Shedlock v. Cholette et al

Filing 35

Judge George A. OToole, Jr: OPINION AND ORDER entered granting in part and denying in part 20 Motion to Dismiss for Failure to State a Claim (Halley, Taylor) Modified on 9/17/2018 (Halley, Taylor).

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 17-10906-GAO
PAUL F. SHEDLOCK,
Plaintiff,
v.
KENNETH CHOLETTE and DAVID REGO,
Defendants.

OPINION AND ORDER
September 17, 2018
O’TOOLE, D.J.
The plaintiff, Paul F. Shedlock, is confined by Massachusetts law in the Nemansket
Correctional Center (“NCC”) as a sexually dangerous person. Defendant Kenneth Cholette, a
corrections officer, and defendant David Rego, a sergeant, are both assigned to the NCC. Acting
pro se, the plaintiff asserts a variety of claims against them. The defendants move to dismiss the
complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), and the
plaintiff opposes.
After review of the complaint and the parties’ motion papers, I agree with the defendants
that the complaint does not adequately allege an actionable civil rights claim against Cholette.
However, with the indulgence to be accorded pro se pleadings, I conclude that the complaint
adequately alleges a claim of cruel and unusual punishment by use of excessive force under the
Eighth and/or Fourteenth Amendment by alleging that Rego punched the plaintiff without
justification with the intention of causing “pain and suffering.” (Compl. ¶ 35 (dkt. no. 1).) This is
sufficient to state a claim at the pleading stage.

The Motion to Dismiss (dkt. no. 20) is GRANTED as to claims against Cholette, but
DENIED as to a claim of unjustified use of excessive force under the Eighth Amendment against
Rego. 1
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge

1

The complaint is also sufficient to allege a common law claim of assault and battery.