Espaillat v. Mousseau CV-03-338-SM 12/16/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Miguel Espaillat, Plaintiff

v. Civil No. 03-338-SM Opinion No.

Sergeant John Mousseau, in his individual capacity. Defendants,

O R D E R

Miguel Espaillat, a federal inmate, filed this action

against three correctional officers at the Cheshire County

Department of Corrections ("CCDC") , each in his individual

capacity. He claims that while he was housed at CCDC as a

pretrial detainee, correctional officers violated his

constitutionally protected rights by failing to protect him from

an assault by another inmate, and by denying him appropriate

medical care for injuries he sustained in the attack.1

1 Because Espaillat was a pretrial detainee when the events in question occurred, the constitutional obligations owed to him by CCDC correctional officers flow from the provisions of the Fourteenth, rather than the Eighth Amendment. Nevertheless, the protections available to pretrial detainees under the Fourteenth Amendment "are at least as great as the Eighth Amendment protections available to a convicted prisoner." City of Revere v. Massachusetts Gen. Hosp.,

(1983) (citing Bell v. Wolfish,

(1979)). Thus, at a Two of the defendants named in Espaillat's complaint

(Guyette and Tracy) are no longer employed by CCDC and were never

served with a copy of plaintiff's complaint. Accordingly, by

order dated October 26, 2004, Espaillat's claims against them

were dismissed, without prejudice. The remaining defendant.

Sergeant John Mousseau, moves for summary judgment, asserting

that the record establishes that no material facts are in dispute

and that, as a matter of law, he is entitled to gualified

immunity.2

In response to Mousseau's motion, Espaillat conceded that

some of his claims against Mousseau might properly be dismissed.

Accordingly, the parties submitted a stipulation of dismissal as

to all claims asserting that Mousseau was deliberately

minimum, CCDC correctional officers had a constitutional duty not to be "deliberately indifferent" to Espaillat's security needs. See Estelle v. Gamble,

(1976).

2 In a prior order, the court guestioned whether Espaillat had complied with the exhaustion reguirements of the Prison Litigation Reform Act, 42 U.S.C. § 1997e. Defendant, however, has not responded to that inguiry, nor does he assert that the CCDC has a written inmate grievance procedure, nor does he claim that, if one exists, Espaillat failed to exhaust available remedies. Accordingly, the court has assumed that defendant has waived any defense that Espaillat failed to fully exhaust available administrative remedies.

2 indifferent to Espaillat's serious medical needs. Espaillat

continues his objection to Mousseau's motion to the extent it

seeks judgment on his claim of deliberate indifference to serious

security concerns.

Background

On August 2, 2001, Espaillat and his cell-mate were involved

in an altercation. Each claimed the other was the aggressor and

each sustained non-life-threatening injuries. Among other

things, Espaillat says he was severely beaten and his nose was

broken.

Espaillat asserts that on several occasions prior to the

altercation, he asked various correctional officers to transfer

him to a different cell. And, while his affidavit is decidedly

vague on this critical point, Espaillat at least implies that

those officers were aware of the danger posed by his cell-mate.

He claims that those transfer reguests were ignored. Sergeant

Mousseau, however, says that prior to the altercation, Espaillat

never informed him of a desire to transfer out of his cell.

Mousseau also states that, pursuant to CCDC policy, any reguests

3 for transfer must be made in writing and Espaillat never

submitted any such request(s):

Prior to this incident [i.e., the assault], Mr. Espaillat never requested a cell or housing pod transfer to me, nor submitted any documentation to the administration, requesting such transfers. Per institution policy and procedures, in order to grant a requested cell or day-room transfer, it must be submitted in writing and the staff must find a compelling reason to do so.

Exhibit A to defendant's motion for summary judgment. Affidavit

of John Mousseau at para. 11.

The keeper of the records at CCDC, Richard Van Wickler, has

filed certified copies of all records relating to plaintiff

maintained by CCDC. Nowhere in those records is there a copy of

a written request by Espaillat seeking a transfer to another cell

prior to the altercation in which he was injured.3 Nor is there

3 There is an undated request from plaintiff seeking a transfer to a different cell. However, the nature of that request (i.e., plaintiff's then-current location in the CCDC) reveals that the request was necessarily made after the altercation. That is to say, plaintiff's written request seeks transfer out of the cell block to which he was moved immediately after the altercation; it does not seek transfer out of the cell in which the altercation took place. See Affidavit of John Mousseau at para. 18.

4 any record suggesting that plaintiff notified correctional

officials that his cell-mate had threatened him.

In response, Espaillat claims that he orally reguested

Mousseau to transfer him, see exhibit 1 to plaintiff's objection

(document no. 23), Affidavit of Miguel Espaillat at para. 6, and,

on at least one occasion, made that reguest in writing, though

Espaillat does not specifically state to whom he submitted his

written reguest(s). According to Espaillat, correctional

officers did not provide him with a copy of his written transfer

reguest(s), nor did they give him a receipt of any sort. That,

says Espaillat, explains why he has been unable to produce any

record supporting his claim to have submitted a transfer reguest

in writing.

Discussion

The sole remaining count asserts that Mousseau was

deliberately indifferent to Espaillat's serious security concerns

and, by ignoring Espaillat's repeated pleas for transfer to a

different cell, failed to protect him from a foreseeable assault

committed by his cell-mate.

5 The Supreme Court has noted that the "Constitution does not

mandate comfortable prisons, but neither does it permit inhumane

ones." Farmer v. Brennan,

(1994) (citation and

internal punctuation omitted). Among other things, the

Constitution imposes on prison officials the obligation to

"protect prisoners from violence at the hands of other

prisoners." I_d. at 833 (citation omitted) . "It is not, however,

every injury suffered by one prisoner at the hands of another

that translates into constitutional liability for prison

officials responsible for the victim's safety." I_d. at 834.

Rather, liability attaches only when two reguirements are met:

First, the deprivation alleged must be, objectively, sufficiently serious; a prison official's act or omission must result in the denial of the minimal civilized measure of life's necessities. For a claim (like the one here) based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.

The second reguirement follows from the principle that only the unnecessary and wanton infliction of pain implicates the Eighth Amendment. To violate the Cruel and Unusual Punishments Clause, a prison official must have a sufficiently culpable state of mind. In prison- conditions cases that state of mind is one of deliberate indifference to inmate health or safety.

6

(citations and internal punctuation omitted). See

also Calderon-Ortiz v. Laboy-Alvarado,

(1st Cir.

2002) .

Under the second part of that two-part test, a prison

official "cannot be found liable . . . for denying an inmate

humane conditions of confinement unless the official knows of and

disregards an excessive risk to inmate health or safety; the

official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists,

and he must also draw the inference." Farmer,

.

The test is, then, a subjective one. And, "[w]hether a prison

official had the reguisite knowledge of a substantial risk is a

guestion of fact."

.

Although whether a correctional officer harbored the

reguisite state of mind to have been "deliberately indifferent"

to a serious risk of substantial harm is a guestion of fact, that

does not necessarily mean that a defendant can never prevail on a

motion for summary judgment. For example, a defendant might

demonstrate that, based upon the alleged assailant's prior

exemplary behavior within the correctional facility, no

7 reasonable trier of fact could conclude that the defendant should

have known that the assailant posed an "excessive risk to inmate

health or safety." Farmer,

.

In a prison-conditions case such as this, the plaintiff must

point to facts from which the defendant might reasonably have

inferred that a particular inmate posed a substantial threat to

the safety of one of more other inmates, thereby warranting some

preventative measures on the part of prison authorities. Simply

positing that a cell transfer reguest was made before the assault

is not, standing alone, sufficient; it does not compel the

conclusion that such a transfer was warranted or necessary to

protect the inmate's safety, or that correctional officers

recognized but were indifferent to the need for a protective

transfer. Nor are correctional officers necessarily liable

merely because such a reguest was denied and the plaintiff was

subseguently assaulted by another prisoner. As noted above, not

every "injury suffered by one prisoner at the hands of another

. . . translates into constitutional liability for prison

officials responsible for the victim's safety." Farmer,

.

8 Here, whether Espaillat notified Mousseau of his desire to

transfer cells and, just as importantly, that his cell-mate had

threatened him, is a genuinely disputed material fact.4 Mousseau

denies that Espaillat ever informed him of a desire (or need) to

change cells, see Exhibit A to defendant's memorandum (document

no. 17) at para. 11, while Espaillat insists that he did (both

orally and in writing), see Exhibit 1 to plaintiff's objection

(document no. 23), Espaillat affidavit at paras. 5 and 6.

Espaillat also advances minimally sufficient facts to support the

possible inference that Mousseau knew that Espaillat's cell-mate

posed a physical threat to him. See Espaillat affidavit at

para. 6.

Accordingly, Espaillat's affidavit provides evidence (either

directly or by implication) minimally sufficient to support each

of the essential elements of his claim that Mousseau was

4 Even if it were certain that Espaillat failed to comply with CCDC policy by neglecting to submit a written transfer reguest, that fact would not necessarily entitle Mousseau to judgment as a matter of law. If a correctional officer is aware of a serious threat against an inmate, that officer cannot escape liability simply because the inmate failed to reduce his or her concerns to writing, or failed to follow a particular administrative procedure. deliberately indifferent to the serious threat posed by

Espaillat's cell-mate:

1. Although his affidavit is decidedly vague on this point, Espaillat implies that he informed Mousseau of, or that Mousseau was aware of, the threats his cell-mate made against him;

2. Espaillat uneguivocally asserts that he reguested Mousseau to arrange a cell transfer (and, at least implicitly, suggests that Mousseau knew that he had reguested the transfer because of those alleged threats);

3. Notwithstanding his (alleged) knowledge of that serious threat to Espaillat's safety, Mousseau did not take steps to arrange a cell transfer; and

4. As a conseguence of Mousseau's failure to act, Espaillat suffered a severe beating at the hands of his cell-mate.

What is noticeably absent from defendant's submissions is

any information regarding the disciplinary history of the alleged

assailant, Jason Farinoli (Espaillat's cell-mate), whether

Farinoli was known to correctional officers as being prone to

violence, whether he had committed any prior assaults on other

cell-mates, etc. In other words, Mousseau's submissions are

silent on a critical issue: what Mousseau knew about Espaillat's

cell-mate and whether he realized that Farinoli posed an

10 excessive risk to Espaillat's health or safety. Absent such

evidence, and given the parties' dispute as to whether Espaillat

actually notified Mousseau of his security concerns (and/or the

reasons for those concerns), the court cannot conclude that

Mousseau is entitled to summary judgment. On this sparse

evidentiary record, it is conceivable that a properly instructed

jury could reasonably conclude that Mousseau acted with

deliberate indifference to Espaillat's serious security needs

(if, for example, the cell-mate had a history of assaulting other

inmates; or, if the trier-of-fact were to credit Espaillat's

testimony, find that he did inform Mousseau of the threats made

by his cell-mate, and conclude that Mousseau appreciated the

seriousness of those threats).

Conclusion

For the foregoing reasons, defendant Mousseau has failed to

demonstrate that he is entitled to judgment as a matter of law as

to the claim that he was deliberately indifferent to Espaillat's

serious security needs. Defendant's motion for summary judgment

(document no. 17) is, then, denied without prejudice. His motion

to strike plaintiff's objection (document no. (27) is likewise

denied.

11 SO ORDERED.

Steven J. McAuliffe United States District Judge

December 16, 2004

cc: John A. Curran, Esq. Miguel Espaillat, pro se

12