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Depaolis v. King

United States District Court, W.D. Virginia, Roanoke Division

March 19, 2018

DANIELE DePAOLIS, Plaintiff,
v.
C. B. KING, ET AL., Defendants.

          Daniele DePaolis, Pro Se Plaintiff.

          Susan A. Waddell, Guynn & Waddell, P.C., Salem, Virginia, for Defendant Rose Dulaney, M.D.; and Margaret Hoehl O'Shea, Office of the Attorney General, Richmond, Virginia, for remaining Defendants.

          OPINION AND ORDER

          James P. Jones, United States District Judge.

         The plaintiff, Daniele DePaolis, a Virginia inmate proceeding pro se, filed this civil rights action under 42 U.S.C. § 1983 against Virginia Department of Corrections (“VDOC”) prison officials for using or allowing excessive force and providing inadequate medical care. After review of the record, I am of the opinion that certain of DePaolis' claims of excessive force must be tried to a jury. The claim against a prison doctor will be dismissed.

         I. Background.

         A. Plaintiff's Evidence and Claims.

         The following facts from the record are construed in the light most favorable to DePaolis for purposes of the defendants' motions for summary judgment. See Williams v. Staples, Inc., 372 F.3d 662, 667 (4th Cir. 2004). On November 4, 2014, at Wallens Ridge State Prison (“Wallens Ridge”), as DePaolis was exiting the chow hall after breakfast, Sergeant T. B. Smith called him aside. Smith demanded to know why DePaolis had not cut his hair, as Smith had ordered him to do the previous morning to comply with the prison's grooming requirements. DePaolis attempted to explain to Smith why he had not yet cut his hair as ordered. The recreation period after breakfast on November 3 had been only fifteen or twenty minutes. When DePaolis had asked an officer if he would bring out the “barber box, ” the officer had said, “Ya'll don't got enough time we'll do it tomorrow.” Compl. ¶ 2, ECF No. 1. The November 4 morning recreation period, when DePaolis could ask for the barber box and cut his hair, was scheduled to begin after breakfast.

         Smith ignored DePaolis' explanation and said, “I thought I told you not to come back to my chow hall until you cut your hair.” Id. at ¶ 3. DePaolis explained that he had no food in his cell and did not want to go hungry. Smith said, “Are you getting smart with me?” Id. DePaolis said, “No, ” but Smith then ordered him to “cuff up, ” as Sergeant B. K. McCray stood nearby, “shaking a can of mace in an intimidating and aggressive manner with a scowl on his face.” Id. at ¶ 3-4.

         Smith and McCray handcuffed DePaolis and escorted him to the segregation unit. On the way, Smith made threats that he would “beat [DePaolis'] ass” and that he wished DePaolis would “buck so I can slam you right on your fucking face!” Id. at ¶ 5. Smith begged DePaolis to “try me” and “[m]ake my day.” Id. Smith and McCray placed DePaolis in the largest shower in the segregation unit, behind a metal, fence-like door. Correctional officers T. W. Hall and M. S. Byington then took possession of the tether attached to DePaolis' handcuffs. Both officers “yanked the security leash . . . causing [DePaolis] to get his hand caught on the bottom of the shower door which was causing severe pain and felt like it was about to snap [his] right wrist.” Id. at ¶ 6. DePaolis “pulled his hand free to alleviate the pain and prevent potential harm” and “stuck his arm out of the slot per protocol in order for the cuffs to be taken off so that [he] could be strip searched for contraband.” Id. at ¶ 7.

         Byington and Hall ordered DePaolis to “strip down.” Id. at 8. DePaolis “asked to speak with a captain/major or warden.” Id. Ignoring this request, Byington “twisted [DePaolis'] arm completely as if he were trying to break it, ” and Hall “maced [the inmate] for about 30 to 40 seconds emptying the entire can of mace on [his] left arm, chest and face and neck.” Id.

         Lieutenant C. B. King arrived at the cell, and DePaolis explained the whole situation to him. King told DePaolis, “[Y]ou're either going to strip down or I'm gonna have my officers go in there and beat you like a punching bag! And try to knock some of your teeth out!” Id. at ¶ 9. When King then pulled out his mace, “instinct . . . caused” [DePaolis] to block his face by putting his hands up palms facing [King] shielding [his] face for protection.” Id. King “maced [DePaolis] for five (5) to 10 seconds, ” after which DePaolis turned his back to King, who kept spraying the mace for 20 to 30 seconds, with the substance striking the inmate's “shoulder blades and back of his head.” Id. at ¶ 10. DePaolis pressed the shower button to wash off the mace to “cease the burning, however, to no avail.” Id.

         King taunted, “[A]re you coming out of the shower? Or do I need to keep macing you? [‘]Cause that'll be fun.” Id. DePaolis asked again to speak with a captain, major, or the warden. King told his officers to “suit up and go in there and do like I said, and go ‘get him.'” Id.

         An extraction team of four officers, Hall, Byington, D. T. Davis, and T. R. Ledford, returned, dressed in riot gear. They “entered the shower, activated the shield for electrocution and hit [DePaolis] with electricity while all of [his] clothes were soaking wet. Shocking [him] repeatedly and severely causing excruciating pain all over [his] body.” Id. at ¶ 11. Fearing “that electricity under wet circumstances could and would kill him, his pain momentarily took a back seat to his fear and [DePaolis] went into survival mode and with his hands moved the shield off of him at which time [his] right hand hit the riot helmet of [Davis] accidentally.” Id. at ¶ 12.

         Davis then put DePaolis “in a headlock with his left arm and punched [him] so many times so hard in the face with his right balled up fist that [DePaolis] can't count the punches.” Id. at ¶ 13. The officers picked DePaolis up, then “slammed” him to the ground, and several of them “kicked and punched” the inmate. Id. DePaolis saw Davis kicking him with his right boot several times in the face. Even after Ledford restrained DePaolis' hands behind his back, officers continued punching and kicking him in his sides, while “jokingly yell[ing] ‘stop resisting, '” in an attempt “to justify their actions to witnesses, and the hand held camera.” Id. DePaolis shouted on camera, “My hands are already behind my back what more do you want from me?” Id. He alleges that King and Smith “sanctioned and supervised the beating” in the shower. Id. at ¶ 14.

         Officers placed DePaolis in handcuffs and shackles and moved him to sit on a pod table so a nurse could assess his condition. While Smith held DePaolis' left hand, King grabbed and lifted the inmate's “right hand up and outward causing it to pop three (3) to four (4) times painfully.” Id. The nurses came and asked what medical attention DePaolis needed, and an investigator took photographs of his face.

         Then, officers took DePaolis to a cell, cut his clothes off with scissors, and placed him in “five (5) point restraints for not cutting his hair.” Id. Ankle restraints were applied first. At that point, King “twisted [DePaolis'] right hand upwards and out inflicting excruciating pain.” Id. at ¶ 15. DePaolis “heard and felt another pop in his . . . wrist.” Id. “Lt. Hughes feigned that he didn't see [King's] excessive force, ” and told DePaolis to sit up. Id. DePaolis said, “I can't. . . . He's . . . twisting my hand and wrist up and out.” Id.

         From the officers' actions on November 4, 2014, DePaolis allegedly suffered these injuries:

Cuts from forehead down nose; wound left top lip under nose; mouth was busted; left nostril had a hairline fracture; unable to breathe out of left nostril for a week and a half to two weeks; had blood in left nostril from being fractured; couldn't move right wrist for two (20) and a half to three (3) weeks; to date, it turns purple and goes numb and swells up whenever rested at [his] side in a normal position; right wrist painfully pops and cracks whenever bent backwards slightly; due to being moved extensively and kicked and punched in the face and eye (left) vision is deteriorating by the day; black eye; right side of head busted open.

Id. at ¶ 16.

         After the five-point restraints were in place, Officer J. Short “attempt[ed] to break [DePaolis'] right pinky . . . while [he] was in five (5) point restraints.” Mot. Amend. 1-2, ECF No. 49. At least three times while DePaolis was in five-point restraints, Short “took it upon himself to weed through [DePaolis'] fingers on [his] right hand and grab [his] right pinky and attempt to break it.” Aff. Resp. Mot. Summ. J. by J. Short ¶ 11, ECF No. 84. DePaolis states that Short's actions are depicted on available video footage and that they “inflict[ed] severe pain and injury to [his] right pinky” which to this day is still not aligned. Id.

         After these events, Davis wrote a disciplinary charge against DePaolis for assault on a nonoffender, for hitting him in the head. A hearing officer conducted a hearing on the charge, found DePaolis guilty, and penalized him with the loss of ninety days of earned good conduct time. Smith wrote a disciplinary charge against DePaolis for failing to comply with an order to cut his hair. A hearing officer conducted a hearing on this charge, found DePaolis guilty, and penalized him with a reprimand. DePaolis contends that King and Smith conspired to cover up the use of excessive force against him by generating these “bogus” disciplinary charges, “falsify[ing]” incident reports, and “editing the hand held video camera's footage of the beating.” Compl. ¶ 17, ECF No. 1.

         DePaolis also alleges that Rose Dulaney, M.D., provided inadequate medical care for his wrist after the cell extraction on November 4, 2014. His exhibits indicate that the doctor examined him on November 5 to assess his complaints of pain in his wrist and back. The doctor ordered an X ray of his right hand. “The results were normal, no fractures or dislocation seen.” Compl. Ex. at 69, ECF No. 1-1.

         DePaolis complains that X rays “cannot uncover ligament, tendon or cartilage damage [he] evidently has.” Compl. ¶ 19, ECF No. 1. He alleges that despite “numerous request[s] and complaints of pain and disability to his right wrist [Dr. Dulaney] refuse[d] to refer [him] for a more graphical imaging of an M.R.I. to diagnose with specificity the cause of [his] pain and disability.” Id. at ¶ 18. His exhibits include several administrative remedy forms on these issues. He told Dr. Dulaney that his right hand would turn purple and grow numb if held down to his side, and she said, “[H]uh that's strange your hand shouldn't be doing that I don't know what's wrong.” Compl. Ex., 19, ECF No. 1-2. He grieved Dr. Dulaney's decision to order a second X ray to compare the results with those from his prior X ray. On January 23, 2015, DePaolis demanded an MRI instead, and refused to submit to a second X ray. On February 24, 2015, his grievance was ruled “unfounded, ” because the institutional physician must determine the proper course of treatment, and this finding was upheld on appeal on March 10, 2015, for the same reason. DePaolis also complains that “[d]espite the chronic pain, [he was] offered motrin which [did] not manag[e] the pain at all.” Compl. ¶ 18. He does not allege or provide documentation for any meetings with or treatment decisions by Dr. Dulaney after January 23, 2015. In June 2015, DePaolis was transferred to Sussex I State Prison.

         Liberally construing his Complaint, DePaolis claims the following violations of his constitutional rights: (1) use of excessive force and/or failure to intervene to prevent such force by defendants King, Hughes, Smith, McCray, Davis, Byington, Hall, Ledford, and Short; (2) conspiracy by King and Smith to falsify records, video, and disciplinary charges; and (3) deliberate indifference to serious medical needs by Dr. Rose Dulaney.[1] DePaolis seeks monetary damages, declaratory relief, and injunctive relief to have the officers prosecuted and to order an MRI of his nose and his right hand and wrist.

         Dr. Dulaney has filed a Motion to Dismiss, and the other (“nonmedical”) defendants have filed Motions for Summary Judgment, supported by affidavits and documentation. DePaolis has ...


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