UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Michael De Angelis

v. Civil No. 04-cv-456-SM

Hillsborough County Department

of Corrections, Superintendent et al.

ORDER

Plaintiff Michael De Angelis is a pretrial detainee at the

Hillsborough County Department of Corrections (“HCDOC”). His

complaint in this action was filed on November 29, 2004 alleging,

among other things, excessive use of force and denial of adequate

medical care. On October 25, 2005, the court received an

“Emergency Letter of Help” from the Plaintiff dated October 21,

2005. He made the following allegations in his letter:

I was severely beaten by staff @ 6:18 a.m. on

[10/21/05]. I am marked up pretty bad and have blood

in my urine. They are not giving me any adequate

medical attention for these injuries. I can barely

walk, use the bathroom, eat etc. Please help me sir. 

One of the defendants (Sgt. Todd Gordon) was one of the

one’s who beat me along with other officers (3+). 

Please judge I have injuries (bleeding on the inside). 

They did searches and when they got to my cell they

ripped me off the wall from behind and punched, kicked

and slammed me causing me to pass out more than once. 

I need to get into the court so I can show you my

injuries.

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See Doc. No. 57 (emphasis in original). The court treated

Plaintiff’s letter as a motion for an emergency preliminary

injunction. Chief Judge McAuliffe referred Plaintiff’s motion to

me to conduct all proceedings and enter a final order. 

An evidentiary hearing was scheduled to determine two

issues: (1) whether HCDOC corrections officers used excessive

force against Plaintiff during a cell search on October 21, 2005;

and (2) whether the Plaintiff has received adequate medical

treatment for injuries that resulted from the incident. The

Court directed the Defendants to bring any video of the alleged

event and any medical records relating to the alleged injuries to

the hearing.

At the hearing held on November 7 and 14, 2005, the Court

heard testimony from the Plaintiff, Captain David Dionne,

Sergeant Todd Gordon and Nurse Denise Hartley who is HCDOC’s

Health Services Supervisor and Keeper of Medical Records. In

addition, the Defendants displayed video from the common areas of

the Plaintiff’s housing unit from October 21 through October 29,

2005, and introduced documentary evidence.

Findings of Fact

For the purposes of deciding the instant motion for a

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preliminary injunction only, the Court makes the following

findings of fact:

1. HCDOC corrections officers are trained to use the

minimum amount of physical force necessary to make an inmate

comply if the inmate does not comply with an officer’s verbal

commands.

2. HCDOC corrections officers are trained to use “palm and

heel strikes,” “knee strikes” and the “arm bar” as part of their

efforts to subdue inmates who do not comply with verbal commands.

3. HCDOC corrections officers are trained to avoid hitting

inmates in the head or in their vital organs when officers are

using physical force to subdue an inmate.

4. Plaintiff sustained a substantial bruise on the right

side of his body near his kidney following an incident with

corrections officers that occurred during a search of Plaintiff’s

cell on October 21, 2005.

5. Plaintiff’s bruise, then approximately the size of a

baseball, was still visible on November 7, 2005, the first day of

the evidentiary hearing.

6. Plaintiff’s bruise was consistent with the Defendants’

evidence that Officer Kowalski used knee strikes to subdue the

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Plaintiff because he failed to comply with corrections officers’

commands while Plaintiff was on the floor of his cell.

7. There is no evidence that the strike near Plaintiff’s

kidney was intentional.

8. Video displayed during the hearing contradicted

Plaintiff’s allegation that he was only examined by a nurse for

about one minute after the incident; Nurse Perkins was in the

safety cell with Plaintiff examining him for more than five

minutes after the incident.

9. The evidence showed that Plaintiff was seen frequently

by members of the HCDOC medical staff after the incident.

10. The medical staff prescribed ice packs and over-thecounter pain medication to treat Plaintiff’s injuries.

11. Video displayed during the hearing contradicted

Plaintiff’s allegations that he could barely walk, and that he

could not extend his right arm up or out without extreme pain for

several days after the October 21, 2005 incident.

12. The results of X-rays taken a week after the October

21, 2005 incident were normal.

13 The HCDOC medical staff determined that urine samples

that Plaintiff provided after voiding in his cell on October 27,

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2005 and November 2, 2005 had blood in them. 

14. As of November 14, 2005, Plaintiff had not provided the

medical staff a urine sample in a controlled environment, despite

multiple requests, in order to definitively determine whether

Plaintiff has any serious kidney problem.

Conclusions of Law

A district court may grant a plaintiff’s request for a

preliminary injunction if the plaintiff satisfies a four-part

test: (1) the plaintiff is likely to succeed on the merits; (2)

the plaintiff will suffer irreparable harm if the injunction is

not granted; (3) the injury to the plaintiff outweighs any harm

which granting the injunction would inflict on the defendant; and

(4) the public interest will not be adversely affected by the

granting of the injunction. See Langlois v. Abington Hous.

Auth., 207 F.3d 43, 47 (1st Cir. 2000). A party seeking

injunctive relief must independently satisfy each of the four

factors. See Auburn News Co. v. Providence Journal Co., 659 F.2d

273, 277 (1st Cir. 1981). The Court next considers whether

Plaintiff is entitled to injunctive relief in light of the

applicable law. 

The Due Process Clause of the Fourteenth Amendment to the

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United States Constitution protects a pretrial detainee from use

of excessive force that amounts to punishment. See Graham v.

Connor, 490 U.S. 386, 395 n. 10 (1989) (citing Bell v. Wolfish,

441 U.S. 520, 535-539 (1979)). To state a claim based upon the

use of excessive force, a plaintiff must demonstrate an

“unnecessary and wanton infliction of pain.” Whitley v. Albers,

475 U.S. 312, 319-20 (1986). In this instance, the evidence

showed that corrections officers used physical force to subdue 

Plaintiff because he made a quick move with his elbow towards

Officer Williams, and then, after he was brought down to the

floor, Plaintiff ignored the officers’ commands to stop moving. 

Therefore, the Court does not find that the use of physical force

was unnecessary. While the Plaintiff was struck by an officer

dangerously close to his kidney, there is no evidence that the

location of the officer’s strike was intentional. Therefore, the

Court does not find that the force applied here was malicious. 

Accordingly, the Court finds that the Plaintiff has not met his

burden to demonstrate that corrections officers used excessive

force against him on October 21, 2005.

The Court next considers whether Plaintiff has demonstrated

that he has been denied adequate medical care for the injuries he

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sustained in the October 21, 2005 incident. In order to prove a

viable claim for inadequate medical care, Plaintiff must

demonstrate that he has a serious medical need, and that the

defendants have been deliberately indifferent to that need. See

Sires v. Berman, 834 F.2d 9, 12 (1st Cir. 1987). 

The evidence presented during the hearing showed that the

medical attention that Plaintiff received after the October 21,

2005 incident has been frequent and regular. Although the

Plaintiff complains that Advil, Tylenol and Motrin have not

provided him any relief for his pain, there is no evidence that

Plaintiff suffered any serious physical injuries as a result of

the October 21, 2005 incident. The medical staff found that

Plaintiff’s cuts were superficial and the results of X-rays were

negative. To the extent that Plaintiff fears that he is

experiencing internal bleeding, he has refused to provide a urine

sample under controlled conditions, or to allow the medical staff

to use a catheter to obtain a urine sample, which would be used

in a definitive test. Plaintiff has not demonstrated that there

has been any damage to his kidney.

The Court finds that Plaintiff has neither shown that the

Defendants have been deliberately indifferent to his complaints,

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nor that he has any serious medical needs resulting from the

October 21, 2005 incident. Therefore, the Court further finds

that Plaintiff is unlikely to succeed on the merits of his denial

of adequate medical care claim.

Since the Plaintiff has not demonstrated that he is likely

to succeed on the merits of either his excessive force or denial

of adequate medical care claims, the Court need not address the

remaining preliminary injunction factors. See Auburn News Co.,

659 F.2d at 277 (a party seeking injunctive relief must

independently satisfy each of the four preliminary injunction

factors). Plaintiff’s request for a preliminary injunction

(document no. 57) is denied.

 SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: November 15, 2005 

cc: Michael De Angelis, pro se

John A. Curran, Esq.

Carolyn M. Kirby, Esq. 

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