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Smitherman v. Stevenson

United States District Court, D. Massachusetts

July 12, 2017

HAROLD SMITHERMAN, Plaintiff,
v.
ANTHONY J. STEVENSON, et al., Defendants.

          MEMORANDUM AND ORDER

          PATTI B. SARIS CHIEF, U.S. DISTRICT JUDGE

         State 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 Defendants”).[1]

         I. Factual Background

         When all reasonable inferences are drawn in favor of the nonmoving party, the complaint sets forth the following facts, most of which are disputed.

         Count I: “Misuse of Force”[2] (Compl. ¶¶ 32-65, 132-133)

         On 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.

         After 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 difficulty breathing.

         That 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.

         Based 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.

         Count II: “Intentionally Interfering with Prescribed Medical Treatment” (Compl. ¶¶ 66-69, 134)

         On 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.

         Based on these allegations, Smitherman brings a claim for deliberate indifference to a serious medical need, in violation of his rights under the Eighth Amendment.

         Count III: “Failure to Protect” (Compl. ¶¶ 70-87, 135)

         On July 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 other.

         Smitherman 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 cell.

         When 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.

         Smitherman was placed on suicide watch.

         Smitherman asserts that the defendants are liable for violating his rights under the Eighth Amendment and M.G.L. ch. 127, § 22.

         Count IV: Alleged “Failure to Discipline Officers” (Compl. ¶¶ 59, 60, 136)

         Gelb, 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.

         Count V: Alleged “Retaliatory Disciplinary Action” (Compl. ¶¶ 88-101, 137)

         On 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 Bedard's conduct.

         Count VI: Alleged “Due Process Violation” (Compl. ¶¶ 88-101, 138)

         Plaintiff 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.

         Based 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. (1).

         Count VII: “Double Bunk Policy” (Compl. ¶¶ 118-130, 139)

         On 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.

         Based 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. § 451.320.

         Count VIII: “Denial of Kosher Meal for Violating rule Without Prior Notice of Rule” ...


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