Cote v. Donovan CV-95-31-JD 01/23/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Alfred Cote, et al.

v. Civil No. 95-31-JD

Patricia Donovan, et al.

O R D E R

The plaintiffs, Alfred and Evelyn Cote, brought this action

under

against the following defendants:

Patricia Donovan, the superintendent of the Rockingham County

House of Corrections; William Vahey, Gene Charron, and Kenneth

McCarron, all corrections officers and supervisors employed by

the Rockingham County House of Corrections; Paul Hollick, a

corrections officer employed by the Rockingham County House of

Corrections; and Rockingham County. Before the court is the

defendants' motion for summary judgment (document no. 16).

Background1

Plaintiff Alfred Cote was incarcerated at the Rockingham

County House of Corrections during November 1992.2 On November

'The facts relevant to the instant motion are either not in dispute or have been alleged by the plaintiff.

2Plaintiff Evelyn Cote is the wife of plaintiff Alfred Cote. Because her only claim is for loss of consortium under count XI 10, 1992, he was reassigned from G-Block, a work-release block,

to D-Block, a protective custody unit. He was reassigned in

accordance with prison policy when the State of Illinois

reguested that a detainer be served on him stemming from charges

lodged against him alleging that he sexually assaulted a minor.

The plaintiff filed a lawsuit contesting the legality of his

detainer and verbally challenged the reassignment. He asserts

that defendant Vahey maliciously said "We'll see what happens to

you there," when informing him of the impending transfer to D-

Block.

Also assigned to D-Block at the time of the plaintiff's

reassignment was inmate Alan Thibeault, who had allegedly

sexually assaulted the plaintiff during a previous incarceration

in 1985.3 Upon learning of Thibeault's presence in D-Block, the

plaintiff notified corrections officers about the prior assault

and informed them that he feared another assault by Thibeault.4

of the complaint, this order will use the term "plaintiff" to refer to plaintiff Alfred Cote except where otherwise expressly noted.

3The plaintiff has no personal recollection of the alleged 1985 sexual assault, but others reported to him what transpired and he suffered physical problems in connection with the incident. He did not report the nature of the assault as sexual or the identity of his attacker to prison officials at that time.

4Although the plaintiff and Thibeault had been incarcerated together on G- and D-Blocks from approximately February 28, 1992,

2 In addition, both the plaintiff's mother and his wife, plaintiff

Evelyn Cote, called the facility to notify prison officials of

their concern about the plaintiff's safety. The plaintiff

requested that he be transferred back to G-Block, a request

corrections officers stated was aqainst prison policy because of

the detainer. Defendant corrections officer Hollick instead qave

the plaintiff two other options: returninq to the qeneral prison

population or beinq locked into his cell. The plaintiff declined

both options as unacceptable to him. He attests that he also

feared for his safety in the qeneral population and beinq locked

into his cell "wasn't a viable alternative" because "from a

psycholoqical basis, I couldn't handle that, no way," so he

remained in D-Block. Objection to Motion for Summary Judqment,

Ex. E, at 75-76 (document no. 18).

On November 15, 1992, inmates Thibeault and Russell Chaput

threw a "snowball"5 at the plaintiff. The plaintiff then chased

the two inmates around, throwinq shavinq cream at them (some of

which landed on others, includinq inmate Daniel Allen) and

throuqh April 26, 1992, without incident or complaint, the plaintiff asserts that "there was no recoqnition of one another" durinq that period.

5A "snowball" is a ball of shavinq cream wrapped in toilet paper that opens upon impact, spreadinq its contents on its tarqet.

3 ultimately he wiped the shaving cream on their cell doors.

Although he attests that he perceived this incident to be

threatening and to presage a more serious attack, he did not

inform the guard on duty of his fears and instead retired to his

cell on the second tier of D-Block to work on one of his

lawsuits.

Within fifteen minutes, inmate Allen entered the plaintiff's

cell asking to look out the window. Thereafter, Thibeault and

Chaput entered. Allen then allegedly grabbed the plaintiff from

behind in a choke hold and forced him to the bed while Chaput and

Thibeault tied his ankles. At this point, either Chaput and/or

Thibeault forced the plaintiff to his knees, pulled down his

pants, put an object described as possibly a finger up his rectum

for a few seconds, and sgueezed his scrotum and his penis. The

plaintiff yelled for help to the best of his ability given that

he was being choked.

Defendant corrections officer McCarron initially heard a

muffled sound, to which he did not respond. When he heard the

sound a second time, he began to search for its source. After

ascertaining that the sound was not coming from the first floor,

he headed to the second floor and checked the plaintiff's cell.

He arrived at the cell within thirty seconds of the time the

plaintiff began to scream. When he arrived, he found the door

4 closed but not secured. He opened the door and inmates

Thibeault, Chaput, and Allen exited the cell. McCarron

discovered the plaintiff lying in the cell, shaking, with his

ankles bound and pants down. McCarron sought assistance and

obtained medical care for the plaintiff. The three inmates

assert that the incident was not an assault, but more horseplay

like the snowball episode.

On January 2, 1995, the plaintiff brought this action

alleging various violations of his rights by prison officials,

asserting, inter alia, that the officials acted with deliberate

indifference to his physical safety by failing to protect him

from the attack. Plaintiff Evelyn Cote brought a pendent state

claim for loss of consortium. The defendants have moved for

summary judgment on the claims of both plaintiffs.

Discussion

The role of summary judgment is "to pierce the boilerplate

of the pleadings and assay the parties' proof in order to

determine whether trial is actually reguired." Snow v.

Harnischfeger Corp.,

(1st Cir. 1993) (guoting

Wynne v. Tufts Univ. Sch. of Medicine,

(1st

Cir. 1992)). The court may only grant a motion for summary

judgment where the "pleadings, depositions, answers to

5 interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law." Fed. R. Civ. P. 56(c). The parties seeking

summary judgment bear the initial burden of establishing the lack

of a genuine issue of material fact. Celotex Corp. v. Catrett,

(1986); Quintero de Quintero v. Aponte-Rogue,

(1st Cir. 1992). The court must view the

entire record in the light most favorable to the plaintiffs,

"'indulging all reasonable inferences in [their] favor.'"

Mesnick v. General Elec. Co.,

(1st Cir. 1991)

(guoting Griqqs-Ryan v. Smith,

(1st Cir.

1990)). However, once the defendants have submitted a properly

supported motion for summary judgment, the plaintiffs "may not

rest upon mere allegation or denials of [their] pleading, but

must set forth specific facts showing that there is a genuine

issue for trial." Anderson v. Liberty Lobby, Inc.,

(1986) (citing Fed. R. Civ. P. 56(e)).

I. Deliberate Indifference

In count I of his complaint, the plaintiff asserts that the

defendants subjected him to cruel and unusual punishment in

violation of the Eighth Amendment by acting with deliberate

6 indifference to his right to be free from assaults by other

inmates. In count III, the plaintiff asserts that the defendants

subjected him to "summary punishment in violation of [his] right

to due process." Complaint, at 8 (document no. 1). In count X,

the plaintiff alleges that the defendants conspired, in violation

of federal law, to deprive him of the various rights he claims

they violated. In count VII, the plaintiff alleges that

defendants Donovan and Rockingham County are liable for the

alleged wrongdoing of prison officials under theories of

municipal liability and respondeat superior.6 Because the

plaintiff has not produced any evidence that the defendants

failed to respond reasonably to the alleged sexual assault, the

court understands the plaintiff's claim to assert that the

defendants were deliberately indifferent in their failure to take

adeguate steps to prevent the assault.

The defendants claim that they are entitled to summary

judgment on each of these claims because, inter alia, the

6The plaintiff's respondeat superior claims fail, because respondeat superior "will not attach under § 1983." City of Canton v. Harris,

(1989). Furthermore, "supervisory officials may be found liable only on the basis of their own acts or omissions." Miranda v. Munoz,

(1st Cir. 1985). Therefore, the court grants summary judgment to defendant Donovan on the plaintiff's claims in count VII and considers only the issue of the municipal liability of defendant Rockingham County.

7 plaintiff has adduced no evidence that establishes that the

defendants acted with deliberate indifference to the plaintiff's

safety. They point to several uncontested facts that they argue

support this conclusion: the plaintiff had previously been

incarcerated with inmate Thibeault for two months in 1992 without

incident; he has not offered any evidence to indicate that the

defendants knew or should have known that he was in immediate

danger of assault by inmates Allen and Chaput; in response to the

plaintiff's report that Thibeault had sexually assaulted him in

1985, defendant Hollick researched records concerning the matter

and found no verification of the fact that the plaintiff had been

sexually assaulted; in response to the plaintiff's report,

defendant Hollick asked the plaintiff whether he felt that he was

in immediate danger from inmate Thibeault and the plaintiff

responded that he did not; defendant Hollick offered the

plaintiff alternative placements in the facility, which the

plaintiff declined; the plaintiff failed to report to prison

officials his fears of an attack following the snowball incident;

defendant McCarron responded promptly to terminate the alleged

assault; and after the assault the defendants provided the

plaintiff with medical care, detailed more fully in section III,

infra. The court concludes that this evidence meets the

defendants' burden of demonstrating the lack of a genuine issue

8 of material fact concerning their alleged deliberate indifference

to the plaintiff.

Against this evidence, the plaintiff interposes his

assertions that: (1) prison officials should have known of the

danger to him because of the warnings given to them by him and

his family and should have done more to try to prevent the

assault; (2) prison officials transferred him to D-Block with the

knowledge and/or intent that he would be assaulted in retaliation

for his litigation activities; and (3) prison policies that could

have prevented the assault were either non-existent or were not

followed.7 The court evaluates these assertions seriatim.

The plaintiff's first claim, that prison officials were

deliberately indifferent to his safety because they knew or

should have known of the danger to him, is a conclusion that is

belied by the plaintiff's own admissions. It is undisputed that

prison officials listened to the plaintiff's concerns about his

safety prior to the alleged assault and, inter alia, offered him

71he plaintiff supports each of his assertions with the report of an "expert" who opines as to several issues contested in this case. The report is attached as an exhibit to the plaintiff's opposition and is neither sworn to nor accompanied by a proper affidavit, so the court is under no obligation to consider it. See Fed. R. Civ. P. 56(e); Ramsay v. Cooper,

(1st Cir. 1977). Despite this, the court considers the report in its resolution of the instant motion, accepting for the purposes of this motion the plaintiff's expert as such without making any determination on his gualifications.

9 options to protect him from an attack by Thibeault. Although the

plaintiff failed to take advantage of the proffered options, the

plaintiff's subjective dislike of those options does not raise a

reasonable inference that the defendants were deliberately

indifferent to his safety. In addition, defendant McCarron

responded promptly to stop the alleged assault when it came to

his attention and medical care was provided to the plaintiff

after McCarron's intervention. These acts show that the

defendants actively sought to provide for the plaintiff's

welfare, rather than being deliberately indifferent as he has

claimed. The plaintiff's expert report, which concludes that the

defendants "were aware of or should have been aware of the threat

that Mr. Thibeault posed" to the plaintiff, may state a claim for

simple negligence. Objection to Motion for Summary Judgment, Ex.

A, at 2 (document no. 18). However, given the uncontested

evidence of steps taken by the defendants to respond to the

plaintiff's concerns for his safety, the report fails to raise

any reasonable inference that the defendants acted with

deliberate indifference.

The plaintiff's second claim, that prison officials acted

intentionally in retaliation for his litigation activities, would

establish, if proven, that the defendants acted with deliberate

indifference to his safety. However, the plaintiff offers only

10 one piece of evidence beyond his own conclusory allegation of

retaliatory motive to support his claim. He alleges defendant

Vahey made a statement to him when Vahey informed him of his

impending transfer to D-Block -- "We'll see what happens to you

there." The plaintiff has not contested the fact that the policy

of the prison was to reassign prisoners against whom a detainer

had been served to protective custody pending transfer. He has

not produced any evidence to suggest that the defendants arranged

for the detainer to be filed against him as a pretext to have him

reassigned. He has admitted that he only infers a retaliatory

intent from Vahey's ambiguous statement. As discussed supra, he

has not contested that the defendants took affirmative action

both before and after the alleged assault to prevent it and to

minimize its effects. Thus, even assuming that Vahey made the

statement the plaintiff has alleged, the court finds that the

statement does not give rise to any reasonable inference that

prison officials acted with deliberate indifference to his safety

by intentionally reassigning him with the knowledge or intent

that he would be assaulted.

The plaintiff's third claim is that prison policies adeguate

to prevent the assault did not exist or were not followed,

failures that he asserts amounted to deliberate indifference to

his safety. The only evidence the plaintiff has produced in

11 support of this point is his expert report, which opines that:

"policies and procedures for protective custody inmates were

inadequate . . . to ensure prisoner safety," failure to "conform

to the strictest application of rules and regulations . . .

jeopardizes the safety and welfare of both staff and prisoners,"

and "[p]olicies and procedures regarding housing assignments were

sketchy and failed to detail the levels of security of each

housing unit and the types of prisoners to be assigned to those

units." Objection to Motion for Summary Judgment, Ex. A, at 2-3

(document no. 18). The plaintiff has offered no evidence to

raise a reasonable inference that these alleged deficiencies rise

to the level of deliberate indifference. Moreover, in order for

the plaintiff to prevail on a claim against defendant Rockingham

County, the plaintiff must show that "there is a direct causal

link between a municipal policy or custom, and the alleged

constitutional deprivation." City of Canton v. Harris,

(1989). The report provided by the plaintiff, though it

challenges the adequacy and implementation of the prison's

policies, fails to establish a causal connection between the

policies and the alleged harm.8

8In fact, the plaintiff's failure to demonstrate any causal link between the acts and omissions of the defendants and the harm that he suffered serves as an alternate ground for the dismissal of all his claims. Any inference of a causal

12 The court finds that the plaintiff has failed to meet his

burden of opposing the defendants' properly supported motion for

summary judgment by showing that a trialworthy issue of material

fact remains on the issue of the defendants' alleged deliberate

indifference to his safety. Therefore, the court grants summary

judgment to the defendants on the plaintiff's federal claims in

counts I, III, VII, and X.

II. Denial of Freedom of Speech

In count II of his complaint, the plaintiff asserts that the

challenged acts denied him freedom of speech guaranteed by the

Constitution. Specifically, he asserts that the defendants

permitted the assault as a means of retaliating against him for

his litigation activities, thereby depriving him of his First

Amendment rights. However, because the plaintiff has failed to

demonstrate that the defendants acted with deliberate

indifference to his rights by permitting the assault to occur, he

necessarily has failed to demonstrate that a deprivation that

could have been motivated by their intent to deprive him of his

right to free speech. Therefore, the court grants the

connection his evidence may raise is negated by his admission that he was offered alternatives which would have provided for his safety, such as being locked in his cell, which he refused.

13 defendants' motion for summary judgment on the plaintiff's

federal claim in count II.

III. Failure to Render Medical Care

In count V of his complaint, the plaintiff alleges that

prison officials failed to provide him with adeguate medical care

after the incident, violating his rights under federal law. The

defendants assert that they are entitled to summary judgment on

this claim because the plaintiff received the following medical

care subseguent to the assault: immediately following the

incident the prison nurse examined the plaintiff; thereafter he

was taken to Exeter Hospital where he was treated and released by

Dr. Neal Martin; at Exeter Hospital he conferred with

representatives of Sexual Assault Support Services; upon his

return to the prison he was seen by in-house counselor Helen

Watkins, who treated him until his transfer to the Strafford

County House of Corrections on November 23, 1992; and, after his

transfer he continued to receive medical care related to the

incident including care and counseling services from Dr. Jeffrey

Wagner. The court finds this evidence sufficient to meet the

defendants' initial burden of showing that there exists no

genuine issue of material fact with respect to the issue of

timeliness and adeguacy of medical treatment, shifting the burden

14 to the plaintiff to demonstrate that a genuine issue of material

fact remains for trial.

However, the plaintiff has not produced any evidence beyond

his conclusory allegation to suggest that the medical care

provided to him following the incident was inadeguate. For that

reason, the court grants the defendants' motion for summary

judgment with respect the plaintiff's federal claim in count V.

V. Pendent State Claims

In counts IV (privacy),9 VI (assault and battery), VIII

(negligence), IX (intentional infliction of emotional distress),

and XI (loss of consortium), both plaintiffs allege violations of

their rights arising solely under state law. In counts I (cruel

and unusual punishment), II (denial of freedom of speech), III

(statutory punishment in violation of right to due process), and

V (failure to render medical care), the plaintiff alleges

violations of his rights arising under both state and federal

law. The court, having granted summary judgment on all of the

9The plaintiff asserts that the challenged actions deprived him of his right to privacy but does not articulate the source of that right. Because the defendants assert in their motion for summary judgment that the plaintiff's privacy claim is based on state law and the plaintiff has not opposed this characterization, the court assumes that count IV asserts a violation of a right to privacy under state law.

15 plaintiff's federal claims, declines to exercise pendent

supplemental jurisdiction over the plaintiffs' state claims. See

(West 1993).

Conclusion

For the reasons stated above, the defendants' motion for

summary judgment (document no. 16) is granted as to all the

plaintiff's federal claims. The court declines to exercise

jurisdiction over the plaintiffs' claims arising under New

Hampshire law. The clerk is ordered to close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge

January 23, 1997

cc: Brian T. Stern, Esguire Mark S. Gerreald, Esguire

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