Anna Silva, Administrator of the Estate of Fernando Ornelas, Plaintiff v. Elliot Hospital, et al., Defendants

2020 DNH 123

• Court: District Court, D. New Hampshire
• Decided: July 15, 2020
• Docket: 14-cv-394-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Anna Silva, Administrator of the Estate of Fernando Ornelas, Plaintiff

v. Case No. 14-cv-394-SM Opinion No. 2020 DNH 123 Elliot Hospital, et al., Defendants

O R D E R

Plaintiff, Anna Silva, as administrator of the estate of

Fernando Ornelas, filed this action against defendants, Elliot

Hospital, Hillsborough County, the Hillsborough County

Department of Corrections, as well as several employees of those

entities, asserting claims arising out of injuries Ornelas

sustained while in their custody. The Hillsborough County

defendants have moved for partial summary judgment on

plaintiff’s 42 U.S.C. § 1983 claims against them.1 Plaintiff

1 Elliot Hospital filed a motion for partial summary judgment on plaintiff’s N.H. Rev. Stat. Ann. Ch. 135-C claim. However, that claim is not asserted against the Elliot in plaintiff’s most recent amended complaint, filed on March 23, 2020. See Pl.’s Second Amended Compl. (Document No. 156). Therefore, that motion is moot.

Elliot Hospital moved for judgment on the pleadings as to plaintiff’s claims for enhanced compensatory and punitive damages. Plaintiff’s Omnibus Objection states that she “does not oppose the Defendant Elliot Hospital’s Motion for Judgment on the Pleadings as to Claims for Enhanced Compensatory and

1 opposes that motion. Defendants’ motion is granted in part and

denied in part.

STANDARD OF REVIEW

When ruling on a motion for summary judgment, the court is

“obliged to review the record in the light most favorable to the

nonmoving party, and to draw all reasonable inferences in the

nonmoving party’s favor.” Block Island Fishing, Inc. v. Rogers,

844 F.3d 358, 360 (1st Cir. 2016) (citation omitted).

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 factual dispute “is ‘genuine’ if the

evidence of record permits a rational factfinder to resolve it

in favor of either party, and ‘material’ if its existence or

nonexistence has the potential to change the outcome of the

suit.” Rando v. Leonard, 826 F.3d 553, 556 (1st Cir. 2016)

(citation omitted). Consequently, “[a]s to issues on which the

party opposing summary judgment would bear the burden of proof

Punitive Damages.” Pl.’s Mem. in Opp. (Document No. 144) at n. 1.

Accordingly, Elliot Hospital’s Motion for Judgment on the Pleadings on plaintiff’s enhanced compensatory and punitive damages claim is granted.

2 at trial, that party may not simply rely on the absence of

evidence but, rather, must point to definite and competent

evidence showing the existence of a genuine issue of material

fact.” Perez v. Lorraine Enters., 769 F.3d 23, 29–30 (1st Cir.

2014). In other words, “a laundry list of possibilities and

hypotheticals” and “[s]peculation about mere possibilities,

without more, is not enough to stave off summary judgment.”

Tobin v. Fed. Express Corp., 775 F.3d 448, 451–52 (1st Cir.

2014). See generally Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249 (1986).

BACKGROUND

The following facts are set forth “in the light most

favorable to the nonmoving party to the extent that they are

supported by competent evidence.” Leite v. Bergeron, 911 F.3d

47, 49 (1st Cir. 2018) (citing Ellis v. Fid. Mgmt. Tr. Co., 883

F.3d 1, 3 (1st Cir. 2018)) (further quotation omitted). The

court’s summary includes only those facts relevant to the

pending motion.

On October 15, 2013, Fernando Ornelas, age 54, was in a car

accident. Ornelas was disoriented and was promptly taken to the

Elliot Hospital by his sister. He arrived at the Elliot at

around 7 p.m.

3 At the Elliot, Ornelas’s sister asked for a mental health

examination, as Ornelas had previously suffered from mental

health issues. Elliot medical personnel diagnosed Ornelas with

bipolar disorder, and, with his sister’s consent, issued an

Involuntary Emergency Admissions (“IEA”) order, committing him

on an emergency basis for further evaluation and treatment.

N.H. Rev. Stat. Ann. Ch. 135-C:27. The IEA noted that Ornelas

was displaying signs of paranoia, hallucinations, and mood

swings, and that he posed a likelihood of danger to himself and

others.

There were no beds available at New Hampshire State

Hospital, the selected psychiatric hospital. So, Ornelas was

moved to the Elliot’s own secure mental health ward, Psychiatric

Evaluation Program (PEP), where he remained for several hours

awaiting transfer to the New Hampshire State Hospital. At

approximately 6 p.m. on October 16, 2013, Ornelas was involved

in a physical altercation with Lawrence Bolduc, a security

officer at the Elliot. Ornelas sustained several injuries. As

a result of the altercation, Ornelas was arrested by the

Manchester Police Department, and charged with simple assault.

4 Prior to removing Ornelas from the hospital, the Manchester

Police Department asked Elliot medical personnel to determine

whether he was medically stable enough to be taken into custody.

Ornelas underwent a physical exam and diagnostic studies,

including a CT scan of his head. No x-rays or CT scans of the

back of Ornelas’s head or neck were taken. Following the

examination, Elliot medical personnel determined that Ornelas

was sufficiently stable to be discharged into the custody of the

Manchester Police Department.

At 10:45 p.m. on that same evening, Ornelas was discharged

from the Elliot, and placed in the custody of the Manchester

Police Department. Ornelas was given medical discharge

instructions from the Elliot, which stated:

Apply ice to facial injuries. Take Tylenol 650 mg every 6 hours for pain. Patient is IEA’d to state hospital, awaiting placement there. Return to emergency department as soon as possible if persistent vomiting, confusion, weakness to arms or legs or any other concerns.

Def.’s Mot. for Summary Judgment, Martin Decl., Exh. 1C at p. 2

(emphasis added). Those instructions also directed Ornelas to

seek emergency care in the event of “increasing confusion or a

change in personality . . . You do not know where you are . . .

You have new problems with vision, your speech becomes slowed or

5 confused . . . You have arm or leg weakness, loss of feeling, or

new problems with coordination.” Id., at p. 5.

Ornelas arrived at the police station at 11:15 p.m. and was

booked on a charge of simple assault. After booking, he was

transferred to the custody of defendant Hillsborough County

Department of Corrections (“HCDOC”), and transported to the

Valley Street Jail, where he arrived at approximately 12:05 a.m.

on October 17, 2013. At that point, Ornelas had been awake for

over 24 hours.

As part of the jail’s booking process, Ornelas was

evaluated by defendant Flavia Martin, a registered nurse for

HCDOC. Martin was informed that Ornelas had been in an

altercation with an Elliot security officer, and had been

cleared by the Elliot for discharge before being taken into

custody by the MPD. Martin reviewed Ornelas’s discharge

instructions from the Elliot.

Martin took Ornelas’s blood pressure, which was 150/100.

She recorded that both of Ornelas’s pupils were pinpoint, his

eyes were bloodshot, and he had a contusion to his lower lip, as

well as a laceration under his right eye. Martin further noted

that Ornelas’s gait was slightly unsteady. While Martin did not

6 record that Ornelas was complaining of neck pain, defendant

HCDOC Lieutenant Angela Boyer, who was present during the

medical assessment, stated that Ornelas complained of neck pain

during the examination. See Pl.’s Exh. 1A, Boyer Deposition at

60:23-61:3. Ornelas also told Martin that he was suffering from

blurry vision bilaterally. Finally, Ornelas was acting oddly:

when asked to pull his up pants, he began to pull them down

instead.

Martin was aware that Ornelas was subject to an IEA order

committing him to the state hospital, so she filled out HCDOC’s

Mental Health Screening form. Ornelas told Martin that he was

bipolar, had a history of psychosis and paranoia, and that he

was feeling paranoid. Martin did not complete the entire Mental

Health Screening form, but she did note that Ornelas was at risk

for suicide. Because of Ornelas’s IEA and his mental health

history, Martin contacted Dr. Paul Harris, an on-call

psychologist for the HCDOC. Dr. Harris recommended that Ornelas

be placed on “special watch,” and secured in a safety smock.

At 2:30 a.m., Martin reevaluated Ornelas in his cell. At

that time, she noted his blood pressure was 154/96, and that he

complained of a headache, blurry vision in both eyes, dizziness,

and pain in his neck. Martin again noted that Ornelas had

7 pinpoint pupils. She performed a neurological test, recording

that Ornelas had weak grip strength in both hands. When asked

to squeeze Martin’s hands harder, Ornelas responded he could

not, because it hurt his neck. Martin attributed Ornelas’s neck

soreness to his recent altercation at the Elliot. She asked

Ornelas if he could move his head and neck; Ornelas shook his

head “no,” but, in shaking his head, demonstrated what Martin

considered to be good movement. Ornelas was also able to

correctly identify the number of fingers Martin held up. Martin

provided Ornelas with ice for his eye injury and asked him to

sign an authorization for treatment (so that she could provide

him with the Tylenol the Elliot had prescribed). Ornelas became

agitated and refused to sign the authorization. Martin left his

cell without providing the Tylenol.

At about 5:45 a.m., defendant HCDOC Officer Quinnford

Robinson observed Ornelas in his cell. Ornelas was placing his

pillow into the toilet to flood his cell, and he was spreading

the overflowing water over the cell floor. Ornelas had removed

his safety smock, so he was naked, and he was using the smock to

spread the water. Robinson reported Ornelas’s behavior to

defendant HCDOC Sergeant Joshua Jordan. Jordan asked Ornelas to

stop, but Ornelas responded that he would not, because “it’s my

8 . . . umbrella, and I’m ready to go now.” Def.’s Mot. for

Summary Judgment, Exh. 2, Jordan Decl. at ¶ 5.

Jordan attempted to reason with Ornelas, but when he could

not, Jordan ordered him to come to the front of the cell, kneel

down, and place his hands behind his back. Ornelas refused, and

instead, urinated on his cell door, so that the urine flowed

under the door, towards where the COs were standing. Ornelas

became increasingly agitated, spitting and throwing wet toilet

paper at the cell window. He then began charging his cell door,

running from the back of the cell and repeatedly striking the

metal cell door with his head.

Unable to persuade Ornelas to stop, Officer Jordan sprayed

Ornelas with pepper spray (Oleoresin Capsicum, or “OC”), on

three occasions. The OC spray seemed to have little or no

effect on Ornelas’s behavior, as he continued to pace and yell,

charge his cell door, and jam his safety smock and blanket into

the door track. Having observed Ornelas deliberately hitting

his head on the cell’s metal door several times, Jordan

consulted his supervisor, Lieutenant Boyer, who made the

decision to remove Ornelas from the cell, and place him in the

9 jail’s restraint chair.2 Boyer also notified Martin, and asked

her to report to Ornelas’s cell, so that medical staff would be

present during the removal process.

Because Ornelas had jammed the door track with his smock

and blanket, the cell door would not open at first. Once the

officers were able to open the door, defendants HCDOC officers

Max Munyanya, Todd Gardner, and Robinson entered Ornelas’s cell.

Ornelas, still naked, moved to his top bunk when the three

officers entered the cell. He jumped off the bunk towards the

officers. Officer Gardner caught him, and Ornelas was slammed

to the cell floor, with Gardner’s hands under Ornelas’s back.

Ornelas continued to struggle, as Munyanya and Gardner turned

him over, placing his arms behind his back.3 Eventually, Ornelas

was put in leg and hand restraints. At this point, his nose was

bleeding heavily, some of his wounds had reopened, and the floor

of his cell was bloodied.

2 Officer Slack was instructed to videotape the removal. However, the video camera allegedly malfunctioned, and no recording is available.

3 Multiple HCDOC employees testified to “rumors” that Officer Robinson kicked Ornelas in the head at some point, and plaintiff alleges that, at some point during the removal, Ornelas’s head was slammed against the cell’s toilet. However, the record includes no competent evidence that either of those events actually occurred.

10 Ornelas was taken to the shower area to remove the OC

chemicals, as well as clean up the blood from his wounds.4 His

condition at that point is disputed. Defendants contend that

Ornelas was still actively resisting, but the plaintiff contends

he was semi-conscious, and unable to walk on his own. From the

shower, Ornelas was taken to the cell that contained the

prisoner restraint chair. While Jordan supervised, Gardner,

Robinson and Munyanya placed Ornelas into the chair, securing

his head by placing their hands on his ears, and forcibly

turning his head. Officer Munyanya placed a mesh transport hood

on Ornelas to prevent him from spitting on staff. During this

time, Ornelas was behaving in a bizarre manner, singing, and

asking the COs if they would like to dance.

After Ornelas was secured in the restraint chair, at

approximately 5:45 a.m., he was again evaluated by Martin.

Martin noted that the laceration below Ornelas’s right eye had

reopened, and he had blood on his face. She further noted that

Ornelas was uncooperative, so she was unable to assess his

mouth, but he could move all his extremities and his head.

4 Ornelas testified at deposition that, while he had no memory of the majority of the events recounted here, he remembered being kneed in the back of the head and kicked in the side of his face in the hallway outside his jail cell.

11 Martin reported that Ornelas was highly agitated, and difficult

to evaluate.

Martin examined Ornelas again at approximately 6:45 a.m. He

was still in the restraint chair. At that time, she noted that

Ornelas was quiet, cooperative, and answering her questions.

Ornelas stated that he was “okay.” He was still wearing the

transport hood, but Martin recorded that she was able to observe

dried blood below his eye. She further recorded that he had

circulation, sensation, and movement in all extremities. Martin

did not assess his pupils.

Martin’s shift ended shortly after that 6:45 a.m.

examination. She was replaced by defendant HCDOC nurse Zina

Barnes.5 Martin advised Barnes that Ornelas was subject to an

IEA order, had been diagnosed with a head injury, had been

cleared for discharge by the Elliot, and had a history of mental

disorders. Martin advised that Ornelas had reported blurry

vision bilaterally, had contusions to his lips, and a laceration

under his right eye. She further advised that his gait was

5 Barnes was accompanied by HCDOC new employee and nurse, Corrine Foley, who she was training.

12 slightly unsteady, and he had complained of neck pain (but she

did not report Ornelas’s bilateral grip strength issues).

HCDOC policy requires that a prisoner in the restraint

chair be observed every 15-minutes by a CO, with visits from a

supervising sergeant every hour. HCDOC policy further requires

hourly medical checks. Sergeant Todd Gordon, who arrived for

his shift at HCDOC at 6:30 a.m., first checked on Ornelas at

approximately 7 a.m. Because of his concerns about Ornelas’s

condition, Gordon decided to increase both his checks, and

Ornelas’s medical checks, from hourly to every 15-minutes.

At approximately 7:45, Lieutenant Robbins conducted his

third check on Ornelas, and he observed that Ornelas was

muttering, his words were unintelligible, and he appeared to be

coming in and out of sleep. Nurse Barnes evaluated Ornelas at

7:45 a.m. as well. She recorded that he was intermittently

responsive to verbal questions, his head would droop, and, at

times, it took him a few moments to respond to questions.

Barnes was concerned, but she attributed Ornelas’s delayed

responses to the fact that he had not slept for several hours.

At approximately 8 a.m., Barnes reevaluated Ornelas. He

was able to state his name, and the correct year, but he had no

13 awareness of his surroundings, and believed he was in the

hospital. His head drooped, and his eyes closed for several

seconds during questioning. Ornelas’s blood pressure was

102/68, and his pulse was 64. Barnes noted that Ornelas’s left

eye was slightly reactive to light, and his right eye was non-

reactive. She observed that Ornelas’s right eye was bruised and

swollen.

At approximately 8:30 a.m., Ornelas was again evaluated by

Nurse Barnes, and, a few minutes later, by defendant William

Fuller, the HCDOC health services supervisor, who had just

arrived at HCDOC to begin his day. After observing Ornelas,

Fuller left to read the discharge instructions from the Elliot.

Barnes noted that Ornelas was still intermittently responsive to

verbal commands, his head continued to droop, and his eyes would

close at times. Ornelas’s blood pressure was 102/60, noted to

be faint, and his pulse was 82.

Fuller returned to check on Ornelas approximately 20

minutes later with Barnes, upon the request of the corrections

department, because they had decided to remove Ornelas from the

restraint chair. At that time, Ornelas was unresponsive,

despite several attempts, and “cool to touch.” His pupils were

pinpoint and nonreactive, and he was drooling blood. His blood

14 pressure was 95/56, and both pupils were unresponsive to light.

Fuller requested an ambulance, which arrived at approximately

9:10 a.m., and Ornelas was transported back to the Elliot

Hospital.

Upon arrival at the Elliot, Ornelas was examined by

emergency department physicians. He was unresponsive, unable to

answer questions, unable to hand grasp, had obvious trauma to

the right side of his head, right forehead periorbital, face

swelling, and cervical spondylosis. The emergency room

personnel did observe and record movement of his extremities.

Ornelas was sedated and intubated. Upon further examination,

Ornelas was found to be suffering from quadriplegia, unstable

C4-C5, and other cervical spinal cord injuries. Because of the

severity of his injuries, Ornelas was transported to

Massachusetts General Hospital, where he underwent emergency

surgery to stabilize his cervical fracture.

Upon discharge from Massachusetts General, Ornelas was

transferred to the Crotched Mountain Rehabilitation Facility in

New Hampshire, where he remained, permanently paralyzed, until

he was transferred to the Riverside Rest Home, in August of

2017.

15 Ornelas had filed a grievance and complaint, requesting

that the New Hampshire Attorney General’s office conduct an

investigation into his treatment while in custody. After

completing that investigation, the Attorney General’s office

concluded that there was insufficient evidence to bring any

criminal charges. In September of 2014, Ornelas filed this

civil action. The complaint, which has been amended several

times, asserts, inter alia, Section 1983 claims against the

Hillsborough County defendants based upon deliberate

indifference to his medical needs, as well as the use of

excessive force.

While being cared for at Riverside, Ornelas developed a

serious pressure ulcer, a common risk for paralyzed individuals.

That ulcer required surgery, which led to other complications,

and, eventually, Ornelas’s death, on August 29, 2019.

DISCUSSION

Section 1983 – Constitutionally Inadequate Medical Care

Plaintiff asserts Section 1983 claims, seeking damages for

“denial of constitutionally adequate medical care” against

Hillsborough County, and the HCDOC, HCDOC Superintendent David

Dionne, in his individual and official capacities, and Fuller,

in his official and individual capacities, as well as against

16 Robinson, Munyanya, Gardner, Gordon, Jordan, Slack, Boyer,

Robbins, Martin, Barnes, HCDOC Corrections Officer Eldin Medic,

and HCDOC Corrections Officer George Antillus.

“The Eighth Amendment, applied to the states through the

Fourteenth Amendment, protects incarcerated people from state

corrections officials' ‘deliberate indifference to serious

medical needs.’” Zingg v. Groblewski, 907 F.3d 630, 634 (1st

Cir. 2018) (quoting Feeney v. Corr. Med. Servs., Inc., 464 F.3d

158, 161-62 (1st Cir. 2006)) (further quotations omitted). An

Eighth Amendment “deliberate indifference” claim has two

components, one objective and one subjective. Id. at 634.

“[T]o prove an Eighth Amendment violation, a prisoner must

satisfy both of two prongs: (1) an objective prong that requires

proof of a serious medical need, and (2) a subjective prong that

mandates a showing of prison administrators' deliberate

indifference to that need.” Kosilek v. Spencer, 774 F.3d 63, 82

(1st Cir. 2014) (citation omitted).

Defendants make three arguments in support of their motion

for judgment on plaintiff’s claim against them for deliberate

indifference to Ornelas’s serious medical needs. First, they

say, plaintiff’s claims fail as a matter of law because

plaintiff has not sufficiently established either a serious

17 medical need, or that defendants acted with deliberate

indifference with respect to a serious medical need. Second,

with respect to plaintiff’s Monell claim against the County,

defendants contend that, even if it could be established that

defendants acted with deliberate difference, plaintiff cannot

establish the causation required to support a Monell claim.

Finally, defendants argue that, in any event, the individual

Hillsborough County defendants are entitled to qualified

immunity from liability.

1. “Serious Medical Need”

“[A] medical need is ‘serious’ if it is one that has been

diagnosed by a physician as mandating treatment, or one that is

so obvious that even a lay person would easily recognize the

necessity for a doctor's attention.” Leite v. Bergeron, 911

F.3d 47, 52 (1st Cir. 2018) (quoting Gaudreault v. Municipality

of Salem, 923 F.2d 203, 208 (1st Cir. 1990)). “A significant

risk of future harm that prison administrators fail to mitigate

may suffice under the objective prong.” Kosilek v. Spencer, 774

F.3d 63, 85–86 (1st Cir. 2014) (citing Helling v. McKinney, 509

U.S. 25, 35 (1993)) (further citations omitted).

Defendants seek to define Ornelas’s serious medical need

narrowly, limiting it to the cervical fracture he sustained,

18 which, defendants say, was the actual cause of his medical

condition. Defendants argue that Ornelas’s cervical fracture

cannot be considered a medical need “diagnosed by a physician as

mandating treating,” because the fracture was not diagnosed

until Ornelas returned to the Elliot from the jail, on October

17. While Ornelas was at the Valley Street Jail, defendants

say, he did not show symptoms of an obvious cervical injury.

They point out that Ornelas had just been discharged from the

hospital, following a medical examination that failed to

identify a cervical injury, and Ornelas’s ongoing symptoms were

not obviously related to a cervical fracture. Thus, defendants,

say, plaintiff has not shown that Ornelas suffered a “serious

medical need.”

Plaintiff responds that Ornelas’s serious medical needs

were hardly limited to the cervical fracture. Ornelas’s medical

needs were multiple, including his obvious mental health

debilitations and assorted self-destructive behaviors, as well

as his head trauma and neurological symptoms. Plaintiff points

out that, prior to leaving the Elliot, Ornelas was diagnosed

with, inter alia, “Bipolar 1 disorder, most recent episode (or

current) for manic, severe, specified as psychotic behavior,”

agitation, paranoia, psychosis, contusions of the face, scalp

and neck, and head trauma.” Ornelas’s symptoms, including

19 observable signs of a traumatic brain injury, were so obvious

that even a layperson would recognize them, argues plaintiff.6

The record suggests that Ornelas’s medical needs were fully

and understandably described by the Elliot Hospital in the

discharge instructions it provided to the HCDOC’s medical staff.

Medical diagnoses included bipolar disorder, psychosis, and

paranoia (which necessitated an IEA), as well as traumatic head

injury and neck contusions. Those diagnosed conditions qualify

as “serious medical needs” for purposes of plaintiff’s

deliberate indifference claim.

2. “Deliberate Indifference”

Defendants’ position relative to the subjective component

of plaintiff’s deliberate indifference claim is more

substantive. As our court of appeals recently stated:

A prison official is deliberately indifferent where she “knows of and disregards an excessive risk to inmate health or safety.” [Farmer v. Brennan, 511 U.S. 825, 827 (1994)]. This requirement is subjective. See Zingg v. Groblewski, 907 F.3d 630, 635 (1st Cir. 2018). Deliberate indifference is characterized by “obduracy and wantonness, not

6 The record contains evidence that Ornelas’s head trauma signs were obvious to several laypeople: several COs testified that they believed he had a concussion. See, e.g., Pl.’s Exh. 1A, Antillus Deposition at 53:1-4; see also Pl.’s Exh. 1A, Martineau Dep. at 71:1-12.

20 inadvertence or error in good faith.” Whitley v. Albers, 475 U.S. 312, 319, (1986). “To show such a state of mind, the plaintiff must provide evidence that the defendant had ‘actual knowledge of impending harm, easily preventable,’ and yet failed to take the steps that would have easily prevented that harm.” Zingg, 907 F.3d at 635 (quoting Watson v. Caton, 984 F.2d 537, 540 (1st Cir. 1993)). “[D]eliberate indifference entails something more than mere negligence,” but is “satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.” Calderón- Ortiz v. Laboy-Alvarado, 300 F.3d 60, 64 (1st Cir. 2002) (quoting Farmer, 511 U.S. at 835). “This standard, requiring an actual, subjective appreciation of risk, has been likened to the standard for determining criminal recklessness.” Giroux v. Somerset Cty., 178 F.3d 28, 32 (1st Cir. 1999).

Leite v. Bergeron, 911 F.3d 47, 52–53 (1st Cir. 2018).

A. HCDOC Medical Staff

Defendants argue that plaintiff’s deliberate indifference

claims amount to nothing more than a disagreement about what

medical care should have been provided to Ornelas. And,

defendants say, those disagreements do not rise to the level of

constitutional significance unless the care received was “so

clearly inadequate as to amount to a refusal to provide care.”

Def.’s Mem. in Supp. of Mot. for Summary Judgment at 16 (quoting

Toracco v. Maloney, 923 F.2d 231, 234 (1st Cir. 1991)).

Defendants point out that Ornelas was examined by HCDOC medical

staff eight times in the nine hours he was present at the Valley

Street Jail – his condition was actively monitored during his

21 entire stay. And, defendants say, while Ornelas was at Valley

Street, HCDOC’s medical staff exercised their best judgment in

providing him with appropriate medical care, based on the facts

available to them at the time.

At issue here is both the medical care Ornelas received at

HCDOC, and the judgment exercised by HCDOC medical staff with

respect to Ornelas’s needs. The law governing this area is

reasonably well-settled. Generally, courts are “reluctant to

second guess medical judgments and to constitutionalize claims

which sound in state tort law.” Layne v. Vinzant, 657 F.2d 468,

474 (1st Cir. 1981) (citation omitted). Not every claim of

“substandard care, malpractice, negligence, inadvertent failure

to provide care, [or] disagreement as to the appropriate course

of treatment” in a prison creates a constitutional cause of

action. Ruiz-Rosa v. Rullán, 485 F.3d 150, 156 (1st Cir. 2007).

“[M]isjudgment, even negligent misjudgment, is not deliberate

indifference.” Ramos v. Patnaude, 640 F.3d 485, 490 (1st Cir.

2011). Rather, to act, or fail to act, with deliberate

indifference, an “official must both be aware of facts from

which the inference could be drawn that a substantial risk of

serious harm exists, and [that official] must also draw the

inference.’” Leavitt, 645 F.3d at 497; (quoting Farmer v.

Brennan, 511 U.S. 825, 837 (1994)).

22 First, it cannot be disputed that the HCDOC defendants were

aware that Ornelas arrived with a diagnosed traumatic head

injury. The Elliot’s discharge instructions plainly inform of

the head injury and equally plainly state that, if Ornelas

experience[s] any of the following symptoms, he should

immediately be seen in an emergency room, doctor’s office or

clinic: increasing confusion or a change in personality; blood

or clear fluid coming out of the nose; “[y]ou do not know where

you are;” new problems with vision (blurry or double vision);

confused speech; and arm or leg weakness or loss of feeling.

Defs.’ Exh. 1C at p. 2. HCDOC medical staff observed Ornelas

exhibiting nearly every one of those symptoms during his time at

Valley Street.7 But, they failed to return Ornelas to the

7 Confusion: When asked to pull up his pants during Nurse Martin’s 12:30 examination, Ornelas instead pulled them down (see Pl.’s Exh. 1A, Martin Dep. at 176:13-17; Ornelas told Jordan that his safety smock was an umbrella (See Def.’s Exh. 2, Jordan Decl. at ¶ 5); Ornelas did not know where he was (he thought he was at the hospital, not the Valley Street Jail). See Pl.’s Exh. 1A, Barnes Dep. at 113:17-23.

Weakness: Martin noted Ornelas’s grip strength was weak at her 2:30 a.m. examination. See Def.’s Exh. 1, Martin Decl. at ¶ 9.

Numbness: Ornelas complained his left foot was numb during Martin’s 6:30 a.m. examination. See Pl.’s Exh. 1A, George Zarzycki Dep. at 74:20-75:11.

23 hospital (or emergency room, doctor’s office, or clinic) for

evaluation and treatment, as instructed. Nor was a physician

provided or consulted, with respect to Ornelas’s deteriorating

condition. It appears from the record that the HCDOC medical

staff ignored the Elliot’s discharge instructions, instructions

that plainly informed them of the complications that might arise

from a traumatic head injury, which conditions required a return

to the hospital, or prompt medical attention by a physician in

an emergency room, clinic, or doctor’s office.

A case with similar facts arose in California. Ortiz v.

City of Imperial, 884 F.2d 1312 (9th Cir. 1989) (per curiam).

There, the plaintiff, Ortiz, fell and struck his head while in

custody. Id. at 1313. Ortiz was taken to the emergency room

Nosebleeds: Blood was coming from Ornelas’s nose following the extrication from his cell. See Pl.’s Exh. 1A, Boyer Dep. at 87:20.

Vision problems: Ornelas complained of blurry vision. See Def.’s Exh. 1, Martin Decl. at ¶¶ 7, 9.

Pinpoint pupils: Martin observed pinpoint pupils at 12:30 a.m., and again at her 2:30 a.m. assessment. See Pl.’s Exh. 1A, Martin Dep. at 112:21-113:13; 140:13-15. See also Def.’s Exh. 1, Martin Decl. at ¶ 9. Barnes observed that one of Ornelas’s pupils was non-reactive to light at her 8:00 a.m. examination. See Pl.’s Exh. 1A, Barnes Dep. at 122:15-16.

Confused Speech: At his first check on Ornelas at 7:45 a.m., Robbins observed Ornelas muttering words that were unintelligible. See Pl’s Exh. 1A, Robbins Dep. at 25:19-23.

24 and diagnosed with a head injury. Id. He was discharged from

the hospital with a “patient after care sheet” that set forth

instructions similar to those prescribed by the Elliot for

Ornelas.

The parties agreed that Ortiz received medical care upon

his return to jail – “his medical charts show jail medical

personnel monitored him closely.” Id. At issue in the case

was, as here, “the significance of the care [Ortiz] received.”

Id. More specifically, “when Ortiz began to exhibit the

symptoms identified on the sheet, [the medical personnel caring

for Ortiz] did not call the emergency room or [the diagnosing

doctor.].” Id. Instead, they prescribed sedatives, which are

not appropriate for head injuries. “Two days after falling,

Ortiz was found unconscious with blood coming from his mouth.”

Id. He died ten days later, due to head trauma from his fall.

Noting that “access to medical staff is meaningless unless that

staff is competent and can render competent care,” the Court of

Appeals for the Ninth Circuit held:

Because the [medical personnel] knew of Ortiz’s head injury but disregarded evidence of complications to which they had been specifically alerted and, without an examination, prescribed sedatives that were contraindicated, we cannot say as a matter of law they were not deliberately indifferent to Ortiz’s medical needs.

25 Id. at 1314.

The record in this case straddles the line between apparent

medical incompetence and negligence on the one hand, and

deliberate indifference, on the other. Ornelas arrived at

Valley Street in a mentally unstable condition, with a diagnosed

traumatic brain injury, and, importantly, with clear, easily

understood medical directions to return him to the hospital

should any of the described symptoms be observed. A reasonable

jury may conclude that HCDOC medical staff knew, based on the

hospital’s discharge instructions, that Ornelas should be

returned to the hospital if he exhibited the described symptoms.

A jury might find that defendants knew, based on this record,

that Ornelas was experiencing virtually all of those symptoms.

And, a jury could conclude that the risk of very serious adverse

consequences resulting from failure to return Ornelas to the

hospital were obvious, even to a layperson, but especially to

any trained medical professional.

A jury could well find on this record, construing the

evidence in plaintiff’s favor, that defendants were aware of

facts giving rise to an inference of substantial risk of serious

harm to Ornelas, and that they actually drew such an inference.

A jury might also find that merely conducting routine periodic

26 observations of Ornelas, and documenting those observations,

without taking even the most rudimentary treatment steps to

address his fast-deteriorating conditions – like following the

plain and straightforward directions to return him to the

hospital if the very conditions being observed and documented

occurred – amounted to deliberate indifference to his serious

medical needs.

That jail medical staff followed established protocols

regarding observation and documentation is not enough to avoid

liability. The purpose of such protocols is not merely to

perform the observations and record them. The purpose is to

ensure that critical information is obtained in a timely manner

so that necessary action can be taken to avoid serious injury or

death. Here, a jury could reasonably conclude that, while jail

officials generally implemented the jail’s observational and

monitoring protocols, they had no apparent intention to act on

the information acquired to address Ornelas’s deteriorating

condition and his increasingly desperate medical needs. There

is no evidence in this record suggesting any legitimate reason

for the failure to return Ornelas to the hospital when he first

manifested the described symptoms warranting such action, and

medical staff observed and recorded those manifestations.

Failure to act under such circumstances could be found by a jury

27 to amount to deliberate indifference; a jury might well conclude

that officials did have a subjective appreciation of the

substantial risk posed by merely observing and doing nothing in

response to the symptoms observed, despite plain directions to

act if such symptoms were observed given by the discharging

hospital only hours earlier. Such conduct can be found to

amount to a knowing refusal to provide necessary care. That is,

the care actually received could be found by a jury to be “so

clearly inadequate as to amount to a refusal to provide

essential care.” Toracco, 923 F.2d at 234 (quotation omitted).

Construing the facts and all reasonable inferences in Ornelas’s

favor, it cannot be said that defendants have established their

entitlement to judgment as a matter of law.

The record also includes evidence from which a jury could

conclude that HCDOC’s abject failure to follow the Elliot’s

medical discharge directions caused or contributed to cause

Ornelas’s paralysis and related death. Several of plaintiff’s

experts opined on the issue. For example, emergency physician

Dr. David Milzman stated:

Mr. Ornelas’s condition was left untreated and even exacerbated when he struck his head against his cell door in a confused and agitated state, was forcibly extracted from his cell, physically restrained, had his head and neck forcibly rotated during examinations, and left unattended with apparent

28 disregard to his worsening physical and mental condition. . . . [The] unsupported nature of the restraint used on Mr. Ornelas as well as the position he was placed in, without proper monitoring and the lack of appropriate intervention absolutely led to his worsening injury . . . In addition, allowing his blood pressure to drop and keeping him upright[,] he suffered some hypoxic brain injury as his cerebral perfusion was inadequate to meet the metabolic needs of his brain.

Pl.’s Exh. 5 at p. 9. Dr. Peter Whang, an orthopedic surgeon

with a specialty in spinal surgery, similarly opined: “It is my

opinion that the events at the Valley Street Jail, particularly

but not limited to his striking his head against the cell door,

physical altercation with corrections officers, and the forceful

manipulation of his head back and forth contributed to a

worsening of Mr. Ornelas’s cervical fracture with eventual

displacement resulting in a spinal cord injury.” Pl.’s Exh. 6

at p. 9.

Defendants challenge use of that expert opinion evidence,

for purposes of resolving summary judgment, on grounds that

plaintiff’s counsel has not bothered to present it in an

admissible form (i.e., supported by an affidavit). The point is

well taken – counsel is obligated to do so. No doubt at trial

the witnesses will testify under oath or by deposition properly

offered.

29 The expert opinions are not critical here, however, for the

issue now is not the specific nature and degree of harm caused

by the failure to address Ornelas’s serious medical needs, but

whether the record justifies entry of summary judgment in

defendants’ favor, as a matter of law, on that claim. It does

not. The record, as it stands, and ignoring the challenged

reports, discloses genuine disputes of material fact regarding

whether jail medical officials were deliberately indifferent to

Ornelas’s serious medical needs, and the extent of his resulting

injuries. That his medical conditions deteriorated

significantly during the time after he first displayed symptoms

that arguably mandated a return to the hospital or provision of

a competent physician’s care, and his eventual return to the

hospital, cannot be denied. That physical deterioration and its

attendant physical suffering, is itself sufficient injury,

causally derived from the failure to act, to support plaintiff’s

Defendants conclude by arguing that, in the end, medical

staff should be entitled to qualified immunity from any

liability. But that possible entitlement is inseparably bound

up in factual determinations that must necessarily be made by

the jury. It is clearly established than an officer’s

deliberate indifference to a prisoner’s serious medical needs

30 resulting in harm gives rise to personal liability under Section

1983. See Gaudreault v. Municipality of Salem, Mass., 923 F.2d

203, 208 (1st Cir. 1990) (“The Eighth Amendment . . . imposes a

duty to attend to a prisoner's serious medical needs. Government

officials violate the Constitution if they exhibit deliberate

indifference to such needs.”) (internal quotations and citations

omitted). Whether these defendants were deliberately

indifferent turns on objective and subjective facts – genuinely

disputed material facts – with respect to the inferences arising

from all the circumstances, and whether defendants drew

inferences satisfying the subjective element of the cause of

action. If those disputed factual issues are resolved against

defendants, they are not entitled to qualified immunity, for

they will have been found to have deliberately denied

plaintiff’s decedent minimally adequate medical care for his

serious needs. If resolved in favor of defendants, there will

be no need for qualified immunity as there will be no liability.

Defendants’ motion for summary judgment on plaintiff’s

claims based on alleged deliberate indifference to Ornelas’s

serious medical needs is denied as to Martin, Barnes and Fuller,

because genuine disputes as to material facts preclude the entry

of summary judgment as a matter of law.

31 B. HCDOC Non-Medical Staff8

Whether the HCDOC non-medical staff were deliberately

indifferent requires a separate analysis, which counsels a

different result. “Any inquiry into the reasonableness of the

prison officials' actions ‘incorporates due regard for prison

officials' unenviable task of keeping dangerous men in safe

custody under humane conditions.’” Burrell v. Hampshire Cty.,

307 F.3d 1, 8 (1st Cir. 2002) (quoting Farmer, 511 U.S. at 845).

Plaintiff fails to point to evidence in the record tending

to show that any HCDOC non-medical staff read, or were obliged

to read, the Elliot Hospital’s discharge instructions, much less

were required to, but failed to, comply with them. Instead,

plaintiff broadly argues that the COs “did nothing” to help

Ornelas receive adequate medical care. But the jail had

qualified medical staff assigned to provide medical care, and,

8 Plaintiff asserts a supervisory liability claim against HCDOC Superintendent Dionne in his individual capacity. While defendants argue that plaintiff’s claims against Dionne in his official capacity should be dismissed, their briefing does not include any meaningful discussion of plaintiff’s claim against Dionne in his individual capacity. To that extent, the motion is denied without prejudice. While it is doubtful that this record will support an individual or official claim against Superintendent Dionne, absent developed argument by either side, the court declines to consider the merits of plaintiff’s supervisory liability claim against Superintendent Dionne at this time.

32 from the officers’ position, medical staff no doubt appeared to

be carrying out their responsibilities.

The record evidence cannot support the claim, in any event.

For example, Jordan, Munyanya, Robinson, and Gardner intervened

to extricate Ornelas from his cell, and restrain him, to stop

him from injuring himself any further. Before removing Ornelas

from his cell, Boyer summoned Martin, so that HCDOC medical

staff would be present during the extrication. And, while

Ornelas was restrained, Gordon decided medical checks should be

conducted more frequently because of his concerns regarding

Ornelas’s condition. Finally, as previously discussed, HCDOC’s

non-medical staff all reasonably relied on the fact that

Ornelas’s condition was being frequently evaluated by HCDOC’s

medical staff during the entirety of his time at Valley Street.

See Schultz v. Houle, No. 16-CV-11774-PBS, 2018 WL 1188753, at

*6 (D. Mass. Mar. 5, 2018) (correctional officers “were entitled

to rely on . . . medical guidance and it moreover demonstrates

that they did not act with deliberate indifference to the

plaintiff’s condition.”) (citing cases).

Given the current record, even construing all facts and

reasonable inferences in the plaintiff’s favor, it cannot be

said that HCDOC’s non-medical staff acted, under the

33 circumstances, with deliberate indifference to Ornelas’s serious

medical needs. See Burrell, 307 F.3d at 8 (prison officials

“cannot be deliberately indifferent if they responded reasonably

to the risk, even if the harm ultimately was not avoided.”).

For those reasons, Robinson, Munyanya, Gardner, Gordon, Jordan,

Slack, Medic, Antillus, Boyer, and Robbins are entitled to

summary judgment on plaintiff’s deliberate indifference claims.

3. Municipal Liability

Plaintiff has asserted a municipal liability claim against

Hillsborough County, HCDOC, HCDOC Superintendent David Dionne,

in his official capacity, and Fuller, in his official capacity

as Health Services Supervisor of the Valley Street Jail. 9

Defendants contend that plaintiff’s deliberate indifference

claims against Hillsborough County and the HCDOC should be

dismissed, because plaintiff cannot establish the requisite

9 Defendants correctly argue that plaintiff’s claims against David Dionne and William Fuller “in their official capacity” are equivalent to a suit against their employer, Hillsborough County, and HCDOC. Therefore, defendants say, those claims are redundant and should be dismissed. The court agrees. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“an official capacity suit is, in all respects other than name, to be treated as a suit against the entity”); see also id. at 167 n.14 (“There is no longer a need to bring official-capacity actions against local government officials, for under Monell, local government units can be sued directly for damages and injunctive or declaratory relief.”).

34 causation – that Ornelas’s injury was caused by a policy,

practice and/or custom maintained by the County and the DOC.

It is well established that a municipal entity cannot be

held liable under 42 U.S.C. § 1983 on a theory of respondeat

superior or vicarious liability; the municipality itself must

proximately cause the constitutional injury, through the

promulgation (or tacit approval) of a municipal policy or

custom. See City of Canton, Ohio v. Harris, 489 U.S. 378, 385

(1989). See generally Monell v. Dept. of Social Services of

City of New York, 436 U.S. 658 (1978). A Section 1983 plaintiff

must demonstrate that the challenged municipal custom or policy

was the “moving force” behind the constitutional injuries at

issue.” Board of County Commissioners of Bryan County v. Brown,

20 U.S. 397, 404 (1997). In other words, plaintiff must

establish “that the municipal action was taken with the

requisite degree of culpability and must demonstrate a direct

causal link between the municipal action and the deprivation of

federal rights.” Board of County Commissioners of Bryan County

v. Brown, 520 U.S. at 404 (emphasis in original).

Plaintiff first argues that HCDOC’s policy of having

corrections officers “flag” an inmate during booking for

screening by medical staff is problematic, since corrections

35 officers are not qualified to make those determinations. One

problem with that argument is that Ornelas was properly flagged

and evaluated by Martin during the booking process. A mental

health screening was performed, and Martin subsequently

contacted Dr. Harris, the on-call psychologist for HCDOC.

Ornelas was then placed on “special watch.” Thus, plaintiffs

cannot establish that HCDOC’s policy caused Ornelas’s injury.

Plaintiff’s contentions related to the HCDOC’s policies

regarding inmates under IEA orders, and the restraint chair, are

similarly unpersuasive. Such policies may have been implicated

in the way Ornelas was dealt with while at the jail, but

plaintiff points to no competent evidence tending to show that

those policies, as polices, operated as the “moving force”

behind the injuries. The gravamen of plaintiff’s complaint is

that corrections staff were deliberately indifferent to

Ornelas’s medical needs.

Plaintiff also argues that HCDOC’s training of the

corrections officers and medical staff was inadequate.

Specifically, plaintiff points to training inconsistencies

relating to inmates with IEA orders, and inmates demonstrating

symptoms of mental illness. While plaintiff rightly concedes

that a “pattern of similar constitutional violations by

untrained employees is ‘ordinarily necessary’ to demonstrate

36 deliberate indifference for purposes of failure to train,” she

argues that such evidence is not necessary here because the

consequences of failure to provide such training are “patently

obvious.” Pl.’s Opp. to Mem. in Supp. of Summary Judgment at 23

(quoting Connick v Thompson, 563 U.S. 51, 62 (2011)).

In Connick v. Thompson, 563 U.S. at 62, the Supreme Court

stated, “[w]ithout notice that a course of training is deficient

in a particular respect, decisionmakers can hardly be said to

have deliberately chosen a training program that will cause

violations of constitutional rights.” “[S]howing merely that

additional training would have been helpful in making difficult

decisions does not establish municipal liability.” Id. at 68.

“Proving that an injury or accident could have been avoided if

an employee had had better or more training, sufficient to equip

him to avoid the particular injury-causing conduct will not

suffice.” Id. (citations and internal modifications omitted).

Instead, a plaintiff must “show that it was so predictable that

failing to train . . . amounted to conscious disregard” for

Ornelas’s constitutional rights. Id. at 71 (emphases in

original).

Gray v. Cummings, 917 F.3d 1, 14 (1st Cir. 2019), is

instructive. In Gray, plaintiff argued that her constitutional

37 rights were violated by the town’s deficient training of its

police officers “with respect to proper protocol for interacting

with persons suffering from mental illness.” While plaintiff

was unable to show a pattern of similar constitutional

violations, “[i]n an effort to close [that] gap,” she offered

“expert testimony about appropriate police practices for

interacting with persons with disabilities,” arguing that,

“coupled with the facts of the encounter,” there were questions

of material fact as to whether the Town failed to properly train

its employees. Id.

Our court of appeals was unpersuaded:

[T]hese assertions are insufficient to support a failure-to-train claim. It is not enough to show that the Town's training regimen was faulty; [plaintiff] must also show that the Town knew or had reason to believe that such a regimen had unconstitutional effects. [Plaintiff] has tendered no evidence of past violations sufficient to put the Town on notice of such effects. Given this yawning gap in her proof, [plaintiff] has not made out a genuine issue of material fact as to whether the Town was deliberately indifferent to the risk of the alleged constitutional violation.

Id. at 14. So too, here. Plaintiff fails to provide a rational

basis upon which to distinguish the facts at issue here from

those in Gray. What happened to Ornelas is not “so obviously’

the consequence of a systemic lack of training, as opposed to

38 the decisions of individual” HCDOC employees. Hill v. Walsh,

884 F.3d 16, 24 (1st Cir. 2018).

Accordingly, defendants are entitled to summary judgment on

plaintiff’s municipal liability claim.

Section 1983 – Excessive Force

Plaintiff’s Section 1983 excessive force claim is asserted

against Officers Robinson, Gardner, and Munyanya. To establish

an excessive force claim, “a pretrial detainee must show . . .

that the force purposely or knowingly used against him was

objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S.

389, 396-97 (2015).

[C]onsiderations such as the following may bear on the reasonableness or unreasonableness of the force used: the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.

Id. at 397.

Defendants argue that plaintiff’s excessive force claim

fails as a matter of law because the force used by HCDOC in

removing Ornelas from the cell and placing him in the restraint

39 chair was reasonable and appropriate, given the circumstances.

Plaintiff disagrees, contending that the corrections officers’

actions would shock the conscience of any reasonable observer.

Plaintiff asserts that Ornelas was kicked in the head while

at the jail, presumably by corrections officers. To be clear,

if Ornelas was intentionally kicked in the head by one of the

HCDOC corrections officers while defenseless at any point during

his stay at Valley Street, that action would constitute

“excessive force.” But, this record does not include any

competent evidence that Ornelas was, in fact, kicked.

Plaintiff speculates that Ornelas must have been kicked in

the head, but offers only unsubstantiated rumors, as well as

Ornelas’s testimony, which is shown by other evidence in the

record to be unarguably incorrect. Ornelas testified at

deposition that he was kneed in the back of the head and kicked

in the side of his face while at the jail. See Def.’s Exh. 7,

Ornelas Dep. at 50:15-21. Ornelas said these events occurred

outside his cell. Id. at 77:8-17. But, that testimony is

effectively contradicted by the HCDOC surveillance cameras’

video recordings, which do not show Ornelas being kicked or

kneed in the head, as claimed. See Defs.’ Exhibit 8, Martineau

Decl. at ¶¶ 4-6. Plaintiff does not dispute the authenticity of

40 that video evidence. See O'Brien v. Town of Bellingham, 943

F.3d 514, 531 (1st Cir. 2019) (“when the record contains video

evidence, the authenticity of which is not challenged, the court

should ordinarily view the facts ‘in the light depicted by the

video evidence.’”) (quoting Underwood v. Barrett, 924 F.3d 19,

20 (1st Cir. 2019) (per curiam)).

Perhaps because the record is lacking competent evidence

that Ornelas was purposefully kicked in the head by corrections

officers, plaintiff instead focuses her excessive force claim

largely on: (1) the methods used to extract Ornelas from his

cell; and (2) use of the restraint chair.

(1) Extraction of Ornelas from his Cell

Plaintiff of course concedes that HCDOC’s intervention was

necessary to keep Ornelas safe once he began banging his head

into the metal cell door. But, she says, given Ornelas’s

existing injuries and mental health conditions, the amount of

force used by the defendants to extract Ornelas from his cell

was excessive. Plaintiff relies on Gray v. Cummings, 917 F.3d

at 11, where our court of appeals instructed: “the level of

force that is constitutionally permissible in dealing with a

mentally ill person ‘differs both in degree and in kind from the

use of force that would be justified against a person who has

41 committed a crime or who poses a threat to the community.’”

(quoting Bryan v. MacPherson, 630 F.3d 805, 829 (9th Cir.

2010)).

However, plaintiff fails to point to competent evidence in

the record suggesting that Ornelas’s mental illness was not

taken into account when determining the amount of force

reasonably necessary to stop him from hurting himself. Prior to

physically stopping his self-destructive behavior and removing

Ornelas from his cell, the COs first attempted multiple de-

escalation techniques. Jordan made several efforts to calm

Ornelas down, and to persuade him to comply with instructions by

speaking with him calmly. See, e.g, Def.’s Exh. 2, Jordan Decl.

at ¶¶ 5-12. See also Pl.s’ Exh. 1A, Jordon Decl. 27:9-12 (“I

guess we probably tried for a good 15, 20 minutes or so to try

to get him to calm down and he kind of just kept stepping up

what he was doing.”). When Jordan’s efforts were unsuccessful,

he used pepper spray three times. Ornelas remained belligerent

and aggressive. See Pl.’s Exh. 1A, Munyanya Dep. 46:13-19 (Q:

“And then you saw Sergeant Jordan call for the door to be

partially opened and then he was sprayed [with OC]?” A: “Yes.”

Q: “Did the spray have any effect on him, to your observation?”

A: “No.”) see also Pl.’s Exh. 1A, Jordon Decl. 27:13-20 (“I had

sprayed him with . . . pepper spray. He basically wiped it off

42 with his smock, didn’t really seem to have much effect on him.

He didn’t really seem to be bothered by it at all.”); id.,

Gardner Dep. 35:4-14.

As for the extraction itself, given the circumstances –

Ornelas’s belligerence; his leap off the top bunk, naked and

slippery, towards the COs; the small size of the cell and

crowded conditions; the slippery, urine-soaked floor; and that

Ornelas injured one of the COs during the extraction – it is

unclear exactly what “additional precautions” plaintiff would

have had the COs take. The facts before the court suggest the

type and amount of force used by Gardner, Munyanya, and Robinson

to remove Ornelas from his cell was not more than necessary to

secure and restrain Ornelas, stop him from hurting himself, and

remove him from his cell.

Plaintiff contends that the correctional officers gave

inconsistent testimony regarding the extraction, thus creating a

genuine issue of fact. But, plaintiff fails to identify those

inconsistencies in her briefing, and it is not obvious from the

record what testimony she views as inconsistent. The testimony

of Robinson, Gardner and Munyanya, their reports, and their

statements to the New Hampshire State Police all appear to be

materially consistent, and supported by the testimony,

43 statements, and reports of Sergeant Jordan, as well as other

HCDOC employees present at the extrication. To the extent the

testimony is not identical, those minor variations are not only

immaterial, they are understandable, given the somewhat chaotic

conditions of the extraction.

(2) Use of the Restraint Chair

Plaintiff also asserts that the use of the restraint chair

amounted to excessive force under the circumstances. Plaintiff

relies on Miranda-Rivera v. Roledo-Davila, 813 F.3d 65 (1st Cir.

2016), where police officers continued to use force on a

detainee, even after he was restrained and posed no physical

threat to himself or the corrections officers. Plaintiff says

the HCDOC officers behaved similarly in this case by leaving

Ornelas in the restraint chair for several hours, despite “ample

evidence that [Ornelas], once extracted from cell did not pose a

danger to himself or others.” Pl.’s Opp. to Mot. for Summary

Judgment at 31. Plaintiff contends that, given Ornelas’s mental

state and condition, the use of the restraint chair was itself

excessive, and keeping him in the chair violated his

constitutional rights.10

10 The decision to use the restraint chair was made by Lieutenant Boyer, who is not named in plaintiff’s excessive force claim. See Def.’s Exh. 2, Jordan Decl. ¶ 18 (“At this point, Lieutenant Boyer directed that Mr. Ornelas be restrained

44 Given the circumstances, defendants’ use of the restraint

chair did not violate Ornelas’s constitutional rights. Prior to

being restrained, the defendants reasonably perceived that

Ornelas posed an obvious and serious danger to himself and

others. Ornelas was purposefully and repeatedly striking his

cell door with his head; he was spreading water and urine on his

cell floor, increasing the chances that he would slip and fall;

he was uncooperative, and belligerent.11 Given such

and placed in the restraint chair for his and the staff’s safety and protection.”) See also Pl.’s Exh. 1, Statement of Material Facts at ¶ 346. She stated, “I was concerned about him hitting his head. He already had a head injury, and I couldn’t allow him to continue to hurt himself[,] so I gave Sergeant Jordan the okay to put him in the restraint chair.” Pl.’s Exh. 1A, Boyer Dep. at 62:10-12.

11 Jordan, Munyanya, Robinson, and Gardner all testified that they thought Ornelas would further injure himself.

Jordan: he started smashing the door, he started kicking the door, punching the door and started ramming the door with his head which is, obviously a concern for us because he clearly had some injuries prior to coming in. . . . Any time somebody’s striking . . . a 400-pound door with their head, it’s a concern and he already had some head injuries. We had to get him out. The floor was soaked . . . it had urine and water, toilet water all over the place. He started kind of pacing back and forth around the cell which, again, you know it’s pretty slick in there so that was a concern, too.

Pl.’s Exh. 1A, Jordan Dep. at 26:11-15 – 27:5.

Munyanya: he was throwing water all over the floor, very harmful to himself. I think he was harming himself. I think

45 circumstances, HCDOC’s use of the restraint chair to protect

Ornelas from harming himself further, or physically harming

staff, was reasonable, and cannot be considered excessive force.

Of course, plaintiff is correct that Ornelas posed no

immediate threat to anyone, including himself, while restrained

in the chair. But, there is no evidence that the defendants

used any physical force against Ornelas once he was restrained,

beyond the restraint itself. Once strapped in the chair,

Ornelas was immediately medically evaluated by Martin (who was

also present at Ornelas’s extraction from his cell). That

medical evaluation required that the COs turn Ornelas’s head,

but there is no evidence that the amount of force they used to

do so was unreasonable, given their knowledge of his current

he was hitting his head on the door or punching himself and jumping on top of the bunk.

Pl.’s Exh. 1A, Munyanya Dep. at 24:1-5.

Gardner: Sergeant Jordan advised me that [Ornelas] was banging his head on the door and that we were going to have to go in to restrain him to keep him safe.”

Pl.’s Exh. 1A, Gardner Dep. at 53:18-21.

Q: [A]t that point in time, one of your major concerns was that this man could hurt himself, correct?

Robinson: that’s right.

Pl.’s Exh. 1A, Robinson Dep. at 56:1-4.

46 condition, and certainly no evidence that turning Ornelas’s head

was done “maliciously and sadistically . . . to cause harm.”

Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quotations omitted).

Ornelas’s condition while in the chair was regularly and

frequently monitored, both by the COs, and their supervisors, as

well as by HCDOC’s medical staff, who regularly examined and

evaluated him.

To the extent that plaintiff is arguing that the amount of

time that Ornelas remained in the chair constituted “excessive

force,” HCDOC policy required that an inmate in the restraint

chair remain compliant for an hour before being released from

the chair. See Pl.’s Exh. 1A, Martineau Dep. at 154:5-155:16.

As Kingsley, 135 S. Ct. at 2472, instructs, courts should

account for the “legitimate interests that stem from [the

government’s] need to manage the facility in which the

individual is detained, appropriately deferring to ‘policies and

practices that in th[e] judgment’ of jail officials ‘are needed

to preserve internal order and discipline and to maintain

institutional security.’” (quoting Bell v. Wolfish, 441 U.S.

520, 540, 547 (1979)).

Finally, while restrained in the chair, Ornelas continued

to be verbally aggressive, and to threaten the officers. He

47 stated that he intended to “fuck shit up when I get out,” told

COs to “go fuck yourself,” stated “fuck all you COs,” and

repeatedly responded “no,” when asked whether he would be

compliant. See Def.’s Exh. 2, Jordon Decl., at Exh A.; see also

Pl.’s Exh. 1A, Munyanya Dep. at 69:8-18, 77:18-78:5; Pl.’s Exh.

1A, Slack Dep. at 76:3-12; Pl.’s Exh. 1A, Jordon Dep. at 56:17-

57:8; Pl.’s Exh. 1A, Robinson Dep. at 80:23-81:1. From those

statements, it was not unreasonable for these defendants to

conclude that Ornelas would continue to pose a danger to himself

or to others if released, until it was determined that his

medical condition had deteriorated and he required medical

attention by staff, and no longer posed a threat of injury.

Ornelas’s restraint in the chair, itself, did not amount to

excessive force under the circumstances disclosed by the record.

The extended period of restraint may have been unjustified

for another reason, i.e., because he should have been promptly

returned to the hospital, but not for the reasons argued by

plaintiff. Accordingly, for the above reasons, defendants are

entitled to summary judgment on plaintiff’s Section 1983

excessive force claim.

CONCLUSION

The existence of genuinely disputed material facts

precludes the entry of summary judgment in favor of the

48 Hillsborough County defendants on plaintiff’s Section 1983

claims for deliberate indifference to Ornelas’s serious medical

needs, with respect to defendants Martin, Barnes, and Fuller.

Accordingly, defendants’ motion for partial summary judgment on

those claims brought against Martin, Barnes, and Fuller, and,

for now, against Superintendent Dionne (document no. 131), is

DENIED. The Hillsborough County defendants’ motion for partial

summary judgment (document no. 131) is otherwise GRANTED, as set

forth herein.

The Elliot Hospital’s motion for partial summary judgment

on plaintiff’s claim brought under the provisions of N.H. Rev.

Stat. Ann. Ch. 135-C (document no. 134) is DENIED as moot. The

Elliot Hospital’s motion for judgment on the pleadings as to

plaintiff’s claims for enhanced compensatory and punitive

damages (document no. 133) is GRANTED, without objection by

plaintiff.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

July 15, 2020

cc: Counsel of Record