United States District Court, D. New Hampshire
Lynmarie C. Cusack, Esq.
E. Douglass, Esq.
Francis Charles Fredericks, Esq.
Benjamin T. King, Esq.
MEMORANDUM AND ORDER
BARBADORO UNITED STATES DISTRICT JUDGE
Leite, a former inmate at Northern New Hampshire Correctional
Facility ("NCF"), brings suit against several NCF
corrections officers alleging violations of his Eighth and
Fourteenth Amendment rights. Leite's claims arise from an
inmate-on-inmate assault during his incarceration that caused
him to suffer a traumatic brain injury. He alleges that the
defendants were deliberately indifferent to his health and
safety by both failing to protect him from the assault to
begin with and failing to provide him with timely medical
attention in its aftermath. With discovery closed, the
defendants now move for summary judgment on all of
Leite's claims. For the reasons discussed herein, I grant
defendants' motion in full.
Friday, August 24, 2012, at or around 2:40 p.m., Leite was
severely beaten inside Cell 9 of NCF's
"F-block" by several other inmates. The beating
left him dazed and debilitated. He suffered skull and facial
fractures, intracranial bleeding, and residual cognitive and
psychiatric effects as a result. Following the assault,
inmates kept Leite hidden inside the cell, which was not his
own, until 4:20 p.m. when the inmates moved him back to his
bunk in the open cellblock. He thereafter lay motionless in
his bed for almost an hour. Leite did not receive medical
attention until 5:10 p.m., shortly after corrections officers
claim they first discovered his injuries.
seeks damages from four corrections officers who were on duty
when he was attacked or shortly thereafter: Lynn McLain,
Kathy Bergeron, Trevor Dube, and Ejike Esobe. In the sections
that follow, I describe the scene of the assault and discuss
relevant NCF security procedures. I then examine the events
surrounding Leite's assault in greater detail. Other than
what each defendant saw or knew, the material facts are
NCF F-Block & Relevant Security
is one of NCF's eight housing units. At the time of the
assault it housed 69 inmates, including Leite. Doc. No. 38-3
at 3; Doc. No. 38-4. The rectangular cellblock consists of a
large, open room with a mezzanine level. It holds 30 cells,
split between the two levels. The cells surround an 80-by-29
foot common area known as the "dayroom" on three
sides. The dayroom contains tables, a laundry machine, and a
workout station. It is used by all F-block inmates throughout
any given day and is connected to the mezzanine by an open
staircase in the middle of the cellblock. Adjacent to the
staircase, along the cell-less fourth wall of the block, is a
row of five bunkbeds known as the "dayroom bunks"
that serve as temporary housing for inmates newly assigned to
F-block. On the date of the assault, Leite was assigned to
"Bunk IT, " the top bunk closest to the base of the
staircase. Jason Gelinas, who helped plan the attack on
Leite, was assigned to Cell 9, also on the floor level and
fifteen-to-twenty yards across from Bunk IT.
officers did not maintain a constant physical presence on
F-block in August 2012. Doc. No. 38-3 at 8. Instead, as with
other housing units, F-block was monitored by periodic
physical "checks" and security cameras. Corrections
officers monitored the blocks over the course of three
eight-hour shifts. See id. at 8-9. Physical checks
were predominantly conducted using "counts" and
"rounds." During counts, officers were required to
physically identify and account for each inmate housed on the
cellblock. See Doc. No. 42 at 2; Doc. No. 50-3 at
20. Counts were primarily meant to ensure that each inmate
was both physically present and "alive and well."
Doc. No. 42 at 3. "Formal" scheduled counts were
required at least four times per 24-hour period, see
Doc. No. 42 at 2, but were typically conducted five to six
times daily, or about twice per eight-hour shift.
See Doc. No. 38-3 at 8; Doc. No. 38-26 at 3; Doc.
No. 50-3 at 20. With the exception of the 11:00 p.m. and 2:30
a.m. counts, all counts required inmates to be out of bed and
standing. Doc. No. 38-26 at 3; Doc. No. 50-3 at 20. To ensure
accurate identification and each inmate's well-being,
officers conducting counts were required to "see
movement of bare skin or talk with (hear from) the
inmate." Doc. No. 42 at 3.
required corrections officers to periodically walk through
the cellblocks to "evaluate safety, security, and
sanitation." Doc. No. 42 at 3. Rounds were conducted at
least once an hour on a staggered basis to prevent the
detection of predictable patterns. See id. at 2;
Doc. No. 38-3 at 8-9. Officers conducting rounds, typically
two at a time, were required to "gauge" the
"attitude" of the inmates as they walked through
the cellblock to ensure that no infractions were occurring
and that all inmates were safe. Doc. No. 50-3 at 4. Officers
were also "supposed to" look through the five-by-20
inch, open-air window on every cell door as they surveyed the
cell rows, see, e.g., Doc. No. 50-3 at 4; Doc. No.
38-33 at 14; see also Doc. No. 50-2 at 8, and to
"check the bunks" in the day room, see
Doc. No. 50-13 at 3, 5; "to make sure everything[ was]
normal on the unit." Doc. No. 50-3 at 10. If an inmate
appeared to be sleeping during rounds, some, but not all,
officers routinely approached the inmate to ensure that he
was breathing, or to look for blood, see Doc. No.
50-9 at 2-3; Doc. No. 50-13 at 5, but there is no evidence
that the practice was mandatory. Other officers regularly
conducted rounds quickly, without checking bathrooms,
closets, or cells. See Doc. No. 38-2 at 59.
differed from counts in that rounds did not require officers
to confirm the identity and physical location of each
individual inmate, but were meant to ensure that no
prohibited behavior was occurring. See Doc. No. 50-3
at 21; Doc. No. 50-9 at 2-3. Typical infractions identified
during rounds included inmates tattooing one another, using
drugs, fighting, or "cell hopping, " which refers
to inmates visiting cells to which they were not assigned.
See Doc. No. 50-3 at 10-11. Officers conducting
rounds also frequently fielded questions from inmates as they
arose. On average, a properly conducted round took three to
four minutes to complete, barring some occurrence requiring
further attention. See Doc. No. 53-3 at 10.
addition to counts and rounds, corrections officers monitored
inmates' housing units through a closed-circuit video
surveillance system. Each housing unit had two cameras that
streamed live visual feeds of each cellblock's dayroom to
control rooms operated by corrections officers. Doc. No. 50-3
at 14. F-block's two cameras, feeding channels 29 and 30,
were positioned on opposite ends of the cellblock, mounted
high near the ceiling. Together, they provided views of the
entire F-block dayroom, except for limited blind spots, most
floor-level cell doors, the staircase, the dayroom bunks, and
parts of the mezzanine. Each camera provided one fixed angle,
with no audio. Neither captured the inside of any individual
cell, closet, or bathroom.
F-block cameras streamed to monitors in a control room known
as "control point 5, " or "CP5, "
operated by a single corrections officer. Doc. No. 50-3 at
13. The CP5 officer was tasked with operating all doors
within the "upper housing and industries area[s], "
monitoring those areas, answering calls from other areas in
the facility, and paging inmates to come to health services,
hearings, or other appointments as the need arose. Doc. No.
38-20 at 1-2; Doc. No. 50-6 at 3, 11. The upper housing and
industries areas included F-block, three other housing units,
offices, industrial shops, a long corridor, and a stairwell.
Doc. No. 38-20 at 1-2; Doc. No. 50-6 at 3, 11. The industries
area, which was visible from the CP5 station itself, was
positioned behind the CP5 officer's chair, opposite the
control panel. Doc. No. 50-6 at 10. All other areas were
monitored with security cameras, of which there were at least
12, whose views were accessible on either of two video
monitors. Doc. No. 38-20 at 1-2.
views on both monitors could be switched by using a touch
screen at the CP5 officer's control. Doc. No. 38-20 at
1-2. On one of the screens, CP5 officers would typically
leave a view of the corridor displayed due to that area's
frequent traffic. See Doc. No. 38-1 at 6; Doc. No.
38-20 at 2. On the other screen, CP5 officers would typically
toggle through views of the four upper-housing units, one at
a time, to monitor inmate activity. See Doc. No.
38-20 at 3. If an inmate or staff member in any one of the
four housing units pressed a "call button" to
contact CP5, the screen typically showing the hallway
temporarily switched to a view of that person. See
Doc. No. 38-20 at 2; Doc. No. 50-6 at 10. After the CP5
operator responded to the call by opening the relevant set of
doors, the screen returned to a view of the hall, making it
"hard to not have it [fixed] on the hall all the
time." Doc. No. 50-6 at 3.
August 24, 2012, Corrections Officer Lynn McLain was
stationed in CP5 for "first shift, " covering 9:00
a.m. to 3:00 p.m. The F-block video footage recovered from
CP5 on that date showed that Leite entered F-block at 2:34
p.m. and proceeded to his bed, Bunk IT. See Doc. No.
38-11. While changing his shirt and tidying his
bunk, Leite was approached by inmate Gelinas,  and the two
conversed unremarkably. At approximately 2:38 p.m., Gelinas
stepped away from Leite to attend to some laundry at a nearby
bin. With Leite's back turned to Gelinas, Gelinas subtly
made a slashing motion across his neck from left to right.
See Doc. No. 50-7 at 13. He repeated the gesture
p.m., Leite walked over to Cell 9 and entered. Shortly
thereafter, at 2:41 p.m., two other inmates entered Cell 9 in
a hurried sequence, separated by only a few seconds. Neither
of the two men, later determined to be Matthew Garcia and
Sean Lavallee, were assigned to Cell 9. All the while,
Gelinas walked somewhat aimlessly around the day room and was
eventually lost in the crowd.
at 2:42 p.m., several inmates began to crowd around Cell 9.
Some appeared to be looking inside the cell through the door
window, some leaned against the exterior wall, and others
generally loitered or walked past the cell. Those inmates
eventually dispersed at approximately 2:46 p.m. At that time,
one of the inmates emerged from cell 9, wiped his brow, and
swiftly walked up the staircase to the upper level. Seconds
later, another shirtless inmate emerged from Cell 9, quickly
walked over to Bunk IT, retrieved clothing from below the
bunk, and returned to the cell. He repeated this exercise
twice more over the next two minutes. At 2:49 p.m., he
reemerged and started for Bunk IT for the fourth time, but
hesitated. Before reaching the bunk, he slowed and pointed
toward it, arm fully extended as he looked back at the cell.
He then grabbed a pillow from the top bunk, collected more
clothing, and returned to Cell 9. From 2:50 p.m. to 2:57
p.m., different inmates continued to enter and exit Cell 9 at
intervals ranging from ten to forty seconds, with others
stopping occasionally to peer into the cell through the
an investigation, the officers learned that Leite was
attacked in Cell 9 by Garcia and Lavallee shortly after he
entered the cell at 2:39 p.m. Gelinas was involved in
orchestrating the assault, which lasted anywhere from two to
ten minutes. Doc. No. 38-27 at 3; see Doc. No.
50-7 at 14; see also Doc. 38-34 at
Because the assault left Leite "disoriented, "
vomiting, and generally "[un]aware of his surroundings,
" Gelinas and other inmates kept Leite inside Cell 9
until 4:20 p.m. to conceal him from corrections officers.
Doc. No. 38-27 at 3-4. Gelinas put Leite in the bottom bunk
in Cell 9 and "made it look like he was sleeping."
Doc. No. 38-27 at 3. Gelinas and other inmates cleaned the
area of any blood and vomit, kept ice on Leite's head to
keep him "cool" and "awake, " and
"flushed" much of the remaining evidence.
Id. at 4. As Gelinas admits, they did this for the
specific purpose of evading detection.
p.m. there was a shift change from first shift to second.
Corrections Officer Ejike Esobe, another defendant, took over
the CP5 post from Officer McLain. At 3:40 p.m., Corrections
Officers Kathy Bergeron and Trevor Dube, who are also
defendants, entered F-block to conduct rounds. Officer Dube,
the "officer in charge" for that shift,
see Doc. No. 38-28 at 1, surveyed the mezzanine,
while Officer Bergeron surveyed the floor-level cells. Both
officers entered the cellblock on the floor level from the
same door. Officer Dube proceeded through the back half of
the dayroom to the staircase, climbed the stairs, surveyed
the mezzanine cell row, and exited the cellblock. Officer
Bergeron walked along the floor-level cells, eventually
reaching and passing Cell 9, checked the bathroom and closet,
and exited through a different door on the floor level. The
rounds were conducted briskly, with both officers making
their way through the cellblock in a minute or less. Both
officers reported that all was "clear" on F-block
at that time. The video evidence does not clearly depict
whether Officer Bergeron looked into Cell 9 as she passed,
but she now claims that she did and saw nothing amiss. Doc.
No. 38-16 at 3.
footage showed that Gelinas finally released Leite from Cell
9 at 4:20 p.m. Leite emerged from the cell, initially on his
feet, shirtless, and barefoot. His legs gave out almost
instantly as he took his second step away from the cell. He
fell hard to the ground, landing on his backside, with his
legs split apart. He then slowly shifted around in an attempt
to stand back up. Gelinas then emerged from Cell 9, stepped
toward Leite as he struggled on the floor, but hesitated and
returned to the cell. Seconds later, Gelinas re-emerged and
grabbed Leite by the arm to help him to his feet. Gelinas
then hurriedly walked Leite ...