United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
B. Saris Chief U.S. District Judge
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).
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.
The Extraction and Use of Force
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.
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
The officers were Jeffrey Clement, James Cronin, Michael
Savastano, Paul Young,  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.
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.
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. He was disoriented and told the nurse,
“I can't think right now.” Video. He was
returned to cell 36.
defendants dispute the assertion that the cell contained
black mold. Plaintiff received a disciplinary report,
resulting in a guilty finding. Doher Aff. ¶ 22.
History of Asthma
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.
History of Grievances
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