United States District Court, D. Massachusetts
[Copyrighted Material Omitted]
Perry, Plaintiff, Pro se, Shirley, MA.
Thomas Dickhaut, Superintendent of Souza Baranowski
Correctional Center, Anthony Mendonsa, Deputy Superintendent,
Terrance J. Fougere, Lieutenant, Robert J. Blood, Captain,
Sergeant Matthews, Yvin LeBlanc, Sergeant, Joel D Larochelle,
Correctional Officer, Michael D. Farley, Sergeant,
Defendants: Charles W. Anderson, Jr., LEAD ATTORNEY,
Department of Correction, Legal Division, Boston, MA.
Sally Maynard, Registered Nurse, Defendant: James A. Bello,
LEAD ATTORNEY, Caroline M. Kelly, Christopher Quinn, Noel B.
Dumas, Morrison, Mahoney LLP, Boston, MA.
AND ORDER ON DEPARTMENT OF CORRECTIONS DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT (Docket No. 111) AND DEFENDANT SALLY
MAYNARD'S MOTION FOR SUMMARY JUDGMENT (Docket No.
S. HILLMAN, DISTRICT JUDGE.
case arises out of attempts by Massachusetts Department of
Corrections (" DOC" ) staff at the Souza-Baranowski
Correctional Center to " double bunk" inmate Rico
Perry (" Plaintiff" ) with a cellmate in two
different cells on March 18, 19, and 20, 2010. Plaintiff
filed this action against DOC Defendants Thomas Dickhaut,
Anthony Mendonsa, Terrance Fougere, Robert Blood, Yvin
LeBlanc, Joel Larochelle, Michael Farley, and Nurse Sally
Maynard, asserting claims under 42 U.S.C. § 1983 for
violations of his rights secured by the Eighth and Fourteenth
Amendments of the U.S. Constitution. The DOC Defendants
and Nurse Maynard have each filed motions for summary
judgment on the claims against them. (Docket Nos. 111 and
114). For the reasons set forth below, the motions are
granted in part and denied in part.
purposes of these summary judgment motions, the facts of this
case are recounted from the record in the light most
favorable to the non-moving party. Scanlon v. Dep't
of Army, 277 F.3d 598, 600 (1st Cir. 2002). Plaintiff
Rico Perry is incarcerated at the Souza-Baranowski
Correctional Center (" SBCC" ), a maximum-security
correctional facility located in Shirley, Massachusetts. At
all times relevant to the instant action, Thomas Dickhaut was
the Superintendent of SBCC. Anthony Mendonsa was the Deputy
Superintendent of Programs and Classification. The other DOC
Defendants held the following positions: Terrance Fougere was
a Lieutenant; Robert Blood was a Captain; Yvin LeBlanc and
Michael Farley were Sergeants, and Joel Larochelle was a
Correction Officer. Sally Maynard was a Registered Nurse
working at SBCC, but employed by University of Massachusetts
2009, SBCC housed only one inmate per cell. See
Dickhaut Aff., Docket No. 113-1, Ex. A, ¶ 24. Beginning
in January of that year, as part of organizational changes
within DOC facilities, maximum security inmates from
were transferred to SBCC. Id. As a result, some
inmates were reassigned to double-bunked cells. Id.
at ¶ ¶ 25-26. Upon notification of this change,
inmates routinely advised correctional staff of their
dissatisfaction with the prospective double-bunk policy.
Id. at ¶ 25. As the transition to double
bunking occurred, inmates resisted in a number of ways,
including by staging fights with cellmates, making false
claims of enemy conflicts in order to remain in single-bunked
cells, and violating institutional rules for
the purpose of being sent to the Special Management Unit (a
unit that did not transition to double-bunked cells until
after the rest of the facility). Id. at ¶ 26.
In 2010, to remove the incentive for inmates to cause
disruptions for the purpose of being placed in Special
Management Unit singles, SBCC began to double bunk some of
those cells. See Dickhaut Dep. (Cordero Litigation),
Docket No. 127-1, Ex. F, at 146:16-148:20.
staff attempts to double bunk Plaintiff on March 18,
March 18, 2010, Correction Officer Brian Boisse informed
Plaintiff that he was assigned to be housed with another
inmate in cell #30 in Special Management Unit J3.
See Disciplinary Report, Docket No. 113-1, Ex. E.
Upon learning of the assignment, Plaintiff refused, stating
" I ain't living with anybody up in this
place." Id. Captain Blood, the Shift Commander,
was informed of Plaintiff's response. See Blood
Aff., Docket No. 113-1, Ex. SS, ¶ 4. He relayed this
information through the chain of command, and Superintendent
Dickhaut authorized the use of force, including the use of
chemical agent, to force Plaintiff to comply. Id. at
¶ 5. Around 5:00 pm that evening, Lieutenant Fougere
went to the K-3 recreation deck, where Perry was being held
in a cage pending his relocation to cell J3-30. See
Fougere Aff., Docket No. 113-1, Ex. OO, ¶ ¶ 4-5.
Under orders from Captain Blood, Fougere told Plaintiff that
he was to be double bunked and instructed him to come to the
door to be placed in restraints. Id. at ¶ 5.
Plaintiff refused, saying " I'm not double bunking
with anyone." Id. at ¶ 6. Fougere told
Plaintiff that SBCC Administration had authorized the use of
force if he continued to refuse. Id.
staff videotaped the subsequent attempts to double bunk
Plaintiff. See SBCC DVD Disk 102, Docket No. 116,
Ex. 3. Following Plaintiff's initial refusal, Captain
Blood asked Nurse Sally Maynard to determine whether
Plaintiff was inebriated. See SBCC DVD Disk 102, at
00:06-40. Maynard was escorted to the recreation deck where
Plaintiff was located; she told Plaintiff that SBCC staff
wanted him to comply with the rules and be double bunked.
Id. at 00:41-01:45. Plaintiff did not acknowledge or
respond to Maynard. Id. Maynard reported to Captain
Blood that based on her assessment, Plaintiff was not
inebriated. Id. at 02:00. Captain Blood next
requested mental health professional Jen Geary to assess
Plaintiff and inform him that Superintendent Dickhaut had
authorized the use of force and chemical agent to relocate
Plaintiff to J3-30. Id. at 02:20-55. Geary did so,
and Plaintiff responded by stating that he needed time by
at 03:00-04:10. As a result of Plaintiff's continued
refusal, Captain Blood authorized an " Extraction
Team" --a team of seven DOC employees from the Special
Operations Division--to use force and chemical agent to
relocate Plaintiff. Id. at 04:55-05:55. Blood
informed the team that the only chemical agent they were to
use was oleoresin capsicum, or " OC" (pepper
spray). Id. The Extraction Team was
led by Lieutenant Daniel Lemieux. None of the remaining
defendants were part of the March 18 Extraction Team.
See Use of Force Report, Docket No. 113-1, Ex. J.
Extraction Team arrived at the K3 recreation deck around 5:35
pm. Id. at 07:35. They brought Plaintiff out of the
unit without incident, and escorted him to J3-30.
Id. at 07:35-15:00. Before arriving at the cell,
Plaintiff informed Nurse Maynard that his only medical issue
was that he " need[ed] time alone." Id. at
14:20. Plaintiff entered J3-30 at 5:43 pm. Id. at
15:50. Upon entering the cell, both Plaintiff and cellmate
Robert Williams voluntarily had their restraints removed.
Id. at 15:55-18:00. Once the restraints were off,
the cellmates immediately began pushing, grabbing, and
punching each other in the head. Id. at 18:03.
Lemieux ordered the inmates to stop, but they continued to
fight. Id. at 18:12. Consequently, Lemieux dispensed
one burst of OC into the cell. Id. at 18:53. The
spray caused Plaintiff and Williams to cease fighting and
back up to the door so that wrist restraints could be
applied. Id. at 19:00-20:45.
Extraction Team removed Plaintiff and Williams without
incident, and escorted them to a common area to be examined
by medical personnel. Id. at 20:50-25:10. Nurse
Maynard washed Plaintiff's eyes out and asked whether he
had any injuries. Id. at 24:45. Plaintiff stated he
had asthma, but did not appear out of breath. Id. at
24:50. Nurse Maynard did not ask any follow-up questions.
Id. Plaintiff and Williams were cleared to return
and escorted to the showers to decontaminate. Id. at
25:10. Williams remarked " hope y'all ain't
planning on putting us back in the same cell again; it's
going to be the same shit over and over." Id.
at 25:53. After showering, Williams was placed alone in
J3-30, and Plaintiff was placed alone in J3-15. Id.
at 35:00; 37:15. Plaintiff had not identified Robert Williams
as an enemy, nor had DOC staff identified a conflict between
the two inmates prior to Plaintiff's placement in J3-30.
See Dickhaut Aff., ¶ ¶ 37-39; Mendonsa
Aff., ¶ 20; Inmate Conflicts Report for Rico Perry,
Docket No. 113-1, Ex. UU.
Larochelle did not work at SBCC on Thursday, March 18, 2010.
See Larochelle Aff., Docket No. 113-1, Ex. QQ,
¶ 3. Defendants Farley and LeBlanc worked in other
sectors of the facility on March 18, and did not have contact
with Plaintiff. See Farley Aff., Docket No. 113-1,
Ex. RR, ¶ 3; LeBlanc Aff., Docket No. 113-1, Ex. D,
staff attempts to double bunk Plaintiff on March 19-20,
following day, DOC staff assigned Plaintiff to double bunk
with inmate Peter Fanfan in Unit K3, cell #5. The attempts to
double bunk Plaintiff and Fanfan were also recorded on video.
See SBCC DVD Disk 104, Docket No. 116, Ex. 5.
Captain Robert Gould instructed mental health clinician
Valerie Etter to inform each inmate of the assignment.
Id. at 00:15. At 4:15 pm, Etter went to J3-15 and
asked Plaintiff if he was willing to be " cuffed
up." Id. at 01:45. Plaintiff stated that he
single cell because he wanted to be by himself and needed
time alone. Id. at 01:55. Etter informed Plaintiff
that Dickhaut had authorized the use of force and chemical
agent if he did not comply with the double-bunk assignment.
Id. at 03:03. Plaintiff responded " I will cuff
up and go wherever you want but I'm not living with
nobody . . . the same thing's gonna happen as yesterday .
. . we'll go at it again all day." Id. at
03:07. Etter next visited inmate Fanfan and asked whether he
was willing to be cuffed in order to receive a cellmate in
K3-05. Id. at 04:20. Fanfan responded that he was
willing to be double bunked with someone that he knew, but
that " if y'all trying to force me to be with
someone I do not know, and that I do not want to be with, I
can't tell you what's gonna happen."
Id. at 04:30. Etter informed Captain Gould that
Plaintiff and Fanfan were refusing to be double bunked.
Id. at 05:35.
then advised Lieutenant Robert Hayes to prepare an Extraction
Team for a planned use of force and chemical agent to double
bunk Plaintiff and Fanfan. Id. at 06:30-07:35. Gould
informed Hayes that Plaintiff had assaulted another inmate
the day before during a double-bunk attempt. Id. at
07:36. Gould further instructed that if an altercation
occurred, force could be used to stop the fight, and that the
inmates should be removed, assessed by medical personnel, and
placed back in K3-05 with restraints on. Id. at
07:53. None of the named Defendants were members of the March
19 Extraction Team. See Use of Force Report, Docket No.
113-1, Ex. J.
Extraction Team entered Unit J3 at 5:06 pm, and Plaintiff
complied with the order to be placed in restraints.
See SBCC DVD Disk 104, at 09:30. Plaintiff was
removed from J3-15, escorted to a common area,
strip-searched, seen by medical staff, and placed in a
holding cell. Id. at 09:45-18:10. The officers
placed Plaintiff in K3-05 with Fanfan at 5:25 pm.
Id. at 22:35-23:05. Once the door was closed, they
removed the inmates' restraints. Id. at
23:10-27:45. As soon as the restraints were off, Plaintiff
and Fanfan began fighting. Id. at 27:47. Lieutenant
Hayes ordered them to stop, but they continued to fight.
Id. at 27:53. Hayes dispensed two bursts of OC into
the cell and instructed the inmates to " cuff up."
Id. at 27:57-28:17. The inmates complied; as the
restraints were being applied, Plaintiff repeatedly
complained about his asthma. Id. at 28:55-29:15.
Plaintiff and Fanfan were escorted to the common area,
assessed by Nurse Sally Colley, and taken to the showers to
decontaminate. Id. at 32:25-49:00. At 5:52 pm, both
inmates were placed back in K3-05 with restraints left on.
Id. at 50:00. Plaintiff had not identified Fanfan as
an enemy, nor had DOC staff identified a conflict between the
two inmates prior to Plaintiff's placement in K3-05.
See Dickhaut Aff., ¶ ¶ 37-39; Mendonsa
Aff., ¶ 20; Inmate Conflicts Report for Rico Perry,
Docket No. 113-1, Ex. UU.
Extraction Team returned with Nurse Colley at 7:46 pm to
check on the inmates. See SBCC DVD Disk 104, at
50:40. The officers adjusted the restraints and removed the
inmates from the cell. Id. at 51:00. Plaintiff
complained of his asthma and asked for his asthma pump.
Id. at 54:20. Colley checked Plaintiff's
restraints and concluded he had good circulation and no
adjustments were necessary. Id. at 54:40. Colley
went to retrieve the asthma pump, but upon return informed
Plaintiff that the pump must have been discontinued because
she did not have a medication administration record for him.
Id. at 1:00:15. At 8:00 pm, both inmates were placed
back in K3-05 with restraints left on. Id. at
pm, Captain Gould advised Lieutenant Hayes that the ...