Ojo v. Hillsborough County Department of Corrections

Filing 90

ORDER denying 51 plaintiff's motion for summary judgment; denying 57 plaintiff's motion to compel defendant Gordon's and Cusson's responses to discovery requests; granting 63 defendants' motion to file supplemental affidavit; granting 67 defendants' motion for protective order; and denying 81 defendants' motion for summary judgment. So Ordered by Judge Steven J. McAuliffe.(lat) Modified on 5/7/2014 to remove /// from docket entry. (jab).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Osahenrumwen Ojo
v.

Case No. 12-cv-204-SM
Opinion No. 2014 DNH 102

Hillsborough County Department of Corrections,
Kristin Balles, David Mercer, Brian Turcotte,
Jason Barbera, Todd Gordon, and Marc Cusson

O R D E R

Before the court are the following matters1:
•

plaintiff Ojo’s motion to compel discovery (doc.
no. 57), defendants’ response to that motion (doc.
no. 60), and a status report on that motion filed
by defendants (doc. no. 70);

•

defendants’ motion for a protective order (doc.
no. 67), to which plaintiff has not responded;

•

Ojo’s motion for summary judgment (doc. no. 51),
Ojo’s supplemental affidavit (doc. no. 61), and
defendants’ objection to the motion (doc. no. 56);

•

defendants’ motion for leave to file supplemental
affidavits (doc. no. 63), to which plaintiff has
not responded; and

•

defendants’ motion for summary judgment (doc. no.
81), an affidavit filed in support of that motion
(doc. no. 83), and Ojo’s objection to that motion
(doc. no. 84).

1

Also pending at this time is defendants’ motion in limine
(doc. no. 80), seeking a ruling allowing evidence of Ojo’s prior
conviction to be admitted at trial. That motion will be
addressed at a later date.

Discussion
I.

Discovery Motions (Doc. Nos. 57 and 67)
A.

Standard

A party may obtain discovery of nonprivileged information
that is reasonably calculated to lead to the discovery of
admissible evidence, see Fed. R. Civ. P. 26(b)(1).

The party

moving to compel discovery bears the burden of showing that the
information is relevant.

See Caouette v. OfficeMax, Inc., 352 F.

Supp. 2d 134, 136 (D.N.H. 2005).

The party asserting a privilege

bears the burden of establishing that the privilege is applicable
and has not been waived.

See Lluberes v. Uncommon Prods., LLC,

663 F.3d 6, 24 (1st Cir. 2011).

B.

Plaintiff’s Motion to Compel (Doc. No. 57)

In October 2013, Ojo moved to compel supervisory defendant
Cusson’s and Gordon’s answers to interrogatories and document
production requests.

See Document No. 57.

Ojo did not attach

the pertinent discovery requests to his motion.

This court, on

December 2, 2013 (doc. no. 63), gave the parties an opportunity
to resolve the issues relating to those discovery requests
without court involvement.

The last word that this court

received from either party concerning the motion to compel was
defense counsel Attorney Curran’s February 18, 2014 statement
2

that the parties had “discussed the topic of outstanding
interrogatory and other discovery issues, to be resolved by
ongoing agreement.”

Defs. Supp. to and Notice re:

Pending Mot.

to Compel Plfs. Disc. Depo. (Doc. No. 79).
This court denies plaintiff’s motion to compel, without
prejudice.

Plaintiff may renew the motion if he files a copy of

the relevant discovery requests and/or responses as an exhibit to
the motion, and certifies that he has conferred or attempted to
confer with Attorney Curran in good faith to resolve the issues
without court involvement.

C.

See Fed. R. Civ. P. 37(a)(1).

Defendants’ Motion for Protective Order (Doc. No. 67)

Plaintiff served discovery requests upon defendants seeking
information relative to the “National Inmate Survey” conducted by
the federal Bureau of Justice Statistics and a federal government
contractor, RTI International, pursuant to the Prison Rape
Elimination Act of 2003 (“PREA”), Pub. L. No. 108—79, 117 Stat
972, which is administered by the federal government to estimate
the incidence of sexual victimization in prisons nationwide.

Ojo

has alleged in the complaint that he was interviewed for the
survey while he was at the Hillsborough County Department of
Corrections (“HCDC”).

The survey protocols, in conformity with

the PREA, require participating inmates to be assured that their
3

responses will be anonymous, and that everything they say will be
treated as private and confidential.

See PREA, Pub. L. No.

108–79, § 4(a)(5), 117 Stat 972 (“The Bureau shall ensure the
confidentiality of each survey participant.”).
Defendants have asserted that they possess only limited
information responsive to Ojo’s discovery requests.

The HCDC

produced to Ojo the names and other contact information for the
2011 RTI International HCDC survey team assigned to the HCDC, and
a form letter to the HCDC from the Bureau of Justice Statistics,
dated October 14, 2011, concerning the survey.

Defendants have

moved for a protective order as to the remaining information in
their possession, namely, a spreadsheet and a list of inmates
identified by name, housing unit, and identification number,
which the HCDC generated for the survey team’s use in inviting
inmates to participate in the survey.
Ojo has not responded to defendants’ motion for a protective
order, and he has not explained how disclosure of the information
at issue would lead to the discovery of admissible evidence.

The

identifying information in the HCDC’s possession appears to be
shielded by the survey’s confidentiality protocols.

Therefore,

the court grants defendants’ motion for a protective order (doc.
no. 67).

Defendants are not required to produce to plaintiff the

4

spreadsheet and list of inmates who may have participated in the
PREA National Inmate Survey at the HCDC in 2011.

II.

Defendants’ Motion to File Affidavits (Doc. No. 63)
Defendants have moved to file supplemental affidavits, which

have been submitted to the court and are docketed as Document No.
76, in connection with plaintiff’s motion for summary judgment.
See Doc. No. 63.

Plaintiff has not objected.

The court grants

that motion (doc. no. 63).

III. Summary Judgment
A.

Standard

Under Federal Rule of Civil Procedure 56, a “court
shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
. . . [A] dispute [is] genuine if “a reasonable jury,
drawing favorable inferences, could resolve it in favor
of the nonmoving party. . . . Conclusory allegations,
improbable inferences, and unsupported speculation, are
insufficient to establish a genuine dispute of fact.”
Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144, 146 (1st
Cir. 2013) (citations omitted).

B.

Plaintiff’s Motion for Summary Judgment (Doc. No. 51)

Plaintiff has moved for summary judgment, relying on his
affidavit, attesting that when he was a pretrial detainee, HCDC
5

Officers Balles, Turcotte, Mercer, and Barbera, on separate
occasions in June, July, and August 2011, each subjected him to
pat-down searches that involved contact with Ojo’s genitals that
Ojo characterizes as a sexual assault.

Ojo’s affidavit states

that the officer conducting the search on each of those occasions
ordered Ojo to face a wall, then patted down Ojo’s clothes, and
finished the search by grabbing Ojo’s genitals and pulling down
and/or squeezing his penis and scrotum through his pants.
The four officers have each responded with affidavits
averring that they have been trained in proper search techniques,
that routine and random pat-down searches are designed to reduce
security risks by detecting contraband, and that they did not
engage in the conduct Ojo has described.

The affidavits of those

defendants demonstrate that the claims at issue are contested and
that material facts are in dispute.

Plaintiff has not shown an

entitlement to judgment as a matter of law on his claims.
Accordingly, plaintiff’s motion for summary judgment (doc. no.
51) is DENIED.

C.

Defendants’ Motion for Summary Judgment (Doc. No. 81)

Defendants’ motion for summary judgment on the federal
claims in this case is based on three grounds:

(1) Ojo’s failure

to grieve any of the incidents while he was incarcerated; (2) the
6

lack of evidence of physical injury; and (3) the brief and
isolated nature of each incident.

Defendants have not moved for

summary judgment on the state law claims in this case.

The court

addresses defendants’ arguments as to Ojo’s federal claims below.

1.

PLRA Exhaustion

Citing the Prison Litigation Reform Act (“PLRA”), defendants
contend that Ojo cannot proceed on any claims under 42 U.S.C.
§ 1983 because he did not exhaust his remedies through the HCDC
grievance system before filing this case.

The PLRA provides: “No

action shall be brought with respect to prison conditions under
section 1983 of this title . . . by a prisoner confined in any
jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.”
U.S.C. § 1997e(a).

42

A “prisoner” is “any person incarcerated or

detained in any facility who is accused of, convicted of,
sentenced for, or adjudicated delinquent for, violations of
criminal law or the terms and conditions of parole, probation,
pretrial release, or diversionary program.”

42 U.S.C.

§ 1997e(h).
Defendants overlook that when Ojo filed suit, he had been
released and was not incarcerated.

The plain language of the

PLRA indicates that the exhaustion requirement applies to inmate
7

plaintiffs but does not apply to former prisoners or others who
are not confined or incarcerated when they file suit.

42 U.S.C.

§ 1997e(a) & (h); Carpenito v. Westgate, No. 12-cv-96-JL (D.N.H.
Oct. 23, 2012) (doc. no. 10) (“all of the United States Circuit
Courts of Appeals to consider it have ruled that under the plain
language of the statute, the PLRA’s exhaustion requirement
applies only to plaintiffs who are incarcerated at the time an
action is actually commenced” (citations omitted)), report and
recommendation adopted, No. 12-cv-96-JL (D.N.H. Nov. 4, 2012).
Cf. Medina-Claudio v. Rodríguez-Mateo, 292 F.3d 31, 34-35 (1st
Cir. 2002) (inmate transferred to another facility was not
excused from exhaustion, distinguishing cases involving suits
filed by former prisoners).

The PLRA exhaustion requirement is

inapplicable to Ojo’s case because he was not incarcerated when
he filed his complaint.

2.

Physical Injury

Defendants contend that because Ojo did not suffer any
physical injury, the PLRA, 42 U.S.C. § 1997e(e), bars Ojo’s
claims for mental or emotional harm.

Defendants further

highlight the lack of expert disclosures relating to mental and
emotional harm as grounds for finding that damages cannot be
proven in this case.
8

The Supreme Court has held that the lack of physical injury
does not by itself bar a prisoner from asserting an excessive
force claim.

See Wilkins v. Gaddy, 559 U.S. 34, 38 (2010).

The

PLRA provision restricting prisoners’ claims for mental and
emotional harm, relied upon by defendants, states, as follows:
No Federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional
facility, for mental or emotional injury suffered while
in custody without a prior showing of physical injury
or the commission of a sexual act (as defined in
section 2246 of Title 18).
42 U.S.C. § 1997e(e).
The plain language of the relevant statutory provision
indicates that the restriction applies to inmates who are
confined at the time they filed suit.
(h).

See 42 U.S.C. § 1997e(e) &

Cf. Harris v. Garner, 216 F.3d 970, 981 (11th Cir. 2000)

(en banc) (fact that plaintiff was released post-judgment does
not render section 1997e(e) inapplicable, as “the only
[confinement] status that counts, for purposes of section
1997e(e) is whether the plaintiff was a ‘prisoner confined in a
jail, prison, or other correctional facility’ at the time the
federal civil action was ‘brought’” (quoting 42 U.S.C.

9

§ 1997e(e)).

As Ojo was not confined when he filed this action,

section 1997e(e)’s restriction is inapplicable to his claims.2

3.

Brief and Isolated Nature of Incidents
a.

Turcotte, Mercer, Barbera, and Balles

The Fourteenth Amendment protects pretrial detainees from a
prison official’s use of excessive force intended to punish the
inmate.

See Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)

(citing Bell v. Wolfish, 441 U.S. 520, 535-39 (1979))); Graham v.
Sheriff of Logan Cnty., 741 F.3d 1118, 1126 (10th Cir. 2013).

To

establish a Fourteenth Amendment excessive force claim, a
plaintiff must show that the use of force was nontrivial, and
that the guard used force with the requisite scienter, cf. Wilson
v. Seiter, 501 U.S. 294, 300 (1991) (infliction of punishment is
“‘deliberate act intended to chastise or deter’” (citation
omitted)).
The rule regarding nontrivial uses of force is frequently
expressed through the maxim that not every push or shove by a

2

Defendants assert, in a footnote, that Ojo cannot rely on
the medical records he produced in discovery to prove that he
suffered mental and emotional damages, without an expert witness.
This court, upon proper motion or objection to proffered
evidence, might exclude such evidence, but the potential lack of
such evidence does not warrant summary judgment on the underlying
claims at this stage of the case.
10

guard against an inmate is actionable as a federal claim.

See,

e.g., Hudson, 503 U.S. at 9-10 (“not . . . every malevolent touch
by a prison guard gives rise to a federal cause of action,” and
“[t]he Eighth Amendment’s prohibition of cruel and unusual
punishments necessarily excludes from constitutional recognition
de minimis uses of physical force, provided that the use of force
is not of a sort repugnant to the conscience of mankind”
(citations and internal quotation marks omitted)).

The safety,

security, and facility population control rationales that
underlie that aphorism, however, do not apply with equal force in
the context of gratuitous, offensive contact with an inmate’s
genitals.
2012).

See Washington v. Hively, 695 F.3d 641, 643 (7th Cir.

Such contacts may involve only minimal exertions of force

and cause no physical injuries, but result in substantial harm to
the dignity, emotional well-being, and mental health of an
individual.

For these reasons, this court has previously cited a

Seventh Circuit case for the rule that the “‘unwanted touching of
a person’s private parts, intended to humiliate the victim or
gratify the assailant’s sexual desires, can violate a prisoner’s
constitutional rights, whether or not the force exerted by the
assailant is significant.’”

Ojo v. Hillsborough Cnty. Dep’t of

Corr., No. 12-CV-204-SM, 2012 WL 4513944, at *2 (D.N.H. Sept. 25,
2012) (Report and Recommendation (doc. no. 5), slip op. at 5)
11

(quoting Washington, 695 F.3d at 642), report and recommendation
approved, No. 12-CV-204-SM, 2012 WL 4514005 (D.N.H. Oct. 2, 2012)
(Order, doc. no. 8).

That a guard touched an inmate

inappropriately on only one occasion for a brief period of time
does not rule out the possibility that the contact was
sufficiently nontrivial to state a plausible claim for relief.
See, e.g., Rivera v. Drake, 497 F. App’x 635, 636 (7th Cir. 2012)
(summary judgment not proper on Eighth Amendment claim based on
evidence that guard pressed his thumb into inmate’s anus during
pat-down search).
Ojo testified in his deposition that Sgt. Balles and
Officers Turcotte, Barbera, and Mercer each grabbed Ojo’s penis
and testicles through his prison-issued “scrubs,” and, for
several seconds, squeezed or pulled his genitals “hard” or
“rough[ly]” just after searching him.

Ojo described Sgt.

Balles’s contact as occurring at the end of a pat-down search in
June 2011, in which he and several other inmates were facing a
wall at Balles’s direction.

Ojo testified that Balles ran her

hands down over his HCDC uniform pant legs, then grabbed, pulled,
and squeezed his testicles and penis “as hard as she could” for
several seconds.

Doc. No. 81-3 at 11-12, 58.

Ojo testified that

Officer Turcotte similarly finished a pat-down search of Ojo in
late July 2011 by “grabb[ing] my nuts and pull[ing] pretty hard,”
12

see id. at 20, 23, 58.

Ojo testified that after patting down his

legs on one occasion in June 2011, Officer Barbera reached up,
grabbed, and pulled Ojo’s penis and testicles, and that Officer
Mercer, conducting a similar search in July 2011, ended the
search by pulling on Ojo’s genitals in a manner that was rougher
and more aggressive than the other officers.
37, 41, 43, 58-59.

See id. at 31, 36-

According to Ojo’s testimony, Officer Mercer

was smiling when Ojo turned around to look at him right after the
incident.

See id. at 29.

The incident with Mercer, like the other incidents, did not
result in physical injury to Ojo, did not involve the officers
saying anything of a sexual nature to Ojo, and was neither
preceded nor followed by problems between Ojo and those officers.
See id. at 27, 29, 41.

Ojo testified that he spoke to

supervisory officers to complain about the incidents, but did not
seek medical attention at the HCDC after the incidents occurred.
See id. at 40

He further testified that he has suffered anxiety,

daily flashbacks, post-traumatic stress disorder, suicidal
thoughts for which he sought medical treatment, and other mental
health problems relating to the incidents.

See id. at 15-16.

An affidavit of HCDC Superintendent David Dionne asserts
that routine pat-down searches may sometimes involve brief
“grazing” contact with an inmate’s genitals, and that such
13

contact would have been more likely in Ojo’s case, where it is
undisputed that Ojo did not wear underwear under his pants when
he was searched.

See Doc. No. 81-2.

But there is no evidence

suggesting that there could have been a safety or security
interest justified by the rough or hard squeezing or pulling of
Ojo’s penis and scrotum after a pat-down search, as described in
Ojo’s deposition testimony.3
Defendants have cited a line of cases from other
jurisdictions in which courts confronting evidence of brief and
isolated incidents of contacts with an inmate’s genitals during
pat-down searches have deemed such contacts to be too trivial to
be actionable, and defendants have satisfied the court that the
cited cases represent the majority view.

Cf. De’lonta v. Clarke,

No. 7:11-CV-00483, 2013 WL 209489, at *4 n.9 (W.D. Va. Jan. 14,
2013) (noting “emerging division in the judicial treatment of
cases in which an inmate alleges a prison guard sexually abused
him or her,” in which “[o]ne class of cases focuses on the

3

This is not to say, however, that contacts with an
inmate’s genitals are never justified. There are certainly
circumstances where grabbing or tugging on a male inmate’s
genitals to search for contraband is justified by a safety or
security rationale, see, e.g., Cherry v. Frank, 125 F. App’x 63,
66 (7th Cir. 2005) (no Eighth Amendment claim where undisputed
evidence showed that manipulation of inmate’s genitals was
necessary to expose areas where inmate was believed to have
hidden contraband).
14

language in [Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir.
1997)] that limits Eighth Amendment claims to sexual abuse that
is ‘severe or repetitive,’ 105 F.3d at 861, and another class
focuses more on ‘contemporary standards of decency’ and the
complete lack of penological justification for guard-on-inmate
sexual abuse”).

No reported case cited by defendants, however,

presents precisely the same facts as Ojo’s, where no legitimate
purpose is alleged to have been served by the offensive contact,
the contact is claimed to have resulted in lasting emotional and
mental health injuries, and more than one officer is alleged to
have pulled and squeezed the inmate’s genitals in a remarkably
similar manner.

The only case cited by defendants from a

district court within the First Circuit involves distinguishable
facts.

See Palermo v. R.I. ACI, No. CIV.A. 10-221 ML, 2010 WL

2731429, at *1, *5 (D.R.I. June 16, 2010) (allegations that
defendant continually approached and rubbed against prisoner from
behind while making sexual comments failed to state § 1983
claim), report and recommendation adopted, No. CIV.A. 10-221 ML,
2010 WL 2731397 (D.R.I. July 9, 2010).
A reasonable fact-finder crediting Ojo’s testimony could
conclude from such testimony and infer from evidence indicating
the lack of any justification for the contacts described by Ojo,
that the officers’ manhandling of Ojo’s penis and scrotum was
15

unjustified by any legitimate purpose, and was intended to
humiliate Ojo, as a form of punishment proscribed by the
Fourteenth Amendment.

See, e.g., Rivera, 497 F. App’x at 636;

Washington, 695 F.3d at 642 (summary judgment not proper on
Fourteenth Amendment claim that guard searching inmate “spent
five to seven seconds gratuitously fondling [inmate’s] testicles
and penis through [inmate’s] clothing and then while strip
searching him fondled his nude testicles for two or three
seconds” contrary to jail policy and without justification); Wood
v. Beauvoir, 692 F.3d 1041, 1049 (9th Cir. 2012) (summary
judgment not proper on Eighth Amendment claim based on guard’s
reaching into inmate’s gym shorts and stroking inmate’s penis for
guard’s own sexual gratification).

Accordingly, defendants have

failed to show that they are entitled to judgment as a matter of
law on the claims against Turcotte, Balles, Barbera, and Mercer,
and their motion for summary judgment is denied.

b.

Supervisory and Municipal Liability

Defendants have moved for summary judgment on Ojo’s § 1983
claims of supervisory and municipal liability on the sole basis
that those claims are derivative of the claims against Turcotte,
Balles, Barbera, and Mercer.

As the court denies the motion for

summary judgment on the claims against the subordinates and also
16

declines to comb the record to find other, unasserted bases for
granting summary judgment on the claims of municipal and
supervisory liability, the motion for summary judgment (doc. no.
81) on the federal supervisory and municipal liability claims is
denied.

Conclusion
The court grants defendants’ motion to file supplemental
affidavits (doc. no. 63), and defendants’ motion for a protective
order (doc. no. 67), shielding from discovery the spreadsheet and
list of HCDC inmates who may have participated in the 2011
national survey on the incidence of sexual victimization while
Ojo was an inmate there.
The court denies defendants’ motion for summary judgment
(doc. no. 81), and plaintiff’s motion for summary judgment (doc.
no. 51).

The court also denies plaintiff’s motion to compel

defendant Gordon’s and Cusson’s responses to discovery requests
(doc. no. 57).

Plaintiff may refile a motion to compel

production of the responses if he certifies to having made a good
faith attempt to confer with defendants’ counsel to resolve the
discovery dispute, and attaches the relevant discovery requests
and/or responses as exhibits to the motion.

17

SO ORDERED.

____________________________
Steven J. McAuliffe
United States District Judge
May 7, 2014
cc:

Osahenrumwen Ojo, pro se
John A. Curran, Esq.

SJM:nmd

18