UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Frank Staples
v. Case No. 16-cv-33-PB Opinion No. 2018 DNH 136 NH State Prison Warden, et al.
MEMORANDUM AND ORDER
Frank Staples, a former inmate at the New Hampshire State
Prison, is a practicing Taoist. He invoked his religious
beliefs when refusing to comply with a prison policy that
prohibits inmates from having beards longer than 1/4 inch. He
then challenged the beard policy and asserted additional claims
against multiple prison officials in successive lawsuits. In a
prior order, I dismissed Staples’ claims that the defendants
violated his First and Fourteenth Amendment rights by attempting
to enforce the beard policy against him. Staples v. NH State
Prison, Warden, 2017 DNH 046. I also determined that Staples
could not recover on his claims based on the Religious Land Use
and Institutionalized Person Act, 42 U.S.C. § 2000cc-1. Staples
v. NH State Prison, Warden, 2017 DNH 023.
Staples’ remaining claims allege that Correctional Officer
Robert Parent used excessive force against him on September 12,
2013, and Correctional Officer Scott Marshall used excessive force and unlawfully retaliated against him on July 25, 2015.
This Memorandum and Order addresses defendants’ summary judgment
motion challenging both claims.
I. BACKGROUND
A. 2013 Incident
On September 12, 2013, prison officials attempted to
transfer Staples and six other inmates from the Special Housing
Unit (SHU) to the Closed Custody Unit (CCU). Doc. No. 49-2 at
8. At the time, Parent was the sergeant in charge of the CCU.
Doc. No. 49-13 at 8.
CCU inmates are required to comply with the prison’s beard
policy. Doc. No. 49-13 at 10. Accordingly, Staples and the
other inmates were brought to Parent’s office without handcuffs
and he instructed them to shave. Doc. No. 49-2 at 10. Staples,
however, repeatedly refused to comply with Parent’s directive.
Id. at 8. During one exchange, Parent told Staples that he
needed to comply because “[t]his is my unit [and] I control my
unit.” Id. Staples responded by saying “[t]his is my face, and
I control my face.” Id. Eventually, Parent told Staples “[a]ll
right, I am going to send you back to SHU PC.” 1 Id. When
Staples again refused to shave, Parent handed Staples a
1 “PC” is protective custody. Most inmates on PC status are assigned to SHU.
2 statement form and instructed him to “write down why you want a
PC.” Id. Staples refused to sign the form and instead held it
in front of Parent at arm’s length and tore it in half. Id. at
11. Parent responded by grabbing Staples’ right arm, forcefully
turning and pushing him into a concrete support pillar, and
handcuffing him behind his back. Id. Staples hit his head on
the pillar during Parent’s maneuver and he later experienced
significant head, chest, and shoulder pain. Id.
After Staples was handcuffed, he was led to another secure
area and asked if he wanted medical attention, which he
accepted. Doc. No. 49-2 at 13. Nurse Donna Dufresne examined
Staples and noted that she “did not see any injury to Inmate
Staples’ head . . . nor did Inmate Staples complain to [her]
that he had injured his head.” Doc. No. 49-8 at 3. Staples
later claimed that he had suffered a concussion, but the record
does not contain medical evidence to support his claim. Doc.
No. 49-2 at 14.
B. 2015 Incident
Staples filed a complaint in this court on October 22, 2014
naming the Warden, the Corrections Commissioner, and the Parole
Board as defendants (2014 Lawsuit). Case. No. 14-cv-473-LM,
Doc. No. 1 at 1. He amended his complaint on May 11, 2015 to
add Marshall as a defendant. Case No. 14-cv-473-LM, Doc. No. 84
at 9.
3 On July 25, 2015, Correctional Officers David Dionne and
Korey McCauley attempted to move Staples to a new cell within
SHU, where Staples was then housed. Doc. No. 49-2 at 53.
Although the officers repeatedly told Staples to pack his
belongings and prepare to be moved, he refused and made it clear
that he would not leave his cell voluntarily. Id. at 22-24.
McCauley and Dionne later consulted with Marshall and they
decided to use Oleoresin Capsicum Spray, (“pepper spray”) to
gain Staples’ compliance, as authorized under official
department policies and procedures. 2 Doc. No. 49-16 at 2. Armed
with the spray, Marshall approached Staples’ cell and repeatedly
ordered him to “cuff up.” When staples refused, Marshall told
2 NH Department of Corrections Policy and Procedure Directive (PPD) 5.58, entitled “Use of Physical Force in Departmental Activities,” outlines and “establish[es] the parameters for the use of physical force options” by corrections staff in certain situations. See Doc. No. 49-25 (filed under seal). It authorizes a “reasonable level of physical force” through a variety of options, when used to “regain control of an offender, [or] restore order,” among other situations. Id. Force is only authorized, however, once other available means have been exhausted, such as “officer presence or verbal de-escalation.” Id. Use of pepper spray is an option available to corrections staff certified to use it through special training. Id. The PPD authorizes use of pepper spray to temporarily incapacitate an individual whenever “verbal direction fails to achieve compliance and/or it becomes apparent that physical force may be necessary.” Id. The PPD also requires notice to the offender prior to use of the spray, as well as notice to medical staff after it is used. Id. It is considered a safer alternative to physically bringing an inmate under control, and must cease immediately once the offender “has been incapacitated.” Id. At the time of the incident, Marshall was certified to use pepper spray. Doc. No. 49-18 at 3.
4 him that he would be sprayed if he did not comply. Staples
responded, “spray me, tase me, do whatever the fuck you want.”
Doc. No. 49-16 at 3.
Marshall then dispersed the pepper spray into Staples’ cell
by spraying it through the rectangular “tray slot” on the lower
half of the cell door. Pursuant to PPD 5.58, which requires
staff to record any event where pepper spray “is used as a
planned use of force option, e.g., cell extraction,” the event
was videotaped using a handheld audio and visual recording
device. See Doc. No. 49-25; Doc. No. 49-18 at 3. In the
recording, Marshall can be seen and heard spraying the substance
into Staples’ cell for approximately nine seconds as Staples
backed away from the cell door. 3 Marshall explained that he
believed he used the amount of spray reasonably necessary to
have the desired effect, considering the size of Staples’ cell
and the fact that he had backed up away from the door and
covered his face. Doc. No. 49-18 at 4.
Nurse Dufresne was called to Staples’ cell shortly after
the incident to observe him through the cell window, in
accordance with PPD 5.58. Doc. No. 49-8 at 1. She noted that
3 Following the incident, Marshall explained that he chose to use a canister with a “cone” nozzle, rather than one with a “stream” nozzle. Doc. No. 49-18 at 3. The former produced a “mist” that filled Staples cell, whereas the latter kind of canister would have required him to spray Staples in the face.
5 he had a runny nose, but was not rubbing his eyes and did not
say he was in any distress. Doc. No. 49-8 at 1-2. Officers
were able to get Staples to comply with the cuff-up order and
leave his cell approximately 90-minutes later, at which time he
was provided a shower and offered medical attention. Doc. No.
49-17 at 2; Doc. No. 49-18 at 6.
II. STANDARD OF REVIEW
Summary judgment is appropriate when the record reveals “no
genuine dispute as to any material fact and [that] the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A “material” fact is one that “has the potential to
change the outcome of the suit.” Navarro v. Pfizer Corp., 261
F.3d 90, 93-94 (1st Cir. 2001) (citing McCarthy v. Northwest
Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995)). A dispute
about such a fact is “genuine” if “a reasonable jury could
resolve the point in favor of the nonmoving party.” Id. at 94.
The party moving for summary judgment “bears the initial
responsibility of informing the district court of the basis for
its motion, and identifying those portions of [the record] which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once the moving party has properly supported its
motion, the burden shifts to the nonmoving party, which must
6 “produce evidence on which a reasonable trier of fact, under the
appropriate proof burden, could base a verdict for it; if that
party cannot produce such evidence, the motion must be granted.”
Ayala–Gerena v. Bristol Myers–Squibb Co., 95 F.3d 86, 94 (1st
Cir. 1996) (citing Celotex, 477 U.S. at 323 and Anderson v.
Liberty Lobby, 477 U.S. 242, 249 (1986)).
III. ANALYSIS
Defendants argue that they are entitled to qualified
immunity. “Qualified immunity protects government officials
from trial and monetary liability unless the pleaded facts
establish ‘(1) that the official violated a statutory or
constitutional right, and (2) that the right was “clearly
established” at the time of the challenged conduct.’” Marrero-
Mendez v. Calixto-Rodriguez, 830 F.3d 38, 43 (1st Cir. 2016)
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). I need
not reach the second prong of the qualified immunity analysis in
this case because the record does not support a claim that
either defendant violated Staples’ constitutional rights.
A. Eighth Amendment Claims
1. The Excessive Force Standard
The Eighth Amendment prohibits corrections officers from
using excessive force on convicted prisoners. Whitley v.
Albers, 475 U.S. 312, 327 (1986). Force is “excessive” for
7 Eighth Amendment purposes if it involves the “unnecessary and
wanton infliction of pain.” Id. at 319 (“After incarceration,
only the unnecessary and wanton infliction of pain constitutes
cruel and unusual punishment forbidden by the Eighth
Amendment.”) (citing Ingraham v. Wright, 430 U.S. 651, 671
(1977) (internal quotations omitted)). The Eighth Amendment’s
excessive force test has both an objective component—whether the
pain inflicted was sufficiently serious—and a subjective
component—whether the defendant inflicted the injury
“unnecessarily” or “wantonly.” Wilson v. Seiter, 501 U.S. 294,
298-99 (1991).
The objective component requires the use of more than
minimal force. Hudson v. McMillian, 503 U.S. 1, 9-10 (1992)
(“The Eighth Amendment’s prohibition of ‘cruel and unusual’
punishments necessarily excludes from constitutional recognition
de minimis uses of physical force, provided that the use of
force is not of a sort repugnant to the conscience of mankind.”
(internal quotations and citations omitted)). The Supreme Court
has cautioned on more than one occasion that the test’s
objective component focuses on the force used and not the injury
sustained. See, e.g., Wilkins v. Gaddy, 559 U.S. 34, 37 (2010)
(“Injury and force, however, are only imperfectly correlated,
and it is the latter that ultimately counts.” (citing Hudson,
503 US at 10)).
8 The subjective component requires a court to determine
“whether the force was applied in a good faith effort to
maintain or restore discipline or maliciously and sadistically
for the very purpose of causing harm.” Hudson, 503 U.S. at 6-7
(1992)(quoting Whitley, 475 U.S. at 320-21). To determine
whether force was used in good faith to maintain or restore
discipline, the court should evaluate “the need for the
application of force, the relationship between the need and the
amount of force that was used, the extent of [the] injury
inflicted,” the threat reasonably perceived by the responsible
officials, and efforts made to temper the severity of a forceful
response. Whitley, 475 U.S. at 321; Skinner v. Cunningham, 430
F.3d 483, 488 (1st Cir. 2005).
2. 2013 Incident
Staples claims that Parent used excessive force during the
2013 Incident. I reject this claim because no reasonable jury
could conclude from this record that Parent acted “maliciously
and sadistically for the very purpose of causing harm” during
the 2013 Incident.
The record reveals that Parent used force only after he
repeatedly attempted to persuade Staples to comply with the
prison’s beard policy and only after Staples openly defied his
directive to complete the statement form. At that point, Parent
found himself in a confined space with a defiant inmate who was
9 neither shackled nor handcuffed. He faced an immediate need to
regain control of a deteriorating situation. Parent was thus
entitled to use force both to protect himself from possible
injury and to restore order. The degree of force he used was
also reasonable under the circumstances: it was brief in
duration, it was responsive to an immediate need, and it did not
result in any lasting injuries. The record evidence concerning
the incident itself is thus inconsistent with Staples’ claim
that Parent used force against him for an improper purpose.
Staples nevertheless argues that Parent’s instruction to
write down why he wanted “a PC” is proof of Parent’s malicious
intent. According to Staples, Parent knew that “PC” was a term
used to refer to inmates who must be protected from other
inmates and often was applied to “rat[s], snitch[es], and sex
offender[s who] get extorted and raped.” Doc. No. 49-2 at 8.
Staples asserts that by loudly branding him “a PC” in the
presence of other inmates, Parent was hoping that Staples would
be treated as a “rat,” “snitch,” or “sex offender” by other
inmates and would be abused accordingly. Doc. No. 49-2 at 8. I
am unpersuaded by Staples’ speculative argument. Even if Parent
made the PC reference in an effort to pressure Staples into
shaving, it is insufficient to support a triable claim that
Parent used force against him to punish him rather than to
regain control of a deteriorating situation. Accordingly, I
10 grant Parent’s motion for summary judgment on Staples’ excessive
force claim against him.
3. 2015 Incident
Staples also argues that Marshall violated his Eighth
Amendment rights by using pepper spray to extract him from his
cell. I reject this argument because the record leaves no doubt
that Marshall used the pepper spray to maintain order and
discipline rather than to maliciously cause harm.
A correctional officer may use a chemical agent such as
pepper spray to subdue an inmate who is causing a disturbance
without violating the Eighth Amendment if the chemical agent is
used for a proper purpose and it is accompanied by appropriate
safeguards. See, e.g., Torres-Viera v. Laboy-Alvarado, 311 F.3d
105 (1st Cir. 2002); Burns v. Eaton, 752 F.3d 1136, 1139-41 (8th
Cir. 2014); Clement v. Gomez, 298 F.3d 898, 903-04 (9th Cir.
2002). In the present case, undisputed evidence demonstrates
that Marshall used the pepper spray in a manner that was
reasonable under the circumstances and for the proper purposes
of maintaining order and discipline. First, Marshall did not
use the pepper spray until after Officers Dionne and McCauley
had made repeated efforts to persuade Staples to leave his cell
voluntarily. Second, Marshall warned Staples that he would be
sprayed if he did not comply. Staples’ response of “spray me”
left no doubt that force would be required to extract him from
11 his cell. Third, the amount of pepper spray used was not
excessive. Fourth, Staples was offered a shower as soon as he
agreed to leave his cell. Finally, Staples did not suffer any
lasting injuries. When viewed together, this undisputed
evidence leaves no doubt Marshall used the pepper spray to
maintain order and discipline rather than to maliciously harm
Staples. 4
Staples nevertheless argues that Marshall violated his
Eighth Amendment rights because “prison policy” requires
officials to use an extraction team to attempt to remove an
inmate from the cell before resorting to pepper spray. This
argument is a nonstarter. Notwithstanding Staples’ claim to the
4 Although Staples does not press the point, one might argue that even if Marshall’s use of the pepper spray was objectively reasonable under the circumstances, Marshall could still be held liable if his use of the spray was maliciously or sadistically motivated. In other words, one could argue that an Eighth Amendment violation can be premised upon an objectively reasonable use of force if the defendant’s predominant intention is to inflict harm rather than to preserve order. Although perhaps viable under different circumstances, that proposition does not deserve serious consideration in light of this record. Staples’ presents no direct evidence of Marshall’s punitive intent towards him, nor has he identified any other evidence that Marshall selectively used pepper spray against him but not other similarly situated inmates. Absent any such evidence of malicious or sadistic intent, a claim premised on this objectively reasonable use of force could not possibly succeed. The minimal amount of spray dispersed by Marshall, the timely presence of Nurse Dufresne at his cell, and the shower provided to Staples once he was finally removed make even the vaguest argument to the contrary more untenable. Such protective actions are hardly indicative of malicious intent.
12 contrary, prison policies permit the use of pepper spray to
effect a cell extraction, see Doc. No. 49-25, and Staples has
failed to identify any other policy that requires the use of an
extraction team before pepper spray is used. Accordingly, I
grant Marshall’s motion for summary judgment with respect to
Staples’ excessive force claim against Marshall.
B. First Amendment Claim
Staples also argues that Marshall violated his First
Amendment rights during the 2015 incident when Marshall pepper
sprayed him in retaliation for filing the 2014 lawsuit.
To prove a First Amendment retaliation claim, a plaintiff
must demonstrate that: (1) he engaged in a protected activity;
(2) the defendant took an adverse action against him; and (3)
there is a causal link between the protected activity and the
adverse action. Hannon v. Beard, 645 F.3d 45, 48 (1st Cir.
2011). A plaintiff may attempt to satisfy the causal link
requirement by proving that his protected activity was a
“substantial” or “motivating” factor for the adverse action, but
the defendant may still prevail if he can prove that he would
have taken the action “even in the absence of the protected
conduct.” 5 Broderick v Roache, 996 F.2d 1294, 1297 n.5 (1st
5 InMcDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979), the First Circuit held that a plaintiff must prove that his protected activity was a “but for” cause of the defendant’s conduct to establish a First Amendment retaliation claim. Although the
13 Cir. 1993) (quoting Mount Healthy City Sch. Dist. Bd. of Educ.
v. Doyle, 429 U.S. 274, 287 (1997)).
Marshall targets the causal-link element of Staples’
retaliation claim. Staples responds primarily by arguing that
Marshall’s retaliatory motive can be inferred from evidence
tying Marshall to delivery of a phony “Hurt Feelings Report”
form to Staples’ cell on December 24, 2014, approximately two
months after Staples filed the 2014 complaint. 6 He then argues
that this evidence is sufficient to give rise to a viable
retaliation claim given the temporal connection between the 2014
complaint and Marshall’s use of the pepper spray.
I am ultimately unpersuaded by Staples’ argument because
even if the evidence he cites is minimally sufficient to
establish that Marshall was angry with Staples for filing the
2014 lawsuit, the other undisputed evidence I have already
court cited Mount Healthy for this requirement, the court’s reading of Mount Healthy in McDonald cannot be reconciled with the court’s more recent decisions. See, e.g., McCue v. Bradstreet, 807 F.3d 334, 338-39 (1st Cir. 2015); Broderick v Roache, 996 F.2d 1294, 1295 n.5 (1st Cir. 1993). Accordingly, I assume for purposes of analysis that Staples would not need to establish “but for” causation to prevail on his retaliation claim. 6 Staples links Marshall to the Hurt Feelings Report form with inadmissible hearsay evidence and his claim that Marshall approached him a few days after Staples received the form and asked him, “did you get that?” Doc. 49-2 at 68. I will assume for purposes of analysis that this evidence is minimally sufficient to permit a reasonable jury to conclude that Marshall was somehow connected to the Hurt Feelings Report form.
14 discussed leaves no doubt that he would have taken the same
action regardless of any retaliatory motive. Accordingly, I
Staples’ retaliation claim.
IV. CONCLUSION
For the reasons stated in this Memorandum and Order, I
grant the defendants’ motion for summary judgment. Doc. No. 49.
The clerk is directed to enter judgment and close the case.
SO ORDERED.
/s/Paul Barbadoro___________ Paul Barbadoro United States District Judge
July 3, 2018
cc: Donna J. Brown, Esq. Francis Charles Fredericks, Esq. Seth Michael Zoracki, Esq.