1 Count V, a federal claim asserting that plaintiff was

subjected to unconstitutional conditions of confinement, was

dismissed by order dated February 25, 2008. Accordingly,

defendants’ motion for summary judgment on Count V is moot.

2 Plaintiff assents to entry of judgment in favor of

defendant Matthew Poulicakos.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Anthony Cabrera,

Plaintiff

v. Civil No. 07-cv-40-SM

Opinion No. 2008 DNH 138

Ryan LeVierge, individually;

Matthew Poulicakos, individually;

and James M. O’Mara, Jr.,

individually and as Superintendent

of the Hillsborough County

Department of Corrections,

Defendants

O R D E R

Anthony Cabrera sues in four counts,1 seeking damages based

upon allegations that Sgt. Ryan LeVierge, a correctional officer

at the Hillsborough County House of Corrections (“HCHC”)

unnecessarily punched and kicked him, while he was in handcuffs

and leg restraints, and that Hillsborough County Department of

Corrections Superintendent James O’Mara negligently supervised

and retained Sgt. LeVierge. Before the court is defendants’

motion for summary judgment, to which plaintiff objects in part.2

Case 1:07-cv-00040-SM Document 36 Filed 08/06/08 Page 1 of 20
2

For the reasons given, defendants’ motion is granted as to Count

IV but is otherwise denied.

The Legal Standard

Summary judgment is appropriate when the record reveals “no

genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law.” FED. R. CIV. P.

56(c). To defeat a motion for summary judgment, “the non-moving

party ‘must set forth specific facts showing that a genuine issue

of material fact exists as to each issue upon which [he] would 

bear the ultimate burden of proof at trial.’” Torres-Negron v.

Merck & Co., 488 F.3d 34, 39 (1st Cir. 2007) (quoting SantiagoRamos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 53 (1st

Cir. 2000)). To make that showing, “the non-moving party may not

rest merely upon the allegations or denials in its pleading.” 

Torres-Negron, 488 F.3d at 39 (citation omitted). When ruling on

a party’s motion for summary judgment, the court must view the

facts in the light most favorable to the nonmoving party and draw

all reasonable inferences in that party’s favor. See id. (citing

Rodríguez v. SmithKline Beecham, 224 F.3d 1, 5 (1st Cir. 2000)). 

Background

Unless otherwise noted, the following facts are undisputed. 

Anthony Cabrera was a pre-trial detainee at the HCHC from

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3

December 26, 2005, through January 10, 2006. Shortly after

Cabrera was booked into the jail, Sgt. LeVierge and Officer

Poulicakos escorted him from the booking area to a cell in the

medical unit. While Cabrera was in the cell, he was asked to

kneel facing the back wall, to facilitate an unclothed contraband

search. While facing the wall, he turned his head to address the

officers, and LeVierge pushed his head against the wall. When

plaintiff subsequently turned his upper body toward the officers,

LeVierge took him to the floor and placed him in a prone

position. Cabrera alleges that LeVierge punched and kicked him

in the head and body while he was wearing handcuffs and leg

restraints. Defendants contend that Cabrera was initially

unrestrained, that they placed him in restraints only after they

took him to the floor, and that they used only enough force to

place him in restraints. 

After the incident, Cabrera was transported to Elliot

Hospital where he was treated. One wound on his face was closed

with six stitches. Hospital records disclose the following

condition: 

OPEN WOUND OF FOREHEAD – SUPERFICIAL LACERATION

CONTUSION OF FACE AND JAW

OPEN WOUND OF NOSE – SUPERFICIAL LACERATION

LAC[ERATED] EYELID

SPRAIN OF NECK

CONTUSION OF CHEST WALL

Case 1:07-cv-00040-SM Document 36 Filed 08/06/08 Page 3 of 20
4

(Pl.’s Obj. to Summ. J., Ex. 8, at 6.) Cabrera alleges in his

complaint that he also suffered a ruptured eardrum and a broken

nose. The hospital’s records do not support his eardrum claim,

and, regarding his nose, contain the notation “Can’t rule out a

nasal fracture.” (Id. at 9.)

Cabrera asserts in this suit that LeVierge is liable for

using excessive force against him, in violation of the Fourteenth

Amendment (Count I), and for common-law assault (Count II). He

further claims that O’Mara is liable for the alleged battery,

under the theory of respondeat superior (Count III), and also

claims that O’Mara is liable for negligent supervision and

negligent retention (Count IV).

Discussion

Defendants move for summary judgment, arguing that: (1)

plaintiff cannot, as a matter of law, prove that he was subjected

to excessive force; (2) plaintiff has no evidence of common-law

battery; (3) there is nothing to support plaintiff’s respondeat

superior theory; and (4) there is no evidence that O’Mara

negligently supervised or retained Sgt. LeVierge. In addition,

LeVierge contends that he is entitled to qualified immunity from

plaintiff’s excessive force claim. Plaintiff concedes that

defendant Poulicakos is entitled to judgment as a matter of law,

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5

but counters that summary judgment in favor of defendants

LeVierge and O’Mara is precluded by the existence of genuine

issues of material fact.

Count I

In Count I, brought pursuant to 42 U.S.C. § 1983, Cabrera

claims that LeVierge violated his rights under the Fourteenth

Amendment to the United States Constitution by punching and

kicking him while he was wearing handcuffs and leg restraints. 

Specifically, he alleges that: (1) “LeVierge . . . violently

pushed [him] against the wall of the cell, violently put [him] on

the floor, [and] continued to beat and kick [him]” (Compl. ¶ 9);

(2) the beating resulted in “a severe cut above his right eye and

on his nose, a ruptured eardrum and other bruises and injuries,”

(id. ¶ 10); (3) his behavior did not warrant the beating he

received (id. ¶ 11); and (4) LeVierge “acted maliciously and for

the very purpose of causing [him] harm” (id. ¶ 12). 

LeVierge argues that he is entitled to summary judgment on

Count I because: (1) there is no evidence that plaintiff suffered

a broken nose or ruptured eardrum; (2) the injuries for which

there is evidentiary support – cuts and bruises – are relatively

minor, and do not support an excessive-force claim; and (3)

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6

“there is clear evidence that demonstrates that Cabrera’s alleged

beating never took place.”

The evidence to which LeVierge refers consists of an HCHC

security videotape that shows LeVierge was in plaintiff’s cell

for less than ninety seconds and had no blood on his shirt when

he exited the cell after the alleged beating. LeVierge argues

that the videotape establishes, as a matter of law, that he was

not in plaintiff’s cell long enough to administer the beating

plaintiff alleges, and that the force he did use was not as

extreme as plaintiff claims. Plaintiff counters with excerpts

from his own deposition, in which he testified that LeVierge

repeatedly punched and kicked him in the head and body while he

was partially immobilized by handcuffs and leg restraints.

“A pretrial detainee’s claim that he has been subjected to

unconstitutional conditions of confinement implicates Fourteenth

Amendment liberty interests . . . [which] are coextensive with

those of the Eighth Amendment’s prohibition against cruel and

unusual punishment.” Surprenant v. Rivas, 424 F.3d 5, 18 (1st

Cir. 2005) (citing Burrell v. Hampshire County, 307 F.3d 1, 7

(1st Cir. 2002)). “In its prohibition of ‘cruel and unusual

punishments,’ the Eighth Amendment places restraints on prison

officials, who may not, for example, use excessive physical force

Case 1:07-cv-00040-SM Document 36 Filed 08/06/08 Page 6 of 20
7

against prisoners.” Farmer v. Brennan, 511 U.S. 825, 832 (1994)

(citing Hudson v. McMillian, 503 U.S. 1 (1992)). More

specifically, “the unnecessary and wanton infliction of pain

. . . constitutes cruel and unusual punishment forbidden by the

Eighth Amendment.” Hudson, 503 U.S. at 5 (quoting Whitley v.

Albers, 475 U.S. 312, 319 (1986)). 

“In order to establish a constitutional violation, a

plaintiff’s claim must meet both objective and subjective

criteria.” Surprenant, 424 F.3d at 18 (citing Farmer, 511 U.S.

at 834)). “[C]ourts considering a prisoner’s claim must ask both

if ‘the officials acted with a sufficiently culpable state of

mind’ and if the alleged wrongdoing was objectively ‘harmful

enough’ to establish a constitutional violation.” Hudson, 503

U.S. at 8 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).

“The objective component of an Eighth Amendment claim is

. . . contextual and responsive to ‘contemporary standards of

decency.’” Hudson, 503 U.S. at 8 (quoting Estelle v. Gamble, 429

U.S. 97, 103 (1976)). While “not . . . every malevolent touch by

a prison guard gives rise to a federal cause of action,” Hudson,

503 U.S. at 9 (citing Johnson v. Glick, 481 F.2d 1028, 1033 (2d

Cir. 1973)), “[w]hen prison officials maliciously and

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8

sadistically use force to cause harm, contemporary standards of

decency always are violated,” id.

Regarding the subjective element, the Eighth Amendment

prohibits “the unnecessary and wanton infliction of pain.” 

Hudson, 503 U.S. at 5 (citation omitted). “[W]henever prison

officials stand accused of using excessive physical force in

violation of the Cruel and Unusual Punishments Clause, the core

judicial inquiry is that set out in Whitley: whether force was

applied in a good-faith effort to maintain or restore discipline,

or maliciously and sadistically to cause harm.” Id.

Plaintiff has offered sufficient evidence to avoid

LeVierge’s motion for summary judgment on Count I. Whether

plaintiff was wearing handcuffs and leg restraints at the time of

the alleged beating is genuinely disputed. Each party has

produced evidence from which a reasonable jury could find that

fact in his favor. See Cordi-Allen v. Conlon, 494 F.3d 245, 249

(1st Cir. 2007) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46,

48 (1st Cir. 1990)) (“An issue is genuine if, on the evidence

presented, it ‘may reasonably be resolved in favor of either

party.’”). And, the fact is material. See Brown v. Latin Am.

Music Co., 498 F.3d 18, 22 (1st Cir. 2007) (citing Cochran v.

Quest Software, Inc., 328 F.3d 1, 6 (1st Cir. 2003)) (“a fact is

Case 1:07-cv-00040-SM Document 36 Filed 08/06/08 Page 8 of 20
3 Plaintiff’s black eyes are documented by three

photographs, taken shortly after his treatment at Elliot

Hospital. (Pl.’s Obj. to Summ. J., Exs. 4-6).

9

material if it would affect the outcome of the case”). Whether

plaintiff was restricted by handcuffs and leg restraints at the

time of the alleged beating is a fact that would have a

substantial bearing on the context-sensitive determination of

whether the force used was applied in a good-faith effort to

maintain or restore discipline, or was intended maliciously and

sadistically to cause harm. Thus, plaintiff has shown that a

genuine issue of material fact exists.

Turning to the severity of plaintiff’s injuries, plaintiff

appears to concede that he did not suffer a broken nose or

ruptured eardrum – he has offered no evidence to support those

claims. With regard to the injuries documented in hospital

records, plaintiff has met his burden. The court recognizes that

“[n]ot every push or shove, even if it may later seem unnecessary

in the peace of a judge’s chambers, violates a prisoner’s

rights.” Johnson, 481 F.2d at 1033. Even so, the court declines

to rule that three facial lacerations (one requiring six

stitches), contusions to the face, jaw, and chest, two black

eyes,3 and a neck sprain, inflicted on a prisoner allegedly

immobilized by hand and leg restraints, are of such a minor

character that their deliberate and unnecessary infliction did

Case 1:07-cv-00040-SM Document 36 Filed 08/06/08 Page 9 of 20
10

not, as a matter of law, violate plaintiff’s constitutional right

to be free from cruel and unusual punishment.

Qualified Immunity

LeVierge also raises the defense of qualified immunity. 

Plaintiff does not address the qualified immunity issue in his

objection to summary judgment. In his reply, LeVierge argues

that plaintiff’s failure to address qualified immunity entitles

him to summary judgment on that issue. In a surreply, as in his

objection, plaintiff does not address qualified immunity. 

The analytical framework for assessing a claim of qualified

immunity involves three separate inquiries:

(I) whether the plaintiff’s allegations, if true,

establish a constitutional violation; (ii) whether the

constitutional right at issue was clearly established

at the time of the putative violation; and (iii)

whether a reasonable officer, situated similarly to the

defendant, would have understood the challenged act or

omission to contravene the discerned constitutional

right.

DeMayo v. Nugent, 517 F.3d 11, 17 (1st Cir. 2008) (quoting Burke

v. Town of Walpole, 405 F.3d 66, 77 (1st Cir. 2005)). 

LeVierge correctly notes that “[w]hen a defendant moves for

summary judgment on the basis of qualified immunity, it is the

plaintiff’s burden to demonstrate the infringement of a federally

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4 The court of appeals for this circuit has explained that

“[q]ualified immunity is an affirmative defense, and thus the

burden of proof is on defendants.” DiMarco-Zappa v. Cabanillas,

238 F.3d 25, 35 (1st Cir. 2001) (citing Harlow v. Fitzgerald, 457

U.S. 800, 815 (1982); Gómez v. Toledo, 446 U.S. 635, 639 (1980)). 

11

assured right [and that] [i]f [he] fails to do so, the movant

prevails.” Quintero de Quintero v. Aponte-Roque, 974 F.2d 226,

228 (1st Cir. 1992) (citing Castro-Aponte v. Ligia-Rubero, 953

F.2d 1429, 1430 (1st Cir. 1992)); see also Vélez-Díaz v. VegaIrizarry, 421 F.3d 71, 81 (1st Cir. 2005) (referring to

plaintiff’s “burden under the threshold inquiry for qualified

immunity”).4 

While plaintiff has not directly addressed LeVierge’s

assertion of a qualified immunity defense, he has, nonetheless,

met his burden of demonstrating the infringement of a federally

assured right. Often, that burden is met by the allegations in

the complaint. See Riverdale Mills Corp. v. Pimpare, 392 F.3d

55, 61 (1st Cir. 2004). But where, as here, qualified immunity

is raised in a motion for summary judgment, “courts addressing

the first prong . . . should look beyond the complaint to the

broader summary judgment record.” Id. at 62 (citing Groh v.

Ramirez, 540 U.S. 551, 562 (2004); Hope v. Pelzer, 536 U.S. 730,

734 n.1 (2002)). 

Case 1:07-cv-00040-SM Document 36 Filed 08/06/08 Page 11 of 20
12

The summary judgment record includes plaintiff’s deposition

testimony that he was punched and kicked more than a dozen times

after having been thrown to the floor while immobilized by

handcuffs and leg restraints. (Pl.’s Obj. to Summ. J. (Cabrera

Dep.) at 163-64.) That is sufficient to satisfy his burden of

demonstrating the infringement of a federally assured right. 

Nothing more is necessary to overcome LeVierge’s argument that

plaintiff has not established the first prong of the qualified

immunity test, especially given defendant’s failure to direct his

argument to the full summary judgment record. See Groh, 540 U.S.

at 562 (noting court’s obligation to credit nonmovant’s account

of the facts when deciding qualified immunity at the summary

judgment stage). 

Turning to the second prong of the qualified immunity test,

and applying that test to plaintiff’s version of the disputed

facts, see Groh, 540 U.S. at 562, it is plain that a prisoner’s

constitutional right not to be kicked and punched while shackled

was clearly established at the time. See Hudson, 503 U.S. at 4

(holding that prisoner’s Eighth Amendment rights were violated

when he was kicked and punched while shackled, even though his

injuries required no medical attention). And, regarding the

third prong of the test, an objectively reasonable correctional

officer, in LeVierge’s position, would have understood that

Case 1:07-cv-00040-SM Document 36 Filed 08/06/08 Page 12 of 20
13

repeatedly punching and kicking a shackled inmate who posed no

physical threat would violate the inmate’s clearly established

constitutional right not to be subjected to cruel and unusual

punishment.

For the reasons given, defendants’ motion for summary

judgment is denied as to Count I.

Count II

In Count II, plaintiff asserts that by beating him, LeVierge

“committed the common law tort of assault, or unprivileged

physical contact.” In his motion for summary judgment, LeVierge

recharacterizes Count II as asserting a claim of battery, and

argues that: (1) “the video evidence shows that Cabrera’s version

of the events simply did not take place”; and (2) plaintiff

“admits to engaging in conduct that a reasonable officer would

and legally can meet with force,” thus making LeVierge’s physical

contact with plaintiff privileged.

The security videotape upon which LeVierge relies was

recorded by a camera that had a clear view of the area outside

plaintiff’s cell, but only a partial view into the cell. 

Defendant’s argument is not that the tape shows what happened to

plaintiff in the cell, but, rather, that the beating plaintiff

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14

claims to have received “could not” have taken place during the

one minute and twenty-four seconds that LeVierge and plaintiff

were out of the camera’s view. That, of course, is a fact

question for the jury, as it cannot be said, as a matter of law,

that the beating as alleged “could not” have been inflicted in

one minute and twenty-four seconds. 

Defendant’s second argument is also overstated. While he

argues that plaintiff admitted to conduct that a correctional

officer could reasonably meet with the amount of force Sgt.

LeVierge used, plaintiff actually admitted much less. He

testified that while facing the wall of his cell, in handcuffs

and leg restraints, he: (1) turned his head toward LeVierge and

spoke to him using sarcasm and profanity, which prompted LeVierge

to slam his head against the wall (Cabrera Dep. at 156-60); and

(2) turned his upper body toward LeVierge, who then took him to

the ground and repeatedly punched and kicked him in the head and

face (id. at 162-63). As with plaintiff’s excessive force claim,

it cannot be said, as a matter of law, that plaintiff’s conduct,

while immobilized by handcuffs and leg restraints, warranted

application of force to a degree that resulted in the injuries

demonstrated by the undisputed factual record. A reasonable jury

could credit plaintiff’s version of events and could readily find

that the force used was not necessary for any legitimate

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15

penalogical or security purpose, and, indeed, was applied for the

purpose of inflicting harm and pain as punishment. Accordingly,

defendants’ motion for summary judgment is denied as to Count II.

Count III

In Count III, plaintiff asserts that O’Mara is liable for

the assault alleged in Count II, under the doctrine of respondeat

superior. In reliance upon Daigle v. City of Portsmouth, 129

N.H. 561 (1987), O’Mara argues that he is entitled to summary

judgment on Count III because plaintiff has no evidence that he,

O’Mara, knew about or acquiesced in the conduct of the other

defendants, and no evidence that those other defendants had ever

been found to have used unlawful force on any inmate in the past. 

O’Mara’s argument is unavailing.

“Under respondeat superior, ‘an employer may be held

vicariously responsible for the tortious acts of its employee if

the employee was acting within the scope of his or her employment

when his or her tortious act injured the plaintiff.’” Porter v.

City of Manchester, 155 N.H. 149, 152 (2007) (quoting Porter v.

City of Manchester, 151 N.H. 30, 39-40 (2004)); see also Daigle,

129 N.H. at 579. “[C]onduct falls within the scope of . . .

employment if: (1) it is of the kind [the employee] is employed

to perform; (2) it occurs substantially within the authorized

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16

time and space limits; and (3) it is actuated, at least in part,

by a purpose to serve the employer.” Porter, 155 N.H. at 152. 

As noted in Aversa v. U.S., 99 F.3d 1200, 1209 (1st Cir. 1996),

an intentional tort, like assault, can be within the scope of

employment under applicable state law if the employee acts within

his authority during the course of employment, even though he

acts intentionally and maliciously. And Porter, supra, makes

clear that under New Hampshire’s common law, an employer may be

held liable even for the intentional torts of its employees under

the doctrine of respondeat superior.

While the Daigle court noted that evidence that a police

officer “had frequently beaten suspects” could allow a jury

reasonably to “infer that [the officer] believed it was

appropriate to rough [suspects] up in the course of serving the

law enforcement objectives of capturing the guilty and

establishing their guilt,” 129 N.H. at 580-81, Daigle does not

suggest that such evidence is required to prove that a police

officer’s action was undertaken to serve his employer and, thus,

within the scope of his employment.

Because the undisputed factual record does not require a

conclusion, as a matter of law, that LeVierge was acting beyond

Case 1:07-cv-00040-SM Document 36 Filed 08/06/08 Page 16 of 20
17

the scope of his employment when he allegedly beat plaintiff,

O’Mara is not entitled to summary judgment on Count III.

Count IV

Plaintiff claims that O’Mara is liable for negligent

supervision and negligent retention of LeVierge because he

“fail[ed] to properly investigate allegations of misconduct [by

LeVierge] and . . . fail[ed] to appropriately discipline

[LeVierge] for those prior instances of misconduct.” (Compl. ¶

33). O’Mara argues that he is entitled to summary judgment on

Count IV because there is no evidence that he negligently

supervised or negligently retained LeVierge. More specifically,

O’Mara contends that LeVierge has never been found to be

dangerous or incompetent and that there has been no occasion for

him to learn of any alleged violent tendencies on LeVierge’s

part. O’Mara also claims discretionary function immunity. 

Plaintiff counters that allegations of excessive force have been

made against LeVierge in at least five other cases in this court.

New Hampshire recognizes “a cause of action against an

employer for negligently hiring or retaining an employee that the

employer knew or should have known was unfit for the job so as to

create a danger of harm to third persons.” Marquay v. Eno, 139

N.H. 708, 718 (1995) (citing Cutter v. Town of Farmington, 126

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18

N.H. 836, 840-41 (1985); LaBonte v. Nat’l Gypsum Co., 113 N.H.

678, 681 (1973)). “In Cutter, [the New Hampshire Supreme Court]

cited RESTATEMENT (SECOND) OF AGENCY § 213 (1958), which provides that

‘[a] person conducting an activity through servants or agents is

subject to liability for harm resulting from his conduct if he is

negligent or reckless . . . in the employment of improper

persons.’” Marquay, 139 N.H. at 718. 

In plaintiff’s view, it was negligent or reckless for O’Mara

not to investigate LeVierge and to allow him to continue working

in direct contact with detainees in light of both LeVierge’s

“history of assaulting inmates,” as demonstrated by the

allegations against LeVierge in the lawsuits in which he and

O’Mara were or are co-defendants, and two comments made by O’Mara

to the father of another HCHC inmate. O’Mara is alleged to have

told inmate Marc Dixon’s father: “I would be a damned fool to

believe my staff are angels, but you have to prove it,” (Pl.’s

Obj. to Summ. J., Ex. 3 (Dixon Aff.) ¶ 5) and: “I will deny this

conversation ever occurred,” (id. ¶ 6). Even if true, those

statements are not material to the issue of O’Mara’s knowledge of

LeVierge’s alleged violent tendencies. See Brown, 498 F.3d at 22

(defining materiality). 

Case 1:07-cv-00040-SM Document 36 Filed 08/06/08 Page 18 of 20
19

Similarly immaterial are the allegations other inmates have

made against LeVierge in other lawsuits, which demonstrate only a

history of inmate accusations, hardly an unusual circumstance. 

But those mere allegations do not create a triable issue of

material fact regarding LeVierge’s “history of assaulting

inmates.” As O’Mara points out, none of the various allegations

against LeVierge has resulted in any sort of judicial or

administrative determination that he did, in fact, assault any

HCHC inmates. The mere fact that LeVierge has been accused by

inmates of using excessive force in complaints filed in this

court does not establish a basis upon which O’Mara could be held

liable for negligently retaining LeVierge.

Plaintiff has offered no evidence from which a reasonable

jury could conclude that O’Mara negligently or recklessly

retained LeVierge, that is, that O’Mara knew or should have known

that LeVierge was unfit for his job in a way that posed a danger

of harm to third parties. See Marquay, 139 N.H. at 718. 

Accordingly, O’Mara is entitled to summary judgment on Count IV.

Conclusion

For the reasons given, defendants’ motion for summary

judgment (document no. 20) is granted as to Count IV and to the

extent that the claims against defendant Poulicakos in Counts I

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20

and II are dismissed, but the motion is otherwise denied. The

case remains on track for trial on Counts I and II, against

LeVierge only, and Count III.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

August 6, 2008

cc: Michael J. Sheehan, Esq.

John A. Curran, Esq.

Elizabeth L. Hurley, Esq.

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