Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-1461
BERT J. ALLEN, III,
Plaintiff, Appellant,
v.
YORK COUNTY JAIL, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Lynch and Lipez,
Circuit Judges.
Bert J. Allen, III on brief pro se.
Michael J. Schmidt and Wheeler & Arey, P.A., on brief for
appellees.
January 23, 2007
Per Curiam. Bert J. Allen, III, pro se, appeals from the
district court's entry of judgment as a matter of law under Fed. R.
Civ. P. 50(a) in favor of defendant Tammy Legnard and the jury
verdict entered in favor of defendant Daniel Dubois in this civil
rights action. Allen's claims arose from injuries he suffered at
the hands of other inmates while he was confined at the York County
Jail in Sanford, Maine, as a pretrial detainee; specifically, Allen
asserted that he was sexually assaulted by two inmates at the
behest of defendant Dubois, and that on another occasion he was
injured when inmates pelted him with rocks during a prison
evacuation in August 2000. Allen claimed that these injuries were
the result of the deliberate indifference of defendants, both
corrections officers at the prison, to his health and safety, in
violation of his Fourteenth Amendment Due Process rights as a
pretrial detainee.
On appeal, Allen first argues that the district court
erred in granting defendant Legnard's motion for judgment as a
matter of law under Fed. R. Civ. P. 50(a). To the extent Allen
challenges the timing of the motion or the ruling on the motion,
his argument is baseless; Rule 50(a) expressly authorizes the
procedure that was followed. Allen's challenge to the substance of
the ruling is also unavailing. Although the evidence showed that
Legnard put Allen in a cell with inmates who had sexually assaulted
him a few days after the assault occurred, she testified that she
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was unaware that the assault had occurred and that she removed
Allen from the holding cell as soon as he requested it. Allen does
not cite any evidence to refute that testimony, and he does not
allege that he suffered any injury as a result of the post-assault
confinement. Allen also fails to cite any evidence that would
refute Legnard's testimony that she was not present at the prison
during the rock-throwing incident. Since the focus of a deliberate
indifference claim is what the officers knew and what they did in
response to a known risk, Burrell v. Hampshire County, 307 F.3d 1,
8 (1st Cir. 2002), see Farmer v. Brennan, 511 U.S. 825, 845 (1994),
the district court's grant of Legnard's motion for judgment as a
matter of law was proper.
Allen next argues that the district court erred in
permitting defendants to introduce a redacted version of a
videotaped deposition of an unavailable witness at trial. Since it
appears that the redacted content was limited to material properly
ruled inadmissible by the trial court, however, the district
court's ruling was not in error.
Allen also asserts that the district court erred in
instructing the jury to apply the standard of deliberate
indifference applicable to claims brought by convicted inmates
under the Eighth Amendment; he suggests that a different standard
should have been applied because, as he was a pretrial detainee,
his claims were brought under the Fourth Amendment. However, we
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have made clear that the Eighth Amendment standard is to be applied
to deliberate indifference claims brought by pretrial detainees.
See Burrell, 307 F.3d at 7. Allen's assignment of error is
therefore unfounded.
We have carefully considered Allen's remaining issues and
find them to be without merit.
Affirmed. See 1st Cir. Loc. R. 27.0(c).
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