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Schultz v. Houle

United States District Court, D. Massachusetts

February 13, 2018

JASON J. SCHULTZ, Plaintiff,
v.
KEITH R. HOULE, et al., Defendants.

          REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. NO. 42)

          DONALD L. CABELL, U.S.M.J.

         Plaintiff 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 part.

         I. THE PARTIES

         The 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.

         II. RELEVANT FACTUAL BACKGROUND

         As none 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.

         As for 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 personal knowledge.

         Unless otherwise indicated, the facts recited in this section are either undisputed or clearly supported by the record.

         A. The Use of Force Plan

         On May 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).

         Depending 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.).

         In 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).

         B. The Forced Removal

         The 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, however.

         i. The Defendants' Version

         According 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).

         Houle 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. (Id.).

         According 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 ...


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