Doiron v. Lemay et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Arthur J. Doiron
v. 	Civil No. 16-cv-326-PB
Capt. FNU Edmark et al.
REPORT AND RECOMMENDATION
Plaintiff Arthur J. Doiron has filed complaint addenda
(Doc. Nos. 39, 40), seeking to add claims and defendants to this
action. 	The complaint addenda are before the court for
preliminary review, pursuant to LR 4.3(d)(1).1
Background
The claims presently pending in this case arise out of a
June 17, 2016 incident in which, Doiron alleges, defendant
corrections officers (“COs”) Glenn Nimorowski and Jason Caruso
used excessive force against Doiron, and were negligent, by
leaving him, tightly handcuffed, in his cell, and that CO Robert
LeMay failed to protect Doiron, and was negligent, by refusing
to remove the handcuffs. 	In the complaint addenda (Doc. Nos.
39, 40) Doiron now seeks to add the following additional claims
1In conducting this preliminary review, the court applies
the same standard set forth in the October 26, 2016 Report and
Recommendation (Doc. No. 5) issued in this case.
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and defendants to this action:
• 	“CO John Doe,” whose identity is not known, violated
Doiron’s Eighth Amendment right to be protected from harm
while incarcerated, and is liable to Doiron for the tort of
negligence, in that on June 17, 2016, while Doiron was in
his cell, handcuffed, CO John Doe refused Doiron’s request
to contact a supervising officer so that Doiron could
report that he had been left in his cell in handcuffs;
• 	New Hampshire State Prison (“NHSP”) Warden Michael Zenk
violated Doiron’s Eighth Amendment right to be protected
from harm while incarcerated, and is liable to Doiron for
the tort of negligence, in that Zenk: (1) denied Doiron’s
June 23, 2016 grievance, in which Doiron (a) grieved being
left in his cell in handcuffs on June 17, 2016, expressed
concern that he would be subjected to retaliation for
filing a grievance about the June 17, 2016 incident, and
sought to be moved to another housing unit; and, (2) by not
granting the grievance’s request that Doiron be moved,
effectively allowed Doiron to be left in his cell in
handcuffs on July 14, 2016 by Cpl. Turcotte, whose first
name is unknown, in retaliation for Doiron’s filing of a
grievance about the June 17, 2016 incident; and
• 	Cpl. Turcotte, a supervising officer on Doiron’s housing
unit, violated Doiron’s Eighth Amendment right not to be
subjected to excessive force, is liable to Doiron for the
tort of negligence, and violated Doiron’s First Amendment
right to petition the government for a redress of
grievances, in that Turcotte left Doiron in his cell in
handcuffs on July 14, 2016, in retaliation for Doiron
filing a grievance about the June 17, 2016 incident.
Discussion
I. 	CO John Doe
Doiron has asserted sufficient facts to state an Eighth
Amendment failure to protect claim and a negligence claim
against CO John Doe upon which relief might be granted.
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Although Doiron has not named the John Doe officer, he has
indicated that he may be able to do so after discovery is
conducted in this case. 	Significant discovery in this case,
concerning the claims and defendants initially allowed to
proceed in this matter, has already occurred. 	Accordingly, the
court, in an Order issued simultaneously with this Report and
Recommendation, directs Doiron to identify CO John Doe by name.
If Doiron is not able to identify CO John Doe at this time, he
must so notify the court, stating what discovery materials he
needs to determine CO John Doe’s identity.
II. 	Warden Michael Zenk
A. 	Denial of Grievance
A prisoner does not have a right to have an administrative
grievance granted. 	Further, a prisoner does not have a right to
a particular housing placement. 	To the extent Doiron seeks to
assert a claim based on the contents of Zenk’s denial of
Doiron’s grievance, or Zenk’s refusal to move Doiron, therefore,
the district judge should dismiss the claim.
B. 	Failure to Protect
Doiron asserts that in his June 23, 2016 grievance, he
advised Zenk of his general concern that he would be subject to
retaliation for grieving the June 17, 2016 incident.
[A] prison official violates an inmate’s Eighth Amendment
right against cruel and unusual punishment “based on a
failure to prevent harm” to the inmate only under two
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circumstances: “the inmate must show that he is
incarcerated under conditions posing a substantial risk of
serious harm,” and the prison official must have acted, or
failed to act, with “deliberate indifference to inmate
health or safety.”
Lakin v. Barnhart, 758 F.3d 66, 70 (1st Cir. 2014) (quoting
Farmer v. Brennan, 511 U.S. 825, 834 (1st Cir. 1994)).
Assuming, without deciding, that Doiron could demonstrate
that he was subjected to a significant risk of serious harm when
Turcotte left him in his cell in handcuffs, Doiron cannot
demonstrate that Zenk was deliberately indifferent to such a
risk. 	Doiron does not indicate that he told Zenk that any
specific threat was made, that he was concerned about
retaliation from any particular individual, or that his concern
arose from anything other than a generalized or speculative fear
of retaliation. 	Without facts showing that Zenk had notice of a
specific reason to believe that Doiron was at a risk of serious
harm, Doiron has failed to demonstrate that Zenk was actually
aware of such a risk, much less that he was deliberately
indifferent thereto. 	Accordingly, the district judge should
dismiss Doiron’s failure to protect claim asserted against Zenk.
III. Cpl. Turcotte
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A. 	Excessive Force
Doiron asserts that on July 14, 2016, Cpl. Turcotte used
excessive force upon him when Turcotte escorted Doiron to his
cell, and left him in the cell in handcuffs. 	The Eighth
Amendment protects a prisoner from excessive force that amounts
to cruel and unusual punishment. 	See Skinner v. Cunningham, 430
F.3d 483, 488 (1st Cir. 2005). 	In determining whether a
plaintiff has established a claim for excessive force, the “core
judicial inquiry is . . . whether force was applied in a good-
faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.” 	Hudson v. McMillian, 503 U.S.
1, 7 (1992). 	Relevant factors include: (1) the need for the use
of force, (2) the relationship between the need and the amount
of force applied, (3) the extent of injury inflicted, (4) the
“threat ‘reasonably perceived by the responsible officials,’”
and (5) “‘any efforts made to temper the severity of a forceful
response.’” 	Id. (citing Whitley v. Albers, 475 U.S. 312, 321
(1986)).
Here, Doiron has not described circumstances surrounding
Turcotte’s alleged use of excessive force demonstrating that his
actions were an excessive reaction to the circumstances as
Turcotte perceived them to be at that time. 	Further, nothing in
Doiron’s allegations indicates that Turcotte acted with malice
or a sadistic intent to cause Doiron harm. 	Accordingly, Doiron
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has failed to state sufficient facts to assert an excessive
force claim against Turcotte upon which relief might be granted,
and the district judge should dismiss that claim from this
action.
B. 	Retaliation
Doiron has stated sufficient facts to demonstrate that
Turcotte’s July 14, 2016 act of leaving Doiron in his cell with
handcuffs, while not an exertion of excessive force, was a non-
de minimis adverse act which occurred after Doiron exercised his
First Amendment right to file an administrative grievance.
While Doiron has not asserted facts directly demonstrating a
causal nexus between retaliatory intent and the adverse act
alleged, his allegations concerning the timing and chronology of
events are sufficient to demonstrate causation for the purposes
of stating a retaliation claim upon which relief might be
granted. 	See Hannon v. Beard, 645 F.3d 45, 49 (1st Cir. 2011)
(“In some instances, circumstantial evidence (say, the temporal
proximity between a protected act and an adverse action,
falsification of institutional records, or deviation from
standard operating procedures) may suffice” to establish
causation.). 	Doiron has stated sufficient facts to assert a
retaliation claim against Turcotte and, in an Order issued
simultaneously with this Report and Recommendation, the court
directs service of that claim upon Turcotte.
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Conclusion
For the foregoing reasons, the court recommends that the
district judge dismiss from Doiron’s complaint addenda (Doc.
Nos. 39, 40), all of the claims asserted against Warden Michael
Zenk, and the excessive force asserted against Cpl. Turcotte.
The court also recommends that the district judge drop Zenk from
this action.
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). 	The fourteen-day period may be extended
upon motion. 	Failure to file specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
March 2, 2018
cc: 	Arthur Doiron, pro se
Scott Edward Sakowski, Esq.
Lynmarie C. Cusack, Esq.
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