United States District Court, W.D. Virginia, Roanoke Division
Daniele DePaolis, Pro Se Plaintiff.
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
OPINION AND ORDER
P. Jones, United States District Judge.
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.
Plaintiff's Evidence and Claims.
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
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.
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.
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
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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. 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.
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 ...