ROBERT W. LOVEGREEN, United States Magistrate Judge
Introduction
On November 23, 1999, Plaintiff ("Pona"), an inmate at the Rhode Island Adult Correctional Institution's ("ACI") Maximum Security Unit, filed a four count, third amended complaint against defendant Vose, Director of the Rhode Island Department of Corrections ("DOC"), and seven correctional officers. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 1367. Counts One and Two allege violations of Pona's civil rights pursuant to 42 U.S.C. § 1983. Count Three alleges that "[o]n July 31, 1996, defendants Stroum and Tonge committed an assault and battery on the plaintiff. . . ." Third Amended Compl. ¶ 30. Count Four alleges that "[o]n September 24, 1996, defendants Rapson, Saritelli, Aceto, Spaziano and Shinn committed an assault and battery on the plaintiff. . . ." Id. ¶ 32. Defendant Vose is sued based on supervisory liability. Defendant Vose has moved for summary judgment pursuant to Fed.R.Civ.P. 56(b). The District Court has referred this matter for preliminary review, findings, and recommended disposition.See 28 U.S.C. § 636(b)(1)(B); Local Rule 32(c). Based upon my review of the legal memoranda, oral argument, and my independent research, I recommend that the District Court deny defendant Vose's summary judgment motion as to his alleged supervisory liability over defendants Saritelli, Rapson, Shinn, and Stroum, but grant defendant Vose's summary judgment motion as to his alleged supervisory liability over defendants Tonge, Spaziano, and Aceto.
The record is not clear as to whether Pona is currently incarcerated.
Pona filed his first complaint in this matter on December 31, 1997. He then filed a second amended complaint on August 31, 1999.
The seven correctional officers include: Kenneth Saritelli, Stephen Aceto, Bryon Tonge, Robert Rapson, Barry Stroum, Ernest Spaziano, and William Shinn. Defendant Vose recently resigned as Director of the Rhode Island DOC.
28 U.S.C. § 1331 states: "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."
28 U.S.C. § 1367 (a) states:
(a) Except as provided in subsection (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.
42 U.S.C. § 1983 states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
Fed.R.Civ.P. 56(b) states: "A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavit for a summary judgment in the party's favor as to all or any part thereof."
Background
A. Souza Incident — February 23, 1996
On or about February 23, 1996, Jesse Souza ("Souza"), an inmate at the ACI, was beaten and injured while being committed to the segregation wing of the ACI Maximum Security Unit. On February 28, 1996, the case was referred to the Internal Affairs Unit ("IA") of the DOC. Aaron Aldrich, then Inspector in the IA, investigated these allegations. On February 28, 1996, DOC transferred Souza to High Security to remove him from danger.
Mr. Aldrich is currently the Chief Inspector of the IA.
According to Inspector Aldrich, Souza was initially uncooperative, refusing to name his assailants and stating that he fell out of bed. Defendant Vose claims that Aldrich told him that Souza had unexplained injuries. Defendant Vose then directed Aldrich to "get to the bottom of it and determine what — what had occurred." Def. Ex. A Deposition of George Vose at 28 (July 20, 1999). Since the DOC did not know whether the alleged assailants were correctional officers or inmates, both Special Investigative Unit ("SIU") Chief Investigator Boyd and Inspector Aldrich jointly conducted the preliminary investigation.
On March 4, 1996, Souza named defendants Saritelli and Shinn as the assailants. On that same day, Inspector Aldrich briefed defendant Vose regarding the status of the investigation. Defendant Vose, Inspector Aldrich, SIU Chief Investigator Boyd, and Detective Herman Snead of the Rhode Island State Police ("RISP") attended the briefing. Defendant Vose requested assistance from the RISP in investigating the beating of Jesse Souza. Inspector Aldrich recommended that the investigation focus on defendants Saritelli, Shinn, and Rapson. See Affidavit of Aaron Aldrich ¶ 8. According to Inspector Aldrich, defendant Vose instructed Chief Investigator Boyd and Inspector Aldrich not to continue the DOC investigation of the Souza case once DOC referred the case to RISP "because of the risk of compromising the RISP case." Id. ¶ 9. The RISP criminal investigation officially commenced on March 4, 1996.
Defendant Vose receives a final report on every investigation that the IA Unit opens.
Defendant Vose also alleges that from March 4, 1996 through October 28, 1996, the RISP did not disclose any evidence or information to Aldrich, defendant Vose, or any other DOC employee. Inspector Aldrich did inform defendant Vose about rumors that defendant Stroum was involved in the Souza incident.Id. ¶ 13. Inspector Aldrich also reported this rumor to the RISP for their investigation.
According to Inspector Aldrich, his conversations with RISP detectives were limited to:
(1) handing over what evidence we had, including photos, Correctional Officers' reports, and lab reports, (2) responding to their requests for assistance in determining the work schedules for potential interviewees, (3) making the interviewees available to the RISP for questioning, and (4) being advised by them of the Grand Jury dates.
Aaron Aldrich Affidavit ¶ 10.
On June 4, 1996, Aldrich wrote a report summarizing the chronology of the DOC investigation of the Souza incident. On June 5, 1996, Aldrich sent defendant Vose that report. Defendant Vose reviewed the report and instructed Aldrich to "[h]old any further action until RISP complete their investigation. Case to remain open." Def. Ex. A Deposition of George Vose at 34 (July 20, 1999).
On June 21, 1996, the RISP submitted their investigation to the Attorney General's Office Grand Jury Unit. The prosecution submitted the case to the Grand Jury on October 15 and 16, 1996. On October 28, 1996, the Grand Jury returned secret indictments for defendants Rapson, Shinn, and Saritelli and arrest warrants were issued. On the same day, Rapson, Shinn, and Saritelli were arraigned.
Defendant Vose did not suspend, reassign, or discipline Rapson, Shinn, or Saritelli until October 28, 1996, when the three were placed on paid administrative leave. On December 6, 1996, Rapson, Shinn, and Saritelli received notice of a disciplinary hearing alleging conduct unbecoming an officer. This termination hearing took place on February 24, 1997 and all three officers were discharged after hearing on June 14, 1997.
B. Pona Incident — July 31, 1996
Meanwhile, after the RISP investigation had ceased, but before the prosecution submitted its case to the Grand Jury, two other incidents allegedly occurred. In July of 1996, Pona was "booked" for using profane language toward a correctional officer. On or about July 31, 1996, defendant Barry Stroum escorted Pona to a disciplinary hearing relating to the charges of using profane language. Pona alleges that his handcuffs were so tight, causing so much pain, that he dropped some legal papers he was carrying. See Pl. Ex. 3 Deposition of Darrell Pona at 53 (March 12, 1999). Pona further alleges that defendant Stroum forced him to return to the segregation wing when Pona attempted to retrieve his legal papers. See id. at 54. According to Pona, upon their arrival back at the segregation wing, they met defendant Tonge.See Third Amended Compl. ¶ 8. Pona then alleges that defendants Stroum and Tonge, without warning or provocation, beat him, causing serious injuries, including lacerations to his right eye. See id. ¶ 9.
Defendant Stroum is a former professional boxer.
C. Pona Incident — September 24, 1996
On September 24, 1996, Pona was involved in a second altercation with DOC officers. The DOC ordered Pona to segregation for an alleged disciplinary violation. Pona alleges that while being escorted to the segregation wing, without warning or provocation, defendants Rapson, Saritelli, Aceto, Spaziano, and Shinn beat him. This beating also allegedly caused serious injury, this time lacerations to his left eye. According to Pona, during the beating, one of the defendants asked, "Are you the one who beat up that old lady?" Third Amended Compl. ¶ 11.
At this time, Pona had a nephew, also named Darrell Pona ("the younger Pona"), who had been charged with the murder of an elderly woman in Providence. The younger Pona was also being held within the ACI.
D. Fallout of the Souza Incident
As a result of the RISP investigation into the Souza beating, in October of 1996, defendants Shinn and Saritelli were indicted in the Superior Court of Providence County on charges of assaulting Souza. Also in October of 1996, defendant Rapson was indicted in the Superior Court of Providence County for perjury regarding the Souza investigation.
In March of 1999, a petit jury convicted defendant Shinn of conspiracy to commit an assault with a dangerous weapon and misdemeanor assault. See Third Amended Compl. ¶ 19. The jury also convicted defendant Saritelli of felony assault with a dangerous weapon. See id. The record is not clear regarding the status of the criminal charges against defendant Rapson.
E. Pona's and Vose's Positions
1. Alleged Supervisory Liability Over Defendant Stroum
Pona asserts that Vose should have known that defendant Stroum posed a substantial risk of serious harm to inmates at the ACI because on three occasions prior to July 31, 1996, he was investigated by the DOC for assaulting inmates. First, on January 19, 1993, inmate William Antone complained of an assault by defendant Stroum. Pl. Ex. 4 Defendants' Response to Plaintiff's Fourth Supplemental Request for Production of Documents at 5 (September 9, 1999). Antone alleged that defendant Stroum was verbally abusive to him, and when Antone protested, defendant Stroum punched him and nearly pushed him over a tier rail inside maximum security. Defendant Stroum denied assaulting Antone and claimed that Antone instigated the altercation. Defendant Stroum did, however, admit to fending off Antone by striking him "under the jaw once with his right fist." Id. at 5. Although defendant Vose knew of this incident, no disciplinary action was taken against Stroum. Defendant Vose argues that no disciplinary action was taken against Stroum because the DOC investigation concluded that "[t]he allegations by Inmate Antone are without merit. There is insufficient cause to go forth in this matter, but rather, disclose that C.O. Stroum was the actual victim." Id. at 9.
Second, on April 19, 1993, inmate Robert Nealy alleged that defendant Stroum assaulted him. According to the inspector's investigation, "[w]hen considering the totality of circumstances, Inmate Nealy's allegations cannot be supported." Id. at 14. In fact, the inspector recommended that the RISP review the matter to determine whether criminal charges should be brought against inmate Nealy. Id.
Third, on January 21, 1994, inmate Adrain Brown alleged that defendant Stroum "pushed him from behind. . . ." Id. at 4. According to the inspector's investigation, he could find "nothing that substantiates inmate Browns allegation in the slightest way that he was in fact assaulted by anyone." Id.
In addition, Pona contends that defendant Vose should have known that Stroum posed a substantial risk of serious harm to inmates because of the rumors that Stroum had been involved in the February 1996 assault on Souza. The DOC did not investigate Stroum's alleged involvement in the Souza incident. In short, Pona maintains that a reasonable jury could infer that defendant Vose permitted Stroum to remain on the job despite his knowledge of a substantial risk that Stroum would assault additional inmates.
The RISP interviewed Stroum. During the interview, Stroum admitted that he once jokingly claimed to have assaulted an inmate (presumably Jesse Souza), but denied having actually committed the assault. However, the interview took place on March 17, 1999, shortly before the criminal trial of Shinn and Saritelli.
Defendant Vose retorts that he had no reason to suspect defendant Stroum was a danger or threat to inmates because defendant Stroum had no disciplinary record for excessive force or mistreatment of an inmate before the alleged July 31, 1996 incident with Pona. Furthermore, defendant Vose argues that the investigations of the three aforementioned incidents between Stroum and inmates at the ACI concluded that defendant Stroum did not commit assault or use excessive force.
2. Alleged Supervisory Liability Over Defendants Rapson, Shinn, and Saritelli
Pona argues that a reasonable jury could find that by contacting the RISP and asking them to investigate the Souza allegations, defendant Vose had actual notice that Rapson, Shinn, and Saritelli presented a substantial risk of harm to other inmates. For example, defendant Vose testified in his deposition that he does not refer "every allegation made by an inmate to the Rhode Island State Police." Def. Ex. A Deposition of George Vose at 39 (July 20, 1999). Pona argues that a jury can reasonably infer that since defendant Vose did refer the Souza case to the RISP, he considered it more serious or credible. Id. (stating "We wouldn't have referred it to the state police unless we thought there was the like — there was a possibility that they may be true"). In addition, Pona asserts that a reasonable jury could find that defendant Vose's failure to take action to remove the officers from their posts within maximum security presented a substantial risk of harm to other inmates. Pona can demonstrate that defendant Vose failed to review his decision not to suspend, transfer, or discipline Rapson, Shinn, and Saritelli. In short, Pona's main contention is that the arbiter of what is reasonable is not defendant Vose or this Court, but a jury.
Defendant Vose responds with six arguments. First, defendants Rapson, Shinn, and Saritelli were not disciplined for using excessive force or mistreatment of an inmate between February 23, 1996 and October 28, 1996. See Affidavit of George Truman, Jr. ¶¶ 6, 7, 8. Second, defendant Vose maintains that no one but the RISP had access to the investigation files and materials during the Souza investigation up to and including the date of the Grand Jury indictment. Furthermore, defendant Vose states that he was not privy to the daily occurrences of the RISP investigation. Third, defendant Vose had no control or authority over the Souza criminal investigation. Fourth, defendant Vose contends that he did not have sufficient facts to suspend Rapson, Shinn, and Saritelli. Fifth, defendant Vose stated that he did not want to interfere with or compromise the RISP investigation by suspending or transferring the three correctional officers under investigation. Sixth, once the Grand Jury returned the secret indictment, defendant Vose acted immediately. He placed Rapson, Shinn, and Saritelli on paid administrative leave and initiated discipline proceedings. In short, defendant Vose asserts that he acted reasonably.
The Collective Bargaining Agreement between the DOC and the correctional officers union requires the DOC to conduct an administrative hearing with certain due process protections if an officer is relieved of his duties. The DOG must also present evidence justifying any transfer. Defendant Vose claims that this administrative hearing would have interfered with RISP's secret criminal investigation.
3. Alleged Supervisory Liability Over Defendants Tonge, Aceto, and Spaziano
Defendant Vose argues that he had no reason to suspend or transfer Tonge because Tonge had no disciplinary record for excessive force or mistreatment of an inmate before the alleged July 31, 1996 incident with Pona. See Affidavit of George Truman, Jr. ¶ 11. Furthermore, defendants Aceto and Spaziano also had no disciplinary record for excessive force or mistreatment of an inmate before the alleged September 24, 1996 incident with Pona.See id. ¶¶ 12 13. Pona has produced no evidence that defendant Vose had or should have had notice that defendant Tonge, Aceto, and Spaziano were a danger to inmates at the ACI.
4. Defendant Vose's Authority to Suspend or Transfer Correctional Officers
Defendant Vose has the authority to suspend correctional officers, but not to reassign them. See Def. Ex. A Deposition of George Vose at 26-27, 75 (July 20, 1999). Defendant Vose also has the authority to transfer a limited number of correctional officers each year. Id. at 72. Pona claims that defendant Vose failed to exercise his authority. Defendant Vose argues that he acted reasonably given the "hobson's choice" he faced: either transfer or suspend Rapson, Shinn, and Saritelli, on "insufficient facts," forcing an administrative hearing with extensive discovery, or wait until the criminal investigation was over, allowing for the possibility that Rapson, Shinn, and Saritelli, if guilty, would hurt someone else.
Defendant Vose testified at his deposition that "Section 10.16 of the collective bargaining agreement does allow for, I think, six transfers a year for inmate-to-staff conflict. I believe something along those lines. Six times per year or six times during the course of the contract but, otherwise, other than that provision, it certainly limits my ability to — to transfer employees for whatever reason." Def. Ex. A George Vose Deposition at 72 (July 20, 1999).
A hobson's choice is defined as "apparent freedom of choice with no real alternative." American Heritage Dictionary 626 (New College Edition 1976).
Issues
(1) Whether a factfinder must determine whether defendant Vose acted with deliberate indifference under the Eighth Amendment standard?
(2) Whether Pona has provided sufficient evidence to establish a prima facie case against defendant Vose for supervisory liability?
(3) Whether Pona's right to have a safe environment in prison was clearly established at the time of his alleged altercation with the defendants?
Discussion
I. Summary Judgment Standard
A court shall grant summary judgment only when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56 (c). The purpose of summary judgment "is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Fed.R.Civ.P. 56(c) 1963 Amendment advisory committee's note. The Court must view all the evidence in the light most favorable to the nonmoving party and view all reasonable inferences in that party's favor. See United States v. One Parcel of Real Property, 960 F.2d 200, 204 (1st Cir. 1992). ". . . when the facts support plausible but conflicting inferences on a pivotal issue in the case, the judge may not choose between those inferences at the summary judgment stage."Coyne v. Taber Partners I, 53 F.3d 454, 460 (1st Cir. 1995) (citations omitted). Moreover, "[s]ummary judgment is not appropriate merely because the facts offered by the moving party seem more plausible, or because the opponent is unlikely to prevail at trial." Gannon v. Narragansett Elec. Co., 777 F. Supp. 167, 169 (D.R.I. 1991) (citations omitted).
The party seeking summary judgment must demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once a party seeking summary judgment has presented evidence that a nonmoving party cannot meet their prima facie case, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253 (1968)).
Furthermore, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50 (stating that "there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party") (citations omitted). The Supreme Court held that "the mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Id. at 252; see also Matsushita Electric Industrial Co. v. Zenith Radio Corp. et al., 475 U.S. 574, 586 (1986) (stating that a nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts"). In short, the Supreme Court construes Rule 56
not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the
claims and defenses have no factual basis.
Celotex Corp. v. Catrett, 477 U.S. at 327 (emphasis added).
The First Circuit has followed the Supreme Court's rulings, holding that "evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve at an ensuing trial." Mack v. Great Atlantic and Pacific Tea Co., Inc., 871 F.2d 179, 181 (1st Cir. 1989); see also National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995) (". . . we need not credit purely conclusory allegations, indulge in rank speculation, or draw improbable inferences.").
II. Eighth Amendment
A. Supervisory Liability
A superior officer cannot be held vicariously liable under 42 U.S.C. § 1983 on a respondeat superior theory. See Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994) (citations omitted); Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 91-2 (1st Cir. 1994) (citations omitted). A finder of fact may, however, find a superior officer liable under § 1983 on the basis of his own acts or omissions. See Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d at 581-82 (citations omitted);Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d at 91-2 (citations omitted). To establish supervisory liability, the plaintiff must (1) show that the defendant acted with deliberate indifference, and (2) "affirmatively connect the supervisor's conduct to the subordinate's violative act or omission." Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d at 582. An example of the necessary causal nexus is "[w]hen the supervisor is on notice and fails to take corrective action . . . by better training or closer oversight. . . ." Id. Proof of mere negligence, without more, is inadequate to establish supervisory liability. Id.
B. Deliberate Indifference Under the Eighth Amendment
Prison officials have a duty to "provide humane conditions of confinement; . . . ensure that inmates receive adequate food, clothing, shelter, and medical care, and . . . `take reasonable measures to guarantee the safety of the inmates.'" Giroux v. Somerset County, 178 F.3d 28, 31 (1st Cir. 1999); see also Cortes-Quinones v. Jimenez-Nettleship et al., 842 F.2d 556, 558 (1st Cir. 1988) ("When prison officials intentionally place prisoners in dangerous surroundings, when they intentionally ignore prisoners' serious medical needs, or when they are "deliberately indifferent" either to prisoners' health or safety, they violate the Constitution.").
In Giroux, an inmate requested protective custody because of repeated threats from other inmates. The prison placed Giroux on cell feed status as a protective measure. Giroux was later left alone in a room with another inmate, and was physically attacked by him. The First Circuit held that a reasonable juror could find the correctional officer or sergeant acted with deliberate indifference to a known risk.
A prisoner must establish two requirements to state a violation of the Eighth Amendment. "First, the alleged deprivation of adequate conditions must be objectively serious, i.e., `the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.'" Id. at 32 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). "Second, the official involved must have had `a sufficiently culpable state of mind described as deliberate indifference to inmate health or safety.'" Giroux v. Somerset County, 178 F.3d at 32 (internal citations omitted). Deliberate indifference means that "a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety." Farmer v. Brennan, 511 U.S. at 837; see also Cortes-Quinones v. Jimenez-Nettleship et al., 842 F.2d at 558 ("the term encompasses acts or omissions so dangerous (in respect to health or safety) that a defendant's `knowledge of [a large] . . . risk can be inferred.'") (citations omitted). In short, "[t]he question under the Eighth Amendment is whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial `risk of serious damage to his future health. . . .'" Id. at 843.
The Supreme Court stated that "[w]hether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Id. at 842. (emphasis added). "Even if prison officials know of a substantial risk to inmate health or safety but fail to prevent the harm, they `may be found free from liability if they respond reasonably to the risk.'" Id. at 844. "Prison officials who act reasonably cannot be found liable" under the Eighth Amendment. Id. at 845. A factfinder would have to determine whether the prison official responded reasonably to the risk.
C. Application
1. Defendant Stroum
Applying the aforementioned deliberate indifference standard, a reasonable jury could find that defendant Vose disregarded an excessive risk to the ACI's inmates' health and safety by not transferring or suspending defendant Stroum prior to July 31, 1996, when he allegedly assaulted Pona. Pona can demonstrate that defendant Vose knew of defendant Stroum's altercations with inmates at the ACI. Defendant Vose can respond that investigations into these incidents concluded that defendant Stroum did nothing wrong. A jury must determine whether such evidence establishes that defendant Vose maintained the "requisite knowledge of a substantial risk." Whether Pona is likely to prevail at trial on these facts is not a concern of this Court. See Gannon v. Narragansett Elec. Co., 777 F. Supp. at 169. Both parties have provided evidence establishing a question of fact for the jury. Consequently, this Court recommends denying defendant Vose's motion for summary judgment regarding his alleged supervisory liability over defendant Stroum's conduct.
2. Defendants Rapson, Shinn, and Saritelli
Furthermore, a reasonable jury could find defendant Vose liable for violating Pona's Eighth Amendment rights by not suspending or transferring defendants Rapson, Shinn, and Saritelli after the Souza incident and prior to September 24, 1996. For example, Pona can demonstrate that defendant Vose believed the Souza charges against the three defendants were serious because he asked the RISP to conduct a criminal investigation. Moreover, Pona can demonstrate that defendant Vose failed to review his decision not to suspend, transfer, or discipline defendants Rapson, Shinn, and Saritelli. For summary judgment purposes, it is irrelevant that defendant Vose thought he was trapped in a hobson's choice. A jury, not defendant Vose or this Court, must determine whether the path defendant Vose chose was a reasonable one. Therefore, this Court recommends that the District Court deny defendant Vose's motion for summary judgment regarding his alleged supervisory liability over defendants Rapson, Shinn, and Saritelli.
3. Defendants Tonge, Aceto, and Spaziano
On the other hand, Pona has produced no evidence that defendant Vose had any reason to suspend or transfer defendant Tonge prior to July 31, 1996 or defendants Aceto and Spaziano prior to September 24, 1996. As mentioned earlier, the nonmoving party in a summary judgment motion "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248 (citations omitted). Pona has failed to provide any facts, let alone specific ones, demonstrating that defendant Vose knew of any reason to suspend or transfer defendants Tonge, Aceto, and Spaziano. Consequently, this Court recommends that the District Court grant defendant Vose's motion for summary judgment regarding defendant Vose's alleged supervisory liability over defendants Tonge, Aceto, and Spaziano.
III. Qualified Immunity
A. Standard
Government officials who perform discretionary functions maintain qualified immunity, "shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 638-39 (1987) (citations omitted). "[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the `objective legal reasonableness' of the action." Id. at 639 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). This inquiry is "assessed in light of the legal rules that were `clearly established' at the time" the action was taken. Anderson v. Creighton, 483 U.S. at 639. The contours of a clearly established right "must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. at 640.
The First Circuit uses a two part test to analyze qualified immunity defenses. First, a court "must ascertain whether the plaintiff has alleged, with the requisite particularity, that a state actor violated some right emanating from federal law."Buenrostro v. Collazo, 973 F.2d 39, 42 (1st Cir. 1992) (citations omitted). Second, a court must "ascertain whether the right at issue was `clearly established' at the time of infringement." Id. (citations omitted). "If it was, an inquiring court can then presume that the defendant knew, or should have known, that his conduct was beyond the pale." Id. (citing Harlow v. Fitzgerald, 457 U.S. at 818-819; Amsden v. Moran, 904 F.2d 748, 752 (1st Cir. 1990)).
The qualified immunity standard "`gives ample room for mistaken judgments' by protecting `all but the plainly incompetent or those who knowingly violate the law.'" Hunter v. Bryant, 502 U.S. 224, 229 (1991). The Supreme Court has reasoned that "officials should not err always on the side of caution" because they fear being sued. Id. (quoting Davis v. Scherer, 468 U.S. 183, 196 (1984)). In short, qualified immunity "offers sanctuary not only to government officials who act with impeccable propriety, but also to those who err but could not reasonably have understood that their actions infracted a prospective plaintiff's federally assured rights." de Quintero v. Aponte-Roque, 974 F.2d 226, 228 (1st Cir. 1992) (citations omitted).
The Supreme Court has interpreted qualified immunity as "immunity from suit rather than a mere defense to liability."Hunter v. Bryant, 502 U.S. at 227. Consequently, the Court has "stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Id. (citations omitted). "Immunity ordinarily should be decided by the court long before trial." Id. at 228 (citing Mitchell v. Forsyth, 472 U.S. 511, 527-529 (1985)).
B. Application
Applying the aforementioned standard, this Court concludes that defendant Vose does not have qualified immunity. First, Pona has alleged, with the requisite particularity, that defendant Vose violated his Eighth Amendment rights by not providing a safe environment in the ACI. Second, the right to a safe prison environment is well established. See Farmer v. Brennan, 511 U.S. at 832 ("[t]he treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.") (citations omitted); Hudson v. Palmer, 468 U.S. 517, 526-27 (1984) ("[Prison officials] are under an obligation to take reasonable measures to guarantee the safety of the inmates themselves."); Giroux v. Somerset County, 178 F.3d at 31 (Prison officials have a duty to "provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must `take reasonable measures to guarantee the safety of the inmates.'") (citations omitted); Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d at 558 ("When prison officials . . . are `deliberately indifferent' either to prisoners' health or safety, they violate the Constitution"). Consequently, this Court can presume that defendant Vose "knew, or should have known, that his conduct [or omission] was beyond the pale." Buenrostro v. Collazo, 973 F.2d at 42. Defendant Vose does not have qualified immunity for his actions and/or omissions.
Conclusion
For the aforementioned reasons, I recommend that the District Court deny defendant Vose's summary judgment motion as to his alleged supervisory liability over defendants Saritelli. Rapson, Shinn, and Stroum, but grant defendant Vose's summary judgment motion as to his alleged supervisory liability over defendants Tonge, Spaziano, and Aceto. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten (10) days of its receipt. See Rule 32, Local Rules of Court; Fed.R.Civ.P. 72(b). Failure to file specific objections in a timely manner constitutes a waiver of the right to review by the District Court and the right to appeal the District Court's decision. See United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).