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Perry v. Dickhaut

United States District Court, D. Massachusetts

August 27, 2015

RICO PERRY, Plaintiff,
v.
THOMAS DICKHAUT, SUPERINTENDENT OF SOUZA BARANOWSKI CORRECTIONAL CENTER; ANTHONY MENDONSA, DEPUTY SUPERINTENDENT; TERRANCE J. FOUGERE, LIEUTENANT; ROBERT J. BLOOD, CAPTAIN; TWELVE JOHN DOE(s) SRT TEAM OFFICERS; LIEUTENANT MORAN; SERGEANT MATTHEWS; DANIEL R. LEMIEUX, LIEUTENANT; YVIN LEBLANC, SERGEANT; JOEL D. LAROCHELLA, CORRECTIONAL OFFICER; MICHAEL D. FARLEY, SERGEANT; SALLY MAYNARD, REGISTERED NURSE, ET AL., Defendants

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[Copyrighted Material Omitted]

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          Rico Perry, Plaintiff, Pro se, Shirley, MA.

         For 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.

         For Sally Maynard, Registered Nurse, Defendant: James A. Bello, LEAD ATTORNEY, Caroline M. Kelly, Christopher Quinn, Noel B. Dumas, Morrison, Mahoney LLP, Boston, MA.

         MEMORANDUM 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. 114)

         TIMOTHY S. HILLMAN, DISTRICT JUDGE.

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          This 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.[1] 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.

         Background

         For 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 Correctional Health.

         Until 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 MCI-Cedar Junction

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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,[2] 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.

         DOC staff attempts to double bunk Plaintiff on March 18, 2010

         On 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.

         DOC 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 himself. Id.

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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).[3] 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.

         The 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.

         The 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.

         Defendant 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, ¶ 3.

         DOC staff attempts to double bunk Plaintiff on March 19-20, 2010

         The 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 needed a

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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.

         Gould 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.

         The 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.

         The 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 1:03:50.

         At 8:47 pm, Captain Gould advised Lieutenant Hayes that the ...


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