UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Carlos Vosburgh,

Plaintiff

v. Civil No. 07-cv-101-SM

Opinion No. 2008 DNH 133

CO Shane Bourassa, individually;

James O’Mara, Jr., individually

and as Superintendent of the

Hillsborough County DOC,

Defendants

O R D E R

Carlos Vosburgh, at all relevant times a pre-trial detainee

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

three counts. He seeks damages for injuries he claims to have

suffered when he was deliberately struck in the groin by HCHC

correctional officer Shane Bourassa. Plaintiff asserts that

Bourassa used excessive force, in violation of his rights under

the Fourteenth Amendment (Count I), and committed common-law

assault (Count II). He also claims that Superintendent James

O’Mara is liable for Bourassa’s assault under the theory of

respondeat superior (Count III). Before the court are

defendants’ motion to preclude plaintiff’s treating physician

from testifying as an expert witness and defendants’ motion for

summary judgment. Plaintiff objects to both motions. For the

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2

reasons given, defendants’ motion to preclude is granted in part

and their motion for summary judgment is denied.

Background

Unless otherwise indicated, the following facts are

undisputed. 

On September 4, 2006, three correctional officers, including 

Bourassa, entered Vosburgh’s cell to conduct a search. When the

officers entered his cell, Vosburgh moved to the back and stood

facing the wall. As part of the cell search, Bourassa subjected

Vosburgh to a pat-down search. According to Bourassa, the patdown was routine, and there is no evidence that Vosburgh said or

did anything to justify the use of any more force than was

necessary to conduct the pat-down. According to Vosburgh, after

patting down the insides and outsides of his legs, from top

bottom, Bourassa pulled his hand quickly upward, delivering a

“reverse karate chop” to the groin. (Pl.’s Obj. to Defs.’ Mot.

to Preclude (document no. 14), Ex. 2 (Vosburgh Dep.), at 63-65.)

On September 10, Vosburgh filed a health services request

form in which he reported “a lump in [his] groin [he] received on

9/4/06.” The next day, he filed an inmate grievance form in

Case 1:07-cv-00101-SM Document 35 Filed 08/05/08 Page 2 of 25
1 Those forms are dated September 10, 16, 20, and 22;

October 6, 11, and 19; November 11, 16, 25, and 28; and December

8.

3

which he complained that on September 4, he “was struck

intentionally and excessively in the groin area during a routine

pat down search by Correctional Officer Bourassa.” An

interdisciplinary progress note from the HCHC medical department

dated September 12 reported: “IM claims [he] had 1 hand punch to

the testicles when searched in cell.” Medically, the notes

documented “L groin edema, L testicle swelling, tenderness,

slight discoloration and [increased] warmth, L testicle edema.” 

The summary judgment record includes twelve health services

request forms in which Vosburgh complained of groin pain.1

Vosburgh saw a doctor on September 27 and October 25. At

the second visit, the doctor recommended ultrasound testing,

which was performed on October 31 at the Elliot Hospital. The

ultrasound detected bilateral hydroceles and a small left-sided

varicocele. Vosburgh saw the doctor again on December 13, and

was referred to a urologist. Vosburgh saw Dr. John Munoz, a

urologist, on January 2. Dr. Munoz noted “[s]mall bilateral

hydroceles” and a “[s]mall left varicocele.” On February 1, Dr.

Munoz performed a left subinguinal varicocelectomy and a left

hydrocelectomy.

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It is also undisputed that Vosburgh has been diagnosed with

similar urological problems at least once before. In May 2001,

he was seen for a left testicular mass, and was diagnosed with a

“[s]mall left hydrocele with small left varicocele.” According

to Vosburgh, his 2001 testicle pain was centered on a different

part of his left testicle than the pain he experienced in 2006. 

He also points out that there is no record of his having any

groin or scrotal symptoms from 2001 until September 2006.

Dr. Munoz was deposed in January, 2008. In response to a

question from defendants’ counsel, Dr. Munoz testified that from

his treatment alone, he was unable to determine the cause of

Vosburgh’s hydrocele (Defs.’ Mot. Summ. J., Ex. 1 (Munoz Dep.) at

41-42), and further testified that it would probably not be

possible to identify trauma as the cause of a hydrocele months

after its onset (id. at 41). Subsequently, plaintiff’s counsel

had the following exchange with Dr. Munoz:

Q. At the end of the day, the information you

have or don’t have from Mr. Vosburgh prevents you from

giving an opinion one way or the other. I’m going to

ask you to assume some facts.

A. Okay.

Q. And John will probably disagree with them and

we’ll fight about that on another day, but I would like

to see if you can reach any conclusions based on the

facts I’m going to give you.

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The first fact is that there was a long

period of being asymptomatic, from early in 2001 or

2002 when he last reported to the State Prison until

the operative date of September 4th. So assume he’s

many years without symptoms in this area. Second, one

week after he claims he was hit, the nurse did see

groin edema, which I understand to be swelling . . .

A. Yes.

Q. . . . left testicle swelling and tenderness. 

Those observations were made on the 12th which was

about eight days after it happened, and I would ask you

to assume also that on the 27th of September, about

three plus weeks after, a doctor observed slight

tenderness of the left epididymal area and slight

tenderness of the left groin, and then also assume the

subjective complaints he made are true, that he was

experiencing more or he was experiencing symptoms that

he wasn’t experiencing before. If those facts are

true, can you say more likely than not that trauma, if

not causing the conditions, made them symptomatic?

A. Yes, you could assume that.

(Id. at 63-64).

Motion to Preclude

In document no. 13, defendants ask the court to preclude Dr.

Munoz “from testifying about any opinions he may have about the

details or circumstances surrounding the cause of the plaintiff’s

injury,” or, in the alternative, to “[p]rovide the defense an

additional thirty days for the disclosure of its own expert(s),

and provide the defense equal latitude with regards to rejecting

the disclosure requirements of [Rule] 26(a)(2)(B).” Plaintiff

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counters that a treating physician may provide opinion testimony

based upon his or her treatment and points out that defendants

have long been on notice that he intended to call Dr. Munoz to

testify that his testicular condition was caused by trauma. 

In Gomez v. Rivera Rodriguez, 344 F.3d 103, 113 (1st Cir.

2003), the court of appeals for this circuit cited, with

approval, Ngo v. Standard Tools & Equipment Co., 197 F.R.D. 263

(D. Md. 2000). In Ngo, the district court explained:

That a treating physician should be considered

principally a fact witness is not a novel idea. In the

often cited and well reasoned opinion of Sullivan v.

Glock, Inc., 175 F.R.D. 497 (D. Md. 1997), the Court

reviewed the often confusing discovery obligations that

a party encounters when trying to characterize the

expected testimony of a treating physician. Simply

put, a treating physician is “a hybrid witness for whom

no Rule 26(a)(2)(B) disclosures are required.” As

such, a treating physician can be a fact witness for

some purposes and a retained or consulting expert

witness for other purposes.

In order to determine which opinions are

admissible as “fact opinions,” the parties and the

Court must examine the nature of the testimony expected

to be offered at trial. The “fact opinions” of a

treating physician’s testimony include not only his or

her simplistic observations – such as a person’s gait,

the presence of swelling or that a body part is warm to

the touch – but also notions regarding causation,

diagnosis, prognosis, and the extent of the disability

or injury. Conversely, if the physician’s opinion is

based on information not learned during the course of

treatment, then such testimony usually is beyond the

“fact opinion” classification and must comply with the

rules regarding expert disclosures. The delineation of

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treating physicians as fact witnesses for these

purposes has been similarly treated in other

jurisdictions. See Quarantillo v. Consolidated Rail

Corp., 106 F.R.D. 435 (W.D.N.Y. 1985); Baker v. Taco

Bell, Corp., 163 F.R.D. 348 (D. Col. 1995).

Id. at 266-67; see also Sprague v. Liberty Mut. Ins. Co., 177

F.R.D. 78, 81 (D.N.H. 1998) (“Plaintiff’s expert witnesses are

treating physicians and a treating psychologist from whom reports

are not required, provided that all opinions they express are

formed on the basis of their treatment of plaintiff.”) (emphasis

added). 

Based upon the foregoing principles, Dr. Munoz may testify

about: (1) his diagnosis and treatment of plaintiff; (2) the

general nature of hydroceles and varicoceles; (3) the range of

possible causes of hydroceles and varicoceles; and (4) the range

of things that could cause an asymptomatic hydrocele or

varicocele to become symptomatic. However, without satisfying

the reporting requirements of Rule 26(a)(2)(B), Dr. Munoz may not

offer an opinion regarding the cause of plaintiff’s hydroceles

and varicocele. His deposition testimony demonstrates that he

was unable to offer an opinion on causation based upon his

examination and treatment of plaintiff, but was able to do so

only in response to a hypothetical question from plaintiff’s

counsel which included “information not learned during the course

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of treatment.” Ngo, 197 F.R.D. at 267. Thus, testimony on the

causation of plaintiff’s condition falls outside the boundaries

of strictly factual testimony, or “fact opinion,” and, as a

consequence, cannot be offered without meeting the requirements

of Rule 26(a)(2)(B). Accordingly, defendants’ motion to preclude

is granted in part.

Motion for Summary Judgment

A. Summary Judgment 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). “An issue is genuine if, on the evidence presented, it

‘may reasonably be resolved in favor of either party.’” CordiAllen v. Conlon, 494 F.3d 245, 249 (1st Cir. 2007) (quoting

Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)).

“[A] fact is material if it would affect the outcome of the

case.” 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)). To defeat a motion for summary judgment, “the nonmoving 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.’” TorresCase 1:07-cv-00101-SM Document 35 Filed 08/05/08 Page 8 of 25
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Negron v. Merck & Co., 488 F.3d 34, 39 (1st Cir. 2007) (quoting

Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 53

(1st Cir. 2000)). 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)). 

B. Discussion

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

plaintiff’s claimed groin injury was either a preexisting

condition or de minimis as a matter of law; (2) plaintiff has no

expert medical testimony with which to prove causation; (3)

Bourassa is entitled to qualified immunity from plaintiff’s

constitutional claim; (4) Bourassa’s contact with plaintiff was

privileged and, thus, not a common-law assault; and (5) O’Mara

neither knew of nor approved Bourassa’s alleged conduct, which

relieves him of respondeat superior liability. Plaintiff

counters by identifying three genuine issues of material fact:

(1) whether Bourassa deliberately struck him in the groin; (2)

the severity of his injury and pain; and (3) whether the alleged

assault caused his symptoms to recur. In their reply, defendants

contend, among other things, that plaintiff has not identified

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2 In their summary judgment motion, defendants argue that

they are entitled to judgment as a matter of law if either “the

contact was intentional and sadistic” or if “it was incidental,

but an overly aggressive form of pat-search.”

10

any genuine issue of material fact because: (1) their summary

judgment motion is premised upon a presumption that Bourassa did

strike Vosburgh in the groin;2 (2) the severity of plaintiff’s

injury is not at issue because “there is no dispute that Vosburgh

was suffering a small left varicocele and a left hydrocele in his

testes”; and (3) plaintiff lacks the expert testimony necessary

to establish causation.

Count I

In Count I, plaintiff claims that Bourassa used excessive

force against him, in violation of the Fourteenth Amendment, by

striking him in the groin maliciously and sadistically, for the

purpose of inflicting pain.

“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

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(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

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

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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

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.

Given defendants’ contention that Bourassa is entitled to

summary judgment on Count I even if he struck Vosburgh’s groin

intentionally and sadistically, their argument appears to rest on

a suggestion that the alleged force used was not harmful enough

to rise to the level of a constitutional violation. The Supreme

Court has rejected a “‘significant injury’ requirement” in

excessive force claims, see id. at 9-10, and this is not a case

in which expert medical testimony is required to establish a

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causal relationship between Bourassa’s alleged chop to Vosburgh’s

groin and the pain Vosburgh experienced as a result. A jury can

well determine what happened and what damage resulted, if any.

Even without expert medical testimony about the cause of

Vosburgh’s hydroceles and varicocele, the undisputed factual

record includes twelve health services request forms, all dated

after the September 4 incident, in which Vosburgh complained

about groin pain. While perhaps less compelling than expert

medical testimony, the substance and timing of those request

forms support plaintiff’s claim that Bourassa’s action caused him

significant pain. “[T]he unnecessary and wanton infliction of

pain,” Hudson, 505 U.S. at 5, is prohibited, as cruel and unusual

punishment, by the Eighth Amendment. That is, whether or not

Bourassa’s action caused or exacerbated a hydrocele, plaintiff’s

HCHC medical records are sufficient, in support of his testimony,

to demonstrate that plaintiff reported groin pain continuously

for four months after his encounter with Bourassa and that those

complaints were taken seriously by the HCHC physician, who

ordered ultrasound testing in October and referred Vosburgh to an

outside specialist in December.

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Moreover, the persistence of plaintiff’s complaints about

pain distinguish this case from the cases defendants cite for the

proposition that plaintiff’s injury was de minimis. See

Carpenter v. Sheriff, No. 7:05cv00667, 2006 WL 2709691, at *4

(W.D. Va. Sept. 20, 2006) (ruling inmate groin injury to be de

minimis when plaintiff waited twenty-four hours to seek medical

treatment, exhibited no signs of pain thirty-six hours after the

incident, and symptoms completely dissipated within three days);

Rhoten v. Werholtz, 243 Fed. Appx. 364, 366 (10th Cir. 2007)

(affirming dismissal of excessive force claim where record showed

that prison “doctor found no evidence of injury to [plaintiff]’s

genitalia and pubic area and [plaintiff]’s groin and scrotum exam

was normal”); Thornley v. Flemming, No. Civ.A. 3:03CV419, 2004 WL

1348599, at *3 (E.D. Va. March 25, 2004) (ruling inmate groin

injury to be de minimis when inmate, alleging chop to the groin,

complained of pain only twice, on the day of the alleged assault

and again one week later); Mickle v. Ahmed, 444 F. Supp. 2d 601,

620 (D.S.C. 2006) (ruling dog bite to be de minimis when

plaintiff was treated in single visit to the emergency room and

suffered no complications).

Turning to defendants’ apparent contention that plaintiff

needs expert medical testimony to establish causation, the cases

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they rely upon for that proposition are not persuasive. For

example, in Moore v. Gwinnett County, 967 F.2d 1495 (11th Cir.

1992), the plaintiff claimed a Fourth Amendment violation based

upon her delivering a stillborn child several days after she had

been arrested and allegedly subjected to excessive force. 967

F.2d 1495, 1496-97 (11th Cir. 1992). The defendants moved for

summary judgment on grounds of qualified immunity. Id. at 1496. 

The trial court denied the motion, and the court of appeals

reversed, id., noting:

The record contains only one expert medical

opinion assessing these events - that of Moore’s

obstetrician, Dr. Khalad Goheer. Dr. Goheer rendered

the following opinions: (1) that he saw at delivery no

signs of maternal or fetal injury which would have

caused the fetus’s death; (2) there was no cause

apparent to him for the fetus’s death; and (3) some

cause other than an injury to Moore caused the death. 

The record also contains the opinions of Moore and her

husband to the effect that the child’s appearance at

birth led them to believe that he may have been injured.

Id. at 1497 (citations to the record omitted). In Moore, the

lack of expert medical testimony was fatal to plaintiff’s case

because the summary judgment record included a medical opinion

that directly contradicted plaintiffs’ claim that force inflicted

on her by the arresting officer caused the stillbirth of her

child. As the record in this case does not include a medical

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opinion that Vosburgh’s condition was not caused by Bourassa’s

alleged battery, Moore is not helpful. 

Other precedents upon which defendants rely are less

relevant and, as a consequence, less persuasive. See Bellezza v.

Fischer, No. 05 Civ. 98(DLC), 2006 WL 3019760, at *4 n.2

(S.D.N.Y. Oct. 24, 2006) (requiring expert medical opinion that

plaintiff’s physical symptoms were caused by allegedly unsafe

drinking water at Sing Sing Correctional Facility); Eichler v.

Sherbin, No. Civ S-04-1108 GEB JFM P, 2006 WL 2781747, at *5

(E.D. Cal. Sept. 25, 2006) (ruling that plaintiff’s lay opinion

about medical treatment was insufficient to create triable issue

when defendants had produced expert medical opinions that

plaintiff had received adequate treatment); Anthony v. Hill, No.

2:06-cv-9, 2007 WL 2914253, at *6 (W.D. Mich. Sept. 28, 2007)

(granting summary judgment to defendants where plaintiff claimed

correctional officers used excessive force by stepping on his

groin, but never sought medical treatment for alleged groin

injury). 

Finally, in a case from this circuit on which defendants

rely, in which the plaintiff alleged that his employer harassed

him to the point where he suffered “fatigue and depression which

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in turn resulted in attacks of angina,” Moody v. Me. Cent. R.R.

Co., 823 F.2d 693, 693 (1st Cir. 1987), Judge Coffin wrote:

We recognize the considerably relaxed standard of

proof in FELA cases. The test for minimally adequate

proof of causation is “whether the proofs justify with

reason the conclusion that employer negligence played

any part, even the slightest, in producing the injury

. . . .” Rogers v. Missouri Pacific R.R. Co., 352 U.S.

500, 506 (1957). But although a plaintiff need not

make a showing that the employer’s negligence was the

sole cause, there must be a sufficient showing (i.e.,

more than a possibility) that a causal relation

existed. The general principle has been stated by

Prosser and Keeton:

Where the conclusion [of causation] is not one

within common knowledge, expert testimony may

provide a sufficient basis for it, but in the

absence of such testimony it may not be drawn.

W.P. Keeton, The Law of Torts 269 (5th ed. 1984)

(footnotes omitted). Or, in the similar phrasing of

Harper and James,

Expert evidence is often required to establish the

causal connection between the accident and some

item of physical or mental injury unless the

connection is a kind that would be obvious to

laymen, such as a broken leg from being struck by

an automobile.

4 F. Harper, F. James, O. Gray, The Law of Torts § 20.2

(2d ed. 1986) (footnote omitted). See also Bushman v.

Halm, 798 F.2d 651, 658-59 (3d Cir. 1986). 

Id. at 695-96 (parallel citations omitted). While the connection

in Moody, between the treatment the plaintiff received from his

employer and the angina he developed, required expert testimony,

the situation in this case, four months of documented groin pain

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following a blow to the groin, has much more in common with a

broken leg caused by a collision with an automobile.

In sum, because defendants concede, for purposes of summary

judgment, that Bourassa struck Vosburgh in the groin, and the

undisputed factual record documents that plaintiff complained of

groin pain for four months after the September 4 incident,

defendants are not entitled to summary judgment that plaintiff’s

injury is constitutionally de minimis, and plaintiff’s lack of an

expert medical opinion on causation is not fatal to his claim. 

Defendants also argue that Bourassa is entitled to summary

judgment based on the doctrine of qualified immunity. Plaintiff

disagrees.

“[G]overnment officials performing discretionary functions

generally are shielded from liability for civil damages insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The

analytical framework for assessing a claim of qualified immunity

involves three separate inquiries:

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(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)). 

Here, summary judgment based upon qualified immunity is not

appropriate because, whether Bourassa deliberately struck

plaintiff in the groin, without a legitimate penalogical purpose,

and to cause plaintiff pain, are, on this record, genuine issues

of material fact. Cf. Mickle v. Morin, 297 F.3d 114, 122 (2d

Cir. 2002) (holding that grant of judgment as a matter of law

based upon qualified immunity was improper when facts were in

dispute); Kerman v. City of New York, 261 F.3d 229, 240 (2d Cir.

2001) (holding that “[s]ummary judgment on qualified immunity

grounds is not appropriate when there are facts in dispute that

are material to a determination of reasonableness”). If Bourassa

acted in the manner claimed, he obviously is not entitled to

qualified immunity.

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Moreover, it seems unlikely that qualified immunity could

ever be a defense to an Eighth-Amendment violation based upon the

use of excessive force. In Johnson v. Breeden, the Eleventh

Circuit explained:

In order to have a valid claim on the merits of

excessive force in violation of that constitutional

provision [i.e., the Eighth Amendment Cruel and Unusual

Punishment Clause], the excessive force must have been

sadistically and maliciously applied for the very

purpose of causing harm. Equally important, it is

clearly established that all infliction of excessive

force on a prisoner sadistically and maliciously for

the very purpose of causing harm and which does cause

harm violates the Cruel and Unusual Punishment Clause. 

So, where this type of constitutional violation is

established there is no room for qualified immunity. 

It is not just that this constitutional tort involves a

subjective element, it is that the subjective element

required to establish it is so extreme that every

conceivable set of circumstances in which this

constitutional violation occurs is clearly established

to be a violation of the Constitution by the Supreme

Court decisions in Hudson and Whitley.

Johnson v. Breeden, 280 F.3d 1308, 1321-22 (11th Cir. 2002). The

reasoning of Johnson is persuasive, and has been adopted by at

least one district court outside the Eleventh Circuit. In Thomas

v. Ferguson, the court explained:

More importantly, where malicious and sadistic use of

force is the issue of the constitutional cause of

action, the qualified immunity test collapses into the

same test as that of the constitutional issue, and is

thus superfluous. Malicious and sadistic use of force

is always in violation of clearly established law, so

qualified immunity affords no protections to defendants

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in Eighth Amendment excessive force cases. Skrtich v.

Thornton, 280 F.3d 1295, 1301 (11th Cir. 2002) (holding

“a defense of qualified immunity is not available in

cases alleging excessive force in violation of the

Eighth Amendment, because the use of force maliciously

and sadistically to cause harm is clearly established

to be a violation of the Constitution”); Johnson v.

Breeden, 280 F.3d 1308, 1321 (11th Cir. 2002) . . . .

361 F. Supp. 2d 435, 442 (D.N.J. 2004). The reasoning of

Skrtich, Johnson, and Thomas, is persuasive; it is difficult to

see any role for qualified immunity in this case — either no

constitutional violation occurred, or, if it did, qualified

immunity would afford no relief to defendant because it has long

been clearly established law that correctional officers may not

wantonly apply force for no reason but to inflict pain or harm

upon an inmate.

Count II

In Count II, plaintiff claims that “[b]y striking [him] in

the groin as alleged above, defendant Bourassa committed the

common law tort of assault, or unprivileged physical contact.” 

(Compl. ¶ 19.) Bourassa counters by recharacterizing Count II as

a battery claim, and arguing that his contact with plaintiff was

privileged and that plaintiff has failed to produce any evidence,

other than his own subjective opinion, that Bourassa struck him

intentionally.

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Regarding privilege, there can be no doubt that Bourassa was

privileged to touch plaintiff in the course of subjecting him to

a routine pat-down search. It is equally certain, however, that

once the pat-down was completed, Bourassa was not privileged to

strike plaintiff for the purpose of causing him harm or pain. 

Turning to plaintiff’s evidence of Bourassa’s intent,

defendants argue that plaintiff “concedes the lack of animosity

with Bourassa (before or after September 4th), his failure to see

the contact alleged, the customary hands-on nature of a patsearch, and the lack of any verbal commentary that would

objectively reflect the officer’s intentions.” (Def.’s Mem. of

Law (document no. 11-2), at 27.) On the other hand, plaintiff

testified during his deposition, that Bourassa struck him in the

groin only after patting down both of his legs, inside and out,

from top to bottom, which testimony supports a reasonable

inference that Bourassa completed a full pat-down search and

then, gratuitously, struck Bourassa in the groin without cause

and to inflict pain. That is enough to create a triable issue

concerning the nature of Bourassa’s conduct and the intent behind

it. Because the issue of privilege and the question of

Bourassa’s intent both depend upon resolution of disputed issues

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23

of material fact, Bourassa is not entitled to summary judgment on

Count II. 

Count III

In Count III, plaintiff claims that “defendant O’Mara is

. . . responsible for the common law misconduct of defendant

Bourassa as alleged in Count II under respondeat superior.” 

(Compl. ¶ 24.) O’Mara argues that, as a general matter,

employers are not liable for assault and battery committed by

their employees, and further argues, in reliance upon Daigle v.

City of Portsmouth, 129 N.H. 561 (1987), that he is entitled to

summary judgment on Count III because plaintiff has no evidence

that he, O’Mara, knew about or acquiesced in Bourassa’s conduct,

and no evidence that Bourassa 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,

Case 1:07-cv-00101-SM Document 35 Filed 08/05/08 Page 23 of 25
3 “Control” is one element of the ten-part test for

determining whether an employee-employer relationship exists, see

Porter, 155 N.H. at 153-54, but the existence of an employeeemployer relationship does not appear to be in dispute.

24

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

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. 

O’Mara argues that, absent evidence that he knew about or

acquiesced in the conduct at issue, and evidence that Bourassa

had previously engaged in such conduct, “plaintiff is unable to

prove, as a matter of law, that [he] had the requisite amount of

knowledge, foreseeability and control to succeed on a respondeat

superior theory.” While O’Mara’s argument is somewhat unclear –

as is the analytical import of “knowledge, foreseeability and

control”3 – he appears to be contending that plaintiff’s lack of

evidence precludes him from establishing the third element of the

“scope of employment” test. An employer may be held liable for

assaults committed by an employee under respondeat superior. In

Daigle the New Hampshire Supreme Court affirmed “a jury verdict

against the City of Portsmouth under the rule of respondeat

superior, predicated on findings that Portsmouth police officer

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Albert Pace committed [an] assault on Daigle while acting within

the scope of his employment.” 129 N.H. at 566.

Because the undisputed factual record does not require a

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

the scope of his employment when he allegedly beat plaintiff,

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

Conclusion

For the reasons given defendants’ motion to preclude

(document no. 13) is granted in part and their motion for summary

judgment (document no. 11) is denied.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

August 5, 2008

cc: Michael J. Sheehan, Esq.

John A. Curran, Esq.

Elizabeth L. Burley, Esq.

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