David J. Widi, Jr., Plaintiff v. Strafford County, Raymond Bower, Warren Dowaliby, Bruce Pelkie, Grace Weisgarber, Jon Forcier, and Scott Chabot, Defendants

2014 DNH 187

• Court: District Court, D. New Hampshire
• Decided: September 5, 2014
• Docket: 13-cv-536-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

David J. Widi, Jr., Plaintiff

v. Case No. 13-cv-536-SM Opinion No. 2014 DNH 187 Strafford County, Raymond Bower, Warren Dowaliby, Bruce Pelkie, Grace Weisgarber, Jon Forcier, and Scott Chabot, Defendants

O R D E R

Pro se plaintiff, David Widi, currently has three civil

cases pending in this forum challenging the conditions of his

confinement at either state or federal correctional facilities.

In this case, he brings claims arising out of an incident that

occurred while he was being held at the Strafford County House of

Corrections. He asserts that defendants employed excessive force

against him and were then deliberately indifferent to his serious

medical needs.

Defendants move to dismiss Widi’s complaint on grounds that

it fails to set forth the essential elements of any viable

claims. For the reasons stated, defendants’ motion to dismiss is

necessarily denied. Standard of Review

When ruling on a motion to dismiss under Fed. R. Civ. P.

12(b)(6), the court must “accept as true all well-pleaded facts

set out in the complaint and indulge all reasonable inferences in

favor of the pleader.” SEC v. Tambone, 597 F.3d 436, 441 (1st

Cir. 2010). Although the complaint need only contain “a short

and plain statement of the claim showing that the pleader is

entitled to relief,” Fed. R. Civ. P. 8(a)(2), it must allege each

of the essential elements of a viable cause of action and

“contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citation and internal

punctuation omitted).

In other words, “a plaintiff’s obligation to provide the

‘grounds’ of his ‘entitlement to relief’ requires more than

labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007). Instead, the facts alleged in

the complaint must, if credited as true, be sufficient to

“nudge[] [plaintiff’s] claims across the line from conceivable to

plausible.” Id. at 570. If, however, the “factual allegations

in the complaint are too meager, vague, or conclusory to remove

2 the possibility of relief from the realm of mere conjecture, the

complaint is open to dismissal.” Tambone, 597 F.3d at 442.

Discussion

Accepting the facts alleged in Widi’s complaint as true - as

the court must at this stage - the relevant background is as

follows. During the course of his detention at the Strafford

County House of Corrections, Widi became involved in what he

calls a “minor verbal disagreement” with a corrections officer.

Complaint (document no. 1-2) at 5. As a consequence, he was

transferred to a “dry cell,” with no running water or

ventilation. As part of Widi’s transfer, corrections officers

apparently intended to subject him to a strip search - a search

that Widi says would have taken place in view of other inmates

and at least one female officer. Widi claims he “refused to

strip off his clothes in the presence of a female officer and

other inmates.” Id. In response, says Widi, corrections

officers repeatedly sprayed him with pepper spray, covering his

face, hands, and clothing, in a manner he claims amounted to the

use of excessive force. Id. at 6. He also alleges that although

two corrections officers “had the ability and sufficient time to

intervene,” they elected not to do so. Id. He claims the

chemical irritant got in his eyes and respiratory system,

“causing him to choke and cough up mucus membrane and blood

3 through his mouth and nasal passages.” Id. And, because he was

confined to a “dry cell,” he could not wash his face, eyes,

hands, or clothing.

According to Widi, he complained on several occasions to

corrections officers that he was in distress, but he says his

pleas for help were ignored. And, because he was not permitted

to wash his face and eyes, he says he suffered an asthma attack,

causing him to feel as though he were suffocating. But, rather

than render some assistance, the corrections officers taunted

him, “joking and laughing at his pain and suffering.” Id. at 7.

Widi says he was “forced to endure these conditions for hours

until [a corrections officer] had Mr. Widi moved to another

cell.” Id. Still, says Widi, his repeated pleas that he be

allowed to take a shower and have a clean set of clothing fell on

deaf ears. Consequently, he “continued to experience difficulty

breathing from the pepper spray and developed rashes on his

body.” Id. at 8. According to Widi, “[t]hese conditions

persisted for five days until Mr. Widi was taken to another

facility.” Id. He claims that he “was videotaped entering that

facility and staff verified on that video that Mr. Widi arrived

covered in pepper spray.” Id.

4 Defendants’ argument in support of their motion to dismiss

is as simple as it is unpersuasive. They assert that,

“[p]laintiff fails to state a claim for relief because he admits

he was refusing orders from corrections officers and because

correctional authorities do not violate rights by deploying

pepper spray when an inmate refuses orders.” Defendants’

Memorandum (document no. 2-1) at 2. Of course, to say that Widi

was pepper-sprayed for refusing to comply with an order issued by

a corrections officer tells only part of the (alleged) story. It

omits, for example, Widi’s claim that he suffered serious medical

distress as a consequence and, yet, his pleas for help were

ignored. It also fails to address Widi’s claim that he was

forced to remain in chemically-soaked clothing for five days

because corrections officers allegedly “agreed to make him

suffer.” Complaint, at 8.

Defendants’ motion to dismiss requires little further

discussion. Their assertion that the use of pepper spray on a

recalcitrant inmate does not violate the Eighth Amendment

overstates the governing legal precedent by a fair margin. See,

e.g., Burns v. Eaton, 752 F.3d 1136, 1140 (8th Cir. 2014)

(collecting cases in which summary judgment for defendants was

denied on “excessive force claims based on pepper spraying [that]

involved no warning this force would be used, no apparent purpose

5 other than inflicting pain, use of unnecessary ‘super-soaker’

quantities of the chemical, refusal to allow the victim to wash

off the painful chemical for days, and/or use of additional

physical force.”).

Whether one or more of the defendants employed excessive

force will, of course, turn on whether their treatment of Widi

was, under the factual circumstances, malicious and sadistic -

that is, imposed “for the very purpose of causing harm,” (as Widi

alleges) - or whether it was part of “a good-faith effort to

maintain or restore discipline.” Whitley v. Albers, 475 U.S.

312, 320-21 (1986). See generally Hudson v. McMillian, 503 U.S.

1, 6-7 (1992) (“[W]e hold that whenever prison officials stand

accused of using excessive physical force in violation of the

Cruel and Unusual Punishments Clause, the core judicial inquiry

is that set out in Whitley: whether force was applied in a good-

faith effort to maintain or restore discipline, or maliciously

and sadistically to cause harm.”).

Defendants’ brief responses to Widi’s claim that they were

deliberately indifferent to his serious medical needs are equally

unavailing.

6 This is a motion to dismiss, so Widi’s account of the

relevant facts is necessarily assumed to be accurate. Given that

required assumption, the court cannot conclude, as a matter of

law, that his complaint fails to state any viable claims against

defendants. Accordingly, their motion to dismiss (document no.

2) is denied.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

September 5, 2014

cc: David J. Widi, Jr., pro se Corey M. Belobrow, Esq.