Jonathan Leite v. Kathy Bergeron

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-oninmate

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 Fblock

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 facedown

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.

Affirmed