United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
B. SARIS CHIEF, U.S. DISTRICT JUDGE
prisoner Harold Smitherman brings this pro se
complaint against 39 defendants alleging that his
constitutional and statutory rights were violated while he
was incarcerated at the Souza-Baranowski Correctional Center
(“SBCC”). Among other things, he asserts that
correctional officers used excessive force on him, and
retaliated against him when he complained. For the reasons
stated below, the Court DENIES IN PART and
GRANTS IN PART the motion for judgment on the
pleadings (Docket Entry No. 69) brought by the Department of
Corrections Defendants (“DOC
all reasonable inferences are drawn in favor of the nonmoving
party, the complaint sets forth the following facts, most of
which are disputed.
I: “Misuse of Force” (Compl.
¶¶ 32-65, 132-133)
August 2, 2012, Correctional Officers Matthew Wisnewski,
Matthew Harris, Anthony Stevenson, Brian Boisse, Erick
Colston, seven or more “John Doe” correctional
officers, and Sergeant Pasquel used force against Smitherman.
Without provocation or any need for force, the defendants
“grabbed Smitherman around the neck and slammed him
face first to the floor, ” punched and kicked
Smitherman in the head, face, and back, held Smitherman down
on the floor so that other officers could continue the
attack, sprayed a chemical agent in his face, beat him with a
metal detector, purposely applied handcuffs and shackles
excessively tightly, and repeatedly refused to allow
Smitherman to wash the chemical agent off his eyes and face.
Compl. ¶¶ 32-53. Sergeant Jane Doe
was present during these events but failed to intervene.
During these events, plaintiff suffered lacerations on his
head, back, shoulders, wrists, ankles and exposure to
chemical agent. Id. ¶ 61.
the assault, one of the prison guards, defendant Boisse,
threatened to kill Smitherman if he complained about what had
happened. Smitherman was then brought to the Health Services
Unit, where Lieutenant “John Doe” would not allow
Smitherman's restraints to be removed so that Nurse
“Anne Moe” could examine him for possible
injuries. The nurse only wiped his face and left; and the
correctional officers that remained with Smitherman ignored
his complaints that he was asthmatic and was having
evening, Smitherman was placed in the Special Management
Unit. Correction officers uncuffed him when he arrived at the
unit. For this operation, the officers ordered Smitherman to
put his hands through the foot slot; Smitherman complied.
However, instead of simply uncuffing or cuffing the
plaintiff, the correction officers (Boisse and Pasquel)
pulled his hands all the way through the food slot, causing
Smitherman to scream out in pain and his shoulder to snap.
Although Smitherman complained that the officers were hurting
him, they “repeated the same abuse when removing the
shackles.” Id. ¶ 54.
Shortly thereafter, a different cadre of correctional
officers (various “John Does”) cuffed Smitherman
in the same painful manner.
on these allegations, Smitherman brings claims for violation
of his rights under the Eighth Amendment and the
Massachusetts Constitution. He also brings a tort claim for
assault and battery.
II: “Intentionally Interfering with Prescribed Medical
Treatment” (Compl. ¶¶ 66-69, 134)
August 13, 2012, Smitherman informed defendant Correctional
Officers Boisse, Colston, and Jacob Roberts that “he
had a medical handcuff restriction for . . . extra-large
cuffs due to his shoulder injury and request that they use
the available big cuffs when cuffing him for his mandatory
showder [sic].” Id. ¶
66. The officers, however, used the regular-sized cuffs,
which caused Smitherman to experience serious pain in his
shoulder. His cuffs cut into his wrists, especially when one
of the officers yanked on them. When Smitherman complained
about the pain, one guard replied, “[T]hat's . . .
what you get for complaining about being threaten
[sic].” Id. ¶ 67.
on these allegations, Smitherman brings a claim for
deliberate indifference to a serious medical need, in
violation of his rights under the Eighth Amendment.
III: “Failure to Protect” (Compl. ¶¶
10, 2012, Superintendent Bruce Gelb, Deputy Superintendents
Michael Rodriguez and Osvaldo Vidal, and Captain Kevin
Whippen moved Smitherman's known enemy into his cell.
Both prisoners orally informed Osvaldo and Whippen, who were
present, that they were enemies and could not be housed in
the same cell. Smitherman and his enemy asked to be
separated, but Osvaldo and Whippen replied “deal with
it” and “next question.” Id.
¶ 75. Thereafter, the two prisoners assaulted each
injured his shoulder and scalp, and developed a headache and
blurry vision. Pursuant to the order of Gelb, Rodriguez,
Osvaldo and Whippen, the two prisoners were placed again in
the same cell, and another physical fight ensued; yet,
Smitherman and his enemy were still assigned to the same
guards ignored Smitherman's requests to speak with a
medical professional about the placement and his history of
sexual abuse, he cut his wrists to avoid the cell assignment.
was placed on suicide watch.
asserts that the defendants are liable for violating his
rights under the Eighth Amendment and M.G.L. ch. 127, §
IV: Alleged “Failure to Discipline Officers”
(Compl. ¶¶ 59, 60, 136)
Vidal, Rodriguez, Whippen, Jane Doe, and DOC Commissioner
Luis Spencer failed “to take disciplinary or other
action to curb the known pattern of misuse of chemical agent
and of physical abuse of prisoners” by their
subordinates.” Id. § 136.
V: Alleged “Retaliatory Disciplinary Action”
(Compl. ¶¶ 88-101, 137)
September 1, 2016, plaintiff filed three formal grievances
directly with the DOC s Director of Administrative
Resolution, defendant Kristie Ladouceur, alleging that
various officers and defendants misused force on August 2,
2013. Correctional Officer Jeffrey Cardin allegedly wrote a
false disciplinary report against Smitherman in retaliation
for filing informal and formal grievances about the
guards' excessive use of force and use of a chemical
agent. Smitherman was charged with making false allegations
against staff for his own personal gain. Correctional Officer
Donald Griffiths conducted the disciplinary hearing and ruled
against him. As a sanction, Smitherman lost certain canteen
privileges. Gelb subsequently denied Smitherman's appeal.
Smitherman asserts this alleged misconduct deprived him of
his First Amendment rights. There is no mention of defendant
VI: Alleged “Due Process Violation” (Compl.
¶¶ 88-101, 138)
asserts significant deficiencies in regards to the hearing on
the charge that Smitherman had made false allegations against
staff, including a failure to provide Smitherman with
adequate notice of the charges against him or with complete
copies of relevant documents.
on these assertions, Smitherman brings claims for violations
of his Fourteenth Amendment Due Process rights and state
regulations regarding prisoner disciplinary hearings (103
C.M.R. §§ 430.11(1)(a)-(c), 491.07, and 491.17.
VII: “Double Bunk Policy” (Compl. ¶¶
different occasions from July through December 2012,
Smitherman attempted to speak to mental health counselors
about his history of being sexually abused, both as a child
and while incarcerated. On these particular incidents, the
mental health counselors ignored him. In December 2012,
Smitherman filed a grievance on the matter, including a
request that he be afforded a single-bunk cell because of
this history of abuse. His grievance was denied.
on these assertions, Smitherman brings claims for violations
of rights under the Eighth Amendment, Title II of the
Americans with Disabilities Act, 42 U.S.C. § 12131
et seq., M.G.L. ch. 127, § 22, and 105 C.M.R.
VIII: “Denial of Kosher Meal for Violating rule Without
Prior Notice of Rule” ...