The opinion of the court was delivered by: Joseph A. DiClerico, Jr. United States District Judge
John W. Gebo, an inmate in the New Hampshire State Prison system, brings an action pursuant to 42 U.S.C. § 1983 against Unit Manager Robert Thyng, alleging violation of his Eighth Amendment rights for failing to protect him from assault by other inmates. Thyng moves for summary judgment on the ground that Gebo failed to exhaust his administrative remedies. Gebo objects. Thyng filed a motion to strike parts of an affidavit submitted by Gebo in support of his objection, and Gebo also objects to that motion.
Thyng moves to strike certain statements in an affidavit by David Peters that Gebo submitted in support of his objection to summary judgment. Thyng contends that the affidavit includes statements that cannot be considered for purposes of summary judgment because they are not based on Peters's personal knowledge and are hearsay. The challenged statements pertain to the contents of a request slip and to what Gebo told Peters during a conversation.
Statements in affidavits "are effective in opposing summary judgment only when they are given on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is competent to testify about the matter in question." Hannon v. Beard, 645 F.3d 45, 49 (1st Cir. 2011); see also Fed. R. Civ. P. 56(c)(4). Hearsay is an out-of-court statement offered for its truth. Fed. R. Evid. 801. Statements that would otherwise be inadmissible hearsay may be admissible if they are covered by an exception to the hearsay bar. Fed. R. Evid. 802. Those exceptions include certain statements that are not hearsay as defined by Rule 801(d), and statements that fall within the exceptions provided by Rules 803 and 804.
Peters's statements in his affidavit about his conversation with Gebo in September of 2009 may be considered to show that Peters and Gebo met and talked at that time and that they talked about Gebo having been assaulted and his concern for his safety. Gebo showed Peters the request slip, and Peters saw Gebo put the slip in the appropriate box. Because Peters does not say that he read the request slip, Peters's statements about his understanding of what the request slip said are hearsay and will not be considered. Similarly, Peters's statement that he believed the upstairs unit at the prison was easily accessible to those in the downstairs unit will not be considered for purposes of summary judgment.
II. Motion for Summary Judgment
The record presented by the parties for and opposing summary judgment, as limited by the result above, is considered under the applicable standard.
Summary judgment is appropriate if the moving party "shows that 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). A party opposing summary judgment "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Material facts are "facts that might affect the outcome of the suit under the governing law." Id. at 248. The court considers the undisputed material facts and all reasonable inferences from those facts in the light most favorable to the nonmoving party. Avery v. Hughes, 661 F.3d 690, 693 (1st Cir. 2011).
During the events at issue in this case, Gebo was an inmate at the Northern New Hampshire Correctional Facility. On September 2, 2009, Gebo was housed in the general prison population when he was attacked by other inmates. Gebo knew that at least two of the attackers were members of prison gangs, and he believed he was attacked because he refused to join either gang. He was treated at Androscoggin Valley Hospital for injuries he sustained in the attack.
On his return to the prison, Gebo was given Administrative Review status. Initially he was housed in the Health Services Center at the prison. The next day, September 3, Gebo told Unit Manager Robert Thyng that he needed to be placed in protective custody because he had been assaulted by a known ...