Hernandez v. Ashe, C.A. No. 09–cv–10259–MAP.

• Citation: 745 F.Supp.2d 15
• Decision Date: 13 October 2010
• Docket Number: C.A. No. 09–cv–10259–MAP.
• Parties: Axel HERNANDEZ, Plaintiffv.Michael J. ASHE, John Kenney, Juan Ramos, and Jerry Devine, Defendants.
• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

745 F.Supp.2d 15

Axel HERNANDEZ, Plaintiff
v.
Michael J. ASHE, John Kenney, Juan Ramos, and Jerry Devine, Defendants.

C.A. No. 09–cv–10259–MAP.

United States District Court, D. Massachusetts.

Oct. 13, 2010.

[745 F.Supp.2d 17]

Thomas E. Day, Edward J. McDonough, Jr., Egan, Flanagan & Cohen PC, Springfield, MA, for Defendants.

MEMORANDUM AND ORDER RE: REPORT AND RECOMMENDATION WITH REGARD TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Dkt. Nos. 44 & 61) PONSOR, District Judge.

Plaintiff was a pretrial detainee in the Hampden County Correctional Center (“HCCC”) ¹ and, proceeding pro se, filed a fourteen-count complaint against various HCCC officials alleging constitutional claims of excessive force, denial of medical care, and failure to investigate and supervise, as well as tort claims of assault and battery and negligence. Defendants' Motion for Summary Judgment was referred to Magistrate Judge Kenneth P. Neiman for a report and recommendation.

On September 22, 2010, Judge Neiman issued his Report and Recommendation, to the effect that Defendants' motion should be allowed. Judge Neiman's memorandum admonished the parties that any objections were due within fourteen days of the parties' receipt of the Report and Recommendation. See Dkt. No. 61 at 18, n. 4. No objections have been filed.

Based on the clear substantive correctness of the Report and Recommendation, and upon Plaintiff's failure to file any objection, the court, upon de novo review, hereby ADOPTS the Report and Recommendation (Dkt. No. 61).

For the foregoing reasons, the court hereby ALLOWS Defendants' Motion for Summary Judgment (Dkt. No. 44). The clerk is ordered to enter judgment for Defendants. This case may now be closed.

It is So Ordered.

REPORT AND RECOMMENDATION REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Document No. 44) NEIMAN, United States Magistrate Judge.

On February 2, 2007, Axel Hernandez (“Plaintiff”) was a pretrial detainee at the Hampshire County Correctional Center (“the HCCC”) when he got into an alleged “altercation” with a correctional officer, Jerry Devine (“Devine”), while Devine was delivering Plaintiff his lunch. Proceeding pro se, Plaintiff filed a fourteen-count complaint against the following HCCC officials (together “Defendants”) in their individual and official capacities: Devine, Deputy Sheriff John Kenney (“Kenney”), Captain Juan Ramos (“Ramos”), and Sheriff Michael J. Ashe (“Ashe”). In essence, Plaintiff alleges constitutional claims of excessive force, denial of medical care, and failures to investigate and supervise, as well as tort claims of assault and battery and negligence.

Defendants have moved for summary judgment on all claims. Plaintiff opposes with regard to his seven claims against Devine, Kenney, and Ramos (Counts I through VII), but concedes that summary judgment should enter in Sheriff Ashe's

[745 F.Supp.2d 18]

favor on the seven counts targeting him (Counts VIII through XIV). Pursuant to Rule 3 of the Rules of United States Magistrate Judges in the United States District Court of the District of Massachusetts, Defendants' motion for summary judgment has been referred to this court for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B). For the following reasons, the court will recommend that Defendants' motion be allowed in its entirety.

I. Standard of Review

When ruling on a motion for summary judgment, a court must construe the facts in a light most favorable to the non-moving party. Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 173 (1st Cir.2003). Summary judgment is appropriate when “there is no genuine issue as to any material fact” and “the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is “genuine” when the evidence is such that a reasonable fact-finder could resolve the point in favor of the non-moving party, and a fact is “material” when it might affect the outcome of the suit under the applicable law. Morris v. Gov't Dev. Bank, 27 F.3d 746, 748 (1st Cir.1994). The non-moving party bears the burden of placing at least one material fact into dispute after the moving party shows the absence of any disputed material fact. Mendes v. Medtronic, Inc., 18 F.3d 13, 15 (1st Cir.1994) (discussing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

II. Background

The following background is taken principally from Defendants' Local Rule 56.1 Concise Statement of Undisputed Material Facts (Doc. No. 46, hereinafter “Defs.' Facts”) and Plaintiff's response to that statement (Doc. No. 58, hereinafter “Pl.'s Facts”). See Rule 56.1, Local Rules of the United States District Court for the District of Massachusetts. The facts are set forth in a light most favorable to Plaintiff.

A. Undisputed Facts

The following facts are undisputed. On September 22, 2005, Plaintiff entered the HCCC as a pretrial detainee. (Defs.' Facts ¶¶ 1, 2. See also Amended Verified Complaint (Doc. No. 9, hereinafter “Compl.”).) In February of 2007, Plaintiff inhabited a second-floor cell in a segregated pod where inmates are confined to their units for twenty-three hours per day. (Defs.' Facts ¶¶ 4, 5.) Inmates in such confinement receive meals through a “food pass,” i.e., a steel hatch on the cell door large enough to pass a food tray or for a prisoner to reach an arm outside of the cell. ( Id. ¶ 7.)

On February 2, 2007, upon receiving his noontime meal from Devine, Plaintiff informed him of a problem. ( Id. ¶¶ 6, 8.) Upon hearing Plaintiff's complaint, Devine left the area of Plaintiff's cell, the meal delivery cart remained some distance away in the walkway outside Plaintiff's cell door, and Plaintiff's food pass remained open. ( Id. ¶ 9.) A few minutes later, Plaintiff “fished” the cart to within reach of his cell using a string and a deodorant container flung through the food pass; Plaintiff then held onto the cart extending his hand and arm out through the open food pass. ( Id. ¶ 10.) Plaintiff concedes that these actions, which attracted Devine's attention ( id.), constituted an “institutional infraction.” (Pl.'s Opp'n Defs.' Motion Summ. J. (Doc. No. 55, hereinafter “Pl.'s Brief”) at 4.) ²

[745 F.Supp.2d 19]

Shortly thereafter, Devine returned to the walkway outside of Plaintiff's cell and attempted to move the food cart away, but Plaintiff held on. ( Id. ¶ 13; Pl.'s Facts ¶ 13.) Devine then used his foot to attempt to break Plaintiff's grip on the food cart, striking twice. (Defs.' Facts ¶¶ 14, 18.) The use of force lasted less than ten seconds. ( Id. ¶ 20.) On the second strike, Plaintiff released his grip from the cart. ( Id. ¶ 18.) Devine then closed the hatch on the food pass and left the walkway outside Plaintiff's cell. ( Id. ¶ 23.)

At approximately 3:45 p.m. the same day, Plaintiff pulled a sprinkler head in his cell, causing it to be flooded with water and requiring his removal from the cell by a Special Operations team. ( Id. ¶ 27.) Plaintiff then reported an injury to his left hand to one of the responding officers and requested to speak to Lt. Joseph Lemoine (“Lemoine”), the on-duty shift supervisor. ( Id. ¶ 28.)

At about 4:05 p.m., Lemoine spoke to Plaintiff who reported an “altercation” with Devine. ( Id. ¶ 29.) Lemoine noted swelling to Plaintiff's left thumb and had him taken to the Health Services Department for treatment. ( Id. ¶ 31.) There, medical staff diagnosed Plaintiff with an injury to his left thumb, splinted the thumb, ordered x-rays, and prescribed a five-day supply of Motrin. ( Id. ¶¶ 34, 35.) X-ray images were taken on February 6, 2007; the results were negative. ( Id. ¶ 37.) Within a few days, Plaintiff's hand appeared normal. ( Id. ¶ 38.)

Plaintiff sought no further treatment for the injury and reported no related problems at a physical on February 21, 2007. ( Id. ¶¶ 39–42.) Plaintiff also had several meetings with mental health staff between February and August of 2007, but made no mention of the incident or any negative psychological effects therefrom. ( Id. ¶¶ 43–49.) Plaintiff has sought no mental health treatment related to the incident. ( Id. ¶ 71.)

For their part, Kenney and Ramos began investigating the incident as soon as Plaintiff reported it on February 2, 2007. ( Id. ¶ 59.) As part of their investigation, they viewed video footage of the incident (which has been entered as part of the record and viewed by the court) and interviewed both Plaintiff and Devine. ( Id. ¶¶ 61, 62.) They determined that Plaintiff had probably inflicted the thumb injury upon himself after the interaction with Devine. ( Id. ¶¶ 61–63, 67.) Concluding that there was a minimal use of force by Devine, a minor injury to Plaintiff's thumb, and doubt as to whether Devine's force actually caused the injury, Kenney and Ramos closed the file. ( Id. ¶¶ 65–67.)

Six months later, on August 5, 2007, Plaintiff filed a grievance about the incident which he addressed to Ramos. ( Id. ¶ 51.) Ramos responded on August 17, 2007, informing Plaintiff that “[a]ppropriate action has been exercised in this matter” and instructing Plaintiff to refer further inquiry to his attorney. ( Id. ¶ 53.)

Meanwhile on August 9, 2007, Plaintiff filed a second grievance—this one addressed to Assistant Superintendent Thomas Rovelli (“Rovelli”)—in which he asserted that Kenney had not conducted a satisfactory investigation. ( Id. ¶ 54.) On August 22, 2007, Rovelli responded, assuring Plaintiff that the matter had been investigated and all appropriate action had been taken. ( Id. ¶ 55.)

Plaintiff also filed another grievance on August 9th, this one addressed to the Director of Health Services, Brian Liebel (“Liebel”). ( Id. ¶ 56.) Plaintiff claimed therein that his civil rights had been violated as a result of insufficient medical care

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for his “broken” thumb. ( Id. ¶ 56.) Liebel's response of August 10, 2007, stated that treatment had been appropriate and that Plaintiff's thumb had not, in fact, been broken. ( Id. ¶ 57.)

B. Plaintiffs' Additional Facts

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