Cabrera v . LeVierge, et a l . 07-CV-040-SM 08/06/08 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Anthony Cabrera, Plaintiff
v. Civil N o . 07-cv-40-SM Opinion N o . 2008 DNH 138 Ryan LeVierge, individually; Matthew Poulicakos, individually; and James M . O’Mara, Jr., individually and as Superintendent of the Hillsborough County Department of Corrections, Defendants
O R D E R
Anthony Cabrera sues in four counts,1 seeking damages based
upon allegations that Sgt. Ryan LeVierge, a correctional officer
at the Hillsborough County House of Corrections (“HCHC”)
unnecessarily punched and kicked him, while he was in handcuffs
and leg restraints, and that Hillsborough County Department of
Corrections Superintendent James O’Mara negligently supervised
and retained Sgt. LeVierge. Before the court is defendants’
motion for summary judgment, to which plaintiff objects in part.2
1 Count V , a federal claim asserting that plaintiff was subjected to unconstitutional conditions of confinement, was dismissed by order dated February 2 5 , 2008. Accordingly, defendants’ motion for summary judgment on Count V is moot. 2 Plaintiff assents to entry of judgment in favor of defendant Matthew Poulicakos. For the reasons given, defendants’ motion is granted as to Count
I V but is otherwise denied.
The Legal Standard
Summary judgment is appropriate when the record reveals “no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law.” FED. R . CIV. P .
56(c). To defeat a motion for summary judgment, “the non-moving
party ‘must set forth specific facts showing that a genuine issue
of material fact exists as to each issue upon which [he] would
bear the ultimate burden of proof at trial.’” Torres-Negron v .
Merck & Co., 488 F.3d 3 4 , 39 (1st Cir. 2007) (quoting Santiago-
Ramos v . Centennial P . R . Wireless Corp., 217 F.3d 4 6 , 53 (1st
Cir. 2000)). To make that showing, “the non-moving party may not
rest merely upon the allegations or denials in its pleading.”
Torres-Negron, 488 F.3d at 39 (citation omitted). When ruling on
a party’s motion for summary judgment, the court must view the
facts in the light most favorable to the nonmoving party and draw
all reasonable inferences in that party’s favor. See id. (citing
Rodríguez v . SmithKline Beecham, 224 F.3d 1 , 5 (1st Cir. 2000)).
Background
Unless otherwise noted, the following facts are undisputed.
Anthony Cabrera was a pre-trial detainee at the H C H C from
2 December 2 6 , 2005, through January 1 0 , 2006. Shortly after
Cabrera was booked into the jail, Sgt. LeVierge and Officer
Poulicakos escorted him from the booking area to a cell in the
medical unit. While Cabrera was in the cell, he was asked to
kneel facing the back wall, to facilitate an unclothed contraband
search. While facing the wall, he turned his head to address the
officers, and LeVierge pushed his head against the wall. When
plaintiff subsequently turned his upper body toward the officers,
LeVierge took him to the floor and placed him in a prone
position. Cabrera alleges that LeVierge punched and kicked him
in the head and body while he was wearing handcuffs and leg
restraints. Defendants contend that Cabrera was initially
unrestrained, that they placed him in restraints only after they
took him to the floor, and that they used only enough force to
place him in restraints.
After the incident, Cabrera was transported to Elliot
Hospital where he was treated. One wound on his face was closed
with six stitches. Hospital records disclose the following
condition:
OPEN WOUND OF FOREHEAD – SUPERFICIAL LACERATION CONTUSION OF FACE AND JAW OPEN WOUND OF NOSE – SUPERFICIAL LACERATION LAC[ERATED] EYELID SPRAIN OF NECK CONTUSION OF CHEST WALL
3 (Pl.’s O b j . to Summ. J., Ex. 8 , at 6.) Cabrera alleges in his
complaint that he also suffered a ruptured eardrum and a broken
nose. The hospital’s records do not support his eardrum claim,
and, regarding his nose, contain the notation “Can’t rule out a
nasal fracture.” (Id. at 9.)
Cabrera asserts in this suit that LeVierge is liable for
using excessive force against him, in violation of the Fourteenth
Amendment (Count I ) , and for common-law assault (Count I I ) . He
further claims that O’Mara is liable for the alleged battery,
under the theory of respondeat superior (Count I I I ) , and also
claims that O’Mara is liable for negligent supervision and
negligent retention (Count I V ) .
Discussion
Defendants move for summary judgment, arguing that: (1)
plaintiff cannot, as a matter of law, prove that he was subjected
to excessive force; (2) plaintiff has no evidence of common-law
battery; (3) there is nothing to support plaintiff’s respondeat
superior theory; and (4) there is no evidence that O’Mara
negligently supervised or retained Sgt. LeVierge. In addition,
LeVierge contends that he is entitled to qualified immunity from
plaintiff’s excessive force claim. Plaintiff concedes that
defendant Poulicakos is entitled to judgment as a matter of law,
4 but counters that summary judgment in favor of defendants
LeVierge and O’Mara is precluded by the existence of genuine
issues of material fact.
Count I
In Count I , brought pursuant to 42 U.S.C. § 1983, Cabrera
claims that LeVierge violated his rights under the Fourteenth
Amendment to the United States Constitution by punching and
kicking him while he was wearing handcuffs and leg restraints.
Specifically, he alleges that: (1) “LeVierge . . . violently
pushed [him] against the wall of the cell, violently put [him] on
the floor, [and] continued to beat and kick [him]” (Compl. ¶ 9 ) ;
(2) the beating resulted in “a severe cut above his right eye and
on his nose, a ruptured eardrum and other bruises and injuries,”
(id. ¶ 1 0 ) ; (3) his behavior did not warrant the beating he
received (id. ¶ 1 1 ) ; and (4) LeVierge “acted maliciously and for
the very purpose of causing [him] harm” (id. ¶ 1 2 ) .
LeVierge argues that he is entitled to summary judgment on
Count I because: (1) there is no evidence that plaintiff suffered
a broken nose or ruptured eardrum; (2) the injuries for which
there is evidentiary support – cuts and bruises – are relatively
minor, and do not support an excessive-force claim; and (3)
5 “there is clear evidence that demonstrates that Cabrera’s alleged
beating never took place.”
The evidence to which LeVierge refers consists of an HCHC
security videotape that shows LeVierge was in plaintiff’s cell
for less than ninety seconds and had no blood on his shirt when
he exited the cell after the alleged beating. LeVierge argues
that the videotape establishes, as a matter of law, that he was
not in plaintiff’s cell long enough to administer the beating
plaintiff alleges, and that the force he did use was not as
extreme as plaintiff claims. Plaintiff counters with excerpts
from his own deposition, in which he testified that LeVierge
repeatedly punched and kicked him in the head and body while he
was partially immobilized by handcuffs and leg restraints.
“A pretrial detainee’s claim that he has been subjected to
unconstitutional conditions of confinement implicates Fourteenth
Amendment liberty interests . . . [which] are coextensive with
those of the Eighth Amendment’s prohibition against cruel and
unusual punishment.” Surprenant v . Rivas, 424 F.3d 5 , 18 (1st
Cir. 2005) (citing Burrell v . Hampshire County, 307 F.3d 1 , 7
(1st Cir. 2002)). “In its prohibition of ‘cruel and unusual
punishments,’ the Eighth Amendment places restraints on prison
officials, who may not, for example, use excessive physical force
6 against prisoners.” Farmer v . Brennan, 511 U.S. 825, 832 (1994)
(citing Hudson v . McMillian, 503 U.S. 1 (1992)). More
specifically, “the unnecessary and wanton infliction of pain
. . . constitutes cruel and unusual punishment forbidden by the
Eighth Amendment.” Hudson, 503 U.S. at 5 (quoting Whitley v .
Albers, 475 U.S. 3 1 2 , 319 (1986)).
“In order to establish a constitutional violation, a
plaintiff’s claim must meet both objective and subjective
criteria.” Surprenant, 424 F.3d at 18 (citing Farmer, 511 U.S.
at 834)). “[C]ourts considering a prisoner’s claim must ask both
if ‘the officials acted with a sufficiently culpable state of
mind’ and if the alleged wrongdoing was objectively ‘harmful
enough’ to establish a constitutional violation.” Hudson, 503
U.S. at 8 (quoting Wilson v . Seiter, 501 U.S. 2 9 4 , 298 (1991)).
“The objective component of an Eighth Amendment claim is
. . . contextual and responsive to ‘contemporary standards of
decency.’” Hudson, 503 U.S. at 8 (quoting Estelle v . Gamble, 429
U.S. 9 7 , 103 (1976)). While “not . . . every malevolent touch by
a prison guard gives rise to a federal cause of action,” Hudson,
503 U.S. at 9 (citing Johnson v . Glick, 481 F.2d 1028, 1033 (2d
Cir. 1973)), “[w]hen prison officials maliciously and
7 sadistically use force to cause harm, contemporary standards of
decency always are violated,” id.
Regarding the subjective element, the Eighth Amendment
prohibits “the unnecessary and wanton infliction of pain.”
Hudson, 503 U.S. at 5 (citation omitted). “[W]henever prison
officials stand accused of using excessive physical force in
violation of the Cruel and Unusual Punishments Clause, the core
judicial inquiry is that set out in Whitley: whether force was
applied in a good-faith effort to maintain or restore discipline,
or maliciously and sadistically to cause harm.” Id.
Plaintiff has offered sufficient evidence to avoid
LeVierge’s motion for summary judgment on Count I . Whether
plaintiff was wearing handcuffs and leg restraints at the time of
the alleged beating is genuinely disputed. Each party has
produced evidence from which a reasonable jury could find that
fact in his favor. See Cordi-Allen v . Conlon, 494 F.3d 245, 249
(1st Cir. 2007) (quoting Garside v . Osco Drug, Inc., 895 F.2d 4 6 ,
48 (1st Cir. 1990)) (“An issue is genuine i f , on the evidence
presented, it ‘may reasonably be resolved in favor of either
party.’”). And, the fact is material. See Brown v . Latin Am.
Music Co., 498 F.3d 1 8 , 22 (1st Cir. 2007) (citing Cochran v .
Quest Software, Inc., 328 F.3d 1 , 6 (1st Cir. 2003)) (“a fact is
8 material if it would affect the outcome of the case”). Whether
plaintiff was restricted by handcuffs and leg restraints at the
time of the alleged beating is a fact that would have a
substantial bearing on the context-sensitive determination of
whether the force used was applied in a good-faith effort to
maintain or restore discipline, or was intended maliciously and
sadistically to cause harm. Thus, plaintiff has shown that a
genuine issue of material fact exists.
Turning to the severity of plaintiff’s injuries, plaintiff
appears to concede that he did not suffer a broken nose or
ruptured eardrum – he has offered no evidence to support those
claims. With regard to the injuries documented in hospital
records, plaintiff has met his burden. The court recognizes that
“[n]ot every push or shove, even if it may later seem unnecessary
in the peace of a judge’s chambers, violates a prisoner’s
rights.” Johnson, 481 F.2d at 1033. Even s o , the court declines
to rule that three facial lacerations (one requiring six
stitches), contusions to the face, jaw, and chest, two black
eyes,3 and a neck sprain, inflicted on a prisoner allegedly
immobilized by hand and leg restraints, are of such a minor
character that their deliberate and unnecessary infliction did
3 Plaintiff’s black eyes are documented by three photographs, taken shortly after his treatment at Elliot Hospital. (Pl.’s O b j . to Summ. J., Exs. 4 - 6 ) .
9 not, as a matter of law, violate plaintiff’s constitutional right
to be free from cruel and unusual punishment.
Qualified Immunity
LeVierge also raises the defense of qualified immunity.
Plaintiff does not address the qualified immunity issue in his
objection to summary judgment. In his reply, LeVierge argues
that plaintiff’s failure to address qualified immunity entitles
him to summary judgment on that issue. In a surreply, as in his
objection, plaintiff does not address qualified immunity.
The analytical framework for assessing a claim of qualified
immunity involves three separate inquiries:
(I) whether the plaintiff’s allegations, if true, establish a constitutional violation; (ii) whether the constitutional right at issue was clearly established at the time of the putative violation; and (iii) whether a reasonable officer, situated similarly to the defendant, would have understood the challenged act or omission to contravene the discerned constitutional right.
DeMayo v . Nugent, 517 F.3d 1 1 , 17 (1st Cir. 2008) (quoting Burke
v . Town of Walpole, 405 F.3d 6 6 , 77 (1st Cir. 2005)).
LeVierge correctly notes that “[w]hen a defendant moves for
summary judgment on the basis of qualified immunity, it is the
plaintiff’s burden to demonstrate the infringement of a federally
10 assured right [and that] [i]f [he] fails to do s o , the movant
prevails.” Quintero de Quintero v . Aponte-Roque, 974 F.2d 226,
228 (1st Cir. 1992) (citing Castro-Aponte v . Ligia-Rubero, 953
F.2d 1429, 1430 (1st Cir. 1992)); see also Vélez-Díaz v . Vega-
Irizarry, 421 F.3d 7 1 , 81 (1st Cir. 2005) (referring to
plaintiff’s “burden under the threshold inquiry for qualified
immunity”). 4
While plaintiff has not directly addressed LeVierge’s
assertion of a qualified immunity defense, he has, nonetheless,
met his burden of demonstrating the infringement of a federally
assured right. Often, that burden is met by the allegations in
the complaint. See Riverdale Mills Corp. v . Pimpare, 392 F.3d
5 5 , 61 (1st Cir. 2004). But where, as here, qualified immunity
is raised in a motion for summary judgment, “courts addressing
the first prong . . . should look beyond the complaint to the
broader summary judgment record.” Id. at 62 (citing Groh v .
Ramirez, 540 U.S. 5 5 1 , 562 (2004); Hope v . Pelzer, 536 U.S. 7 3 0 ,
734 n.1 (2002)).
4 The court of appeals for this circuit has explained that “[q]ualified immunity is an affirmative defense, and thus the burden of proof is on defendants.” DiMarco-Zappa v . Cabanillas, 238 F.3d 2 5 , 35 (1st Cir. 2001) (citing Harlow v . Fitzgerald, 457 U.S. 8 0 0 , 815 (1982); Gómez v . Toledo, 446 U.S. 635, 639 (1980)).
11 The summary judgment record includes plaintiff’s deposition
testimony that he was punched and kicked more than a dozen times
after having been thrown to the floor while immobilized by
handcuffs and leg restraints. (Pl.’s O b j . to Summ. J. (Cabrera
Dep.) at 163-64.) That is sufficient to satisfy his burden of
demonstrating the infringement of a federally assured right.
Nothing more is necessary to overcome LeVierge’s argument that
plaintiff has not established the first prong of the qualified
immunity test, especially given defendant’s failure to direct his
argument to the full summary judgment record. See Groh, 540 U.S.
at 562 (noting court’s obligation to credit nonmovant’s account
of the facts when deciding qualified immunity at the summary
judgment stage).
Turning to the second prong of the qualified immunity test,
and applying that test to plaintiff’s version of the disputed
facts, see Groh, 540 U.S. at 5 6 2 , it is plain that a prisoner’s
constitutional right not to be kicked and punched while shackled
was clearly established at the time. See Hudson, 503 U.S. at 4
(holding that prisoner’s Eighth Amendment rights were violated
when he was kicked and punched while shackled, even though his
injuries required no medical attention). And, regarding the
third prong of the test, an objectively reasonable correctional
officer, in LeVierge’s position, would have understood that
12 repeatedly punching and kicking a shackled inmate who posed no
physical threat would violate the inmate’s clearly established
constitutional right not to be subjected to cruel and unusual
punishment.
For the reasons given, defendants’ motion for summary
judgment is denied as to Count I .
Count II
In Count I I , plaintiff asserts that by beating him, LeVierge
“committed the common law tort of assault, or unprivileged
physical contact.” In his motion for summary judgment, LeVierge
recharacterizes Count II as asserting a claim of battery, and
argues that: (1) “the video evidence shows that Cabrera’s version
of the events simply did not take place”; and (2) plaintiff
“admits to engaging in conduct that a reasonable officer would
and legally can meet with force,” thus making LeVierge’s physical
contact with plaintiff privileged.
The security videotape upon which LeVierge relies was
recorded by a camera that had a clear view of the area outside
plaintiff’s cell, but only a partial view into the cell.
Defendant’s argument is not that the tape shows what happened to
plaintiff in the cell, but, rather, that the beating plaintiff
13 claims to have received “could not” have taken place during the
one minute and twenty-four seconds that LeVierge and plaintiff
were out of the camera’s view. That, of course, is a fact
question for the jury, as it cannot be said, as a matter of law,
that the beating as alleged “could not” have been inflicted in
one minute and twenty-four seconds.
Defendant’s second argument is also overstated. While he
argues that plaintiff admitted to conduct that a correctional
officer could reasonably meet with the amount of force Sgt.
LeVierge used, plaintiff actually admitted much less. He
testified that while facing the wall of his cell, in handcuffs
and leg restraints, h e : (1) turned his head toward LeVierge and
spoke to him using sarcasm and profanity, which prompted LeVierge
to slam his head against the wall (Cabrera Dep. at 156-60); and
(2) turned his upper body toward LeVierge, who then took him to
the ground and repeatedly punched and kicked him in the head and
face (id. at 162-63). As with plaintiff’s excessive force claim,
it cannot be said, as a matter of law, that plaintiff’s conduct,
while immobilized by handcuffs and leg restraints, warranted
application of force to a degree that resulted in the injuries
demonstrated by the undisputed factual record. A reasonable jury
could credit plaintiff’s version of events and could readily find
that the force used was not necessary for any legitimate
14 penological or security purpose, and, indeed, was applied for the
purpose of inflicting harm and pain as punishment. Accordingly,
defendants’ motion for summary judgment is denied as to Count I I .
Count III
In Count I I I , plaintiff asserts that O’Mara is liable for
the assault alleged in Count I I , under the doctrine of respondeat
superior. In reliance upon Daigle v . City of Portsmouth, 129
N.H. 561 (1987), O’Mara argues that he is entitled to summary
judgment on Count III because plaintiff has no evidence that h e ,
O’Mara, knew about or acquiesced in the conduct of the other
defendants, and no evidence that those other defendants had ever
been found to have used unlawful force on any inmate in the past.
O’Mara’s argument is unavailing.
“Under respondeat superior, ‘an employer may be held
vicariously responsible for the tortious acts of its employee if
the employee was acting within the scope of his or her employment
when his or her tortious act injured the plaintiff.’” Porter v .
City of Manchester, 155 N.H. 149, 152 (2007) (quoting Porter v .
City of Manchester, 151 N.H. 3 0 , 39-40 (2004)); see also Daigle,
129 N.H. at 579. “[C]onduct falls within the scope of . . .
employment i f : (1) it is of the kind [the employee] is employed
to perform; (2) it occurs substantially within the authorized
15 time and space limits; and (3) it is actuated, at least in part,
by a purpose to serve the employer.” Porter, 155 N.H. at 152.
As noted in Aversa v . U.S., 99 F.3d 1200, 1209 (1st Cir. 1996),
an intentional tort, like assault, can be within the scope of
employment under applicable state law if the employee acts within
his authority during the course of employment, even though he
acts intentionally and maliciously. And Porter, supra, makes
clear that under New Hampshire’s common law, an employer may be
held liable even for the intentional torts of its employees under
the doctrine of respondeat superior.
While the Daigle court noted that evidence that a police
officer “had frequently beaten suspects” could allow a jury
reasonably to “infer that [the officer] believed it was
appropriate to rough [suspects] up in the course of serving the
law enforcement objectives of capturing the guilty and
establishing their guilt,” 129 N.H. at 580-81, Daigle does not
suggest that such evidence is required to prove that a police
officer’s action was undertaken to serve his employer and, thus,
within the scope of his employment.
Because the undisputed factual record does not require a
conclusion, as a matter of law, that LeVierge was acting beyond
16 the scope of his employment when he allegedly beat plaintiff,
O’Mara is not entitled to summary judgment on Count III.
Count IV
Plaintiff claims that O’Mara is liable for negligent
supervision and negligent retention of LeVierge because he
“fail[ed] to properly investigate allegations of misconduct [by
LeVierge] and . . . fail[ed] to appropriately discipline
[LeVierge] for those prior instances of misconduct.” (Compl. ¶
33). O’Mara argues that he is entitled to summary judgment on
Count IV because there is no evidence that he negligently
supervised or negligently retained LeVierge. More specifically,
O’Mara contends that LeVierge has never been found to be
dangerous or incompetent and that there has been no occasion for
him to learn of any alleged violent tendencies on LeVierge’s
part. O’Mara also claims discretionary function immunity.
Plaintiff counters that allegations of excessive force have been
made against LeVierge in at least five other cases in this court.
New Hampshire recognizes “a cause of action against an
employer for negligently hiring or retaining an employee that the
employer knew or should have known was unfit for the job so as to
create a danger of harm to third persons.” Marquay v . Eno, 139
N.H. 7 0 8 , 718 (1995) (citing Cutter v . Town of Farmington, 126
17 N . H . 836, 840-41 (1985); LaBonte v . Nat’l Gypsum Co., 113 N . H .
678, 681 (1973)). “In Cutter, [the New Hampshire Supreme Court]
cited RESTATEMENT (SECOND) OF AGENCY § 213 (1958), which provides that
‘[a] person conducting an activity through servants or agents is
subject to liability for harm resulting from his conduct if he is
negligent or reckless . . . in the employment of improper
persons.’” Marquay, 139 N . H . at 718.
In plaintiff’s view, it was negligent or reckless for O’Mara
not to investigate LeVierge and to allow him to continue working
in direct contact with detainees in light of both LeVierge’s
“history of assaulting inmates,” as demonstrated by the
allegations against LeVierge in the lawsuits in which he and
O’Mara were or are co-defendants, and two comments made by O’Mara
to the father of another H C H C inmate. O’Mara is alleged to have
told inmate Marc Dixon’s father: “ I would be a damned fool to
believe my staff are angels, but you have to prove it,” (Pl.’s
O b j . to Summ. J . , Ex. 3 (Dixon Aff.) ¶ 5 ) and: “ I will deny this
conversation ever occurred,” (id. ¶ 6 ) . Even if true, those
statements are not material to the issue of O’Mara’s knowledge of
LeVierge’s alleged violent tendencies. See Brown, 498 F.3d at 22
(defining materiality).
18 Similarly immaterial are the allegations other inmates have
made against LeVierge in other lawsuits, which demonstrate only a
history of inmate accusations, hardly an unusual circumstance.
But those mere allegations do not create a triable issue of
material fact regarding LeVierge’s “history of assaulting
inmates.” As O’Mara points out, none of the various allegations
against LeVierge has resulted in any sort of judicial or
administrative determination that he did, in fact, assault any
HCHC inmates. The mere fact that LeVierge has been accused by
inmates of using excessive force in complaints filed in this
court does not establish a basis upon which O’Mara could be held
liable for negligently retaining LeVierge.
Plaintiff has offered no evidence from which a reasonable
jury could conclude that O’Mara negligently or recklessly
retained LeVierge, that i s , that O’Mara knew or should have known
that LeVierge was unfit for his job in a way that posed a danger
of harm to third parties. See Marquay, 139 N.H. at 718.
Accordingly, O’Mara is entitled to summary judgment on Count IV.
Conclusion
judgment (document n o . 20) is granted as to Count IV and to the
extent that the claims against defendant Poulicakos in Counts I
19 and II are dismissed, but the motion is otherwise denied. The
case remains on track for trial on Counts I and I I , against
LeVierge only, and Count III.
SO ORDERED.
Steven J./McAuliffe :hief ^Judge
August 6, 2008
cc: Michael J. Sheehan, Esq. John A . Curran, Esq. Elizabeth L . Hurley, Esq.