Skinner v . Cunningham et a l . CV-00-239-B 08/20/03
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
James Skinner
v. Civil N o . 00-239-B Opinion N o . 2003 DNH 142 Michael Cunningham, et a l .
MEMORANDUM AND ORDER
James Skinner brings this 42 U.S.C. § 1983 (1994 & Supp.
2002) civil action against multiple employees of the New
Hampshire State Prison (“NHSP”) in Concord, New Hampshire.
Skinner alleges the defendants violated rights secured to him by
the Eighth and Fourteenth Amendments to the United States
Constitution. In his four-count complaint, Skinner, a former
inmate at NHSP who is currently incarcerated for second-degree
murder at MCI-Cedar Junction in South Walpole, Massachusetts,
seeks both damages and injunctive relief shielding him from
contact with the defendants in the event he is transported to New
Hampshire for appearances before this court.
In Count I , Skinner alleges that multiple defendants
violated the Eighth Amendment by failing to protect him from a fellow inmate, Eric Balagot. Skinner and Balagot were left
together in the exercise yard when Balagot attacked him. A fight
ensued in which Skinner ultimately killed Balagot. In Count I I ,
Skinner claims prison officials violated his right to due process
by indefinitely continuing a disciplinary hearing related to his
encounter with Balagot. Skinner alleges a second violation of
the Eighth Amendment in Count III. Specifically, Skinner alleges
various defendants “assault[ed], terroriz[ed], and harass[ed]”
him in violation of his right to be free from cruel and unusual
punishment. Complaint at ¶ 9 3 .
Defendants move for summary judgment on Counts I-III. (Doc.
No. 4 2 ) . Defendants argue that Skinner has failed to allege any
fact demonstrating the alleged constitutional violations. For
the reasons discussed below, I grant defendants’ motion as to
Counts II and III in their entirety, but deny defendants’ motion
as a portion of Count I .
I. BACKGROUND
A. James Skinner and Eric Balagot
James Skinner is a Massachusetts inmate serving a life
-2- sentence for second-degree murder. In May 1998, after a series
of violent incidents with other inmates, some of which were
racially-motivated,1 Skinner was transferred from a Massachusetts
prison to NHSP. When a new inmate arrives at NHSP, officials
assess where he should be housed and what programs he may
participate i n . Once at NHSP, officials classified Skinner at
the highest possible level of security given his criminal record
and institutional history. Skinner, like all inmates classified
at the highest level, was assigned to the Special Housing Unit
(“SHU”).
Eric Balagot arrived at NHSP in February 1998 and spent time
in various housing units at the prison. Balagot was a known
white supremacist who had a tattoo of a swastika on his chest.
In June 1998, a NHSP officer, suspecting gang activity, seized a
note from Balagot when he attempted to hand it to another inmate.
The note was a handwritten copy of the “Aryan Creed.”
Balagot was involved in two altercations prior to being
transferred to Skinner’s tier in SHU. On February 1 0 , 1998, only
four days after arriving at NHSP, Balagot and Hector Diaz, an
Skinner is African-American.
-3- Hispanic inmate, got into a fight. After the fight, Balagot told
NHSP staff that he subscribed to the White Pride philosophy. On
another occasion, less than two weeks later, Balagot was involved
in another fight with Troy Muder, a white inmate.
Defendants Jay Nagey, Walter Davies, Keith Hardy, and Daniel
Shaw met to discuss where to house Balagot within SHU. When the
decision was made to move Balagot back to SHU, only tiers B and D
were the viable options. The officers decided to house Balagot
in D-Tier because Muder, a inmate Balagot had already had an
altercation with, resided in B-Tier. On July 2 3 , 1998, NHSP
officials moved Balagot from the Closed Custody Unit (“CCU”) back
to SHU. The next day officials moved Balagot to D-Tier within
SHU, where Skinner lived. D-Tier was also home to two other
known white supremacists: Gerald Boulanger and Lenny Kenney.
That same day, William Wilson, an investigations officer at
NHSP, entered the SHU Unit Manager’s Office and heard someone
mention Balagot. At that point Wilson, trained in gang
management, interrupted the conversation to inform the officers
that, in his opinion, Balagot should not be housed with other
white supremacists. Wilson summarized his input in the
conversation as follows:
-4- On 23 July 1998 at approximately 10:30 I was in the Unit Manager’s Office of the Special Housing Unit. Also present were Sergeant Keith Hardy, Lieutenant Daniel Shaw, Counselor Jay Nagy [sic], and Unit Manager Walter Davies.2 Someone mentioned that Inmate Eric Belagot [sic] was now housed in the unit. I advised Shaw and Davies that Belagot was a hard core [w]hite [s]upremacist and he should [be] housed away from other [w]hite [s]upremacists such as [i]nmates Gerard Boulanger, Kenneth Sampson and Leonard Kenney.3 I advised them that Belagot was not a leader but rather a follower and could easily be talked into assaulting other inmates for the [w]hite [s]upremacists. I also advised them that Belagot had been involved in assaults with inmates of color while incarcerated at the NHSP.
Ex. 14 to Pl.’s O b j . to Defs.’ Mot. for Summ. J. Despite
Wilson’s comment, Balagot remained housed on the D-Tier with
Skinner and the other white supremacists.
B. The Exercise Yard Incident
Generally, inmates housed within SHU are permitted to have
time in the SHU exercise yard together and are escorted to the
exercise yard by two NHSP officers. Once they are in the yard,
they are supervised by a camera system in which an officer
watches the inmates via closed circuit television monitors. The
2 Defendants Nagey, Shaw, Hardy and Davies make up the SHU unit team who discussed Balagot’s placement within SHU. 3 To clarify, only Kenney and Boulanger were actually housed on D-Tier with Balagot and Skinner. Kenneth Sampson was housed elsewhere
-5- two cameras in the exercise yard “are fixed, do not rotate, have
no zoom capability. It takes 27 seconds for all eight camera
shots to be cycled through the system monitor. . . The quality of
the picture is poor and there are blind spots, glaring and
shadows to contend with.” Ex. 18 of Pl.’s O b j . to Defs.’ Mot for
Summ. J. at 4 . Although officers walking around the inside of
the unit are expected to observe the exercise yard, “no staff
regularly monitors the yards either physically or visually.” Id.
The first night Balagot was housed in D-Tier, Skinner heard
a lengthy conversation between Balagot and Boulanger. The two
were discussing “white Aryan resistance,” for hours and prompted
Skinner to interrupt the conversation. Ex. 1 to Pl.’s O b j . to
Defs.’ Mot. for Summ. J. at 8 , 1 1 . The following morning,
Defendants Santo Fiorillo and Eric Denis escorted Skinner,
Balagot and other inmates, including white supremacists Boulanger
and Kenney, out to the exercise yard. The officers left to
conduct other inmate moves. Officer Lambrou monitored the SHU
exercise yard via closed circuit television. At some point soon
after their exercise time began, Balagot punched Skinner,
instigating a fight that ultimately resulted in Balagot’s death
and injuries to Skinner. Officer Lambrou did not see anything
-6- out of the ordinary on the closed circuit televisions and did not
call for help. Corrections officers arrived only after the fight
was complete. Ex. 1 to Pl.’s O b j . to Defs.’ Mot. for Summ. J. at
38.
C. After Balagot’s Death
After Balagot’s death Skinner was transferred from SHU’s D-
Tier to its N-Tier. N-Tier is a restricted tier used only in
special circumstances. Skinner remained on N-Tier for 40 days,
when he was transferred to I-Tier, again within SHU. NHSP’s
investigative unit determined that Skinner had violated the
prison’s disciplinary rules and filed a disciplinary report
charging Skinner with violating rule 1-A (causing death of
another inmate). At the time of Skinner’s disciplinary report,
Ray Guimond, a hearings officer for the department of corrections
(“DOC”), received Skinner’s disciplinary report and scheduled a
hearing for August 1 9 , 1998. Ex. V . to Defs.’ Mot. for Summ. J.
Subsequent to setting the hearing date, prosecutors at the
Attorney General’s office requested Guimond “suspend any pending
disciplinary charges against Skinner until the criminal charges
were adjudicated.” Aff. of Guimond, Ex. M . to Defs.’ Mot. for
Summ. J. Guimond cooperated with the Attorney General’s request
-7- and continued the hearing pending the outcome of the criminal
case.
A jury indicted Skinner for murder and in May 1999, he was
tried before a jury in Merrimack County Superior Court. Skinner
claimed self defense and took the stand. The jury deadlocked and
the judge declared a mistrial. In January 2000, Skinner was
tried a second time. Skinner testified again that Balagot
started the fight by attacking him. This time, the jury
unanimously acquitted Skinner of the murder charge and all lesser
charges. As a result of the not guilty verdict, Guimond never
held a hearing on Skinner’s alleged disciplinary charges.
D. Skinner’s Excessive Force Claims
After Balagot’s death, Skinner began receiving disciplinary
write-ups for violating NHSP rules. The ten write-ups Skinner
received between March 2 9 , 1999 and October 5 , 1999 “primarily
concern[ed] aggressive or insubordinate behavior towards the
officers – e.g. refusing to be handcuffed, refusing to come out
of his cell, covering his cell window, refusing to stand for
count, refusing to obey orders, spitting at corrections
officers.” Aff. of Greg Crompton, Ex. A to Defs.’ Mot. for Summ.
J.
-8- Skinner complains of excessive force resulting, largely,
from three cell extractions. The first occurred on June 2 2 ,
1999, when Skinner placed a sheet over his cell window. This is
prohibited by NHSP rules because officers cannot see into an
inmate’s cell and therefore have no way to monitor his behavior
and health. Officers approached Skinner’s cell and asked him to
remove the sheet. Skinner refused. At this point, officers put
together a “move team,” composed of defendant Scott Dodge and
four other officers, to approach Skinner’s cell, remove him,
remove the sheet, and search his cell. The move team arrived at
Skinner’s cell and announced their presence. See Video Tape, Ex.
Y to Defs.’ to Mot. for Summ. J. After entering Skinner’s cell,
Skinner began fighting and wrestling with the officers. The
officers were forced to restrain and handcuff him.
The second extraction took place just weeks later on July 6,
1999. SHU officers approached Skinner’s cell to search i t . SHU
procedures require that inmates be handcuffed or “cuff up” before
being removed from their cells. In SHU, cuffing up is
accomplished by an inmate sliding his wrists through the food
tray slot in the door of the cell. When SHU officers told
Skinner to “cuff up,” he refused. Defendant Kenney then repeated
-9- the request that Skinner “cuff up” so that officers could search
his cell. Skinner once again refused and officers assembled a
move team to remove Skinner from his cell. When the officers
opened the cell door, Skinner lurched out of the cell towards the
officers standing in the tier. Members of the move team them
tried to subdue Skinner, but once again he wrestled with the move
team. At this point, defendant Kenney sprayed OC spray4 on
Skinner, inadvertently spraying other members of the move team as
well. Skinner finally stopped resisting the officers, who then
transported Skinner to the showers to wash off the OC spray. See
Ex. Y . to Defs.’ Mot. for Summ. J. Skinner also requested
medical attention, which he promptly received in the SHU’s day
room. See id.
The third, and last, cell extraction took place on March 2 4 ,
2000 after Skinner threw food at SHU staff. As a result of
Skinner’s behavior, SHU staff decided to move Skinner to a more
secure cell that had different doors. SHU officers, once again,
4 “[A] chemical irritant derived from Cayenne pepper, which causes irritation and discomfort to the skin as well as burning and tearing of the eyes. It is intended as a non-lethal mode of applying force and causing opponents to cease resisting.” Defs.’ Mot. for Summ. J. at 1 5 .
-10- asked Skinner to cuff up for the move and he refused. Another
move team, consisting of defendants Neil Smith, Sean McLeod,
Dodge, and other officers, approached Skinner’s cell. Officer
Smith sprayed OC spray into Skinner’s cell with the intention of
forcing Skinner out of his cell peacefully. Smith’s efforts
failed and Skinner continued to refuse Smith’s instructions. The
move team then entered Skinner’s cell and struggled to restrain a
belligerent Skinner. At some point, Officer Dodge poked Skinner
in the eye and caused Skinner’s eye to swell. The move team
successfully restrained Skinner and carried him face down to a
cell on N-Tier. Members of the move team reminded one another to
support Skinner’s neck and head as they carried him. See Ex. Y
to Defs.’ Mot. for Summ. J. Skinner, once again, received
immediate medical attention. Id.
Two days later, a physician at Concord Hospital examined
Skinner. The physician noted Skinner’s eyes were red and
swollen, but did not note any structural damage to his eyes. In
addition, the physician noted that there was “no evidence of
injury to [Skinner’s] head or . . . scalp.” Ex. T to Defs.’ Mot.
for Summ. J.
-11- During the time period in which the cell extractions were
taking place, Skinner alleges he endured harassment from various
defendants. For example, he alleges defendant Locke
“sarcastically waived a confederate flag bandana” toward him.
Compl. ¶ 6 3 . In addition, he claims defendant Dodge referred to
him as “that nigger upstairs.” Compl. ¶ 6 4 . Skinner also
alleges that various defendants slammed metal doors in his tier
“at all hours of the night.” Compl. ¶ 6 8 .
II. ANALYSIS
A. Count I : “Failure to Protect” Claim
Skinner’s failure to protect claim can be broken into three
sub-parts: (1) his claim against officers Davies, Shaw, Hardy,
and Nagey for making the decision to house Balagot in D-Tier; (2)
his claim against officers Fiorillo and Denis for failing to
observe the exercise yard when they were aware of the
deficiencies in NHSP’s camera system; and (3) a supervisory
liability claim against Warden Cunningham for “failing to have
the faulty” camera system repaired. Compl. ¶ 8 6 .
-12- The Eighth Amendment imposes “a duty . . . to protect
prisoners from violence at the hands of other prisoners.” Farmer
v . Brennan, 511 U.S. 825, 833 (1994) (citing Cortes-Quinones v .
Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988), cert.
denied, 488 U.S. 823 (1988). That duty, however, requires only
that prison officials not be “deliberately indifferent to the
risk to prisoners of violence at the hands of other prisoners.”
Burrell v . Hampshire County, 307 F.3d 1 , 8 (1st Cir. 2002)(citing
Farmer, 511 U.S. at 8 3 3 ) . In the context of an Eighth Amendment
claim, deliberate indifference has two components. See id.
“First, the deprivation alleged must b e , objectively,
sufficiently serious.” Id. (citing Farmer, 511 U.S. at 8 3 4 ) . In
a failure to protect claim such as this one, a plaintiff “must
demonstrate that he was incarcerated under conditions imposing a
substantial risk of serious harm.” Id. Second, a plaintiff must
also show that the defendants had “a sufficiently culpable state
of mind,” in this case one of “deliberate indifference” to
Skinner’s health or safety. Farmer, 511 U.S. at 834.
The Farmer Court defined “deliberate,” in the context of an
Eighth Amendment claim to require that a prison official “must be
both aware of facts from which the inference could be drawn that
-13- a substantial risk of serious harm exists, and he must also draw
that inference.” Id. The First Circuit, among others, has
likened this requirement to “the standard for determining
criminal recklessness.” Giroux v . Somerset County, 178 F.3d 2 8 ,
32 (1st Cir. 1999) (internal citations omitted). As the First
Circuit summarized in Calderón-Ortiz v . Laboy-Alvarado, 300 F.3d
6 0 , 64 (1st Cir. 2002), the second requirement of Farmer requires
Skinner to show: (1) the defendant knew of (2) a substantial risk
(3) of serious harm and (4) disregarded that risk. Id. (citing
Farmer, 511 U.S. at 835-840).
1. Skinner’s Claims for Moving Balagot to D-Tier
Skinner argues that defendants Davies, Shaw, Hardy and Nagey
failed to protect him when, after being warned by Investigator
Wilson, they placed Balagot on D-Tier with other known white
supremacists. Defendants argue that Skinner cannot successfully
demonstrate that they acted with deliberate indifference.
Specifically, they argue that there is “no evidence that the
defendants knew anything about Skinner’s past which would have
told them that Balagot posed a particular threat to him.” Defs.’
Mot. for Summ. J. at 1 7 . I disagree. Skinner puts forth
evidence that the officers knew of Balagot's white supremacist
-14- views, his prior assaults and the fact that he was easily
manipulated by other white supremacists. This evidence is
sufficient to create a triable issue as to whether the defendants
acted with deliberate indifference.
2. Leaving Inmates in Exercise Yard Together
Skinner argues that defendants Fiorillo and Denis are liable
because they placed Skinner, Balagot and other inmates in the
exercise yard when the knew the video cameras could not
effectively monitor the inmates. Defendants respond by claiming
that Fiorillo and Denis had no knowledge that Balagot presented a
threat to Skinner’s safety. Although Skinner presents evidence
that Fiorillo and Denis knew the camera monitoring system was
faulty, the summary judgment record is devoid of any evidence of
deliberate indifference. See Farmer, 511 U.S. at 835-840. In
particular, Skinner fails to identify any evidence demonstrating
that defendants Fiorillo and Denis were “aware of facts from
which the inference could be drawn that a substantial risk of
serious harm exists, and [that they]. . . dr[ew] that inference.”
Id. at 834. As such, I grant defendants' motion as to defendants
Fiorillo and Denis.
-15- 3. Supervisory Liability for Failing to Protect
Skinner also alleges that Michael Cunningham, the Warden at
NHSP, is liable as a supervisor for NHSP’s policy of placing
inmates in the exercise yard without direct supervision from
floor officers. Skinner cannot base this claim on a respondeat
superior theory of liability. Instead, Cunningham can only be
liable as a supervisor under § 1983 based on his own acts or
omissions. Aponte Matos v . Toledo Dávilo, 135 F.3d 1 8 2 , 192 (1st
Cir. 1998) (citing Seekamp v . Michaud, 109 F.3d 8 0 2 , 808 (1st
Cir. 1997). Specifically, Cunningham is liable as a supervisor
only if “there is subordinate liability, and . . . the
supervisor’s action or inaction was affirmatively linked to the
constitutional violation caused by the subordinate.” Id.
(internal quotation marks omitted). As Skinner’s claim against
Cunningham rests on NHSP’s exercise yard supervision and I
dismissed his only claim against subordinates Fiorillo and Denis
related to the exercise yard, there can be no supervisory
liability against Cunningham on this basis. As such, I grant
defendants' motion to dismiss against Cunningham as it relates to
Skinner’s “failure to protect” claim.
-16- B. Skinner’s Due Process Claim
In Count I I , Skinner alleges defendant Ray Guimond violated
his right to due process by “indefinitely continu[ing] the
hearing on the disciplinary charge arising out of Balagot’s
death.” Compl. ¶ 9 0 . Skinner further states that as a result he
was confined to N-Tier, a more secure SHU tier, for 40 days and
confined to SHU for the remainder of his stay at NHSP. Compl. ¶
91. In Sandin v . Conner, 515 U.S. 4 7 2 , 483 (1995), the Supreme
Court acknowledged that a state may, under certain circumstances,
create liberty interests implicating the Due Process Clause. It
held, however, that:
[T]hese interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force . . . nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.
Dominique v . Weld, 73 F.3d 1156, 1159, (1st Cir. 1996)(emphasis
in original) (citing Sandin, 515 U.S. at 4 8 3 ) . Skinner argues
that N-Tier’s conditions were “atypical and significant” in that
he was deprived of typical features of NHSP namely access to
television, radios, canteen, education and vocational
opportunities and regular outdoor exercise. Pl.’s O b j . to Defs.’
-17- Mot. for Summ. J. at 1 7 . This argument fails in light of Sandin,
however, because, as the court in that case recognized, 30 days
of punitive segregation does not qualify as the kind of atypical
and significant hardship that is required to implicate a liberty
interest under the Due Process Clause.
C. Skinner’s Cruel and Unusual Punishment Claims
Skinner’s third, and final, claim involves a series of
events that amount, in his opinion, to a violation of the Eighth
Amendment’s prohibition against cruel and unusual punishment.
Skinner divides his claims into two groups: (1) claims arising
from the three cell extractions; and (2) remaining instances of
harassment.
1. Cell Extractions
Skinner’s challenge to the three cell extractions is not
directed at the removals themselves. Instead, Skinner argues
that the extractions “were overkill, that the reasons giving rise
to the extractions did not warrant such a heavy handed response.
Put differently, [he contends that] defendants could have
resolved the perceived problem by non-violent responses.” Pl.’s
O b j . to Defs.’ Mot. for Summ. J. at 1 9 .
-18- When confronted with a disturbance, such as when Skinner
resisted restraint or charged the tier when defendants opened his
cell door, prison officials “must balance the threat unrest poses
to inmates, prison workers . . . against the harm [the] inmate[]
may suffer if guards use force.” Hudson v . McMillian, 503 U.S.
1 , 6 (1992). Accordingly, Skinner must demonstrate that force
was applied “maliciously and sadistically for the very purpose of
causing harm,” rather than “in a good faith effort to maintain or
restore discipline.” Id. (citing Whitley v . Albers, 475 U.S.
312, 320-321 (1986)) (internal quotation marks omitted). In
making this determination, Whitley and Hudson instruct me to
evaluate “the need for application of force, the relationship
between that need and the amount of force used, the threat
reasonably perceived by the responsible officials . . . and any
efforts made to temper the severity of a forceful response.” Id.
at 7 (quoting Whitley, 475 U.S. at 321)(internal quotation marks
omitted).
In each of the three extractions, Skinner was asked
repeatedly to comply with corrections officers instructions, for
example to “cuff up.” After refusing to cooperate, Skinner
wrestled and fought the officers again refusing their
-19- instructions that he cease fighting and allow them to restrain
him. In addition, Skinner is an extremely strong inmate who, in
one incident, pushed through several officers and made his way
onto the prison tier. See Ex. Y to Defs.’ Mot for Summ. J.
During the third extraction, Skinner claims his throat was
improperly held and his eyes were poked. Even assuming that this
occurred, there is no evidence to demonstrate that during the
chaos he created, defendants maliciously injured him. In
addition, as the video exhibit demonstrates, the officers were
very aware of how they were holding Skinner’s head and repeatedly
instructed one another to support his neck. See id. There is
simply no evidence that any defendant acted “maliciously or
sadistically for the very purpose of causing harm.” See Hudson,
503 U.S. at 6.
2. Other Alleged Forms of Harassment
Skinner states that the defendants' alleged harassment
amounts to cruel and unusual punishment. Specifically, Skinner
alleges that racial comments, accusations of biting defendant
Dodge, and slamming cell doors during the night deny him of
civilized measure of life’s necessities. See Hudson,503 U.S. at
9; see also, Rhodes v . Chapman, 452 U.S. 3 3 7 , 347 (1981).
-20- “Extreme deprivations are required to make out a conditions
of confinement claim” under the Eighth Amendment. Hudson, 503
U.S. at 9. Defendants argue that even if Skinner’s allegations
are true, they do not amount to a “sufficiently serious”
deprivation to amount to an Eighth Amendment violation. Wilson
v . Seiter, 501 U.S. 2 9 4 , 299 (1991). I agree. Even if Skinner’s
accusations are true, they do not deprive him of life’s
necessities. For example, the racial comment Skinner complained
of appears to be an isolated incident overheard by Skinner while
a defendant was on another tier. Even if I view these incidents
cumulatively, factually they do not amount to the kind of
deprivation required to give rise to an Eighth Amendment
violation. As such, I grant defendants' motion to dismiss Count
III in its entirety.
III. CONCLUSION
For the forgoing reasons, I grant defendants’ motion for
summary judgment in part and deny it in part. (Doc. N o . 4 2 ) . I
grant defendants’ motion as follows: Count I as to defendants
Cunningham, Fiorillo and Denis; Count II in its entirety; and
-21- Count III in its entirety. I deny defendants’ motion as to Count
I against defendants Nagey, Shaw, Davies, and Hardy.
SO ORDERED.
Paul Barbadoro Chief Judge
August 2 0 , 2003
cc: Andrew B . Livernois, Esq. Michael Sheehan, Esq.
-22-