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Schultz v. Doher

United States District Court, D. Massachusetts

September 27, 2018

JASON J. SCHULTZ, Plaintiff,
GLENN A. DOHER, et al., Defendants.


          DONALD L. CABELL, U.S.M.J.

         Pro se plaintiff Jason Schultz contends that prison guards violated his constitutional rights in the course of removing him from his cell. Pending before the court is the Defendants' Motion to Dismiss and/or For Summary Judgment. (Dkt. No. 36) For the following reasons, the motion will be granted in part and denied in part.

         I. THE PARTIES

         The events underlying the lawsuit occurred in 2015 when the plaintiff was incarcerated at the Souza-Baranowski Correctional Center (SBCC) in Shirley, Massachusetts. Defendant Glenn Doher was at all relevant times a Department of Correction (DOC) officer with the rank of captain. Defendant James J. Tetreault was a DOC officer with the rank of Sergeant. Defendants Eric Phattamachak[1]and Joshua Frates were DOC officers.


         As no discovery has yet taken place, and as neither party has submitted a traditional statement of facts, the court begins by describing the major sources of the facts recited below.

         The defendants' memorandum “incorporates by reference” affidavits submitted by defendants Doher, Tetreault, Frates, Phattamachak, and a prison investigator named Jamie Brousseau. Defendant Doher's affidavit in turn incorporates several other documents, including separate incident reports written by defendants Tetreault, Frates, Phattamachak, and two other officers who were present but are not named as defendants. Each of the defendant officers in turn submits an affidavit in which he adopts and authenticates his own incident report.

         Defendant Doher also appends the report of two social workers who spoke with the plaintiff prior to his being removed from his cell, the report of a nurse who treated the plaintiff after the removal, various disciplinary reports against Schultz, the inmate grievance form submitted by Schultz, as well as the results of the investigation of that grievance, and a video of the removal incident. The reports of the nurse and social worker are arguably inadmissible hearsay for Rule 56 purposes where neither has submitted an affidavit, but the social worker's 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' Motion for Summary Judgment.” Although the statement of disputed issues is “short and concise, ” it is not “supported by appropriate record citations” as 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.

         A. The Incident

         On April 6, 2015, the plaintiff was speaking to his attorney by telephone when the call “was internally cut-off due to an error with the phone system.” (Plaintiff's Declaration In Opposition to Defendant's Motion to Dismiss and/or For Summary Judgment, [Plaintiff's Declaration], ¶ 6). Sergeant Tetreault refused to reconnect the call and the plaintiff in response blocked the window of his cell with his mattress, an act that is prohibited for safety reasons. (Id. at ¶¶ 7-8; Affidavit of James Tetreault [Tetreault Aff.], ¶ 3). The parties agree that DOC officers convened outside the plaintiff's cell at approximately 12:50 p.m. to address the situation but offer different versions of what happened thereafter.

         i. The Defendants' Version

         According to the defendants, Sergeant Tetreault was informed at approximately 12:50 p.m. that Schultz had covered his cell door window and was asking to speak with a mental health clinician. (Tetreault Aff., at ¶ 3). Sergeant Tetreault went to Schultz's cell and ordered him to uncover the window. (Id. at ¶¶ 5-6). Schultz repeatedly cursed at Tetreault and refused to comply, and dared the staff to physically remove him from his cell.[2] (Id. at ¶¶ 6, 11, 13). Sergeant Tetreault again asked Schultz to comply with his order, and offered him the opportunity to contact his attorney at a later time. Schultz refused both offers. (Id. at ¶¶ 7, 10). Sergeant Tetreault and two mental health clinicians then spent several minutes in an unsuccessful attempt to persuade the plaintiff to comply and uncover his window. (Id. at ¶¶ 11-16). After one last unsuccessful request to Schultz, Sergeant Tetreault at approximately 1:25 p.m. radioed for assistance. (Id. at ¶ 19).

         A “Move Team, ” which included Officers Tetreault, Frates, Phattamachak and a fourth unidentified officer, donned protective gear and convened outside Schultz's cell. Based on authorization from Captain Doher, the team prepared to administer a chemical agent into Schultz's cell in order to subdue and remove him. (Id. at ¶¶ 20-22). Sergeant Tetreault warned Schultz of the impending use of the chemical agent and, after receiving no response from Schultz, administered the agent through the crack at the top of the door. (Id. at ¶¶ 22-23). After issuing another warning, Tetreault administered a second blast. The blasts proved ineffective because Schultz continued to block the door with his mattress. (Id. at ¶ 24).

         After the second application of the chemical agent, Sergeant Tetreault continued to issue commands to Schultz to come to the door but Schultz did not comply. (Id. at ¶ 25). The team opened the cell door, although it was initially difficult to open because objects had been placed in the door track. (Id. at ¶ 26). Once opened, the team entered the cell and saw Schultz standing “at the back of the cell in a fighting stance.” Schultz then began to move forward. (Id. at ¶¶ 27-28; Affidavit of Eric Phattamachak [Phattamachak Aff.] ¶ 4). The plaintiff charged towards Officer Phattamachak, who protected himself with the shield and guided Schultz to the floor, where he was restrained. (Id. at ¶ 4). Schultz was then removed from the cell to be treated by the medical staff.

         ii. The Plaintiff's Version

         According to Schultz, Sergeant Tetreault ordered him to submit to being removed from his cell but he declined. (Id. at ¶¶ 18-19). Sergeant Tetreault told him that a Move Team was prepared to use a chemical agent in order to subdue the plaintiff if he did not comply. (Id. at ¶¶ 20, 27). Subsequently, Sergeant Tetreault administered an initial burst of the chemical agent through the top of the door and it forced the plaintiff to “the center of cell” “with his back to the door, eyes shut, burning from contact” with the chemical agent. (Id. at ¶ 21). Schultz then removed a mattress from the door, apparently to reposition it to better prevent the agent from hitting him in the face. (Plaintiff's Decl. at ¶ 9). Without warning, though, ...

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