UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Michael Ledger,

Plaintiff

v. Civil No. 06-cv-411-SM

Opinion No. 2008 DNH 140

Ryan LeVierge, individually;

George Antilus, individually;

Nicholas Granville, individually;

Jason Riley, individually; Officers

John Doe, individually; James O’Mara,

as Superintendent of the Hillsborough

County Department of Corrections,

Defendants

O R D E R

Michael Ledger sues in three counts, seeking declaratory

relief and damages based upon allegations that correctional

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

unnecessarily placed him in a restraint chair and beat him. 

Before the court is defendants’ motion for summary judgment. 

Plaintiff objects. For the reasons given, defendants’ motion for

summary judgment is granted in part and denied in part.

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.

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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.” 

Id. (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

The following facts are not in dispute. At approximately

6:30 p.m. on February 7, 2006, plaintiff crashed his van. After

a five-hour stand-off with the Milford police, he was arrested

and transported to the Milford police station, where he was seen

by emergency medical technicians. He was then transported to the

HCHC, where he was seen by the jail’s nurse, who directed that he

be taken to a hospital. He spent approximately four hours at

Elliot Hospital, and was returned to the jail at about 6:30 a.m.

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on February 8. At 10:00 a.m. he was taken to court. He was

returned to the HCHC at about noon and was at the jail until

about 2:30 p.m., when he was again taken to Elliot Hospital. 

There, he was treated for a deep, 1 1⁄2-inch deep head laceration

and diagnosed with hematoma to both eyes. From Elliot Hospital

he was transferred to the Dartmouth Hitchcock Medical Center,

where he was diagnosed with a traumatic T-12 burst compression

fracture, i.e., a broken back, and an injury to his left wrist. 

The parties also agree on plaintiff’s movements in the HCHC

between his return from court and his second trip to Elliot

Hospital. Initially, he was placed in cell 2110, which has clear

lexan walls. He was then taken to cell 2098, a so-called “safety

cell.” Lt. Cunningham ordered that he be placed in a “restraint

chair.” To accomplish that, plaintiff was moved from cell 2098

to cell 2099, another “safety cell.” While in cell 2099,

plaintiff was placed in the restraint chair. At some point

thereafter, a nurse was called in to assess a cut on plaintiff’s

face. She cleaned and dressed the cut, and recommended that

plaintiff be taken back to Elliot Hospital. 

Plaintiff claims that defendants violated his constitutional

rights (Count I) and committed common law assault (Counts II and

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III) by placing him in the restraint chair and by beating him to

the point where he suffered a cut on his face, a broken back, and

injuries to his wrist. 

Discussion

Defendants contend that they are entitled to summary

judgment because: (1) the undisputed factual record demonstrates

that HCHC officers were justified in placing plaintiff in the

restraint chair; (2) plaintiff has no evidence that he was beaten

by HCHC officers or that his broken back was caused by the

alleged assault rather than the automobile accident he was

involved in just before his arrest; (3) plaintiff has inadequate

evidence to support the respondeat superior theory on which Count

III is based; and (4) the HCHC officers are entitled to qualified

immunity on plaintiffs’ claim that he was unlawfully placed in

the restraint chair. Plaintiff counters that summary judgment is

precluded by the existence of genuine issues of material fact.

Count I

Plaintiff claims, pursuant to 42 U.S.C. § 1983, that Sgt.

Ryan LeVierge, Officer George Antilus, FTO Nicholas Granville,

Sgt. Jason Riley, and the John Doe defendants violated his rights

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under the Fourteenth Amendment to the United States Constitution

by placing him in a restraint chair and beating him.

“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

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

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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

sadistically use force to cause harm, contemporary standards of

decency always are violated,” id. at 6-7.

 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.

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A. Use of the Restraint Chair

In his complaint, plaintiff alleges that he “did not exhibit

behavior that justified [his] placement into the restraint

chair,” (First Am. Compl. ¶ 19), and claims, in Count I, that

“[i]n violation of [his] Fourteenth Amendment rights, Le[V]ierge,

Antilus, Granville, Riley and the John Doe defendants improperly

placed [him] in the restraint chair and violently beat [him]”

(id. ¶ 34).

Even assuming that a correctional officer would violate the

Eighth Amendment by unjustifiably placing an inmate in a

restraint chair, defendants are nonetheless entitled to summary

judgment to the extent plaintiff’s claim is based upon

defendants’ use of the restraint chair.

Defendants have produced unrebutted evidence that Lt.

Cunningham ordered plaintiff to be placed in the restraint chair

after being informed that plaintiff repeatedly failed to comply

with Sgt. LeVierge’s command to sit down, a command he gave due

to his concern that plaintiff, who was wearing leg restraints,

was in danger of falling down if he did not sit down. Defendants

have also produced unrebutted evidence that when LeVierge went

into cell 1098 to get plaintiff, plaintiff quickly backed up,

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fell down, and struck the left side of his head on the wall of

the cell. The evidence on which defendants rely is an incident

report prepared by Sgt. LeVierge and his affidavit. (Defs.’ Mot.

Summ. J., Ex. O.)

It is undisputed that plaintiff has no memory of what took

place in the jail between his return from court on February 9 and

his second trip to the hospital. (Defs.’ Mot. Summ. J., Ex. B

(Ledger Dep.) at 163.) In response to defendants’ motion for

summary judgment, plaintiff argues that LeVierge’s report is not

corroborated by the reports of Sgt. Riley, FTO Granville, and

Officer Antilus, which “do not even describe when [plaintiff]

allegedly fell and cut his eye.” Based upon that lack of

corroboration, plaintiff further asserts that LeVierge made a

false report to Lt. Cunningham, which caused Lt. Cunningham to

issue the order to put him in the restraint chair. In

plaintiff’s view, the lack of corroboration in the reports of

Sgt. Riley, FTO Granville, and Officer Antilus creates a triable

issue of fact concerning whether he was placed in the restraint

chair for a valid penological purpose, or merely for the purpose

of maliciously and sadistically inflicting unwarranted punishment

and harm.

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Given the undisputed factual record, defendants’ use of a

restraint chair did not violate plaintiff’s constitutional

rights. Plaintiff has not carried his burden of “set[ting] 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, 488 F.3d at 39

(citation omitted). That is, he has produced no evidence from

which a reasonable trier of fact could conclude that HCHC

officers placed him in the restraint chair not for a legitimate

penological purpose, but to inflict unnecessary pain. Defendants

have produced evidence that plaintiff was placed in the restraint

chair because he refused to comply with orders, orders intended

to protect him from falling down while restrained. Plaintiff, on

the other hand, points to no evidence tending to show that he was

behaving in a manner that made the restraint chair unnecessary. 

Rather than producing any evidence of his own, plaintiff merely

says that defendants have not produced enough evidence. More is

required to stave off summary judgment. See id.

B. The Alleged Beating

Plaintiff’s claim that he was unlawfully beaten by HCHC

officers stands on a different footing. 

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Defendants argue that “there is simply no evidence at all

that officers ‘violently beat’ Ledger.” More specifically, they

argue that: (1) plaintiff has no recollection of the alleged

assault; (2) his claim is based entirely on the testimony of

fellow inmate Charles Glenn, who was never physically in a

position from which he could have seen any assault; (3) while

Glenn testified about an assault in cell 2098 perpetrated by Sgt.

Riley, Officer Antilus, and FTO Granville, he mentioned no

participation by Sgt. LeVierge and no assault in cell 1099 and/or

the restraint chair; and (4) Glenn’s testimony about an assault

by Sgt. Riley, Officer Antilus, and FTO Granville is disproven by

HCHC surveillance videotapes. Plaintiff counters by producing

portions of Glenn’s deposition along with affidavits from three

other HCHC inmates, each of whom says he heard and partially saw

several HCHC officers beat plaintiff while he was wearing

handcuffs in cells 2110 and 2098 and/or while he was strapped in

the restraint chair in cell 2099. Whether plaintiff was beaten

by Sgt. LeVierge, Sgt. Riley, Officer Antilus, and FTO Granville

is a genuine issue of material fact. Plaintiff has produced

evidence from which a jury could resolve the factual issue in his

favor.

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Defendants also argue that they are entitled to summary

judgment to the extent plaintiff claims that his alleged beating

resulted in a broken back, because he has failed to produce

probative evidence that his broken back was caused by anything

other than the motor vehicle accident that preceded his arrest. 

That argument is unavailing in light of plaintiff’s production of

reports by orthopaedic surgeon Davis W. Clark (Pl.’s Obj. to

Summ. J, Ex. 6)and forensic psychiatrist David J. Bourne (id.,

Ex. 8). The basic thrust of those reports is that a T-12 burst

fracture causes tremendous pain, and that if plaintiff had broken

his back in the motor vehicle accident, he would have perceived

and reported that pain during his first visit to Elliot Hospital,

and would not have been able to move his body in the way he did

on various videotapes taken prior to the alleged beating. Those

reports are more than sufficient to create a genuine issue of

material fact concerning the cause of plaintiff’s broken back.

Based on the foregoing, defendants’ motion for summary

judgment is granted in part and denied in part as to Count I. 

What remains is plaintiff’s claim that defendants violated his

constitutional rights by beating him, without justification,

during the time he spent in cells 2110, 2099, and 2098 between

noon and 2:30 on February 9, 2006. 

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Count II

In Count II, plaintiff asserts that “by placing [him] in the

restraint chair and by beating [him] . . . Le[V]ierge, Antilus,

Granville, Riley and the John Doe defendants committed the common

law tort of assault, or unprivileged physical contact.” (First

Am. Compl. ¶ 38.) The undisputed factual record demonstrates

that the physical contact involved in placing plaintiff in the

restraint chair was privileged, for the reasons given earlier. 

However, plaintiff has produced evidence sufficient to allow him

to go forward on an assault claim based upon the alleged beating. 

Accordingly, defendants’ motion for summary judgment is granted

in part and denied in part as to Count II.

Count III

In Count III, plaintiff asserts that Superintendent James

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 to 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.

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“Under respondeat superior, ‘an employer may be held

vicariously responsible for the tortious acts of its employee

[, even intentional torts like assault,] 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 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. 

Neither of the facts O’Mara identifies – knowledge of the

employees’ conduct in this case, and those employees’ previous

conduct – is necessary to prove the third element of “scope of

employment.” Certainly, if plaintiff were to prove that O’Mara

did know about or acquiesce in the conduct, that might tend to

support a claim that they acted with the purpose of serving the

employer.

Because the undisputed factual record does not support the

conclusion that LeVierge, Riley, Antilus, and Granville were

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acting beyond the scope of their employment, as a matter of law,

when they allegedly beat plaintiff, O’Mara is not entitled to

summary judgment on Count III.

Conclusion

For the reasons given, defendants’ motion for summary

judgment (document no. 20) is granted in part and denied in part. 

The case remains on track for trial on all three counts, subject

to the exclusion of plaintiff’s placement in the restraint chair

as a basis for liability.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

August 7, 2008

cc: Michael J. Sheehan, Esq.

John A. Curran, Esq.

Elizabeth L. Hurley, Esq.

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