Leite v. Bergeron, 18-1682

• Decision Date: 19 December 2018
• Docket Number: No. 18-1682,18-1682
• Citation: 911 F.3d 47
• Parties: Jonathan LEITE, Plaintiff, Appellant, v. Kathy BERGERON, Corrections Officer, Defendant, Appellee, Matthew Goulet, Corrections Officer; Elmer Van Hoesen, Corrections Officer; Michael Beaton, Corrections Officer; Lynn McLain, Corrections Officer; Rhianne Snyder, Corrections Officer; Trevor Dube, Corrections Officer; Eddy L'Heureux, Corrections Officer; Heather Marquis, Corrections Officer; Jeffrey Smith, Corrections Officer; Dwane Sweatt, Corrections Officer; Yair Balderrama, Corrections Officer; Bob Morin, Corrections Officer; Ejike Esobe, Corrections Officer, Defendants.
• Court: U.S. Court of Appeals — First Circuit

911 F.3d 47

Jonathan LEITE, Plaintiff, Appellant,

v.Kathy BERGERON, Corrections Officer, Defendant, Appellee,Matthew Goulet, Corrections Officer; Elmer Van Hoesen, Corrections Officer; Michael Beaton, Corrections Officer; Lynn McLain, Corrections Officer; Rhianne Snyder, Corrections Officer; Trevor Dube, Corrections Officer; Eddy L'Heureux, Corrections Officer; Heather Marquis, Corrections Officer; Jeffrey Smith, Corrections Officer; Dwane Sweatt, Corrections Officer; Yair Balderrama, Corrections Officer; Bob Morin, Corrections Officer; Ejike Esobe, Corrections Officer, Defendants.

No. 18-1682

United States Court of Appeals, First Circuit.

December 19, 2018

Benjamin T. King, with whom Douglas, Leonard & Garvey, P.C., Concord, NH, was on brief, for appellant.

Francis C. Fredericks, Jr., Senior Assistant Attorney General, Civil Bureau, with whom Gordon J. MacDonald, Attorney General of New Hampshire, was on brief, for appellee.

Before Lynch, Thompson, and Barron, Circuit Judges.

LYNCH, Circuit Judge.

This appeal is from the rejection of a claim of unconstitutional deliberate indifference by a corrections officer to the health and safety of an inmate, Jonathan Leite. Leite v. Goulet, No. 15-CV-280-PB, 2018 WL 3057740 (D.N.H. June 20, 2018). Leite was badly beaten by other inmates in a cell at a New Hampshire medium-security prison on August 24, 2012. Leite alleges that a corrections officer, Kathy Bergeron, was deliberately indifferent while doing a round that day, leading to a delay in his being provided with medical treatment, which in turn exacerbated his injuries, including brain injuries

.

The district court granted the motion for summary judgment of the many original defendants in this 42 U.S.C § 1983 case, and Leite appeals only as to Bergeron. Leite bases his claim against Bergeron on evidence tending to show that when Bergeron conducted a round at 3:40 p.m., she did not look in the cells (as she should have done), and so did not see that Leite was lying on a bed in a cell assigned to others, and on looking further, would have seen he was injured. Leite was observed at 5:08 p.m. during a count (different from a round), injured in his own bed (not in that cell), and that led to his getting medical attention.

We affirm on the basis that no reasonable juror could conclude that Bergeron was deliberately indifferent under the Eighth Amendment based on the facts presented by Leite.

I.

A. Facts

As always on appellate review of grants of summary judgment, we recite the facts " ‘in the light most favorable to the nonmoving party’ to the extent that they are supported by competent evidence." Ellis v. Fid. Mgmt. Tr. Co., 883 F.3d 1, 3 (1st Cir. 2018) (quoting Walsh v. TelTech Sys., Inc., 821 F.3d 155, 157-58 (1st Cir. 2016) ). Leite was an inmate at the Northern New Hampshire Correctional Facility (NCF) on August 24, 2012. NCF's F-block, where Leite was housed from the time he became incarcerated about one month earlier, had thirty cells, located on two floors, and housed between sixty and eighty inmates. The cells surrounded a common area, or "dayroom," on the first floor. The dayroom also had several bunk beds where new inmates sometimes slept. Leite was assigned to one of the dayroom bunk beds, and not to a cell.

In August 2012, the F-block was a general-population, medium-security area with no inmates with maximum-security classifications.¹ The corrections officers did not have any orders to keep Leite separate from other inmates. Leite had never expressed any concerns for his own safety, nor had Leite requested to be put in protective custody.

Corrections officers monitored the F-block with security cameras and periodic rounds and counts. Two cameras streamed live footage of the dayroom into a control room operated by corrections officers. Many of the facts and the timing of events recited came from those tapes and are not disputed. The cameras had a fixed angle and did not capture the inside of individual cells, closets, or bathrooms. Inmate-on-inmate violence typically occurred in cells or other areas that were out of the security cameras' view.

Rules required officers to conduct at least four counts per day. During counts, officers identified and accounted for each inmate, making sure they were present, alive, and well. Before counts, corrections officers were given documents listing inmates and their cell or bunk assignments. During counts (except for the 11:00 p.m. and 2:30 a.m. counts), inmates had to be out of bed and standing. The officers were required to "see movement of bare skin or talk with (hear from) the inmate." Leite makes no claim that counts were not done properly.

Rounds, by contrast to counts, were less thorough and had different purposes. During rounds, the officers walked through the cellblock to evaluate safety, security, and sanitation. Rounds took place at least once an hour, on a staggered basis so that inmates could not anticipate them. Rounds differed from counts in that rounds did not require officers to confirm the identity or physical location of each individual inmate. Rounds were meant to ensure that no prohibited behavior was occurring. The officers were supposed to see that inmates were not tattooing one another, using drugs, fighting, or "cell-hopping" (visiting cells other than the ones to which they were assigned). A properly conducted round took a corrections officer, on average, three or four minutes to complete.

Corrections officers were supposed to look through the window on every cell door during rounds, but typically did not enter the cells unless they saw a problem or emergency. It was not unusual for inmates to be asleep or on a bed during the day. If an inmate was sleeping during rounds, some officers would approach to make sure the inmate was breathing and uninjured, but this was not required. Assignments for counts and rounds were given to corrections officers on a day-to-day basis, and often changed.

On August 24, 2012, Leite re-entered the F-block at 2:34 p.m. and walked to his bunk bed. Another inmate, Jonathan Gelinas, approached Leite, and the two spoke briefly. At 2:38 p.m., Gelinas walked away. When Leite was not looking, Gelinas twice made a slashing motion across his own neck, apparently as a signal.

A minute later, at 2:39 p.m., Leite left his bunk bed and walked diagonally over to Cell 9, which was fifteen to twenty yards away, and entered. Cell 9 was assigned to Gelinas and another inmate, Ryan Elliot. Two other inmates, Sean Lavallee and Matthew Garcia, entered Cell 9 after Leite did. Lavallee and Garcia severely beat Leite inside the cell. Gelinas had helped plan the attack, which lasted between two and ten minutes.

The attack left Leite disoriented and vomiting. Inmates could press a call button to contact the control room, operated by a corrections officer, but there is no assertion that Leite did that. Gelinas and other inmates initially kept Leite in Cell 9 so that the corrections officers would not notice his condition. Gelinas put Leite in the bottom bunk and "made it look like he was sleeping." Gelinas and other inmates cleaned up Leite's blood and vomit in Cell 9 and kept ice on Leite's head, to hide the assault.

About ten minutes before the 3:40 p.m. round, a number of inmates from the F-block went out for yard time. At 3:40 p.m., Officers Kathy Bergeron and Trevor Dube entered the F-block to conduct a round. Because many inmates were outside in the yard, few were inside the F-block. Dube surveyed the second floor cells while Bergeron surveyed the first floor area and cells, including Cell 9. Bergeron knew Leite by sight and also knew he was not assigned to Cell 9. There is no claim that Bergeron was aware of any evidence that an assault had recently occurred inside Cell 9 or that whoever was inside Cell 9 was injured.

Video surveillance footage of this round does not establish whether or not Bergeron turned her head to look in Cell 9 or any of the other cells.² Bergeron, after passing Cell 9, did check the bathroom and closet. Both officers conducted the round in less than one minute, and then stated that all was "clear." Bergeron did not return by the way she had come. There is no assertion by Bergeron that some exigency distracted her during that round.

At 4:20 p.m., after the round, Leite walked out of Cell 9 and collapsed on the floor of the dayroom. Gelinas grabbed Leite by the arm, walked Leite to his own bunk bed, and then walked away. Leite climbed to the top bunk and lay face-down on the bed, assisted by another inmate. Leite then lay motionless, except for when he leaned over the side of the bed to vomit onto the floor.³ An inmate cleaned up the vomit sometime before Bergeron and Dube conducted their next round at 4:50 p.m.

During the 4:50 p.m. round, Bergeron again walked through the first floor and Dube walked through the second floor. The officers again reported that everything was "clear." On appeal, Leite does not argue that this 4:50 p.m. round, when Leite was back in his own bed, evidenced deliberate indifference by Bergeron.

Officers discovered Leite's condition shortly thereafter, during a count. At 5:00 p.m., Bergeron and Sergeant Dwane Sweatt announced a count and ordered the inmates to stand in their cells or by their bunk beds. Bergeron walked through the first floor and Sweatt walked through the second floor. Bergeron approached Leite's bunk, saw that he was still in bed, and told him to stand. Leite did not get up, and Bergeron repeatedly called his name. Sweatt came near, having finished the count upstairs. Sweatt saw Leite lying on his back, with blood coming out of his mouth and running down his face. Eventually, Leite climbed down from his bunk bed, but he needed to support himself on the bed in order to stand.

Sweatt had Leite lie down. Leite was incoherent and blood continued to run down his face, and his bed was soiled. At 5:08 p.m., Sweatt summoned first responders. At 5:11 p.m., Leite told the officers that he had lost...