United States District Court, D. New Hampshire
Malachi I. Yahtues
David Dionne and Willie Scurry
Malachi I. Yahtues, pro se
A. Curran, Esq. Peter A. Meyer, Esq. Sarah S. Murdough, Esq.
J. McAuliffe United States District Judge.
the court in this case are the following cross-motions for
summary judgment filed by defendants, Hillsborough County
Department of Corrections (“HCDC”) Superintendent
David Dionne and HCDC Capt. Willie Scurry, and plaintiff
• “County Defendants' Motion for Summary
Judgment: ‘PLRA' Lack of Exhaustion and Qualified
Immunity (Doc. No. 130);
• “Plaintiff's Partially Assented-to Motion to
County Defendant's [sic] Preliminary Motion for Summary
Judgment: ‘PLRA' Lack of Exhaustion and Qualified
Immunity and Plaintiff's Cross-Motion for Summary
Judgment” (Doc. No. 138); and
• “Defendants David Dionne's & Willie
Scurry's Motion for Summary Judgment, Per FRCP 56”
(Doc. No. 180).
Procedural History - Claims Against HCDC Defendants
presently an inmate at the New Hampshire State Prison,
brought this 42 U.S.C. § 1983 action, alleging that the
defendants violated his federal Constitutional and statutory
rights and his rights under state law, when he was a pretrial
detainee at the HCDC from June 25, 2014 to August 1, 2016.
After conducting the preliminary review of plaintiff's
initial complaint (Doc. Nos. 1, 12) pursuant to 28 U.S.C.
§ 1915(e)(2), 1915A(a) and LR 4.3(d)(2), the court found
that Yahtues had asserted claims alleging violations of:
(1) [Yahtues's] Fourteenth Amendment right to adequate
medical and mental health care; (2) his Fourteenth Amendment
right to sanitary and safe conditions of confinement; (3) his
First, Sixth, and Fourteenth Amendment right to meaningful
access to the courts, including access to legal resources;
(4) his First Amendment right of association; (5) his First
Amendment rights, and rights under the Religious Land Use and
Institutionalized Persons Act [RLUIPA], to religious items,
materials, and a religious diet; and (6) his rights under
state law implicated by the facts and events that form[ed]
the basis of the federal claims asserted in the complaint.
21, 2016 Order (Doc. No. 13), at 2 (footnote omitted). The
court directed service of process upon Drs. Matthew J.
Masewic and Christopher Braga (the physicians who contracted
with the HCDC to provide medical care to its inmates) and the
HCDC defendants, namely, Dionne, Scurry, (former) HCDC
Corrections Officer Matthew Ritvo-Cabezas, and HCDC Health
Services Administrator Denise Ryan (now Hartley),
“without prejudice to defendants' filing of a
motion to dismiss on any proper basis.” Id.
filed an amended complaint on October 7, 2016 (Doc. No. 73).
The magistrate judge conducted a preliminary review of the
amended complaint and determined that Yahtues had asserted
“fifteen numbered claims” in that amended
complaint, and named the same defendants identified in the
first preliminary review, with the exception of Dr.
Braga. Feb. 24, 2017 Order (Doc. No. 96), at 1.
Concluding that one or more cognizable claims for relief were
stated in that amended complaint, the court deemed that
pleading to be the operative complaint and directed
defendants to answer or otherwise respond, “without
prejudice to defendants' ability to file a motion to
dismiss on any proper basis.” Id.
holding a preliminary pretrial conference, the magistrate
judge issued a scheduling order (Doc. No. 124) in this case,
providing separate deadlines for two types of summary
judgment motions, setting a November 15, 2017 deadline for
the filing of summary judgment motions based on exhaustion
and immunity, and a May 21, 2018 deadline for the filing of
other summary judgment motions. See June 2, 2017
Order (Doc. No. 124), at 2.
November 15, 2017, the HCDC defendants filed a motion for
summary judgment (Doc. No. 130), requesting the following
1. That “this honorable court conduct the preliminary
review not applied earlier in this case.” Nov. 15, 2017
Cty. Defs.' Prelim. Motion for Summ. J. (Doc. No. 130),
2. That the court grant summary judgment in the HCDC
defendants' favor as to the plaintiff's “mental
health based deliberate indifference theorem [sic]” and
the claims asserted against defendant Ritvo-Cabezas, on the
basis that plaintiff had failed to exhaust his administrative
remedies as to those claims, as required by the Prison
Litigation Reform Act, 42 U.S.C. § 1997e
(“PLRA”), id.; and
3. That the court find “the defendants are entitled to
the application and protection of qualified immunity, ”
as to each of the claims asserted against them, id.
December 21, 2017, Yahtues filed a cross-motion for summary
judgment (Doc. No. 138). In that motion, Yahtues sought summary
judgment in his favor on the claims in this case, and asked
the court to allow him to voluntarily dismiss certain claims
and defendants from this action, as follows:
Plaintiff request [sic] the dismissal of the following
a) Against defendant Ryan and [Ritvo-Cabezas];
b) Concerning poor ventilation;
c) In reference to typing up legal materials via typewriter;
d) In respects [sic] to stressful living conditions;
e) In respects [sic] to lies and bad conduct by officer's
f) In respects [sic] to back ailments; g) In respects [sic]
to serving the plaintiff repetitive meals;
h) In respects [sic] to the [HCDC] giving out information to
inmates for visiting schedule;
i) In respects [sic] to threats by officer's [sic].
21, 2017 Pltf.'s Obj. to Defs.' Motion for Summ. J.
and Pltf.'s Cross-Motion for ...