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Nascarella v. Cousins

United States District Court, D. Massachusetts

March 27, 2015

ANDREW NASCARELLA, Plaintiff,
v.
FRANK G. COUSINS, JR., et al., Defendants.

MEMORANDUM & ORDER

INDIRA TALWANI, District Judge.

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, 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, 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 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 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. 18:3-23. 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.

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, 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. 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 ...


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