Kargbo v . Brown, et a l . 11-CV-130-SM 12/13/13 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Abu B . Kargbo, Plaintiff

v. Case N o . 11-cv-130-SM Opinion N o .

Sergeant Carl Brown; Sergeant Todd Gordon; Officer Joshua Caisse; Officer Jonathan Plumpton; Officer David Archambault; and Woodrow Weatherby, Defendants

O R D E R

Abu Kargbo is an inmate at the Northern New Hampshire

Correctional Facility. He claims that while he was a pre-trial

detainee at the Hillsborough County House of Corrections (also

known as the “Valley Street Jail”), he was, on two separate

occasions, subjected to unreasonable and excessive force

motivated by racial animus. He brings this action seeking

damages for the violation of various constitutionally protected

rights. See generally

. Defendants move for

summary judgment, asserting that Kargbo failed to properly

exhaust his claims relating to the first incident and, in any

event, that none of his constitutionally protected rights were

violated during either of the two incidents identified in his

complaint. For the reasons discussed, defendants’ motion for summary

judgment is granted in part and denied in part.

Standard of Review

When ruling on a 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,

1 2 , 115

(1st Cir. 1990). Summary judgment is appropriate when the record

reveals “no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). 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.” Int’l Ass’n of Machinists & Aerospace

Workers v . Winship Green Nursing Ctr.,

(1st

Cir. 1996) (citations omitted). Nevertheless, if the non-moving

party’s “evidence is merely colorable, or is not significantly

probative,” no genuine dispute as to a material fact has been

proved, and “summary judgment may be granted.” Anderson v .

Liberty Lobby, Inc.,

4 2 , 249-50 (1986) (citations

omitted).

2 Background

The factual allegations set forth in Kargbo’s complaint and

various amendments are discussed in detail in the Magistrate

Judge’s two reports and recommendations (documents n o . 15 and

28). They need not be recounted in detail. It is sufficient to

note that Kargbo claims that on November 6, 2010, and again on

September 3 0 , 2011, various defendants violated his

constitutionally protected rights to due process and equal

protection by assaulting him and employing excessive force

against him.1

Discussion

I. Exhaustion and the November 6 Incident.

42 U.S.C. § 1997e, as amended by the Prison Litigation

Reform Act of 1995 (“PLRA”), provides that:

No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

1 Because Kargbo was a pretrial detainee at the time of the incidents that give rise to his complaint, his excessive force claim is governed by the Fourteenth, rather than the Eighth, Amendment. See Ruiz-Rosa v . Rullan,

5 0 , 155 (1st Cir. 2007); Surprenant v . Rivas,

, 18 (1st Cir. 2005).

3 42 U.S.C. § 1997e(a) (emphasis supplied). The Supreme Court has

held that section 1997(e) requires an inmate to exhaust all

available administrative processes before filing a federal suit

that relates to the conditions of his or her confinement, even if

some or all of the relief the inmate seeks cannot be obtained

through those administrative processes. Booth v . Churner,

3 1 , 734 (2001) (“The question is whether an inmate seeking

only money damages must complete a prison administrative process

that could provide some sort of relief on the complaint stated,

but no money. We hold that he must.”).

Subsequently, the Supreme Court made explicit that which was

implicit in Booth: the phrase “with respect to prison

conditions,” as used in the PLRA’s exhaustion provision,

incorporates within its scope not just conditions generally

affecting the inmate population, but also discrete incidents

affecting only a single individual.

[T]he PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.

Porter v . Nussle,

(2002). And, most recently,

the Court held that the PLRA exhaustion requirement requires

“proper exhaustion.” Woodford v . Ngo,

1 , 93 (2006).

4 “Proper exhaustion demands compliance with an agency’s deadlines

and other critical procedural rules because no adjudicative

system can function effectively without imposing some orderly

structure on the course of its proceedings.”

(footnote omitted). S o , to properly exhaust available

administrative remedies, a prisoner must file grievances (and

appeals) on the forms, in the place, and within the time limits

prescribed by the prison’s administrative rules. See Jones v .

Bock,

(2007).

Importantly, however, an inmate’s failure to properly

exhaust administrative remedies does not deprive this court of

subject matter jurisdiction over his or her claims. Instead, it

is an affirmative defense that must be pled and proved by the

defendant. See, e.g., Bock,

; Casanova v . Dubois,

4 2 , 147 (1st Cir. 2002).

Here, the parties appear to agree that Kargbo properly

exhausted available administrative remedies relating to the

incident on September 3 0 , 2011, but failed to exhaust those

remedies as to the November 6, 2010, incident. Accordingly, say

defendants, Kargbo is precluded from pursuing his federal claims

relating to the latter. In response, Kargbo says he should be

excused from complying with the PLRA’s exhaustion requirement

5 because corrections officials refused to provide him with the

necessary forms to properly grieve the November 6 incident.

As this court has previously observed, it is possible to

imagine scenarios in which an inmate of ordinary firmness could

be so thwarted in his efforts to avail himself of the grievance

process, that his failure to exhaust available administrative

remedies might be excused. See, e.g., Robinson v . Gordon,

* 3 ,

(D.N.H. May 5 , 2010). This, however,

is not one of those cases. The record evidence - including

Kargbo’s own deposition testimony - establishes that he filed

numerous administrative grievances after the November 6 incident.

Indeed, one of those grievances alleged that he was, once again,

the victim of excessive force. Plainly, then, corrections

officials were making the necessary forms available to Kargbo for

him to pursue his administrative remedies - even when Kargbo was

alleging that corrections officers had engaged in severe

misconduct. See, e.g., Affidavit of Superintendent David Dionne

(document n o . 85-2) at para. 4 (chronicling at least six separate

times following the November 6 incident on which Kargbo filed

administrative grievances). See generally Deposition of Abu

Kargbo (document n o . 8 9 - 1 ) .

6 It is beyond dispute that Kargbo was well-versed in the

administrative grievance process and availed himself of that

process quite frequently. It is also plain that when he wished

to file an administrative grievance, he was able to obtain the

necessary forms to do s o . Why he chose not to grieve the events

related to the November 6 incident is entirely unclear. But, he

certainly could have done so if he wished. And, perhaps more

importantly, defendants have established that he was not thwarted

in his efforts to obtain the requisite forms, nor did they

otherwise prevent him from exhausting available administrative

remedies related to that incident.

Because plaintiff failed to fully exhaust available

administrative remedies relating to the November 6 incident, the

PLRA precludes him from pursuing his constitutional claims

related to that incident in this forum. As to those claims,

then, defendants are entitled to summary judgment.

II. Excessive Force.

What remains of Kargbo’s complaint is an excessive force

claim against Sergeant Gordon and Officers Wetherbee and

Archambault. Whether the force they used against Kargbo was

excessive depends on whether it “was applied in a good-faith

effort to maintain or restore discipline, or maliciously and

7 sadistically to cause harm.” Hudson v . McMillian,

, 7

(1992). In addition, “[a]n officer who [was] present at the

scene and who fail[ed] to take reasonable steps to protect the

victim of another officer’s use of excessive force can be held

liable under section 1983 for his nonfeasance.” Gaudreault v .

Salem,

, 207 n.3 (1st Cir. 1990).

As construed by the Magistrate Judge, Kargbo’s complaint

alleges that on September 3 0 , 2011, he was assaulted when

officers were moving him from Unit 2A to Unit 2B at the Valley

Street Jail:

Kargbo alleges that, at the time, Sgt. T . Gordon called Kargbo a “rapist bastard,” and said, “Why did you like to rape women?”, and also told Officer Wetherbee to punch and kick Kargbo. Wetherbee complied by punching and kicking Kargbo’s stomach. During the alleged assault, Officer Archambault restrained Kargbo’s hands, and Sgt. Gordon choked Kargbo.

Report and Recommendation (document n o . 28) at 5-6. Kargbo

repeated those allegations at his deposition. See Deposition of

Abu Kargbo, at 236 (testifying that while his hands were cuffed

behind his back, “Sergeant Gordon was holding me and, you know,

Archambault was holding me and Wetherbee went like this

(gesturing) and punched me in my stomach and elbowed me with his

knee in my stomach.”).

8 The defendants involved in the September 30th incident paint

a very different picture of the events of that evening. In

short, they say Kargbo was disruptive, combative, threatening,

and using profane language - all of which prompted the decision

to transfer him to a different cell block. Defendants

acknowledge using minimal force to restrain Kargbo, but say that

once he was handcuffed, they transported him to Unit 2B without

incident. Moreover, they say Kargbo subsequently apologized for

his outburst and explained that he was angry about having

forgotten to sign up for med call. See, e.g., Incident Report of

Sergeant Gordon (document n o . 85-4) at 2 ; Incident Report of

Officer Moran (document n o . 85-4) at 4 .

All acknowledge that some level of force was used against

Kargbo during the course of handcuffing him and, subsequently,

transporting him from one cell block to another. The dispositive

question, of course, is whether that force was constitutionally

excessive. In support of their assertion that they did not use

excessive force, defendants point out that Kargbo suffered, at

most, only minor injuries during the course of the incident - a

fact from which defendants say one might reasonably infer that

the level of force used against him was comparatively slight.

But, as defendants themselves acknowledge, the Supreme Court has

9 made it clear that an inmate need not suffer substantial injury

in order to pursue a viable excessive force claim.

[T]he extent of injury suffered by an inmate is one factor that may suggest whether the use of force could plausibly have been thought necessary in a particular situation, or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur. In determining whether the use of force was wanton and unnecessary, it may also be proper to evaluate the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response. The absence of serious injury is therefore relevant to the Eighth Amendment inquiry, but does not end i t .

McMillian,

(citations and punctuation omitted).

See also Wilkins v . Gaddy,

4 , 38 (2010) (“Injury and

force, however, are only imperfectly correlated, and it is the

latter that ultimately counts. An inmate who is gratuitously

beaten by guards does not lose his ability to pursue an excessive

force claim merely because he has the good fortune to escape

without serious injury.”).

Like the plaintiff in McMillian, Kargbo asserts that he was

the victim of an unprovoked, gratuitous attack by corrections

officers while he was restrained in handcuffs and leg irons.

While Kargbo’s memory and, therefore, his credibility is somewhat

suspect, see, e.g., Kargbo deposition at 243-244 (acknowledging

10 memory problems due to his mental health issues and medications),

a jury may credit his version of the events that evening, and may

determine that his constitutional rights were violated.

Given the existence of genuinely disputed material facts,

the court cannot conclude that defendants are entitled to

judgment as a matter of law. Nor can it conclude that they are

entitled to the protections afforded by qualified immunity. At

the time of the events in question, it was, of course, clearly

established that corrections officers cannot gratuitously beat a

restrained inmate when he is (as Kargbo claims) complying with

their legitimate directives and offering no resistance. See,

e.g., Wilkins,

8 . See also Vosburgh v . Bourassa,

,

(D.N.H. Aug. 5 , 2008) (noting that

the malicious and sadistic use of force is always violative of

clearly established law, so qualified immunity is rarely

available when the parties genuinely dispute whether such force

was applied).

Conclusion

For the foregoing reasons, defendants’ motion for summary

judgment (document n o . 85) is granted in part, and denied in

part. As to Kargbo’s claims arising out of the incident on

November 6, 2010, defendants are entitled to judgment as a matter

11 of law. But, Kargbo’s claim that he was the victim of

constitutionally excessive force on September 3 0 , 2011, does not

lend itself to resolution as a matter of law - a jury, not the

court, must decide who’s version of the events that unfolded that

evening is accurate. That factual finding will determine whether

one or more of the remaining defendants is liable to Kargbo.

Defendants’ motion to strike Kargbo’s deposition errata

sheet (document n o . 87) is granted, largely for the reasons set

forth by defendants. In short, the Federal Rules of Civil

Procedure authorize a deponent to review the transcript of his or

her testimony and make “changes in form or substance.” Fed. R.

Civ. P. 30(e). Plaintiff’s effort to supplement his deposition

testimony with a rambling discussion of various topics of his

choosing (which are frequently non-responsive to the questions

posed to him during his deposition) does not comply with the

requirements of that rule.

SO ORDERED.

Steven J. McAuliffe Jnited States District Judge

December 13, 2013

cc: David W . Ruoff, Esq. John A . Curran, Esq.

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