherwise noted, Defendants do not
dispute these facts.
1.

Training

According to Nascarella, Sheriff Cousins has the ultimate responsibility to ensure
correctional officers are properly trained. Id. ¶ 75, Ex. J Cousins Dep. 47:18-48:3. Sheriff
Cousins admits, however, that he has not reviewed the Facility’s use-of-force training or read the
Facility’s training and staff development policy. Id. ¶ 80; Ex. J Cousins Dep. 27:8-28:19.
Sheriff Cousins states that the responsibility to oversee the training program at the Facility rests
with Superintendent Marks. Id. ¶¶ 76, 80, Ex. J Cousins Dep. 27:12-13 (“That’s Superintendent
Marks’ job, the training department.”). Superintendent Marks admits that he does not normally
review the content of training modules. Id. ¶ 81, Ex. K Marks Dep. 10:1-7. Moreover,
Defendants assert that neither Sheriff Cousins nor Superintendent Marks has any involvement in
the actual training of correctional officers at the Facility. Defs.’ Facts ¶ 15.
Superintendent Marks has never identified a correctional officer in need of more use-offorce training and has never asked to review use-of-force training module. Pl.’s Facts ¶¶ 82-83,
Ex. K Marks Dep. 10:19-21, 27:12-15. In 2011, Department of Correction auditors cited the
Facility for non-compliance with a state regulation requiring that the Superintendent receive
quarterly reports from the Facility’s Advisory Training Council. Id. ¶ 79, Ex. BB (citing 103

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C.M.R. 915.01(5)). Despite being on notice of this non-compliance, Superintendent Marks
cannot recall ever receiving such a report. Id. ¶ 79, Ex. K Marks Dep. 31:7-32:15.
Correctional officers at the Facility receive use-of-force training in the form of an online
module, with an in-person “practical” held every other year. Id. ¶ 90, Ex. X Ebacher Dep. 18:323. When deposed, both Defendant Officers struggled to identify different methods intended to
“take down” a resistant prisoner with minimally necessary force. Id. ¶¶ 100-01, 104, Ex. C
Mustone Dep. 33:23-35:14, Ex. G Patrick Marks Dep. 26:15-29:14. Another correctional officer
stated that he had never heard the term “de-escalation tactic.” Id. ¶ 103, Ex. D Smolski Dep.
41:19-23. The Director of Training and a training instructor at the Facility also struggled to
clearly explain de-escalation tactics. Id. ¶¶ 93-94, 97; Ex. I Mansur Dep. 69:11-15, Ex. X
Ebacher Dep. 46:1-10, 49:2-5.
2.

Supervision of Use of Force

In July 2010, Department of Correction auditors expressed concerns relating to a “use-offorce-package”3 at the Facility. Id. ¶ 109, Ex. AA. The auditors found the package, which
related to use of a canine against an inmate, to be non-compliant with state regulations governing
the use of force in correctional facilities, see 103 C.M.R. 924.09, based on the following failures:
(1) the form did not correctly denote the type of force used, (2) not all staff members listed as
having been involved filed incident reports, (3) a majority of the incident reports completed were
“less than accurate,” (4) there was no documentation of medical treatment, and (5) “the potential
threat toward staff or the facility did not support” the unauthorized use of a canine. Id. ¶ 109,
Ex. AA.
3

This terminology is used by the parties to describe the compilation of reports prepared by each
officer involved in an incident involving the use of force against an inmate. See 103 C.M.R.
924.09 (Massachusetts regulation concerning reporting on uses of force in county correctional
facilities).
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The auditors further stated that “none of the issues noted had been identified” during an
internal review of the use-of-force package and consequently recommended that the Facility
assess its internal review process. Id. Ex. AA. Superintendent Marks responded by letter, in
which he acknowledged that he is “responsible for the administration of the Use of Force Policy”
at the Facility, took “responsibility for the inaccurate documentation,” and indicated that he
would take steps to improve his review process. Id. ¶ 111, Ex. AA. When deposed, however,
Superintendent Marks stated that the Department of Correction “never had concern about content
of a use of force packet.” Id. ¶ 108, Ex. K Marks Dep. 15:12-18.
From 2010 to 2012, Officer Mustone and Officer Marks reported using force a combined
total of forty-seven times: Officer Mustone twenty-three times, Officer Marks sixteen times, and
the two officers together eight times. Id. ¶ 62, Ex. V. Eleven of these forty-seven uses of force
involved a “take down” of a prisoner, where the prisoner was knocked down to the ground or
onto a flat surface. Id. ¶ 64, Ex. V. Nine of the eleven “take downs” occurred during incidents
involving only a single prisoner, not in response to a prisoner-on-prisoner fight. Id. ¶ 65, Ex. V.
Department of Correction auditors have told Superintendent Marks that the Facility has a high
number of use-of-force incidents. Id. ¶ 136, Ex. K Marks Dep. 15:15-22. Nascarella’s expert
also states that the rate of Officer Mustone and Officer Marks’ use of force, even at a highsecurity facility, should cause an attentive supervisor reviewing such reports “great alarm.” Id. ¶
63, Ex. H at 24.
Sometime in late May 2012 the Salem District Court forwarded to the Facility a letter it
had received from a prisoner, William Morris (“Morris”), complaining of having been kicked
and punched in the face by Officer Mustone and Officer Marks. Pl.’s Facts ¶¶ 66-68, Ex. L.
Morris separately complained about this incident to a lieutenant on May 24, 2012. Id. ¶¶ 67-68,

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Ex. L. Officer Mustone’s report regarding this incident, which was included in the related useof-force package, understated Morris’ injuries. Compare id. ¶ 71, Ex. L at 7 (Officer Mustone’s
report that Morris sustained “a small cut over his left eye”), with id. ¶¶ 72-73, Ex. L at 10, 15
(reports by another responding officer and medical provider describing multiple facial contusions
or lacerations). Officer Marks’ report did not mention that Morris sustained any injuries. See id.
Ex. L at 9.4
Although the record is not express on this point, a reasonable inference can be drawn that
Superintendent Marks reviewed Officer Mustone and Officer Marks’ reports regarding use of
force against Morris, as Superintendent Marks acknowledges that review of all use-of-force
packages at the Facility is his responsibility. See id. ¶ 107, Ex. K Marks Dep. 9:14-18. There is
no indication in the record that Superintendent Marks noted these reporting discrepancies or
undertook to verify the nature of Morris’ injuries. The Facility’s Internal Affairs Division
dismissed Morris’ complaint after reviewing only his disciplinary record. Id. ¶¶ 69, 74, Ex. L.
The involved officers were not interviewed and the allegation of excessive force was not
otherwise investigated. Id.
Superintendent Marks reviewed Officer Mustone and Officer Marks’ use of force against
Nascarella and determined it to be justified. See Defs.’ Facts ¶ 16. In conducting his review,
Superintendent Marks did not interview the involved officers, document the scene, or inquire if
photographs of Nascarella’s injuries were available. Id. ¶¶ 111-15. Superintendent Marks also
failed to notice that some reports in the use-of-force package misrepresented Nascarella’s
injuries, reporting only a single cut above his eye and a neck injury, id. ¶ 116, Ex. K Marks Dep.
4

Nascarella states that Officer Marks did not file a report. See Pl.’s Facts ¶ 62. An incident
report completed by Officer Marks on May 23, 2012, and related to this incident, however, is
included in Nascarella’s exhibits. See id. Ex. L.
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62:2-10, and that no report from Officer Marks was included in the use-of-force package, see id.
¶ 119; Ex. K Marks Dep. 73:3-74:6.
Superintendent Marks does not track uses of force to determine if there is a pattern. Id.
¶¶ 131, 133-34, 139; Ex. K Marks Dep. 35:9-14. Sheriff Cousins has ultimate responsibility for
ensuring the safety of prisoners at the Facility, id. ¶ 61, Ex. U, but he also does not monitor use
of force at the Facility or review use-of-force packages, even when a prisoner files a complaint.
Id. ¶¶ 122, 130, Ex. J Cousins Dep. 7:22-8:15, 45:9-19.
III.

Discussion
In resolving a motion for summary judgment, the court takes all properly supported

evidence in the light most favorable to the nonmovant and draws all reasonable inferences in the
nonmovant’s favor. Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). In so doing, the
court properly “give[s] no heed to speculative, unsupported, or unreasonable conclusions.”
Showtime Entm’t, LLC v. Town of Mendon, 769 F.3d 61, 69 (1st Cir. 2014).
Summary judgment is appropriate only if “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 of fact exists if an issue “could be resolved in favor of either party.” Calero-Cerezo v.
U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir. 2004). Facts are material if they have “the
potential of affecting the outcome of the case.” Id.
A.

Claims Against Officer Mustone and Officer Marks
1.

Excessive Force in Violation of the Eighth Amendment and Article 26

Count One of Nascarella’s complaint alleges a violation of his Eighth Amendment right
to be free from excessive force against Officer Marks and Officer Mustone. Count Two alleges a
parallel claim under Article 26 of the Massachusetts Declaration of Rights. In support of

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summary judgment on Counts One and Two, Defendants argue that: (1) the force used against
Nascarella was a reasonable measure to ensure officer safety, and (2) Officer Mustone and
Officer Marks are protected by qualified immunity.
The Massachusetts Supreme Judicial Court has ruled that Article 26’s prohibition on
cruel and unusual punishment is “at least as broad as the Eighth Amendment.” Good v. Comm’r
of Correction, 629 N.E.2d 1321, 1325 (Mass. 1994). Moreover, Nascarella has made no
argument in support of interpreting Article 26 more broadly in the context of excessive force
claims. Accordingly, the court treats Counts One and Two under governing federal-law
standards.
a.

Reasonableness of Force

In evaluating whether an officer’s use of force against a prisoner amounts to a violation
of the Eighth Amendment,5 the court asks “whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v.
McMillian, 503 U.S. 1, 7 (1992). The court may consider “the need for application of force, the
relationship between the 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.’”
Id. (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)). Although not dispositive of whether
a constitutional violation occurred, the court may also consider the severity of any resulting

5

Nascarella brought his Eighth Amendment claim under 42 U.S.C. § 1983, which requires “(i)
that the conduct complained of has been committed under color of state law, and (ii) that this
conduct worked a denial of the rights secured by the Constitution or laws of the United States.”
Collins v. Nuzzo, 244 F.3d 246, 250 (1st Cir. 2001) (internal quotation marks and citation
omitted). Because Defendants do not dispute that Officer Mustone and Officer Marks acted
under color of state law, the court treats only the second requirement.
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injuries as evidence tending to show whether or not “‘the use of force could plausibly have been
thought necessary.’” Id. (quoting Whitley, 475 U.S. at 321).
Taking the evidence in the light most favorable to Nascarella, he was knocked to the floor
by Officer Mustone when he asked to speak to a lieutenant. Once on the ground, he was
repeatedly struck in the back and face by Officer Mustone and Officer Marks despite being
handcuffed, lying still, and exclaiming that he was injured. On these facts, a jury could find that
the nature and extent of force used was not an effort to ensure safety and security, but instead a
malicious attempt to cause harm. Accordingly, the record shows a genuine dispute of material
fact as to whether the officers used excessive force in violation of the Eighth Amendment.
b.

Qualified Immunity

The court uses a three-step test to determine if officers are eligible for qualified
immunity: “(1) whether the claimant has alleged the deprivation of an actual constitutional right;
(2) whether the right was clearly established at the time of the alleged action or inaction; and (3)
if both of these questions are answered in the affirmative, whether an objectively reasonable
official would have believed that the action taken violated that clearly established constitutional
right.” Wilson v. City of Bos., 421 F.3d 45, 52 (1st Cir. 2005) (citations omitted). Viewing the
evidence in the light most favorable to Nascarella and applying this test, the court finds that
Officer Mustone and Officer Marks are not eligible for qualified immunity on summary
judgment.
First, as stated above, a jury could reasonably find that Officer Mustone and Officer
Marks used force not to “maintain or restore discipline,” but rather maliciously and with the
intent to cause harm. Hudson, 503 U.S. at 7. This would amount to a violation of the Eighth
Amendment. See Hope v. Pelzer, 536 U.S. 730, 736 (2002) (“The threshold inquiry a court must

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undertake in a qualified immunity analysis is whether plaintiff’s allegations, if true, establish a
constitutional violation.”).
Second, the Eighth Amendment’s proscription on excessive force was clearly established
at the time of the incident. A “law is clearly established either if courts have previously ruled
that materially similar conduct was unconstitutional, or if a general constitutional rule already
identified in the decisional law applies with obvious clarity to the specific conduct.” Jennings v.
Jones, 499 F.3d 2, 16 (1st Cir. 2007) (internal quotation marks and alteration omitted) (quoting
United States v. Lanier, 520 U.S. 259, 271 (1997)). Courts may consider “not only Supreme
Court precedent, but all available case law.” Suboh v. Dist. Attorney’s Office of Suffolk Dist.,
298 F.3d 81, 93 (1st Cir. 2002).
Eighth Amendment precedent predating July 3, 2012, clearly prohibits the unjustified use
of force against prisoners. See, e.g., Whitley, 475 U.S. at 327; Hudson, 503 U.S. at 9-10.
Moreover, substantially similar facts have been held to constitute violations of the Eighth
Amendment’s proscription of excessive force. See, e.g., Hudson, 503 U.S. at 4 (finding a
violation where, after Hudson argued with an officer, one officer “punched Hudson in the mouth,
eyes, chest, and stomach while [another officer] . . . kicked and punched him from behind.”);
Orwat v. Maloney, 360 F. Supp. 2d 146, 155 (D. Mass. 2005) (denying summary judgment
where plaintiff alleged he was hit in the face, fracturing his jaw, in response to giving the officer
the middle finger).
Third, crediting Nascarella’s versions of the facts,6 a reasonable officer would have
known that, when a handcuffed prisoner verbally refuses to return to his cell, responding by

6

The question of objective reasonableness is one of law, see Wilson, 421 F.3d at 53 n.10, which
should be “resolved, where possible, in advance of trial,” Kelley v. LaForce, 288 F.3d 1, 7 (1st
Cir. 2002). However, before the court may determine this question, “factual issues must be
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throwing the prisoner to the ground and striking him repeatedly while he lay in a fetal position
exclaiming that he was injured amounts to an unjustified use of force in violation of the Eighth
Amendment. See, e.g., Hudson, 503 U.S. at 4 (finding that use of force in response to an earlier
verbal altercation was unjustified).
Accordingly, the court DENIES summary judgment on Counts One and Two as pleaded
against Officer Mustone and Officer Marks.
2.

Assault and Battery

Count Five of Nascarella’s complaint alleges that Officer Mustone and Officer Marks
committed assault and battery. “An assault and battery is the intentional and unjustified use of
force upon the person of another, however slight, or the intentional commission of a wanton or
reckless act (something more than gross negligence) causing physical or bodily injury to
another.” Commonwealth v. Burno, 487 N.E.2d 1366, 1368-69 (Mass. 1986) (citations and
internal quotation marks omitted). “A peace officer can be liable for committing an assault and
battery if they use excessive force . . . in subduing a prisoner.” Evicci v. Baker, 190 F. Supp. 2d
233, 239 (D. Mass. 2002).
Defendants argue that summary judgment is warranted on this claim because Officer
Mustone and Officer Marks’ use of force was justified as a means to make Nascarella return to
his cell. See 103 C.M.R. 505.07 (allowing for use of reasonable force to “move an inmate who
has refused a proper order by an employee”). For the reasons set forth above, if Nascarella’s
version of events is credited, a jury could find that such use of force was not reasonably justified
as a means of moving Nascarella back to his cell.
decided by the trier of fact.” Id. Accordingly, for the purposes of summary judgment, the court
“first identif[ies] the version of events that best comports with the summary judgment standard,
and then ask[s] whether, given that set of facts, a reasonable officer should have known that his
actions were unlawful.” Morelli v. Webster, 552 F.3d 12, 19 (1st Cir. 2009).
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Accordingly, the court DENIES summary judgment on Count Five.
3.

Intentional Infliction of Emotional Distress

Count Six of Nascarella’s complaint alleges that Officer Mustone and Officer Marks’
actions were intended to inflict emotional distress on Nascarella in violation of Massachusetts
law. To prove a claim of intentional infliction of emotional distress, a party must show:
(1) that the actor intended to inflict emotional distress or that he knew or should
have known that emotional distress was the likely result of his conduct; (2) that
the conduct was extreme and outrageous, was beyond all possible bounds of
decency and was utterly intolerable in a civilized community; (3) that the actions
of the defendant were the cause of the plaintiff’s distress; and (4) that the
emotional distress sustained by the plaintiff was severe and of a nature that no
reasonable man could be expected to endure it.
Agis v. Howard Johnson Co., 355 N.E.2d 315, 218-19 (Mass. 1976) (citations and internal
quotation marks omitted). Conduct “characterized by malice, or a degree of aggravation which
would entitle the plaintiff to punitive damages for another tort” may still be insufficient to state a
claim for intentional infliction of emotional distress. Foley v. Polaroid Corp., 508 N.E.2d 72, 82
(Mass. 1987).
Taking the evidence in the light most favorable to Nascarella, summary judgment on this
claim is unwarranted. A jury could reasonably find that Officer Mustone and Officer Marks
acted with intent to cause Nascarella fear and anxiety, thus ensuring that he would not make
further demands on the officers or refuse a subsequent order to return to his cell.
As to Officer Mustone, a jury could find that knocking Nascarella to the ground; striking
him repeatedly; and, in response to Nascarella’s protestations that he was injured, proclaiming
“No, now your eye is fucked up” before hitting him again constitutes outrageous conduct. See
Barbosa v. Conlon, 962 F. Supp. 2d 316, 323-24, 334 (D. Mass. 2013) (denying summary
judgment on intentional infliction of emotional distress claim given the extreme nature of

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officers’ physical contact with arrestees); Johnson v. Town of Nantucket, 550 F. Supp 2d 179,
183 (D. Mass. 2008) (concluding that a jury could find an officer’s use of racial slurs against an
arrestee and claim that he could arrest her without a warrant to be outrageous). Similarly, a jury
could find that Officer Marks joining Officer Mustone in repeatedly striking Nascarella while he
was lying on the ground, offering no resistance, and exclaiming that he was injured, constitutes
outrageous behavior. See Barbosa, 962 F. Supp. 2d at 334.
Nascarella has also offered evidence showing that Officer Mustone and Officer Marks’
actions caused him severe emotional distress. See Pl.’s Facts ¶ 57, Ex. S. Reports from
Nascarella’s treating psychologist during his hospitalization indicate that he repeatedly expressed
fear that he would be killed or severely injured if he was returned to the Facility. A jury could
find that Nascrella’s fear, as well as the emotional effects of dealing with his physical injuries,
was sufficiently severe to prove a claim of intentional infliction of emotional distress. See Poy v.
Boutselis, 352 F.3d 479, 485-86 (1st Cir. 2003) (upholding jury verdict for infliction of
emotional distress on the theory that “humiliation, long continued pain,” and facial scar resulting
from use of excessive force could cause severe emotional distress); Chao v. Ballista, 806 F.
Supp. 2d 358, 380 (D. Mass. 2011) (acknowledging that abuse perpetrated by prison guards
against inmates can “‘destroy[] the security of a correctional facility’” and cause a feeling of
“powerlessness”).
Accordingly, the court DENIES summary judgment on Count Six as pleaded against
Officer Mustone and Officer Marks.
4.

Massachusetts Civil Rights Act Claim

Count Seven of Nascarella’s complaint alleges that Officer Mustone and Officer Marks
violated the Massachusetts Civil Rights Act, which prohibits “any person or persons, whether or

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not acting under color of law, [to] interfere by threats, intimidation or coercion, or attempt to
interfere by threats, intimidation or coercion, with the exercise or enjoyment by any other person
or persons of rights secured by the constitution or laws of the United States, or of rights secured
by the constitution or laws of the commonwealth.” Mass. Gen. Laws ch. 12, § 11H.
“A direct violation of a person’s rights does not by itself involve threats, intimidation, or
coercion and thus does not implicate the Act.” Longval v. Comm’r of Correction, 535 N.E.2d
588, 593 (Mass. 1989); cf. Davis v. Rennie, 264 F.3d 86, 112 (1st Cir. 2001) (finding that
holding inmate down so another officer could strike him could be a coercive act depriving
inmate of his Eighth Amendment rights); Walker v. Jackson, No. 12-10267, 2014 WL 5500664,
at *4 (D. Mass. Oct. 31, 2014) (finding that an officer’s use of force to enter an apartment could
be a coercive act depriving a defendant of his right to be free from warrantless search).
Defendants seek summary judgment on this claim on the ground that Officer Mustone
and Officer Marks did not use coercion, threats, or intimidation to deprive Nascarella of his
rights. Nascarella does not oppose Defendants’ motion. Although Nascarella’s complaint
articulated the theory that Officer Mustone and Officer Marks’ use of force was intended to
coerce him into giving up his First Amendment right to complain about lost property, see
Compl. ¶ 84, he has since forgone that argument, and his papers in opposition to summary
judgment articulate only a theory of direct deprivation of his rights. Accordingly, in the absence
of opposition, the court ALLOWS summary judgment on Count Seven.
B.

Claims Against Superintendent Marks and Sheriff Cousins
1.

Excessive Force in Violation of the Eighth Amendment and Article 26
(Failure to Train, Supervise, or Discipline)

Counts One and Two of Nascarella’s complaint allege violations of the Eighth
Amendment and Article 26, respectively, by Superintendent Marks and Sheriff Cousins based on
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their failure to properly train, supervise, or discipline officers at the Facility. Defendants seek
summary judgment on these claims, arguing that the record reveals no pattern of behavior
sufficient to put the supervisory officers on notice of a likelihood that Officer Mustone and
Officer Marks would use excessive force. Again, because Article 26 is at least coterminous with
the Eighth Amendment, Good, 629 N.E.2d at 1325, and because Nascarella has made no
argument that Article 26 should be interpreted more broadly as applied to the instant claims, the
court reviews these claims under applicable federal-law standards.
Respondeat superior liability is unavailable for § 1983 claims. See Monell v. Dep’t of
Social Servs., 436 U.S. 658, 691 (1978); Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576,
581 (1st Cir. 1994). Where there is evidence of a constitutional violation, supervisory liability
attaches only if the supervisory officials engaged in acts or omissions amounting to either “direct
participation in the unconstitutional conduct, or . . . condonation or tacit authorization” of that
conduct. Whitfield v. Meléndez-Rivera, 431 F.3d 1, 14 (1st Cir. 2005) (citing Camilo-Robles v.
Zapata, 175 F.3d 41, 44 (1st Cir. 1999)).
A plaintiff must also show causation in the form of an “affirmative link” between the
supervisory official’s conduct and the violative conduct of his subordinate. See Camilo-Robles,
175 F.3d at 45. As the First Circuit has explained, this requires a “strong causal connection
between the supervisor’s conduct and the constitutional violation.” Ramírez-Lluveras v. RiveraMerced, 759 F.3d 10, 19 (1st Cir. 2014); see also Feliciano-Hernández v. Pereira-Castillo, 663
F.3d 527, 533 (1st Cir. 2011) (“[A] supervisor may not be held liable . . . unless there is an
affirmative link . . . such that the supervisor’s conduct led inexorably to the constitutional
violation.”).

16

“[A]ctual knowledge of censurable conduct” is not required, so long as the supervisor
“would have known [of the conduct] but for his deliberate indifference or willful blindness.”
Maldonado-Denis, 23 F.3d at 582. “[A] sufficient casual nexus may be found if the supervisor
knew of, overtly or tacitly approved of, or purposely disregarded the [violative] conduct.” Id. A
plaintiff may also show causation through “a known history of widespread abuse sufficient to
alert a supervisor to ongoing violations.” Ramírez-Lluveras, 759 F.3d at 20 (citation and internal
quotation marks omitted); see also Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 49 (1st Cir.
1999). However, “isolated instances of unconstitutional activity ordinarily are insufficient” to
establish supervisory liability. Maldonado-Denis, 23 F.3d at 582.
a.

Failure to Train

To sustain a claim for supervisory liability based on a failure to train, a plaintiff must
show that an “identified deficiency in . . . training . . . [is] closely related to the ultimate injury.”
City of Canton v. Harris, 489 U.S. 378, 391 (1989). “Showing that a single individual received
inadequate training is insufficient . . . ; the training program as a whole must be found faulty.”
Calvi v. Knox Cnty., 470 F.3d 422, 429 (1st Cir. 2006) (citing City of Canton, 489 U.S. at 39091).
Nascarella does not allege that correctional officers at the facility did not receive use-offorce training. See Pl.’s Facts ¶ 90 (discussing online training). Rather, Nascarella relies on
evidence that Officer Mustone and Officer Marks, as well as other correctional officers at the
Facility, did not recognize or struggled to define common terminology related to use of force in
correctional facilities, such as “de-escalation” or “take down.” See Pl.’s Facts ¶¶ 97, 101-03.
Correctional officers’ failure to learn or retain specific terminology regarding use-offorce and defensive tactics, without more, does not establish constitutionally inadequate training.

17

See Young v. City of Providence ex rel. Napolitano, 404 F.3d 4, 27 (1st Cir. 2005) (“[T]he fact
that training is imperfect or not in the precise form a plaintiff would prefer is insufficient.”).7
Nascarella’s evidence does not raise an inference that the correctional officers were not trained in
how to ascertain when force should be used and how to moderate that force when applied.
Connick v. Thompson, 131 S. Ct. 1350, 1363 (2011) (“[F]ailure-to-train liability is concerned
with the substance of the training, not the particular instructional format.”); cf. Santiago v.
Fenton, 891 F.2d 373, 382 (1st Cir. 1989) (“Provision of only four hours of training, without
more, does not amount to a ‘conscious’ policy to train inadequately.”). For example, although
not recognizing the term “de-escalation tactic,” one deposed officer explained that he follows a
“use of force continuum” in dealing with resistant prisoners, which is intended to ensure
compliance with the least amount of force necessary. Pl.’s Facts, Ex. D Smolski Dep. 41:1942:13.
Nascarella also bases his claim on Superintendent Marks’ failure to review quarterly
reports from the Facility’s Advisory Training Council. See id. ¶ 79. However, the record
establishes—and Nascarella does not dispute—that the Advisory Training Council meets and
makes available minutes of those meetings. See Pl.’s Facts, Ex. X Ebacher Dep. 21:5-14 (stating
that a “training advisory board” meets quarterly with the Director of Training), id. Ex. BB
(“Minutes from that meeting were available for review.”). Accordingly, Superintendent Marks’
failure to review the reports, without more, falls short of raising a reasonable inference that the
substance of the training at the Facility was constitutionally inadequate. See Santiago, 891 F.2d
at 382 (finding that claimed deficiencies in the administration of a training program, without
7

Insofar as Nascarella’s expert claims that “[s]taff confusion regarding use of force concepts and
words would easily be discovered and addressed if anyone in the administration . . . was looking
at what was happening with use of force on the ground,” see Pl.’s Facts Ex. H at 23, that
allegation relates to a lack of supervision post-training, not a training deficiency.
18

accompanying allegations that the training itself was inadequate or “inferior by standards of the
profession,” was insufficient to show liability).
Nascarella has failed to identify evidence giving rise to a reasonable inference that the
substance of the training provided to correctional officers was constitutionally deficient. Neither
Superintendent Marks’ failure to review the Advisory Training Council reports or the difficulty
correctional officers exhibited in describing use-of-force techniques appears “so likely to result
in the violation of constitutional rights” as to show that supervisors were deliberately indifferent.
See City of Canton, 489 U.S. at 390; Whitfield, 431 F.3d at 14. Accordingly, Nascarella’s
failure-to-train claim fails as a matter of law.
b.

Failure to Supervise and Discipline

According to Nascarella, Officer Mustone and Officer Marks’ combined uses of force on
forty-seven occasions in the two years preceding the incident would have put any attentive
supervisor on notice that they were likely to use unecessary force against a prisoner in the future.
See Pl.’s Facts ¶ 63, Ex. H at 24 (expert report finding that rate of force should cause “great
alarm” to a supervisor). Moreover, Nascarella claims that the Facility was put on notice of
Officer Mustone and Officer Marks’ tendency to use excessive force by way of Morris’
complaint, but failed to adequately investigate this allegation or take corrective action, instead
summarily dismissing the complaint after a review of Morris’ disciplinary record. See id. ¶¶ 6669, 74, Ex. L.
A single incident of misconduct, even if egregious, is generally insufficient to find
supervisors liable for their failure to supervise or discipline subordinates. See DiRico v. City of
Quincy, 404 F.3d 464, 466, 469 (1st Cir. 2005) (holding that decision not to take disciplinary
action after one complaint of excessive force did not amount to deliberate indifference); Febus-

19

Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 94 (1st Cir. 1994) (finding failure to sanction
officer for five past complaints “did not show . . a grossly deficient complaint procedure”); cf.
Kibbe v. City of Springfield, 777 F.2d 801, 809 n.7 (1st Cir. 1985) (“We are unconvinced that a
failure to discipline [the defendant] or other officers amounts to the sort of ratification from
which a jury properly could infer municipal policy.”).
This would admittedly be a simpler case if the evidence showed forty-seven complaints
of excessive force, rather than forty-seven use-of-force reports. However, the court must view
the evidence in context. In cases involving claims of excessive force against police officers by
civilians, the court would expect a greater rate of complaints—civilians may have better access
to complaint procedures and may, in filing their complaints, operate beyond the control and
oversight of the officers they allege used excessive force against them. That is not always the
case within a correctional facility, where prisoners may be dissuaded from reporting such events
by the knowledge that they remain under the care of the correctional officers about whom they
would seek to complain.8 In this context, and in the face of the use-of-force reports, the court
cannot find that the absence of a pattern of excessive-force complaints is dispositive.
In addition to evidence that forty-seven combined uses of force over two years would
cause “great alarm” on the part of an attentive supervisor, see id. ¶ 63, Ex. H at 24, Nascarella
offers evidence that Superintendent Marks was cited for non-compliance by Department of
Correction auditors for failing to ensure the completeness and accuracy of use-of-force packages.
See Pl.’s Facts ¶¶ 108-09, Ex. AA. Finally, Nascarella has offered evidence that, despite being
cited for non-compliance, and despite the high number of combined uses of force by Officer
8

The court notes that in this case, Nascarella apparently waited until he was no longer
incarcerated before bringing this action. Compl. ¶ 1 (stating that Nascarella is a former
prisoner).
20

Marks and Officer Mustone, Superintendent Marks did not investigate the discrepancies in
reporting by these officers when another prisoner alleged that they had kicked and punched him
in the face. See id. ¶¶ 66-68, 71-73. Compare Ex. L at 7 (report by Officer Mustone that Morris
sustained “a small cut over his left eye”), and id. at 9 (report by Officer Marks that makes no
mention of resulting injuries), with id. at 10 (report by another correctional officer that Morris
“received a laceration to the left check and multiple contusions” and “would have to be
transported to an outside hospital for further treatment”); and id. at 15 (report by medical
provider that Morris sustained “two lacerations over his left eye and a contusion to his right ear”
and that a responding doctor ordered him “transported to Beverly Hospital for further
evaluation”). The strength of this evidence may appropriately be weighed by a jury. The
evidence suffices, however, to place in dispute the material fact of whether Superintendent
Marks exhibited deliberate indifference to a recognizable pattern of the inappropriate uses of
force that required investigation and correction through his failure to properly review use-offorce packages.
The First Circuit has previously found that the inference that a failure to discipline
officers in the past would lead to the belief that they could escape discipline for future acts
“simply too tenuous” to form the basis of a supervisory liability claim. Febus-Rodriguez, 14
F.3d at 94; see also Ramírez-Lluveras, 759 F.3d at 23 (“The plaintiff’s argument also fails
because it depends on the inference that insufficient sanctioning for past problems led Pagán to
believe he could get away with more bad acts.”). In both Febus-Rodriguez and RamírezLluveras, however, the past, undisciplined acts were unrelated to the type of conduct at issue in
those cases. See Febus-Rodriguez, 14 F.3d at 93-94 (finding the past complaints “completely
unrelated to the present one”); Ramírez-Lluveras, 759 F.3d at 21 (“Only a single . . .

21

[undisciplined] item in Pagán’s record . . . revealed any tendency of violence towards
civilians.”). In contrast, a jury could reasonably infer that Superintendent Marks’ failure to
ensure the accuracy of past use-of-force packages, and failure to identify the allegedly alarming
rate of force used by Officer Mustone and Officer Marks, gave rise to a belief in Officer Mustone
and Officer Marks that they could continue to use, and under-report, force against prisoners with
impunity. The court finds that this conclusion requires less of an inferential leap than in FebusRodriguez and Ramírez-Lluveras.9 Moreover, Nascarella’s expert states that the failure “to track
and analyze trends concerning use of force . . . predictably leads to a higher incidence of
excessive use of force and creation of a culture of undetected criminal violations.” Pl.’s Facts
Ex. H at 31. This provides further support for Nascarella’s claim of causation that may be
appropriately weighed by a jury. See Voutour v. Vitale, 761 F.2d 812, 822 (1st Cir. 1985)
(“[T]he affidavit of plaintiff’s expert . . . stating . . . that the shooting of Voutour was a highly
predictable result of the inadequate training . . . obviously provides additional support for
causation.”).
Accordingly, the court finds sufficient record evidence to create a triable issue as to
whether Superintendent Marks was deliberately indifferent in his failure to supervise or
discipline correctional officers, predictably leading to Officer Mustone and Officer Marks’ use of
force. See id. (reversing grant of summary judgment based on finding that causation, although a
close question, could be reasonably inferred from the record evidence).
As to Sheriff Cousins, however, Nascarella has failed to present evidence that he “would
have known[,] . . . but for his deliberate indifference or willful blindness,” that Officer Mustone
9

Lending further support to the reasonableness of this inference is record evidence showing that
the use-of-force package related to the use of force against Nascarella underreported the type of
force used, failed to include any report from Officer Marks, and reported injuries inconsistent
with Nascarella’s medical records. See Pl.’s Facts ¶¶ 116-121.
22

and Officer Marks posed a significant risk of harm and required supervision or discipline. See
Maldonado-Denis, 23 F.3d at 582. Although Sheriff Cousins has ultimate authority for the
Facility, § 1983 liability “cannot rest solely on a defendant’s position of authority.” RamírezLluveras, 759 F.3d at 19 (citing Ocasio–Hernández v. Fortuño–Burset, 640 F.3d 1, 16 (1st Cir.
2011)).
The record does not establish that Sheriff Cousins has responsibility for reviewing use-offorce reports at the Facility. Accordingly, in the absence of a pattern of excessive-force
complaints or other evidence reasonably available to Sheriff Cousins that could have shown a
pattern of abuse or tendency towards unconstitutional behavior, no affirmative link can be drawn
between his actions and Officer Mustone and Officer Marks’ use of force. See Hegarty v.
Somerset Cnty., 53 F.3d 1367, 1380 (1st Cir. 1995) (finding no “affirmative link” between
supervisor’s conduct and alleged violation).
Accordingly, summary judgment on Counts One and Two is GRANTED as pleaded
against Sheriff Cousins, but DENIED as pleaded against Superintendent Marks.
2.

Intentional Infliction of Emotional Distress

Nascarella also pleaded Count Six, alleging intentional infliction of emotional distress,
against Superintendent Marks and Sheriff Cousins. See Compl. ¶¶ 12, 81. Although
Defendants’ motion for summary judgment sought judgment on all claims against all
Defendants, see Defs.’ Mot. Summ. J. [#54], however, their memorandum in support included no
briefing on the intentional infliction of emotional distress claim as pleaded against
Superintendent Marks and Sheriff Cousins. See Defs.’ Mem. Law Supp. Mot. Summ. J.
Pursuant Fed. R. Civ. P. 56(c), 11 [#55] [hereinafter Defs.’ Mem.] Accordingly, the motion for
summary judgment as to Nascarella’s claim for intentional infliction of emotional distress
against Superintendent Marks and Sheriff Cousins is DENIED WITHOUT PREJUDICE.
23

C.

Claim of Negligence Against the Commonwealth

Count Three of Nascarella’s complaint alleges negligence against the Commonwealth of
Massachusetts pursuant to The Massachusetts Tort Claims Act.10 Defendants argue for summary
judgment on the ground that the Commonwealth undertook no direct action that amounts to
negligence. Defendants’ argument misconstrues the scope of liability under the Massachusetts
Tort Claims Act, which states that “[p]ublic employers shall be liable for injury or loss of
property or personal injury or death caused by the negligent or wrongful act or omission of any
public employee while acting within the scope of his office or employment.” Mass. Gen. Laws
ch. 258, § 2 (emphasis added).
The more pertinent question is whether Officer Mustone and Officer Marks’ actions fall
into the Massachusetts Tort Claim Act’s exception from liability for “any claim based upon the
exercise or performance or the failure to exercise or perform a discretionary function or duty on
the part of a public employer or public employee, acting with the scope of his office or
employment, whether or not the discretion involved is abused.” Id. § 10(c). Two elements must
be satisfied for an act to be considered “discretionary.” First, the actor must have had some
discretion in whether or not to undertake the act. Harry Stoller & Co. v. City of Lowell, 587
N.E.2d 780, 782 (Mass. 1992). Second, the action must “represent planning and policymaking,’”
rather than merely “the implementation and execution of . . . [a] governmental policy.” Id. at
783 (citing Whitney v. Worcester, 366 N.E.2d 1210, 1216 (Mass. 1977)); see also Horta v.
10

A plaintiff must exhaust administrative remedies prior to filing suit under the Massachusetts
Tort Claims Act. See Mass. Gen. Laws ch. 258, § 4. Defendants do not dispute that Nascarella
met this exhaustion requirement. Under the Massachusetts Tort Claims Act, the Commonwealth
is exempt from liability for “[a]ny claim arising out of an intentional tort, including assault,
battery, . . . [or] intentional mental distress.” Id. § 10(c). Accordingly, Nascarella pleads Count
Three in the alternative to his claims predicated on the intentionality of Officer Mustone and
Officer Marks’ acts.
24

Sullivan, 638 N.E.2d 33, 36 (Mass. 1994) (“The question whether a governmental actor’s
conduct involves discretion of the planning or policymaking type must be narrowly focused on
the allegedly negligent conduct, not on whether the actor’s conduct is part of some broader
governmental policy.”).
Here, Officer Mustone and Officer Marks’ actions undoubtedly involved the use of
discretion. However, nothing in the record suggests that they were acting in a planning or
policymaking capacity. Rather, the choice to use force appears to have been “an ad hoc
decision, based on the situation confronting [them] and . . . [having] no close nexus to policy
making or planning.” Horta, 638 N.E.2d at 37; see also Harry Stoller & Co., 587 N.E.2d at 785.
As such, section 10(c)’s exemption to liability in the case of discretionary acts does not preclude
Nascarella’s claim.
Accordingly, the court DENIES summary judgment as to Count Three.
IV.

Conclusion
As set forth above, Defendants’ Motion for Summary Judgment [#54] is ALLOWED IN

PART and DENIED IN PART as follows:
As to Counts One and Two, the court hereby ALLOWS Sheriff Cousins’ motion for
summary judgment, but DENIES Officer Mustone, Officer Marks, and Superintendent Marks’
motion for summary judgment;
As to Count Three, the court DENIES the Commonwealth’s motion for summary
judgment;
As to Count Five, the court DENIES Officer Mustone and Officer Marks’ motion for
summary judgment;

25

As to Count Six, the court DENIES Officer Mustone and Officer Marks’ motion for
summary judgment and DENIES WITHOUT PREJUDICE Superintendent Marks and Sheriff
Cousins’ motion for summary judgment;
As to Count Seven, the court ALLOWS Officer Mustone and Officer Marks’ motion for
summary judgment.
It is further ordered that, pursuant to the court’s partial denial of Count Six without
prejudice, Defendants Superintendent Marks and Sheriff Cousins may file a supplemental motion
and accompanying memorandum of law, not to exceed five pages, should they believe summary
judgment is warranted as to Count Six based on Defendants’ previously filed Rule 56.1
statement. Any such motion must include a certification pursuant to Local Rule 7.1(a)(2) and
shall be filed no later than April 9, 2015. Plaintiff shall have fourteen days from the date of
filing to submit an opposition to any such motion, also not to exceed five pages.
IT IS SO ORDERED.
March 27, 2015

/s/ Indira Talwani
United States District Judge

26