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Dabilis v. Hillsborough County

United States District Court, D. New Hampshire

March 23, 2017

John Dabilis, as Parent and Next Friend of Thomas Dabilis
v.
Hillsborough County, et al. Opinion No. 2017 DNH 059

          ORDER

          Joseph DiClerico, Jr. United States District Judge.

         John Dabilis brought federal civil rights claims and state law claims against Hillsborough County and corrections officers at the Hillsborough County Jail, arising from events that occurred when Dabilis's son, Thomas Dabilis, was detained at the jail. In response to the defendants' motions for summary judgment, Dabilis objects only to summary judgment on his claim against Hillsborough County under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”), Count III.[1] Because Dabilis does not oppose summary judgment on the other claims, which are alleged in Counts I, II, IV, V, VI, and VII of the complaint, those claims are dismissed.

         Standard of Review

         Summary judgment is appropriate when 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 genuine dispute is one that a reasonable fact-finder could resolve in favor of either party and a material fact is one that could affect the outcome of the case.” Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir. 2015). Reasonable inferences are taken in the light most favorable to the nonmoving party, but unsupported speculation and evidence that “is less than significantly probative” are not sufficient to avoid summary judgment. Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 174 (1st Cir. 2015) (internal quotation marks omitted).

         Background

         Under the local rules of this district, a party moving for summary judgment must “incorporate a short and concise statement of material facts, supported by appropriate record citations, as to which the moving party contends there is no genuine issue to be tried.” LR 56.1(a). In response, a party opposing summary judgment must “incorporate a short and concise statement of material facts, supported by appropriate record citations, as to which the adverse party contends a genuine dispute exists so as to require a trial.” LR. 56.1(b). “All properly supported material facts set forth in the moving party's factual statement may be deemed admitted unless properly opposed by the adverse party.” Id.

         Hillsborough County did not incorporate a factual statement in its memorandum in support of its motion for summary judgment, as required under the local rules. Instead, Hillsborough County incorporated by reference the factual statement provided in support of a separate motion for summary judgment that was filed by the individual defendants.[2] Dabilis did not object to the nonconforming memorandum provided by Hillsborough County and did not provide a factual statement in opposition to either motion for summary judgment. Therefore, Dabilis is deemed to have admitted the properly supported facts in Hillsborough County's “incorporated” statement of facts.

         Thomas Dabilis was arrested by Nashua police during the evening of July 29, 2013, and was taken to Hillsborough County Jail for booking as a pre-trial detainee.[3] Because of Thomas's behavior during booking, he was “flagged” and was seen by Nurse Martin. Martin consulted by telephone with a mental health clinician, Christine Mellnick, and placed Thomas on fifteen minute behavioral watches for his safety. Martin also recorded Thomas's medical history.

         Thomas was placed into a cell on unit 2-A at about 2:40 a.m.[4] During his rounds, Officer George Zarzycki saw that Thomas was sliding his legs out under the door of his cell and asking for help. At 8:10 a.m., Thomas asked to speak with a nurse. Nurse Lynda Wheeler was informed about Thomas's erratic behavior, odd comments, statements suggesting self harm, and the behavioral watch. Officer Todd Gardner wrote on the watch sheets that Thomas was not making sense and was talking to people who were not there.

         Nurse Wheeler went to Thomas's cell. During their interaction, Thomas made statements about killing himself. Nurse Wheeler decided that he required a more intensive watch, called a “special watch, ” and should be changed into a safety smock to avoid risks of hanging.

         To accomplish Nurse Wheeler's directives, the staff had to change Thomas's clothes and move him to a different cell. When the officers came to Thomas's cell, he told them that he was frozen and could not comply with their order to come to the cell door. The officers opened the cell door and spayed Thomas with “OC” (which is commonly referred to as pepper spray) to disorient him while they went in and secured him. Thomas, however, charged the door, tried to grab the OC canister, and tried to get out of the cell. In the process, Thomas punched the officers and staff, struck his forehead on the concrete floor, and tried to get underneath his bunk.

         After a prolonged struggle, the officers were able to get Thomas into restraints. Thomas said he would walk on his own with the escort down the hallway. When they were in the stairway, however, Thomas went limp and threw himself forward. The officers were able to prevent him from falling.

         Based on the shift commander's order, Thomas was taken to another housing unit and put into a restraint chair. Nurse Denise Ryan arrived to treat Thomas's face wounds sustained during the struggle with officers in his cell. Thomas was transported to Elliot Hospital for treatment. While in the hospital, Thomas tried to take the gun of the officer on duty, which required him to be placed in additional restraints.

         Because of his behavior, Thomas was assessed by mental health providers, including Dr. Quentin Turnbull, a psychiatrist with Manchester Mental Health. The purpose of the assessment was to determine whether Thomas should be transferred to the Secure Psychiatric Unit. Before that determination was made, Thomas's father, John Dabilis, posted his bail early on August 1, and Thomas was released from custody.

         Thomas was eventually found to be incompetent to stand trial on the assault charges that had resulted in his detention at the Hillsborough County Jail. As a result, the charges were ...


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