Schultz v. Houle et al

Filing 56

Chief Judge Patti B. Saris: ENDORSED ORDER entered " I adopt without objection " re 53 Report and Recommendations. (Attachments: # 1 Report and Recommendations) (Coppola, Katelyn)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

JASON J. SCHULTZ,
Plaintiff,
No. 16-cv-11774-PBS
v.
KEITH R. HOULE, et al.,
Defendants.

REPORT AND RECOMMENDATION ON DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT (DKT. NO. 42)
CABELL, U.S.M.J.
Plaintiff Jason Schultz, who appears pro se, is a prisoner at
the

Souza-Baranowski

Massachusetts.
claims

that

Correctional

Center

in

Shirley,

He seeks relief under 42 U.S.C. § 1983 based upon
several

Massachusetts

Department

of

Corrections

(“DOC”) officers violated his Eighth Amendment right to be free
from cruel and unusual punishment when they used excessive force
and a chemical agent to remove him from his cell.

The defendants

have moved for summary judgment and the motion has been referred
to this court for a report and recommendation.

For the reasons

that follow, I recommend that the motion be granted in part and
denied in part.

I.

THE PARTIES
The plaintiff is a prisoner at MCI Shirley.

Defendant Glen

Doher is a corrections officer there with the rank of Captain.
Defendant Keith Houle is a corrections officer with the rank of
Sergeant.

Defendants

corrections officers.

Robert

Bashaw

and

Chris

Amenta

are

Defendant Osvaldo was at all relevant times

the Superintendent of the facility.
II.

RELEVANT FACTUAL BACKGROUND

As none of the parties have submitted a traditional statement
of facts, the court begins by describing, briefly, the major
sources of the facts recited below.

The defendants’ memorandum

“incorporates by reference” affidavits submitted by defendants
Doher, Houle, Bashaw and Amenta.

Defendant Doher’s affidavit in

turn incorporates several other documents, including among them
separate incident reports written by defendants Houle, Bashaw, and
Amenta.

Each officer in turn adopts and authenticates his own

report through his own separate affidavit.

Defendant Doher also

appends the report of a social worker who spoke with the plaintiff
prior to the removal, the report of a nurse who treated the
plaintiff after the removal, and a video of the removal incident
itself.

The reports of the nurse and social worker are arguably

inadmissible for Rule 56 purposes where neither has submitted an
affidavit, but their interactions with the plaintiff are also
captured on the video.
2

As for the plaintiff, he submits two documents, including (1)
a “Plaintiff’s Statement of Disputed Factual Issues” and (2) a
“Declaration in Opposition to Defendants (sic) Motion for Summary
Judgment.”

Although the statement of disputed issues is “short

and concise,” it is not “supported by appropriate record citations”
required by Local Rule 56.1(a).

However, the plaintiff repeats

the principal alleged disputed facts in his Declaration, and that
document, while containing some factual assertions not supported
in the record, has been verified by the plaintiff pursuant to 28
U.S.C. § 1746.

Accordingly, the court will rely on assertions in

these documents to the extent they appear to be based on the
plaintiff’s personal knowledge.
Unless otherwise indicated, the facts recited in this section
are either undisputed or clearly supported by the record.
A. The Use of Force Plan
On May 21, 2015, DOC staff approached the plaintiff and
another inmate to request that they leave their current cells to
be “double bunked” together in a single cell.

When the plaintiff

refused to do so, DOC staff devised and proposed a “use of force”
plan to defendant Vidal as Superintendent of the facility.
Aff., at ¶ 3).

(Doher

A “use of force” plan is the organized process by

which correction officers gain entry into a cell or other area to
extract a disruptive or non-compliant inmate by the use of physical
force.

(Houle Aff., at ¶ 3).
3

Depending on the circumstances, a planned use of force may
involve the use of a chemical agent.

(Id., at ¶ 4).

Any use of

a chemical agent, including the use of a liquid, powder, or other
substance, must be approved by the Medical Director of the facility
following a review of the inmate’s medical file to ensure that the
use of the agent is not medically contraindicated.

(Id.).

The

Medical Director, or their designee, completes a “use of chemical
agents” form that indicates any contraindications to the use of
certain chemical agents and any limitations on their use.

(Id.).

In anticipation of the forced move, the Medical Director was
consulted

to

determine

contraindicated.
medical

file

and

whether

chemical

agents

were

The Medical Director reviewed the plaintiff’s
advised

that

while

there

were

no

medical

contraindications to the use of chemical agents, he recommended
that a certain chemical agent, known as Oleoresin Capsicum fogger
(“OC fogger”), be used due to the plaintiff’s pre-existing medical
condition as an asthma sufferer.

(Houle Aff., at ¶ 8).

Vidal approved the use of force plan.

Defendant

(Doher Aff., at ¶ 3).

B. The Forced Removal
The parties agree that DOC officers convened outside the
plaintiff’s cell at around 10:40 a.m., and thereafter proceeded to
forcibly remove the plaintiff from his cell.
versions of the pertinent details, however.

4

They offer differing

i.

The Defendants’ Version

According to the defendants, Houle informed the plaintiff
that the Superintendent had authorized the use of force, including
the use of a chemical agent, to remove the plaintiff from his cell.
(Houle Aff., at p. 5; Doher Aff., at Ex. B, p. 5).

Houle asked

the plaintiff to comply with an order to come out of his cell but
the plaintiff refused to do so. (Houle Aff., at p. 5-6). Moreover,
the plaintiff had bandaged his wrists to prevent the staff from
handcuffing him, had placed a t-shirt around his neck as a mask in
the event that a chemical agent was used, and had wedged a blanket
in the doorway of his cell.

(Id., at p. 6).

Houle ordered the plaintiff three times to back away from the
door of the cell so he could be placed in restraints but the
plaintiff refused on all three occasions (Id.).

Houle then

administered a “one-second” burst of an Oleoresin Capsicum (OC)
fogger into the cell and again ordered the plaintiff to back away
from the cell door. (Id.).

The plaintiff again refused and the

team was then deployed to remove the plaintiff from his cell.
(Id.).
According to Bashaw, as he entered the cell, the plaintiff
attempted to “sweep” his legs out by kicking at him.
at Ex. B, p. 5).

(Doher Aff.,

Bashaw jumped over the plaintiff to avoid falling

and made contact with the plaintiff by applying “downward pressure”
to secure him to the floor.

(Id.).
5

Amenta then secured the

plaintiff’s arms and wrists by applying “downward pressure” so he
could be handcuffed.

(Id.).

Once secured in restraints, the

plaintiff was helped to his feet and escorted out of the cell
“under his own power.”
ii.

(Id.).

The Plaintiff’s Version

The plaintiff contends that when the officers administered
the chemical agent, it forced him to lay on the floor, face down.
(Id., at ¶ 9). He was thus already on the floor when the defendants
entered, and they then without warning beat him before placing
restraints on him. Defendant Amenta kicked him in the face several
times while defendant Bashaw straddled his back and defendant Houle
looked on from the cell doorway.

(Id., at ¶¶ 6-8).

The plaintiff

did not resist or threaten the officers for fear of escalating the
assault.

(Id., at ¶¶ 10, 12).

C. Subsequent Medical Treatment
Once the plaintiff was removed from his cell, he was escorted
to the “sally port area,” strip searched for contraband, and then
escorted to the trauma room for treatment.
Doher Aff., at Exh. B, p. 5).

(Houle Aff., at p. 7;

The plaintiff refused a shower to

wash off the chemical agent or to have his eyes flushed.
Aff., at p. 8; Doher Aff., at Exhibit B, p. 5).

(Houle

After being

assessed for any physical injuries and receiving treatment for a
contusion over his left eye, the plaintiff was escorted to the

6

Health Service Unit and then placed in a cell.

(Houle Aff., at p.

9-10; Doher Aff., at Ex. B, p. 5).
III. THE COMPLAINT
The complaint asserts five counts pursuant to 42 U.S.C. §
1983:

(1) Count I alleges that defendants Houle, Bashaw, and

Amenta used excessive force against the plaintiff in removing him
from his cell; (2) Count II alleges that defendants Houle, Doher
and Vidal were deliberately indifferent to the plaintiff’s serious
medical needs; (3) Count III alleges that defendant Houle failed
to intervene to stop the excessive force used by defendants Amenta
and Bashaw; (4) Count IV alleges that defendant Doher failed to
train his subordinates on the proper use of force when executing
a use of force plan; and (5) Count V alleges that defendant Vidal
failed to discipline his subordinates for using excessive force.
IV.

LEGAL STANDARD

When

the

court

is

presented

with

a

motion

for

summary

judgment, it shall grant it “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled
to a judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

The

moving party bears the initial burden of “assert[ing] the absence
of a genuine issue of material fact and then support[ing] that
assertion

by

affidavits,

evidentiary quality.”
15, 19 (1st Cir. 2003).

admissions,

or

other

materials

of

Mulvihill v. Top-Flite Golf Co., 335 F.3d
Once the moving party meets that burden,
7

in order to avoid summary judgment, the opposing party must “show
that a factual dispute does exist, but summary judgment cannot be
defeated

by

relying

on

improbable

allegations, or rank speculation.”

inferences,

conclusory

Fontanez-Nunez v. Janssen

Ortho LLC, 447 F.3d 50, 54-55 (1st Cir. 2006)(quoting Ingram v.
Brink’s, Inc., 414 F.3d 222, 228-29 (1st Cir. 2005)).
opposing

party

must

“produce

specific

facts,

Indeed, the
in

suitable

evidentiary form, to establish the presence of a trialworthy
issue.”

Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006)

(quoting Triangle Trading Co. v. Robroy Indus. Inc., 200 F.3d 1,
2 (1st Cir. 1999)).
When determining whether summary judgment is appropriate, “a
court must view the record in the light most favorable to the
nonmoving party and give that party the benefit of all reasonable
inferences in its favor.” Id. (citing Nicolo v. Philip Morris,
Inc., 201 F.3d 29, 33 (1st Cir. 2000)).

The Federal Rules require

“the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of
proof at trial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986)(citing Fed. R. Civ. P. 56)).

“Where the record taken as a

whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.”
8

Scott v.

Harris, 550 U.S. 372, 380 (2007)(quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)) (internal
quotation marks omitted).
V.

ANALYSIS
As a threshold matter, the defendants argue that defendant

Vidal, who is charged in Counts II and V, is entitled to dismissal
of the complaint against him because the plaintiff has failed to
perfect service on him.

See Dkt. No. 17 (“US Marshall Process

Receipt

Superintendent

and

Return

undelivered”).

for

The court agrees.

Osvaldo

Vidal

returned

“Under the federal rules,

service of process must take place within 120 days after the
complaint is filed, or the court must dismiss the action without
prejudice against that defendant or order that service be made
within a specified time.”
364 (D. Mass. 2014).

Morales v. Spencer, 52 F. Supp. 3d 362,

The plaintiff does not dispute that service

was never perfected on defendant Vidal, and indeed does not address
the issue at all in his opposition.

I recommend therefore that

the complaint be dismissed against defendant Vidal for failure to
effect proper service under Fed. R. Civ. P. 4(m).
With respect to the remaining defendants, the complaint, as
noted above, asserts five counts under 42 U.S.C. § 1983.

Section

1983 “is not itself a source of substantive rights, but merely
provides

a

conferred.”

method

for

vindicating

federal

rights

elsewhere

Graham v. Connor, 490 U.S. 386, 393-94 (1989).
9

In

order to prevail under section 1983, the plaintiff must bring forth
evidence that the defendants (1) acted under “color of state law,”
and

(2)

deprived

Constitution

or

[the]

the

plaintiff

laws

of

the

of

a

right

United

secured

States.

by

the

Budnick

v.

Baybanks, Inc., 921 F. Supp. 30, 32 (D. Mass. 1996).
A. Count I – Excessive Force
The plaintiff alleges that defendants Houle, Bashaw, and
Amenta used excessive force in removing the plaintiff from his
cell.

He

alleges

specifically

that

Amenta,

wearing

boots,

repeatedly kicked him in the face near the left orbital area while
Bashaw pinned his body down. Where an excessive force claim arises
in

the

context

of

an

inmate’s

interactions

with

correction

officers, it is most properly characterized as one invoking the
protections of the “cruel and unusual punishment” clause of the
Eighth Amendment. See Farmer v. Brennan, 511 U.S. 825, 832 (1994);
Maraj v. Massachusetts, 836 F. Supp. 2d 17, 26 (D. Mass. 2011).
The relevant inquiry when such a claim is made is whether
“force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.”

Orwat

v. Maloney, 360 F. Supp. 2d 146, 153 (D. Mass. 2005)(quoting Hudson
v. McMillian, 503 U.S. 1, 6-7(1992)).

“Factors such as 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
10

of a forceful response are relevant in determining whether a prison
official used excessive force.”

Perry v. Dickhaut, 125 F. Supp.

3d 285, 296 (D. Mass. 2015)(quoting Hudson, 503 U.S. at 7).
Applied here, the court finds that there is a genuine dispute
of fact as to whether defendants Amenta and Bashaw used force in
a good faith effort to effect the plaintiff’s compliance or to
maliciously
demonstrates

and
that

sadistically
defendants

cause
Bashaw

him
and

harm.
Amenta

The
made

record
physical

contact with the plaintiff while defendant Houle stood in the
doorway.

The defendants maintain that a forced removal was wholly

justified because the plaintiff resisted removal by placing a
blanket in the doorway, refused to follow orders to back away from
the door of the cell, and attempted to trip Bashaw by kicking his
legs once the officers gained entry into the cell.

The defendants

also deny that anyone kicked or struck the plaintiff in the face
as he contends.

The plaintiff in contrast contends that he was

already passively lying on the ground face down when the officers
entered and did not resist even as one officer repeatedly kicked
him and another straddled him.

In that regard, the plaintiff

alleges injuries to his left orbital area that are consistent with
his version of events.

Because a reasonable juror crediting the

plaintiff’s allegations could conclude that “such use of [force]
on a defenseless and non-resistant inmate was non-deminimis force
applied maliciously and sadistically for the very purpose of
11

causing harm, rather than in a good-faith effort to maintain or
restore discipline,” there is a dispute of material fact, rendering
summary judgment inappropriate.

See Perry, 125 F. Supp. 3d at 297

(finding excessive force where the plaintiff was not resisting
forced entry or being placed on restraints)(internal citations
omitted).
To be sure, the defendants contend that the video of the
incident “demonstrates that [the plaintiff’s] claims are a visible
fiction.”

The court cannot readily agree; the video does tend to

support the defendants’ contention that they were justified in
executing a forced removal but it does not definitively show that
the removal did not involve excessive force.

More particularly,

the video shows that the plaintiff refused to comply with a prior
request that he agree to move to another cell.

It also depicts

that when officers did arrive at his cell he had wedged a blanket
between the door and door jamb, making it difficult to fully open
the cell door.

It also shows that the plaintiff was asked

repeatedly prior to the officers’ entry to back up to the door so
that officers could place cuffs on his wrists through a small
opening, but that he did not appear to comply.
The problem with the video, though, is that the officers’
specific actions inside the cell are not always clearly visible
because

the

videographer

was

stationed

outside

the

cell

and

defendant Houle was positioned in front of him in the doorway,
12

partially blocking and obstructing the view of the floor area of
the cell.

Consequently, although the video depicts that four

officers entered the cell to effect the forced removal, the first
several seconds of activity are obstructed from view and it is
impossible to see what any of the officers are doing.

When at

some point the camera angle captures what is happening, the video
shows officers on or near the ground, presumably on top of or
around the plaintiff, but the plaintiff cannot be clearly seen
until after the physical encounter has come to pass and the
plaintiff is being escorted out of the cell.

In terms of whether

the plaintiff resisted or did not resist, or whether defendant
Amenta did or did not kick the plaintiff when the officers first
entered, or whether any officer did or did not strike the plaintiff
at any time, the video simply does not reveal what occurred, and
thus does not affirmatively reveal the plaintiff’s claims of
excessive force to be a “visible fiction.”
In sum, even with the benefit of the video, there is a genuine
dispute of fact as to whether defendants Amenta and Bashaw used
excessive force in removing the plaintiff from his cell.

That

being said, the video does make it clear that defendant Houle was
stationed in the doorway and did not use any physical force,
excessive or otherwise, on the plaintiff.

The motion for summary

judgment should therefore be allowed on Count I as to defendant
Houle, but denied as to defendants Amenta and Bashaw.
13

B. Count II – Medical Indifference
The plaintiff alleges that defendants Houle and Doher were
deliberately indifferent to his medical needs because they knew
that he suffered from asthma but nonetheless approved the use of
a chemical agent as part of the use of force plan.

The court

recommends that the defendants be granted summary judgment on this
claim.
“In order to prove an Eighth Amendment violation based on
inadequate medical care, a prisoner must satisfy ‘(1) an objective
prong that requires proof of a serious medical need, and (2) a
subjective prong that mandates a showing of prison administrators'
deliberate indifference to that need.’”

Reaves v. Department of

Correction, 195 F. Supp. 3d 383, 407 (D. Mass. 2016)(quoting
Kosilek v. Spencer, 774 F.3d 63, 82 (1st Cir. 2014)).

To satisfy

the objective prong of the inquiry, the plaintiff must have a
serious medical need, that is, one that has been diagnosed by a
physician or is so obvious that it requires treatment, and must
show that the care provided by the prison was not “adequate as
measured

against

prudent

professional

standards.”

Nunes

v.

Massachusetts Dept. of Correction, 766 F.3d 136, 142 (1st Cir.
2014)(internal citations omitted).

“[E]ven if medical care is so

inadequate as to satisfy the objective prong, the Eighth Amendment
is

not

violated

unless

prison

administrators

deliberate indifference to the prisoner’s needs.”
14

also

exhibit

Kosilek, 774

F.3d at 83 (citing Estelle v. Gamble, 429 U.S. 97, 105-06 (1976)).
“Deliberate indifference may be manifested by prison doctors in
their response to the prisoner's needs or by prison guards in
intentionally

denying

or

delaying

access

to

medical

care

or

intentionally interfering with the treatment once prescribed.”
Chapman

v.

Finnegan,

950

F.

Supp.

2d

285,

297

(D.

Mass.

2013)(quoting Estelle, 429 U.S. at 104-05).
In

this

case,

even

assuming

arguendo

that

exposing

the

plaintiff to a one-second burst of the OC fogger could give rise
to a viable Eighth Amendment medical indifference claim in light
of the plaintiff’s asthma, there is no evidence that the defendants
were indifferent to the plaintiff’s needs or were aware that the
use of the chemical agent here could create a substantial risk of
serious harm.

See Calderon-Ortiz v. LaBoy-Alvarado, 300 F.3d 60,

65 (1st Cir. 2002)(plaintiff claiming deliberate indifference must
show that each defendant had “knowledge of facts from which the
official [could have drawn] the inference that a substantial risk
of serious harm exist[ed]”); Burrell v. Hampshire County, 307 F.3d
1, 8 (1st Cir. 2002)(“Prison officials cannot be indifferent, of
course, if they are unaware of the risk.”).

On the contrary, the

undisputed facts show that the defendants consulted with and relied
on the guidance of the facility’s Medical Director, who advised
the

forced

removal

team

that

there

were

no

medical

contraindications to the use of chemical agents on the plaintiff,
15

except that an OC fogger should be used for someone with his
condition.

The officers were entitled to rely on this medical

guidance and it moreover demonstrates that they did not act with
deliberate

indifference

to

the

plaintiff’s

condition.

See

Hennessey v. Dennehy, No. 08-cv-11724-NG, 2010 WL 3464234, at *8
(D. Mass. Sept. 1, 2010) (finding summary judgment appropriate
because “prison officials are generally entitled to rely on the
opinions

of

the

medical

professionals

who

treat

the

prisoner”)(citing Layne v. Vinzant, 657 F.2d 468, 471-72 (1st Cir.
1981)); see also Lee v. Young, 533 F.3d 505, 511 (7th Cir.
2008)(“[P]rison officials who are not medical professionals are
entitled to rely on the opinions of medical professionals.”).

In

that regard, the video does not depict the plaintiff to ever be in
a state of distress, and shows that he afterwards interacted and
spoke with a medical worker, voiced no medical concerns relating
to his asthma, declined to take a shower to rinse off the agent,
and thereafter was transferred to another cell.
The plaintiff does not dispute any of these propositions and
indeed does not address the defendants’ argument for summary
judgment on this count in his opposition. Summary judgement should
therefore enter for defendants Houle and Doher on Count II. 1

1

For the same reasons, Count II would fail against defendant Vidal on the
merits assuming proper service had been made.

16

C. Count III – Supervisory Liability (Houle)
Count III alleges that defendant Houle “tacitly authorized,
condoned, and encouraged” the excessive use of force on the
plaintiff.

It is undisputed that defendant Houle did not actually

touch the plaintiff during the removal but he was at all relevant
times a Sergeant who was responsible for overseeing the planned
use of force team.
liability

under

In the Eighth Amendment context, supervisory
section

1983

typically

arises

where

“the

supervisor [was the] primary violator or direct participant in the
rights-violating incident. . .” Stone v. Caswell, 963 F. Supp. 2d
32, 35-36 (D. Mass. 2013)(quoting Sanchez v. Pereira-Castillo, 590
F.3d 41, 49 (1st Cir. 2009)).
challenged

conduct,

constitutional

a

“Absent participation in the

supervisor

violations

only

if

may
(1)

be
the

held

liable

behavior

of

for
[his]

subordinates results in a constitutional violation and (2) the
[supervisor’s] action or inaction was affirmative[ly] link[ed] to
the behavior in the sense that it could be characterized as
supervisory encouragement, condonation or acquiescence or gross
negligence

[of

indifference.”

the

supervisor]

amounting

to

deliberate

Chapman v. Finnegan, 950 F. Supp. 2d 285, 294 (D.

Mass. 2013)(quoting Pineda v. Toomey, 533 F.3d 50, 54 (1st Cir.
2008)).

Applied here, in order for supervisory liability to

attach, the plaintiff must show that (1) defendants Amenta and/or
17

Bashaw violated his constitutional rights and (2) defendant Houle
encouraged, condoned or acquiesced in their actions.
Considering the evidence in a light most favorable to the
plaintiff, a factfinder concluding that defendants Amenta and
Bashaw used excessive force to remove the plaintiff could also
reasonably conclude that defendant Houle, by his presence and
failure to intervene, encouraged, condoned or acquiesced in his
subordinates’

conduct.

Summary

appropriate on this count.

judgment

is

therefore

not

See Miranda-Rivera v. Toledo-Davila,

813 F.3d 64, 73 (1st Cir. 2016)(upholding denial of summary
judgment on supervisory liability claim for failing to intervene
where summary judgment was also denied on excessive force claim);
Holloman

v.

Clarke,

208

F.

Supp.

3d

373,

376

(D.

Mass.

2016)(correction officers found liable under theory of supervisory
liability where they watched officer beat detainee and failed to
intervene); see also Smith v. Mensinger, 293 F.3d 641, 650 (3rd
Cir. 2002)( “a corrections officer's failure to intervene in a
beating can be the basis of liability for an Eighth Amendment
violation under § 1983 if the corrections officer had a reasonable
opportunity to intervene and simply refused to do so”); Gailor v.
Armstrong, 187 F. Supp. 2d 729, 736-37 (W. D. Ken. 2001)(same).
D. Count IV – Supervisory Liability (Doher)
Count IV alleges that defendant Doher failed to train newly
hired

corrections

officers

and
18

failed

also

to

train

his

subordinates on the proper use of force when executing a use of
force plan.
relevant

It is undisputed that defendant Doher was at all

times

a

Captain

who

oversaw

the

prison’s

“Special

Management Unit,” including defendants Houle, Bashaw and Amenta.
A supervisor may be liable under section 1983 for failing to train
his subordinates where the failure to train “amounts to deliberate
indifference to the rights of persons with whom [the correction
officers] come into contact.”

Whitfield v. Melendez-Rivera, 431

F.3d 1, 9-10 (1st Cir. 2005)(quoting City of Canton v. Harris, 489
U.S. 378, 388 (1989)).
a

plaintiff

must

To succeed on a failure to train theory,

establish

that

the

particular

officers

who

committed the violation were not adequately trained and that the
failure in training was at least a partial cause of the ultimate
injury.

Id. at 10; see also Young v. City of Providence, 404 F.3d

4, 26–29 (1st Cir. 2005)(“any proper allegation of failure to train
... must allege that [the officer's] lack of training caused him
to take actions that were objectively unreasonable and constituted
excessive force” and that “the identified deficiency in [the
training program was] closely related to the ultimate injury.”).
This is “ordinarily demonstrated by adducing a pattern of similar
constitutional violations by untrained employees.”

Turkowitz v.

Town of Provincetown, 914 F. Supp. 2d 62, 77 (D. Mass. 2012).
Here, even assuming that officers used excessive force on
him, the plaintiff cannot meet the high hurdle established by the
19

“deliberate indifference” standard to show that the excessive
force

was

the

result

of

inadequate

training.

For

one,

the

plaintiff has not adduced any evidence that any officer was
inadequately trained, or pointed to any evidence in the record
demonstrating that defendant Doher had “actual or constructive
notice

that

cause[d]

a

particular

[his]

employees

constitutional rights.”
(2011)).

omission
to

in

[his]

violate

training

the

program

[plaintiff’s]

Connick v. Thompson, 563 U.S. 51, 61

Similarly, where the plaintiff has adduced no evidence

that officers have behaved similarly in the past, there is no
evidence of “a pattern of similar constitutional violations” due,
at least in part, to a lack of proper training.
Supp. 2d at 77.

Turkowitz, 914 F.

Summary judgment therefore should enter in

defendant Doher’s favor on Count IV. 2
E. Qualified Immunity
Finally, the defendants argue that they should be entitled to
qualified immunity assuming they violated any of the plaintiff’s
constitutional rights.

Qualified immunity serves as a shield to

government officials “from liability for civil damages insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

2

It does

Count V would also fail on the merits against defendant Vidal for the same
reasons.

20

not, however, shield public officials who, from an objective
standpoint, should have known that their conduct was unlawful.
Haley v. City of Boston, 657 F.3d 39, 47 (1st Cir. 2011).
use

a

two-part

test

to

determine

whether

qualified

Courts

immunity

applies: (1) whether the facts alleged by the plaintiff make out
a violation of a constitutional right; and if so (2) whether the
right was clearly established at the time of the alleged violation.
MacDonald v. Town of Eastham, 745 F.3d 8, 11 (1st Cir. 2014).
Here, and as noted above, there is a genuine dispute of
material fact as to whether defendants Bashaw and Amenta used
excessive force in forcibly removing the plaintiff from his cell,
as well as whether defendant Houle endorsed or condoned their
conduct when he failed to intervene.

At the time of the removal

in 2015, the law was clearly established that a prison official
could not use excessive force on an inmate for the sole purpose of
causing harm.
established

in

See Perry, 125 F. Supp. 3d at 298 (“It was clearly
2010

that

a

prison

official

may

not

inflict

unnecessary and wanton pain and suffering by using force against
an inmate maliciously and sadistically for the very purpose of
causing harm.”); Nascarella v. Cousins, No. 13-cv-10878-IT, 2015
WL 1431054, at *6 (D. Mass. Mar. 27, 2015)(“Eighth Amendment
precedent

predating

July

3,

2012,

clearly

unjustified use of force against prisoners.”).
true for defendant Houle’s duty to intervene.
21

prohibits

the

The same holds
See Torres-Rivera

v. O’Neill-Cancel, 406 F.3d 43, 55 (1st Cir. 2005)(holding that
officer was not entitled to qualified immunity “because the law
was clearly established in 1998 than an officer [witnessing another
officer use excessive force on a detainee] . . . had a duty to
intervene”).

The

defendants

therefore

are

not

entitled

to

qualified immunity on Counts I and III.
VI.

CONCLUSION

For the foregoing reasons, the court respectfully recommends
that the Defendants’ Motion for Summary Judgment (Dkt. No. 42) be
GRANTED IN PART and DENIED IN PART.

Specifically:

Summary judgment should be GRANTED on Count I in favor of
defendant Houle, but DENIED with respect to defendants Bashaw and
Amenta;
Summary judgment should be GRANTED on Counts II and IV; and
Summary judgment should be DENIED on Count III.
In addition, the entire complaint should be dismissed as it
relates to defendant Vidal (Counts II and V).
The parties are hereby advised that under the provisions of
Federal Rule of Civil Procedure 72(b), any party who objects to
this recommendation must file specific written objections thereto
with the Clerk of this Court within 14 days of the party's receipt
of this Report and Recommendation.

The written objections must

specifically

of

identify

the

portion

the

proposed

findings,

recommendations, or report to which objection is made and the basis
22

for such objections. The parties are further advised that the
United States Court of Appeals for this Circuit has repeatedly
indicated that failure to comply with Rule 72(b) will preclude
further appellate review of the District Court's order based on
this Report and Recommendation. See Keating v. Secretary of Health
and Human Servs., 848 F.2d 271 (1st Cir. 1988); United States v.
Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir. 1986).

/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
DATED:

February 13, 2018

23