UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Shawn Cheever

v. Civil No. 06-cv-351-JM

Sergeant Michael Erdmark, et al.

O R D E R

Plaintiff Shawn Cheever brought this 42 U.S.C. § 1983 action

against defendants claiming they violated his Eighth Amendment

right to be free from cruel and unusual punishment while he was

incarcerated at the New Hampshire State Prison. Defendants move

for summary judgment. Plaintiff objects. Given the many genuine

issues of material fact, the motion (document no. 25) is denied.

Discussion

1. Standard of Review

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the 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.

Case 1:06-cv-00351-JM Document 29 Filed 06/02/09 Page 1 of 5
2

56(c). The record evidence is taken in the light most favorable

to the nonmoving party. See Zambrana-Marrero v. Suarez-Cruz, 172

F.3d 122, 125 (1st Cir. 1999). “[A]n issue is ‘genuine’ if the

evidence presented is such that a reasonable jury could resolve

the issue in favor of the nonmoving party and a ‘material’ fact

is one that might affect the outcome of the suit under governing

law.” Fajardo Shopping Ctr. v. Sun Alliance Ins. Co., 167 F.3d

1, 7 (1st Cir. 1999). Summary judgment will not be granted as

long as a reasonable jury could return a verdict in favor of the

nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986).

The facts must be viewed in the light most favorable to the

non-moving party, construing all reasonable inferences and all

credibility issues in his favor. See id. at 255; see also Suarez

v. Pueblo Int’l, Inc., 229 F.3d49, 53 (1st Cir. 2000). The

burden of showing an absence of any genuine issues of material

fact lies with the moving party. See Navarro v. Pfizer Corp.,

261 F.3d 90, 93-94 (1st Cir. 2001).

2. Genuine Issues of Material Fact

Both defendants’ and plaintiff’s filings demonstrate genuine

issues of material fact. It is the role of the jury at trial,

Case 1:06-cv-00351-JM Document 29 Filed 06/02/09 Page 2 of 5
3

and not a judge at summary judgment, to decide the facts and

assess credibility. The following comparison reflects some of

the important material factual issues:

Plaintiff’s Evidence

1. At SHU defendants cursed

and yelled at plaintiff.

2. Defendants “slammed”

plaintiff’s torso against the

wall.

3. Plaintiff did not resist.

4. The handcuffed (behind his

back) plaintiff was “slammed”

to the ground.

5. Plaintiff was kicked in

the face and head.

6. Plaintiff was punched.

7. Plaintiff’s ankles and

feet were stomped on.

8. Plaintiff was kicked in

the ribs.

9. Plaintiff’s face was

slammed to the floor.

10. Defendants took plaintiff

to SHU where they slammed him 

against the wall chest first

and caused him to hit his

forehead.

Defendants’ Evidence

1. Defendants gave plaintiff

commands.

2. Defendant couldn’t

remember his body moves.

3. Plaintiff wouldn’t obey.

4. A non-compliant plaintiff

was picked up and placed on

the floor on his stomach.

5-9. Plaintiff was held by

his arms and upper back by a

defendant.

10. Plaintiff was lifted from

the floor and taken to the J 

room.

Case 1:06-cv-00351-JM Document 29 Filed 06/02/09 Page 3 of 5
4

11. Thereafter, he was

harassed - his cell was

trashed; his mail was flushed

down the toilet; his soap and

deodorant were smashed; toilet

paper, sheets and blanket

removed; denied shower and

phone; family photos torn up;

and his food thrown on the

floor.

12. Bruised, bleeding and

emotional distress injuries.

11. Plaintiff was out of

control and appropriately

restrained.

12. A de minimus bump.

It is clear that there are many genuine issues of material

fact. If the jury accepts plaintiff’s version of the facts, they

establish both the objective and subjective components of an

Eighth Amendment claim. Slamming people against walls and the

floor and kicking them in the face, back, head and ribs is

objectively sufficiently egregious that it offends evolving

standards of decency in clear violation of the Eighth Amendment’s

prohibition against cruel and unusual punishment. The jury on

these facts can find “an unnecessary and wanton infliction of

pain.” Whitley v. Albers, 475 U.S. 312, 319-20 (1986). 

Additionally, if the jury accepts plaintiff’s story, that rough

treatment, combined with the cursing, swearing and harassing

conduct - if believed - evinces defendants’ deliberate

indifference to plaintiff’s welfare to satisfy the “culpable

Case 1:06-cv-00351-JM Document 29 Filed 06/02/09 Page 4 of 5
5

state of mind” prong of an Eighth Amendment claim. See Guron v.

Corrections Corp. of America, 191 F.3d 1281, 1289 (10th Cir.

1999) (citing Hudson v. McMillan, 503 U.S. 1, 8 (1992)). Under

the circumstances presented on the current record, with

diametrically opposing versions of the events that occurred,

summary judgment cannot be awarded.

3. Qualified Immunity

The qualified immunity defense is raised by defendants in

two brief paragraphs without any factual argument. “The district

court is free to disregard arguments that are not adequately

developed.” Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d

252, 260 (1st Cir. 1999). I adopt the plaintiff’s more developed

arguments in paragraphs 18-21 of his memorandum and decline to

develop defendants’ arguments for the immunity defense claimed.

Conclusion

Defendants’ motion for Summary Judgment (document no. 25) is

denied.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: June 2, 2009

cc: Michael J. Sheehan, Esq.

 James William Kennedy, Esq.

Case 1:06-cv-00351-JM Document 29 Filed 06/02/09 Page 5 of 5