FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
HAMPSHIRE HON. PAUL J. BARBADORO, U.S. DISTRICT JUDGE.
T. King, with whom Douglas, Leonard & Garvey, P.C. was on
brief, for appellant.
Francis C. Fredericks, Jr., Senior Assistant Attorney
General, Civil Bureau, with whom Gordon J. MacDonald,
General of New Hampshire, was on brief, for appellee.
Lynch, Thompson, and Barron, Circuit Judges.
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.
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.
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.
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.
August 2012, the F-block was a general-population,
medium-security area with no inmates with maximum-security
classifications. 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.
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.
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.
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.
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
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