1In the complaint, plaintiffs sought class action status;

however, no motion has been filed to certify a class, and nothing

in the complaint or the pending motions demonstrates that this

action satisfies the requirements to be certified as a class

action. See Fed. R. Civ. P. 23(a). Accordingly, this action is

being treated as one brought by the three individual plaintiffs,

and the asserted claims are analyzed based only on the facts

relevant to their confinement.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Vincent Schonarth, et al.

v. Civil No. 06-cv-151-JM

Dennis A. Robinson,

Director, Carroll County

Department of Corrections

O R D E R

In this civil rights action brought pursuant to 42 U.S.C. §

1983, plaintiffs Vincent Schonarth, Bruce Blomquist and Philip

Haley challenge the conditions of their confinement at the

Carroll County House of Corrections (“CCHOC”), where they were

held as pretrial detainees at different times between March 2002

and October 2003.1 The CCHOC was demolished in November 2003,

and plaintiffs are now housed at the Northern New Hampshire

Case 1:06-cv-00151-JL Document 16 Filed 02/22/08 Page 1 of 27
2The facts are taken from Defendant’s “Statement of

Undisputed Material Facts,” see Def.’s Mem. in Supp. of M. for

Summ. J. at 2-10 (document no. 9.1) (“Def.’s Mem.”) and exhibits

attached thereto (“Def.’s Ex.”), and from the affidavits

submitted in support of Plaintiffs’ Objection, see Pls.’ Obj. to

Def.’s M. for Summ. J. (document no. 12) (“Pls.’ Obj.”). See

United States District Court for the District of New Hampshire

Local Rule (“LR”) 7.2(b)(1) and (2) (requiring summary judgment

motions be accompanied by a statement of material facts supported

by appropriate record citations, and any objection to state which

facts are disputed with similarly appropriate record citations);

see also Fed. R. Civ. P. 56(c) and (e).

2

Correctional Facility or the Lakes Region Correctional Facility. 

Defendant Dennis A. Robinson (“Robinson”) was director of the

CCHOC at all relevant times. He has moved for summary judgment

(document no. 9). For the reasons set forth below, defendant’s

motion is granted in part and denied in part.

DISCUSSION

1. Background2

Plaintiffs were held on the “B Block” of the CCHOC, which

was the center block of three blocks at the prison. It contained

four adjacent cells, which were each five feet by seven feet. 

Although the cells were designed to hold two men, they typically

held just one inmate. The cells each contained a toilet and sink

unit, plus a bed. The row of cells faced a hallway, which was

twenty feet long by four feet wide. The hallway was referred to

Case 1:06-cv-00151-JL Document 16 Filed 02/22/08 Page 2 of 27
3

as the “bullpen.” B Block had no exterior windows; however, it

opened to A Block, which had windows that allowed fresh air to

come into the bullpen. 

Plaintiffs were confined to the interior space of B Block

and deprived of natural light and the out of doors. The visit

room of B Block was at one end of the bullpen and also had no

windows. Plaintiffs ate all their meals in the visit room. Due

to staffing constraints at the CCHOC, plaintiffs were not allowed

out in the yard, except on irregular occasions during the summer. 

Plaintiffs were allowed out of their cells for two hours per day

of free time in the bullpen. Their recreational activities were

limited to board games, cards, and stationary exercises like situps, pull-ups and push-ups, and whatever walking the confined

space would enable.

Plaintiffs state that their cells were dirty. Defendant

explains that plaintiffs were responsible for cleaning their

cells and were given cleaning supplies daily. Plaintiffs claim

the toilet/sink unit was filthy and contained dirty water, which

overflowed occasionally. They also assert that B Block did not

have good heating or ventilation systems, which caused it to be

cold in the winter and hot in the summer, but inmates were given

Case 1:06-cv-00151-JL Document 16 Filed 02/22/08 Page 3 of 27
3It is unclear from the pleadings whether Haley left the

CCHOC in July 2003 or 2004. Cf. Pls.’ Obj., Aff. of Philip Haley 

¶ 2 (document no. 12.3), with Def.’s Mem. at 2. His departure

date, however, does not affect the disposition of the pending

motion.

4

extra blankets in the winter and fans in the summer to compensate

for the temperature extremes. Doors were also opened to

facilitate ventilation.

Plaintiff Blomquist was housed at the CCHOC from June 2002

until October 2003, and resided on B Block for seven months. He

asked to be moved out of B Block on December 22, 2002, which

request was granted on December 25, 2002. Plaintiff Haley was

held at the CCHOC from December 2002 until July 2003 and spent

several months on B Block.3 Plaintiff Haley was moved into B

Block in January 2003 after he requested to be placed there. 

Plaintiff Schonarth was at the CCHOC from March 2002 until August

2003 and spent all his time on B Block. None of the plaintiffs

was housed on B Block for disciplinary reasons. In November 2003

the CCHOC was razed. 

Plaintiffs first filed grievances about the conditions at

the CCHOC in February 2006. Defendant did not respond to those

grievances, because the conditions about which they complained no

longer existed and plaintiffs were housed elsewhere. Plaintiffs

Case 1:06-cv-00151-JL Document 16 Filed 02/22/08 Page 4 of 27
5

did not pursue the grievances any further through the

administrative review process but, instead, commenced this action

in April 2006. 

2. Summary Judgment Standard

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.

56(c); see also Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st

Cir. 2001) (citing authority). The burden of showing an absence

of any genuine issues of material fact lies with the moving

party. See id. The facts must be viewed in the light most

favorable to the non-moving party, construing all reasonable

inferences in its favor. See id. (quoting Griggs-Ryan v. Smith,

904 F.2d 112, 115 (1st Cir. 1990); see also Suarez v. Pueblo

Int’l, Inc., 229 F.3d 49, 53 (1st Cir. 2000) (explaining how to

construe the record). When, as the case is here, the non-moving

party objects to the motion, the burden shifts to it to

demonstrate that there are real disputes about facts which will

affect the final disposition of the claims. See Navarro, 261

Case 1:06-cv-00151-JL Document 16 Filed 02/22/08 Page 5 of 27
6

F.3d at 93-94 (objecting party “cannot rely on the absence of

competent evidence, but must affirmatively point to specific

facts that demonstrate the existence of an authentic dispute”);

see also McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315

(1st Cir. 1995) (defining material facts and genuine dispute). 

Only if, after construing the record in the light most favorable

to plaintiffs, no genuine issue of material fact emerges, may

defendant’s motion be adjudicated. See Navarro, 261 F.3d at 94. 

3. Defendant’s Argument

Defendant makes six arguments in support of his motion for

summary judgment. First, he contends plaintiffs failed to

exhaust their available administrative remedies and are barred,

therefore, from bringing this action, pursuant to 42 U.S.C. §

1997e(a). Second, he states that plaintiffs cannot assert claims

based on emotional distress because they neglected to file

medical grievance forms related to the alleged injuries, as

required by 42 U.S.C. § 1997e(e). Third, he claims plaintiffs

are barred by the statute of limitations from challenging any

conditions that existed before April 21, 2003. Next he contends

that those conditions that existed within the relevant time

frame, from April 21, 2003, through November 2003, in fact were

Case 1:06-cv-00151-JL Document 16 Filed 02/22/08 Page 6 of 27
7

constitutional. Fifth, he asserts the defense of qualified

immunity. And finally, defendant argues that if plaintiffs

intended to sue him in his official capacity, they have not shown

that a custom or policy caused the alleged deprivations to render

the county liable. 

Plaintiffs object to all these arguments, although they

waive their request for compensatory damages for “mental or

emotional injuries” caused by the alleged unconstitutional

conditions at the CCHOC. See Pls.’ Obj. at 6, ¶¶ 15-16. I

address the remaining arguments below.

(I) Exhaustion

Defendant first contends that because plaintiffs waited

until February 2003 to file grievance forms about the conditions

at the CCHOC, their § 1983 action should be barred based on the

provisions of 42 U.S.C. § 1997e(a). That section provides:

No action shall be brought with respect to

prison conditions under section 1983 of this

title, or any other Federal law, by a prisoner

confined in any jail, prison, or other correctional

facility until such administrative remedies as

are available are exhausted.

Id. Defendant argues that plaintiffs’ delay precluded him from

appropriately responding to their grievance forms because the

identified problems were eliminated when the prison was

Case 1:06-cv-00151-JL Document 16 Filed 02/22/08 Page 7 of 27
8

demolished more than two years earlier. Because plaintiffs

failed to timely submit the grievance forms, defendant concludes

that they failed to exhaust the administrative remedies that were

available at the CCHOC.

It is undisputed that failing to exhaust available

administrative remedies bars a § 1983 action. See Jones v. Bock,

__ U.S. __, 127 S. Ct. 910, 919-20 (2007) (citing Porter v.

Nussle, 534 U.S. 516, 524 (2002) for rule that exhaustion

requirement applies to all inmate suits about prison life); see

also Acosta v. U.S. Marshals Serv., 445 F.3d 509, 512 (1st Cir.

2006) (affirming dismissal for detainee’s failure to exhaust

county’s administrative remedies); Beltran v. O’Mara, 405 F.

Supp. 2d 140, 149 (D.N.H. 2005). Whether or not plaintiffs have

exhausted presents a question of law, unless the answer depends

on some disputed fact. See id. “[T]he PLRA exhaustion

requirement requires proper exhaustion,” Woodman v. Ngo, 548 U.S.

81, 126 S. Ct. 2378, 2387 (2006), which means strict compliance

with all the relevant grievance policies and procedures, even if

the relief sought is not an available administrative remedy. See

id. at 2382-83, 2388-90 (discussing the benefits of exhaustion

and requiring inmates to follow “the system’s critical procedural

Case 1:06-cv-00151-JL Document 16 Filed 02/22/08 Page 8 of 27
4The manual appended to defendant’s motion indicates that it

was reviewed and revised in February 2003. Defendant represents

that this manual states the policies and procedures for filing

grievances that applied while plaintiffs were at the CCHOC and

that they were aware of them. See Def.’s Mem. at 7. For

purposes of this summary judgment motion, where defendant bears

the burden of establishing plaintiffs’ failure to exhaust, I

accept the manual defendant provided in support of his motion as

the governing administrative policy and procedure. In any event,

if there were a factual dispute about the applicable manual, that

would raise a genuine issue of material fact barring summary

judgment. 

9

rules”); see also Acosta, 445 F.3d at 512 (“‘To exhaust remedies,

a prisoner must file complaints and appeals in the place, and at

the time, the prison’s administrative rules require.’”) (quoting

Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002));

Beltran, 405 F. Supp. 2d at 150 (finding improper exhaustion

where inmate failed to follow the proper appeal procedure). 

The CCHOC Inmate Grievances Policy Manual does not provide a

time limit on the initial filing of a grievance form. See Def.’s

Mem, Robinson Aff., Ex. A.4 While the policy manual sets forth

deadlines for the prison to respond – within “a reasonable amount

of time” or “within twenty four hours of receipt of the

grievance” if it is “of an emergency nature” – no similar time

frame is required of the inmate. See id. ¶¶ 3 & 4. Also

critical to defendant’s argument here is the fact that an appeal

is not mandatory, but “may” be requested if the inmate chooses to

Case 1:06-cv-00151-JL Document 16 Filed 02/22/08 Page 9 of 27
10

do so. See id. at ¶ 6. The sole definitive time limit set forth

in the policy and procedure manual occurs if the matter is

appealed to the Carroll County Board of Commissioners. In that

circumstance, a report on the corrective action taken must be

filed with the Commissioners within thirty days, presumably of

the grievance committee review. See id. ¶ 9. Finally, an inmate

“can contact the County Attorney’s Office for an external review”

if dissatisfied with the results of the Commissioners’ review

committee conclusions, see id., but that review, too, is

optional, not mandatory. 

Based on the plain language of the CCHOC’s policies and

procedures for grievance forms, as Woodman’s “proper exhaustion”

directive requires, I cannot conclude, as a matter of law, that

plaintiffs failed to exhaust their available administrative

remedies. To the contrary, they did exactly what the manual

prescribed. “When the administrative rulebook is silent, a

grievance suffices if it alerts the prison to the nature of the

wrong for which redress is sought. As in a notice-pleading

system, the grievant need not lay out the facts, articulate legal

theories, or demand particular relief. All the grievance need do

is object intelligibly to some asserted shortcoming.” Strong v.

Case 1:06-cv-00151-JL Document 16 Filed 02/22/08 Page 10 of 27
11

David, 297 F.3d 646, 650 (7th Cir. 2002). While I recognize

plaintiffs’ more than two year delay in filing their grievance

forms impedes the policy goals of enabling prison officials to

quickly and efficiently resolve disputes and of creating a record

for those cases which advance to litigation, see Woodman, 126 S.

Ct. at 2385, § 1997e(a) has been consistently construed to

require strict adherence to the prison’s particular procedural

rules. See id. at 2388; Acosta, 445 F.3d at 513; Medina-Claudio

v. Rodriguez-Mateo, 292 F.3d 31, 34-35 (1st Cir. 2002) (requiring

inmate to follow prison’s grievance policy even though he had

been transferred from the facility and its remedies would not

provide the relief sought). Based on the undisputed facts,

plaintiffs did that. Whether or not the delay undermines

plaintiffs’ claims of constitutional injury raises a factual

issue for the jury to resolve. Defendant’s motion for summary

judgment based on plaintiffs’ failure to properly exhaust the

available administrative remedies is denied.

(ii) Emotional or Mental Injuries

Defendant’s second argument is that plaintiffs’ request for

compensatory damages for emotional or mental injuries is barred

by 42 U.S.C. § 1997e(e). He contends that because there is no

Case 1:06-cv-00151-JL Document 16 Filed 02/22/08 Page 11 of 27
12

evidence that plaintiffs suffered physical injury from the

challenged conditions, § 1997e(e) prevents plaintiffs from

recovering money damages for any emotional or mental distress

those conditions allegedly caused.

Section 1997e(e) provides:

No Federal civil action may be brought by a

prisoner confined in a jail, prison, or other

 correctional facility, for mental or emotional

injury suffered while in custody without a prior

showing of physical injury.

Id. (2003). Regardless of the alleged claim that caused the

mental or emotional injury, “[t]he plain language of the statute

does not permit alteration of its clear damages restrictions on

the basis of the underlying rights being asserted.” Searles v.

Van Bebber, 251 F.3d 869, 876 (10th Cir. 2001). “The statute

limits the remedies available, regardless of the rights asserted,

if the only injuries are mental or emotional.” Id. (citing

Robinson v. Page, 170 F.3d 747, 748 (7th Cir. 1999)); see also

Hines v. Oklahoma, No. CIV-07-197-R, 2007 WL 3046458, *6 (W.D.

Okla. Oct. 17, 2007) (finding § 1997e(e) bars claim for

compensatory damages for intentional infliction of emotional

distress because no physical injury was alleged); but see Bromell

v. Idaho Dep’t of Corrections, No. CVO5-419-N-LMB, 2006 WL

Case 1:06-cv-00151-JL Document 16 Filed 02/22/08 Page 12 of 27
13

3197157, *5 (D. Idaho Oct. 31, 2006) (concluding § 1997e(e) bars

a federal civil action, but not a state-law claim, for emotional

injury). I agree with the line of cases which conclude that §

1997e(e) applies to all actions that are brought in federal court

which seek damages for mental or emotional injury, regardless of

whether the underlying cause of action is based on federal or

state law. 

Additionally, although plaintiffs initially sought

compensatory damages for mental and emotional distress based on

state tort law, see Compl., Count II, plaintiffs now concede they

did not file medical grievance forms, or obtain any other

evidence of physical injury, related to the conditions of

confinement challenged here, and they “concede that the statute

thus precludes them from seeking compensatory damages for mental

or emotional injuries.” Pls.’ Obj. ¶ 16. New Hampshire law also

requires a showing that physical injury resulted from the

emotional distress allegedly caused by defendant’s conduct. See

In re Bayview Crematory, LLC., 155 N.H. 781, 786, 930 A.2d 1190,

1195 (2007) (defining negligent infliction of emotional

distress); Silva v. Warden, 150 N.H. 372, 374-75, 839 A.2d 4, 6-7

(2003) (finding expert testimony unnecessary to prove physical

Case 1:06-cv-00151-JL Document 16 Filed 02/22/08 Page 13 of 27
14

symptoms suffered from emotional distress caused by intentional

assaults like the unreasonable strip search of a prisoner);

Thorpe v. State of N.H. Dep’t of Corr., 133 N.H. 299, 304-05, 575

A.2d 351, 353-54 (1990) (holding that physical injury is required

to state a claim for emotional distress). By conceding they

neglected to “allege any physical injuries related to the

challenged conditions,” Pls.’ Obj. ¶ 16, plaintiffs have waived

any claims initially asserted in Count II. 

Since, as a matter of both federal and state law, a showing

of physical injury is required before compensatory damages may be

awarded for claims of mental or emotional injury, and plaintiffs

concede they have not made that prerequisite showing, defendant’s

motion for summary judgment is granted to the extent that

plaintiffs request compensatory damages for emotional and mental

injuries. 

(iii) Statute of Limitations 

Defendant next argues that any claims based on conduct or

conditions that occurred before April 21, 2003, are barred by the

statute of limitations, because this action was filed on April

21, 2006, and New Hampshire law provides a three year statute of

limitations for personal injury actions. See N.H. Rev. Statutes

Case 1:06-cv-00151-JL Document 16 Filed 02/22/08 Page 14 of 27
15

Ann. (“RSA”) 508:4 (1997) (“all personal actions . . . may be

brought only within 3 years of the act or omission complained

of”); see also Wilson v. Garcia, 471 U.S. 261, 266-67 (1985)

(holding that the forum’s state law statute of limitations

applies in § 1983 cases); Lopez-Gonzalez v. Municiplaity of

Comerio, 404 F.3d 548, 551 (1st Cir. 2005) (same).

Plaintiffs counter that they are entitled to bring claims

based on all the conduct and conditions which they were subjected

to while incarcerated at the CCHOC, because it was all part of a

course of conduct that ended within the statute of limitations, 

citing Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179 (1st Cir.

1989) and Rosario-Rivera v. Aqueduct & Sewer Auth. of P.R., 472

F. Supp. 2d 165 (D.P.R. 2007). Those two cases expanded the

statute of limitations in employment discrimination actions by

applying the “continuing violation” doctrine, which recognizes

that acts that fall outside the relevant time period which can be

linked to acts within the appropriate time frame may constitute

one actionable course of conduct. See id. at 170-71 (citing

authority to discuss the origins of the doctrine in Title VII

cases); see also Mack, 871 F.2d at 182 (declining to extend

limitations period based on continuing serial violation because

Case 1:06-cv-00151-JL Document 16 Filed 02/22/08 Page 15 of 27
16

no act of the alleged racial and sexual discrimination occurred

within the appropriate time frame). Plaintiffs now seek to

extend the continuing violation doctrine beyond the employment

context to their claims of unconstitutional conditions of

confinement.

While the continuing violation doctrine is most commonly

applied in the employment context, it has been extended to § 1983

actions challenging prison conditions. See e.g. Smith v.

Shorstein, 217 Fed. Appx. 877, 880-81 (11th Cir. 2007)

(explaining how the limitations clock starts to run when the

continuing violation ceases); Foster v. Morris, 208 Fed. Appx.

174, 177-78 (3rd. Cir. 2006) (applying doctrine to reach untimely

acts if they are related to and part of a continuing practice);

Shannon v. Babb, 103 Fed. Appx. 201, 201-02 (9th Cir. 2004)

(affirming dismissal of untimely prisoner claim for lost property

because subsequent losses were caused by the initial decision and

were not part of a pattern of conduct); Lovett v. Ray, 327 F.3d

1181, 1183 (11th Cir. 2003) (emphasizing that plaintiff must

complain of a continuing violation not a present consequence of a

past violation); Griswold v. Morgan, 317 F. Supp. 2d 226, 231

(W.D.N.Y. 2004) (citing Pino v. Ryan, 49 F.3d 51, 54 (2d Cir.

Case 1:06-cv-00151-JL Document 16 Filed 02/22/08 Page 16 of 27
17

1999)). Whether in the employment or the prison context, the

continuing violation doctrine is “an equitable exception that

allows [a plaintiff] to seek damages for otherwise time-barred

allegations if they are deemed part of an ongoing series of []

acts and there is ‘some violation within the statute of

limitations period that anchors the earlier claims.’” O’Rourke

v. City of Providence, 235 F.3d 713, 730 (1st Cir. 2001) (quoting

Provencher v. CVS Pharm., 145 F.3d 5, 14 (1st Cir. 1998) in the

context of employment discrimination). 

The critical issue in determining whether the doctrine

applies is whether plaintiffs suffered from the ongoing effects

of some past violation, in which case it would not, or whether

plaintiffs suffered anew from distinct civil rights violations

that were part of some continuous chain of activity, in which

case the doctrine may be invoked. See O’Rourke, 235 F.3d at 730-

31 (describing contours of the doctrine in the employment

context); Smith, 217 Fed. Appx. at 881 (applying doctrine to

continued unlawful detention of plaintiff); Lovett, 327 F.3d at

1183 (finding change of plaintiff’s parole date was a one-time

act with continued consequences and therefore not within the

doctrine). This inquiry focuses on the point at which plaintiffs

Case 1:06-cv-00151-JL Document 16 Filed 02/22/08 Page 17 of 27
18

were put on notice of the violation, to trigger the obligation to

assert their rights within the appropriate time. See id. at 1182

(explaining that the statute begins to run when facts which would

support a cause of action would be apparent to the reasonably

prudent plaintiff); see also Sabree v. United Bhd. of Carpenters

& Joiners, 921 F.2d 396, 401-02 (1st Cir. 1990) (discussing the

policy goals behind statute of limitations for Title VII claims). 

If the prior act is substantially related to the act which falls

within the relevant time period, then a continuing violation may

be found. See id. “‘What matters is whether, when and to what

extent the plaintiff was on inquiry notice.’” Id. at 402

(quoting Jensen v. Funk, 912 F.2d 517, 522 (1st Cir. 1990)). 

A continuing violation may be either systemic or serial. 

Which type of violation plaintiffs assert here is not entirely

clear. Plaintiffs argue that the unconstitutional conditions on

B Block existed continuously from the time each was housed there

until they were removed from the CCHOC. Repeated acts of

unconstitutional treatment, however, even if they are similar, do

not necessarily demonstrate a continuing violation. See e.g.

Foster, 208 Fed. Appx. at 178 (declining to apply doctrine where

failure to make prison handicap accessible was a permanent

Case 1:06-cv-00151-JL Document 16 Filed 02/22/08 Page 18 of 27
19

problem about which plaintiff knew every time he was transferred

to the facility); cf. Smith, 217 Fed. Appx. at 881 (series of

transfers and detentions constituted a continuing violation);

Griswold, 317 F. Supp. 2d at 231 (alleging a long series of

events denying plaintiff treatment may demonstrate a continuing

deliberate indifference to his medical needs). Whether or not

plaintiffs may avail themselves of the doctrine depends on the

answers to the following queries:

(1) subject matter - whether the violations 

constitute the same type of unconstitutional

treatment, such that there is a substantial 

relationship between the otherwise untimely

acts and the timely acts, tending to connect

them in a continuing violation;

(2) frequency - whether the acts were recurring

or more isolated and discrete; and

(3) permanence - whether the act had a degree

of permanence that should have triggered 

plaintiffs’ awareness of the need to assert

their rights, and whether the consequences 

of the act would continue regardless of 

defendant’s intent.

See Foster, 208 Fed. Appx. at 178 (citing Cowell v. Palmer Twp.,

263 F.3d 286, 292 (3rd Cir. 2001); see also O’Rourke, 235 F.3d at

731. 

These questions cannot be answered on the record before me. 

Although I am not prepared at this juncture to rule that all

Case 1:06-cv-00151-JL Document 16 Filed 02/22/08 Page 19 of 27
20

claims based on the conditions on B Block before April 21, 2003,

are barred by the statute of limitations, I am also not prepared

to decide that plaintiffs can invoke the continuing violation

doctrine. The current record does not contain sufficient

evidence to determine the applicability of the doctrine at this

juncture. Accordingly, a final decision on its application to

the facts presented here shall be deferred to a later date after

discovery is complete. Defendant’s motion for summary judgment

based on the statute of limitations, for now, is denied.

(iv) Challenged Conditions

Defendant next seeks summary judgment contending that the

conditions at the CCHOC during plaintiffs’ stay there were, in

fact, constitutional. In support of this argument defendant

cites the numerous grievance forms plaintiffs filed while housed

there, none of which complained about the conditions challenged

here. This argument is unavailing, however, because the record

raises more disputes of fact about the conditions at the CCHOC

than it resolves. Because these factual issues are material to

the resolution of plaintiffs’ alleged unconstitutional detention,

summary judgment cannot be granted about the conditions on B

Block at this stage in the proceedings.

Case 1:06-cv-00151-JL Document 16 Filed 02/22/08 Page 20 of 27
21

Defendant’s motion is granted, however, with respect to the

Eighth Amendment claims. Plaintiffs allege that the challenged

conditions violated both their Eighth and their Fourteenth

Amendment rights. As pretrial detainees, however, the conditions

of their confinement are protected by the Fourteenth, not the

Eighth, Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 (1979

(pretrial conditions of detention implicate the protection of

deprivation of liberty without due process of law); Surprenant v.

Rivas, 424 F.3d 5, 18 (1st Cir. 2005) (explaining that pretrial

detainee’s conditions of confinement implicate Fourteenth

Amendment liberty interests). “For under the Due Process Clause,

a detainee may not be punished prior to an adjudication of guilt

in accordance with due process of law.” Bell, 441 U.S. at 520;

see also Martinez-Rivera v. Ramos, 498 F.3d 3, 9 (1st Cir. 2007)

(same). The Fourteenth Amendment rights of pretrial detainees

are coextensive with the Eighth Amendment’s prohibition against

cruel and unusual punishment, and claims for violations of those

rights must satisfy both objective and subjective criteria. See

Surprenant, 424 F.3d at 18 (citing Farmer v. Brennan, 511 U.S.

825, 834 (1994)); Burrell v. Hampshire County, 307 F.3d 1, 7 (1st

Cir. 2002) (citing Bell, 441 U.S. at 545). Whether or not the

Case 1:06-cv-00151-JL Document 16 Filed 02/22/08 Page 21 of 27
5Although defendant submits that plaintiffs are not clear

about whether they intend to sue him in his official or

individual capacity, or both, I will assume plaintiffs intended

to sue defendant in both capacities because they define defendant

as the “Director of the Carroll County Department of Corrections,

an agency of the Carroll County government,” and they seek both

declaratory and monetary relief. See Compl., ¶¶ 6 & 36.

22

conditions on B Block objectively denied plaintiffs “the minimal

civilized measure of life’s necessities,” Farmer, 511 U.S. at

834, and whether or not defendant acted with “deliberate

indifference” to the risks presented by those conditions, id.,

raises questions of fact that a jury must resolve. Accordingly,

the Eighth Amendment claims are dismissed and the action shall

proceed with only the Fourteenth Amendment claims.

(v) Official and Individual Capacity Liability

Finally, defendant argues this action should be dismissed on

summary judgment, because it cannot be brought against him in his

official capacity, and he is entitled to qualified immunity for

claims against him in his individual capacity.5 Plaintiffs have

declined to respond to these arguments.

Bringing this suit against defendant in his official

capacity, as the Director of the CCHOC, is the same as bringing a

suit against Carroll County. See Surprenant, 424 F.3d at 19

(citing authority). In order to hold the county liable,

Case 1:06-cv-00151-JL Document 16 Filed 02/22/08 Page 22 of 27
23

plaintiffs must prove that a “‘policy, statement, ordinance,

regulation or decision officially adopted and promulgated by’

those in charge of the jail” directly caused the allegedly

oppressive conditions about which they now complain. Id.

(quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690

(1978)). “A custom or practice may suffice to show such a policy

if it is so widespread or pervasive that the policymakers must

have had actual or constructive notice of it, yet did nothing to

modify it.” Id. The undeveloped record precludes me from

discerning whether there was some policy, custom or practice in

place that caused the conditions at the CCHOC to be

unconstitutional throughout the time period alleged, or whether

the conditions were, in fact, constitutionally acceptable. See

id. at 20-21 (proving the existence of a policy or custom and

establishing whether such policy was imposed with the requisite

scienter involve questions of fact). As a result, it is

premature to determine that the county’s liability, or lack

thereof, at this time. 

Finally, defendant contends that he is entitled to qualified

immunity to protect himself from plaintiffs’ request for monetary

damages based on the conditions they endured while housed on B

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Block. Qualified immunity would protect defendant from civil

liability as long as the challenged conduct did not violate

clearly established law. See Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982) (qualified immunity is available unless the right was

so “clearly established” that a reasonable officer would have

understood its dimensions and known his conduct violated the

right); see also Surprenant, 424 F.3d at 14 (stating a three-part

test to determine if defendant enjoys qualified immunity). Long

before plaintiffs were detained at the CCHOC in 2002 and 2003,

the law was clearly established that some combinations of

conditions can amount to unconstitutional punishment of pretrial

detainees. See e.g. Bell, 441 U.S. at 545 (“A fortiori, pretrial

detainees, who have not been convicted of any crimes, retain at

least those constitutional rights that we have held are enjoyed

by convicted prisoners); Farmer, 511 U.S. at 832-37 (discussing

the scope of protection afforded prisoners); Rhodes v. Chapman,

452 U.S. 337, 349 (1981). 

Since the Fourteenth Amendment’s protection of pretrial

detainees is coextensive with the Eighth Amendment’s protection

of prisoners, the violations alleged here are subject to the same

framework as an Eighth Amendment claim would be. See Surprenant,

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424 F.3d at 18 (guarantees afforded by the Fourteenth Amendment

for pretrial conditions of confinement are coextensive with the

Eighth Amendment’s guarantees for prison conditions); Burrell,

307 F.3d at 7 (analyzing pretrial detainee’s claim according to

the Eighth Amendment framework laid out in Farmer). Since at

least Farmer, decided in 1994, if not as early as Bell, decided

in 1979, it has been clear that “a prison official cannot be

found liable under the [Constitution] for denying an inmate

humane conditions of confinement unless the official knows of and

disregards an excessive risk to inmate health or safety; the

official 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; see also Bell,

441 U.S. at 545. Defendant can be fairly charged with knowing

this standard of care. See Harlow, 457 U.S. at 818. 

As discussed above, the record does not establish whether

the alleged conditions in fact violated constitutional standards,

or whether defendant knew of those unconstitutional conditions

but chose to do nothing to alleviate them. Whether the facts

ultimately demonstrate that the conditions at the CCHOC were so

oppressive and burdensome that they violated plaintiffs’

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Fourteenth Amendment rights will determine whether or not

defendant is liable. If plaintiffs allegations prove to be true,

however, defendant cannot protect himself from liability with the

defense of qualified immunity. As a result, defendant’s motion

based on the defense of qualified immunity is denied.

Conclusion

As explained more fully above, defendant’s motion for

summary judgment (document no. 9) is granted in part and denied

in part. Defendant’s motion is granted with respect to the

following:

- the request for compensatory damages for 

claims based on anxiety, anguish and 

extreme emotional distress is barred 

by 42 U.S.C. § 1997e(e); 

- Count II is dismissed because plaintiffs

concede they alleged no bodily injury

related to the challenged conditions;

- the claims based on alleged violations of 

plaintiffs’ Eighth Amendment rights are

dismissed, because plaintiffs were all

pretrial detainees during the challenged 

period and were, therefore, protected by

the Fourteenth Amendment.

In all other respects, the motion is denied. I also conclude

that, as a matter of law, defendant cannot avail himself of the

defense of qualified immunity.

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SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: February 22, 2008 

cc: Michael J. Sheehan, Esq.

Charles P. Bauer, Esq.

Lisa M. Lee, Esq. 

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