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Washington v. Amand

United States District Court, D. Massachusetts

April 9, 2018

DERRICK WASHINGTON, Plaintiff,
v.
PETER S. AMAND, et al., Defendants.

          MEMORANDUM AND ORDER

          Patti B. Saris Chief U.S. District Judge

         I. INTRODUCTION

         Derrick Washington brings this action pursuant to 42 U.S.C. § 1983, alleging that six corrections officers used excessive force by spraying a chemical agent while extracting him from a recreation yard at MCI Cedar Junction in Walpole, Massachusetts. He further alleges that defendant Lieutenant Glenn Doher retaliated against him for filing grievances against him and other officers. The defendants are Lieutenant Glenn Doher, Sergeant John Dankievitch, and Corrections Officers James Cronin, Jeffrey Clement, John Capodilupo, Jr., and Michael Savastano. Defendants filed a motion to dismiss or in the alternative for summary judgment. After hearing, the motion is ALLOWED in part and DENIED in part. (Dkt. No. 202).

         II. FACTUAL BACKGROUND

         When all reasonable inferences are drawn in favor of the nonmoving party, the following facts are taken from the admissible evidence in the record. Many facts are disputed.

         A. The Extraction and Use of Force

          On September 25, 2008, Derrick Washington was moved to cell 36 in 10 Block, the segregation unit at MCI Cedar Junction. Doher Aff. ¶ 16, Dkt. No. 134; Washington Dep. at 77, Dkt. No. 216-1. On September 28, 2008, he was moved to cell 19. Doher Aff. ¶ 16; Washington Dep. at 77. On September 29, 2008, when he was reassigned back to cell 36, Washington refused to exit the 10 Block recreation cage and return to his assigned cell. Disciplinary Report, Dkt. No. 129-5 at 2. He believed cell 36 contained “black mold” that would trigger his asthma. See Video; Washington Aff. ¶ 11, Dkt. No. 216-2 at 4. Doher entered the yard and gave Washington several direct orders to exit the yard, and he refused. He also stated: “You are filing a lot of grievances against my officers.” Washington Dep. Tr. at 102. After notifying the shift commander, Doher was assigned to be the leader of the extraction team. Before the team was assembled, Doher said that the Health and Safety Officer examined cell 36 and told Doher that there was no mold in the cell. Doher Aff. ¶ 19; Washington. Dep. Tr. at 110-11.

         The Superintendent of MCI Cedar Junction authorized the use of force, including the use of a chemical agent. Multiple corrections officers participated in the “planned use of force” to extract Washington from the 10 Block recreational yard after he refused to leave on his own.[1] The officers were Jeffrey Clement, James Cronin, Michael Savastano, Paul Young, [2] Sergeant John Dankievitch, and Glenn Doher, who was a Lieutenant on the day of the extraction. Dkt. No. 129-5 at 7. Defendants obtained advance authorization from the Superintendent to use force and chemical agents if necessary. See Video; Dkt. No. 129-5 at 8, 18. Jacqui Bernard, a Licensed Practical Nurse (LPN), filled out a Use Of Chemical Agents checklist at 11:40 a.m. prior to Washington's extraction, which specified no contraindications for the use of chemical agents. Dkt. No. 129-5 at 22.

         Specifically, she indicated (incorrectly) that Washington did not have asthma, any current respiratory infections, recent hospitalizations, or medical conditions that would preclude the use of force or chemical agents. Id.

         An audio and visual recording of the extraction captured the event. The parties did not submit a transcript, but the discussion was mostly audible. Prior to the use of force, Intervention Specialist/Mental Health Clinician Erica Corley, LCSW, approached Washington in the recreation yard, with at least two members of the extraction team present, and asked if he was willing to comply with the order to return to his cell. Washington informed Corley and the corrections officers that they were “forcing [him] to move in a cell with black mold in it. I've complied every time [Correction Officers] asked me to move; I have no problem moving. Tell them to clean the black mold off the cell first. Once they clean it, I have no problem moving.” Video. However, he said he was “highly allergic” to black mold and would not move into or clean a cell with black mold in it. See id.; Dkt. No. 129-5 at 21. He told Corley, “Lieutenant Doher said I'm forced to clean the cell by myself with black mold; I'm not doing that. Clean the cell off, I'll move inside the cell once they clean the cell off. If they can't do that, I'm not moving into a cell with black mold in it.” Video. Corley informed him that the cell had been checked by officers “and was capable to be lived in.” Id. He retorted, “black mold is not capable to be lived in.” Id. Washington told Corley “he moved five times in the last month for no reason. The reason for me moving, [Lieutenant Doher] said, was because he was reading my grievances, which is supposed to be confidential . . . . There should be no reason for him knowing that confidential information.” Id. Corley informed him he would be put in the cell regardless of his wishes. Washington reasserted that he would go compliantly if the black mold was cleaned. Corley and the extraction team then left the recreation yard. About six minutes later, the extraction team entered the recreation yard and Lieutenant Doher ordered Washington to allow them to put him in restraints. Washington repeated he would not move into a cell with black mold. He was sprayed with a chemical agent three times by Sergeant John Dankievitch. Dkt. No. 129-5 at 11, 17. Washington attempted to avoid the spray by placing a shirt in front of his face. The extraction team entered the recreation yard, took down Washington, handcuffed him, and force-walked him back into the prison. According to Washington, they slammed his head into the floor. After he requested medical treatment, the nurse offered to wash out his eyes, but he refused. According to the nurse in the medical unit, he had “superficial” lacerations on his forehead, right temple, the left elbow, bilateral knee, and right heel.[3] He was disoriented and told the nurse, “I can't think right now.” Video. He was returned to cell 36.

         The defendants dispute the assertion that the cell contained black mold. Plaintiff received a disciplinary report, resulting in a guilty finding. Doher Aff. ¶ 22.

         B. History of Asthma

         Washington was born with asthma and uses an inhaler for treatment. Washington Dep. Tr. at 107; Washington Aff. ¶ 2. His medical records show that on June 23, 2008, he was prescribed albuterol for his asthma. Dkt. No. 216-2 at 10. A Chronic Disease Management form filled out on July 22, 2008 noted that Washington was using albuterol for mild or intermittent asthma. Id. at 11. On September 15, 2008, there was a fire on 10 Block. See Doher Aff. ¶ 18. Washington suffered from smoke inhalation and was unable to breathe after smoke came through his door. He submitted a request to be seen by the healthcare staff and noted that he had asthma. Dkt. No. 216-2 at 15-22. He received medical attention, and records indicated that he was an asthmatic. Id.

         C. History of Grievances

         Washington has filed upwards of 30 or 40 grievances against corrections officers. Washington Dep. Tr. at 115. At one point, his grievance privileges were suspended because of the number of grievances he filed, mostly while he was in 10 block. Id. at 103-04. Some of his grievances were filed specifically about Lieutenant Doher. Others pertained to Corrections Officers who appeared to have good relationships with Lieutenant Doher. When he filed a grievance against one Corrections ...


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