Karmue v. Remington et al

Filing 141

ORDER: The court GRANTS IN PART and DENIES IN PART the federal defendants' motion for partial summary judgment and to dismiss (doc. no. 112 ), as follows: 1. The federal defendants' motion for partial summary judgment and dismissal (doc. n o. 112 ) is DENIED as to Claims 1-4 and 9, without prejudice to the defendants' ability to assert an appropriate claim in a summary judgment motion filed at a later stage in this case after the parties have had the opportunity to conduct discov ery; 2. The federal defendants' motion for partial summary judgment and to dismiss (doc. no. 112 ) is GRANTED as to Claims 10 and 11; 3. Dr. Al-Karim Dhanji and Physical Therapist Kerry Quinn are dismissed from this action - So Ordered by District Judge Landya B McCafferty on 3/18/2020. (Urizandi, Nisshy)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

Kormahyah Karmue
v.

Civil No. 17-cv-107-LM-AKJ

David Remington, Chief Deputy
United States Marshal, et al.

O R D E R
Before the court is the federal defendants’ motion for
partial summary judgment and to dismiss (doc. no. 112), which
was filed with a statement of undisputed facts (doc. no. 113).
Plaintiff Kormahyah Karmue has responded with objections to the
defendants’ filings and his own statements of undisputed facts.
See Doc. Nos. 115, 121, 124, 128.

The federal defendants’

motion seeks summary judgment under Rule 56 of the Federal Rules
of Civil Procedure, or dismissal for lack of jurisdiction under
Rule 12(b)(1), as to all of Mr. Karmue’s claims, which are
asserted under Bivens v. Six Unknown Named Agents of Fed. Bureau
of Narc., 403 U.S. 388 (1971), and the Federal Tort Claims Act,
28 U.S.C. § 1346(b)(1) (“FTCA”).

Background1
I.

Factual Background
A.

April 23, 2015
1.

Transport Van, Courthouse Hallways, and Holding
Cell

On April 23, 2015, Mr. Karmue was a pretrial detainee
incarcerated at the Donald W. Wyatt Detention Facility (“Wyatt”)
awaiting trial on federal criminal charges pending against him
in United States v. Karmue, No. 1:13-cr-179-WES-PAS-3 (D.R.I.).
Verified Second Amended Complaint (“SAC”) (Doc. No. 70, at 2-3).
On that day, Mr. Karmue was transported to the federal
courthouse in Providence, Rhode Island, by United States
Marshals Service (“USMS”) Deputies Brenton Moore and Elden
DaSilva in a black unmarked prisoner transport van.

Id. at 3-4;

Decl. of David Remington, Mar. 25, 2019 (“Remington Decl.”)
(Doc. No. 113-1, at 1).
Mr. Karmue was placed in the back seat of the van on a
bench facing a steel partition that separated the prisoner
compartment of the van from the driver’s compartment.
No. 70, at 4).

SAC (Doc.

Mr. Karmue’s wrists were handcuffed; the

handcuffs were attached to a waist chain; and his ankles were
shackled together.

Id. at 3; Pl.’s Obj. to Defs.’ Mot. Summ. J.

1The

facts, as set forth here, are gleaned from the summary
judgment record and other documents of evidentiary quality filed
in this case. See Doc. Nos. 70, 112, 113, 115, 121, 124, 128.
2

and Mot. Dismiss (“Pl. Obj. V”) (Doc. No. 128, at 1).

Mr.

Karmue asked Deps. Moore and DaSilva to secure his seatbelt, but
neither deputy responded.

SAC (Doc. No. 70, at 4).

Mr. Karmue

was transported, without a seatbelt, to the federal courthouse.
Mr. Karmue asserts that en route to the courthouse, Dep.
Moore was driving the van in excess of the speed limit.

Id.

At

some point during Mr. Karmue’s transport, Mr. Karmue asserts,
Dep. Moore sped up to beat a red light and then braked sharply
to avoid a collision with an oncoming vehicle.

Id.; Ex. 18,

Defs.’ Statement of Undisputed Facts (“SOUF”), Admin. Tort Claim
Form 95, Sept. 27, 2016 (Doc. No. 113-5, at 4).

Mr. Karmue

asserts that the van came to an abrupt stop, and he was
propelled into the steel partition in the van.
70, at 4).

SAC (Doc. No.

Mr. Karmue was unable to use his arms to block the

impact of hitting the partition, or brace himself with his legs
or arms.

Id.

Mr. Karmue states that when he hit the partition, his
knees, back, legs, and hips were injured.

Id. 4-5.

Mr. Karmue

asserts that he asked Deps. Moore and DaSilva to provide him
with immediate medical attention, but they continued driving to
the courthouse, which was a short distance away.

Id. at 5.

Karmue states that the deputies did not say anything when he
requested medical care.

Id.

3

Mr.

When the van arrived at the courthouse, the deputies parked
in the sallyport, got out of the van, opened the van door, and
unlocked the van’s prisoner compartment to allow Mr. Karmue to
get out of the van.

Id.; Video Ex. 1.2

The deputies directed

Mr. Karmue to get out of the van and walk on his own power.
Obj. V (Doc. No. 128, at 2).

Pl.

Video evidence the defendants

submitted with the instant motion shows Mr. Karmue stepping out
of the van, apparently with some difficulty, and with assistance
from Dep. DaSilva.

Video Ex. 1.

While the video does not have

any audio, Mr. Karmue and the deputies appear to be speaking to
one another.

Id.

Mr. Karmue avers that after he was injured in the van, he
“repeatedly complained that he was in pain but the Defendants
refused to listen.

Marshal Moore was angry, hostile, and

yelling at the Plaintiff, telling him he had to walk.

Plaintiff

was forced to walk even though he was in pain and limping
visibly.”

Pl.’s Resp. to Defs.’ SOUF After Reviewing Videos

(“Pl. Obj. IV”) (Doc. No. 124, at 3).

2The

Mr. Karmue further

defendants have submitted sixteen video clips recorded
in the federal courthouse on April 23, 2015, as Exhibits 1-16
(Doc. No. 113-2) to the Defendants’ Statement of Undisputed
Facts (Doc. No. 113). For purposes of this Order, the court
identifies those video exhibits as “Video Ex. 1,” “Video Ex. 2,”
etc. See Remington Decl. (Doc. No. 113-1, at 1) (“Attached as
Exhibits 1-16 are true and correct copies of video recordings
from security cameras located at the Federal Courthouse on April
23, 2015.”).
4

alleges that the defendant deputies forced him to exit the van
and walk through the courthouse, exacerbating “his pain and
injuries.”

Id. at 4.

The video shows that Mr. Karmue then, unassisted but with a
pronounced limp, walked with Deps. Moore and DaSilva to the
prisoner elevator located in the sallyport.

Video Exs. 1, 2.

Mr. Karmue leaned on the wall while riding in the elevator.
Video Ex. 3.

Mr. Karmue asserts he leaned on the wall for

support due to the pain in his knees.

Pl. Obj. IV (Doc. No.

124, at 4).
Mr. Karmue exited the elevator and proceeded on foot,
limping and moving slowly, accompanied by Deps. Moore and
DaSilva, through a small room and down a hallway toward a
holding cell.

Video Exs. 4-7.

The video shows that in the

holding cell, Dep. DaSilva removed Mr. Karmue’s handcuffs, left
his ankle shackles on, and locked him into the holding cell,
where Mr. Karmue sat on a bench.3

Video Exs. 8, 9.

Approximately five minutes after Mr. Karmue was placed in
the holding cell, two unidentified USMS deputies entered Mr.
Karmue’s cell and spoke with him.

3In

Video Ex. 9.

Mr. Karmue

the Second Amended Complaint, Mr. Karmue stated that he
remained handcuffed while in the holding cell. SAC (Doc. No.
70, at 5).
5

spoke to the deputies, while gesturing to one or both of his
knees.

The deputies then left the cell.

Video Ex. 9.

Approximately eight minutes later, one of the unidentified
deputies returned to the cell, accompanied by Deps. Moore and
USMS Dep. Justin Carvalho and two Emergency Medical Technicians
(“EMTs”), Michael Cairone and Stephany Blackwell.

Video Ex. 9;

Providence Fire Dep’t Report, Apr. 23, 2015 (“EMT Report”) (Doc.
No. 113-6, at 9).

Mr. Karmue states that before the EMTs

entered the cell, Dep. Moore told the EMTs not to touch Mr.
Karmue.
9).

SAC (Doc. No. 70, at 6); Pl. Obj. IV (Doc. No. 124, at

A computerized form apparently completed by EMT Cairone

notes, in a section titled “Narrative,” that “[patient] did not
want [EMTs] to touch him.”

EMT Report (Doc. No. 113-6, at 10).

Mr. Karmue asserts that he did not make that statement.

The

video shows EMT Cairone touching Mr. Karmue briefly on the
shoulder when he first entered the cell, apparently in greeting,
but otherwise neither EMT touched Mr. Karmue in the cell.

Video

Ex. 9.
The video shows the EMTs standing in the cell, speaking
with Mr. Karmue, and looking at Mr. Karmue’s leg with his pants
on.

Id.

The EMT Report states that there was “no visible

swelling thru clothing.”

EMT Report, at 2.

Mr. Karmue asserts

that he told the EMTs and deputies present that he was in too
much pain to walk, but Dep. Moore instructed the EMTs not to
6

place Mr. Karmue on a stretcher at that time, stating that he
had “walked in there so he can keep walking.”
No. 124, at 5).
in the cell.

Pl. Obj. IV (Doc.

The EMTs spent approximately forty-five seconds

Video Ex. 9.

At that point, the video shows Dep. Moore standing in front
of Mr. Karmue while Mr. Karmue attempts to stand.

Id.

Dep.

Moore and EMT Cairone appear to be helping Mr. Karmue stand, and
then EMT Cairone supports Mr. Karmue by holding him under his
left arm as they walk out of the holding cell.

Video Ex. 9.

The video then shows Mr. Karmue, while being assisted by EMT
Cairone, hunched over and shuffling with a pronounced limp back
through the same courthouse hallways and to the prisoner
elevator, moving much slower than he had before.
9-11.

Video Exs.

According to the time stamp on the video, it took Mr.

Karmue approximately thirty seconds to walk from the elevator to
the holding cell, and approximately three minutes to walk the
same route back to the elevator.4

4Mr.

Video Exs. 3-7, 9-11.

Karmue had alleged, in his Second Amended Complaint,
that Deps. Moore and DaSilva dragged him out of the van and
through the courthouse because he could not walk. SAC (Doc. No.
70, at 5). After Mr. Karmue watched the video, he filed a sworn
response to the federal defendants’ summary judgment filings in
which he “admits that he walked but contends that he was being
forced to” do so. Pl. Obj. IV (Doc. No. 124, at 4).
7

2.

Prisoner Elevator and Medical Care

Mr. Karmue entered the elevator supported by EMT Cairone.
Once inside the elevator, Mr. Karmue leaned against the wall.
Video Ex. 12; Pl. Obj. IV (Doc. No. 124, at 4).

The video shows

that Dep. Carvalho and EMT Cairone were standing behind Mr.
Karmue in the elevator, and one or both of them appear to be
holding Mr. Karmue up by placing their hands on Mr. Karmue’s
back, while Dep. Moore took hold of the left shoulder area of
Mr. Karmue’s shirt and appears to have held Mr. Karmue upright
as Mr. Karmue leaned against the wall.

Video Ex. 12.

Dep.

Moore then attempted, unsuccessfully, to pull Mr. Karmue up
straight by pulling up the left shoulder of his shirt.

Id.

Dep. Moore, still holding Mr. Karmue’s shirt, spoke to Mr.
Karmue for a few seconds.

Mr. Karmue states that at that point

he was unable to support his own weight any longer due to his
pain, and so he dropped to the floor of the elevator.
IV (Doc. No. 124, at 6).

Pl. Obj.

On the video, it appears that Mr.

Karmue’s legs collapsed under him, and he fell to the floor.
Video Ex. 12.

Mr. Karmue states that he “tried to sit on the

floor since he could no longer support himself, but [Dep.] Moore
forcefully pulled him up and began to call him ‘N----r’ as the
Plaintiff fell down to the floor of the elevator due to his
injuries and excruciating pain from the accident.”
(Doc. No. 124, at 6).

Pl. Obj. IV

The video shows that Dep. Moore, who Mr.
8

Karmue states was “infuriated” by Mr. Karmue’s fall, SAC (Doc.
No. 70, at 6), immediately grabbed both shoulders of Mr.
Karmue’s shirt and attempted to lift Mr. Karmue up, but he fell
to the floor again.

Video Ex. 12.

In the video it appears that

when Mr. Karmue fell to the floor, he fell into a seated
position with his legs straight out in front of him and his back
against the elevator wall.

Id.

Once Mr. Karmue fell a second time, much of what happened
while Mr. Karmue was on the floor of the elevator is not
discernible in the video, as Dep. Moore’s back obscures the
camera angle.5

Id.

What can be seen is that after Mr. Karmue

falls, his feet appear to be sticking straight out in front of
him on the floor to the right of Dep. Moore, while part of Mr.
Karmue’s back remains visible to the left of Dep. Moore.
Mr. Karmue’s feet do not appear to be moving.

Id.

Id.

According to the time stamp on the video, four or five
seconds after Mr. Karmue fell to the floor, Dep. Moore, while
holding Mr. Karmue’s shirt with his left hand, reached behind
his back and took his Taser out of his back pocket with his
right hand.

Id.

The video shows that Dep. Moore aimed the

5The

court in no way intends to imply that Dep. Moore
intentionally blocked the activity on the floor of the elevator
from the camera and nothing about Dep. Moore’s conduct in the
elevator, to the extent it can be seen on the video, gives rise
to such an inference.
9

Taser at Mr. Karmue’s head and neck area, which was visible in
the video.

Id.

The video then shows that twice, in close

succession, a bright light emitted from the Taser, and shone on
Mr. Karmue’s head and chest area.

Id.

Dep. Moore then returned

the Taser to his back pocket.6
While Mr. Karmue, in his initial complaint documents,
asserted that Dep. Moore shot him with the Taser two or three
times in the elevator damaging his eye, he now concedes that the
damage to his eye, and the pain and shock he felt, was caused by
the bright light and/or the electrical current to which he was
subjected when Dep. Moore aimed the Taser at him.

Mr. Karmue

describes the following impact from “taser burn”:
[E]ven though the taser did not deploy any wires or
barbs that struck his body directly, he felt a shock
and burn in his eyes when the light struck his eyes
twice as he sat on the floor. DUSM Moore did in fact
activate the taser in front of Plaintiff’s eyes which
cause[d] pain and blurred vision as Plaintiff was on
the floor being assaulted by Defendants.
Pl. Obj. IV (Doc. No. 124, at 8).
Mr. Karmue states, regarding what occurred on the floor of
the elevator, that “[a]fter he fell, he was unable to stand.

6USMS

He

Chief Deputy David Remington, in his declaration,
states that “[d]ata stored on the Tasers used by [USMS deputies]
can be retrieved and reviewed in order to determine if and when
a specific Taser has been fired.” Remington Decl. (Doc. No.
113-1, at 2). Chief Dep. Remington further averred that he
generated a report of the data for the Taser issued to Dep.
Moore for April 23, 2015, and found that it was not fired on
that day. See id.; Ex. 17, Defs.’ SOUF (Doc. No. 113-3, at 2).
10

was not resisting, but rather, pleading for help as he was being
assaulted and slammed on the floor numerous times in the
elevator . . . [and] choked after he tried to rub his eyes.”
Id. at 7.
The video shows that after Dep. Moore put his Taser back in
his pocket, Deps. Moore and Carvalho held or grabbed Mr. Karmue
while he was still in a seated position.

Video Ex. 12.

Dep.

Carvalho then let go of Mr. Karmue and appears to be pointing at
Mr. Karmue and yelling at him.

Id.

It appears that Mr. Karmue

responded to Dep. Carvalho, and, at one point, while still being
held by Dep. Moore, Mr. Karmue lifted his left arm once, with
his elbow bent.

Id.

Dep. Moore then forced Mr. Karmue down to

the floor on Mr. Karmue’s left side.

Id.

While Mr. Karmue is

lying on the floor of the elevator, Dep. Moore’s back is again
blocking the camera view.

What is visible is that Dep. Moore

was standing or kneeling, bent over Mr. Karmue, and Dep. Moore’s
arms and upper body were moving.

Id.

Dep. Carvalho also bends

down toward Mr. Karmue, but his actions are not entirely
captured on the video.

Id.

The video then shows Mr. Karmue on the floor on his left
side while Dep. Moore grabs and holds both of Mr. Karmue’s arms.
Id.

Dep. Carvalho then reached into his back waistband area and

removed a pair of handcuffs, and placed them on Mr. Karmue.
After Mr. Karmue was handcuffed, the video shows Mr. Karmue
11

Id.

writhing in place while lying on the floor, while the deputies
stood over him.

Id.

Dep. DaSilva then enters the elevator

along with the two unidentified deputies.

Dep. DaSilva then

leans over Mr. Karmue, and appears, from the back, to be having
physical contact with Mr. Karmue, as Dep. DeSilva’s upper body
and arms were moving, but the camera’s view of the details of
that contact is obscured by Dep. DeSilva’s back.

Id.

While Dep. Carvalho and an unidentified deputy stood at the
elevator door, Deps. Moore and DaSilva twice attempted to lift
Mr. Karmue by grabbing him by his arm and shirt, and tried to
bring him to a standing position, but Mr. Karmue again dropped
to the floor each time.

Id.

Deps. Moore and DaSilva then

continued to have some contact with Mr. Karmue, although their
exact actions are not visible to the camera.
let go of Mr. Karmue.

Id.

The deputies then

Mr. Karmue remained prone on the

floor of the elevator and continued to writhe in place.

Id.

Shortly thereafter, EMT Cairone and Dep. DaSilva lifted Mr.
Karmue and carried him out of the elevator, and out of view of
the camera.

Id.; SAC (Doc. No. 70, at 7).

Mr. Karmue alleges that once out of the prisoner elevator,
he was “dropped and dragged to be placed in a chair.

His body

was covered with a sheet which covered his injuries from the
assault.”

Pl. Obj. IV (Doc. No. 124, at 9).

Although views of

the outside of the prisoner elevator from earlier on April 23,
12

2015 are part of the summary judgment record in this case, no
video from the camera there was submitted to the court showing
what occurred once Mr. Karmue was carried out of the elevator.
Video from another location shows that shortly after Mr. Karmue
left the prisoner elevator, he was brought into the sallyport
via a wheelchair lift elevator, with his body, arms, and legs
strapped into an evacuation chair supplied by the EMTs, with a
blanket on his head which covered everything but his face.
Video Exs. 13, 14.

Mr. Karmue was then wheeled through the

sallyport and into an outside parking area.

Video Exs. 14, 15.

Mr. Karmue appears to be yelling while in the evacuation chair
in the parking area.

Video Exs. 14, 15.

Mr. Karmue was then

transferred to a stretcher and placed in the ambulance.
Ex. 15.

The ambulance then left the parking area.

Video

Id.

The defendants have asserted that Mr. Karmue is described
in the EMT Report as being combative in the elevator.

The

report states, that Mr. Karmue “became combative (in elevator)
during packaging,” and that the EMTs were “unable to obtain
vitals due to [patient]’s combativeness.”

EMT Report (Doc. No.

113-6, at 10).7

7It

is not clear whether “during packaging” means that Mr.
Karmue became combative in the prisoner elevator, or in the
elevator wheelchair lift in the sallyport, where Mr. Karmue had
been wrapped in a blanket and strapped into a chair for
transport, after which he appeared to be yelling.
13

Mr. Karmue asserts that, en route to the hospital, he was
not provided with medical care by the EMTs because Dep. DaSilva
instructed the EMTs not to touch or treat him.
70, at 7).

SAC (Doc. No.

Mr. Karmue further asserts that, once the ambulance

delivered him to Roger Williams Hospital (“RWH”), Dep. DaSilva
and an unidentified USMS deputy advised the RWH medical staff
not to provide medical care to Mr. Karmue.

They allegedly told

RWH emergency room medical personnel that Mr. Karmue was faking
his injuries and his pain before Mr. Karmue was able to explain
his condition to the medical providers.

Id.

Mr. Karmue states

that the emergency room doctor then announced that Mr. Karmue
would be leaving RWH to receive medical treatment elsewhere and
did not examine or treat Mr. Karmue.

Id. at 8.

The defendants have submitted a one-page document labeled
“Emergency Room Visit Notes” of Dr. Michael Bonitati (“RWH ER
Notes”), an RWH physician.

Ex. 19, Defs.’ SOUF, RWH ER

Notes_(Doc. No. 113-6, at 14).

Those notes state:

Kormahyah Karmue is a 40-year-old Male in police
custody who was in a metal cage in a police van when
the van stopped short and he reports striking knees on
metal cage today. Patient ambulated from van to
federal court and when in elevator he apparently
slumped over and started yelling that he was
assaulted. [Patient] yelling and screaming at police,
nursing staff, ED staff upon arrival stating that he
has “pain all over.” Per Providence EMS patient was
walking in front of them and then laid down in
elevator and began yelling he was assaulted and would
not walk from that point. Per EMS no witnessed
assault.
14

RWH ER Notes (Doc. No. 113-6, at 14).
with “MVC” and knee pain.

Id.

Dr. Karmue was diagnosed

No other information or records

from RWH have been submitted to the court.
Mr. Karmue disputes the accuracy of Dr. Bonitati’s notes.
Regarding his care at RWH, Mr. Karmue reports that:
[a]s he explained to the nurse what had happened to
him, the EMTs and the Marshals began to state that
Plaintiff was faking injuries and he was not injured.
This was after [defendant USMS deputies] had already
spoken with hospital staff before Plaintiff was
brought in. The nurse and the doctor seemed to not
believe Plaintiff’s statements because Defendants had
told them Plaintiff was faking injuries.
During this time, the Plaintiff was crying because he
was in pain, and the doctor and nurses were refusing
to give him any pain treatment. No X-ray or CT scan
was done at this hospital. The Defendants and the
nurse were mocking Plaintiff because he was crying in
pain. [Dep.] Elden DaSilva was mocking Plaintiff
while recording Plaintiff on [Dep.] DaSilva’s cell
phone, as Plaintiff was cuffed and chained to the bed.
The Defendants told the doctor not to provide any
treatment because they were going to transport
Plaintiff back to [Wyatt] and he would be treated
there.
Pl. Obj. IV (Doc. No. 124, at 10).

Mr. Karmue was transported

from RWH to Wyatt by Wyatt staff, SAC (Doc. No. 70, at 10), and
had no further interactions with the USMS defendants relevant to
the issues before the court in this case.
The following day, Mr. Karmue was brought from Wyatt to the
Memorial Hospital Emergency Room because, he asserts, his
physical condition had worsened.

15

Id. at 8.

Mr. Karmue

describes a cursory examination at Memorial which failed to
address all of his complaints.

Id. at 8-9.

According to

Memorial Hospital records the defendants submitted with the
instant motion, Mr. Karmue told medical staff there he had
“total body pain” from hitting the steel partition in the
transport van and being assaulted the previous day.

Ex. 19,

Def.’s SOUF, Memorial Hosp. ED Chart Apr. 24, 2015 (“Memorial
Chart”) (Doc. No. 113-6, at 17).

The records state that Mr.

Karmue was without contusions on his face or body, had no recent
change in vision, no skin rash or bruising, and no signs of head
trauma.

B.

Id.

FMC Devens

Sometime after Mr. Karmue was sentenced, he was transferred
out of Wyatt and incarcerated at the Federal Medical Center in
Devens, Massachusetts (“FMC Devens”), a Federal Bureau of
Prisons (“BOP”) facility.
to R&R (Doc. No. 78, at 4).

SAC (Doc. No. 70, at 10); Pl.’s Reply
Mr. Karmue remained at FMC Devens

until he was released to a halfway house in Florida on September
5, 2019.

Mr. Karmue has alleged that he has suffered from

ongoing medical problems due to the injuries he received on
April 23, 2015, including an 85% loss of vision in his left eye,
the inability to walk, and severe pain.

Mr. Karmue asserts that

he attempted to receive appropriate diagnoses, examinations and
16

treatment for these issues throughout the approximately four
years he was at FMC Devens.
Mr. Karmue asserts that during his initial interview at FMC
Devens with Dr. Al-Karim Dhanji and other FMC Devens staff
members, he described and explained the injuries he received on
April 23, 2015 in the USMS transport van and in the courthouse
prisoner elevator.

SAC (Doc. No. 70, at 10).

Mr. Karmue claims

here that Dr. Dhanji, after reviewing Mr. Karmue’s Wyatt
records, accused Mr. Karmue of faking his injuries and ongoing
medical complaints.

Id.

Mr. Karmue also states that “the full

extent of the damage, which resulted from the accident and
subsequent assault by the U.S. Marshals, has yet to be fully
diagnosed, as staff at [FMC] Devens seem unwilling to fully
explore any pain, suffering or problems I have as a result of
the aforementioned incidents.”

Admin Tort Claim Form 95, Sept.

27, 2016, Ex. 19, Defs.’ SOUF (Doc. No. 113-6, at 26).

In

February 2016, Mr. Karmue was directed to see Kerry Quinn, a
physical therapist at FMC Devens, for physical therapy.
(Doc. No. 70, at 11).

SAC

Mr. Karmue states that PT Quinn created a

physical therapy regimen that was inappropriate for his medical
condition, and that when he tried to talk to her about it, she
accused him of not trying to follow his treatment plan.
12.

Id. at

Mr. Karmue claims that PT Quinn refused him the use of a

walker, and gave him only limited use of a cane, which she took
17

from him when she discharged him from physical therapy treatment
after twelve weeks because he was not making progress.

Id.

Later, when Mr. Karmue again sought physical therapy, PT Quinn
refused him treatment.

II.

Id.

Claims Asserted Against Federal Defendants
Mr. Karmue has asserted the following claims against the

federal defendants in his Second Amended Complaint8:
1.
USMS-RI Deputies Brenton Moore and Elden DaSilva
violated Karmue’s Fifth Amendment due process right to be
protected from a substantial risk of serious harm while in
pretrial detention by failing to properly secure Karmue
with a seatbelt while transporting Karmue from the WDC to
the federal courthouse on April 23, 2015.
2.
USMS-RI Deputies Brenton Moore and Elden DaSilva
violated Karmue’s Fifth Amendment due process rights, in
that they kicked and punched him while he was on the floor,
and used a Taser or stun-gun on him, in a manner that was
objectively unreasonable, in an elevator in the courthouse
on April 23, 2015.
3.
USMS-RI Deputies Justin Carvalho and John Doe #4
violated Karmue’s Fifth Amendment due process rights when
they failed to intervene to protect Karmue from being
assaulted in a manner that was objectively unreasonable by
USMS-RI Deputies Brenton Moore and Elden DaSilva on April
23, 2015, despite having the ability and opportunity to do
so.
4.
USMS-RI Deputies Brenton Moore, Elden DaSilva,
and Justin Carvalho violated Karmue’s Fifth
Amendment due process right to adequate medical
care on April 23, 2015, when:

8The

claims pending in this action against defendants other
than the federal defendants are omitted from this list as they
are not relevant to the instant motion.
18

a.
Moore and DaSilva denied Karmue’s repeated
requests for medical assistance and evaluation for his
knees and hips after he was injured during transport;
b.
Moore and DaSilva stopped EMTs from medically
evaluating and/or treating Karmue in a holding cell at
the courthouse;
c.
DaSilva stopped EMTs from medically evaluating
and/or treating Karmue in an ambulance transporting
Karmue from the courthouse to RWH; and
d.
DaSilva and Carvalho stopped medical personnel at
RWH from medically examining and/or treating Karmue in
the RWH emergency room.
. . .
9.
The United States of America is liable to Karmue
under the Federal Tort Claims Act (“FTCA”) for the
negligence and other tortious acts underlying Claims 1-[4]
above, to the extent those acts were committed by federal
employees acting in the scope of their employment.
10. Karmue has suffered violations of his Eighth Amendment
right to adequate medical care, in that FMC-Devens
physician Dr. Danji and Physical Therapist Quinn, acting
with deliberate indifference to Karmue’s serious medical
needs, denied Karmue adequate medical care.
11. Karmue has been subjected to medical negligence at
FMC-Devens, rendering the United States liable to Karmue
under the FTCA for the negligence and other tortious acts
of Dr. Danji and Physical Therapist Quinn, to the extent
Dr. Danji and Physical Therapist Quinn were federal
employees acting in the scope of their employment.
May 18, 2019 R&R (Doc. No. 67) (amended by Feb. 4, 2019 R&R
(Doc. No. 99)), approved by, Mar. 4, 2019 Order (Doc. No. 107).

19

Discussion
I.

Claims as to Which Defendants Seek Summary Judgment
A.

Summary Judgment Standard

“Summary judgment is warranted if ‘there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’”

Luceus v. Rhode Island, 923 F.3d

255, 256-57 (1st Cir. 2019) (quoting Fed. R. Civ. P. 56(a)).
“An issue is ‘genuine’ if it can ‘be resolved in favor of either
party,’ and a fact is ‘material’ if it ‘has the potential of
affecting the outcome of the case.’”

Xiaoyan Tang v. Citizens

Bank, N.A., 821 F.3d 206, 215 (citation omitted).

When a court

considers a motion for summary judgment, “[t]he evidence . . .
must be viewed in the light most favorable to the nonmoving
party . . . and all reasonable inferences must be taken in that
party’s favor.”

Harris v. Scarcelli (In re Oak Knoll Assocs.),

835 F.3d 24, 29 (1st Cir. 2016).
Where the party moving for summary judgment bears the
burden of proof on an issue, that party “must provide evidence
sufficient for the court to hold that no reasonable trier of
fact could find other than in its favor.”

Am. Steel Erectors,

Inc. v. Local Union No. 7, Int’l Ass’n of Bridge, Structural,
Ornamental & Reinforcing Iron Workers, 536 F.3d 68, 75 (1st Cir.
2008).

Once the moving party identifies the portions of the

record that show the absence of any genuine issue of material
20

fact, the burden shifts to the nonmoving party to demonstrate,
by reference to materials of evidentiary quality, that a trier
of fact could reasonably resolve that issue in the nonmovant’s
favor.

See Irobe v. U.S. Dep’t of Agric., 890 F.3d 371, 377

(1st Cir. 2018).

“Summary judgment is warranted if a nonmovant

who bears the burden on a dispositive issue fails to identify
‘significantly probative’ evidence favoring his position.”

Id.

(citation omitted).
B.

Qualified Immunity

The defendants argue that they are entitled to qualified
immunity as to Claims 1-4 because, as to each of those claims,
Mr. Karmue cannot demonstrate that the defendants violated any
clearly established constitutional right.

“Qualified immunity

is a doctrine that shelters government officials from civil
damages liability ‘insofar as their conduct does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.’”

McKenney v. Mangino,

873 F.3d 75, 80 (1st Cir. 2017) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)); see also Kisela v. Hughes, 138 S. Ct.
1148, 1152 (2018) (per curiam) (same).
To determine whether qualified immunity applies:
First, the court must determine whether the
plaintiff’s version of the facts makes out a violation
of a protected right. Second, the court must
determine whether the right at issue was clearly
21

established at the time of defendant’s alleged
misconduct. This second step is itself divisible into
two components. To begin, the plaintiff must point to
controlling authority or a consensus of cases of
persuasive authority that broadcasts a clear signal to
a reasonable official that certain conduct falls short
of the constitutional norm. Then, the court must
evaluate whether an objectively reasonable official in
the defendant’s position would have known that his
conduct violated that rule of law.
McKenney, 873 F.3d at 81 (internal quotation marks and citations
omitted).
Because qualified immunity is intended to protect all
but the plainly incompetent or those who knowingly
violate the law, the existing precedent at the time of
the officers’ conduct must be clear enough that every
reasonable official would interpret it to bar the
conduct at issue. Although plaintiffs are not
required to identify controlling precedent with
identical[] facts, . . . clearly established law must
be sufficiently particularized to serve as a fair and
clear warning that the officers’ conduct is
unconstitutional.
Hill v. Walsh, 884 F.3d 16, 21-22 (1st Cir. 2018) (internal
quotation marks and citations omitted) (emphasis in original);
see also White v. Pauly, 137 S. Ct. 548, 552 (2017).

“When a

defendant invokes qualified immunity, the burden is on the
plaintiff to show that the defense is inapplicable.”

Escalera-

Salgado v. United States, 911 F.3d 38, 41 (1st Cir. 2018).

C.

Fifth Amendment Seatbelt Claim (Claim 1)

Mr. Karmue alleges, in the claim this court previously
identified as Claim 1, that Deps. Moore and DaSilva, by failing

22

to secure him in the USMS transport van with a seatbelt violated
his Fifth Amendment right to be protected from a substantial
risk of serious harm to his health and safety under the
circumstances.

The defendants argue that Deps. Moore and

DaSilva are entitled to qualified immunity on this claim.
The Due Process Clause imposes a substantive obligation
upon federal actors to refrain from treating a pretrial detainee
with deliberate indifference to a substantial risk of serious
harm to his or her health and safety.

Coscia v. Town of

Pembroke, 659 F.3d 37, 39 (1st Cir. 2011) (discussing Fourteenth
Amendment claims of pretrial detainees in state custody).

At a

minimum, the plaintiff must allege facts showing that the
defendant possessed a purposeful, knowing, or reckless state of
mind, as “‘liability for negligently inflicted harm is
categorically beneath the threshold of constitutional due
process.’”

Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472

(2015) (citation omitted) (emphasis in original).

“Proof of

deliberate indifference requires a showing of greater
culpability than negligence but less than a purpose to do harm .
. ..”

Coscia, 659 F.3d at 39 (citing Farmer v. Brennan, 511

U.S. 825, 835 (1994)).
The critical question for the qualified immunity analysis
in Mr. Karmue’s case, with respect to the deliberate
indifference claim this court identified as Claim 1, is whether
23

it was clearly established in April 2015 within the First
Circuit that it would violate the Constitution to subject an
inmate to a significant risk of serious harm to fail to fasten
the seatbelt of a handcuffed and shackled inmate in a transport
van.

There is neither First Circuit nor Supreme Court precedent

on that issue.

During the relevant time period, even as to

inmates who are shackled and handcuffed, courts have concluded
that, without more, the failure to provide seatbelts in
transport vans did not violate any federal constitutional right.
See, e.g., Dale v. Agresta, No. 1:15-CV-0140-SEB-MPB, 2017 WL
5517384, at *2, 2017 U.S. Dist. LEXIS 190183, at *9 (S.D. Ind.
Nov. 16, 2017) (shackled and handcuffed inmate whose transport
van was struck from behind in 2013 did not state Eighth
Amendment deliberate indifference claim against transport
officers who had not seatbelted him), aff’d on other grounds,
771 F. App’x 659, 661 (7th Cir. 2019) (transport officer was
entitled to qualified immunity on Eighth Amendment claim, as
inmate “did not have a clearly established right to a seatbelt”
where transport officer “did not do anything” to increase the
risk of harm), cert. denied, No. 19-7036, 2020 U.S. LEXIS 1106,
at *1, 2020 WL 837503, at *1 (Feb. 24, 2020 U.S.); see also
Jabbar v. Fischer, 683 F.3d 54, 58-59 (2d Cir. 2012) (prison
officials’ failure to provide seatbelts in prison vehicles,
standing alone, does not violate inmate’s Eighth Amendment
24

rights); Hooker v. United States, No. 12-cv-346-JNL, 2015 WL
1519856, at *1, 2015 U.S. Dist. LEXIS 46221, at *2 (D. Me. Mar.
31, 2015) (collecting cases for proposition that failure to
provide seatbelts or other safety restraints in police transport
vehicles does not violate federal rights).
The specific circumstances that attended Mr. Karmue’s
transport, however, as alleged in the Second Amended Complaint
include operative facts that this court described, but did not
reiterate when it summarized Claim 1, namely, that the defendant
transport officer drove recklessly and that Mr. Karmue’s request
to be seatbelted was denied.
67, at 7-8, 12).

See May 18, 2018 R. & R. (Doc. No.

Those allegations, if ultimately shown to be

true, would affect the result of the qualified immunity
analysis.

None of the appellate court cases cited by defendants

concern reckless driving and circumstances where the inmate
asked to be seatbelted.

See, e.g., Scott v. City of Phil., No.

CV 19-2871, 2019 U.S. Dist. LEXIS 129091, at *7, 2019 WL
3530909, at *3 (E.D. Pa. Aug. 1, 2019) (collecting district
court cases predating 2011, dismissing deliberate indifference
claims asserted by inmates who were transported without a
seatbelt and who claimed to be injured by reckless driving, and
contrasting cases from appellate courts where “plaintiff’s
allegations of reckless driving are coupled with allegations
that the driver intended harm, refused to slow down after being
25

asked, or declined to fasten an inmate’s seatbelt despite the
inmate’s protestations”).

There is a consensus of persuasively

reasoned federal appellate court cases that have addressed the
question which have held that qualified immunity is not
available with respect to the Eighth Amendment deliberate
indifference claims of handcuffed and shackled inmates who have
been transported unseatbelted in a van driven recklessly.

See

Thompson v. Virginia, 878 F.3d 89, 102, 109 (4th Cir. 2017)
(transport officers are not entitled to qualified immunity on
excessive force and deliberate indifference Eighth Amendment
claims, where driver and officer in passenger seat both knew
that shackled/handcuffed inmate was exposed to substantial risk
of serious harm from being physically tossed about, driver was
speeding and driving recklessly in way intended to scare and
injure inmate, and officer in passenger seat failed to take
preventive measures despite subjective knowledge of those
facts); Rogers v. Boatright, 709 F.3d 403, 409 (5th Cir. 2013)
(prisoner stated claim where he alleged that defendant “operated
the prison van recklessly, knowing that there was a substantial
risk that [plaintiff] would be injured if the van stopped
abruptly because [plaintiff] was shackled in leg irons and
handcuffs and was not provided with a seatbelt” and because
driver had “told another officer that other inmates similarly
had been injured the prior week and during other incidents,
26

which ‘happen[ ] all the time’”); Brown v. Fortner, 518 F.3d
552, 561 (8th Cir. 2008) (no qualified immunity on Eighth
Amendment deliberate indifference claim as to officer who had
ignored requests to slow down and drove recklessly while
transporting inmate whom officer knew had been denied use of
seatbelt); see also Scott v. Becher, 736 F. App’x 130, 133 (6th
Cir. 2018) (rejecting qualified immunity where transport officer
“was driving above the speed limit, swerving, and generally
driving recklessly” and when inmates begged him to slow down,
officer “refused, laughed, and instead accelerated”).

Cf.

McCowan v. Morales, 945 F.3d 1276, 1286, 1289 (10th Cir. 2019)
(no qualified immunity on Fourth Amendment excessive force claim
as to officers who gratuitously subjected compliant, handcuffed,
non-threatening arrestee, who had complained of pre-existing
injury, to un-seatbelted “rough ride” in patrol car in August
2015).

Under the circumstances alleged by Mr. Karmue’s verified

second amended complaint regarding the officers’ reckless
driving and refusal to seatbelt Mr. Karmue, with knowledge that
he could not brace himself in the event of a sudden stop,
defendants are not entitled to qualified immunity at this stage
of the case.

The court thus denies the pre-discovery motion for

summary judgment based on the affirmative defense of qualified
immunity as to Claim 1.

27

D.

Excessive Force & Failure to Protect (Claims 2, 3, 9)
1.

Excessive Force Standard

“[T]he Supreme Court has held that the appropriate standard
for a pretrial detainee’s Fourteenth Amendment excessive force
claim is simply objective reasonableness.”

Miranda-Rivera v.

Toledo-Dávila, 813 F.3d 64, 70 (1st Cir. 2016) (citing Kingsley,
135 S. Ct. at 2473–74 (holding that a pre-trial detainee need
not necessarily prove the officer's intent to harm or punish,
only that from an objective viewpoint, the officer's action was
“not rationally related to a legitimate governmental objective
or that it [was] excessive in relation to that purpose.”)).9
A court (judge or jury) cannot apply this standard
mechanically. Rather, objective reasonableness turns
on the facts and circumstances of each particular
case. A court must make this determination from the
perspective of a reasonable officer on the scene,
including what the officer knew at the time, not with
the 20/20 vision of hindsight. A court must also
account for the legitimate interests that stem from
the government's need to manage the facility in which
the individual is detained, appropriately deferring to
policies and practices that in the judgment of jail
officials are needed to preserve internal order and
discipline and to maintain institutional security.
Considerations such as the following may bear on the
reasonableness or unreasonableness of the force used:
the relationship between the need for the use of force
and the amount of force used; the extent of the
plaintiff’s injury; any effort made by the officer to
temper or to limit the amount of force; the severity
9Because

Mr. Karmue has brought Claims 2 and 3 against
federal officials, rather than state officials, his due process
claims arise under the Fifth Amendment rather than the
Fourteenth Amendment.
28

of the security problem at issue; the threat
reasonably perceived by the officer; and whether the
plaintiff was actively resisting. We do not consider
this list to be exclusive. We mention these factors
only to illustrate the types of objective
circumstances potentially relevant to a determination
of excessive force.
Kingsley, 135 S. Ct. at 2473 (internal quotation marks,
alterations, and citations omitted).

2.

Failure to Protect Standard

“‘An officer who is present at the scene and who fails to
take reasonable steps to protect the victim of another officer’s
use of excessive force can be held liable under section 1983 for
his nonfeasance.’”

Gonsalves v. Rhode Island, No. 17-346 WES,

2017 U.S. Dist. LEXIS 203858, at *6, 2017 WL 6372666, at *2
(D.R.I. Dec. 12, 2017) (quoting Gaudreault v. Munic. of Salem,
923 F.2d 203, 207 n.3 (1st Cir. 1990)).10

An officer cannot be

held liable “for failing to intercede if he has no ‘realistic
opportunity’ to prevent an attack.”
n.3.

Gaudreault, 923 F.2d at 207

However, “‘[a] constitutional duty to intervene may . . .

arise if onlooker officers are instrumental in assisting the
actual attacker to place the victim in a vulnerable position.’”

1042

U.S.C. § 1983 provides a cause of action for plaintiffs
alleging that defendants, acting under color of state law,
violated their constitutional rights. Bivens, while not
coextensive with § 1983, is the means by which a plaintiff can
assert that a federal official violated his or her
constitutional rights.
29

Gonsalves, 2017 U.S. Dist. LEXIS 203858, at *6-7, 2017 WL
6372666, at *2 (quoting Martinez v. Colon, 54 F.3d 980, 985 n.4
(1st Cir. 1995)).

3.

Pre-Discovery Summary Judgment

The defendants make two arguments in support of their
request for summary judgment as to Claims 2 and 3.

First, they

argue that the video evidence uncontrovertibly demonstrates that
the defendants used an objectively reasonable amount of force in
the courthouse elevator in response to Mr. Karmue’s active
resistance of being handcuffed.

Second, they argue that the

defendants are entitled to qualified immunity on the basis that
irrefutable video evidence shows that the defendants did not
violate a clearly established constitutional right by their acts
and/or omissions in the courthouse elevator on April 23, 2015
with regard to Mr. Karmue.
The defendants filed this motion “prediscovery.”

At

summary judgment, “the nonmoving party cannot rest on its
pleadings, but must ‘set forth specific facts demonstrating that
there is a genuine issue for trial’ as to the claim that is the
subject of the summary judgment motion.”

Saltzman v. Whisper

Yacht, Ltd., No. CV 19-285MSM,2019 U .S. Dist. LEXIS 218088, at
*15, 2019 WL 6954223, at *5 (D.R.I. Dec. 19, 2019) (quoting
Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir.
30

1988)), R&R adopted, 2020 U.S. Dist. LEXIS 30462, at *1, 2020 WL
872599, at *1 (D.R.I. Feb. 21, 2020).

In general, therefore,

“[i]n light of its requirement of a factually supported record,
summary judgment is unusual as a pre-discovery response to a
pleading; it is usually reserved to a later phase of the case,
after discovery has sharpened the parties’ focus on the facts.”
Id.; see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 884
(1990) (“plain language” in Fed. R. Civ. P. 56(c) “mandates the
entry of summary judgment, after adequate time for discovery”).
Here, the defendants rely on authority holding that prediscovery summary judgment is appropriate where video evidence
conclusively demonstrates the existence of facts contrary to the
nonmovant’s assertions such that no reasonable jury could find
in the nonmovant’s favor as to those facts.

See, e.g., Scott v.

Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell
two different stories, one of which is blatantly contradicted by
the record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of
ruling on a motion for summary judgment.”); Hunt v. Massi, 773
F.3d 361, 365 n.2 (1st Cir. 2014) (court “‘need not accept [the
plaintiff’s] version of events if it is blatantly contradicted
by the evidence’” (citation omitted)).
Where a party alleges that an inadequate opportunity
for discovery prevents it from mounting an opposition,
Fed. R. Civ. P. 56(d) offers a safeguard against
31

judges swinging the summary judgment axe too hastily.
Specifically, summary judgment may be deferred or
denied if “a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot
present facts essential to justify its opposition.’”
Fed. R. Civ. P. 56(d). Because district courts
construe motions that invoke the rule generously,
holding parties to the rule’s spirit rather than its
letter, the First Circuit requires substantial, not
perfect, compliance. A litigant who invokes Rule
56(d) must make an authoritative and timely proffer
showing: (i) good cause for his inability to have
discovered or marshalled the necessary facts earlier
in the proceedings; (ii) a plausible basis for
believing that additional facts probably exist and can
be retrieved within a reasonable time; and (iii) an
explanation of how those facts, if collected, will
suffice to defeat the pending summary judgment motion.
Nelson v. Formed Fiber Techs., Inc., 856 F. Supp. 2d 235 (D. Me.
2012) (internal quotation marks and citations omitted).
As detailed above, the plaintiff tells a different version
of the facts than do the defendants as to what occurred during
the courthouse elevator incident underlying Claims 2 and 3.

Mr.

Karmue states that he was not resisting the defendants, but that
he fell to the floor due to being injured, in pain, and unable
to stand up, and that the defendants reacted to his dropping to
the fall by physically assaulting him without provocation.

The

defendants claim here that the video of the interaction between
Mr. Karmue and the defendant deputies in the elevator
irrefutably demonstrates that Mr. Karmue was physically
resisting being handcuffed by the deputies, and in response, the
deputies utilized minimal force to regain control of Mr. Karmue

32

and handcuff him.

Accordingly, the defendants contend, the

video blatantly contradicts Mr. Karmue’s version of the facts
and demonstrates conclusively that no reasonable jury could
adopt those facts or find that the defendants acted in an
objectively unreasonable manner.
Contrary to the defendants’ assertions, the video evidence
of what occurred in the elevator does not irrefutably establish
that Mr. Karmue’s fall was an act of physical resistance or a
voluntary act.

While a jury could agree with the defendants’

characterization of the events on the video, a reasonable jury
could also find that that the video depicts Mr. Karmue falling
to the ground because he was in pain, and not because he was
resisting.

Further, the evidence, taken as a whole, does not

show that no reasonable jury could find in Mr. Karmue’s favor.
Specifically, the evidence, examined in the light most favorable
to Mr. Karmue, shows that Mr. Karmue was subject to substantial
impact with a metal partition in the transport van shortly
before he arrived at the courthouse, that he was limping and
moving as though he were injured or in pain prior to getting
into the elevator, that he was unable to stand in the elevator,
and that at the time Mr. Karmue fell to the elevator floor, and
continuing until after Mr. Karmue was on the ground in Dep.
Moore’s physical control, no deputy had attempted to handcuff
Mr. Karmue, and thus his actions were not made in an effort to
33

resist those restraints.

In short, the video is ambiguous as to

what actually occurred in the elevator, and thus, as to whether
the deputies’ actions were objectively reasonable.
In addition to the courthouse video, the defendants point
to the EMT Report, which, they describe as evidence that Mr.
Karmue was combative in the elevator, and to a report from a
doctor at RWH who was told that the EMTs did not witness an
assault, and medical records from RWH and Memorial that do not
indicate that Mr. Karmue suffered from serious injuries.
Assuming, without deciding, that the defendants could properly
introduce such evidence at trial, neither the video nor any
other evidence the defendants have submitted conclusively
refutes Mr. Karmue’s version of events in a manner that renders
pre-discovery summary judgment appropriate.

The medical records

provided, like the video, are at least in part subject to
different interpretations of events and do not blatantly
contradict Mr. Karmue’s version of events.
Further, Mr. Karmue has indicated that there are additional
medical records, from Wyatt and FMC Devens, concerning his
injuries that are relevant to his excessive force claims.

Also,

as Mr. Karmue has not yet had an opportunity for discovery, he
has not been able to depose the defendants, obtain statements or
affidavits from witnesses, or obtain expert evidence that would
support his claims, and nothing presented by the defendants
34

indicate that he would be unable to obtain any evidence to
support his claims from those sources.

Finally, Mr. Karmue

points to certain video feed that the defendants did not submit
with the summary judgment record, indicating that video from
that feed is available and shows facts relevant to his excessive
force and failure to protect arguments.

The court finds that

Mr. Karmue has met his burden at this stage of the proceedings,
to demonstrate that the opportunity for additional discovery
would likely reveal facts that would support his version of the
disputed facts as to the claims against the federal defendants.
Therefore, the facts Mr. Karmue asserted in the second
amended complaint are sufficient to assert Fifth Amendment
excessive force and failure to protect claims against the
defendant USMS deputies for their alleged conduct in the
courthouse elevator on April 23, 2015.

The court also finds

that the evidence provided by the defendants in support of their
summary judgment motion is insufficient to demonstrate that
there is no genuine dispute of material fact as to whether the
deputies’ acts and omissions in the elevator were a reasonable
response to Mr. Karmue’s active resistance to being handcuffed.
Therefore, as to the first prong of the qualified immunity test,
the court finds that the facts, taken in the light most
favorable to Mr. Karmue, “make[] out a violation of a protected

35

right,” id., and do not entitle the defendants to qualified
immunity.

See Miranda-Rivera, 813 F.3d at 72.

The court next considers “whether the right at issue was
clearly established at the time of defendant’s alleged
misconduct.”

Id.

The right at issue in this case, as the court

credits Mr. Karmue’s allegations, is the right not to be
subjected to the force Mr. Karmue describes – being held down,
choked, assaulted, and threatened and/or harmed with a Taser,
for falling to the floor because he was unable to walk.

There

can be no serious question that a reasonable officer, faced with
an inmate who was unable to support his own weight due to pain,
would have known at the time of the events alleged, that
striking, choking and otherwise assaulting an injured, shackled
inmate who was not attempting to resist handcuffing – a factual
scenario not excluded by the summary judgment record here -- or
failing to intervene in the use of such force, would violate Mr.
Karmue’s Fifth Amendment rights not to be subjected to excessive
force and to be protected from harm.
Accordingly, the defendants have not demonstrated, on the
record before the court, that they are entitled to qualified
immunity as to the excessive force and failure to protect claims
(Claims 2 and 3).

Further, for the same reasons set forth here,

the defendants have not demonstrated that they are entitled to

36

relief on Claim 9, plaintiff’s FTCA claim, to the extent that
claim arises out of the conduct underlying Claims 2 and 3.
The court finds that there is a genuine dispute of material
fact as to whether Deps. Moore and DaSilva inflicted excessive
force on Mr. Karmue, and that there is a genuine dispute of
material fact as to whether the noninterference in the use of
force by Dep. Carvalho was reasonable.

The court further finds

that the defendants are not entitled to qualified immunity on
the record before the court at this stage of the proceedings.
Accordingly, the defendants’ motion for summary judgment as to
Claims 2 and 3, and to Claim 9 to the extent that claim arises
out of the facts underlying Claims 2 and 3 is denied, without
prejudice to the defendants’ ability to reassert any appropriate
argument in a summary judgment motion filed on a more complete
record, after the parties have had an adequate opportunity to
conduct discovery.

E.

Denial of Medical Care (Claims 4 and 9)
1.

Denial of Medical Care Standard

A federal pretrial detainee’s Fifth Amendment due process
rights are violated when a prison official denies or delays the
provision of adequate medical care for an inmate’s serious
medical needs, and does so with deliberate indifference to those
needs, resulting in “the unnecessary and wanton infliction of
37

pain.”

Wilson v. Seiter, 501 U.S. 294, 197 (1991); see also

Perry v. Roy, 782 F.3d 73, 78-79 (1st Cir. 2015).

However,

“‘liability for negligently inflicted harm is categorically
beneath the threshold of constitutional due process.’”
Kingsley, 135 S. Ct. at 2472 (citation omitted).
[S]ubstantive due process requires the government to
provide medical care to persons who are injured while
being apprehended by the police. The boundaries of
this duty have not been plotted exactly; however, it
is clear that they extend at least as far as the
protection that the Eighth Amendment gives to a
convicted prisoner. Government officials violate the
Eighth Amendment if they display deliberate
indifference to a prisoner’s serious medical needs.
Miranda-Rivera, 813 F.3d at 74 (internal quotation marks and
citations omitted).

“A serious medical need is one that has

been diagnosed by a physician as mandating treatment, or one
that is so obvious that even a lay person would easily recognize
the necessity for a doctor’s attention.”
quotation marks omitted).

Id. (citations and

A pretrial detainee alleging that

defendants violated his Fifth Amendment right to medical care
for serious medical needs must also plead facts to demonstrate
that the defendants acted with deliberate indifference in that
the defendants were “aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,”
and actually drew the inference.

Farmer, 511 U.S. at 837.

A

factfinder can conclude that a government official was aware of
a substantial risk of serious harm based on the fact that the
38

risk was obvious.

Id. at 842.

However, there is no deliberate

indifference if the defendant official responds reasonably to
the risk.

Id. at 844–45; see also Coscia, 659 F.3d at 39

(deliberate indifference can consist of “a conscious failure to
provide medical services where they would be reasonably
appropriate”).

2.

Pre-Discovery Summary Judgment

The defendants assert that irrefutable evidence submitted
with their summary judgment motion shows that the deputies did
not deny Mr. Karmue medical care, or delay Mr. Karmue’s receipt
thereof, because they obtained medical care for him by calling
the EMTs immediately after he was injured and complained of
pain, and because Mr. Karmue was taken to RWH for medical care.
Further, the defendants assert, Mr. Karmue did not have any
serious medical needs to which the defendants could be
deliberately indifferent.11
11Defendants

point to the following evidence submitted in
support of their summary judgment motion:
•

The EMTs stated that while Mr. Karmue complained of knee
pain, Mr. Karmue had “no visible swelling thru clothing,”
that he “was able to bend and straighten legs,” “insisted
on ambulating, and stated he was able to walk.” EMT Report
(Doc. No. 113-6, at 10);

•

The RWH diagnosed Mr. Karmue with knee pain and a
contusion. RWH ER Notes (Doc. No. 113-6, at 13-14);
39

Mr. Karmue, in his sworn statement, states that from the
time he collided with the steel partition in the transport van,
and lasting all of April 23 and 24, 2015, he experienced severe
pain.

His reports of pain were recorded by the EMTs, Dr.

Bonitati at RWH, and the medical staff at Memorial Hospital.
See EMT Report (Doc. No. 113-6, at 9-10); RWH ER Notes (Doc. No.
113-6, at 12, 14); Memorial ED Chart (Doc. No. 113-6, at 17).
Mr. Karmue further states that while the EMTs were called within
a few minutes of Mr. Karmue’s arrival at the courthouse, that
the defendants denied him care and treatment by the EMTS by
instructing the EMTs that they could not touch, examine, or
treat Mr. Karmue, and that Mr. Karmue was faking his injuries.
Mr. Karmue also claims that Deps. DaSilva and Carvalho similarly
interfered with his care at RWH by telling the medical staff
there that Mr. Karmue was faking his injuries.
The facts underlying Mr. Karmue’s inadequate medical care
clams, asserted under the Fifth Amendment (Claim 4) and the FTCA
(Claim 9, in part), stated in the light most favorable to Mr.
Karmue, demonstrate that he had a serious medical need in that
he experienced extreme pain.

•

Mr. Karmue states that he was

Mr. Karmue’s Memorial Hospital’s Emergency Room chart for
April 24, 2015 stated that Mr. Karmue was “without
contusions on face or body,” had “no recent change in
vision,” “no skin rash or bruising” and “no signs of
trauma.” Memorial Chart (Doc. No. 113-6, at 17).
40

injured by Dep. Moore’s abrupt stop of the transport van, and
that he experienced extreme pain and immediately sought medical
care, and that he so advised Deps. Moore and DaSilva.

The

defendants do not -- and nor could they -- prove that Mr. Karmue
was not in pain.

“Severe pain ‘can be a sufficiently serious

medical need,’” to state a constitutional claim for inadequate
medical care.

Vick v. U.S. Marshals Serv. Deputies Brent Moore

et al., No. 19-cv-267-SJM-AKJ, 2019 WL 7568227, at *6 (D.R.I.
Oct. 11, 2019), R&R approved, 2020 WL 161023, at *1 (D.R.I. Jan.
13, 2020).

While it is not visible, Mr. Karmue’s assertion that

he repeatedly expressed that he was in pain, is sufficient to
allege that he had a serious medical need that was known to the
defendant deputies.

The evidence before the court further

demonstrates that the deputies were aware of Mr. Karmue’s pain
because they were aware that he had hit the partition in the
transport van when they stopped short, they were able to see him
visibly limping and moving slowly.

Finally, while there is no

dispute that the EMTs were called, and that Mr. Karmue was taken
to the RWH Emergency Room, Mr. Karmue states that the defendants
sufficiently interfered with his receipt of medical care that he
received an inadequate examination for his injuries and did not
receive any treatment from the medical providers he saw.
Moreover, as noted above, discovery has not occurred in
this case, and there are many medical records potentially
41

relevant to Mr. Karmue’s medical care claims that are not in the
summary judgment record.

Mr. Karmue has stated that he intends

to rely on those records to counter the defendants’ assertions.
Further, the records submitted by the defendants with their
summary judgment motion, in addition to not being complete, are
themselves insufficient to preclude the possibility that no
reasonable jury could find in the plaintiff’s favor as to his
medical care claims.
The court finds, therefore, that on the present record, the
defendants have not met their burden to demonstrate that no
reasonable jury could find in Mr. Karmue’s favor as to whether
Mr. Karmue had a serious medical need, whether the defendant
deputies were deliberately indifferent to that need, and whether
he was denied adequate medical care for any serious medical
needs he had.

Additionally, the defendants have not met their

burden to demonstrate that Mr. Karmue cannot establish that his
clearly established Fifth Amendment right to adequate medical
care was denied, and are thus not entitled to summary judgment
at this stage of the case.

Accordingly, the defendants’ motion

for summary judgment is denied as to Claim 4, and as to Claim 9,
to the extent it arises from the events underlying Claim 4,
without prejudice to their ability to reassert any appropriate
argument at a later stage of the case after the parties have had
an adequate opportunity to engage in discovery.
42

2.

Public Health Service Immunity (Claim 10)

Mr. Karmue asserts that Dr. Dhanji and PT Quinn, acting
with deliberate indifference, failed to provide him with
constitutionally adequate medical care for his serious medical
conditions in violation of his Eighth Amendment rights.

The

defendants argue that, as to Claim 10, defendants Dr. Dhanji and
PT Quinn were medical treatment providers employed by the United
States Public Health Service (“PHS”) at the time they treated
Mr. Karmue at FMC Devens while he was incarcerated at that
facility.
Under § 233(a), PHS employees acting within the scope of
their employment “are not personally subject to Bivens actions
for harms arising out of such conduct.”
U.S. 799, 802 (2010).

Hui v. Castaneda, 559

The FTCA provides the only remedy

available to a plaintiff alleging harm by a PHS employee acting
within the scope of his or her employment.

Id.

Here, the

defendants have submitted Dr. Dhanji’s and PT Quinn’s sworn
statements that they were, at the time of the events underlying
Mr. Karmue’s claims, commissioned officers employed by the PHS
to provide medical services to federal prisoners at FMC Devens,
and that their actions with regard to Mr. Karmue were taken
within the scope of their employment.

43

Decl. of Al-Karim Dhanji,

M.D., Mar. 19, 2019 (Doc. No. 113-9, at 1); Decl. of Kerry
Quinn, Mar. 22, 2019 (Doc. No. 113-10, at 1).
Mr. Karmue has not offered any evidence to contradict Dr.
Dhanji’s and PT Quinn’s statements that they were PHS employees
and has not indicated that any discovery he could seek would
assist him in doing so.

Accordingly, the defendants’ motion, to

the extent it seeks summary judgment as to Claim 10, is granted,
and those defendants are dismissed from this action.

II.

Rule 12(b)(1) Motion to Dismiss
A.

Rule 12(b)(1) Standard

“[T]he party invoking the jurisdiction of a federal court
carries the burden of proving its existence.”

Jonson v. FDIC,

877 F.3d 52, 56 (1st Cir. 2017) (internal quotation marks and
citation omitted).

When ruling on a motion to dismiss for lack

of subject-matter jurisdiction, see Fed. R. Civ. P. 12(b)(1),
the court must “construe the [c]omplaint liberally and treat all
well-pleaded facts as true, according the plaintiff the benefit
of all reasonable inferences.”

Hajdusek v. United States, 895

F.3d 146, 148 (1st Cir. 2018) (internal quotation marks and
citation omitted).

When dismissal is sought under Rule 12(b)(1)

based solely on the facts alleged in the complaint, dismissal
“is appropriate only when the facts [alleged] in the plaintiff’s
complaint, taken at face value, fail to bring the case within
44

the court’s subject-matter jurisdiction.”

Gordo-González v.

United States, 873 F.3d 32, 35 (1st Cir. 2017).

That said, when

the United States challenges a claim under the FTCA with a Rule
12(b)(1) motion, the claim can survive “only if it [alleges]
sufficient facts to demonstrate that the FTCA applies to the
claim[ ] asserted and that none of the FTCA’s manifold
exceptions is apposite.”
(emphasis added).

Gordo-González, 873 F.3d at 36

The court may also consider extrinsic

evidence, such as exhibits and affidavits, without converting a
Rule 12(b)(1) motion to dismiss into one for summary judgment.
See Carroll v. United States, 661 F.3d 87, 94 (1st Cir. 2011)
(in evaluating motion to dismiss under Rule 12(b)(1), court
“construe[s] plaintiffs’ complaint liberally and ordinarily ‘may
consider whatever evidence has been submitted’” (citation
omitted)).

B.

Transport Without a Seatbelt
1.

Discretionary Function Exception

The United States moves to dismiss Mr. Karmue’s FTCA claim
(Claim 9) as it pertains to the conduct of the USMS defendants
underlying Claim 1, in which Mr. Karmue alleges that Deps. Moore
and DaSilva transported Mr. Karmue to court without securing his
seatbelt.

The defendants assert that Mr. Karmue’s claims are

based upon the USMS deputies’ performance of a discretionary
45

function, and district courts lack subject matter jurisdiction
over such claims under the FTCA’s discretionary function
exception.

The FTCA is “a limited waiver of sovereign

immunity.”

Hajdusek, 895 F.3d at 149.

It provides that

the district courts . . . have exclusive jurisdiction
of civil actions on claims against the United States,
for money damages . . . for loss of property, or
personal injury or death caused by the negligent or
wrongful act or omission of any employee of the
Government while acting within the scope of his office
or employment, under circumstances where the United
States, if a private person, would be liable to the
claimant in accordance with the law of the place where
the act or omission occurred.
28 U.S.C. § 1346(b)(1).

As a waiver of sovereign immunity,

“‘[t]he FTCA must be ‘construed strictly in favor of the federal
government.’”

Evans v. United States, 876 F.3d 375, 380 (1st

Cir. 2017) (citation omitted).
In addition, the FTCA’s waiver of sovereign immunity
is narrowed by exceptions. One such exception,
commonly called the discretionary function exception,
bars liability for claims “based upon the exercise or
performance or the failure to exercise or perform a
discretionary function or duty on the part of a
federal agency or an employee of the Government,
whether or not the discretion involved be abused.”
Id. (quoting 28 U.S.C. § 2680(a)).

“In evaluating a claim under

the FTCA, a court must . . . determine whether the claim is
based on a discretionary function as contemplated by section
2680; if so, the case must be dismissed for want of
jurisdiction.”

Hadjusek, 895 F.3d at 149.

46

The court utilizes a two-step process for conducting the
discretionary-function analysis:
First, [the court] must identify the conduct that
allegedly caused the harm. Second, [the court] must
ask whether this conduct is of the nature and quality
that Congress, in crafting the discretionary function
exception, sought to shelter from tort liability. The
latter analysis encompasses two questions: Is the
conduct itself discretionary? If so, is the
discretion susceptible to policy-related judgments?
The word “susceptible” is critical here; [the court]
do[es] not ask whether the alleged federal tortfeasor
was in fact motivated by a policy concern, but only
whether the decision in question was of the type that
policy analysis could inform. “The focus of the
inquiry is not on the agent’s subjective intent in
exercising the discretion conferred by statute or
regulation, but on the nature of the actions taken and
on whether they are susceptible to policy analysis.”
Id. (quoting United States v. Gaubert, 499 U.S. 315, 325 (1991))
(other citations and internal quotation marks omitted); see also
Gordo-González, 873 F.3d at 36 (“[S]ection 2680(a) will strip a
court of jurisdiction only if the challenged conduct is both
discretionary and policy-driven.”).

“[T]he burden [is] on the

plaintiff to show that discretionary conduct was not policydriven, and, hence, falls outside the [discretionary function]
exception.”

2.

Carroll, 661 F.3d at 100 n.15.

Reckless Driving

Here, Mr. Karmue claims that he was injured because Dep.
Moore was operating the transport van in a negligent or reckless
manner while Mr. Karmue was handcuffed and unseatbelted in the
47

prisoner compartment of the van.

It seems apparent that

negligent or reckless driving is not policy-related and would
not be covered by the discretionary function exception.

Cf.

Estabrook v. United States, No. 16-CV-11772-ADB, 2018 U.S. Dist.
LEXIS 210819, at *10, 2018 WL 6592092, at *4 (D. Mass. Dec. 13,
2018) (“‘If one of the [federal] officials involved in this case
drove an automobile on a mission connected with his official
duties and negligently collided with another car, the exception
would not apply,’ because the discretion required by driving
would not have been ‘grounded in regulatory policy.’”

(quoting

Gaubert, 499 U.S. at 325 n.7)); see also, e.g., Dobrowski v.
United States, No. 2:11-cv-02835 JAM-CKD, 2013 U.S. Dist. LEXIS
160382, at *8, 2013 WL 5954901, at *3 (E.D. Cal. Nov. 7, 2013)
(denying motion to dismiss, on discretionary-function grounds,
FTCA negligence claim based upon improper “selection of a gear
before stepping on the gas [while driving a USMS van] and
backing up without care”); Vinzant v. United States, No. 2:06CV-10561, 2010 U.S. Dist. LEXIS 143672, at *3, *16, 2010 WL
1857277, at *1, *6 (E.D. La. May 7, 2010), aff’d 458 F. App’x
329, 329 (5th Cir. 2012) (ruling that plaintiff stated viable
FTCA negligence claim by alleging that he was injured when
marshals driving prisoner transport van “were speeding and
carelessly weaving through traffic, despite the dangerous
weather conditions”).
48

The discretionary function exception, therefore, does not
bar negligence claims asserted under the FTCA where, as here,
the plaintiff asserts that he was injured both by the failure of
the defendants to secure him with a seatbelt and by the
pertinent federal employee’s negligent or reckless driving.
Accordingly, to the extent the defendants seek dismissal of Mr.
Karmue’s Claim 9, to the extent it relies on the conduct
underlying Claim 1, the motion is denied.

C.

FTCA Exhaustion

The defendants assert that Mr. Karmue’s Claim 11, asserted
under the FTCA, which arises out of the allegedly negligent and
inadequate medical care Dr. Dhanji and PT Quinn provided to Mr.
Karmue at FMC Devens, must be dismissed because Mr. Karmue has
failed to exhaust his administrative remedies with regard to
those claims.

The United States’s limited waiver of sovereign

immunity under the FTCA only applies to those claims that were
properly presented to the appropriate agency for an
administrative remedy.

See 28 U.S.C. § 2675(a).

The First

Circuit has held that the exhaustion requirement for an FTCA
claim is jurisdictional.

“The [FTCA] also contains an

exhaustion requirement, which has been viewed as a ‘non-waivable
jurisdictional requirement’ limiting the suit to claims fairly

49

made to the agency.’”

Acosta v. U.S. Marshals Serv., 445 F.3d

509, 513 (1st Cir. 2006) (citation omitted).
The defendants have submitted evidence with their motion
demonstrating that Mr. Karmue has filed two administrative
claims with the USMS concerning the allegedly tortious conduct
of the defendant USMS deputies on April 23, 2015, but that he
has not filed any administrative claim with the BOP, the agency
with which Mr. Karmue would have had to file administrative
claims concerning his medical care at FMC Devens.

See Decl. of

Cheryl Magnusson, Mar. 18, 2019 (“Magnusson Decl.”) (Doc. No.
113-7, at 1).

In his administrative tort claims with the USMS,

Mr. Karmue’s only reference to medical care at FMC Devens is as
follows:
[T]he full extent of the damage, which resulted from
the accident and subsequent assault by the U.S.
Marshals [on April 23, 2015], has yet to be fully
diagnosed, as staff at [FMC] Devens seem unwilling to
fully explore any pain, suffering or problems I have
as result of the aforementioned incidents.
Admin Tort Claim Form 95, Sept. 27, 2016, Ex. 19, Defs.’ SOUF
(Doc. No. 113-6, at 26).

This statement, which is filed with

the wrong agency, and which does not name Dr. Dhanji or PT
Quinn, and does not refer with specificity to any act or
omission constituting negligence, is insufficient to exhaust his
FTCA claim arising out of his medical care at FMC Devens.

50

Mr. Karmue did file an Inmate Request to Staff form
directed to the Health Services Administrator at FMC Devens in
which he complained specifically that Dr. Dhanji refused to
conduct a complete examination of Mr. Karmue, refused Mr. Karmue
treatment for pain, called Mr. Karmue a liar, and didn’t mention
PT Quinn.

That document does not suffice to exhaust his claims

with the BOP as required by § 2675(a).
Mr. Karmue has not properly exhausted his administrative
claim with the BOP, concerning his medical care at FMC Devens,
before asserting his FTCA claim (Claim 11) here.

Accordingly,

the defendants’ motion, to the extent it seeks to dismiss that
claim for lack of subject matter jurisdiction, is granted.

Conclusion
For the foregoing reasons, the court GRANTS IN PART and
DENIES IN PART the federal defendants’ motion for partial
summary judgment and to dismiss (doc. no. 112), as follows:
1.

The federal defendants’ motion for partial summary

judgment and dismissal (doc. no. 112) is DENIED as to Claims 1-4
and 9, without prejudice to the defendants’ ability to assert an
appropriate claim in a summary judgment motion filed at a later
stage in this case after the parties have had the opportunity to
conduct discovery;

51

2.

The federal defendants’ motion for partial summary

judgment and to dismiss (doc. no. 12) is GRANTED as to Claims 10
and 11.
3.

Dr. Al-Karim Dhanji and Physical Therapist Kerry Quinn

are dismissed from this action.
SO ORDERED.

__________________________
Landya B. McCafferty
United States District Judge
Sitting by Designation
March 18, 2020
cc:

Kormahyah Karmue, pro se
Bethany N. Wong, Esq.
Matthew C. Reeber, Esq.
Patrick J. McBurney, Esq.
Michael G. Sarli, Esq.
Per C. Vaage, Esq.

52