Thomas v. Hillsborough Cty HOC CV—04—437—PB 12/18/06

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Terry T . Thomas

v. Civil No. 0 4-cv-43 7-PB Opinion No.

Hillsborough County Department of Corrections, et a l .

MEMORANDUM AND ORDER

Plaintiff Terry Thomas brings this

civil

action against the Hillsborough County Department of Corrections

("HCDOC") and a number of its employees. Thomas alleges that the

defendants violated rights secured to him by the Eighth Amendment

by failing to protect him from an assault by a fellow inmate. In

his complaint, Thomas, a former HCDOC inmate, seeks damages from

the defendants.1

1 Thomas also seeks injunctive relief to "enjoin the defendants to provide corrective and cosmetic surgery and [a] CATSCAN to determine the extent of any residual trauma." I interpret this language, however, as a mere recharacterization of a request for money damages to pay for medical treatment. Accordingly, I treat Thomas's complaint as seeking only money damages. Defendants now move for summary judgment, arguing that

Thomas has failed to identify facts sufficient to support his

claim. For the reasons discussed below, I grant defendants'

motion.

I. BACKGROUND2

Thomas was incarcerated at the HCDOC facility in Manchester,

New Hampshire on May 10, 2001 while awaiting sentencing on a

receiving stolen property conviction. Upon his arrival, an HCDOC

classification official placed him in Unit 2C, a general

population housing unit. A few days earlier, on May 4, 2001, a

classification official had also assigned Anthony Fernandez, who

was awaiting sentencing on a felonious assault conviction, to

Unit 2C. Both Thomas and Fernandez were classified pursuant to

an HCDOC policy requiring that inmates be placed in a general

population unit unless they have engaged in behaviors that

require more frequent supervision.3 Because neither Thomas nor

2 The facts in this section are drawn from the submissions of the parties and are presented in the light most favorable to Thomas, the non-movant.

3 HCDOC classification officials implement this policy by using standard HCDOC "tree diagram" forms which take into

- 2 - Fernandez had demonstrated such documented behavior, both were

placed in general population unit 2C.

On October 20, 2001, Fernandez struck Thomas in the face

during a basketball game in the HCDOC recreation yard, rendering

him unconscious. HCDOC guards were not present at the basketball

game, and the facility's rarely used security camera provided

only limited views of the recreation area. After the assault,

Thomas remained on the ground for some time before HCDOC

employees discovered him. As a result of the attack, Thomas

suffered and continues to suffer from severe pain and headaches,

dizziness, difficulty breathing, memory loss, and blurred vision.

On January 9, 2002, after sentencing, Thomas was transferred

to the New Hampshire State Prison in Concord, New Hampshire,

where he remains incarcerated.

Thomas seeks money damages from the HCDOC and several of its

employees. Specifically, Thomas has sued William Raymond, the

classification supervisor responsible for assigning Fernandez to

Unit 2C, and John LeDuc, the corrections officer on duty on Unit

account, inter alia, prior assaultive felony convictions and known institutional behavior problems.

- 3 - 2C at the time of the assault. Thomas has also sued Raymond and

LeDuc's supervisors (the "Supervisor Defendants").4

II. STANDARD OF REVIEW

Summary judgment is appropriate where "the pleadings,

depositions, answers to 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 party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record.

See Celotex Corp. v. Catrett,

(1986). In this

context, "a fact is 'material1 if it potentially affects the

outcome of the suit and a dispute over it is 'genuine1 if the

parties' positions on the issue are supported by conflicting

evidence." Intern'1 Ass'n of Machinists and Aerospace Workers,

4 The Supervisor Defendants include: (1) Bonnie Ives, the Deputy Chief of Security; (2) Scott Cunningham, the Shift Sergeant on duty during the assault; (3) Roger Cassidy, the Shift Commander on duty during the assault; (4) Captain Dionne, the Chief of Security; (5) Captain M. Cusson, the Chief of Operations; and (6) James O'Mara, the superintendent of the facility. Thomas has also sued the HCDOC itself.

- 4 - AFL-CIO v. Winship Green Nursing Ctr.,

(1st

Cir. 1996) (citations omitted); see Anderson v. Liberty Lobby,

Inc.,

(1986). All reasonable inferences and

all credible issues are resolved in favor of the nonmoving party.

See Anderson.

.

Once the moving party has properly carried its burden, the

burden shifts to the nonmoving party to "produce evidence on

which a reasonable finder of fact, under the appropriate proof

burden, could base a verdict for it; if that party cannot produce

such evidence, the motion must be granted." Ayala-Gerena v.

Bristol Mvers-Squibb Co..

(1st Cir. 1996) (citing

Celotex,

; Anderson,

).

Ill. ANALYSIS

Construed liberally, Thomas's failure to protect claim can

be broken into three sub-parts: (1) his claim against

Classification Supervisor Raymond for making the decision to

house Fernandez in Unit 2C; (2) his claim against Officer LeDuc

for failing to observe the recreation yard when he was aware of

the deficiencies in the facility's camera system; and (3) a

- 5 - supervisory liability claim against the Supervisor Defendants.

Defendants argue that Thomas has failed to identify facts

sufficient to support any of these theories. I address each

theory in turn.

The Eighth Amendment imposes "a duty . . . to protect

prisoners from violence at the hands of other prisoners." Farmer

v. Brennan.

(1994) (citing Cortes-Ouinones v.

Jimenez-Nettieship,

(1st Cir. 1988). That

duty, however, requires only that prison officials not be

"deliberately indifferent to the risk to prisoners of violence at

the hands of other prisoners." Burrell v. Hampshire County,

(1st Cir. 2002) (citing Farmer,

). In

the context of an Eighth Amendment claim, deliberate indifference

has two components. See i d . "First, the deprivation alleged

must be, objectively, sufficiently serious."

(citing

Farmer,

). In a failure to protect claim such as

this one, a plaintiff "must demonstrate that he was incarcerated

under conditions imposing a substantial risk of serious harm."

Second, a plaintiff must also show that the defendants acted

with "deliberate indifference" to plaintiff's health or safety.

- 6 - Farmer,

.

The Farmer Court defined "deliberate," in the context of an

Eighth Amendment claim to require that a prison official "must be

both aware of facts from which the inference could be drawn that

a substantial risk of serious harm exists, and he must also draw

that inference."

The First Circuit, among others, has

likened this requirement to "the standard for determining

criminal recklessness." Giroux v. Somerset County,

(1st Cir. 1999) (internal citations omitted). In other words,

Thomas must show that the defendants knew of a substantial risk

of serious harm and disregarded that risk. Calderon-Ortiz v.

Laboy-Alvarado,

(1st Cir. 2002) (citing Farmer,

).

A. Placement of Fernandez in Unit 2C

Thomas claims that Raymond failed to protect him by placing

his assailant, Anthony Fernandez, in Unit 2C, a general

population unit, despite the fact that Fernandez was being held

in connection with a felonious assault. Specifically, Thomas

argues that Raymond knew that placing Fernandez in the general

- 7 - population unit created a substantial risk of serious harm to

Thomas and that he disregarded that risk. I disagree.

The only exhibit Thomas has introduced into the summary

judgment record that could support such an inference is Anthony

Fernandez's "tree diagram" classification form. (Doc. No. 44 Ex.

2 at 2). However, in contrast to Thomas's deliberate

indifference theory, the exhibit indicates that Raymond

classified Fernandez pursuant to an HCDOC policy that took into

account the danger he might pose to fellow inmates. To be sure,

the first box on the tree diagram indicates that Fernandez was

being held at the time for an assaultive felony. However, the

responses to the remaining questions on the diagram were

negative, indicating that Fernandez had no prior assaultive

felony convictions, no known escape history, and no known

institutional behavior problems. These negative responses led to

the assignment of a "medium" rather than "maximum" security level

and accordingly to his placement in a general population unit.

Thus, this exhibit fails to support Thomas's claims that Raymond

acted with deliberate indifference in making his placement

decision. Accordingly, I grant defendant's motion for summary

judgment with respect to Raymond. B. Failure to Adequately Supervise the Recreation Yard

Thomas argues that defendant LeDuc acted with deliberate

indifference because he allowed Thomas, Fernandez, and other

inmates to play basketball in the recreation yard when he knew

the security camera could not effectively monitor the inmates and

that an officer would not be able to monitor every moment of the

basketball game. Defendants respond by claiming that LeDuc had

no knowledge that Fernandez presented a threat to Thomas's

safety.

Even assuming arguendo that LeDuc was aware that the camera

monitoring system was faulty, the record is still devoid of any

evidence to support an inference that he acted with deliberate

indifference. See Farmer,

. In particular,

Thomas fails to identify any evidence demonstrating that LeDuc

was "aware of facts from which the inference could be drawn that

a substantial risk of serious harm exists, and [that he] . . .

drew that inference." Farmer,

. As such, I grant

Defendants' motion for summary judgment with respect to LeDuc.

C. Supervisory Liability for Failing to Protect

Thomas also alleges that the Supervisor Defendants are

- 9 - liable for HCDOC1s classification policy, its policy of placing

inmates in the recreation yard without direct supervision from

floor officers, or, in the case of the more senior HCDOC

officials, for both policies. Thomas cannot base this claim on a

respondeat superior theory of liability. Instead, the Supervisor

Defendants can only be liable under § 1983 based on their own

acts or omissions. Aponte Matos v. Toledo Davila.

(1st Cir. 1998) (citing Seekamp v. Michaud,

(1st Cir. 1997). Specifically, the Supervisor Defendants are

liable only if "there is subordinate liability, and . . . the

supervisor's action or inaction was affirmatively linked to the

constitutional violation caused by the subordinate."

(internal quotation marks omitted).

Here, Thomas's claim against the Supervisor Defendants rests

on HCDOC's classification and recreation yard supervision

policies. Because I dismissed his claims against subordinates

related to these policies, there can be no supervisory liability

against the Supervisor Defendants on these bases. As such, I

grant defendants' motion for summary judgment with respect to the

- 10 - Supervisor Defendants.5

CONCLUSION

For the foregoing reasons, I grant defendants' motion for

summary judgment (Document No. 28).

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

December 18, 2006

cc: Terry Thomas, pro se Carolyn Kirby, Esq. John A. Curran, Esq. Elizabeth Hurley, Esq.

For similar reasons, I grant defendants' motion with respect to the HCDOC.

- 11 -