Brian Smith v. Grafton County

• Court: District Court, D. New Hampshire
• Decided: December 5, 1996
• Docket: cv-95-35-B
• Status: Published

Opinion

Brian Smith v . Grafton County cv-95-35-B 12/5/96

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Brian S . Smith

v. Civil No. 95-35-B

Grafton County Correctional Facility, et a l .

O R D E R

Plaintiff contends that the defendants violated his

Fourteenth Amendment right to due process by failing to protect

him from injury by a fellow inmate. Although plaintiff was a

pretrial detainee when his claim arose, his claim is subject to

the familiar deliberate indifference standard that also applies

to Eighth Amendment claims. See Mahan v . Plymouth County House

of Corrections, 64 F.3d 1 4 , 17 (1st Cir. 1995); Elliott v .

Cheshire County, New Hampshire, 940 F.2d 7 , 10 n.2 (1st Cir.

1991). Deliberate indifference in the Eighth Amendment context

requires subjective recklessness so that a prison official will

be held liable only if the official “knows of and disregards an excessive risk to inmate health or safety; the official must both

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

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

the inference.” Farmer v . Brennan, 114 S . C t . 1970, 1979 (1994).

Defendants assert in their summary judgment motion that

plaintiff cannot prove defendants acted with deliberate indifference. In responding to the motion, plaintiff must “set

forth specific facts showing that there is a genuine issue for

trial.” Fed. R. Civ. P. 5 6 . This burden cannot be satisfied

“unless there is sufficient evidence [in the record] favoring the

non-moving party for a jury to return a verdict for that party.”

Anderson v . Liberty Lobby, Inc., 477 U.S. 2 4 2 , 249

(1986)(citations omitted). Moreover, plaintiff cannot merely

rely on “conclusory allegations, improbable inferences, and

unsupported speculation.” Coll v . PB Diagnostic Systems, Inc.,

50 F.3d 1115, 1121 (1st Cir. 1995) (quoting Medina-Munoz v . R.J.

Reynolds Tobacco Co., 896 F.2d 5 , 8 (1st Cir. 1990)). Instead,

plaintiff must base his opposition to the motion on affidavits or

other documents that are based on personal knowledge and that set

forth facts that would be admissible at trial. Fed. R. Civ. P.

5 6 ; Garside v . Osco Drug, Inc., 895 F.2d 4 6 , 49 (1st Cir. 1990).

After determining that plaintiff’s initial response to the

summary judgment motion was inadequate, I instructed plaintiff to

file a supplemental response demonstrating that “a triable case

exists with respect to plaintiff’s claims that defendants knew of

and disregarded a substantial risk that plaintiff would be

assaulted by his fellow inmate.” Order dated June 1 3 , 1996.

Accepting the truth of plaintiff’s properly supported

factual allegations and construing his submissions in the light

most favorable to him, plaintiff nevertheless fails to

sufficiently support his claim that the defendants acted with

-2- deliberate indifference. The full extent of plaintiff’s submissions consists of his affidavit. This submission states that a few days before he was injured by inmate Dumont, correctional officers had to “continually run back into the cellblock to investigate and break up inmate Dumont and [the plaintiff] . . . . approximately 20 to 30 times in a three or four day period of time.” It also asserts that the plaintiff informed Officer Dale Paronto about the “physical and mental attacks from inmate Dumont” after these altercations but before the injury and that Paronto informed the plaintiff that he would have to personally witness an attack before he could do anything about i t . However, plaintiff has provided no supporting details concerning the 20 to 30 altercations that he alleges. There is no indication that these “altercations” were serious, caused any injuries, or were physical as opposed to verbal disagreements. On the contrary, it is undisputed that Officer Paronto considered them to be “bickering” of the type witnessed every day in a cellblock. Under these circumstances, plaintiff’s conclusory allegations are insufficient to support his claim that defendants were aware of and disregarded a substantial risk that plaintiff was in imminent danger of serious harm.1 Accordingly,

1 Plaintiff has included the Grafton County Correctional Facility and other correctional administrators as defendants on the theory of supervisory liability. However, supervisory liability cannot attach unless the supervisor's actions "le[a]d inexorably to [a] constitutional violation." Hegarty v . Somerset County, 53 F.3d 1367, 1380 (1st Cir.) (citing Febus-Rodriguez v . Betancourt-Lebron, 14 F.3d 8 7 , 92 (1st Cir. 1994 ) ) , cert. denied, 116 S . C t . 675 (1995). As the plaintiff has failed to

-3- defendants’ motion for summary judgment (document n o . 43) is

granted.

SO ORDERED.

Paul Barbadoro United States District Judge

December 5 , 1996 cc: Brian Smith, pro se David Slawsky, Esq.

establish an underlying constitutional violation, his supervisory liability claims fail.

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