Leite v. Bergeron , 911 F.3d 47 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 18-1682
JONATHAN LEITE,
Plaintiff, Appellant,
v.
KATHY BERGERON, Corrections Officer,
Defendant, Appellee,
MATTHEW GOULET, Corrections Officer; ELMER VAN HOESEN,
Corrections Officer; MICHAEL BEATON, Corrections Officer; LYNN
MCLAIN, Corrections Officer; RHIANNE SNYDER, Corrections
Officer; TREVOR DUBE, Corrections Officer; EDDY L'HEUREUX,
Corrections Officer; HEATHER MARQUIS, Corrections Officer;
JEFFREY SMITH, Corrections Officer; DWANE SWEATT, Corrections
Officer; YAIR BALDERRAMA, Corrections Officer; BOB MORIN,
Corrections Officer; EJIKE ESOBE, Corrections Officer,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Lynch, Thompson, and Barron,
Circuit Judges.
Benjamin T. King, with whom Douglas, Leonard & Garvey, P.C.
was on brief, for appellant.
Francis C. Fredericks, Jr., Senior Assistant Attorney
General, Civil Bureau, with whom Gordon J. MacDonald, Attorney
General of New Hampshire, was on brief, for appellee.
December 19, 2018
LYNCH, Circuit Judge. This appeal is from the
rejection of a claim of unconstitutional deliberate indifference
by a corrections officer to the health and safety of an inmate,
Jonathan Leite. Leite v. Goulet, No. 15-CV-280-PB, 2018 WL
3057740 (D.N.H. June 20, 2018). Leite was badly beaten by other
inmates in a cell at a New Hampshire medium-security prison on
August 24, 2012. Leite alleges that a corrections officer,
Kathy Bergeron, was deliberately indifferent while doing a round
that day, leading to a delay in his being provided with medical
treatment, which in turn exacerbated his injuries, including
brain injuries.
The district court granted the motion for summary
judgment of the many original defendants in this 42 U.S.C § 1983
case, and Leite appeals only as to Bergeron. Leite bases his
claim against Bergeron on evidence tending to show that when
Bergeron conducted a round at 3:40 p.m., she did not look in the
cells (as she should have done), and so did not see that Leite
was lying on a bed in a cell assigned to others, and on looking
further, would have seen he was injured. Leite was observed at
5:08 p.m. during a count (different from a round), injured in
his own bed (not in that cell), and that led to his getting
medical attention.
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We affirm on the basis that no reasonable juror could
conclude that Bergeron was deliberately indifferent under the
Eighth Amendment based on the facts presented by Leite.
I.
A. Facts
As always on appellate review of grants of summary
judgment, we recite the facts "'in the light most favorable to
the nonmoving party' to the extent that they are supported by
competent evidence." Ellis v. Fid. Mgmt. Tr. Co., 883 F.3d 1, 3
(1st Cir. 2018) (quoting Walsh v. TelTech Sys., Inc., 821 F.3d
155, 157-58 (1st Cir. 2016)). Leite was an inmate at the
Northern New Hampshire Correctional Facility (NCF) on August 24,
2012. NCF's F-block, where Leite was housed from the time he
became incarcerated about one month earlier, had thirty cells,
located on two floors, and housed between sixty and eighty
inmates. The cells surrounded a common area, or "dayroom," on
the first floor. The dayroom also had several bunk beds where
new inmates sometimes slept. Leite was assigned to one of the
dayroom bunk beds, and not to a cell.
In August 2012, the F-block was a general-population,
medium-security area with no inmates with maximum-security
classifications.1 The corrections officers did not have any
1 NCF segregated inmates based on propensity for
violence. Leite does not argue that the inmates who attacked
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orders to keep Leite separate from other inmates. Leite had
never expressed any concerns for his own safety, nor had Leite
requested to be put in protective custody.
Corrections officers monitored the F-block with
security cameras and periodic rounds and counts. Two cameras
streamed live footage of the dayroom into a control room
operated by corrections officers. Many of the facts and the
timing of events recited came from those tapes and are not
disputed. The cameras had a fixed angle and did not capture the
inside of individual cells, closets, or bathrooms. Inmate-on-
inmate violence typically occurred in cells or other areas that
were out of the security cameras' view.
Rules required officers to conduct at least four
counts per day. During counts, officers identified and
accounted for each inmate, making sure they were present, alive,
and well. Before counts, corrections officers were given
documents listing inmates and their cell or bunk assignments.
During counts (except for the 11:00 p.m. and 2:30 a.m. counts),
inmates had to be out of bed and standing. The officers were
required to "see movement of bare skin or talk with (hear from)
the inmate." Leite makes no claim that counts were not done
properly.
him were known by NCF officials to be violent or to attack
others.
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Rounds, by contrast to counts, were less thorough and
had different purposes. During rounds, the officers walked
through the cellblock to evaluate safety, security, and
sanitation. Rounds took place at least once an hour, on a
staggered basis so that inmates could not anticipate them.
Rounds differed from counts in that rounds did not require
officers to confirm the identity or physical location of each
individual inmate. Rounds were meant to ensure that no
prohibited behavior was occurring. The officers were supposed
to see that inmates were not tattooing one another, using drugs,
fighting, or "cell-hopping" (visiting cells other than the ones
to which they were assigned). A properly conducted round took a
corrections officer, on average, three or four minutes to
complete.
Corrections officers were supposed to look through the
window on every cell door during rounds, but typically did not
enter the cells unless they saw a problem or emergency. It was
not unusual for inmates to be asleep or on a bed during the day.
If an inmate was sleeping during rounds, some officers would
approach to make sure the inmate was breathing and uninjured,
but this was not required. Assignments for counts and rounds
were given to corrections officers on a day-to-day basis, and
often changed.
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On August 24, 2012, Leite re-entered the F-block at
2:34 p.m. and walked to his bunk bed. Another inmate, Jonathan
Gelinas, approached Leite, and the two spoke briefly. At 2:38
p.m., Gelinas walked away. When Leite was not looking, Gelinas
twice made a slashing motion across his own neck, apparently as
a signal.
A minute later, at 2:39 p.m., Leite left his bunk bed
and walked diagonally over to Cell 9, which was fifteen to
twenty yards away, and entered. Cell 9 was assigned to Gelinas
and another inmate, Ryan Elliot. Two other inmates, Sean
Lavallee and Matthew Garcia, entered Cell 9 after Leite did.
Lavallee and Garcia severely beat Leite inside the cell.
Gelinas had helped plan the attack, which lasted between two and
ten minutes.
The attack left Leite disoriented and vomiting.
Inmates could press a call button to contact the control room,
operated by a corrections officer, but there is no assertion
that Leite did that. Gelinas and other inmates initially kept
Leite in Cell 9 so that the corrections officers would not
notice his condition. Gelinas put Leite in the bottom bunk and
"made it look like he was sleeping." Gelinas and other inmates
cleaned up Leite's blood and vomit in Cell 9 and kept ice on
Leite's head, to hide the assault.
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About ten minutes before the 3:40 p.m. round, a number
of inmates from the F-block went out for yard time. At 3:40
p.m., Officers Kathy Bergeron and Trevor Dube entered the F-
block to conduct a round. Because many inmates were outside in
the yard, few were inside the F-block. Dube surveyed the second
floor cells while Bergeron surveyed the first floor area and
cells, including Cell 9. Bergeron knew Leite by sight and also
knew he was not assigned to Cell 9. There is no claim that
Bergeron was aware of any evidence that an assault had recently
occurred inside Cell 9 or that whoever was inside Cell 9 was
injured.
Video surveillance footage of this round does not
establish whether or not Bergeron turned her head to look in
Cell 9 or any of the other cells.2 Bergeron, after passing Cell
9, did check the bathroom and closet. Both officers conducted
the round in less than one minute, and then stated that all was
"clear." Bergeron did not return by the way she had come.
There is no assertion by Bergeron that some exigency distracted
her during that round.
At 4:20 p.m., after the round, Leite walked out of
Cell 9 and collapsed on the floor of the dayroom. Gelinas
2 In the video footage, the second floor balcony mostly
covers Bergeron's head as she walks along the cells. Cell 9 is
off-screen. Bergeron appears to pause and shift her body at one
point as she walks along the cells, but this is not conclusive.
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grabbed Leite by the arm, walked Leite to his own bunk bed, and
then walked away. Leite climbed to the top bunk and lay face-
down on the bed, assisted by another inmate. Leite then lay
motionless, except for when he leaned over the side of the bed
to vomit onto the floor.3 An inmate cleaned up the vomit
sometime before Bergeron and Dube conducted their next round at
4:50 p.m.
During the 4:50 p.m. round, Bergeron again walked
through the first floor and Dube walked through the second
floor. The officers again reported that everything was "clear."
On appeal, Leite does not argue that this 4:50 p.m. round, when
Leite was back in his own bed, evidenced deliberate indifference
by Bergeron.
Officers discovered Leite's condition shortly
thereafter, during a count. At 5:00 p.m., Bergeron and Sergeant
Dwane Sweatt announced a count and ordered the inmates to stand
in their cells or by their bunk beds. Bergeron walked through
the first floor and Sweatt walked through the second floor.
Bergeron approached Leite's bunk, saw that he was still in bed,
and told him to stand. Leite did not get up, and Bergeron
repeatedly called his name. Sweatt came near, having finished
the count upstairs. Sweatt saw Leite lying on his back, with
3 The record does not state at what time Leite vomited
onto the floor.
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blood coming out of his mouth and running down his face.
Eventually, Leite climbed down from his bunk bed, but he needed
to support himself on the bed in order to stand.
Sweatt had Leite lie down. Leite was incoherent and
blood continued to run down his face, and his bed was soiled.
At 5:08 p.m., Sweatt summoned first responders. At 5:11 p.m.,
Leite told the officers that he had lost consciousness earlier,
so Sweatt declared a medical emergency and summoned nursing
staff and local Emergency Medical Services. Leite was taken to
a hospital, where he remained for two weeks.
Leite was treated for contusions, skull and facial
fractures, intracranial bleeding, and residual cognitive
deficits. He now suffers from post-traumatic stress disorder
and mild neurocognitive disorder due to the attack. The attack
also aggravated Leite's pre-existing anxiety, depression, and
personality disorders. Leite offered expert testimony that the
delay in treating his injuries "resulted in a lost opportunity
for mitigating the extent of his damage."
B. Procedural History
On July 14, 2015, Leite filed a one-count complaint in
the U.S. District Court for the District of New Hampshire, under
42 U.S.C. § 1983, against fifty-two corrections officers. On
August 26, 2015, Leite amended his complaint to name as
defendants only the fourteen officers on shift during or shortly
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after the attack. On October 13, 2017, all defendants moved for
summary judgment. Leite opposed the motion only as to four
defendants, including Bergeron. The district court granted the
four remaining defendants' motions for summary judgment on June
20, 2018. Leite, 2018 WL 3057740, at *1.
Leite timely appealed, challenging the district
court's grant of summary judgment only as to Bergeron, and only
as to the round she conducted at 3:40 p.m.
II.
We review a district court's grant of summary judgment
de novo. Perry v. Roy, 782 F.3d 73, 77 (1st Cir. 2015). A
movant is entitled to summary judgment if "there is 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). "An issue
is genuine if it can be resolved in favor of either party, and a
fact is material if it has the potential of affecting the
outcome of the case." Tang v. Citizens Bank, N.A., 821 F.3d
206, 215 (1st Cir. 2016) (internal quotation marks omitted)
(quoting Pérez–Cordero v. Wal–Mart P.R., Inc., 656 F.3d 19, 25
(1st Cir. 2011)).
The lead Supreme Court decision on Eighth Amendment
protections in prisons is Farmer v. Brennan, 511 U.S. 825
(1994). Prison officials must provide "humane conditions of
confinement," including adequate medical care. Id. at 832.
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"[A] prison official violates the Eighth Amendment only when two
requirements are met." Id. at 834. First, "the deprivation [of
care] alleged must be, objectively, 'sufficiently serious.'"
Id. (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). For
claims based on inadequate medical care, "[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." Gaudreault v. Municipality of Salem, 923 F.2d 203,
208 (1st Cir. 1990).
Second, a prison official must have a "sufficiently
culpable state of mind" such that the official shows
"'deliberate indifference' to inmate health or safety." Farmer,
511 U.S. at 834 (quoting Wilson, 501 U.S. at 297, 302-03). A
prison official is deliberately indifferent where she "knows of
and disregards an excessive risk to inmate health or safety."
Id. at 837. 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
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."
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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).
We assume arguendo that Leite's medical needs were
sufficiently serious, and that he has provided sufficient
evidence to withstand summary judgment as to causation. The
issue on appeal is whether Leite has produced enough evidence
for a jury to conclude that Bergeron had the requisite culpable
state of mind.
Leite argues that Bergeron had a culpable state of
mind of deliberate indifference to his need for medical care,
based on the cursory manner in which Bergeron conducted the 3:40
p.m. round. His theory is that a jury could reasonably infer
that "if the defendant Bergeron had done her job and had looked
in the cells during the 3:40 p.m. round, she would have found
Mr. Leite in the wrong cell, would have confronted him regarding
prohibited 'cell hopping,' and would have immediately discovered
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that Mr. Leite was seriously injured and in need of medical
care."4
"It is not, however, every injury suffered by one
prisoner at the hands of another that translates into
constitutional liability for prison officials responsible for
the victim's safety." Farmer, 511 U.S. at 834. Under Farmer,
"an official's failure to alleviate a significant risk that he
should have perceived but did not, while no cause for
commendation, cannot . . . be condemned as the infliction of
punishment" under the Eighth Amendment. Id. at 837. The
district court found that Leite "present[ed] no evidence that
Bergeron was actually aware of any specific evidence that Leite
faced a heightened risk of assault or that he or anyone else in
Cell 9 had been assaulted and was in need of medical treatment."5
Leite, 2018 WL 3057740, at *8. The district court found on this
basis and on this record that Bergeron's "awareness of a general
risk facing all inmates at all times, without more, is simply
4 To be clear, Leite makes no argument that Bergeron
knew that he (or any other inmate) was injured, had been
attacked, or was in a cell that was not his own, when she
conducted the 3:40 p.m. round.
5 We have stated that "[u]nder Farmer . . . it is
irrelevant 'whether the prisoner faces an excessive risk of
attack for reasons personal to him or because all prisoners in
his situation face such a risk.'" Calderón-Ortiz, 300 F.3d at
65 (quoting Farmer, 511 U.S. at 843).
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not enough to establish the subjective knowledge required for
the deliberate indifference standard." Id.
Given that Leite's claim is based on Bergeron's
conduct during one round, the district court correctly held that
the plaintiff needed to produce evidence that Bergeron knew of a
risk specific to Leite. There is no such evidence, as our
recitation of the facts makes clear.
Leite also argues Bergeron need not have been aware of
Leite's condition, because it is enough that she showed willful
blindness to the risk he faced. Farmer did recognize that an
officer "would not escape liability if the evidence showed that
he merely refused to verify underlying facts that he strongly
suspected to be true, or declined to confirm inferences of risk
that he strongly suspected to exist." 511 U.S. at 843 n.8. But
there is no evidence that Bergeron had any suspicion that an
inmate needed medical attention when she conducted the 3:40 p.m.
round. Other inmates had concealed Leite's condition for as
long as possible, moving him from one bed to another to avoid
detection, and cleaning up his blood and vomit.6
6 We bypass a potential dispute of fact and assume
Bergeron did not look in Cell 9 during the 3:40 p.m. round. At
deposition, Bergeron testified that "I always aim to look into
every single cell," and she acknowledged that she understood the
safety and security reasons for doing so. She also stated that
when she did rounds, she was "looking to make sure that
everything appear[ed] fine within the cell" and that there were
"only two [inmates] in the cell."
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There is no developed argument that the prison or
indeed Bergeron had a policy, or even had adopted a practice, of
never looking at inmates in cells or bunk beds during rounds,
thus arguably increasing generalized risk. So that precise
question is not presented by the case before us.7 It is true
that Leite cites his deposition testimony to state that
Bergeron's "normal practice" was to "hurry through rounds
without looking into cells."8 But he relies on this testimony
7 Calderón-Ortiz, cited by Leite, does not support his
argument. There, a claim survived a motion to dismiss where a
correctional facility was alleged to have no policies or
procedures in place to protect against known risks of sexual
assault. See 300 F.3d at 65-66.
8 Leite quotes his deposition testimony:
Q. What do you remember of your
observations of [the defendant Bergeron]
doing rounds?
A. I mean I guess you could say the
quicker you can get off the block, the
better would be my opinion . . . .
Literally walking by cells and not even
looking in . . . .
Q. . . . So you observed Corrections
Officer Bergeron doing rounds without
looking in the cells; is that correct?
A. Yes.
Q. How frequently would you observe her
doing rounds without looking in the cells?
A. I mean it's really hard to remember,
but it was -- it was a normal practice. I
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only to support an inference that Bergeron failed to look in
Cell 9 during the 3:40 p.m. round on the day Leite was attacked.
Leite does not develop any argument that Bergeron's "normal
practice" demonstrated deliberate indifference to the health and
safety of the inmates, nor does he argue that this "normal
practice" was her or the prison's policy. See Valdez v. Lynch,
813 F.3d 407, 411 n.1 (1st Cir. 2016) (finding an argument is
waived where the petitioner "throws in a couple references" to
it, but "fails to develop" it).
The district court's grant of summary judgment is
affirmed.9
can't say if it was every day or -- but it
was regularly.
9 Bergeron also argues that she is entitled to qualified
immunity. We do not reach this issue, since we hold that
Bergeron is entitled to summary judgment on Leite's deliberate
indifference claim.
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