United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON CROSS MOTIONS FOR SUMMARY
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE.
October 14, 2013, during a fight with another inmate, Anthony
Couchon - then a pretrial detainee at the Essex County
Correctional Facility (ECCF) - was bitten by a K-9 dog at the
order of its handler, Correctional Officer Leonardo Jorge.
After his release from custody, Couchon brought suit in
Suffolk Superior Court against Jorge, Sheriff Frank Cousins,
and Superintendent Michael Marks (collectively, defendants),
seeking damages and alleging unconstitutional conditions of
confinement. Defendants removed the case to the federal
district court. Before the court are the parties'
cross-motions for summary judgment.
units are a fixture of daily life at ECCF, where they are
deployed to maintain institutional order. Pl.'s SOF, Dkt
#35 ¶¶ 19-21. Before being assigned to ECCF, K-9
handlers and their dogs receive “extensive in-house
training” at the Essex County Sheriff's Department
(ECSD) and the Boston Police Academy. Defs.' Mem., Dkt
#32 at 16. While on duty, the K-9 units are governed by an
ECCF use of force policy that provides as follows:
K-9 teams may be used only under the direct control of
handlers with prior authorization by the Superintendent or
Director of Security. Authorization is not required for
regular routine searches or patrol within or outside the
facility, during which under normal circumstances there is
limited contact with inmates and injuries would not normally
result. There may be rare situations where an employee will
have to use a K-9 without prior authorization. Any such use
of a K-9 will be strictly reviewed to determine that it was
not possible to get timely authorization and it was
reasonable for the employee to believe that an emergency
existed requiring the immediate use of a K-9 to prevent death
or serious bodily injury to himself or others.
Pl.'s SOF ¶ 28. Among the “rare
situations” in which a K-9 officer can act without
prior authorization are fights between prisoners and cases of
prisoner “non-compliance.” Id. ¶
23. Between May 5, 2009, and June 30, 2016, ECCF documented
fourteen K-9 bite incidents involving inmates. Id.
¶ 49. ECCF is unique in being the only correctional
facility in Massachusetts that deploys K-9s throughout the
institution on a regular basis. Id. ¶ 65.
October 14, 2013, Couchon got into a brawl with another
inmate in ECCF's gymnasium building. The fight quickly
attracted a crowd. Id. ¶¶ 5-6; Defs.'
Mem. at 5. Lieutenant Heath Carafa was the first officer to
respond; he succeeded in tackling Couchon to the ground.
Pl.'s SOF ¶ 8. Couchon “landed with his hands
and arms underneath his body, ” and allegedly refused
to follow “orders to place his hands behind his
back.” Id. When Officer Jorge and his K-9
“Gunny” arrived at the scene, Couchon was on the
ground. Jorge ordered Couchon to stop resisting and show his
hands. Defs.' Mem. at 5. When Couchon refused, Jorge -
concerned that Couchon was concealing a weapon - ordered
Gunny to bite him. Pl.'s SOF ¶¶ 11, 13.
Although the exact number of bites is disputed, there is no
question that Gunny bit Couchon more than once. Id.
¶ 15. Couchon sustained injuries to both of his legs and
was taken to the infirmary. Id.; Defs.' Mem. at
6. Couchon claims that his wounds took several weeks to heal,
and that the physical scarring and emotional trauma from the
dog bites still affect him. Pl.'s SOF ¶ 16.
to the ECCF use of force policy, the K-9 Review Board
conducted an investigation regarding Gunny's deployment,
as Jorge had not received prior authorization to use the K-9.
Id. ¶¶ 14, 17. The Review Board
unanimously concluded that while “Officer Jorge did his
best to help his fellow officers during a stressful situation
. . . the K-9 should not have been deployed in this manner in
this instance.” Id. ¶ 17; Pl.'s SOF,
Ex. 10 (Essex K-9 Review Board Findings).
was released from custody on March 23, 2016. Pl.'s
Opp'n, Dkt #40 at 2. On October 13, 2016, Couchon filed
this Complaint alleging violations of (1) the Federal Civil
Rights Act, 42 U.S.C. § 1983 (excessive force and
unconstitutional conditions of confinement), (2) the
Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12,
§ 11I (excessive force), (3) Articles I, X, and XII of
the Massachusetts Declaration of Rights, and (4) common-law
claims of assault and battery and intentional infliction of
emotional distress. Compl. ¶¶ 56-74.
judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “[T]he mere existence of
some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no
genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-248 (1986) (emphases in original). A material fact is one
which has the “potential to affect the outcome of the
suit under the applicable law.” Nereida-Gonzalez v.
Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993). In
assessing the genuineness of a material dispute, the facts
are to be “viewed in the light most flattering to the
party opposing the motion.” Nat'l Amusements,
Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.
1995). On cross-motions for summary judgment, each motion is
considered on its own merits with all reasonable inferences
being drawn in favor of the respective non-moving party.
See OneBeacon Am. Ins. Co. v. Commercial Union Assurance
Co. of Can., 684 F.3d 237, 241 (1st Cir. 2012).
A. Excessive Force
asserts that Officer Jorge used excessive and unreasonable
force in violation of the Due Process Clause of the
Fourteenth Amendment by ordering Gunny to attack him.
Defendants in response contend that Officer Jorge is
protected by qualified immunity. “A government official
sued under § 1983 is entitled to qualified immunity
unless the official violated a statutory or constitutional
right that was clearly established at the time of the
challenged conduct.” Carroll v. Carman, 135
S.Ct. 348, 350 (2014) (per curiam). “This
doctrine ‘gives government officials breathing room to
make reasonable but mistaken ...