United States District Court, D. Massachusetts
JASON J. SCHULTZ, Plaintiff,
KEITH R. HOULE, et al., Defendants.
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT (DKT. NO. 42)
L. CABELL, U.S.M.J.
Jason Schultz, who appears pro se, is a prisoner at the
Souza-Baranowski Correctional Center in Shirley,
Massachusetts. He seeks relief under 42 U.S.C. § 1983
based upon claims that several Massachusetts Department of
Corrections (“DOC”) officers violated his Eighth
Amendment right to be free from cruel and unusual punishment
when they used excessive force and a chemical agent to remove
him from his cell. The defendants have moved for summary
judgment and the motion has been referred to this court for a
report and recommendation. For the reasons that follow, I
recommend that the motion be granted in part and denied in
plaintiff is a prisoner at MCI Shirley. Defendant Glen Doher
is a corrections officer there with the rank of Captain.
Defendant Keith Houle is a corrections officer with the rank
of Sergeant. Defendants Robert Bashaw and Chris Amenta are
corrections officers. Defendant Osvaldo was at all relevant
times the Superintendent of the facility.
RELEVANT FACTUAL BACKGROUND
of the parties have submitted a traditional statement of
facts, the court begins by describing, briefly, the major
sources of the facts recited below. The defendants'
memorandum “incorporates by reference” affidavits
submitted by defendants Doher, Houle, Bashaw and Amenta.
Defendant Doher's affidavit in turn incorporates several
other documents, including among them separate incident
reports written by defendants Houle, Bashaw, and Amenta. Each
officer in turn adopts and authenticates his own report
through his own separate affidavit. Defendant Doher also
appends the report of a social worker who spoke with the
plaintiff prior to the removal, the report of a nurse who
treated the plaintiff after the removal, and a video of the
removal incident itself. The reports of the nurse and social
worker are arguably inadmissible for Rule 56 purposes where
neither has submitted an affidavit, but their interactions
with the plaintiff are also captured on the video.
the plaintiff, he submits two documents, including (1) a
“Plaintiff's Statement of Disputed Factual
Issues” and (2) a “Declaration in Opposition to
Defendants (sic) Motion for Summary Judgment.” Although
the statement of disputed issues is “short and concise,
” it is not “supported by appropriate record
citations” required by Local Rule 56.1(a). However, the
plaintiff repeats the principal alleged disputed facts in his
Declaration, and that document, while containing some factual
assertions not supported in the record, has been verified by
the plaintiff pursuant to 28 U.S.C. § 1746. Accordingly,
the court will rely on assertions in these documents to the
extent they appear to be based on the plaintiff's
otherwise indicated, the facts recited in this section are
either undisputed or clearly supported by the record.
The Use of Force Plan
21, 2015, DOC staff approached the plaintiff and another
inmate to request that they leave their current cells to be
“double bunked” together in a single cell. When
the plaintiff refused to do so, DOC staff devised and
proposed a “use of force” plan to defendant Vidal
as Superintendent of the facility. (Doher Aff., at ¶ 3).
A “use of force” plan is the organized process by
which correction officers gain entry into a cell or other
area to extract a disruptive or non-compliant inmate by the
use of physical force. (Houle Aff., at ¶ 3).
on the circumstances, a planned use of force may involve the
use of a chemical agent. (Id., at ¶ 4). Any use
of a chemical agent, including the use of a liquid, powder,
or other substance, must be approved by the Medical Director
of the facility following a review of the inmate's
medical file to ensure that the use of the agent is not
medically contraindicated. (Id.). The Medical
Director, or their designee, completes a “use of
chemical agents” form that indicates any
contraindications to the use of certain chemical agents and
any limitations on their use. (Id.).
anticipation of the forced move, the Medical Director was
consulted to determine whether chemical agents were
contraindicated. The Medical Director reviewed the
plaintiff's medical file and advised that while there
were no medical contraindications to the use of chemical
agents, he recommended that a certain chemical agent, known
as Oleoresin Capsicum fogger (“OC fogger”), be
used due to the plaintiff's pre-existing medical
condition as an asthma sufferer. (Houle Aff., at ¶ 8).
Defendant Vidal approved the use of force plan. (Doher Aff.,
at ¶ 3).
The Forced Removal
parties agree that DOC officers convened outside the
plaintiff's cell at around 10:40 a.m., and thereafter
proceeded to forcibly remove the plaintiff from his cell.
They offer differing versions of the pertinent details,
The Defendants' Version
to the defendants, Houle informed the plaintiff that the
Superintendent had authorized the use of force, including the
use of a chemical agent, to remove the plaintiff from his
cell. (Houle Aff., at p. 5; Doher Aff., at Ex. B, p. 5).
Houle asked the plaintiff to comply with an order to come out
of his cell but the plaintiff refused to do so. (Houle Aff.,
at p. 5-6). Moreover, the plaintiff had bandaged his wrists
to prevent the staff from handcuffing him, had placed a
t-shirt around his neck as a mask in the event that a
chemical agent was used, and had wedged a blanket in the
doorway of his cell. (Id., at p. 6).
ordered the plaintiff three times to back away from the door
of the cell so he could be placed in restraints but the
plaintiff refused on all three occasions (Id.).
Houle then administered a “one-second” burst of
an Oleoresin Capsicum (OC) fogger into the cell and again
ordered the plaintiff to back away from the cell door.
(Id.). The plaintiff again refused and the team was
then deployed to remove the plaintiff from his cell.
to Bashaw, as he entered the cell, the plaintiff attempted to
“sweep” his legs out by kicking at him. (Doher
Aff., at Ex. B, p. 5). Bashaw jumped over the plaintiff to
avoid falling and made contact with the plaintiff by applying
“downward pressure” to secure him to the floor.
(Id.). Amenta then secured the plaintiff's arms
and wrists by applying “downward pressure” so he
could be handcuffed. (Id.). Once secured ...