Burrell v. Hampshire County

United States Court of Appeals
For the First Circuit

No. 02-1504

STEPHEN BURRELL,

Plaintiff, Appellant,

v.

HAMPSHIRE COUNTY; FRANK GODEK, individually and in his official
capacity as corrections officer for the Hampshire County
Jail/House of Corrections; ANTHONY THOMAS, individually and in
his official capacity as corrections officer for the Hampshire
County Jail/House of Corrections; JOHN A. SEAVER, individually
and in his official capacity as corrections officer for the
Hampshire County Jail/House of Corrections; ROBERT GARVEY,
individually and in his official capacity as county sheriff for
Hampshire County; and WILLIAM A. MARTINEZ, individually and in
his official capacity as corrections officer for the Hampshire
Jail/House of Corrections,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before
Boudin, Chief Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.

Michael J. Schmidt, with whom Wheeler & Arey was on
brief, for appellant.
Charles M. Maguire, Special Assistant Attorney General,
for appellees.

October 4, 2002
 LYNCH, Circuit Judge. Stephen Burrell was assaulted and

severely beaten by David Allen, a fellow inmate, on December 2,

1997 while they were both pretrial detainees at the Hampshire

County Jail/House of Corrections ("the Hampshire Jail"). Burrell

brought a damages action under 42 U.S.C. § 1983 (2000) against

certain jail employees and Hampshire County Sheriff Robert Garvey.

He alleged that defendants had been deliberately indifferent to his

health and safety, in violation of his Fourteenth Amendment Due

Process rights as a pretrial detainee. Burrell also asserted that

the Hampshire Jail's failure to classify and segregate violent and
nonviolent inmates itself violated the Eighth Amendment. The

district court granted summary judgment to the defendants on both
claims. Burrell appeals that decision. We affirm.
I. Facts

Our review of a grant of summary judgment is de novo. We
present the facts from the summary judgment record in the light
most favorable to Burrell, and draw all reasonable inferences in

his favor. See Conto v. Concord Hosp., Inc., 265 F.3d 79, 80 n.1

(1st Cir. 2001). Summary judgment is warranted if a jury could not
reasonably return a verdict in the plaintiff's favor. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Accordingly, we
accept as true the facts alleged by the plaintiff in his complaint,
drawing all reasonable inferences in his favor.

Burrell was incarcerated at the Hampshire Jail on March
7, 1997 while awaiting trial on federal mail fraud, wire fraud and

fictitious name charges. Allen, meanwhile, had been incarcerated

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in the Hampshire Jail since May 5, 1996 while awaiting trial on

murder and assault charges. Allen and Burrell had been on the same

cell block since August 26, 1997.
The Hampshire Jail has three cell blocks. Cell Block A,

where Burrell was held, has twelve cells on each of two tiers, for

a total of twenty-four cells. Inmates have individual cells, which
they are able to lock from the inside. Inmates also have some

level of choice regarding their location; when cells become open,

they can request to move within their cell block. Early in his

stay at the Hampshire Jail, Burrell requested a particular cell

with a view of an adjacent forest, because he "wanted a room where

[he] could see the free world." Burrell was given this cell, and

it can be inferred that he was reluctant to give up his cell with
a view.

Much of Burrell's claim rested on what he said were

Allen's known and demonstrated violent proclivities. Allen was
involved in several earlier incidents and was disciplined by prison

officials at least three times. Two of the incidents for which

Allen was disciplined involved violent altercations with other

inmates. We list the incidents which, it can be inferred, were

known to the corrections officers.

1. On December 16, 1996, a corrections officer overheard

Allen telling another inmate that if Allen saw an inmate named

Robles, he would hurt him, saying "If I see that mother fucker I'm

gonna kill him. He better stay locked! He's a deadman," and

punching the air with his fist. Allen was not disciplined for

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this.

2. The following day, December 17, 1996, Allen punched

another inmate, James Peterson, after a disagreement growing out of
Peterson's complaints that Allen's music was too loud. When

Peterson was taken to the hospital for treatment of his injuries,

he told staff that he had been hit with a steel bar. According to

the report filed on the disciplinary hearing, Allen claimed that he

hit Peterson because Peterson called him a "nigger," and this

account was supported by the testimony of a witness. Allen was

found guilty of violating Hampshire Jail Code 18 (fighting with,
assaulting, or threatening another person) and received seven days

of isolation. Allen also pled guilty to criminal charges for this
incident.
3. On March 20, 1997, Allen was disciplined for

involvement in a fight between two other inmates. Allen claimed
that he was only breaking up a fight. His claim was supported by
witnesses, although one of those involved in the fight said that

Allen was an active participant. For his involvement, Allen
received seven days of room restriction suspended for sixty days,
and four days of room restriction with a credit for time served.

4. On August 15, 1997, Allen and other inmates carried
Raul Munier, also an inmate, to the day room and stuffed him in a
trash can. Munier was not injured, but Allen and the other

perpetrators were sanctioned for horseplay.
5. During the time they were blockmates, Burrell saw

Allen fighting with other inmates, including a dispute with another

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inmate named David Santiago. According to Burrell, Allen removed

a shower curtain rod and beat Santiago about the face and chest.

Prison officials also noted another dispute between Allen and

Santiago in November 1997.

In addition, it can be inferred that Allen had probably

engaged in more disruptive behavior than just the listed incidents,

as evidenced by his peripatetic circuit through the Hampshire

Jail's three cell blocks. Allen was moved from Cell Block C to

Cell Block B on May 27, 1997, and then from Cell Block B to Cell

Block A on August 26, 1997. Prison officials admit that
disciplinary infractions are one reason for moving inmates.

From August 26, 1997 until the date of the incident,
December 2, 1997, Allen and Burrell lived one cell apart on the
second tier of Cell Block A. While no disciplinary sanctions were

imposed for altercations between Allen and Burrell, there were
several incidents. Burrell brought at least two of these three
incidents to the attention of Hampshire Jail officials:

1. Burrell and Allen had a disagreement when Allen
changed the channel on the television in the day room to the Black
Entertainment Television channel; Burrell, who had been watching

another station, said that he didn't want to change the channel,
and Allen responded, "What up." Burrell then returned to his cell.
2. During the summer, Allen pushed his way through a line

of inmates waiting to go outside to the recreation yard. Burrell
told him to wait his turn. Once they were both outside, Allen

grabbed Burrell by the arm and said "You motherfucker. Dis me

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again like that, and I'll hurt you." Burrell responded, "Yeah

right," and walked away from Allen. Burrell reported this incident

to Officer Anthony Thomas within a day or so.
3. Less than a month before the December assault,

Burrell and Allen were in the gymnasium together. Burrell was

sitting on a bench after playing basketball, and Allen joined him
on the bench and then accused Burrell of sweating on him. Burrell

got up and walked away, going up a staircase. Allen pushed

Burrell, causing him to grab the railing, but not hard enough to

make Burrell fall. Burrell again reported the incident to Thomas.

In addition to these incidents, Allen's habit of playing

his radio loudly and late at night created tension between Allen

and Burrell. According to Burrell, "David had a large boom box
radio and he would turn it and turn it up. And myself and others

would complain to David Allen and he would say, 'This is my box and

these are my tunes and fuck you.'"1

Burrell reported these incidents, and his concerns about

Allen, to prison officials on a number of occasions. While the

substance of these conversations is disputed, prison officials were

clearly aware of tension between the two men. We are, in any

event, required to accept Burrell's version as true for summary

1
Prison officials say that they perceived Burrell's
desire to have Allen removed from Cell Block A as stemming from
Burrell's racism. Burrell is white; Allen is African-American.
Thomas says that Burrell referred to Allen and others as the
"jungle creatures," and that Martinez said that Burrell was
trying to remove non-whites from his cell block. Burrell
disputes this.

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judgment purposes.

Burrell spoke to Thomas after the recreation yard

incident, and said that he was afraid that there was going to be a

fight between Allen and him. Burrell admits that he did not ask

for protective custody at that time. After the incident in the

gymnasium, Burrell again spoke to Thomas, this time in an area

called the "press room." Thomas responded that he had sent a memo

to Garvey and Frank Godek, a superintendent at the Hampshire Jail,

about the situation. Burrell complained that Allen was a

disruptive influence, and requested that Allen be moved; according
to Burrell, Thomas said, "We've already moved him all over the

place. There are no more places to move him."
Burrell also discussed Allen with Lieutenant John Seaver
on several occasions. Burrell told Seaver that "a fight is going

to ensue. There [is] going to be blood. Somebody's going to get
hurt." Again, he asked that Allen be transferred out of Cell Block
A. According to Burrell, Seaver responded, "We're at a loss, we've

moved him everywhere."
William Martinez, the corrections officer in charge of
Cell Block A, also remembers discussing Allen with Burrell.

According to Martinez, Burrell wanted Allen moved out of the block
because Allen played his radio too loudly. Martinez recalls
offering Burrell either the option of moving elsewhere, or

protective custody. Martinez concedes that protective custody is
not usually offered for conflicts as simple as complaints about a

loud radio. Burrell denies he was given either option. Martinez's

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statement is evidence of his knowledge that there was a conflict

between Burrell and Allen that exceeded routine dimensions.

Burrell spoke about Allen to Godek as well. When Burrell
was arranging to have a word-processor in his cell, he told Godek

that Allen was "a bully" and that Allen had caused him problems.2

Burrell told Seaver and Thomas that he had earned a black
belt in martial arts, and that he had received the Congressional

Medal of Honor. Burrell admits that he lied to prison officials

about his ability to take care of himself. Thomas says he believed

Burrell, and testified that he worried for the safety of other

inmates should Burrell attack them.

Finally, Burrell's wife, Deborah Burrell, also spoke to

Thomas about tensions in Cell Block A. In her deposition, she
described her conversation with Thomas as "not so much about

assaulting, just that there was a commotion . . . that [Allen] was

a very disagreeable fellow." She asked them either to talk to

Allen or move him out of Cell Block A.3 She did not ask for

2
Burrell also asserts that he wrote letters to Garvey and
Godek, describing the situation and asking that Allen be
transferred out of Block A. These letters were not produced by
Burrell's counsel and placed into the summary judgment record,
and, as a result, are not before us.
3
Deborah Burrell also recounted conversations with her
husband in which she suggested that he request a transfer;
according to her, his response was "No, he didn't want to,"
because "[h]e didn't think it was fair." While these
conversations were privileged under the Massachusetts spousal
communication disqualification, Mass. Gen. Laws ch. 233, § 20
(2002), applied in federal proceedings through Fed. R. Evid.
501, defense counsel conceded at oral arguments that they had not
made timely objections. Because of their hearsay nature,
however, we do not consider the spousal conversations here as

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protective custody for her husband.

On the day of the assault, Burrell had received a warning

from another inmate that Willie Brown, a friend of Allen's, thought
Burrell was providing information against him, and that Burrell

should stay away from Allen. After lunch that day, Burrell was

sitting in his cell with his shoes off. Allen came to Burrell's
cell and said, "Burrell, I want to talk to you." Despite the

earlier warning, Burrell "took it sort of as a peace offering," put

his shoes on, and followed Allen back to his cell. Burrell

explains this lapse of judgment by saying he thought he was on his

own, the jail officials would do nothing to help him, and he had to

try to work things out with Allen. Even though he saw Willie

Brown waiting outside Allen's cell and wondered, "Why is he here?
He doesn't ever come up here," Burrell still entered the cell. As

Burrell entered the room, someone threw hot water in his face,

blinding him. According to Burrell, he was hit from behind,
collapsed onto the floor, and then Allen beat him repeatedly with

a black stick and the bed frame.

Another inmate brought a correction officer to Allen's
cell, ending the beating. Burrell was found with a "significant

amount of swelling, redness and blood" on his face. Allen's floor
was soaked with Burrell's blood, and Burrell's blood was on Allen's
sheets and clothing. After receiving initial medical care from

evidence of whether Burrell sought protective custody. See
Garside v. Osco Drug, Inc., 895 F.2d 46, 49-50 (1st Cir. 1990)
(hearsay evidence inadmissible at trial cannot be considered on a
motion for summary judgment).

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nurses at the Hampshire Jail, Burrell was taken to Cooley Dickinson

Hospital for treatment. We are told that Burrell suffered a broken

nose and orbital bone, and a concussion.
II. Analysis

Burrell brings suit against Godek, Thomas, Seaver, Garvey

and Martinez in both their individual and official capacities for
deliberate indifference to a risk to his health and safety.4 We

evaluate his claims against the defendants in their individual

capacities only. A damages suit against an official in an official

capacity is tantamount to a suit against the entity of which the

official is an agent (the jail), and there is no claim here that

the entity followed a policy or custom of deliberate indifference.

Hafer v. Melo, 502 U.S. 21, 25 (1991); Kentucky v. Graham, 473 U.S.

159, 165-66 (1985). Burrell also brings suit against Garvey and

Hampshire County based on a failure to supervise, and on the

Hampshire Jail's policy of not classifying and segregating inmates
according to whether they were accused of violent or nonviolent

offenses. We discuss individual and municipal liability

separately.

4
It is doubtful whether there is enough evidence of
involvement against Garvey to survive summary judgment. Burrell
claims to have notified Garvey of problems with Allen in a letter
which is not before this court. While we make all inferences in
Burrell's favor, Burrell's testimony as to the letter would be
prohibited under the best evidence rule. Burrell produces no
other evidence that he spoke to or otherwise notified Garvey of
the risk posed by Allen. Regardless, for the sake of argument,
we consider Burrell's claim against Garvey in his individual
capacity together with his claims against Godek, Martinez, Seaver
and Thomas, each of whom, Burrell says, discussed the situation
in Cell Block A with him personally.

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A. Deliberate Indifference

Pretrial detainees are protected under the Fourteenth

Amendment Due Process Clause rather than the Eighth Amendment;
however, the standard to be applied is the same as that used in

Eighth Amendment cases. See Bell v. Wolfish, 441 U.S. 520, 545

(1979) (the Due Process Clause protections are at least as great as
those under the Eighth Amendment); 1 M.B. Mushlin, Rights of

Prisoners §2.02 (2d ed. Supp. 2001) (same). An alleged Eighth

Amendment violation is analyzed according to the framework laid out

in Farmer v. Brennan, 511 U.S. 825 (1994), as further explicated in

Giroux v. Somerset County, 178 F.3d 28 (1st Cir. 1999), and

Calderón-Ortiz v. Laboy-Alvarado, 300 F.3d 60 (1st Cir. 2002).

Prison officials have a responsibility not to be
deliberately indifferent to the risk to prisoners of violence at

the hands of other prisoners. Farmer, 511 U.S. at 833 ("Having

incarcerated persons with demonstrated proclivities for antisocial,
criminal, and often violent, conduct, having stripped them of

virtually every means of self-protection and foreclosed their
access to outside aid, the government and its officials are not

free to let the state of nature take its course.") (internal

quotations omitted).

Not every injury suffered by a prisoner at the hands of

another results in constitutional liability on the part of prison

officials. Id. at 834. In Farmer, the Court established that only

"deliberate indifference" by prison officials to an inmate's health

or safety was sufficient to establish liability. The Farmer test

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for Eighth Amendment violations initially establishes two tests.

First, the deprivation alleged must be, objectively, sufficiently

serious. Id. For a claim based on failure to prevent harm, the
plaintiff must demonstrate he was incarcerated under conditions

imposing a substantial risk of serious harm. Id. Second, the

plaintiff must show that prison officials possessed a sufficiently
culpable state of mind, namely one of "deliberate indifference" to

an inmate's health or safety. Id. That state of mind is more

blameworthy than negligence. Id. at 835.5 The second prong of the

Farmer test has subparts in turn.

The "deliberate" part of "deliberate indifference" was

defined by the Supreme Court as requiring that a prison official

subjectively "must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and

he must also draw the inference." Id. at 837. As said in Giroux,

"[t]his standard, requiring an actual, subjective appreciation of
risk, has been likened to the standard for determining criminal

recklessness." 178 F.3d at 32. Within that subjective framework,
a factfinder may conclude that a prison official knew of a

substantial risk from the very fact that the risk was obvious. Id.

In response, prison officials may show that even if the risks were

obvious to others, it was not obvious to them.

The "indifference" part was also defined by the Supreme

Court. Prison officials cannot be indifferent, of course, if they

5
This case does not involve accusations that the prison
officials themselves used excessive force. A different standard
is used in these situations. Farmer, 511 U.S. at 835.

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are unaware of the risk. But even if they are aware, they cannot

be deliberately indifferent if they responded reasonably to the

risk, even if the harm ultimately was not avoided. Farmer, 511
U.S. at 844. Conceivably, a response that was colorable and taken

in good faith might still be enough to negate deliberate

indifference even if it were inadequate from an objective
standpoint (and thus negligent); but we need not pursue this issue

since a reasonable response clearly defeats the claim of

constitutional violation.

Our holding rests on the "indifference" part of the

second prong of the Farmer test -- we hold that the officials

responded reasonably to a known risk and so were not indifferent.

Given the totality of the circumstances as understood by prison
officials at the time, the defendants did not fail to take

reasonable measures to avert potential harm. Even evaluating the

record in the light most favorable to Burrell, the prison
officials' behavior was not unreasonable when considered within the

context of what they knew. Any inquiry into the reasonableness of

the prison officials' actions "incorporates due regard for prison

officials' unenviable task of keeping dangerous men in safe custody

under humane conditions." Id. at 845 (internal quotations omitted).

The focus is on what the jailers knew and what they did in

response.

Burrell's assertions that he communicated to the

defendants that there would likely be a fight and that there would

be blood are taken as true. His concerns, though, were not the

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only information the jail officials had. In addition, prison

officials also received information from both Burrell and his wife

which counteracted Burrell's expressed concerns and which
influenced the officials' response to the risks. Burrell

represented himself to officials as proficient in martial arts and

as a decorated war hero. Prison officials reasonably could have
believed that if tension between Burrell and Allen erupted, Burrell

would not be defenseless. Indeed, Thomas said that this

information led him to fear that Burrell might harm other inmates.

Burrell also had never requested protective custody. He says his

reasons were that he thought protective custody entailed moving the

aggressor, in other words, Allen, out of the cell block. This is

self-contradictory. Burrell both says that he did not seek
protective custody and that he asked that Allen be moved. The

focus is on what the corrections officers knew and whether they

were deliberately indifferent. There is no evidence that they knew

of Burrell's unique definition of protective custody. Deborah

Burrell, meanwhile, went to prison officials to discuss the problem
of Allen's music-playing and to request Allen's transfer. She did
not seek either protective custody or a transfer for her husband.

That she did not do so was something the jail officials could take
into account, given her advocacy for him on lesser issues.
Prison officials also had to weigh Burrell's complaints

against several significant lacunae. Allen, to their knowledge,
had no motive to attack Burrell. Burrell was neither a rival gang

member nor an informant. There was also no history of significant

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altercations between Burrell and Allen over the four months they

had been blockmates. Moreover, while Allen did have a history of

assaults on other inmates, it had been nearly nine months since
Allen had been disciplined for violent behavior.

The officials also knew that Burrell, his asserted

martial arts prowess aside, could go into his cell and lock the
door if he felt threatened by Allen. There was no basis for them

to predict Burrell would walk into the lion's den and be mauled.

The claimed failure here was that the prison officials neither

transferred Allen nor put Burrell into the protective custody he

never sought. Under the totality of circumstances known to the

prison officials, no jury could reasonably find that the officials

had responded unreasonably.
Giroux and Calderón-Ortiz do not help Burrell. In

Giroux, jail officials inexplicably introduced a person posing a

known danger, another inmate who had repeatedly threatened Giroux,
into the holding cell where Giroux was being kept. They did so

after taking actions which they appear to have known would tar
Giroux as an informant and thereby increase the risk to him.

Giroux, 178 F.3d at 29-30. Calderón-Ortiz, meanwhile, was

evaluated under the more lenient standard for dismissal of claims

under Rule 12(b)(6), not as a summary judgment issue. 300 F.3d at

62. In Calderón-Ortiz, moreover, prison officials failed to make

their regular patrols of the housing areas, allowing a violent

attack to go on for between half an hour and an hour. Id. at 63.

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 Summary judgment was appropriately entered on the claims

that jail employees Godek, Thomas, Seaver, Garvey and Martinez were

deliberately indifferent.
B. Claims Against Sheriff Garvey and Hampshire County

Burrell originally claimed that Sheriff Garvey was liable

for both a failure to supervise and for inadequate training. He
later dropped the claim of inadequate training, conceding that

there was no basis for this claim. Burrell's failure to supervise

claim against Garvey is doomed by his inability to establish that

prison officials under Garvey's supervision violated his Eighth
Amendment rights. The causal chain is broken. Nieves v.

McSweeney, 241 F.3d 46, 50 (1st Cir. 2001); Evans v. Avery, 100
F.3d 1033, 1039 (1st Cir. 1996); Willhauck v. Halpin, 953 F.2d 689,

714 (1st Cir. 1991).

Burrell also claims municipal liability on the part of
Hampshire County for having an unconstitutional custom or policy of
failing to classify and segregate inmates. Municipal liability may

be imposed under § 1983 when the enforcement of a municipal policy
or custom was the moving force of a violation of federally
protected rights. Bd. of the County Comm'rs v. Brown, 520 U.S.

397, 404 (1997). A policy may be facially constitutional, but
municipalities will still be liable if the policy can be shown to
produce constitutional violations. City of Canton v. Harris, 489

U.S. 378, 385-87 (1989). To establish liability, we look at
whether there was a "direct causal link" between the policy and the

violation, id. at 385, or if the policy "actually caused" the

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violation, id. at 391; see also Fletcher v. Town of Clinton, 196

F.3d 41, 55 (1st Cir. 1999) ("direct causal link").

The district court correctly held that the Hampshire
Jail's policy of not screening and then segregating potentially

violent prisoners from non-violent prisoners is not itself a facial

violation of the Eighth Amendment. Burrell v. Hampshire County,

No. Civ.A. 99-30269-MAP, 2002 WL 596210, at *6 (D. Mass. Apr. 10,

2002). Of course, as Calderón-Ortiz acknowledges, lack of a

classification system may be part of an Eighth Amendment violation.

300 F.3d at 65-66. Burrell argues that Janes v. Hernandez, 215

F.3d 541 (5th Cir. 2000), should be persuasive in identifying lack

of a classification system as an Eighth Amendment violation. But

the differences between the situations at issue here and in Janes,
where a traffic offender was confined in a single large cell with

a number of known violent offenders, id. at 542, lead to precisely

the opposite conclusion. The Hampshire Jail policy, in which
inmates were housed in individual cells that they were able to lock

from inside at any time, simply does not pose the level of danger
described in Janes.

Nor was the policy the "actual cause" of Burrell's

injury. As a factual matter, Burrell's cell could be locked from

the inside, and he could have requested protective custody or

transfer to another cell block. Burrell, 2002 WL 596210, at *6.

Moreover, Burrell does not present evidence from which a jury could

conclude that the Hampshire Jail's policy poses a substantial risk

of harm to inmates. Burrell did not present evidence of a pattern

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of harm to inmates going beyond his own assault.

Summary judgment was appropriately entered for defendants

Garvey and Hampshire County.
For these reasons, the order of the district court

granting summary judgment is affirmed.

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