Beaulieu v. NH Governor, et al.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Christopher Beaulieu
a/k/a Crystal Beaulieu
v. Civil No. 16-cv-471-JD
New Hampshire Governor et al.1
REPORT AND RECOMMENDATION
Before the court is plaintiff Christopher “Crystal”
Beaulieu’s complaint (Doc. No. 1), and amended complaint (Doc.
No. 12), filed pursuant to 42 U.S.C. § 1983, asserting that the
defendants, a New Hampshire State Prison (“NHSP”) inmate and New
1The defendants named in the complaint (Doc. No. 1) and
amended complaint (Doc. No. 12) are: (former) New Hampshire
Governor Margaret W. Hassan; New Hampshire Department of
Corrections (“DOC”) Commissioner William L. Wrenn; New Hampshire
State Prison (“NHSP”) Warden Michael A. Zenk; DOC Director of
Professional Standards Colon K. Forbes; DOC Chief Investigator
Marc Marchand; DOC Investigator James Azzara; DOC Investigator
Sgt. Joel A. Dinsmoor; NHSP Special Housing Unit (“SHU”)/Closed
Custody Unit Capt. Michael Edmark; SHU Security Lt. Paul
Carroll; DOC Secure Psychiatric Unit Sgt. Gary Lydick;
Corrections Officer (“CO”) G. Nimorowski; Shawn M. Cook; Lt.
Scott Marshall; Investigator and former SHU CO David Dionne;
Sgt. Jeremiah Totten; CO Dominic Salce; Probation/Parole Officer
Scott Harrington; CO Timothy Miller; CO Young, whose first name
is unknown (“FNU”); CO Jason Caruso; Capt. John Masse; Lt.
Andrew Newcombe; Sgt. FNU Pelletier; Unit Manager Kathleen
Anderson; FNU Mizhall; CO FNU Ward; CO FNU Camirand; CO
Christopher Brownlie; Cpl. Pat Wright; Maj. Jon Fouts; Jean
Carroll; DOC Hearings Officer (“HO”) Linda J. Paulsen; HO FNU
Barton; Director FNU Kench; Lt. FNU Morin; Sgt. FNU Denis; Sgt.
FNU Howland; Jon Hanson; Paula Mattis; Capt. FNU Boynton; SHU
Sgt. Stefan Czak; CO Eric Turner; Cpl. FNU Paz; CO FNU
Lamontagne; Lt. John Aulis, and Cpl. FNU Stone.
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 1 of 28

2
Hampshire Department of Corrections (“DOC”) employees, have
violated Beaulieu’s federal constitutional rights and have
engaged in tortious conduct rendering them liable under state
law. The complaint and amended complaint are before the court
for preliminary review, pursuant to 28 U.S.C. § 1915A(a) and LR
4.3(d)(1).
Discussion
I. Preliminary Review Standard
In determining whether a pro se pleading states a claim,
the court construes the pleading liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Disregarding any legal
conclusions, the court considers whether the factual content in
the pleading and inferences reasonably drawn therefrom, taken as
true, state a claim to relief. Hernandez-Cuevas v. Taylor, 723
F.3d 91, 102-03 (1st Cir. 2013) (citing Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)).
II. Discussion
A. Discrimination and Equal Protection
1. Standard
Beaulieu asserts claims of discrimination based on her
status as a transsexual inmate and she also alleges that she has
been assigned to a single cell in SHU in a discriminatory
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 2 of 28

3
manner. “‘The Equal Protection Clause contemplates that
similarly situated persons are to receive substantially similar
treatment from their government.’” Davis v. Coakley, 802 F.3d
128, 132 (1st Cir. 2015) (citation omitted). To establish an
equal protection claim, a plaintiff needs to allege facts
showing that “‘(1) the [plaintiff], compared with others
similarly situated, was selectively treated; and (2) that such
selective treatment was based on impermissible considerations
such as race, religion, intent to inhibit or punish the exercise
of constitutional rights, or malicious or bad faith intent to
injure [the plaintiff].’” Id. at 132-33 (citations omitted).
“Unequal treatment that does not involve a fundamental right or
suspect classification is justified if it bears a rational
relation to legitimate penal interest.” Druley v. Patton, 601
F. App’x 632, 635 (10th Cir. 2015) (citing City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439-40 (1985)).
2. Gender Identity
Beaulieu is a transsexual inmate who has been incarcerated
since January 6, 2011 at the NHSP, a facility that almost
exclusively houses male prisoners. Beaulieu asserts that, since
2011, prison officials have been aware that she is a
transsexual, and that she is at a high risk of harm at the
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 3 of 28

4
prison because she is a transsexual.2 During her incarceration
at the NHSP, Beaulieu has held herself out as a transsexual
female, and has attempted to live as a female, including the way
she wears her clothing, wears makeup, and styles her hair. In
October 2015, during her present incarceration, Beaulieu began
hormone treatment.
Beaulieu alleges that the DOC allows nontranssexual female
inmates in its custody to have makeup, earrings, hair dryers,
and other items available in the female property catalog.
Beaulieu claims that, as a transsexual woman, she is being
treated differently than other women in DOC custody, as she has
no access to those items. Beaulieu asserts that on occasions
when she has been able to wear makeup in the prison, she has not
had trouble with any inmate on that basis.
While housed in the prison’s Special Housing Unit (“SHU”),
Beaulieu asserts that she, like other SHU inmates, is only able
to shave once a month. As a result, she has been forced to grow
facial hair that, due to her female gender identity, has caused
her severe distress.
Beaulieu alleges that she has made efforts to have the
policies denying her access to female items and shaving
2Plaintiff identifies as female and the court honors her
preference for a female name and female pronouns.
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 4 of 28

5
reversed. She asserts that Warden Michael Zenk has been
unwilling to change policies at the NHSP to allow her to have
those items and to shave more frequently while in SHU.
Beaulieu’s Fourteenth Amendment equal protection claims
concerning the denial of female items and the inability to shave
more than once a month while in SHU are sufficiently stated to
survive preliminary review. The only defendant Beaulieu has
specifically named as to this claim is Warden Zenk. In an Order
issued simultaneously with this Report and Recommendation (the
“Simultaneous Order”), the court directs service of Fourteenth
Amendment equal protection claims, alleging the denial of access
to female items and more frequent opportunities to shave at SHU,
upon Zenk.
3. Single-Cell Housing
Beaulieu alleges that while housed in SHU from 2015 through
2017, she has been generally denied cellmates. Beaulieu was
told that she was in a single cell due to her history of
accusing cellmates of sexual assault or having cellmates accuse
her of sexual assault. Between 2015 and 2017, several other
transsexuals have been housed in SHU. Beaulieu alleges that the
other transsexual inmates in SHU have been allowed to have
cellmates, although at least one of them has accused cellmates,
and/or has been accused by cellmates, of sexual assault.
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 5 of 28

6
To the extent Beaulieu states that any defendant treated
her differently than other inmates in SHU by denying Beaulieu a
cellmate, the facts alleged do not indicate that Beaulieu was
treated differently because of her status as a transsexual
inmate or her affiliation with any other class of individuals.
Furthermore, Beaulieu has not pleaded facts to state a claim
that she was singled out for discrimination for reasons unique
to her. Such a “class of one” equal protection claim requires
proof of “‘an extremely high degree of similarity between
[plaintiffs] and the persons to whom they compare themselves’”;
Beaulieu must show that she and the other comparator inmate
“‘engaged in the same activity . . . without such distinguishing
or mitigating circumstances as would render the comparison
inutile.’” Snyder v. Gaudet, 756 F.3d 30, 34 (1st Cir. 2014)
(citations omitted). In addition, a “class of one” plaintiff
must generally plead facts to “show that the defendant’s
differential treatment of the plaintiff was motivated by ‘bad
faith or malicious intent to injure.’” Id. (citation omitted).
There are numerous factors that might impact prison
officials’ housing decisions, including fluctuations in inmate
population numbers, the nature of the assault claims that an
inmate has lodged against her cellmate or has had asserted
against her, as well as other factors that are unique to the
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 6 of 28

7
inmates who might be housed together. Beaulieu has not pleaded
sufficient facts to show that any transsexual SHU inmate allowed
to have a cellmate was similarly situated to Beaulieu in all
relevant respects. Accordingly, Beaulieu has failed to state a
claim of a violation of her right to equal protection based on
being housed without a roommate in SHU, and the district judge
should dismiss that claim.
B. Endangerment
1. Standard
The Eighth Amendment “prohibits prison officials from
depriving inmates of ‘the minimal civilized measure of life’s
necessities.’” Brown v. Plata, 131 S. Ct. 1910, 1959 (2011)
(citation omitted). “‘[A] prison official cannot be found
liable under the Eighth Amendment for denying an inmate humane
conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety.’”
Giroux v. Somerset Cty., 178 F.3d 28, 32 (1st Cir. 1999)
(citations omitted). Beaulieu alleges that defendants violated
her Eighth Amendment rights by creating, or failing to prevent,
a significant risk to her safety.
2. Endangerment Claims to be Served
The following endangerment claims, which have been asserted
both as Eighth Amendment violations and as state law negligence
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 7 of 28

8
claims, may proceed:
 Claims against SHU Sgt. Stefan Czak and Corrections
Officer (“CO”) Eric Turner for housing Beaulieu with
inmate Shawn Cook in March 2015, knowing that Beaulieu
was at particular risk of sexual victimization and
that Cook had a history of sexual assault;
 Claims that defendants Capt. Michael Edmark and Lt.
Scott Marshall, knowing that Beaulieu suffers from
mental health problems, housed Beaulieu in a cell that
was situated underneath inmate Cook’s cell, on May 20,
2015, while the investigation of Beaulieu’s sexual
assault claim against Cook was ongoing, and knowingly
allowing Cook to harass and threaten Beaulieu, thus
creating a substantial risk to Beaulieu’s mental
health;
 A claim that an unnamed officer, now identified by the
court as John Doe #1,3 on May 27, 2016, put Beaulieu
in a cell with an inmate who the officer knew or
should have known was a member of a gang with which
Beaulieu had prior difficulties, thus placing Beaulieu
at a substantial risk of serious harm;
 Claims that CO Christopher Brownlie told another
inmate that Beaulieu was a “rat,” CO Young told
inmates that Beaulieu was a “rat” and a “skinner,” and
CO Dominic Salce yelled, where all of the inmates on
Beaulieu’s tier could hear him, that Beaulieu had
requested statement forms, which Beaulieu claims Salce
knew would cause other inmates to think Beaulieu is a
“rat,” thus placing Beaulieu at a substantial risk of
serious harm from other inmates;
 Claims that Warden Zenk, Maj. Jon Fouts, Capt.
Boynton, Lt. Paul Carroll, Sgt. Gary Lydick, Sgt.
Jeremiah Totten, Cpl. Stone, and Cpl. Pat Wright,
knowing that Beaulieu suffers from mental health
problems, allowed Brownlie to work in proximity to,
3Beaulieu is expected to use the discovery process to obtain
the name of any defendant that the court has identified as a
“Doe” defendant in this action, and to move promptly to amend
the complaint accordingly.
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 8 of 28

9
and interact with, Beaulieu during the investigation
of Beaulieu’s sexual assault accusation against
Brownlie, and allowing Brownlie to harass Beaulieu,
thus creating a substantial risk of serious harm to
Beaulieu’s mental health;
 After July 28, 2016, Sgt. Lydick, Lt. Carroll, and
Capt. Edmark, knowing that CO David Dionne had
previously used excessive force on Beaulieu and
harassed Beaulieu, and knowing that Beaulieu suffers
from mental health problems, allowed Dionne to
continue to work in proximity to Beaulieu, thus
creating a substantial risk of serious harm to
Beaulieu’s mental health; and
 On July 6, 2017, Sgt. Totten, CO Jason Caruso and Lt.
Marshall denied Beaulieu’s request to see a mental
health worker when Beaulieu told the officers she was
actively suicidal and instead told Beaulieu to “just
kill [her]self,” and laughed at and provoked Beaulieu,
thus creating a substantial risk of serious harm to
Beaulieu’s mental health.
In the Simultaneous Order, the court directs service of these
endangerment claims on the defendants named in those claims.
3. Denial of Protective Custody
On December 5, 2016, Beaulieu alleges that while Sgt.
Totten was escorting her to I-Tier, Beaulieu told Totten that
she was in fear for her safety on I-Tier, but Totten attempted
to force her to live there anyway, and would not let her seek
protective custody status. Beaulieu was not placed on I-Tier at
that time. Beaulieu’s allegations concerning Totten’s refusal
to place Beaulieu in protective custody are insufficient to
demonstrate that Totten was aware of an actual, substantial risk
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 9 of 28

10
to Beaulieu’s safety, and failed to protect Beaulieu from that
risk. Accordingly, the district judge should dismiss Beaulieu’s
endangerment claim alleging that Totten denied her protective
custody.
4. SHU Shaving Policy
Beaulieu asserts that while in SHU, inmates are only
allowed to shave once a month. Beaulieu has lived in SHU, as a
transsexual, for much of the last six years, and states that,
although she is receiving hormone treatment, the SHU shaving
policy results in her growing facial hair between shaves.
Beaulieu states that defendants do not except her from the SHU
shaving policy, although they are aware that she has mental
health problems, and that she is a transsexual. Beaulieu has
failed, however, to allege that defendants were actually aware
that not allowing Beaulieu to shave more frequently would create
a substantial risk of serious harm to her mental health.
Accordingly, Beaulieu has failed to state an endangerment claim
arising from imposition of the SHU shaving policy, and the
district judge should dismiss that claim.
C. Retaliation
1. Standard
To state a First Amendment retaliation claim, an inmate
must allege: (1) that the conduct which led to the retaliation
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 10 of 28

11
was protected by the First Amendment; (2) that she or he
suffered adverse action at the hands of the prison officials;
and (3) that there was a causal link between the exercise of her
or his First Amendment rights and the adverse action taken. See
Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011). De minimis
reactions to protected speech are not actionable. See Morris v.
Powell, 449 F.3d 682, 685-86 (5th Cir. 2006). An adverse act
taken in response to protected conduct is not de minimis,
however, if it would deter an individual of ordinary firmness
from exercising his or her First Amendment rights. See id.; see
also Starr v. Dube, 334 F. App’x 341, 342-43 (1st Cir. 2009).
2. Retaliation Claims to be Served
Beaulieu has alleged the following First Amendment
retaliation claims which may proceed and, of which the court
directs service in the Simultaneous Order:
● In retaliation for Beaulieu’s complaint against CO
Chandonnet, accusing that officer of sexually assaulting
her, as well as Beaulieu’s grievances and lawsuits filed
against DOC staff members, Beaulieu was charged by an
unnamed officer, now identified by the court as John Doe
#2, with a disciplinary violation for disrespecting
Chandonnet for verbally objecting to him touching her
chest; and Sgt. Pelletier, CO John Aulis, Lt. Andrew
Newcomb and other officers charged her with disciplinary
infractions;
● Shortly after Beaulieu and NHSP Reception and
Diagnostics Unit Manager Kathleen Anderson reviewed video
evidence relevant to Beaulieu’s pending civil lawsuits
against DOC staff members, a “Keep Away” directive was
placed by unnamed prison officials, identified by the court
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 11 of 28

12
as “Keep Away John Does,” that prevented Beaulieu from
having any contact with inmate Steven Newcombe, in
retaliation for Beaulieu’s grievances and lawsuits against
DOC staff members;
● Between February 27, 2017 and May 10, 2017, while
Beaulieu was living in the NHSP Hancock Unit, Lt. Newcomb,
Sgt. Pelletier, Capt. John Masse, Cpl. Paz, and CO
Lamontagne wrote Beaulieu up for numerous disciplinary
violations, in retaliation for her previous accusations of
sexual assault against a corrections officer, and
grievances and lawsuits she filed against DOC staff
members; and
● In retaliation for Beaulieu’s complaint against CO
Brownlie, accusing that officer of sexually assaulting her,
as well as Beaulieu’s grievances and lawsuits filed against
other DOC staff members: Sgt. Lydick inflicted unnecessary
force on Beaulieu, causing her severe pain, on May 11,
2017; officers who work with Brownlie, including CO Timothy
Miller, charged Beaulieu with four false disciplinary
reports; Cpl. Wright told Beaulieu to kill herself in order
to cause Beaulieu severe distress; CO Young told other
inmates that Beaulieu is a “rat” and a “skinner”; and Sgt.
Totten, CO Caruso, Lt. Carroll, Capt. Edmark, and Sgt.
Lydick inflicted unprovoked excessive force on Beaulieu by
tazing and kicking her, and placing her in a restraint
chair on July 6, 2017.
3. De Minimus Adverse Acts
In addition to the retaliatory acts asserted above,
Beaulieu has alleged retaliatory acts that the court finds are
de minimis, and thus insufficient to support a retaliation claim
upon which relief might be granted. Specifically, Beaulieu has
alleged that defendants have: subjected her to verbal
harassment; subjected her to unfavorable housing conditions,
including denial of a cellmate and placement in dayrooms;
threatened Beaulieu with transfer to the Northern New Hampshire
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 12 of 28

13
Correctional Facility (“NCF”); denied Beaulieu some of her
property for one or two days at a time; searched and/or
“trashed” her cell; falsely accused Beaulieu of having a
romantic and/or sexual relationship with another inmate; and
charged only Beaulieu with a disciplinary violation, on July 18,
2017, and did not charge the other inmate with whom Beaulieu was
violating prison rules. Accordingly, as to these acts, Beaulieu
has failed to state retaliation claims upon which relief might
be granted, and the district judge should dismiss the
retaliation claims based on those allegations.
D. Disciplinary Hearings
Beaulieu alleges that during the many disciplinary hearings
she has been involved in during her incarceration at the NHSP,
she has been subjected to unfair treatment, in violation of her
Fourteenth Amendment due process rights. Due process
requirements apply only to the deprivation of protected
interests in life, liberty, or property. See Mathews v.
Eldridge, 424 U.S. 319, 332 (1976); González-Fuentes v. Molina,
607 F.3d 864, 880 n.13 (1st Cir. 2010). Protected liberty
interests, for a prisoner challenging the imposition of
sanctions through disciplinary proceedings, “will be generally
limited to freedom from restraint which, while not exceeding the
sentence in such an unexpected manner as to give rise to
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 13 of 28

14
protection by the Due Process Clause of its own force
nonetheless imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.”
Sandin v. Conner, 515 U.S. 472, 484 (1995) (citations omitted).
Beaulieu alleges that, after disciplinary hearings at which
Beaulieu asserts she was denied due process, HO Paulsen and HO
Barton sanctioned her with the temporary loss of canteen, phone
privileges, and up to fifty days of punitive segregation. Such
disciplinary sanctions are not atypical or significant “in
relation to the ordinary incidents of prison life,” id., and
thus do not give rise to a viable due process claim. See, e.g.,
id. at 484 (30 days in punitive segregation did not implicate
liberty interest); Umondak v. Ginsel, 426 F. App’x 267, 268-69
(5th Cir. 2011) (loss of recreation for 25 days did not
establish due process violation); Towle v. Eldridge, No. 11-cv-
293-SM, 2011 WL 6965471, at *2-*3, 2011 U.S. Dist. LEXIS 150862,
at *6, *9-*10 (D.N.H. Dec. 20, 2011) (49 days in pending
administrative review status in segregation; 75 days loss of
phone and canteen; 75 hours of extra duty; 20 days in punitive
segregation (10 days imposed and 10 days suspended), were not
atypical and significant hardships), R&R approved, No. 11-cv-
293-SM, 2012 WL 40458, 2012 U.S. Dist. LEXIS 2611 (D.N.H. Jan.
6, 2012). Accordingly, the district judge should dismiss
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 14 of 28

15
Beaulieu’s claims alleging that she was denied due process
protections at disciplinary hearings.
Beaulieu further alleges that supervising prison officials
were negligent for allowing disciplinary hearings to be held
that violate due process. As Beaulieu fails to assert any
federal due process claim, however, the district judge should
decline to exercise jurisdiction over Beaulieu’s state law
negligence claims, without prejudice to Beaulieu’s ability to
assert such claims in state court.
E. Excessive Force
1. Standard
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
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 15 of 28

16
temper the severity of a forceful response.’” Id. (citing
Whitley v. Albers, 475 U.S. 312, 321 (1986)).
“[D]e minimis uses of physical force, provided that the use
of force is not of a sort repugnant to the conscience of
mankind,” however, do not violate the Eighth Amendment. Hudson,
503 U.S. at 9-10 (internal quotation marks and citations
omitted). “An inmate who complains of a push or shove that
causes no discernible injury almost certainly fails to state a
valid excessive force claim.” Wilkins, 559 U.S. at 38 (internal
quotation marks and citations omitted).
2. Excessive Force Claims to be Served
Beaulieu has alleged excessive force claims that survive
preliminary review, as follows:
 On an unspecified date in 2016, CO G. Nimorowski, while
escorting Beaulieu between areas of the prison, without
provocation and while Beaulieu was handcuffed, pulled and
twisted Beaulieu’s arm, and then, when Beaulieu told
Nimorowski that he was hurting her, Nimorowski forcefully
pushed her handcuffs toward her elbows, causing her pain;
 On December 5, 2016, Sgt. Jeremiah Totten was escorting
Beaulieu between areas of the prison, and when Beaulieu
refused to live on a particular tier in SHU, and then
stated that she was suicidal, Totten slammed Beaulieu’s
head against the window, held her against the window by her
arms, and, when Beaulieu, in response, smashed her own head
against the window, Totten slammed Beaulieu against a
doorframe and then slammed her face into the floor, while
Beaulieu was not resisting Totten’s attempts to restrain
her;
 Shortly after May 11, 2017, in response to Beaulieu’s
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 16 of 28

17
accusation of sexual assault against CO Brownlie, Sgt.
Lydick, without provocation, forced Beaulieu to the ground
while she was in handcuffs, without allowing her the
opportunity to get down voluntarily, and other unnamed
officers, now identified by the court as “May 11 John
Does,” then got “on” Beaulieu while she was on the floor in
handcuffs, causing her severe pain; and
 On May 27, 2017, in response to Beaulieu smashing her cup,
which she did because she was suicidal and had been refused
mental health care, CO Caruso, CO Young, Capt. Edmark, Lt.
Carroll, and Sgt. Lydick forcibly pulled Beaulieu’s arms
through the tray slot in her door and handcuffed her, put
her on the floor in the SHU rotunda, where Lydick shot her
with a Tazer and, before she got off the floor, Edmark
kicked her in the face, and after she got up, Caruso and
Young pulled her arms while she was handcuffed, then
dropped her to the ground on her shoulder while the other
officers present fell on top of her and finally, placed her
in a restraint chair for four hours.
In the Simultaneous Order, the court directs service of these
excessive force claims on the defendants named in those claims.
3. July 28, 2016 Incident
Beaulieu alleges that on July 28, 2016, she engaged in
self-harming behavior, and was placed in a restraint chair.
Although she did not resist this restraint, Beaulieu claims that
the officers who strapped her into the chair did so too
forcefully, and that CO Dionne placed her in a headlock while
she was being strapped into the restraint chair, causing her to
have a bruise that lasted for three days and a stiff neck that
lasted for two days.
Even generously construed, the facts asserted by Beaulieu
do not make out more than a “de minimis” use of force by Dionne
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 17 of 28

18
and the officers who strapped Beaulieu into the chair. Further,
as Beaulieu describes it, the officers were acting to protect
her in a situation in which was actively trying to harm herself.
Nothing in the facts asserted suggests that Dionne or any other
officer struck or otherwise attempted to inflict pain on
Beaulieu, or that the amount of force used was disproportionate
to the situation. Accordingly, the district judge should
dismiss Beaulieu’s claim that Dionne and other officers exerted
excessive force against her on July 28, 2016.
F. Verbal Harassment
Beaulieu alleges that she was verbally harassed by a number
of officers on different occasions during her incarceration.
Allegations of verbal threats and harassment are insufficient to
assert any constitutional violation. See Shabazz v. Cole, 69 F.
Supp. 2d 177, 200-01 (D. Mass. 1999) (collecting cases) (without
more, verbal harassment by officers does not violate inmate’s
constitutional rights). Beaulieu’s verbal harassment claims, if
true, allege reprehensible and unprofessional behavior. They do
not, however, assert constitutional violations, and the district
judge should dismiss all of Beaulieu’s verbal harassment claims.
G. Conditions of Confinement
The Eighth Amendment “prohibits prison officials from
depriving inmates of ‘the minimal civilized measure of life’s
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 18 of 28

19
necessities.’” Brown, 131 S. Ct. at 1959 (citation omitted).
An Eighth Amendment claim challenging the conditions of a
prisoner’s confinement has an objective and subjective
component. Wilson v. Seiter, 501 U.S. 294, 298 (1991). To
satisfy the objective component of a prison conditions claim,
the deprivations alleged must be “extreme.” Hudson v.
McMillian, 503 U.S. 1, 9 (1992). The subjective component of an
Eighth Amendment claim requires the plaintiff to demonstrate
that the prison officials acted with deliberate indifference to
the plaintiff’s health or safety. See Farmer v. Brennan, 511
U.S. 825, 834 (1994).
Beaulieu’s conditions of confinement claims assert that, at
times, Beaulieu was housed in a dayroom that was dirty and
subject to flooding, where she had to sleep and eat on a
mattress on the floor, and where there were bugs. Beaulieu also
asserts that clothing she sends to the laundry is often not
returned. As a result, she has to order new items, and she is
frequently provided with clothing that is too big for her. As a
result, she has at times been reduced to only one of each
clothing item, which she had to wash in her cell.
In regard to both her dayroom housing and laundry problems,
Beaulieu has not described the kind of extreme conditions that
would give rise to a constitutional violation. Further,
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 19 of 28

20
Beaulieu has not suggested that any defendant who, when causing
her to be housed in a dayroom or failing to provide her with
more than one set of clothing in Beaulieu’s size, was aware of
any excessive risk to Beaulieu’s health and safety created
thereby, but disregarded that risk. Accordingly, Beaulieu’s
assertions do not suffice to state an Eighth Amendment claim
based on the conditions of her confinement, and the district
judge should dismiss these conditions of confinement claims.
H. Violations of Prison Policy
Beaulieu asserts that a number of defendants in this action
violated various prison policies in committing the acts
described in the complaint, the amended complaint, and the
motion for preliminary injunction. “An assertion that prison
officials failed to follow prison rules or policies does not set
forth a constitutional claim.” McFaul v. Valenzuela, 684 F.3d
564, 579 (5th Cir. 2012); see Querido v. Wall, C.A. No. 10–098
ML, 2010 U.S. Dist. LEXIS 139201, at *14, 2010 WL 5558915, at *3
(D.R.I. Dec. 8, 2010), R&R adopted, 2011 U.S. Dist. LEXIS 1882,
2011 WL 63503 (D.R.I. Jan. 7, 2011). Accordingly, Beaulieu
cannot state a claim for relief on the basis of the defendants’
violation of prison policies, and the district judge should
dismiss all such claims from this action.
I. Violations of PREA
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 20 of 28

21
Beaulieu asserts that defendants have violated the Prison
Rape Elimination Act (“PREA”), by allowing individuals against
whom she has made sexual assault allegations to have contact
with her or be in proximity to her. The PREA does not provide
Beaulieu with a private right of action. See Saunders v.
Pelkie, No. 15-CV-0225-JD, 2015 U.S. Dist. LEXIS 101067, at *2-
*3 (D.N.H. June 26, 2015), R&R approved, 2015 U.S. Dist. LEXIS
102715 (D.N.H. July 31, 2015). Accordingly, the district judge
should dismiss all of Beaulieu’s claims asserting that
defendants have violated that statute.
J. Destruction of Property
Beaulieu claims she was deprived of her property, without
due process, when officers destroyed her property. “[A]n
unauthorized intentional deprivation of property by a state
employee does not constitute a violation of the procedural
requirements of the Due Process Clause of the Fourteenth
Amendment if a meaningful postdeprivation remedy for the loss is
available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). The
State of New Hampshire provides an adequate postdeprivation
remedy pursuant to N.H. Rev. Stat. Ann. §§ 541–B:9 and 541–B:14
(1997) (providing a post-deprivation means of recouping property
loss attributable to the State). Beaulieu has failed to
demonstrate that the remedy provided by the state is unavailable
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 21 of 28

22
to her or inadequate to compensate her. Accordingly, the
district judge should dismiss Beaulieu’s due process claim
concerning the destruction of her property.
K. Denial of Access to the Courts
Beaulieu alleges that the officers’ destruction or
withholding of her legal materials violated her First Amendment
right to meaningfully access the courts. To state such a claim,
Beaulieu must show “that an actionable claim has been lost or
rejected or that presentation of the claim is currently being
prevented” due to the deprivation of her legal materials.
Guglielmo v. N.H. State Prison, 111 F.3d 122, 1997 WL 205290, at
*1, 1997 U.S. App. LEXIS 8616, at *2-*3 (1st Cir. Apr. 25, 1997)
(unpublished table decision) (citing Lewis v. Casey, 518 U.S.
343 (1996)). In other words, Beaulieu must show that she has
been actually injured with respect to her ability to pursue a
nonfrivolous claim that she has a right to litigate. See Lewis,
518 U.S. at 349-52.
Beaulieu generally alleges that the deprivation of her
legal materials interfered with her ability to litigate two
civil lawsuits in this court, but she does not indicate what
specific injury was done to either case because she lacked legal
materials that prison officials destroyed. Accordingly,
Beaulieu has failed to state a claim for the denial of access to
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 22 of 28

23
the courts upon which relief might be granted, and the district
judge should dismiss this claim.
L. Denial of Medical Care
At various points in her pleadings, Beaulieu asserts that
one or more defendants subjected her to treatment which caused
her severe pain, for which she did not get medical care. In
order to state a constitutional claim for the denial of adequate
medical care under the Eighth Amendment, an inmate must allege
that defendants committed “acts or omissions . . . sufficiently
harmful to evidence deliberate indifference to serious medical
needs.” Leavitt v. Corr. Med. Servs., 645 F.3d 484, 497 (1st
Cir. 2011). At a minimum, the plaintiff must allege facts
showing that the defendant possessed a purposeful, knowing, or
reckless state of mind, as “‘liability for negligently inflicted
harm is categorically beneath the threshold of constitutional
due process.’” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472
(2015) (citation omitted) (emphasis in original).
Assuming, without deciding, that Beaulieu’s claims of
severe pain constitute a serious medical need, Beaulieu has not
stated facts to demonstrate that any prison medical personnel,
or other prison employee, was aware of Beaulieu’s need for care
or treatment for those serious medical needs, and denied her
such care or treatment. Beaulieu has failed to state adequate
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 23 of 28

24
facts to demonstrate an Eighth Amendment claim based on the
denial of medical care, and the district judge should dismiss
her medical care claims.
M. Post-Parole Contact with Steven Newcombe
Beaulieu alleges that her boyfriend, inmate Steven
Newcombe, is due to be paroled soon. Beaulieu states that
officers have told Beaulieu that she will not be able to have
any contact with Newcombe once he is paroled. It appears that
Beaulieu is trying to assert a claim that her First Amendment
right to intimate association will be violated if and when she
is prevented from having contact with Newcombe after he is
paroled. Assuming, without deciding, that she could assert such
a claim in the future, the claim is not yet ripe for review.
Newcombe has not yet been paroled. Further, Beaulieu has failed
to name any defendant with the authority to prevent Newcombe and
Beaulieu from having contact, after Newcombe’s release. At this
time, the injury has not yet occurred and Beaulieu’s sparse
allegations do not demonstrate with sufficient certainty that
any injury will occur in the foreseeable future to allow this
claim to proceed at this time. This claim should be dismissed
as premature, without prejudice to Beaulieu’s ability to bring a
new action asserting a violation of her First Amendment right to
intimate association, against an appropriate defendant, if such
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 24 of 28

25
a violation becomes imminent or comes to pass.
N. Inmate Shawn Cook
Beaulieu asserts that in March 2015, inmate Shawn Cook
sexually assaulted her, invaded her privacy, and threatened and
harassed her. Beaulieu’s claims against Cook arise under state
law. The district judge should decline to exercise supplemental
jurisdiction over Beaulieu’s claims against Cook under 28 U.S.C.
§ 1367. The evidence relevant to those claims would necessarily
exceed the scope of evidence relevant to the claims against DOC
employee defendants in this case, against whom constitutional
violations have been alleged. As such, the claims against Cook
would substantially predominate over the claims that may proceed
in this action, and supplemental jurisdiction is properly
declined on that basis. See 28 U.S.C. § 1367(c)(2). The
district judge should dismiss the claims against Cook without
prejudice to Beaulieu’s ability to assert them in an action in
state court, and should drop Cook from this case.
O. Defendants Not In Narrative
In the caption of her complaint, Beaulieu names a number of
individuals as defendants to this action who are not mentioned
in the narrative of the complaint. These defendants are: former
New Hampshire Governor Margaret W. Hassan, DOC Commissioner
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 25 of 28

26
William Wrenn, DOC Chief Investigator Marc Marchand, DOC
Investigator James Azzara, DOC Investigator Sgt. Joel Dinsmoor,
Probation/Parole Officer Scott Harrington, FNU Mizhall, CO FNU
Ward, CO FNU Camirand, Jean Carroll, Lt. FNU Morin, Sgt. FNU
Denis, Sgt. FNU Howland, Jon Hanson, and Paula Mattis. Because
Beaulieu has failed to assert that any of these defendants
engaged in any action that violated her rights, they should be
dropped from this action.
P. Claims Asserted on Behalf of Other Individuals
Beaulieu indicates that she is asserting some of her claims
on behalf of other inmates, as well as on her own behalf. An
inmate, acting pro se, cannot assert the rights of other inmates
in an action in this court. See 28 U.S.C. § 1654; LR 83.2(d).
Accordingly, Beaulieu may not press any claim on behalf of any
other inmate, and to the extent she seeks to do so, those claims
should be dismissed.
Conclusion
For the foregoing reasons, the undersigned magistrate judge
recommends that the district judge dismiss the following claims
Beaulieu has asserted in this case:
 A discrimination claim concerning single-cell housing;
 Eighth Amendment and negligence claims for
endangerment, arising from the denial of protective
custody on December 5, 2016;
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 26 of 28

27
 Eighth Amendment and negligence claims for
endangerment concerning the SHU shaving policy;
 Retaliation claims alleging verbal harassment,
unfavorable housing conditions, transfer to NCF,
temporary denial of property, searches and or
“trashing” of her cell, false accusations that
Beaulieu had a romantic and/or sexual relationship
with another inmate, and the failure to charge another
inmate with a disciplinary violation on July 18, 2017;
 Due process and negligence claims concerning
disciplinary hearings;
 Excessive force claims arising out of a July 28, 2016
incident;
 Verbal harassment claims;
 Conditions of confinement claims concerning dayroom
housing and laundry;
 Claims alleging violations of DOC policy;
 Claims alleging violations of PREA;
 Due process and access to the court claims arising out
of alleged deprivations of property, including legal
materials;
 Claims alleging the denial of medical care;
 Claims concerning contact between Beaulieu and Steven
Newcombe after Newcombe is paroled;
 State tort Claims asserted against inmate Shawn Cook;
and
 Claims asserted on behalf of other individuals.
These claims should be dismissed, without prejudice to
Beaulieu’s ability to assert her state law claims in state
court, or to assert premature claims in a future action in this
court, once such claims are ripe. Additionally, the district
judge should drop the following defendants from this action:
(former) New Hampshire Governor Margaret W. Hassan, DOC
Commissioner William L. Wrenn, DOC Director of Professional
Standards Colon K. Forbes, DOC Chief Investigator Marc Marchand,
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 27 of 28

28
DOC Investigator James Azzara, DOC Investigator Sgt. Joel A.
Dinsmoor, DOC Investigator/former SHU CO David Dionne;
Probation/Parole Officer Scott Harrington; Unit Manager Kathleen
Anderson; CO Ward, whose first name is unknown (“FNU”); CO FNU
Camirand; FNU Mizhall; Jean Carroll; HO Linda J. Paulsen; HO
Barton; Director FNU Kench; Lt. FNU Morin; Sgt. FNU Denis; Sgt.
FNU Howland; Jon Hanson; Paula Mattis; and Shawn M. Cook.
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
November 30, 2017
cc: Christopher Beaulieu, a/k/a Crystal Beaulieu, pro se
Case 1:16-cv-00471-JD Document 16 Filed 11/30/17 Page 28 of 28