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John W. Gebo v. Robert Thyng

October 11, 2012


The opinion of the court was delivered by: Joseph A. DiClerico, Jr. United States District Judge

Opinion No. 2012 DNH 183


John W. Gebo, an inmate in the New Hampshire State Prison system, brings an action pursuant to 42 U.S.C. § 1983 against Robert Thyng, who was the Unit Manager at the Northern Correctional Facility ("NCF") in New Hampshire when Gebo was an inmate there in September of 2009. Gebo alleges that Thyng violated his Eighth Amendment rights by failing to protect him from assault by other inmates. Thyng moves for summary judgment, on the ground that Gebo cannot prove his claim and alternatively that Thyng is entitled to qualified immunity. Gebo objects.

Standard of Review

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).

For the purpose of deciding Thyng's motion for summary judgment on exhaustion and after a hearing on that issue, the court made findings of fact pertinent to the 42 U.S.C. § 1997e(a) exhaustion defense. Doc. no. 46 at *3. However, there is a right to a jury trial under the Seventh Amendment for § 1983 claims. See Dillon v. Rogers, 596 F.3d 260, 271 (5th Cir. 2010). Therefore, when facts pertaining to exhaustion are also material to the claim on the merits, factual findings made for the purpose of deciding the exhaustion defense are not considered in deciding the merits of the claim. See Pavey v. Conley, 544 F.3d 739, 741 (7th Cir. 2008) ("[A]ny finding that the judge makes, relating to exhaustion, that might affect the merits may be reexamined by the jury . . . ."). The court considers the record presented for purposes of the pending motion for summary judgment under the Rule 56(a) standard.


In September of 2009, during the events that are the basis for Gebo's claim, the Northern New Hampshire Correctional Facility was overcrowded and understaffed. Thyng was aware that several gangs were operating among the inmates. Gang members preyed on other inmates by assaulting them, forcing them to move out of certain areas of the prison, requiring former gang members to rejoin the gang, and extorting payments or "rent" from inmates. Assaults on inmates by other inmates were common.

The general population area of the prison is divided into units with A through D Units on the first floor and E through H Units on the second floor. Thyng was Unit Manager at the prison. Although there was a rule that inmates were not allowed to move between the floors in the prison, inmates were able to and did go from one floor to the other. At the beginning of September, 2009, Gebo was housed in A Unit, on the first floor.

On September 2, 2009, Gebo was assaulted by other inmates. Gebo believed that at least two of the attackers were gang members who attacked him because he would not join a gang. As a result of the assault, Gebo had a large gash on the back of his head and other injuries that required treatment at Androscoggin Valley Hospital. When he returned to the prison, he was held in Health Services overnight and was placed on Pending Administrative Review ("PAR") status.

Corporal Timothy Coulombe investigated the incident and interviewed Gebo on the morning of September 3. Coulombe wrote in his report that Gebo said that after mail call on September 2 he had returned to his cell and was hit on the head from behind. The next thing Gebo knew he woke up in pool of blood. Gebo told Coulombe that he did not have problems with anyone in his unit and did not know who would have attacked him. Coulombe responded by asking Gebo why there were five people from A Unit in "the tank" for fighting, and Gebo answered that he did not know why.

The same day, Gebo asked to be assigned to protective custody because he had been attacked by a gang member.*fn1 Gebo testified at the exhaustion hearing that Sergeant Hammer took his statement about the September 2 incident and told Gebo that he would talk to Thyng. When Hammer returned, he told Gebo to pack his belongings to move to E Unit, on the second floor. Gebo testified that he was petrified at being moved to E Unit and talked to Sergeant Morin, the housing unit officer, who said she would contact Thyng.

Gebo also testified that he wrote a request slip to Thyng asking to meet with Thyng to find out why protective custody had been denied. Another inmate, David Peters, who knew Gebo, saw him on the second floor and asked Gebo why he was up there. Gebo told Peters about the assault and showed him the request slip for Thyng. Peters saw Gebo put the request slip into the box. Gebo also testified that he spoke ...

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