Gebo v. Thyng

Filing 55

ORDER denying 50 Motion for Summary Judgment. So Ordered by Judge Joseph A. DiClerico, Jr.(lt)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

John W. Gebo
v.

Civil No. 11-cv-047-JD
Opinion No. 2012 DNH 183

Robert Thyng
O R D E R
John W. Gebo, an inmate in the New Hampshire State Prison
system, brings an action pursuant to 42 U.S.C. § 1983 against
Robert Thyng, who was the Unit Manager at the Northern
Correctional Facility (“NCF”) in New Hampshire when Gebo was an
inmate there in September of 2009.

Gebo alleges that Thyng

violated his Eighth Amendment rights by failing to protect him
from assault by other inmates.

Thyng moves for summary judgment,

on the ground that Gebo cannot prove his claim and alternatively
that Thyng is entitled to qualified immunity.

Gebo objects.

Standard of Review
Summary judgment is appropriate if the moving party “shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

A party opposing summary judgment “must set forth

specific facts showing that there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
Material facts are “facts that might affect the outcome of the
suit under the governing law.”

Id. at 248.

The court considers

the undisputed material facts and all reasonable inferences from
those facts in the light most favorable to the nonmoving party.
Avery v. Hughes, 661 F.3d 690, 693 (1st Cir. 2011).
For the purpose of deciding Thyng’s motion for summary
judgment on exhaustion and after a hearing on that issue, the
court made findings of fact pertinent to the 42 U.S.C. § 1997e(a)
exhaustion defense.

Doc. no. 46 at *3.

However, there is a

right to a jury trial under the Seventh Amendment for § 1983
claims.

See Dillon v. Rogers, 596 F.3d 260, 271 (5th Cir. 2010).

Therefore, when facts pertaining to exhaustion are also material
to the claim on the merits, factual findings made for the purpose
of deciding the exhaustion defense are not considered in deciding
the merits of the claim.

See Pavey v. Conley, 544 F.3d 739, 741

(7th Cir. 2008) (“[A]ny finding that the judge makes, relating to
exhaustion, that might affect the merits may be reexamined by the
jury . . . .”).

The court considers the record presented for

purposes of the pending motion for summary judgment under the
Rule 56(a) standard.

2

Background
In September of 2009, during the events that are the basis
for Gebo’s claim, the Northern New Hampshire Correctional
Facility was overcrowded and understaffed.

Thyng was aware that

several gangs were operating among the inmates.

Gang members

preyed on other inmates by assaulting them, forcing them to move
out of certain areas of the prison, requiring former gang members
to rejoin the gang, and extorting payments or “rent” from
inmates.

Assaults on inmates by other inmates were common.

The general population area of the prison is divided into
units with A through D Units on the first floor and E through H
Units on the second floor.

Thyng was Unit Manager at the prison.

Although there was a rule that inmates were not allowed to move
between the floors in the prison, inmates were able to and did go
from one floor to the other.

At the beginning of September,

2009, Gebo was housed in A Unit, on the first floor.
On September 2, 2009, Gebo was assaulted by other inmates.
Gebo believed that at least two of the attackers were gang
members who attacked him because he would not join a gang.

As a

result of the assault, Gebo had a large gash on the back of his
head and other injuries that required treatment at Androscoggin
Valley Hospital.

When he returned to the prison, he was held in

3

Health Services overnight and was placed on Pending
Administrative Review (“PAR”) status.
Corporal Timothy Coulombe investigated the incident and
interviewed Gebo on the morning of September 3.

Coulombe wrote

in his report that Gebo said that after mail call on September 2
he had returned to his cell and was hit on the head from behind.
The next thing Gebo knew he woke up in pool of blood.

Gebo told

Coulombe that he did not have problems with anyone in his unit
and did not know who would have attacked him.

Coulombe responded

by asking Gebo why there were five people from A Unit in “the
tank” for fighting, and Gebo answered that he did not know why.
The same day, Gebo asked to be assigned to protective
custody because he had been attacked by a gang member.1

Gebo

testified at the exhaustion hearing that Sergeant Hammer took his
statement about the September 2 incident and told Gebo that he
would talk to Thyng.

When Hammer returned, he told Gebo to pack

his belongings to move to E Unit, on the second floor.

Gebo

testified that he was petrified at being moved to E Unit and
talked to Sergeant Morin, the housing unit officer, who said she
would contact Thyng.

1

Thyng points out that Gebo has suggested different
circumstances in which he asked for protective custody. The
record supports events recited here.
4

Gebo also testified that he wrote a request slip to Thyng
asking to meet with Thyng to find out why protective custody had
been denied.

Another inmate, David Peters, who knew Gebo, saw

him on the second floor and asked Gebo why he was up there.

Gebo

told Peters about the assault and showed him the request slip for
Thyng.

Peters saw Gebo put the request slip into the box.

Gebo

also testified that he spoke to Morin about his situation and
tried to contact Thyng by asking at the “bubble” to meet with
him.2
On September 5, 2009, Gebo was assaulted by inmates in E
Unit.

Gebo contends that he was attacked by gang members who

threw boiling water on him and hit him with a lock.3

Gebo did

not report the attack, but his injuries were noticed by
corrections staff.

Gebo was taken to Androscoggin Valley

Hospital for treatment of burns, lacerations, and bruising.
After his return to the prison, Gebo spent several days in Health
Services but was then returned to general population, this time
2

It is not entirely clear when Gebo spoke to Morin or when
he asked at the “bubble” to speak with Thyng.
3

Thyng argues that Gebo was accidentally burned by spilled
coffee during a fight between gang members and another inmate and
that he was not targeted by the gang members in the September 5
incident. Thyng also states, however, that the incident occurred
when gang members tried to force some inmates out of the unit so
that other gang members could move in and that Gebo fought with
the gang members rather than move.
5

to F Unit.

Gebo states that gang members threatened him an

charged him rent in F Unit.

He was not assaulted again.

At a classification review on September 17, 2009, Gebo asked
for placement in protective custody but the board members told
him they were only conducting a scheduled classification review.
Gebo’s classification remained the same and he remained in
general population.

In October, he told Morin that he could not

live in F Unit anymore.

He was taken to the “tank” and when he

refused to move back to general population, he was transferred to
the Secure Housing Unit at the prison in Concord.

On December 8,

2009, a protection review board considered Gebo’s classification
and recommended that he be moved to protective custody and he
remains in protective custody.

Discussion
Gebo contends that Thyng violated his Eighth Amendment right
to be free from cruel and unusual punishment by failing to put
him in protective custody after the September 2, 2009, assault.
As a result, Gebo contends, he was assaulted again on September
5.

Thyng moves for summary judgment, arguing that Gebo cannot

show that Thyng was deliberately indifferent to a substantial
risk of harm and that he is entitled to qualified immunity.

6

A.

Failure to Protect
“A prison official’s ‘deliberate indifference’ to a

substantial risk of serious harm to an inmate violates the Eighth
Amendment.”

Farmer v. Brennan, 511 U.S. 825, 828 & 834 (1994).

To succeed on an Eighth Amendment claim, the plaintiff first must
show that the risk of harm alleged was “objectively, sufficiently
serious.”
2002).

Burrell v. Hampshire County, 307 F.3d 1, 8 (1st Cir.

Second, the plaintiff must show that the official

“possessed a sufficiently culpable state of mind.”

Leavitt v.

Corr. Med. Servs., Inc., 645 F.3d 484, 498 (1st Cir. 2011).

1.

Substantial Risk of Serious Harm

For purposes of the current motion for summary judgment,
Thyng focuses exclusively on the issue of deliberate
indifference.

Therefore, for purposes of this motion only, the

court will assume that the risk of harm was sufficiently serious
to meet the constitutional test.

2.

Deliberate Indifference

Deliberate indifference requires that “the official must
both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also
draw the inference.”

Farmer, 511 U.S. at 837.
7

That is, the

official must have had “actual knowledge of impending harm, [that
was] easily preventable.”

Leavitt, 645 F.3d at 498 (internal

quotation marks omitted).

Because “[a] prison official’s duty

under the Eighth Amendment is to ensure reasonable safety,” a
prison official who knew of a substantial risk of harm is not
liable if he “responded reasonably to the risk, even if the harm
ultimately was not averted.”

Farmer, 511 U.S. at 845 (internal

quotation marks omitted).
In this case, Thyng argues that he cannot be shown to have
been deliberately indifferent because his decision to move Gebo
to E Unit after the September 2 attack was a reasonable response
to the risk of harm from other inmates.

Thyng challenges the

credibility of Gebo’s statements that gang members attacked him
and that Gebo notified Thyng that he needed protective custody
because of the September 2 incident.

Thyng argues, relying on

Burrell, 307 F.3d at 8-9, and Lewis v. Richards, 107 F.3d 549
(7th Cir. 1997), that he had conflicting information about the
risk of harm to Gebo following the September 2 attack and that
his decision to move him to E Unit was reasonable.
In Burrell, the plaintiff was a pretrial detainee who was
assaulted and injured by a fellow pretrial detainee, after
Burrell and his wife complained about problems with that
detainee.

307 F.3d at 4-7.

He brought suit, contending that the
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prison officials were deliberately indifferent to a risk to his
health and safety.

Id. at 7.

The court concluded, however, that

the officials “acted reasonably in not providing additional
protection for Burrell because they knew he was highly trained in
self defense and martial arts, neither Burrell nor his wife
requested protective custody, no history existed of violence
between Burrell and the inmate who attacked him, and the
officials believed Burrell could and would protect himself.”
Mosher v. Nelson, 589 F.3d 488, 494 (1st Cir. 2009).
Here, there is no evidence that Gebo could protect himself
or that Thyng expected Gebo to protect himself.

Before the

September 5 attack occurred, Thyng knew that Gebo had been
attacked on September 2 on A Unit, allegedly by gang members,
which required him to have hospital treatment, and that Gebo had
requested protective custody.4

In addition, Thyng was aware of

gang activity in the prison, knew that assaults by inmates on
other inmates were common, and knew that despite rules to the
contrary inmates moved from floor to floor and throughout the
general population area of the prison.

Therefore, the reasoning

in Burrell does not support summary judgment here.

4

Although Thyng disputes Gebo’s version of events, Gebo’s
properly supported statements are taken as true for purposes of
summary judgment.
9

In Lewis, the Seventh Circuit construed deliberate
indifference in the context of prison officials’ failure to
protect an inmate to require proof that the prison officials
“‘effectively condone[d] the attack by allowing it to happen.’”
Santiago v. Walls, 599 F.3d 749, 756 (7th Cir. 2010) (quoting
Lewis, 107 F.3d at 553).

Thyng cites no First Circuit cases that

have adopted that standard for showing deliberate indifference.
Instead, “the plaintiff must show that the officials had
knowledge of acts from which the official[s] can draw the
inference that a substantial risk of serious harm exists” but
need not show that prison officials “were aware of the risk of a
specific harm.”

Ruiz-Rosa v. Rullan, 485 F.3d 150, 156 (1st Cir.

2007).
The plaintiff in Lewis was attacked, raped, and beaten by
alleged gang members in three separate incidents while in prison.
Lewis, 107 F.3d at 551-53.

After the first attack, Lewis

reported that a gang had targeted him and asked for protective
custody.

Id. at 553.

In response, prison officials transferred

Lewis to a different area of the prison where he lived without
incident for five months.

Id. at 553-54.

Lewis did not report

threats from gang members before the second attack.

Id. at 554.

The court concluded that Lewis failed to provide evidence that he
was attacked by gang members in the second incident or that gang
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violence was rampant in the prison which would show that the
officials were deliberately indifferent to a substantial risk of
harm.

Id. at 554-55.

Lewis’s claim based on the third attack

failed under Heck v. Humphrey, 512 U.S. 477 (1994), because of a
prison disciplinary decision against him as to that incident.
Id. at 555.
Lewis is neither governing nor persuasive here.

Gebo

contends that he notified Thyng that he was being targeted by
gang members and asked for protective custody.5

It is undisputed

that violence and gang activity were rampant in the prison in
September of 2009 and that Thyng was aware of those conditions.
Thyng also knew that inmates were able to move to all general
population areas of the prison so that Gebo was not protected in
E Unit from inmates who were housed in A Unit.

To the extent the

facts underlying Gebo’s version of events are disputed, those
matters cannot be resolved on summary judgment.

Given the record

presented, the court cannot conclude as a matter of law that
Thyng acted reasonably in moving Gebo to E Unit after the
September 2 attack.

5

While an inmate’s request for protective custody, standing
alone, would not prove deliberate indifference, the facts in this
case go beyond an isolated request.
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B.

Qualified Immunity
“The qualified immunity analysis asks whether the facts

alleged or shown by the plaintiff make out a violation of a
constitutional right and whether the right was clearly
established at the time of the violation.”

Asociacion de

Peiodistas de P.R. v. Mueller, 680 F.3d 70, 80 (1st Cir. 2012).
Qualified immunity is an affirmative defense, putting the burden
of proof on the defendant asserting the defense.

DiMarco-Zappa

v. Cabanillas, 238 F.3d 25, 35 (1st Cir. 2001).
As discussed above, Gebo has made out a violation of his
Eighth Amendment right to be free of cruel and unusual
punishment.

In 2009, it was clearly established that a prison

official may be liable for deliberate indifference to an inmate’s
Eighth Amendment right to protection against a substantial risk
of harm from assault by other inmates.

Farmer, 511 U.S. at 828 &

834; see also Ortiz v. Jordan, 131 S. Ct. 884, 892-93 (2011).

“A

right is clearly established if it would be plain to a reasonable
officer that his conduct was unlawful in the particular factual
context that he faced.”

Mueller, 680 F.3d at 80-81.

“Clearly

established law does not depend on identical circumstances
repeating themselves.

Instead, notable factual differences may

exist between prior cases and the circumstances at hand as long
as the state of the law at the time gave the defendant ‘fair
12

warning’ that his action or inaction was unconstitutional.”
Mosher, 589 F.3d at 493.
Thyng contends that because of the conflicting information
provided by Gebo about who attacked him and the circumstances of
the attack on September 2, he would not have known that moving
Gebo to E Unit would violate his Eighth Amendment rights.

In

other words, Thyng argues that a reasonable officer in his
position would not have known that Gebo would be at substantial
risk of being attacked again in E Unit.

In support, Thyng relies

on Norman v. Schuetzle, 585 F.3d 1097, 1106-07 (8th Cir. 2009).6
In Norman, the Eighth Circuit held that a prison case
worker, Schwehr, was entitled to qualified immunity for an attack
by one inmate on another, although another case worker had told
Schwehr that the attacker had joked about fighting with the
victim and the attacker talked to Schwehr about letting the
victim out of cell confinement.

Id.

The court concluded that

although Schwehr’s failure to take additional security measures
may have been poor judgment, his actions did not show deliberate
indifference to a known risk.

Id. at 1107.

Based on that

determination, the court concluded that the plaintiff had not

6

The Eighth Circuit has held that Norman was partially
overruled by Pearson v. Callahan, 555 U.S. 223 (2009). Shekleton
v. Eichenberger, 677 F.3d 361, 366-67 (8th Cir. 2012).
13

shown a constitutional violation, which is the first step of the
qualified immunity analysis.
Here, for purposes of summary judgment, if the disputed
facts are taken in favor of Gebo, he has made out an Eighth
Amendment violation for purposes of the first step of the
qualified immunity analysis.

Although Thyng argues that his

action was reasonable because Gebo told one investigator that he
did not know who attacked him, Gebo asserts that he told another
investigator, Sergeant Hammer, that he was attacked by at least
two known gang members.

Gebo also asserts that he asked for

protective custody on that basis and that Hammer discussed Gebo’s
concerns with Thyng.

In response Thyng assigned Gebo to E Unit,

although Thyng was aware that gangs were operating in the prison,
that gang violence was common, and that inmates could move
between floors and among the units within the general population
area of the prison.
Because of the factual disputes about the circumstances of
the attack and what Thyng knew when he refused to put Gebo into
protective custody, Thyng has not shown that he is entitled to
qualified immunity.

14

Conclusion
For the foregoing reasons, the defendant’s motion for
summary judgment (document no. 50) is denied.

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
October 11, 2012
cc:

James Spencer Culp, Esquire
Theodore M. Lothstein, Esquire
Nancy J. Smith, Esquire

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