Espaillat v. Mousseau 03-CV-338-SM 05/18/05 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. Defendant,

O R D E R

Miguel Espaillat, a federal inmate, filed this action

against three corrections officers at the Cheshire County

Department of Corrections ("CCDC"). At this point, only a single

claim remains from his original complaint: Espaillat's assertion

that while he was a pretrial detainee at CCDC, Sergeant John

Mousseau violated his constitutional rights by failing to protect

him from an assault committed by another inmate.

Mousseau moves for summary judgment, asserting that

plaintiff has failed to point to any evidence which suggests that

Mousseau harbored the requisite "deliberate indifference" to

Espaillat's security concerns. Although Espaillat was served

with a copy of Mousseau's motion, he has not objected. Standard of Review

When ruling on a party's motion for summary judgment, the

court must "view the entire record in the light most hospitable

to the party opposing summary judgment, indulging all reasonable

inferences in that party's favor." Griggs-Ryan v. Smith,

(1st Cir. 1990). Summary judgment is appropriate

when the record reveals "no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter

of law." Fed. R. Civ. P. 56(c). In this context, "a fact is

'material' if it potentially affects the outcome of the suit and

a dispute over it is 'genuine' if the parties' positions on the

issue are supported by conflicting evidence." Intern'1 Ass'n of

Machinists & Aerospace Workers v. Winship Green Nursing Ctr.,

(1st Cir. 1996) (citations omitted).

Discussion

Espaillat asserts that Mousseau was deliberately indifferent

to his 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. By prior order, the court denied, without prejudice.

2 Mousseau's motion for summary judgment. Espaillat v. Mousseau,

(D.N.H. Dec. 16, 2004) ("Espaillat I") at 10-11. In

response, Mousseau has supplemented the record and again moves

for summary judgment.

I. Governing Law - Deliberate Indifference.

Espaillat was a pretrial detainee when the events in

guestion occurred. Accordingly, the constitutional obligations

owed to him by CCDC officials 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)). See generally

Calderon-Ortiz v. Laboy-Alvarado,

(1st Cir. 2002) .

As the Supreme Court has observed, 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.

3 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 requirements 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 requirement 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.

I d . at 834 (citations, footnote, and internal punctuation

omitted).

Under the second part of that two-part test, the plaintiff

must demonstrate that the defendant was more than merely

4 negligent. See, e.g., Estelle v. Gamble,

(1976). In other words, 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."

I d . at 842.

While a corrections officer's alleged deliberate

indifference to a serious risk of substantial harm presents 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 reasonable trier of fact could conclude that the

defendant should have known that the assailant posed an

5 "excessive risk to inmate health or safety." Farmer,

.

So, to avoid summary judgment 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 needed to protect the inmate's safety, nor does it

necessarily suggest that corrections officers recognized, but

were indifferent to, the need for a protective transfer. In

other words, corrections officers do not violate the Constitution

every time a cell transfer reguest is denied and the plaintiff is

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,

. For liability to attach in cases such as this case, the

6 plaintiff must proffer evidence from which it could be found that

a corrections officer was aware of, but consciously disregarded,

an excessive risk to plaintiff's safety.

II. Plaintiff's Evidence.

Here, the essence of plaintiff's claim against Mousseau is

that, on several occasions prior to the altercation in which he

was injured by his cellmate, he asked various unidentified

corrections officers to transfer him to another cell; although

Mousseau was on vacation when the incident occurred, he was a

supervisor on the cell block and was generally aware of

plaintiff's desire for a transfer; and, notwithstanding several

reguests for a cell transfer, plaintiff was never moved.

According to plaintiff, Mousseau's failure to honor his cell

transfer reguests proximately caused the injuries he sustained in

the altercation with his cell mate. See Exhibit 1 to document

23, Affidavit of Miguel Espaillat at para. 5-6.

Importantly, however, what is absent from plaintiff's

filings is any evidence that Mousseau knew or should have known

7 that plaintiff's cellmate posed a danger to him. The relevant

portions of plaintiff's affidavit provide as follows:

That I did request from staff at least four (4) written requests to be moved within a two week period prior to the events of August 2, [20011; that for at least one week. Defendant Mousseau worked as a Sergeant and supervisor staff, and remain[ed] inside a sealed unit containing one-way mirrors where they can see the pretrial detainees, but we cannot see them; that we must hand the request through a slot in the unit and they are to answer us; that we have no means to make copies for ourselves, and staff will not supply any copy, nor return the requests, when answered, to the pretrial detainee; that they just verbally inform us the request was denied; that from about the second or third day upon my arrival, until the day of the event, I not only made four written requests, but at least two verbal requests to staff, whereby I was instructed to write them down, but because I was never afforded any copies of the written requests, I cannot present such evidence, but have obtained some witnesses, by witnessed statements, that staff do not respond to requests from pre-trial detainees.

That I know the officers by their voices, from when they spoke to me in [the] presence of my person on other occasions; that I did specifically request for a copy of the request note back and was told I could not receive it; that Defendant Mousseau was one of the officers that I had informed, prior to his leaving for vacation, and was never moved, thereby being placed into a position that allowed pre-trial detainee, Mr. Farinoli [to assault me]; that I overheard others speaking that this person was not "quite normal in the head."

I d . at paras. 5-6 (emphasis supplied). Even construing

plaintiff's affidavit liberally, the most one might reasonably infer is that Mousseau was aware of plaintiff's desire to change

cells. But, nothing in plaintiff's affidavit suggests that he

informed Mousseau (or that Mousseau knew) that plaintiff believed

his cellmate posed a physical danger to him.

Nevertheless, given plaintiff's pro se status, and in light

of the substantial deference afforded to pro se litigants in this

circuit, the court denied Mousseau's original motion for summary

judgment. In so doing, the court noted that, given the sparse

evidentiary record and the absence of any information concerning

the cellmate's disciplinary history, a trier of fact might,

conceivably, infer that: (1) the cellmate was a violent inmate

who posed a danger to Espaillat; and (2) Mousseau was aware of

that danger. Espaillat I, at 10-11.

In his renewed motion for summary judgment, Mousseau

addresses those issues in detail. Among other things, Mousseau

has submitted CCDC's official records relating to plaintiff's

former cellmate, Jason Farinoli. Additionally, he has submitted

a second affidavit, in which he testifies to the following: To my knowledge, at no time prior to August 2d did either Mr. Espaillat or his cellmate, Mr. Farinoli, ever reguest cell transfers to be separated from one another. Prior to August 2d, they were roommates from 7/1/01 to 8/2/01, without noted incident.

In response to this court's recent order denying summary judgment, I have reviewed the inmate file of Jason Farinoli, the plaintiff's cellmate on 8/2/01; I append a true and accurate copy of Mr. Farinoli's inmate file to this affidavit (with personal information redacted).

The inmate file shows that the various charges that led to Mr. Farinoli's incarcerations at [CCDC] includ[e] probation violation/default, driving after revocation and various drug (possession) offenses. There are no indications of any assaults or aggression based conduct leading to criminal charges against Mr. Farinoli.

Exhibit A to defendant's motion for reconsideration (document no.

32), Affidavit of John Mousseau at paras. 4-6. Mousseau also

points out that during Farinoli's four periods of incarceration

at CCDC, the only episode involving any aggression or assaultive

behavior on his part was the August, 2001, incident with

plaintiff. I_d. at para. 8. In fact, that incident gave rise to

the only disciplinary citation ever issued against Farinoli

during his four periods of incarceration at CCDC. I_d. at 13.

Given Farinoli's lack of any history of violence or

aggression as an inmate at CCDC, and given plaintiff's failure to

10 point to any evidence which even suggests that Mousseau knew that

Farinoli posed a physical threat to plaintiff (or even that

Mousseau realized that plaintiff believed Farinoli posed such a

threat ) , there is simply no evidence from which a properly

instructed trier of fact might reasonably conclude that Mousseau

was deliberately indifferent to a known threat to plaintiff's

health and safety.

Conclusion

In light of the additional evidence proffered by Sergeant

Mousseau in his renewed motion for summary judgment, it is

apparent that he is entitled to judgment as a matter of law on

plaintiff's § 1983 claim. Simply stated, the record evidence is

such that a trier of fact could not reasonably infer that

Mousseau knew that Farinoli posed any type of threat to

plaintiff's physical safety or well-being. Conseguently,

plaintiff cannot, as a matter of law, carry his burden of

establishing that Mousseau was aware of and nevertheless

disregarded (i.e., was "deliberately indifferent to") an

excessive risk to Espaillat's safety. See Farmer,

.

11 Defendant's Second/Renewed Motion for Summary Judgment

(document no. 38) is granted. Defendant's Motion to Dismiss

(document no. 40) is denied as moot. The Clerk of Court shall

enter judgment in accordance with this order and close the case

SO ORDERED.

Steven J. McAuliffe Chief Judge

May 18, 2 0 05

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

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