Karmue v. Remington et al
Filing
193
ORDER denying 170 Motion for Sanctions; granting in part and denying in part 174 Motion for Summary Judgment; granting 177 Motion to Seal; and denying as moot 192 Motion to Stay. So Ordered by District Judge Landya B McCafferty on 2/3/2023. (Simoncelli, Michael)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
Kormahyah Karmue
v.
Civil No. 17-cv-107-LM
Opinion No. 2023 DNH 012 P
Brenton Moore, et al.
ORDER
Plaintiff Kormahyah Karmue, a former federal pretrial detainee, brings this
civil rights suit under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics1 against Deputy U.S. Marshals Brenton Moore, Elden DaSilva, Justin
Carvalho, and John Doe. Karmue also brings a negligence claim under the Federal
Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b)(1), against the United States.
Karmue alleges that, on April 23, 2015, the defendant deputy marshals injured him
while transporting him to a federal courthouse in Rhode Island for a pretrial
hearing in his criminal case.
Defendants move for summary judgment in their favor, and Karmue objects.
Karmue also moves for sanctions against defendants “for their intentional and/or
negligent spoliation of critical evidence in this case.” Doc. no. 170 at 1. Specifically,
Karmue contends that defendants failed to preserve the van used to transport
Karmue on April 23, 2015; a partial video recording from that day; and a Taser
carried by Deputy Moore. Karmue argues that, as a result, the court should draw
certain adverse inferences against defendants.
1
403 U.S. 388 (1971).
For the following reasons, defendants’ motion for summary judgment (doc.
no. 174) is granted as to Karmue’s civil rights claims, Counts I through IV. The
motion is granted in part and denied in part as to Karmue’s negligence claim, Count
V. Karmue’s motion for sanctions (doc. no. 170) is denied. The court also grants
defendants’ unopposed motion to seal certain summary judgment exhibits relating
to Karmue’s medical records (doc. no. 177) and denies as moot the parties’ joint
motion to stay (doc. no. 192).
STANDARD OF REVIEW
A movant is entitled to summary judgment when he “shows that there is no
genuine dispute as to any material fact and [that he] is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). If the moving party succeeds in making that
showing, “the burden shifts to the nonmoving party, who must, with respect to each
issue on which she would bear the burden of proof at trial, demonstrate that a trier
of fact could reasonably resolve that issue in her favor.” Borges v. Serrano-Isern,
605 F.3d 1, 5 (1st Cir. 2010). The nonmoving party’s failure to meet that burden by
reference to “significantly probative” materials “of evidentiary quality” entitles the
moving party to summary judgment. Flovac, Inc. v. Airvac, Inc., 817 F.3d 849, 853
(1st Cir. 2016); see also Guldseth v. Family Medicine Assocs. LLC, 45 F.4th 526,
533-34 (1st Cir. 2022) (stating that a litigant cannot use “conclusory allegations,”
“improbable inferences,” or “unsupported speculation” to defeat a motion for
summary judgment). In evaluating a motion for summary judgment, the courts
must view the evidence in the light most favorable to the nonmoving party, must
2
draw all reasonable inferences in that party’s favor, and may neither make
credibility determinations nor weigh the evidence. Harris v. Scarcelli, 835 F.3d 24,
29 (1st Cir. 2016); Hicks v. Johnson, 755 F.3d 738, 743 (1st Cir. 2014).
BACKGROUND
I.
Procedural History
Karmue filed his complaint, pro se, in 2017. The court narrowed Karmue’s
claims, and defendants filed a motion for partial summary judgment and to dismiss,
arguing, in part, that they were entitled to qualified immunity. Noting that
Karmue had not had an opportunity to engage in discovery, the court granted in
part and denied in part defendants’ motion, without prejudice to defendants’ ability
to renew their qualified immunity defense after the close of discovery. Karmue v.
Remington, No. 17-cv-107-LM, 2020 WL 1290605, at *11 (D.R.I. Mar. 18, 2020).
Karmue obtained counsel in September 2020 and later filed the Third Amended
Complaint, doc. no. 158. The parties have had a complete opportunity to engage in
discovery.
II.
Karmue failed to properly oppose the defendants’ Statement of Undisputed
Facts.
The District of Rhode Island’s local rules require parties moving for summary
judgment to file a statement of material facts separate from their motion. LR Cv
56(a)(1)-(2). “An objecting party that is contesting the movant’s Statement of
Undisputed Facts shall file a Statement of Disputed Facts,” which identifies the
disputed facts and the evidence supporting the dispute. LR Cv 56(a)(3). If the
3
objecting party fails to expressly deny or otherwise controvert any fact alleged in
the moving party’s statement of undisputed facts, that fact “shall be deemed
admitted.” Id.
Defendants filed a comprehensive Statement of Undisputed Facts (doc. no.
175). In response, Karmue did not file a “Statement of Disputed Facts,” nor did he
identify in his objection which specific facts he opposed. Rather, Karmue’s objection
contains a section entitled “Disputed Material Issues of Fact,” which neither
identifies any of the facts from defendants’ statement that are disputed nor contains
any cohesive narrative of Karmue’s version of events from which disputes can be
reasonably ascertained. Karmue also failed to file the handful of evidentiary
materials he cited to in his objection. The court noticed Karmue’s oversight several
months after he had filed his objection and, on its own motion, the court permitted
Karmue to file his evidence late.
As a result of those deficiencies, it has been exceedingly difficult for the court
to discern which facts Karmue disputes and which facts he does not. For those
reasons, the court has deemed undisputed all those facts from defendants’
statement of material facts that are supported by the record and neither specifically
identified by Karmue as disputed nor otherwise contradicted by evidence or
argument. See De la Vega v. San Juan Star., Inc., 377 F.3d 111, 116 (1st Cir. 2004)
(observing that court cannot grant summary judgment in the moving party’s favor
merely because of the opposing party’s failure to follow local rules or properly
4
object). Regardless, the court still construes all of the facts in the light most
favorable to Karmue and draws all reasonable inferences in his favor.
III.
Facts
A.
Transport to the courthouse
In 2014, Karmue was indicted for assorted federal crimes and was detained
pending trial.2 On April 23, 2015, deputy marshals Moore and DaSilva transported
Karmue by van to the federal courthouse in Rhode Island for a pretrial hearing
related to his criminal case. The deputy marshals placed Karmue in handcuffs, a
waist chain, and leg restraints for transport in the van. Karmue requested that the
deputies put him in a seatbelt,3 but they did not do so. Deputy Moore drove the
van, while Deputy DaSilva rode in the passenger seat.
U.S. Marshals’ policy requires prisoners to be “fully restrained” when
transported, and “full restraints” consists of “handcuffs, waist chains, and leg irons.”
Doc. no. 176-5 at 3. The policy states that deputy marshals “are not required” to
belt prisoners when transporting them. Id. at 5.
Karmue was ultimately found guilty of several charges. See United States v.
Karmue, 841 F.3d 24 (1st Cir. 2016).
2
Deputies Moore and DaSilva testified that Karmue did not ask to be placed
in a seatbelt, and they dispute most other aspects of Karmue’s account. Under the
standard for summary judgment, the court takes Karmue’s version of events as true
to the extent it is supported by factual rather than conclusory assertions and
supported by evidence beyond mere speculation. See Guldseth, 45 F.4th at 533-34
(stating that a nonmoving party cannot use “conclusory allegations,” “improbable
inferences,” or “unsupported speculation” to generate genuine factual disputes).
3
5
As the van neared the courthouse, it came to an abrupt stop, which propelled
Karmue into a metal partition that separates the prisoner compartment from the
rest of the van. Karmue hit his knees on the partition, hurting them.
Karmue’s recollection about what led to the van’s abrupt stop is limited.
Karmue stated in interrogatory answers that “[i]n trying to beat a traffic light, the
transport van came to an unanticipated and sudden stop to avoid a collision from an
oncoming vehicle.” Id. Karmue added that Deputy Moore was driving the van
“recklessly, with excessive speed.” Doc. no. 176-4 at 2.
But in his deposition taken about two weeks after he produced his
interrogatory answers Karmue clarified or limited those assertions,4 explaining
that he could not estimate the van’s speed and that his belief that the van was
moving with excessive speed was premised on the impact he felt upon hitting the
metal partition. Doc. no. 190 at 284 (“I cannot tell you how fast we were going.”).
Karmue did not “recall being at an intersection,” but he saw “lights crossing in
front” of the deputy marshals. Id. at 284-85 (“I don’t know if it was an intersection
. . . . I saw lights, that’s it. I saw the street light there, like I said, but I don’t know
if it was an intersection.”); id. at 285 (“Q. . . . [Y]ou saw a street light? A. I said I saw
a light, like, you know – there’s a light flashing, going back. Q. You saw the
emergency vehicle light? A. Yeah. Yep.”). Karmue also stated that, after the van
Karmue’s interrogatory answers were produced on March 15, 2021, and
Karmue’s deposition was taken on March 31, 2021.
4
6
stopped, he saw “a light,” but he did not know if the van had stopped at that light or
if they were in front of the light. Id.
After the abrupt stop, a deputy marshal asked Karmue whether he was okay.
Karmue responded that he was not okay and told Deputies Moore and DaSilva that
he needed treatment, but the deputy marshals began driving again.5
B.
Karmue arrives at the courthouse, and the deputy marshals call for
medical assistance.
Deputy Moore drove the van through the intersection and into the
courthouse’s “sallyport,” which was in a gated parking lot just beyond the
intersection. The sallyport is a garage where prisoners are unloaded and brought
into the court’s cell block area to await court proceedings.
Most of the events after Karmue and the deputy marshals arrived at the
courthouse were recorded by courthouse security cameras. At 1:26 p.m., Karmue
stepped out of the van with help from Deputy DaSilva. Karmue was fully
restrained, meaning that he was wearing handcuffs, a waist chain, and leg irons.
Karmue walked toward the courthouse without assistance, albeit with a pronounced
Defendants dispute most of Karmue’s account about the abrupt stop. Deputy
Moore testified that the van was moving between 3 and 5 miles per hour when he hit
the brake pedal to avoid a police car that had activated its lights and entered the
intersection just after the intersection stoplight turned green. Deputy Moore
explained that he would not have hit the van’s accelerator because the turn to the
courthouse was a very short distance away from the intersection. Additionally, the
deputy marshals testified that they did not hear Karmue hit the metal partition, nor
did they hear any noise from the back of the van.
5
7
limp. Deputy Moore told Karmue that he had to walk from the van to the holding
cell.6
Karmue walked from the sallyport to an elevator, and then from the elevator
to a holding cell, where a deputy marshal removed Karmue’s handcuffs and waist
chain. Karmue then sat on a bench.
At about 1:34 p.m.—between five and six minutes after the deputy marshals
left Karmue in the holding cell—the deputy marshals returned and spoke with
Karmue. Karmue reiterated to the deputy marshals that he had been injured
during the transport. The deputy marshals called for EMTs to bring Karmue to the
hospital.
About 20 minutes later, at 1:53 p.m.,7 Deputies Moore, DaSilva, and Justin
Carvalho entered the cell followed by two EMTs. One of the EMTs—Michael
Cairone—briefly spoke with Karmue. Karmue told Cairone that he had knee pain,
but Cairone did not see any injury. Karmue testified that a deputy marshal told the
EMTs that he was faking his injury and not to believe his claim that he was injured.
The other EMT—Stephany Blackwell—stood back and watched Karmue, who
remained seated while Cairone examined and talked to him. The video shows
The courthouse security camera recordings do not have audio, but Karmue
testified that Deputy Moore told him as such. Deputy Moore disputes Karmue’s
account.
6
In the court’s prior order addressing defendants’ pre-discovery motion for
summary judgment, the court incorrectly stated that the deputy marshals and EMTs
arrived eight minutes after speaking with Karmue. See Karmue, 2020 WL 1290605,
at *2.
7
8
Karmue point to his knee and Cairone pointing to the same knee. Less than a
minute after the EMTs arrived, Cairone helped Karmue stand up, and Karmue
walked with Cairone out of the cell block and toward the transport elevator.
Karmue was still wearing his leg irons, but he was not wearing handcuffs.8
Karmue walked back to the elevator at a pace far slower than he had walked
in. When he arrived at the courthouse, it took Karmue less than a minute to get out
of the van, go up the elevator, and to enter the cell block area. On his return,
Karmue took about four minutes to walk from the cell block to the elevator’s secondfloor landing. In addition to walking very slowly, the video shows Karmue walking
in a hunched posture. Although Cairone provided Karmue some assistance by
holding on to Karmue’s arm while walking, Karmue walked under his own power.
Cairone stated in his declaration that Karmue was able to walk down the hallway
to the transport elevator. 9
C.
Elevator Scrum
The deputy marshals, the two EMTs, and Karmue entered the elevator
together. In the elevator, Deputy Moore grasped Karmue’s shirt, while Cairone
The video shows Deputy Moore grab what appears to be a restraint and
prepare to put it on Karmue as he stands up. However, Karmue stands up very slowly
from the bench he was sitting on, and Deputy Moore appears to decide not to put any
additional restraints on Karmue at this time.
8
Blackwell testified that the EMTs offered to put Karmue on a stretcher while
in the courthouse, but he refused and insisted on walking instead. Karmue testified
that he did not refuse the stretcher but rather Deputy Moore instructed the EMTs
not to get the stretcher and told them Karmue had to walk.
9
9
continued to hold Karmue’s arm. Karmue remained standing but his hunched
posture became more severe. Karmue began to tilt toward the floor. Both Cairone
and Blackwell stood next to Karmue in the elevator, but Blackwell turned away
from Karmue and faced one of the deputy marshals.
Soon after the elevator door closed, Karmue and Deputy Moore exchanged
words with each other.10 Karmue testified that Deputy Moore was “aggressive,
mad, [and] retaliating against” him and that Deputy Moore called him “the N
word.” Doc. no. 190 at 290-91.11 Karmue testified that he told Deputy Moore that
he could not sustain his weight because the pain was too great. Id. at 291.
Immediately after his exchange with Deputy Moore, Karmue dropped to the
floor. Karmue fell to the floor because of his pain.12 Deputy Moore attempted to
hoist Karmue back to a standing position, but he was unable to do so. Deputy
Moore directed Karmue to stand up, but Karmue did not do so. Deputy Moore lifted
Karmue into a seated position on the floor. Karmue’s back was against the elevator
wall and Deputy Moore was positioned between Karmue and the elevator’s other
occupants. Deputy Moore held Karmue’s shirt at the shoulders.
In the following seconds, the video shows Karmue begin to lean away from
Deputy Moore and toward Cairone, so that Deputy Moore no longer stood between
The video recording depicts Karmue and Deputy Moore exchanging words
but, as noted, does not have audio.
10
11
Every other person who was in the elevator disputes Karmue’s account.
Deputy Moore, however, testified that Karmue went limp and “threw
himself” to the elevator floor. Doc. no. 176-7 at 15.
12
10
him and Cairone. Blackwell testified that Karmue was “moving around and not
being cooperative inside of the elevator.” Doc. no. 176-9 at 16.
As Karmue moved closer to Cairone and the floor, Deputy Moore unholstered
his Taser, flipped a switch to turn it on, and pointed it at Karmue. The elevator
doors opened at the same time. Blackwell quickly left the elevator, bumping into
Deputy Moore as he tried to grab his Taser. Cairone, however, was still in the
elevator’s corner, with Karmue on the floor in front of him and between Cairone and
the door.
Deputy Moore testified that he told Karmue that he would use the Taser if he
did not stop flailing his arms and ignoring the deputies’ commands. Deputy Moore
testified that turning a Taser on (without firing it) has a deterrent effect.
The Taser has a built-in flashlight and laser. Both the flashlight and laser
automatically turn on when the Taser is turned on. The Taser must be turned on to
deploy the Taser’s probes, which deliver its debilitating electric shock. However,
the Taser’s probes do not deploy unless the Taser’s trigger is pulled.
Karmue testified that the Taser was twice directed at his eyes and that he
“felt the heat from the light” and that “it burned.” Doc. no. 176-6 at 94-95. Karmue
described the light as the “brightest” he had experienced in his life. Id. at 97. The
video shows the Taser light and laser, and it shows Deputy Moore pointing it at
Karmue for approximately two seconds. It is unclear from the video whether the
Taser light and laser are pointed at Karmue’s face or his upper body.
11
Deputy Moore did not fire the Taser at Karmue. A data report generated
from the Taser carried by Deputy Moore on April 23, 2015, shows that the Taser
was not fired on that date. Karmue does not recall Deputy Moore firing the Taser.
The video does not depict Deputy Moore firing the Taser or Karmue being hit by the
Taser’s probes.
Deputy Moore’s main concern was the presence of the two EMTs in the
elevator who “did not have the training we have to deal with the situation.” Doc.
no. 176-7 at 24. Deputy Moore did not hear Karmue say why he was on the floor;
Deputy Moore heard Karmue yelling but Karmue was not “making any sense” to
him. Id. Karmue testified that he was shouting because he was in pain.
Deputy Moore turned off and holstered his Taser, and Karmue laid on the
floor in front of Cairone. Deputies Moore and Carvalho bent over Karmue. Because
the deputy marshals and Karmue were in very close quarters away from the
camera, the video recording is less clear about what is happening at this time.
Initially, Karmue stated in interrogatory answers that Deputies Moore and
DaSilva punched and kicked him when he was on the floor. Karmue, however,
clarified during his deposition that he was not kicked or punched—at least not in
the sense that the deputy marshals struck him by pulling their fists back and
hitting him. Doc. no. 190 at 294 (testifying that Deputy Moore did not “bring his
arm back and punch” him). Rather, Karmue testified that he meant that Deputy
Moore used his arms, feet, or knees to push or press him into the floor. Specifically,
Karmue testified that Deputy Moore’s “knee was punching at [his] body, pressing
12
into [his] body, and also his feet were punching into [his] body and pressing into
[his] body.” Id. at 293.
Likewise, Karmue testified that Deputy Moore did not pull his foot back to
kick him, distinguishing what he experienced from “the kick that football players
can do.” Doc. no. 190 at 294; id. at 293 (testifying that “[y]ou don’t have to actually
pull your feet to kick a person”). Rather, Karmue testified that Deputy Moore’s
“feet pressing into [his] body and his knee onto [him] is the same thing,” in
Karmue’s view, as a kick. Id. at 293. Karmue also testified that Deputy Moore can
be seen on the video choking him by pulling on his clothing.
The video shows the deputies attempting to hold Karmue down on the
elevator floor. Deputy Moore pulled at Karmue’s clothing as Karmue moved on the
floor. The deputy marshals used their bodies, including their hands and knees, to
hold Karmue down, which eventually prevented him from moving. The deputy
marshals reached for Karmue’s hands and handcuffed him.
About one minute passed from the time Karmue fell to the elevator floor until
Karmue was handcuffed. After Karmue was handcuffed, the deputies stood around
Karmue, who continued to move around on the elevator floor. The deputies did not
use further force to restrain Karmue.
A few minutes later, the EMTs brought an evacuation chair to the first-floor
elevator landing. The deputy marshals and Cairone lifted Karmue and carried him
out of the elevator. They strapped Karmue to the evacuation chair. The video
shows the EMTs wheeling Karmue out of the sallyport to the courthouse parking
13
lot, where, using a sheet that had been on the evacuation chair, they transferred
Karmue to a stretcher and loaded him into a waiting ambulance.
The EMTs attempted to examine Karmue for injuries in the ambulance.
Karmue testified that, in the ambulance, Deputy DaSilva told Blackwell not to treat
him.13 Blackwell’s report from the incident states that Karmue had no visible
swelling through his clothing, and he was able to bend and straighten his legs.
Blackwell wanted to examine Karmue further, but she did not feel like she needed
to do so immediately because Karmue was not suffering from any medical issue that
required immediate intervention.
D.
Subsequent Medical History
The ambulance brought Karmue to a local hospital. Medical records from the
hospital state that Karmue declined to have x-rays or treatment. Karmue testified
that the hospital records are false. The records also state that Karmue was
“uncooperative with staff” and “verbally abusive to nurses, PA, police, [and] EMS.”
Doc. no. 177-1 at 5. Karmue denies this. A physician diagnosed Karmue with knee
pain. Karmue testified that the physician was “very unprofessional” and refused to
properly evaluate him because he was told that Karmue was faking his injuries.
Doc. no. 190 at 303.
The day after the incident, medical providers performed a CT scan of
Karmue’s spine, chest, abdomen, pelvis, and brain. A report says the results of the
Blackwell testified that Karmue did not want her to touch him and that
Karmue was using so much vulgarity that she could not converse with him.
13
14
scans were “essentially normal.” Doc. no. 177-3 at 22. Medical records from the day
state that Karmue had no contusions on his face or body.
On May 6, 2015, Karmue had an x-ray performed on both knees. The x-rays
indicated normal results for both knees. Similar findings resulted from x-rays
performed on September 23, 2015, and May 3, 2016. Examinations of Karmue at
the jail reported no bruises or external signs of injury. Karmue testified that the
medical providers who treated him at the hospitals and in prison were
unprofessional and did not take his complaints seriously, accusing him of faking his
injuries.
An August 15, 2017 medical record from FMC Devens states that Karmue
suffered a “non work related injury yesterday morning.” Doc. no. 177-2 at 15.
Karmue underwent an x-ray and was diagnosed with mild degenerative disc
disease. The results from the x-ray were “otherwise unremarkable.” Id.
As to Karmue’s eye, which he asserts was injured by the Taser’s light or
laser, a July 13, 2016 medical record from FMC Devens states that Karmue had a
“clear cornea.” Id. at 13. A report from a February 27, 2018 eye exam at FMC
Devens states that there were “no significant findings” despite Karmue’s complaints
about worsening vision. Id. at 18.
Karmue was released from prison in September 2019. After Karmue was
released from prison, an ophthalmologist, Dr. Mark Herschel, diagnosed Karmue
with a corneal scar. Dr. Herschel testified that Karmue told him he was hit in the
eye by Taser probes. Dr. Herschel opined that a Taser light or laser was very
15
unlikely to have caused the corneal scar,14 and he would not expect exposure to
either for two seconds to cause a corneal scar. Another ophthalmologist, Dr. Danny
Tu, testified that he does not think the Taser caused Karmue’s eye injury. Lastly, a
defense expert, Dr. James Chodosh, opined that the Taser did not cause Karmue’s
eye injury.
Additionally, after Karmue was released from prison a physician diagnosed
him with a herniated disc in his back. The physician could not rule out that
Karmue suffered the herniated disc from the abrupt stop of the transport van,
though he noted that a sneeze could also cause a herniated disc. A defense medical
expert, Dr. Stuart Hershman, hypothesized that, when the transport van came to
an abrupt stop, Karmue “may have felt as if he had been in a low-energy motor
vehicle collision.” Doc. no. 176-19 at 7. However, Dr. Hershman continued, stating
that “[m]usculoskeletal injuries resulting from trauma are seldom subtle,” and the
lack of “significant musculoskeletal injuries” shown by the post-incident imaging
was consistent with “muscle contusions and strains” as opposed to “significant
injuries,” including any “traumatic musculoskeletal injury” or degenerative back
injuries. Id. at 7-8. Dr. Hershman opined that Karmue’s diagnosis of degenerative
disc disease was consistent with aging and not from any traumatic event.
Dr. Herschel explained that a bright enough light could cause damage to a
person’s retina, but damage to the cornea was unlikely. See doc. no. 176-13 at 3-4.
Dr. Herschel testified that, as far as he knew, he had never treated a patient who
experienced a corneal scar because of a flashlight.
14
16
IV.
Claims
In this suit, Karmue brings four constitutional claims under the Fifth
Amendment (Counts I through IV) and one claim under the Federal Tort Claims Act
(Count V):
•
Count I: Deputies Moore and DaSilva failed to seatbelt
Karmue and abruptly stopped the transport van on the
way to the courthouse.
•
Count II: Deputies Moore and DaSilva used excessive
force in the courthouse elevator by pointing the Taser at
Karmue and when trying to restrain Karmue on the
elevator floor.
•
Count III: Deputies Carvalho and Doe failed to intervene
when Deputy Moore used excessive force in the
courthouse elevator.
•
Count IV: Deputies Moore, DaSilva, and Carvalho
unreasonably denied Karmue access to medical care.
•
Count V: The United States is liable for the deputy
marshals’ negligence when driving the transport van,
handling the Taser, and attempting to restrain Karmue.
DISCUSSION
Defendants move for summary judgment on all five of Karmue’s claims. As
to Counts I through IV, the deputy marshals assert that they are entitled to
qualified immunity. As to Count V, the United States argues that the evidence does
not support a finding of negligence. Karmue opposes summary judgment, and he
argues that defendants’ failure to preserve certain evidence is sufficient to defeat
their motion for summary judgment.
17
I.
The deputy marshals are entitled to qualified immunity as to all of Karmue’s
Fifth Amendment claims.
“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)). The court first determines whether the facts
set out a violation of a protected right. McKenney, 873 F.3d at 81. Second, the
court determines whether the conduct violated a “clearly established” right—
meaning controlling authority or a consensus of cases that an objectively reasonable
person in the defendant’s position would have known his conduct violated. Id. The
bar is high: “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.” Hill v. Walsh, 884 F.3d 16, 21-22
(1st Cir. 2018) (citations omitted). Further, the plaintiff—Karmue—bears the
burden to show that the defense of qualified immunity is inapplicable. EscaleraSalgado v. United States, 911 F.3d 38, 41 (1st Cir. 2018).
Karmue’s constitutional claims arise under the Fifth Amendment’s Due
Process Clause, which generally requires federal actors to refrain from using
excessive force on pretrial detainees and from treating pretrial detainees with
deliberate indifference to substantial risks of serious harm to their health or safety.
See, e.g., Kingsley v. Hendrickson, 576 U.S. 389, 396 (2015); Coscia v. Town of
18
Pembroke, 659 F.3d 37, 39 (1st Cir. 2011) (discussing Fourteenth Amendment
claims of pretrial detainees in state custody). Mere negligence, however, “is
categorically beneath the threshold of constitutional due process.” Kingsley, 576
U.S. at 396. Because the Fifth Amendment’s protections are, in general, at least as
generous as those provided to state pretrial detainees under the Fourteenth
Amendment or to convicted inmates under the Eighth Amendment, the court is
informed in its discussion by cases arising under all three amendments. See, e.g.,
Ruiz-Rosa v. Rullan, 485 F.3d 150, 155 (1st Cir. 2007) (“Generally, the standard
applied under the Fourteenth Amendment is the same as the Eighth Amendment
standard.”).
A.
Count I: Deputies Moore and DaSilva are entitled to qualified
immunity because Deputy Moore did not drive the transport van
recklessly.
The court begins with Karmue’s claim that Deputy Moore violated his Fifth
Amendment rights by recklessly driving the transport van and failing to secure his
seatbelt. Karmue contends that the evidence shows Deputy Moore drove the
transport van recklessly and that the court can infer from defendants’ destruction of
evidence that Deputy Moore drove the transport van recklessly.
1.
A reasonable jury could not find on the evidence before the court
that Deputy Moore drove the transport van recklessly.
To establish a violation of the Fifth Amendment’s Due Process Clause based
on conditions of confinement a pretrial detainee must provide sufficient evidence to
demonstrate that the identified defendants acted with deliberate indifference to a
19
substantial risk of serious harm to the detainee’s health. See Coscia, 659 F.3d at
39; Zingg v. Groblewski, 907 F.3d 630, 634-35 (1st Cir. 2018). As to prisoner
transport specifically, the clearly established rule is that a defendant’s failure to
seatbelt a pretrial detainee during transport does not violate the detainee’s Fifth
Amendment rights unless the defendant also drove the transport van recklessly.
See, e.g., Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012) (holding that the failure
of prison officials to provide seatbelts to inmates riding in prison vehicles does not,
standing alone, violate an inmate’s Eighth Amendment rights). As the court
previously found in this case, “[t]here 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.” Karmue, 2020 WL 1290605,
at *10.
Karmue relies on a trio of these cases—Brown v. Fortner, 518 F.3d 552 (8th
Cir. 2008), Rogers v. Boatright, 709 F.3d 403, 408-09 (5th Cir. 2013), and Scott v.
Becher, 736 Fed. Appx. 130, 133 (6th Cir. 2018)—to support his claim that Deputy
Moore recklessly drove the transport van, violating a clearly established
constitutional rule.15 In Brown v. Fortner, the Eighth Circuit held that a
Karmue does not assert that Deputy Moore engaged in the type of
intentionally dangerous and punitive driving that occurs in a so-called “rough ride,”
e.g., McCowan v. Morales, 945 F.3d 1276, 1286, 1289 (10th Cir. 2019), and Thompson
v. Commonwealth of Virginia, 878 F.3d 89, 99-100 (4th Cir. 2017).
15
20
reasonable jury could find that the defendant drove a transport van recklessly when
he “was driving in excess of the speed limit, following too closely to the lead van,
crossing over double-yellow lines, and passing non-convoy cars when the road
markings clearly prohibited doing so.” 518 F.3d at 559. Further, the inmates being
transported asked the defendant to slow down, but the defendant ignored those
requests. Id.
In Rogers v. Boatright, the Fifth Circuit held that a reasonable jury could
find the defendant drove a transport van recklessly when he was alleged to have
darted “in and out of traffic at high speeds” before abruptly stopping to avoid
another vehicle. 709 F.3d at 406, 408-09. The abrupt stop caused a large cut on the
plaintiff’s head and, on his hand, a gouge “to the bone.” Id. The defendant told
other officers that there had been prior similar incidents causing injuries to inmates
and that it was not “a big deal.” Id. And, in Scott v. Becher—which arose after the
incident here in any event—the Sixth Circuit found a clearly established violation of
the plaintiff’s constitutional rights when the defendant drove a prisoner transport
van “above the speed limit, swerving, and generally . . . recklessly.” 736 Fed. Appx.
at 133. Moreover, when the inmates begged the officer to slow down, he “refused,
laughed, and instead accelerated.” Id.
The common thread of these cases and others is that the defendants’ reckless
driving was coupled with facts suggesting the defendants’ intent to cause harm or
their consciousness of the serious risks to the prisoners’ safety. See also e.g., Brown
v. Missouri Dep’t of Corrs., 353 F.3d 1038, 1040 (8th Cir. 2004) (recklessness found
21
when defendants sped and followed vehicles closely and concurrently mocked
inmates’ concerns about the officers’ driving); Thomas v. Rodriguez, No. 3:16-v2211-AJB-JMA, 2017 WL 3896738, at *4 (S.D. Cal. Sept. 6, 2017) (collecting similar
cases); Barela v. Romero, No. 06-41 JBDJS, 2007 WL 2219441, at *7 (D.N.M. May
10, 2007) (officer drove transport van at high speeds, stopped erratically, and
laughed at prisoners who expressed concerns).
By contrast, courts have found that there is no violation of the clearly
established rule when the defendant only stopped a transport van abruptly, causing
injury to a shackled and unbelted prisoner. E.g., Scott v. City of Phila., No. CV 192871, 2019 WL 3530909, at *3 (E.D. Pa. Aug. 1, 2019) (collecting cases and stating
that “[a]llegations of reckless driving, such as speeding or slamming the brakes,
even when coupled with the absence of safety restraints do not rise to the level of
deliberate indifference sufficient to state a claim”). For example, in Thomas v.
Rodriguez, the plaintiff, who, like Karmue, was shackled but unbelted for transport,
alleged that the defendant “slammed the van’s brakes suddenly,” which caused the
plaintiff to be “thrust violently forward, hitting his knees and head on a partition in
front of his seat.” 2017 WL 3896738, at *5. The court dismissed the plaintiff’s
deliberate indifference claim, reasoning that it was unlike cases such as Brown and
Rogers, which involved driving recklessly or erratically. Id. at *4; see also Thomas
v. Rodriguez, 2018 WL 1536738, at *4 (S.D. Cal. Mar. 29, 2018) (dismissing
amended complaint that further alleged defendant was driving transport van at a
high rate of speed and passing cars before abruptly slamming brakes).
22
Similarly, in Simon v. Clements,16 the plaintiff alleged that “possibly in an
attempt to get through a traffic light before it turned red, [the defendant] was
driving at a high rate of speed when he slammed the van’s brakes suddenly. The
force of the sudden breaking caused Plaintiff to be thrust violently forward, hitting
his knees and head on a partition in front of his seat, causing injury.” No. 15-4925
JLS (PLA), 2016 WL 8729781, at *1 (C.D. Cal. June 10, 2016). The court dismissed
the complaint, contrasting the plaintiff’s allegations to the prior body of caselaw,
and reasoning that the facts alleged—without more—were insufficient to state a
claim. Id. at *2.
Here, the incident involved, at worst, Deputy Moore’s attempt to beat a light
before it turned red—an unsafe but frankly common maneuver that is dissimilar to
the consistently erratic and highly dangerous driving that has led other courts to
find a constitutional violation, clearly established or otherwise.17 See Thomas, 2017
WL 3896738, at *4; Simon, 2016 WL 8729781, at *1; Rodriguez v. Court Sheriff
Official, No. 19-CV-605, 2019 WL 883790, at *2 (E.D. Pa. Feb. 22, 2019) (“While the
Court does not condone running a red light and while it is unfortunate that
Rodriguez was injured, Rodriguez has at most alleged that he was in a traffic
16
Thomas and Simon both involved claims under the Eighth Amendment.
Hitting the van’s brakes to allow a previously unseen and unheard police car
to safely pass and avoid an accident does not amount to conduct that violates the
constitution. See Elwell v. Correia, 585 F. Supp. 3d 163, 166 (D.N.H. 2022) (“An
officer is not deliberately indifferent to the risk if he acted reasonably to avoid harm
but was unsuccessful in that effort.”). For that reason, the court focuses on the
alleged conduct that may have necessitated the abrupt stop, i.e., trying to beat a red
light.
17
23
accident as a result of Defendant’s bad driving and has thus failed to state a
plausible deliberate indifference claim.”). Further, unlike Brown, Rogers, and Scott,
there is no evidence that Karmue expressed any concern about Deputy Moore’s
driving and that Deputy Moore mocked Karmue for it. Crediting Karmue’s version
of events for purposes of summary judgment, the evidence points to, at most,
negligence, not behavior so antithetical to the “decencies of civilized conduct” that it
rises to the level of a due process violation. See Cnty. of Sacramento v. Lewis, 523
U.S. 833, 848-49 (1998) (“[W]e have made it clear that the due process guarantee
does not entail a body of constitutional law imposing liability whenever someone
cloaked with state authority causes harm. . . . We have accordingly rejected the
lowest common denominator of customary tort liability as any mark of sufficiently
shocking conduct . . . liability for negligently inflicted harm is categorically beneath
the threshold of constitutional due process.”).
2.
Karmue has not shown that defendants spoliated evidence
relevant to Count I.
In a separate motion for sanctions (doc. no. 170) and throughout his objection
to defendants’ motion for summary judgment, Karmue contends that defendants
failed to preserve certain evidence, including the transport van used on April 23,
which, he argues, justifies the drawing of an adverse inference that Deputy Moore
was reckless. Specifically, Karmue argues that the van might have been equipped
with a “black box” that recorded its speed and that the van had a video camera from
which defendants have not produced a recording.
24
Defendants deny that they have spoliated any evidence. In support, they
submitted the declaration of John Cinquegrana, the United States Marshals’
“Service Motor Vehicle Officer” for the District of Rhode Island. Doc. no. 173-1 ¶ 1.
Cinquegrana averred that he is familiar with the transport vans used by the
Marshals in Rhode Island, and he stated that the transport vans used in Providence
in April 2015 were not equipped with any “black box” type device that can record
the van’s speed. The vans were equipped with video cameras, but Cinquegrana
stated that they are used only when transporting female prisoners. According to
Cinquegrana, the van used by the U.S. Marshals in April 2015 was removed from
service in 2016 as part of a regular vehicle replacement process.
A trier of fact may infer from a party’s spoliation of evidence relevant to a
litigated issue that the evidence was unfavorable to that party. Gomez v. Stop &
Shop Supermarket Co., 670 F.3d 395, 399 (1st Cir. 2012). This rule is based on “the
commonsense notion” that a party who destroys a piece of evidence or permits it to
be destroyed when facing litigation and while knowing its relevancy to the case may
have done so because the evidence hurts his position. Testa v. Wal-Mart Stores,
Inc., 144 F.3d 173, 177 (1st Cir. 1998). To permit the trier of fact to draw that
adverse inference, the movant must show that (1) evidence was destroyed or not
preserved; (2) the opposing party had notice of a potential claim; and (3) the
opposing party had notice of the relevance of that claim to the destroyed evidence.
Gomez, 670 F.3d at 399. However, the nonexistence of evidence alone cannot
permit an adverse inference based on spoliation. See id. (“It is a proposition too
25
elementary to require citation of authority that when there is no evidence to begin
with, a claim of spoliation will not lie.”).
No adverse inference is justified as to Count I. Karmue argued that the van
could have been equipped with a device to record its speed, but defendants produced
undisputed evidence that it was not. The nonexistence of evidence alone does not
permit an adverse inference. Id.
As to the van’s video cameras, the facts are analogous to Gomez. In Gomez,
which involved a slip and fall at a supermarket, the plaintiff claimed that the
defendant had destroyed a video of the accident because “the defendant had a store
security system that employed a series of cameras; the defendant had exclusive
control over that system; and no videotape was produced during discovery.” Id. The
First Circuit rejected that argument, concluding that “[t]hese facts are true but,
without more, they are inadequate to show spoliation.” Id. The First Circuit noted
that a store employee had testified that the video cameras covered a “good majority”
of the supermarket’s selling floor, but found that this testimony did not “support a
conclusion (or even a reasonable inference) that a security camera filmed the
incident that transpired . . . .” Id. There was also evidence that the area of the
selling floor at issue was not “usually” protected by camera surveillance, though it
was “possible for surveillance to occur there,” and an employee testified that “she
had never seen or heard of a videotape of the accident.” Id.
Similarly, here, the van had a video camera and no videotape of the incident
was produced during discovery. It is undisputed that the cameras were not turned
26
on because they are used only when the marshals transport a female prisoner.
While it was possible for a recording to have been created, someone would have
needed to turn the camera on, and there is no evidence that occurred in this case.
For those reasons, no adverse inference is warranted as to the defendants’ failure to
produce a video recording from the van. See id.18
Deputies Moore and DaSilva are entitled to qualified immunity and,
therefore, summary judgment, as to Count I.
B.
Count II: Deputies Moore and DaSilva are entitled to qualified
immunity as to Karmue’s excessive force claim because their use of
force was objectively reasonable.
Next is Karmue’s claim that Deputies Moore and DaSilva used excessive
force when restraining him after he fell in the courthouse elevator. Defendants
argue that summary judgment is warranted because their limited use of force to
restrain Karmue in the prisoner transport elevator was objectively reasonable
considering Karmue’s erratic behavior.
1.
The evidence in the record shows the deputy marshals’ use of force
was objectively reasonable in light of the need to restrain Karmue
when he began acting unpredictably in a courthouse elevator.
A use-of-force must be objectively unreasonable to violate a pretrial
detainee’s rights under the Fifth Amendment. See Kingsley, 576 U.S. at 397;
Karmue develops no argument that the failure to collect evidence in the first
instance can be considered spoliation. See Gomez, 670 F.3d at 400 (“We need not
reach the novel question of whether a failure to collect evidence may, in certain
circumstances, be tantamount to spoliation.”). Accordingly, the court considers any
such argument waived and does not express any view on that “novel question.”
18
27
Miranda-Rivera v. Toledo-Dávila, 813 F.3d 64, 70 (1st Cir. 2016). The court looks to
several factors in determining whether force is reasonable or unreasonable,
including, among others:
•
the proportionality of the force used as against the
purpose for using force;
•
the extent of the plaintiff’s injury;
•
whether the officers made efforts to limit the amount of
force;
•
the threat reasonably perceived by the officer;
•
and whether the plaintiff was actively resisting.
Kingsley, 576 U.S. at 397. The court must not apply this standard “mechanically,”
and it must make its finding “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.” Id.; see also Graham v. Connor, 490 U.S. 386, 396 (1989) (“Not every
push or shove, even if it may later seem unnecessary in the peace of a judge’s
chambers,” violates the Constitution).
The First Circuit has found a use of force reasonable as a matter of law when
there was a concern for bystanders’ and officers’ safety and the plaintiff only
suffered what the court characterized as minor injuries, such as bruises and
scratches. See Dean v. City of Worcester, 924 F.2d 364, 369 (1st Cir. 1991) (arising
under the Fourth Amendment).19 In Dean, officers incorrectly believed the plaintiff
In analyzing whether defendants’ use of force was objectively reasonable
under the Fifth Amendment, the court is informed by cases arising under the Fourth
Amendment, which has a similar objective reasonableness standard. See Graham,
490 U.S. at 397.
19
28
to be an armed and dangerous escaped prisoner. Id. at 366. The officers drove up to
the plaintiff at a bus stop and pushed him to the ground, causing his face to hit a
sidewalk. Id. One officer put a gun to the plaintiff’s head and “threatened to blow
his head off if he moved.” Id. The plaintiff, who did not resist the officers, received
a “scratch on the neck, bruises on his back and a cut on the nose,” but an
examination at a hospital afterward found that the plaintiff had no “obvious signs of
trauma.” Id. at 369. The district court granted summary judgment in the
defendants’ favor, and the First Circuit affirmed, characterizing the scratches,
bruises and cuts as “compelling evidence” that “confirmed” the objective
reasonableness of the officers’ use of force. Id.
Similarly, in Fernandez-Salicrup v. Figueroa-Sancha, the First Circuit held
that an officer’s use of force on a non-resisting plaintiff suspected of committing a
minor crime was justified considering the chaotic circumstances in which the use of
force occurred. See 790 F.3d 312, 326 (1st Cir. 2015) (arising under the Fourth
Amendment). During a protest at a school that had “turned chaotic,” the plaintiff
ran away from police officers who were attempting to quell the situation. Id. at 31516. Officers caught up to the plaintiff, who stopped and immediately complied with
officers’ directions. See id. at 316. When the plaintiff criticized one officer for his
harsh tone in speaking to her, the officer arrested the plaintiff for obstructing a
police investigation and disorderly conduct. Id. at 326-27. In doing so, the
defendant officer shoved the plaintiff “face-first against a wall” and handcuffed the
plaintiff’s wrist. Id. at 327. The First Circuit held that shoving the plaintiff against
29
the wall was not an excessive use of force, characterizing the shove as “unnecessary”
in hindsight but “not unreasonable.” Id.
In cases where a genuine dispute existed about whether a use of force was
reasonable, the circumstances facing the officers were calm, the plaintiff typically
did not resist, and officers nonetheless used enough force on the plaintiff to cause
visible or otherwise obvious injuries. See, e.g., Alexis v. McDonald’s Restaurants of
Mass., Inc., 67 F.3d 341, 352 (1st Cir. 1995) (summary judgment not warranted
when officer approached plaintiff who was suspected of criminal trespass and
abruptly dragged her across a table and forcibly handcuffed her despite no evidence
that plaintiff “posed a risk of flight, attempted to resist or evade arrest, or
threatened the peace, property or safety of anyone”); Raiche v. Pietroski, 623 F.3d
30, 33-34, 37-39 (1st Cir. 2010) (officer tackled non-resisting motorcycle driver who
was pulled over for failing to wear a helmet); Merilli v. Webster, 552 F.3d 12, 24 (1st
Cir. 2009) (officer yanked non-resisting or fleeing theft suspect’s arm with enough
force to tear her rotator cuff). In other cases, courts have denied qualified immunity
when the plaintiff was actively surrendering to arresting officers, but an officer
gratuitously pushed or shoved the plaintiff, even if it did not cause injury. E.g.,
Rogoz v. City of Hartford, 796 F.3d 236, 245 (2d Cir. 2015) (“[S]ummary judgment
has been found inappropriate in a case involving the use of gratuitous force beyond
what was necessary to subdue.”); Long v. Abbott, No. 2:15-cv-291-JAW, 2017 WL
8294145, at *21 (D. Me. Mar. 1, 2017) (finding officer was not entitled to qualified
30
immunity when he gratuitously shoved arrestee from behind as arrestee was
standing up and putting his hands behind his back).
As with Karmue’s Fifth Amendment claim regarding Deputy Moore’s driving,
Karmue’s Fifth Amendment excessive force claim fails because the undisputed facts
are insufficient to find a clearly established constitutional violation. Based on all
the circumstances, including the court’s review of the video recording of the
incident, it was objectively reasonable for the deputy marshals to conclude that
Karmue, a partially-restrained pretrial detainee being transported around a federal
courthouse, was behaving unpredictably in the elevator in the presence of two
EMTs. Considering those circumstances, it was reasonable for the officers to use a
measured degree of force to fully restrain Karmue.
The force that the deputy marshals used did not cause Karmue any
significant injury, and it was neither gratuitous nor completely unnecessary. Even
if, in hindsight, the deputy marshals’ purposes could have been accomplished by a
lesser amount of force than was used, not every push or shove seen as unnecessary
in hindsight is “unreasonable” under the Constitution. E.g., Fernandez-Salicrup,
790 F.3d at 327. As the Supreme Court has recognized, “[o]fficers facing
disturbances ‘are often forced to make split-second judgments—in circumstances
that are tense, uncertain, and rapidly evolving.’” Kingsley, 576 U.S. at 399 (quoting
Graham, 490 U.S. at 397). The standard is not what would have been ideal in
hindsight, but what was objectively reasonable at the time the incident occurred.
31
Id. (“[W]e have stressed that a court must judge the reasonableness of the force
used from the perspective and knowledge of the defendant officer.”).
Karmue contends that any use of force was excessive because he was not
acting erratically or resisting the deputes but rather fell to the floor because he was
in pain. The deputy marshals, however, were not required ignore—at their or the
EMTs’ peril—the other circumstances. Considering all of the circumstances at the
time of the incident, an objectively reasonable officer would have had substantial
reason to doubt Karmue’s contemporaneous report that he was in so much pain that
he could not stand. Karmue was able to walk to the holding cell without assistance,
sit upright on a bench for 20 minutes, and walk back to the elevator with minimal
assistance from the EMTs and deputy marshals. Only once the elevator doors were
closed and he was in tight quarters with the EMTs and deputy marshals did
Karmue fall to the floor. Considering all of the circumstances, it was reasonable for
the deputy marshals to determine in the few seconds after Karmue fell that force
was needed to restrain Karmue to minimize the risks of harm to the deputy
marshals and EMTs.
Karmue argues that, nonetheless, the deputies used an unreasonable degree
of force to restrain him. The court disagrees. The deputy marshals’ use of force—
the aiming of the Taser at Karmue and the use of the deputy marshals’ bodies to pin
Karmue while they attempted to handcuff him—was objectively reasonable under
the circumstances.
32
First, aiming the Taser at Karmue in an attempt to get him to comply was
not excessive. To be sure, the Taser light and laser shone in Karmue’s eye for about
two seconds, which caused Karmue some pain. But aiming the Taser at Karmue
was not excessive when weighed against the deputy marshals’ need to obtain
Karmue’s compliance with their instructions. Karmue suffered only a very minor
injury as a result, namely, pain in his eye and some blurred vision. Karmue argues
that he suffered a much more severe injury—partial blindness and a corneal scar.
The medical evidence, however, does not connect the Taser light or laser to that
alleged injury. Karmue himself testified that he would defer to the medical experts
as to what caused his corneal scar. And the medical experts—including Karmue’s
own—agreed that the Taser light or laser pointed at his eyes for two seconds would
not have caused Karmue’s corneal scar or partial blindness.
Second, the deputy marshals’ use of their hands and bodies to pin Karmue
while attempting to handcuff him was not unreasonable. The video shows that, in
its entirety, the scrum with Karmue lasted for barely one minute, and the deputy
marshals stopped using force as soon as Karmue was handcuffed and both EMTs
were able to leave the elevator.20 Taking the facts in the light most favorable to
him, Karmue’s noncompliance with the deputies’ instructions was not forceful but
merely evasive. But, the deputy marshals’ use of force to restrain Karmue was brief
After Karmue was restrained, the deputy marshals made additional contact
with Karmue when they attempted to hoist him off the elevator floor. This contact
was necessary, however, because it was for the purpose of getting Karmue to the
hospital. Karmue could not be left on the elevator floor indefinitely.
20
33
and proportionate to that level of noncompliance, and it caused Karmue no visible
or apparent injuries. Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (holding that
absence of serious injury can be relevant to inquiry as to whether use of force was
objectively reasonable and “extent of injury may also provide some indication of the
amount of force applied”).
Finally, Karmue argues that Deputy Moore choked him, which he contends is
not a reasonable use of force. But Karmue clarified in his deposition that he meant
that Deputy Moore pulled on his clothing, as can be seen in the video when the
deputy marshals tried to obtain a steady hold on Karmue as he moved around the
elevator floor. Karmue was able to breathe and there is no evidence that any
deputy marshal placed any body part or weight on Karmue’s neck causing him to
choke. And, as noted, an examination of Karmue after the incident revealed no
serious or minor injuries—not even scratches, bruises, or cuts. In sum, the facts,
drawn in the light most favorable to Karmue, are insufficient to permit a reasonable
jury to conclude that the deputy marshals used an objectively unreasonable degree
of force against Karmue when attempting to restrain him.
2.
Karmue has not shown that defendants spoliated evidence
relevant to Count II.
As with Count I, Karmue argues that the court should draw an adverse
inference as to the deputy marshals’ use of force because defendants failed to
preserve certain evidence, including the actual Taser that Deputy Moore carried on
April 23 and recordings from a video camera positioned in the courthouse sallyport
34
and outside the transport elevator. Karmue contends that this missing video would
show the deputy marshals “picking [Karmue] up and dropping him, dragging him,
and treating him in the most brutal fashion.” Doc. no. 170 at 3.
In response, defendants say that they no longer have “possession, custody, or
control of the taser” that Deputy Moore carried on April 23. Doc. no. 173 at 3. As to
the video, defendants submitted evidence showing that the same day the elevator
incident occurred, the courthouse’s judicial security inspector was asked to
download all videos depicting Karmue at the courthouse on that day. Because the
courthouse’s video storage system only has space for 30 days of security videos, the
inspector “watched hours of video from the courthouse security cameras to find
depictions of [Karmue].” Id. The inspector preserved all videos that he reviewed
that showed Karmue. Defendants produced all of those videos to Karmue in
discovery. Any other video from the courthouse was automatically overwritten after
30 days.
a.
The Taser is not likely to reveal evidence that would aid
Karmue in overcoming summary judgment.
First, as to the Taser, although it was not preserved, producing it would not
have revealed evidence that aids Karmue in overcoming summary judgment.
Karmue argues that, with the Taser itself, his experts would have evaluated the
strength of the Taser’s light, the “radiation” the laser emitted, and whether either
was enough to cause injury. Doc. no. 183 at 14.
But the medical experts testified that the Taser’s light or laser would not
produce the corneal scar or partial blindness suffered by Karmue. Karmue merely
35
speculates that the light or laser could have been sufficiently powerful to cause
those injuries. To provide his position a less speculative footing, Karmue could have
determined the power of the Taser’s light and laser by obtaining a Taser of the same
model and testing it. Karmue did not—despite having a complete discovery period
to do so.
Karmue contends that Deputy Moore’s Taser was “modified” and “altered,” so
a test of the actual Taser would be necessary to determine its effects. Doc. no. 183
at 12-13 (“The fact that the subject taser was altered by Deputy Moore and the fact
that it too has now disappeared should, in and of itself, preclude summary
judgment.”). Karmue bases this claim on the following testimony from Deputy
Moore: “I believe I took the cartridge which holds the probes off the front of the
[T]aser.” Doc. no. 176-7 at 22. Unloading a Taser does not make it “modified” or
“altered” in any sense meaningful to the issues before the court.
Thus, even assuming defendants improperly failed to preserve the Taser
carried Deputy Moore on April 23, it would be unreasonable to conclude that
preserving it or producing it would have revealed evidence that helps Karmue’s
claims.
b.
The missing video would not likely show evidence that helps
Karmue overcome summary judgment.
Second, as to the video recording from outside the transport elevator in the
courthouse sallyport, the evidence does not indicate that a video depicting Karmue
was destroyed or otherwise not preserved. Defendants submitted evidence that
they rigorously viewed all the courthouse video from the day of the incident and
36
produced all the videos that depicted Karmue. There is no evidence any video
depicting Karmue was destroyed or not preserved.
But even if a video recording depicting Karmue from the sought-after angle
existed at some point, it is unreasonable to infer it would reveal the evidence that
Karmue claims it would. Karmue argues that the video would show him being
lifted, dragged, and beaten. A thorough review of the video recordings that were
produced reveals that the potentially relevant portion of the missing video angle
would cover approximately two minutes, beginning from when Deputy Moore and
Cairone hoist Karmue off the elevator’s floor and out of the elevator and ending
when Karmue appears on an evacuation chair alongside the EMTs in the
courthouse sallyport.
It is only during this two-minute period that Karmue cannot be seen on any
video recording but theoretically may have been visible at some point on the camera
angle requested by Karmue. Karmue’s claim that the video would show him being
beaten, dragged, or otherwise abused is undermined by what the videos do show.
The videos show that, after Karmue was restrained in the elevator, the EMTs
brought an evacuation chair to a narrow elevator landing in the sallyport, which is
the space the missing video recording would cover. The video from inside the
elevator shows Cairone and the deputy marshals hoisting a restrained Karmue off
the floor to the elevator landing where the evacuation chair was waiting. Karmue is
not visible in any recording for the following two minutes; after those two minutes,
37
the video camera from the courthouse sallyport shows the EMTs wheeling Karmue,
now strapped to the evacuation chair, away from the first-floor elevator landing.
From these undisputed facts—plus the reality that Karmue was examined
the day after the incident and doctors found he had no significant injuries—it
cannot be reasonably inferred that the missing video angle would depict anything
other than the EMTs and deputies lifting Karmue up and strapping him to the
evacuation chair. That does not help Karmue overcome summary judgment.
Karmue does not presently argue that strapping him to an evacuation chair in
service of his own request for medical attention would be an objectively
unreasonable use of force.
Deputies Moore and DaSilva are entitled to qualified immunity, and
therefore summary judgment, as to Count II.
C.
Count III: Deputies Carvalho and Doe are entitled to qualified
immunity because they had no duty to intervene against a reasonable
use of force.
Karmue alleges that Deputies Carvalho and Doe should have intervened to
stop Deputies Moore and DaSilva’s allegedly unreasonable use of force in the
transport elevator. “An officer may be held liable not only for his personal use of
excessive force, but also for his failure to intervene in appropriate circumstances to
protect an arrestee from the excessive use of force by his fellow officers.” Wilson v.
Town of Mendon, 294 F.3d 1, 6 (1st Cir. 2002); Gaudreault v. Municipality of Salem,
923 F.2d 203, 207 n.3 (1st Cir. 1990). Because the court has found that there was
no excessive use of force by the other deputies, Karmue’s claim against Deputies
38
Carvalho and Doe for failing to intervene necessarily fails. Deputies Carvalho and
Doe are entitled to summary judgment as to Count III.
D.
Count IV: The deputies are entitled to qualified immunity because the
evidence is insufficient for a reasonable jury to find Karmue had a
“serious medical need.”
In his final constitutional claim, Karmue alleges that he was unreasonably
denied medical care by the deputy marshals. Specifically, he alleges that he
requested medical care immediately after hitting the metal partition in the prisoner
transport van. The deputy marshals, however, did not seek medical attention for
Karmue until they arrived at the courthouse.
To show a violation of the Fifth Amendment based on a failure to provide
medical care, the defendants must have acted with deliberate indifference to
Karmue’s serious medical need. See Miranda-Rivera, 813 F.3d at 74 (detailing
standard for deliberate indifference claims arising under the Fourteenth
Amendment). The analysis has two prongs: first, an objective prong requiring proof
of a serious medical need and, second, a subjective prong that shows the defendant’s
deliberate indifference to that need. Id.
“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.” Id. (citation omitted). The medical
need must pose a “sufficiently substantial ‘risk of serious damage to [the detainee’s]
future health.’” See Farmer v. Brennan, 511 U.S. 825, 843 (1994) (applying Eighth
Amendment and quoting Helling v. McKinney, 509 U.S. 25, 35 (1993)). The effect, if
39
any, of a delay in treatment can also be used to determine the seriousness of a
prisoner’s medical needs. Abernathy v. Anderson, 984 F.3d 1, 6 (1st Cir. 2020).
For example, in Gaudreault, the First Circuit addressed a pretrial detainee’s
claim of deliberate indifference to his serious medical needs under the Fourteenth
Amendment. 923 F.2d at 208. The plaintiff alleged that he was assaulted during
his arrest, which caused him visible bruises and abrasions, and that prison officials,
despite his request, failed to provide him any medical treatment. Id. The morning
after the arrest, the plaintiff again requested medical attention, and an officer
eventually agreed to send the detainee to the hospital. Id. Medical records from the
hospital documented plaintiff’s bruises and abrasions, and the hospital provided the
plaintiff with a sling for his left arm as well as an eye patch. Id. X-rays came back
normal. Id. Notwithstanding the plaintiff’s complaints about the seriousness of the
abuse he suffered during his arrest, the First Circuit held that the plaintiff did not
have a “serious medical need,” reasoning as follows:
The doctors and nurses who examined [plaintiff] on the
morning after his arrest, in short, found him bruised but
unbroken, requiring no more medical care than a sling, an
eye-patch and the application of some disinfectant. If that
was all the medical professionals could find to treat, we do
not think that [plaintiff’s] jailers could be required to see
more. While [plaintiff’s] injuries may have been “obvious”
in the sense that his bruises and abrasions were visible, the
medical record demonstrates that he did not display any
needs so patent as to make lay persons such as
[defendants] remiss in failing to arrange for immediate
medical attention.
Id.
40
Karmue’s claim of deliberate indifference to a serious medical need fails
because the evidence cannot support a finding that, before medical attention was
provided to him, Karmue had a medical need that was “so obvious” that “even a lay
person would easily recognize the necessity for a doctor’s attention.”21 The
transport van arrived at the courthouse moments after Karmue hit the metal
partition and requested medical attention. Although he had a limp and walked
gingerly, Karmue managed to walk under his own power from the van to the
courthouse cell. It took Karmue less than a minute to walk, wearing handcuffs, a
waist chain, and leg irons, from the van to the courthouse cell. Subsequent
examinations by medical providers failed to identify any serious injuries, which
further undermines the contention that a lay person would have easily recognized
Karmue required medical attention. See Montes v. Ponce Municipality, 79 Fed.
Appx. 448, 450-51 (1st Cir. Oct. 31, 2003) (affirming, in unpublished decision,
district court’s finding that no reasonable jury could find a pretrial detainee had a
serious medical need when he “only needed over-the-counter pain killers” as
treatment for injuries suffered during alleged beating).
The only fact cutting in the other direction as to the existence of a serious
medical need is Karmue’s own complaint that he was pain. As the court observed in
ruling on the pre-discovery motion for summary judgment, “[s]evere pain can be a
Of course, no physician diagnosed Karmue with any condition requiring
treatment in the time between when Karmue hit the partition in the transport van
and when the EMTs were called. For that reason, the court focuses on whether
Karmue had a condition that was so obvious a lay person could recognize the need for
medical attention.
21
41
sufficiently serious medical need.” Vick v. U.S. Marshals, 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 (Jan. 13, 2020). But, considering the facts as they have been developed after the
full discovery period, it would not have been apparent to a lay person that Karmue
was suffering from pain so severe that he had a “serious medical need.” In
particular, Karmue was able to walk from the transport van to the holding cell, and
the video shows him then sitting on a bench in the holding cell without incident for
about 20 minutes.
To be sure, Karmue’s walking became much more labored when he left the
holding cell, which could have made the degree of his pain more apparent to a lay
person. But the deputy marshals had already called for medical assistance at that
point; the change in Karmue’s gait and posture occurred only after the deputy
marshals had already acted reasonably by seeking medical attention for him within
30 minutes of his arrival at the courthouse. See Miranda-Rivera, 813 F.3d at 74
(“[T]here is no deliberate indifference if an official responds reasonably to the
risk.”). In fact, Karmue was assisted by Cairone, an EMT, as he walked out to the
waiting ambulance.
Karmue contends that those facts are not dispositive considering his claim
that the deputy marshals told the EMTs not to treat him. But both EMTs stated
that, even if the deputy marshals told them not to treat Karmue, they would have
42
provided Karmue the same medical attention.22 It is undisputed that Karmue was
provided medical care. Karmue criticizes the quality of that medical care and the
professionalism of his medical providers, but those criticisms cannot form the basis
for a deliberate indifference to medical needs claim. See, e.g., Feeney v. Corr. Med.
Servs., 464 F.3d 158, 162-63 (1st Cir. 2006).
At bottom, the facts undercut any claim that Karmue’s need for medical
attention was so obvious that a lay person would have recognized that need in the
several minutes between when he suffered the injuries (in the van) and when EMTs
were called (when he was in the holding cell). While the potential seriousness of
Karmue’s condition may have become more apparent later, EMTs had already been
called and Karmue did receive medical attention. For those reasons, the deputy
marshals are entitled to summary judgment as to Count IV.
II.
Count V: The United States has not shown that it is entitled to summary
judgment as to Karmue’s negligence claim.
Finally, the United States moves for summary judgment on Karmue’s claim
of negligence brought pursuant to the Federal Tort Claims Act. The United States
argues that dismissal is required because Karmue cannot maintain claims for both
excessive use of force and negligence. The United States also argues that Karmue’s
claims cannot proceed because of the lack of evidence about his injuries. Finally,
the United States asserts that it did not breach any duty it owed Karmue because
The EMTs also stated that the deputy marshals did not so instruct them,
but the court considers the facts in the light most favorable to Karmue for purposes
of summary judgment.
22
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the deputy marshals did not act indifferently to Karmue’s health and safety; did not
deny him medical care; and did not employ impermissible force against him.
Karmue did not respond or object to the United States’s argument as to Count V.
The United States is entitled to summary judgment as to Karmue’s
negligence claim to the extent it involves conduct already found by the court to have
been reasonable as a matter of law, such as the force used by the deputy marshals
in the courthouse elevator or the response to Karmue’s requests for medical
attention. See, e.g., Mucci v. Town of N. Providence, 815 F. Supp. 2d 541, 548
(D.R.I. 2011) (collecting cases). The United States, however, does not address
whether a government agent’s driving may be the subject of a negligence claim
when brought in the alternative to a claim for constitutional violations under the
Fifth Amendment. The cases cited by the United States in its brief are inapposite,
as they address circumstances involving only intentional uses of force or conduct
otherwise found to be reasonable.
Proving a claim of negligence under Rhode Island law requires the plaintiff to
show that he was owed a duty by defendant; the defendant breached that duty; the
defendant’s conduct proximately caused an injury; and plaintiff suffered “actual loss
or damage.” Holley v. Argonaut Holdings, Inc., 968 A.2d 271, 274 (R.I. 2009). The
causal connection between defendant’s conduct and plaintiff’s injury must be proved
by “competent evidence” and cannot “be based on conjecture or speculation.”
Skaling v. Aetna Ins. Co., 742 A.2d 282, 288 (R.I. 1999).
44
In Rhode Island, a person driving a vehicle has a duty to operate the vehicle
with reasonable care, and a person injured because the driver failed to exercise
reasonable care has a cause of action against the driver for breaching that duty.
See DaMaio v. Ciccone, 59 A.3d 125, 130 (R.I. 2013); De Nicola v. United Elec. Rys.
Co., 182 A. 1, 2 (R.I. 1935). In its motion for summary judgment, the United States
supplied no reason why Karmue cannot advance a claim against the United States
on the premise that Deputy Moore negligently drove the van. The court’s ruling as
to Karmue’s similar constitutional claim is premised on the lack of facts to show
that Deputy Moore drove the van in an intentionally unsafe or criminally reckless
manner, which does not mean a fact finder—if it were to credit Karmue’s version of
events and draw every reasonable inference in his favor—could not reasonably find
that Deputy Moore drove the van negligently.
The United States also contends that Karmue has not identified any evidence
to show that he was injured because of any alleged negligence. The evidence
favoring the United States’s position includes several medical reports
contemporaneous with the incident, testimony from Karmue’s own medical expert
(as well as the United States’s own experts), and testimony or affidavits from the
EMTs who attended to Karmue. Karmue, however, testified that he suffered pain
because of the transport van’s sudden stop. Karmue challenges the accuracy of at
least some aspects of the medical reports. And one of Karmue’s treating medical
providers testified that he could not rule out that Karmue suffered a herniated disc
when he hit the metal partition in the van on April 23. That evidence is minimally
45
sufficient to generate a genuine dispute of material fact about whether Karmue
suffered any injuries and move his negligence claim to trial. At the summary
judgment stage the court cannot weigh the evidence or decide which version of the
evidence to credit; rather, if there is a genuine dispute of material fact, the matter
must be resolved through trial.
For those reasons, the United States is not entitled to summary judgment as
to Count V.
CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment (doc.
no. 174) is granted in part and denied in part. Karmue’s motion for sanctions (doc.
no. 170) is denied. Defendants’ unopposed motion to seal (doc. no. 177) certain
medical records is granted. The parties’ joint motion to stay the remaining case
management deadlines pending this order (doc. no. 192) is denied as moot.
Defendants Moore, DaSilva, Carvalho, and Doe are dismissed as party defendants.
The United States remains as a defendant and the only claim left for trial is Count
V, negligence under the FTCA.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
Sitting by Designation.
February 3, 2023
cc:
Counsel of Record
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