Opinion
Civil Action No. 99-30269-MAP.
April 10, 2002
MEMORANDUM REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Docket No. 35)
I. INTRODUCTION
Plaintiff Steven Burrell ("plaintiff") was attacked and beaten by a fellow inmate at the Hampshire County House of Correction on December 2, 1997. He brings this § 1983 suit under the Eighth Amendment to the United States Constitution, claiming that the corrections officers responsible for his safety were deliberately indifferent to a substantial risk of serious harm to his person. Defendants have moved for summary judgment. For the reasons discussed below, defendants' motion for summary judgment will be allowed.
II. STANDARD OF REVIEW
Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A "genuine" issue is one that reasonably could be resolved in favor of either party, and a "material" fact is one that affects the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). The court must view all the evidence in the light most favorable to the nonmoving party, "drawing all reasonable inferences in that party's favor." Thomas v. Eastman Kodak Co., 183 F.3d 38, 42 (1st Cir. 1999), cert. denied, 528 U.S. 1161 (2000).
Once the moving party has asserted that no genuine issue of material fact exists, the burden is on the opposing party to point to specific facts demonstrating that there is, indeed, a trialworthy issue. National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995). A "genuine" issue is one "that a reasonable jury could resolve . . . in favor of the nonmoving party." McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995). Rule 56(e) requires the opposing party to meet this burden with admissible evidence. "Hearsay evidence, inadmissible at trial, cannot be considered on a motion for summary judgment." Garside v. Osco Drug, Inc, 895 F.2d 46, 50 (1st Cir. 1990). Likewise, "the First Circuit will reject responses by nonmovants that adduce statements not based on personal knowledge or that adduce conjectural or conclusory allegations." Nicholson v. Promotors on Listings, 159 F.R.D. 343, 348 (D.Mass. 1994).
III. FACTUAL AND PROCEDURAL BACKGROUND
The following summary is rendered in the light most favorable to plaintiff, the non-moving party. However, uncontroverted facts of record supplied by defendants are deemed admitted. See Local Rule 56.1.
Plaintiff was attacked and beaten by fellow inmate David Allen ("Allen") at the Hampshire County House of Correction on December 2, 1997. Allen had a fairly violent prison history. (Docket 43 at 1). For example, roughly a year earlier, on December 17, 1996, Allen assaulted an inmate named Peterson. Id. at 2. Peterson was cut, bruised, and had a concussion. Allen received five days of isolation for the incident. (Docket 37 at 3). In another incident on March 15, 1997, Allen was involved in a fight that involved an inmate named Andrews. (Docket 43 at 2). Andrews was not seriously injured. (Docket 37 at 3). However, Allen received seven days of room restriction suspended for sixty days, and four days of room restriction with a credit for time served. Id. There are also other less serious allegations of violence involving Allen that are more or less disputed, but are taken as true for purposes of the following analysis.
Allen and plaintiff were "blockmates" from August 26, 1997 until December 2, 1997. (Docket 37 at 4). They each had their own individual cell, but their cells were located on the same hallway, or "cellblock," in the prison. Id.; Docket 37, Exhibit A at 56. Each cell could be locked from the inside by the occupying inmate. Id., Exhibit A at 61-62, 123; Docket 44 at 2. The jail does not always separate violent and non-violent inmates. (Docket 43 at 2). One way the jail dealt with inmate conflicts was to move an inmate to a different cellblock. Id.
Allen never seriously assaulted plaintiff prior to December 2, 1997. (Docket 37 at 4). However, plaintiff claims that several unpleasant incidents occurred before the attack. For example, there were a few verbal altercations concerning Allen playing his music loudly and late at night. Id., Exhibit A at 123-125.
Plaintiff also described three specific encounters. First, plaintiff complained about Allen turning the television to the Black Entertainment Television network. Allen said, "what's up," and plaintiff allegedly returned to his cell and never reported the incident. (Docket 37 at 7; Docket 44 at 11). Second, plaintiff complained to Allen about Allen's cutting in line in the recreation yard. Allen allegedly said, "You mother-fucker. Dis me again like that, and I'll hurt you." Plaintiff said, "yeah right" and walked away. (Docket 37, Exhibit A at 89-92). Third, plaintiff and Allen were sitting on a bench in the recreation yard when Allen asked plaintiff if he was "trying to get sweat on him." According to plaintiff, he got up and walked away, and Allen pushed him from behind, but not hard enough for plaintiff to fall. Id. at 107. While these incidents are disputed by defendants, they will be assumed to be true for purposes of defendants' summary judgment motion.
Plaintiff claims to have had several conversations with Hampshire County corrections officers that should have alerted them to Allen's dangerous propensities. The corrections officers uniformly deny that plaintiff told them, or gave them reason to believe, that he was in any physical danger. In fact, two officers claim that they offered to move plaintiff to another cellblock, but that plaintiff refused their offer.
Defendants admit that plaintiff asked to have Allen transferred, but contend that they interpreted this request as an attempt to manipulate the racial make-up of the cell-block. (Docket 30 at 2). Plaintiff was seen as a racist who, like some of his white block-mates, did not appreciate Allen or his rap music. See Docket 37, Exhibit H at 42 (plaintiff's blockmate complaining that he and plaintiff hate it that "Allen plays that nigger music all night long"). According to Thomas, plaintiff referred to Allen and other black inmates in a racially demeaning manner, saying there was "tension" with the "jungle creatures." (Docket 37, Exhibit G at 23-24). Plaintiff denied using that racial epithet. (Docket 37, Exhibit A at 115).
Nevertheless, summarizing the facts in the light most favorable to plaintiff, the corrections officers had the following information:
First, plaintiff contends that defendants knew about most or all of Allen's violent history. (Docket 43 at 2-3).
Second, plaintiff contends that he reported the recreation yard incidents to corrections officer Anthony Thomas ("Thomas") sometime after they occurred. Id. at 3.
Third, plaintiff claims to have spoken or written to each of the defendants about Allen. Thomas and plaintiff had a meeting in the "press box" about Allen a couple weeks before December 2, 1997. Id. at 3. According to plaintiff, he told Thomas that he feared Allen would hurt plaintiff and other inmates and asked that Allen be transferred. Id. Plaintiff also asked corrections officer, William Martinez ("Martinez") to move Allen and complained to him about Allen's loud music. Id. at 4. Next, plaintiff approached corrections officer, John A. Seaver ("Seaver"), "when there was snow on the ground" in 1997, and, according to plaintiff, "I told Mr. Seaver, I said that a fight is going to ensue. There was going to be blood. Somebody's going to get hurt." (Docket 46, S. Burrell Exhibit at 135). Plaintiff claims that he had also asked Seaver to transfer Allen, some months before, after plaintiff allegedly witnessed Allen assaulting a third inmate. Id. at 136. Finally, plaintiff allegedly sent a letter to the Deputy Superintendent of the jail, Frank Godek ("Godek"), and to Sheriff Robert J. Garvey ("Garvey"), who is responsible for running the House of Corrections. In this letter, plaintiff described Allen as "violent" and "hostile," said he was a threat to inmates on the cellblock, and requested that Allen be transferred. (Docket 37, Exhibit A at 137-138).
Plaintiff admits that he never asked to be moved himself, or to be put into protective custody. (Docket 37 at 6; Docket 44 at 8). Plaintiff asked only that Allen be moved. Plaintiff's wife, Debra Burrell, stated that she suggested to plaintiff that he ask for protective custody, but plaintiff refused because "[h]e didn't think it was fair. It wasn't him that was causing the problem." (Docket 37, Exhibit I at 74-76). Plaintiff disputes any claim that he heard and rejected his wife's suggestion, but does not dispute that he never told his wife he was afraid of Allen. Id. at 77; Docket 44 at 11. It is also undisputed that plaintiff falsely represented himself to corrections officers as a black belt who had studied martial arts in Japan, and a war hero awarded the Congressional Medal of Honor for heroism in combat in Vietnam. (Docket 37, Exhibit A at 26-27).
Unsurprisingly, the facts surrounding the attack are also in dispute. However, plaintiff's version will be assumed to be true for purposes of this motion. According to plaintiff, Allen came to plaintiff's cell and asked plaintiff to "come down" to Allen's cell because he wanted to talk to plaintiff. Plaintiff took this as a "peace offering," said, "all right," got dressed, and walked down the hall to Allen's cell. Id. at 148-149. There, plaintiff saw an inmate named Brown standing in or near Allen's cell. Id. Plaintiff believed that Brown had a grudge against plaintiff because Brown had confided in plaintiff about a burglary, and feared plaintiff would "snitch" on him. Id. at 147-48.
Plaintiff thought it was strange that Brown was in Allen's cell. Plaintiff also saw all the furniture, the TV, and the radio moved to the corner of the cell. Plaintiff testified that "nonetheless, I walked into David Allen's room." Plaintiff then allegedly said, "what's going on?" Immediately, Brown threw a glass of hot water in plaintiff's face, and Allen began assaulting plaintiff. Plaintiff thought he saw Allen wielding a black stick, and reports being hit with Allen's bed frame. Id. at 149-150.
Allen was charged with assault in connection with the incident, pled guilty, and was given penal sanctions. The reason for the sanctions was, "[e]ven if the Board believed Allen's testimony that he was only initially defending himself he certainly wasn't justified in beating [plaintiff] as severely as he did." (Docket 46, Exhibit J).
Plaintiff filed this 42 U.S.C. § 1983 suit against individual defendants Thomas (Count II), Godek (Count III), Seaver (Count IV), and Martinez (Count V) under the Cruel and Unusual Punishment Clause of the Eight Amendment for their alleged "deliberate indifference" to his constitutionally protected interest in being free from physical harm. (Docket 27). In addition, plaintiff contends that Hampshire County (Count I) and Sheriff Garvey (Count VI), violated the Eighth Amendment through their failure to enact proper protective policies or their failure properly to train and supervise the correctional officers responsible for plaintiff's well-being. Id.
IV. DISCUSSION
This case is governed by the Supreme Court's decision in Farmer v. Brennan, 511 U.S. 825 (1994), and the First Circuit's decision in Giroux v. Somerset Cty., 178 F.3d 28 (1st Cir. 1999). Farmer and Giroux issue a clear warning: prisons, and prison officials, may be held responsible under the Eighth Amendment if they neglect their duty "`to protect prisoners from violence at the hands of other prisoners.'" Farmer, 511 U.S. at 833, quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988). "Being violently assaulted in prison is simply not `part of the penalty that criminal offenders pay for their offenses against society.'" Id. at 834, quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
To survive summary judgment, a plaintiff must put forward sufficient evidence for a reasonable jury to find that the defendant prison officials were "deliberately indifferent" to a "substantial risk of serious harm." Id. at 828. The "deliberate indifference" requirement necessitates a finding that the prison officials were "subjectively aware" of the risk of harm. Id. at 829. Accordingly, the Constitution is offended only when the prison official "knows of and disregards an excessive risk to inmate health or safety. . . ." Id. at 837. In other words, "the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837. A prison official's subjective belief about risk may be proved by "circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Id. at 842 (citation omitted). As Justice Souter noted in Farmer, "an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment." Id. at 838.
The Farmer requirements were met in the First Circuit's Giroux case. The plaintiff, Giroux, was threatened by another inmate who believed that Giroux was cooperating with the authorities. Giroux v. Somerset Cty., 178 F.3d 28, 29 (1st Cir. 1999). The next day, Giroux was confronted with the threatening inmate's brother, who told Giroux, "you're dead." Id. at 30. Giroux went to correctional staff, informed them of the death threat and requested protection immediately. He was placed on "cell feed status" the same day, which was a "form of protective custody" that should have kept him away from his would-be attackers. Id.
Nevertheless, the next day, either deliberately or through gross incompetence, the defendant prison guard placed Giroux in a common holding cell with the specific inmate who had just told Giroux, "you're dead." No guards were present. Id. As a result, Giroux was beaten by the very inmate he had identified and whom the correctional officer should have known that he required protection from. Id.
The First Circuit found there was sufficient evidence on these facts for a reasonable jury to find that the prison guard knew that the plaintiff was on cell feed status and that this protective measure was taken because the defendants knew plaintiff was at a high risk of harm from another inmate. Id. at 33. In addition, the evidence supported a finding that the prison guard was "deliberately indifferent" to a known risk because the prison guard articulated "no competing concerns whatsoever" for putting the plaintiff in the common holding cell despite the known risk of substantial harm. Id.
This case presents on the surface some features similar to Giroux. Taking the facts in the light most favorable to plaintiff, the corrections officers knew that there had been some friction between plaintiff and Allen, and were aware of plaintiff's opinion that there was a likelihood of violence. Accepting plaintiff's representations, he informed Seaver that "[t]here was going to be blood," "[s]omebody's going to get hurt," told Thomas that he feared that Allen would hurt him or other inmates, and asked officers repeatedly to transfer Allen. Plaintiff reported to Thomas his verbal altercations with Allen, and one incident in which Allen pushed him. In addition, the corrections officers were aware that Allen had been involved in violence in the past.
These superficial similarities, however, cannot conceal both the fundamental differences between this case and Giroux, and (more importantly) the insufficiency of the facts of record to bear this case past defendant's summary judgment motion in the face of the Supreme Court's Farmer decision. The fact is, while a jury might find from these facts that some potential for harm existed, and that one or more of the defendants might have had some degree of knowledge of this risk, neither the potential harm nor the defendants' subjective knowledge was remotely sufficient, under any analysis of this record, to support a claim under the Eight Amendment.
Several facts are significant. While it is true that Allen's institutional background contained instances of violence in the fairly distant past, his interactions with plaintiff prior to the attack amounted to no more than low grade, garden variety inmate friction and posturing. It is significant that, although plaintiff complained about Allen and offered his own somewhat dire predictions about inevitable violence, he was never concerned enough to request protection for himself, or even to avoid Allen when he could have. Moreover, defendants had a good faith basis, whether true or not, for discounting plaintiff's complaints; they had the impression that Burrell was a racist and was using the complaints to manipulate the custodial staff and effect the transfer of an African American prisoner he disliked. Prisons contain unpleasant people; some amount of tension is unfortunately inevitable. Certainly prison officials cannot give, and equally importantly cannot be viewed as giving, an inmate carte blanche to force another inmate's transfer simply by making highly colored complaints where the objective evidence of a risk is insubstantial.
This memorandum should not be read as suggesting that an inmate must always request transfer or some protection for himself before an Eight Amendment claim will lie. Other objective evidence of the degree of risk and the defendant's knowledge of it may suffice. But some such objective evidence must exist and it must be substantial. Here there is virtually none, other than plaintiff's say-so. See Nunez v. Goord, 172 F. Supp.2d 417, 430 (S.D.N.Y. 2001) (holding that plaintiff's informing prison officials that he was "experiencing problems and feared that he was going to have trouble" was insufficient to put officials on notice for purposes of surviving summary judgment). Indeed, plaintiff's observable behavior in failing to avoid his potential attacker provides objective evidence that even the defendant did not view the danger as substantial. See Benner v. McAdory, 165 F. Supp.2d 773, 779 (N.D.Ill. 2001) (holding fact that inmate had chosen to approach attacking inmate's cell precluded recovery).
For these reasons, plaintiff has presented insufficient evidence to survive summary judgment on his claim that defendants Godek, Thomas, Seaver and Martinez were "deliberately indifferent" to a "substantial risk of serious harm," to his person, and thereby violated his right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution.
It is true that allowance of the motion for summary judgment as regards the officers does not necessarily absolve the defendants Garvey and Hampshire County. See Giroux, 178 F.3d at 34 n. 10 (noting that Sheriff's and County's liability may not depend upon finding that corrections officer was liable). Nevertheless, extended analysis is unnecessary to conclude that these defendants are entitled to judgment as well. The policy of placing violent prisoners on the same cell block with non-violent prisoners does not per se violate the Eighth Amendment. It is undisputed that plaintiff's cell could be locked from the inside, and that plaintiff would have been transferred to another cellblock or placed in protective custody at his request. While the prison could have perhaps done more to protect plaintiff, no reasonable jury could find that Garvey's or the county's policies and training procedures were so deficient as to rise to the level of a constitutional violation. Defendant Garvey's and Hampshire County's other arguments need not be addressed.
V. CONCLUSION
For the reasons set forth above, defendants' motion for summary judgment is hereby ALLOWED. The clerk will enter judgment for defendants.
A separate order will issue.
ORDER
For the reasons stated in the accompanying Memorandum, defendants' motion for summary judgment (Docket No. 35) is hereby ALLOWED. The clerk will enter judgment for defendants.
It is So Ordered.