United States District Court, D. Maine
NICHOLAS A. GLADU, Plaintiff
JOSEPH FITZPATRICK, et al., Defendants
SUPPLEMENTAL RECOMMENDED DECISION AFTER REVIEW OF
C. Nivison, U.S. Magistrate Judge.
action, Plaintiff, an inmate in the custody of the Maine
Department of Corrections at the Maine State Prison, alleges
Defendants violated his constitutional rights following an
incident in February 2018. He also attempts to assert a class
action on behalf of others who are similarly situated.
(Complaint, ECF No. 1.)
response to a Recommended Decision After Review of Complaint
Pursuant to 28 U.S.C. §§ 1915(e), 1915A, Plaintiff
filed a motion to amend with proposed supplemental pleadings
in an apparent effort to address the shortcomings identified
in the recommended decision. (ECF No. 12.) Because Plaintiff
can amend his complaint, in accordance with Federal Rule of
Civil Procedure 15(a), “once as a matter of
course” within 21 days of service of the complaint, and
because the complaint has not yet been served, I grant the
motion to amend. Upon review of the supplemental pleadings
pursuant to 28 U.S.C. §§ 1915(e), 1915A,
recommend the Court dismiss all claims except the claim
identified as actionable in the original recommended
Supervisory / Policy-Making Officials
alleges that on February 11, 2018, he received two
“heavy applications” of pepper spray when he
refused to “cuff up” for a cell extraction, and
that he was subsequently denied access to a shower for three
days after he was placed in Emergency Observation Status
(EOS). (Complaint ¶¶ 11 - 19, ECF No. 1.) More
particularly, Plaintiff alleges Defendant Manning, identified
as a sergeant at the Maine State Prison, not only denied
Plaintiff's request for a shower for a period of three
days, even though Plaintiff reported to Defendant “that
his skin was burning from head-to-toe, ” but also
denied Plaintiff access to other means of decontamination in
his cell (i.e., wash cloths and towels). (Id.
¶¶ 18 - 20, 23.)
review of Plaintiff's complaint, I concluded that
Plaintiff had alleged an actionable claim against Defendant
Manning. (Recommended Decision, ECF No. 9.) I also determined
that Plaintiff's claim against the supervisory officers
failed because Plaintiff merely alleged in conclusory fashion
that Defendant Manning was following a policy or practice.
(Id.) Plaintiff maintains the grievance documents
attached to his supplemental pleadings (ECF Nos. 12-2, 12-4,
12-6) reflect that the supervisory officers condoned the
denial of the shower, and thus constitute evidence to support
a claim against the supervisory officers.
to Plaintiff's argument, the grievance documents do not
reflect a pre-incident policy or custom to deny
decontamination to an inmate under the circumstances alleged
by Plaintiff. The documents acknowledge that prison policy
provides for decontamination, but that Plaintiff refused
decontamination treatment. The Constitution does not mandate
a particular means of decontamination. Plaintiff's claim
against Defendant Manning is not actionable because Defendant
Manning allegedly deprived Plaintiff of a shower, but because
Defendant Manning allegedly did not afford Plaintiff the
ability to decontaminate by any reasonable means. To support
a claim against a supervisory official, the policy pursuant
to which a government employee is alleged to have deprived an
inmate of a constitutional right must have been established
in order to have caused the alleged deprivation. City of
Canton, Ohio v. Harris, 489 U.S. 378, 385
(1989). Here, the allegations and grievance documents simply
reflect that certain supervisory officers upheld the denial
of Plaintiff's grievance days after the incident because
Plaintiff had been offered decontamination by medical staff,
but declined the offer, and because he received new clothing.
The documents cannot reasonably be construed as reflecting a
policy that deprived inmates of a means of decontamination
after exposure to a substance such as pepper spray.
the circumstances, Plaintiff's supplemental filing lacks
any basis to deviate from the ordinary rule that “[a]n
officer's mere denial of a grievance does not establish
that the officer is liable for the underlying
deprivation.” Anctil v. Fitzpatrick, No.
1:16-cv-107, 2016 WL 6205755, at *10 (D. Me. Oct. 24, 2016)
(citing Gallagher v. Shelton, 587 F.3d 1063, 1069
(10th Cir. 2009)); see also Worthley v. Roberts, No.
2:15-207, 2015 WL 4139647, at *3 (D. Me. July 9, 2015)
(“[O]fficers who have merely participated in the review
and denial of a prisoner's grievance, but who were not
involved in the incident that is the subject of the
grievance, ordinarily are not subject to liability under
federal civil rights law.”); Williams v.
Cutler, No. 1:14-cv-539-NT, 2016 WL 6651301, at *3 n.4
(D. Me. Nov. 10, 2016) (same).
seeks to assert a class action on behalf of “all male
prisoners [at] MSP who were or will be exposed to chemical
agents and then deprived of meaningful opportunity to
decontaminate by means of a shower and clean change of
clothing.” (Complaint ¶ 6.) Plaintiff's
supplemental pleading does not alter the fact that Plaintiff,
a pro se litigant, cannot assert a claim on behalf of other
on the foregoing analysis, I grant Plaintiff's motion to
amend. In addition, after review of the amended pleadings in
accordance with 28 U.S.C. § 1915(e)(2) and 28 U.S.C.
§ 1915A(a), for the reasons set forth herein and in the
original recommended decision (ECF No. 9), I reiterate the
recommendation in the original recommended decision.
Specifically, I recommend the Court dismiss Plaintiff's
class action allegations, dismiss Plaintiff's claims
against Defendants Fitzpatrick, Thornell, Liberty, Ross,
Cassese, and Burns, and permit Plaintiff, based on the