Geas v. DuBois, Civ. A. No. 91-12938-RCL.
| Decision Date | 31 October 1994 |
| Docket Number | Civ. A. No. 91-12938-RCL. |
| Parties | Ty GEAS, Plaintiff, v. Larry DUBOIS, et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Ty Geas, pro se.
Charles M. Wyzanski, Mass Dept. of Corrections, Boston, MA, for defendants.
Report and Recommendation Accepted.
REPORT AND RECOMMENDATION RE: PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION (DOCKET ENTRY # 5); PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT (DOCKET ENTRY # 19)
September 9, 1994
On February 3, 1992, plaintiff Ty Geas ("plaintiff") filed a Motion for Temporary Restraining Order and/or Preliminary Injunction. (Docket Entry # 5). On May 5, 1992, plaintiff filed a Motion for Partial Summary Judgment. (Docket Entry # 19). On June 30, 1994, plaintiff filed a Motion for Appointment of Law Firm/Counsel (Docket Entry # 33) and a Motion to Take Leave to File Late Until Said Files Are Produced (Docket Entry # 34).
On June 30, 1994, defendants1 filed an opposition to plaintiff's Motion for Partial Summary Judgment. (Docket Entry # 35).2
Plaintiff, an inmate in the Massachusetts correctional system, filed this pro se complaint on November 5, 1991, asserting claims under 42 U.S.C. § 1983 against defendants, all officials of the Massachusetts Department of Corrections ("the DOC"). (Docket Entry # 4). Plaintiff alleges that defendants violated his constitutional and statutory civil rights and inflicted emotional distress upon him by improperly assigning him to segregated housing in June 1991, by using chemical agents against him on October 21, 1991, and by conducting an unconsented to body cavity search of him on October 21, 1991. (Docket Entry # 4).3
On May 5, 1992, plaintiff filed a Motion for Partial Summary Judgment. (Docket Entry # 19). In his motion, plaintiff argues that on October 21, 1991, defendants violated his rights under the Fourth and Eighth Amendments to the Constitution by "spraying him with a chemical agent when he was helpless" and forcibly subjecting him to a finger search of his anal cavity. (Docket Entry # 19).
In their opposition (Docket Entry # 35), defendants admit that plaintiff was sprayed with a chemical agent, but argue that such action was constitutionally permissible. Defendants deny that plaintiff was subjected to a forced finger search of his anus, or any other form of cavity search. Defendants argue that a constitutionally permissible strip search was ordered in response to suspicious behavior by plaintiff which implicated prison security concerns. (Docket Entry # 35).
For purposes of the motion for partial summary judgment, the parties introduce the following factual information.
Plaintiff avers that on October 21, 1991, he complied with an order to remove his clothing for a strip search, but refused to comply with further orders when told that "a cavity search will be conducted." Plaintiff further attests that then he was "sprayed" with a chemical agent and "restrained" by correction officers. Plaintiff claims he was then "placed on a mattress as defendat sic William Grossi enter sic my anus with his finger." (Docket Entry # 19, Affidavit of Ty Geas).
Defendants aver that on October 21, 1991, a correction officer observed plaintiff "acting suspiciously" and apparently "tampering with the fence between cages # 8 and # 9" in the exercise yard. (Docket Entry # 35, Incident Report). As noted in the Incident Report, "upon entering the unit from the yard," plaintiff was escorted to a shower room and ordered to submit to a strip search. Id.4 Plaintiff refused to submit to the search despite: repeated orders to do so by correction officers; attempts to convince him to comply by a member of the prison's psychological services department; subsequent demands by correction officers that he "step up to the bars to be placed in restraints;" and, finally, warnings that a chemical agent as well as force might be used against him. (Docket Entry ## 4, Ex. G & H; Docket Entry # 35, Use of Force Reports).5 After approximately one hour, MCI Cedar-Junction Superintendent, defendant Ronald Duval, ordered plaintiff moved from the shower room and authorized the use of a chemical agent, if necessary, to subdue plaintiff. (Docket Entry ## 4, Ex. G & H; Docket Entry # 35, Use of Force Reports, Memorandum of Ronald Duval). According to the report of defendant David Butters, only a reasonable amount of a chemical agent was dispersed into the shower area and plaintiff was subdued by a "move team" using only the necessary amount of force. (Docket Entry # 35, Use of Force Report).6
The affidavit of Grossi controverts plaintiff's allegations of an anal cavity search. Grossi, whom plaintiff alleges conducted the alleged anal cavity search, states by affidavit that, while "strictly adhering to the Department's Search Policy (103 CMR 506), he spread plaintiff's buttocks and visually inspected the anal area." (Docket Entry # 35).
While it is well settled that an amended complaint supersedes the original, the amended complaint may incorporate the original complaint by specifically referring to the earlier pleading. See Miesowicz v. Essex Group, Inc., 1994 WL 260645 at *2 (D.N.H. Apr. 12, 1994) (); Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.1967) (); 6 Charles Wright, Alan Miller & Mary Kane, Federal Practice and Procedure, § 1446 (1990). Plaintiff's amended complaint specifically refers to the allegations in the original complaint several times.7 Therefore, the amended complaint incorporates by reference the original complaint.
Summary judgment is permissible when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). This court is mindful that plaintiff is proceeding pro se and that his pleadings are entitled to liberal construction. Bonilla v. Rodriguez, 635 F.Supp. 148, 151 (D.P.R.1986) (citing Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)).
Plaintiff nevertheless bears the initial burden of demonstrating his legal entitlement to summary judgment. Lopez v. Corporacion Azucarera de Puerto Rico, 938 F.2d 1510 (1st Cir.1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). He must initially show that no genuine dispute exists as to any material fact. Inferences are drawn in favor of defendants, the nonmoving parties. Space Master Int'l, Inc. v. City of Worcester, 940 F.2d 16 (1st Cir.1991); Price v. General Motors Corp., 931 F.2d 162 (1st Cir.1991) ().
In deciding whether a factual dispute is genuine, this court must determine whether "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); accord Aponte-Santiago v. Lopez-Rivera, 957 F.2d 40, 41 (1st Cir. 1992) (citing Anderson). "A fact is "material" if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Techs., 882 F.2d 993 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)); see generally Aponte-Santiago v. Lopez-Rivera, 957 F.2d at 40-41 ().
To state a valid claim under section 1983 against a state prison official, a plaintiff must allege the "violation of a right secured by the Constitution and laws of the United States, and ... that the ... deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55, 101 L.Ed.2d 40 (1988); accord Pittsley v. Warish, 927 F.2d 3, 6 (1st Cir.), cert. den., ___ U.S. ___, 112 S.Ct. 226, 116 L.Ed.2d 183 (1991). Accordingly, plaintiff must demonstrate that defendants' actions were constitutionally impermissible.
While prison inmates retain a measure of their constitutional rights, correction officers may strip search inmates in numerous circumstances. Bell v. Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979); see also United States v. Chamorro, 687 F.2d 1, 4 (1st Cir.), cert. den., 459 U.S. 1043, 103 S.Ct. 462, 74 L.Ed.2d 613 (1982).8 Courts should accord broad deference to prison administrators when reviewing the reasonableness of policies designed to preserve internal order, security, and discipline. Wolfish, 441 U.S. at 547, 99 S.Ct. at 1878.9
Regarding the strip search of plaintiff, including the visual search of plaintiff's anal area, plaintiff has not shown that judgment is appropriate as a matter of law. Here, defendants' affidavit controverts plaintiff's claim that an anal cavity search was conducted. Moreover, the First Circuit Court of Appeals upheld a policy of strip searching inmates housed in segregated security units similar to that in the instant case when the inmates traveled within the prison. Arruda v. Fair, 710 F.2d 886 (1st Cir.), cert. den., 464 U.S. 999, 104 S.Ct. 502, 78 L.Ed.2d 693 (1983). Specifically, Arruda validated strip searches of inmates traveling from the segregation unit to the law library, to the infirmary, or to visitors' rooms, even though the inmates were shackled and accompanied by two guards whenever they moved from their cells. Arruda v. Fair, 710 F.2d 886.10
Under defendants' version of the facts, plaintiff, housed in a high security unit and having a...
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