David T. Ligocki, Plaintiff v. John E. Perkins and John Masse, Defendants

2022 DNH 152

• Court: District Court, D. New Hampshire
• Decided: December 5, 2022
• Docket: 18-cv-1112-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

David T. Ligocki, Plaintiff

v. Case No. 18-cv-1112-SM Opinion No. 2022 DNH 152

John E. Perkins and John Masse, Defendants

O R D E R

At all times relevant to this proceeding, pro se plaintiff,

David Ligocki, was an inmate in the custody of the State of New

Hampshire Department of Corrections (“DOC”) and housed at the

New Hampshire State Prison (“NHSP”) in Concord, New Hampshire.

Most of Ligocki’s claims have been dismissed. What remain are

two claims in which Ligocki alleges that the defendants violated

his Eighth Amendment right to be free from cruel and unusual

punishment when, with deliberate indifference to his personal

safety, defendants: (a) assigned Ligocki to a cell occupied by

an inmate they knew was likely to harm him; and/or (b) failed to

intervene to protect Ligocki from an obvious risk of harm.

Defendants move for summary judgment, asserting that there

are no genuinely disputed material facts and saying that they are entitled to judgment as a matter of law. For the reasons,

discussed, that motion is granted. Ligocki’s late-filed Motion

to Continue Deadlines is denied.

I. Ligocki’s Motion to Continue.

Defendants filed their motion for summary judgment on June

6, 2022. Two days after his objection was due, Ligocki filed a

motion seeking an additional sixty days within which to file his

objection. That motion was granted. Consequently, Ligocki’s

objection was due on or before Tuesday, September 6, 2022. Yet,

for nearly three months beyond that extended deadline, Ligocki

remained silent. Then, just days ago (on December 1, 2022),

Ligocki submitted another motion to extend the deadline by which

he must file an objection. In it, Ligocki simply asserts that

he has been returned to prison on a parole violation and needs

time to “pull the paperwork together and to finish, review, and

respond to any filings.” Motion to Continue (document no. 78)

at 1. But the time to “finish, review, and respond to any

filings” has long since passed. And Ligocki offers no

explanation for why he failed to meet the extended deadline for

responding to defendants’ pending motion or why, for three

months beyond that deadline, he remained silent.

2 Ligocki has failed to show good cause why he was unable to

respond to defendants’ pending motion during the additional time

afforded to him, nor has he explained why he did not seek

further extension of the filing deadline in a timely manner.

His Motion to Continue Deadlines is, therefore, necessarily

denied.

II. Defendants’ Motion for Summary Judgment.

A. 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).

Where a genuine dispute of material facts exists, such a dispute

must be resolved by a trier of fact, not by the court on summary

3 judgment. See, e.g., Kelley v. LaForce, 288 F.3d 1, 9 (1st

Cir. 2002).

When objecting to a motion for summary judgment, “[a]s to

issues on which the party opposing summary judgment would bear

the burden of proof 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). Such evidence is missing in this case because

Ligocki has failed to object or otherwise respond to defendants’

pending motion for summary judgment, despite having been

afforded substantial additional time to do so.

Accordingly, the court will take as admitted the factual

statements recited in defendants’ memorandum, as supported by

the attached exhibits. See Local Rule 56.1(b) (“All properly

supported material facts set forth in the moving party’s factual

statement may be deemed admitted unless properly opposed by the

adverse party.”). See also Puerto Rico American Ins. Co. v.

Rivera-Vazquez, 603 F.3d 125, 131 (1st Cir. 2010) (discussing

Puerto Rico’s analog to Local Rule 56.1(b), also known as the

“anti-ferret rule,” and holding that, “This type of rule is

aimed at enabling a district court to adjudicate a summary

4 judgment motion without endless rummaging through a plethoric

record. Given this root purpose, we have held with a regularity

bordering on the monotonous that parties ignore the strictures

of an ‘anti-ferret’ rule at their peril.”).

B. Background.

During the relevant time period, defendant John Masse was

an employee of the New Hampshire DOC and served as a Corrections

Captain at the NHSP. During that same period of time, defendant

John Perkins was employed by the DOC as the librarian of the

prison’s law library and circulation library.

Ligocki’s claims arise out of an incident that occurred on

May 13, 2016, when a fellow inmate – Chanel Cote – attacked and

injured him. According to defendants, the relevant facts, as

supported by the affidavits, answers to interrogatories, and

other discovery materials appended to defendants’ memorandum,

are as follows:

On May 13, 2016, Mr. Ligocki was moved out of a cell he had been sharing with fellow inmate Chanel Cote (and others) for about the past two months. Although Mr. Ligocki had asked to be moved out of that cell before, he was not requesting to be moved at that time.

The new cell Mr. Ligocki moved to was on a different floor of the same housing unit, such that he now lived upstairs from Chanel Cote. Nevertheless, on the evening of the day he changed cells, Mr. Ligocki chose to venture back

5 downstairs and to approach Chanel Cote, who Mr. Ligocki perceived to be harboring some anger about his move. EXHIBIT A at pp. 1–2 [E.C.F. No. 1 at pp. 14–15 ¶¶ 24–25]; EXHIBIT B [Pl.’s Answer Interrog. No. 14]; EXHIBIT D [Pl.’s Answer Interrog. No. 15].

Instead of walking away from Chanel Cote, Mr. Ligocki decided to follow him over to the cell they had shared until earlier that day and to stand in the cell’s doorway, where he proceeded to tell Chanel Cote to “calm down” and “just relax.” EXHIBIT A at p. 2 [E.C.F. No. 1 at p. 15 ¶ 25]; EXHIBIT D [Pl.’s Answer Interrog. No. 15].

Despite still being wholly free to walk away at that point, Mr. Ligocki instead decided to keep standing in the doorway while he talked to another inmate. EXHIBIT A at p. 2 [E.C.F. No. 1 at p. 15 ¶ 25]. While he was doing so, Chanel Cote lunged towards Mr. Ligocki and stabbed him in the face multiple times with a sharp object. EXHIBIT A at p. 2 [E.C.F. No. 1 at p. 15 ¶ 25]; EXHIBIT D [Pl.’s Answer Interrog. No. 15]. Mr. Ligocki was subsequently charged with a disciplinary infraction for being out of place in Chanel Cote’s cell and he pleaded guilty to that charge. 1

Prior to these events, Mr. Ligocki never told Defendants that he had any concern about possibly being attacked by Chanel Cote. EXHIBIT E [Masse Declaration] ¶¶ 6–8, 14; EXHIBIT F [Perkins Declaration] ¶¶ 3–5; EXHIBIT G [Pl.’s Answer Interrog. No. 2] (saying nothing about having told Defendants that he was concerned about Chanel Cote attacking him in response to interrogatory asking Mr. Ligocki to describe what he told Defendants about his problems with Chanel Cote); EXHIBIT H [Pl.’s Answer Interrog. No. 8] (explaining that his “issues consisted of a problem over false paperwork written by John Russo,” but saying nothing about having expressed concern about being attacked by Chanel Cote); EXHIBIT I [Pl.’s Answer Interrog. No. 1] (making no reference to Defendant Perkins in response to interrogatory that asked Mr. Ligocki to specifically describe his “previous incidents” with Chanel Cote and whether Defendant Perkins knew about any of those incidents); EXHIBIT J [Pl.’s Answer Interrog. No. 6] (similarly explaining that the “situation” he was concerned

1 Parenthetically, the court notes that Cote was charged with more serious disciplinary infractions for his role in the altercation. Cote was also indicted and charged with assault.

6 about was a former inmate’s court petition that portrayed Mr. Ligocki as an informant (hereinafter, the “Russo Petition”) “being printed out and circulated around the prison,” and saying nothing about Chanel Cote attacking him); EXHIBIT K [Pl.’s Answer Interrog. No. 7] (mentioning no concern about Chanel Cote attacking him in response to interrogatory asking for explanation of reasons why he initially refused housing unit assignment); EXHIBIT L [Pl.’s Answer Interrog. No. 9] (omitting mention of Defendants in response to interrogatory that asked Mr. Ligocki to identify who knew about a purported prior incident between Mr. Ligocki and Chanel Cote); EXHIBIT M [Pl.’s Answer Interrog. No. 10] (not describing a single specific threat directed towards him in response to interrogatory that asked Mr. Ligocki to specifically describe any such threat); EXHIBIT N [Pl.’s Answer Interrog. No. 11] (listing neither Defendant Masse nor Defendant Perkins as an individual whom he had informed about Chanel Cote having taken up a “fighting stance” towards Mr. Ligocki when the two became cellmates); see EXHIBIT O [Pl.’s Answer Interrog. No. 5] (simply refusing to answer interrogatory that asked Mr. Ligocki to specifically describe (a) what his complaint refers to in describing an “escalating pattern of harassment, threats, assaults, and other negative treatment,” and (b) what, if anything, he communicated to Defendants about this so- called “escalating pattern”).

And while Mr. Ligocki did express concern to Defendant Masse about the possibility of other residents learning about the Russo Petition, he said nothing to Defendant Masse that suggested he harbored any concern about a possibility that Chanel Cote might physically attack him. EXHIBIT E [Masse Declaration] ¶¶ 6–8 (declaring, inter alia, that “[i]n talking to me about the Russo Petition, Mr. Ligocki only indicated concern about how the content of the Russo Petition would negatively impact his reputation amongst the resident population,” and that he accordingly “only understood Mr. Ligocki to be concerned about being socially ostracized by other residents in the event they learned about the Russo Petition, not about being physically harmed by other residents generally or by Chanel Cote particularly”); EXHIBIT G [Pl.’s Answer Interrog. No. 2] (stating that the concern he expressed was about Chanel Cote making other residents aware of the Russo Petition, not about Chanel Cote physically attacking him); EXHIBIT H

7 [Pl.’s Answer Interrog. No. 8] (similar); EXHIBIT J [Pl.’s Answer Interrog. No. 6] (similar).

Defendants accordingly did not believe there was any foreseeable risk of Mr. Ligocki being physically attacked by Chanel Cote on or prior to May 13, 2016. EXHIBIT E [Masse Declaration] ¶ 14; EXHIBIT F [Perkins Declaration] ¶ 5.

Defendants’ Memorandum (document no. 71-1) at 1-4 (cleaned up).

The so-called “Russo Petition” was a pro se habeas corpus

petition filed by inmate John Russo. Apparently, Ligocki

testified against Russo during Russo’s underlying criminal trial

and that fact was revealed in Russo’s habeas petition. The

petition also alleged that Ligocki had psychiatric problems and

had testified against Russo in order to obtain favorable

treatment from the State. At some point, inmate Chanel Cote

appears to have used the prison library’s online resources to

obtain a copy of the Russo Petition and shared it with other

inmates. Ligocki was concerned about how information in the

Russo Petition would be received by fellow inmates, how it would

affect his reputation, and whether it might expose him to

potential harm.

With respect to Ligocki’s specific concerns about inmate

Chanel Cote, any alleged prior incidents between Ligocki and

Cote, and the Russo Petition, defendant Masse testified that:

8 On and prior to May 13, 2016, I had no knowledge of any prior physical incident having occurred between Mr. Ligocki and Chanel Cote.

On and prior to May 13, 2016, I was not aware of any information that would have caused me to believe that Mr. Ligocki’s physical safety was at risk due to the ability of other residents to potentially access the Russo Petition. I also was not aware of any information that would have caused me to believe that Chanel Cote posed any foreseeable risk to Mr. Ligocki’s safety. I accordingly did not believe that any such risks existed on or prior to that date.

Affidavit of John L. Masse (document no. 71-6) at paras. 13-14.

Defendant Perkins testified that, as the prison’s

librarian, his contact with Ligocki was quite limited:

In my time as Media Generalist, I only had one conversation with David Ligocki. During that conversation, Mr. Ligocki did not express any concern to me about the availability of any documents on Lexis Nexis or about a petition filed by John Russo.

I also never received anything in writing from Mr. Ligocki regarding the availability of any documents on Lexis Nexis or about a petition filed by John Russo.

On and prior to May 13, 2016, I was not otherwise aware of any information that would have caused me to believe that Mr. Ligocki’s safety was in any way at risk due to documents on Lexis Nexis or a petition filed by John Russo. I likewise was not aware of information that would have caused me to believe that Chanel Cote posed any foreseeable risk to Mr. Ligocki’s safety. I accordingly did not believe that any such risks existed on or prior to that date.

Affidavit of John E. Perkins (document no. 71-7) at paras. 3-5.

9 C. Discussion.

As construed by the magistrate judge, the two remaining

claims advanced in Ligocki’s complaint are:

1. [Defendant Masse was] deliberately indifferent to Ligocki’s safety, in violation of the Eighth Amendment, when he assigned him to H-building and placed him in a tier, unit, and cell with Chanel Cote, knowing Ligocki had had problems with Cote in the past; and

2. [Defendants Masse and Perkins] were deliberately indifferent to Ligocki’s safety, in violation of the Eighth Amendment, when they failed to protect him from Cote after Cote obtained a copy of the [Russo] petition.

Report and Recommendation (document no. 16) at 6. Plainly,

then, the focus of Ligocki’s claims is on the risk posed to him

by fellow inmate Chanel Cote.

As the Supreme Court has observed, the “Constitution does

not mandate comfortable prisons, but neither does it permit

inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832 (1994)

(cleaned up). To be sure, the Constitution imposes on prison

officials the obligation to “protect prisoners from violence at

the hands of other prisoners.” Id. at 833. “It is not,

however, every injury suffered by one prisoner at the hands of

another that translates into constitutional liability for prison

10 officials responsible for the victim’s safety.” Id. at 834.

Rather, liability attaches only when two conditions – one

objective, and one subjective - are met:

First, the deprivation alleged must be, objectively, sufficiently serious; a prison official’s act or omission must result in the denial of the minimal civilized measure of life’s necessities. For a claim (like the one here) based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.

The second requirement follows from the principle that only the unnecessary and wanton infliction of pain implicates the Eighth Amendment. To violate the Cruel and Unusual Punishments Clause, a prison official must have a sufficiently culpable state of mind. In prison-conditions cases that state of mind is one of “deliberate indifference” to inmate health or safety.

Id. (cleaned up). A prison official acts with deliberate

indifference to an inmate’s health or safety if he or she “knows

that inmates face a substantial risk of serious harm and

disregards that risk by failing to take reasonable measures to

abate it.” Id. at 847. Consequently, under the second element

of the Farmer two-part test, Ligocki must demonstrate that the

defendants were more than merely negligent when they assigned

him to share a cell with Cote (or when they acquiesced in that

assignment). Rather, he must show that they intentionally

placed him in harm’s way or that they were deliberately

indifferent to a known serious risk that he would be harmed.

11 See, e.g., Estelle v. Gamble, 429 U.S. 97, 106 (1976) (noting,

in the medical context, that negligence or malpractice in the

treatment of an inmate is insufficient to state a viable Eighth

Amendment claim; instead, “a prisoner must allege acts or

omissions sufficiently harmful to evidence deliberate

indifference to serious medical needs.”).

So, to avoid summary judgment on his failure-to-protect

claims, Ligocki must point to facts from which the defendants

might reasonably have inferred that Cote posed a substantial

threat to Ligocki’s safety, thereby warranting some preventative

measures on the part of prison authorities. Then, he must also

demonstrate that defendants consciously disregarded that known

risk or that they were deliberately indifferent to it. Ligocki

has failed to carry that two-part burden. That he had requested

a transfer to a different cellblock earlier in the year is not,

standing alone, sufficient; such a request does not compel the

conclusion that Ligocki should have been transferred, nor does

it necessarily suggest that defendants recognized, but were

indifferent to, a potential threat posed to him by Cote (or any

other inmate). This is particularly true in this case, since

the admissible evidence of record all points to the conclusion

that neither defendant knew that Cote posed a serious risk to

Ligocki, whether because of past animosity between the men, or

12 because of claims made about Ligocki in the Russo Petition, or

for any other reason. Indeed, there is insufficient evidence in

the record to conclude that either defendant knew or should have

known that Ligocki faced a substantial risk of serious harm from

any fellow inmate as a result of the dissemination of the Russo

Petition. 2

Conclusion

Based upon the record before the court, there is

insufficient evidence from which a properly instructed jury

could plausibly conclude that either defendant knew that Cote

posed a substantial risk of serious harm to Ligocki and, despite

such knowledge, disregarded the risk by failing to take

reasonable measures to abate it. Defendants are, then, entitled

to judgment as a matter of law with respect to Ligocki’s two

remaining cruel and unusual punishment claims.

2 The only inmate requests slips submitted by Ligocki to prison officials that are part of the record are those attached to Ligocki’s complaint. However, only one of them pre-dates May 13, 2016 – the date on which Cote assaulted Ligocki. See Document no. 1-1, at page 1 of 31. In it, Ligocki questions why he was not returned to his old cell after he was transferred back to NHSP following a brief stay at the prison facility in Berlin. That request slip makes no mention of inmate Cote or any security concerns. Consequently, the court has no evidence of what, if anything, Ligocki might have told prison authorities about alleged prior incidents with Cote, Cote’s use of the Russo Petition, or, more generally, if Ligocki ever specifically complained to any DOC employee about sharing a cell with Cote due to security concerns.

13 For the foregoing reasons, defendants’ Motion for Summary

Judgment (document no. 71) is granted. Plaintiff’s Motion to

Continue Deadlines (document no. 78) is denied. The Clerk of

Court shall enter judgment in accordance with this order and

close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

December 5, 2022

cc: David T. Ligocki, pro se Counsel of Record