Beaulieu v. NH Department of Corrections, Commissioner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Christopher Beaulieu
v. Civil No. 15-cv-012-JD
Cpl. Craig Orlando et al.1
REPORT AND RECOMMENDATION
Before the court is a Complaint Addendum (doc. no. 21)
filed by New Hampshire State Prison (“NHSP”) inmate Christopher
Beaulieu, asserting new claims and adding new defendants to this
action. The Complaint Addendum is before the court for
preliminary review pursuant to 28 U.S.C. § 1915A(a) and LR
4.3(d)(1).
Background2
Two claims are already pending in this matter. The first
1The defendants presently in this action are the following
New Hampshire State Prison (“NHSP”) employees: Sgt. Craig
Orlando; Corrections Officer Christopher Ziemba; Barbara T.
Slayton, LSW; Capt. Paul S. Cascio; and Kevin Stevenson, the
Administrator of the NHSP’s Secure Psychiatric Unit. In his
Complaint Addendum, Beaulieu names two additional NHSP employees
as defendants to this action: Lt. E. Orlando and Sgt. Michael S.
Shaw.
2In conducting this preliminary review, the court employs
the same standard set forth in the May 4, 2015, Report and
Recommendation (doc. no. 6).
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alleges that NHSP employees Craig Orlando and Christopher Ziemba
used excessive force against him on March 7, 2013, after Craig
Orlando falsely accused Beaulieu of assaulting him. The second
claim alleges that NHSP employees Barbara Slayton, Kevin
Stevenson, and Paul Cascio, failed to protect Beaulieu from a
known risk of serious harm when they acted or failed to act in a
manner that allowed him to be sexually assaulted by another
inmate on April 30, 2014.
In the Complaint Addendum (doc. no. 21), Beaulieu seeks to
add the following claims to this action:
 State law tort claims for assault and battery against
Craig Orlando and Ziemba, arising out of the March 7,
2013, incident that is the basis of the excessive
force claim.
 A state law tort claim for fraudulent
misrepresentation against Craig Orlando arising out of
that officer’s allegedly false report that Beaulieu
had assaulted him on March 7, 2013.
 State law tort claims for breach of duty and/or
negligence against NHSP Corrections Officers Craig
Orlando, Ziemba, E. Orlando, and Shaw, for failing to
secure evidence concerning the March 7, 2013,
incident.
 Eighth Amendment and state law claims against Shaw and
E. Orlando, in their supervisory capacities, as Craig
Orlando and Ziemba’s supervising officers on March 7,
2013.
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Discussion
I. Eighth Amendment Claim – Supervisory Liability
In general, supervisory liability under 42 U.S.C. § 1983
lies only where “an affirmative link between the behavior of a
subordinate and the action or inaction of his supervisor exists
such that the supervisor’s conduct led inexorably to the
constitutional violation.” Maldonado v. Fontanes, 568 F.3d 263,
275 (1st Cir. 2009) (internal quotation marks and citation
omitted). Beaulieu has not alleged facts that demonstrate an
affirmative link between the acts or omissions of E. Orlando and
Shaw, and the alleged use of excessive force against Beaulieu,
to assert supervisory liability against those individuals for
the Eighth Amendment Claim. Accordingly, the district judge
should dismiss the § 1983 supervisory liability claims against
E. Orlando and Shaw, to the extent they are alleged as Eighth
Amendment violations.
II. Official Capacity Claims and Claims for Injunctive Relief
Beaulieu asserts, in the Complaint Addendum (doc. no. 21),
claims against Craig and E. Orlando, Ziemba, and Shaw in both
their individual and official capacities. In his original
complaint (doc. no. 1), Beaulieu asserted damages claims and
claims for injunctive relief. Most of the requests for
injunctive release were related to claims that have been
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dismissed from this case. One request for relief, however asked
that “the DOC stop allowing me to be victimized.” Beaulieu has
neither sought preliminary injunctive relief, nor stated with
specificity facts sufficient to demonstrate entitlement to such
relief. Accordingly, the court finds that the request for
injunctive relief should be dismissed, without prejudice to
Beaulieu’s ability to seek such relief with more specificity, if
appropriate in the future.
As Beaulieu has not stated any viable claim for injunctive
relief in his complaint, only damages claims remain. The
Eleventh Amendment precludes official capacity suits against
state employees for damages. See Davidson v. Howe, 749 F.3d 21,
27-28 (1st Cir. 2014). Accordingly, the district judge should
dismiss all of the official capacity claims asserted in this
action.
III. State Law Claims
A. Fraudulent Misrepresentation
In New Hampshire, “[t]o prove fraud based on a
misrepresentation, a plaintiff must show that the defendant
knowingly made a false representation, intending the plaintiff
to rely on it, and that the plaintiff was injured by his
justifiable reliance on the misrepresentation.” Sykes v. RBS
Citizens, N.A., 2 F. Supp. 3d 128, 147 (D.N.H. 2014) (citing
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Tessier v. Rockefeller, 162 N.H. 324, 332 (2011)). Here,
Beaulieu alleges that Craig Orlando made a false statement
concerning Beaulieu’s actions, but does not state that he did so
in order to induce Beaulieu to rely on that statement. Beaulieu
has failed to state a fraudulent misrepresentation under New
Hampshire law, and the district judge should dismiss this claim.
B. Assault and Battery, Breach of Duty and Supervisory
Liability
The court finds that Beaulieu has sufficiently asserted
facts to allow state law claims for assault and battery and
negligent supervision, against Craig Orlando, Ziemba, E.
Orlando, and Shaw, as set forth above, to allow the court to
exercise supplemental jurisdiction over those claims under 28
U.S.C. § 1367. Without prejudice to the defendants’ ability to
move to dismiss those claims on any proper basis, the court, in
an Order issued simultaneously with this Report and
Recommendation, directs that service of process be effected on
new defendants Shaw and E. Orlando, and sets a deadline for the
remaining defendants who have previously been served -- Craig
Orlando, Christopher Ziemba, Barbara T. Slayton, Kevin
Stevenson, and Paul Cascio -- to answer or otherwise respond to
those claims.
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Conclusion
For the foregoing reasons, the district judge should
dismiss: the supervisory liability claims, to the extent that
those claims assert Eighth Amendment violations; all of the
official capacity claims and claims for injunctive relief
asserted in this action; and the fraudulent misrepresentation
claim. Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
R. Civ. P. 72(b)(2). Failure to file objections within the
specified time waives the right to appeal the district court’s
order. See Garayalde-Rijos v. Mun. of Carolina, 747 F.3d 15,
21-22 (1st Cir. 2014).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
March 16, 2016
cc: Christopher R. Beaulieu, pro se
Laura E.B. Lombardi, Esq.
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