Johnson v. Englander et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jacob William Johnson
v. 	Case No. 20-cv-398-SE
Dr. Celia Englander et al.
REPORT AND RECOMMENDATION
Jacob William Johnson, a Florida prisoner currently being
housed by the New Hampshire Department of Corrections (“DOC”),
filed this action pursuant to 42 U.S.C. § 1983, alleging that
the defendants violated his rights under federal and state law
while he was housed at the New Hampshire State Prison (“NHSP”).1
The undersigned Magistrate Judge conducted a preliminary review
of Mr. Johnson’s initial complaint (Doc. No. 1), pursuant to 28
U.S.C. § 1915A(a) and LR 4.3(d)(1), and on December 15, 2021,
issued an Order (Doc. No. 8) directing service of some of the
claims Mr. Johnson asserted therein, an Order (Doc. No. 9)
granting Mr. Johnson leave to amend other claims, and a Report
and Recommendation (Doc. No. 7) (“2021 R&R”) recommending that
the District Judge dismiss some claims.
1 Mr. Johnson is presently housed at the Northern New
Hampshire Correctional Facility.
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Mr. Johnson has now filed a number of documents (Doc. Nos.
11-13, 16,2 39-45, 51, 54-59) which the Court has construed as
complaint addenda. 	The complaint addenda are before this Court
for preliminary review.3
Discussion
I. 	Supplemental Information
A number of the assertions in Mr. Johnson’s complaint
addenda supplement claims which are identified and numbered in
the 2021 R&R, and which the Court has directed be served on the
defendants identified in those claims in their individual
capacities, without asserting new claims, as follows:
• 	Document No. 11 supplements the claim identified in the
2021 R&R as Claim 1(d)(i), which has been served on NHSP
Nurse John Lombard.
• 	Document No. 12 supplements the claim identified in the
2021 R&R as Claim 1(e)(i), which has been served on NHSP
Nurse Denise Downing.
• 	Document No. 13 supplements the claims identified in the
2021 R&R as: Claims 1(a)(i)-(iii) and 2(a), which have
been served on NHSP Physician Celia Englander; Claim
2(b), which has been served on NHSP Nurse Karen Carr;
2 Mr. Johnson identified Document No. 16 as an objection to
the 2021 R&R. 	The Court has construed the assertions in
Document No. 16 to addend the complaint in this matter. 	In
doing so, however, the Court does not intend to prevent or
discourage the District Judge from considering that document as
an objection to the 2021 R&R.
3 In conducting this preliminary review of the complaint
addenda filed in this case, the Court applies the same standard
as it did in the 2021 R&R.
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Claim 2(c), which has been served on NHSP Nurse Fallon
Marchand/Hickman4; Claim 2(d), which has been served on
NHSP Nurse Martha Barbosa/Derkash5; and Claim 2(f), which
has been served on the NHSP’s Special Housing Unit
Officers Capt. Daniel Boynton, Lt. Gary Lydick, and Sgt.
Turcotte (whose first name is unknown); and the claim
identified in this R&R as Claim 2(g), which the Court
directs served on DOC/NHSP Pharmacist Ren Carbone in an
Order issued this date.
• 	Document No. 39 supplements the claims identified in the
2021 R&R as: Claim 2(a), which has been served on Dr.
Englander; Claim 2(b), which has been served on Nurse
Carr; Claim 2(c), which has been served on Nurse
Marchand/Hickman; Claim 2(d), which has been served on
Nurse Barbosa/Derkach; and Claim 2(f), which has been
served on Capt. Boynton, Lt. Lydick, and Sgt. Turcotte;
and the claim identified in this R&R as Claim 2(g), which
the Court directs served on Pharmacist Carbone in an
Order issued this date.
• 	Document No. 40 supplements the claims identified in the
2021 R&R as Claims 1(a)(i)-(iii) and 2(a), which have
been served on Dr. Englander.
• 	Document No. 41 supplements the claims identified in the
2021 R&R as: Claims 1(a)(i)-(iii), which have been served
on Dr. Englander; Claims 1(b)(i)-(iii), which have been
asserted against NHSP Physician Jeffrey Fetter; Claims
1(c)(i)-(ii), which have been served on NHSP Nurse Wendy
Giroux6; Claim 1(d)(i), which ha s been served on Nurse
Lombard; Claim 1(e)(i), which has been served on Nurse
4 Mr. Johnson has identified this defendant as Fallon
Marchand. 	According to her answer (Doc. No. 32), that defendant
is now known as Fallon Hickman. 	To avoid confusion, the Court
will identify her in this action as Fallon Marchand/Hickman.
5 Mr. Johnson has identified this defendant as Martha
Barbosa. 	According to her answer (Doc. No. 32), that defendant
is now known as Martha Derkach. 	To avoid confusion, the Court
will identify her in this action as Martha Barbosa/Derkach.
6 Mr. Johnson identified this defendant as Wendy Gioux. 	The
defendants filings in this matter indicate that her name is
Wendy Giroux.
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Downing; Claims 1(f)(i)-(iii), which have been asserted
against NHSP Nurse Donna Dufresne; Claims 1(g)(i)-(iv), which
have been served on NHSP Nurse Olivia Gamelin; Claims 1(h)(i)-
(iv), which have been served on NHSP Nurse Brad Bowden; Claim
1(i), which has been asserted against NHSP Nurse Tina
Crissfulli; Claims 1(j)(i)-(ii), which have been served on
NHSP 	Nurse Veronica Paris; Claims 1(k)(i)-(iii), which have
been served on NHSP Nurse Jane Dillon; Claim 1(l), which has
been served on NHSP Nurse Ellen Halle-Cocoran; and Claim 1(o),
which has been served on Capt. Boynton and Lt. Lydick in their
individual capacities.7
• 	Document Nos. 51 and 55 supplement the claims identified
in the 2021 R&R as: Claim 2(a), which has been served on
Dr. Englander; Claim 2(b), which has been served on Nurse
Carr, Claim 2(c), which has been served on Nurse
Marchand/Hickman; Claim 2(d), which has been served on
Nurse Barbosa/Derkach; Claim 2(e), which has been served
on Nurse Gamelin; Claim 2(f), which has been served on
Capt. Boynton, Lt. Lydick, and Sgt. Turcotte; and the
claim identified in this R&R as Claim (g), which the
Court directs be served on Pharmacist Carbone in an Order
issued this date.
• 	Document No. 54 supplements the claims identified in the
2021 R&R as Claims 1(a)(i)-(iii), which have been served
on Dr. Englander.
• 	Document No. 58 supplements the claim identified in the
2021 R&R as Claim 6, which has been served on Lt. Lydick.
In an Order issued this date, the Court directs service on
Pharmacist Carbone and grants the other defendants leave to
amend any answer that has been filed in this case, to respond to
the complaint addenda supplementing any claim which has already
been served.
7 The record in this case does not reflect that Dr. Fetter,
Nurse Dufresne, or Nurse Crissfulli have been served in this
case. 	The Court addresses the matter of service upon these
defendants in the Order issued this date.
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II. 	New Claims To Be Served
The Court has previously directed service of Eighth
Amendment and malpractice/negligence claims arising from the
alleged failure of certain defendants in this action to ensure
that Mr. Johnson was provided the appropriate dose of his
medication, which, he claims, caused him to be overmedicated on
several occasions in August 2018. 	In Document No. 13, Mr.
Johnson asserts that Pharmacist Carbone is also responsible for
the alleged overmedication, as he failed to adequately
coordinate the NHSP pharmacy and medical department to ensure
that NHSP prisoners, received the proper dose of medication,
which resulted in Mr. Johnson being overmedicated.
Mr. Johnson’s claims against Pharmacist Carbone are
minimally sufficient to proceed. 	The Court therefore finds that
Mr. Johnson has asserted the following claim:
2. 	Defendants violated Mr. Johnson’s Eighth Amendment
right to receive adequate medical care during his
incarceration and are liable to him for negligence or
professional malpractice under State law, in that:
. . .
g. 	DOC/NHSP Pharmacist Ren Carbone, on August 6, 7,
and 30, 2018, failed to ensure that Mr. Johnson
received the proper daily dose of his medications.8
8 For the sake of clarity, the Court identifies and numbers
the claim against Mr. Carbone in accordance with the numbering
of claims in the 2021 R&R.
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In an Order issued simultaneously with this R&R, the Court
directs service on Mr. Carbone.
III. Claims the Court Recommends Be Dismissed
A. 	Official Capacity Claims
In Document No. 13, Mr. Johnson has asserted claims for
damages against Pharmacist Carbone in both his individual and
official capacities. 	For reasons fully explained in the 2021
R&R, Mr. Johnson’s official capacity damages claims are
precluded by the Eleventh Amendment. 	See Lewis v. Clarke, 137
S. Ct. 1285, 1291 (2017). 	Accordingly, the District Judge
should dismiss the official capacity claims asserted against Mr.
Carbone.
B. 	Substantive Due Process Claims
In Document Nos. 11, 12, and 13, Mr. Johnson asserts that
the conduct underlying the claims identified in the 2021 R&R as
Claims 1(a)(i)-(iii), 1(d)(i), 1(e)(i), 2(a), 2(d), and 2(f),
was sufficiently egregious and conscience-shocking to violate
Mr. Johnson’s Fourteenth Amendment substantive due process
rights. 	“Where a particular Amendment [to the United States
Constitution] ‘provides an explicit textual source of
constitutional protection’ against a particular sort of
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government behavior, ‘that Amendment, not the more generalized
notion of substantive due process, must be the guide for
analyzing these claims.’” 	Stop the Beach Renourishment, Inc. v.
Fla. Dep't of Envtl. Prot., 560 U.S. 702, 721 (2010) (quoting
Albright v. Oliver, 510 U.S. 266, 273 (1994)). 	In other words,
a constitutional claim “covered by a specific constitutional
provision . . . must be analyzed under the standard appropriate
to that specific provision, not under the rubric
of substantive due process.” 	United States v. Lanier, 520 U.S.
259, 272 n.7 (1997) (citation omitted).
Mr. Johnson’s substantive due process claims are based on
the same conduct which he has previously claimed violated the
Eighth Amendment’s prohibition against cruel and unusual
punishment occasioned by violating his right not to be subject
to inadequate medical care resulting from the deliberate
indifference of the defendants. 	Because the Eighth Amendment is
a more specific constitutional provision than the Fourteenth
Amendment’s Due Process Clause, it is the Eighth Amendment which
controls this court's disposition of Mr. Johnson’s medical care
claims. 	The allegations underlying those claims, therefore, are
not actionable as Fourteenth Amendment substantive due process
claims. 	Accordingly, the District Judge should dismiss Mr.
Johnson’s substantive due process claims.
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C. 	Claims Asserting Criminal Conduct
In Document Nos. 16 and 43, Mr. Johnson asserts that Nurse
Bowden committed the criminal act of simple assault against him
on September 11, 20179 by “offensively touching [Mr. Johnson]
several times.” 	Mr. Johnson cannot assert a civil claim in a §
1983 action on the basis that a defendant’s conduct was
criminal. 	See Linda R.S. v. Richard D., 410 U.S. 614, 619
(1973) (“[A] private citizen lacks a judicially cognizable
interest in the prosecution or nonprosecution of another.”).
Accordingly, the District Judge should dismiss Mr. Johnson’s
claim based on Nurse Bowden’s alleged criminal conduct.
D. 	Claims Asserting PREA Violations
In Document No. 16, Mr. Johnson asserts that in September
2017, Nurse Bowden touched him, in an unspecified manner, in
violation of the Prison Rape Elimination Act (“PREA”). 	There is
no private right of action for an alleged PREA violation. 	See
Sullivan v. Wrenn, No. 17-cv-444-LM, 2018 U.S. Dist. LEXIS
181837, at *3, 2018 WL 5258587, at *2 (D.N.H. Apr. 4, 2018), R&R
approved sub nom., Sullivan v. N.H. Governor, 2018 U.S. Dist.
9 In his original complaint, Mr. Johnson stated that this
occurred on September 10, 2018. 	Because this Court recommends
dismissal of the claim on grounds unrelated to the date it
arose, the discrepancy need not be resolved at this time.
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LEXIS 180879, at *1, 2018 WL 5257625, at *1 (D.N.H. Oct. 18,
2018). 	Accordingly, the district judge should dismiss Mr.
Johnson’s claim alleging that Nurse Bowden violated that
statute.
E. 	Claims Based on Violations of Prison Policies
In Document Nos. 11, 12, 13, 42, 44, 45, 54, 56, 57, and
59, Mr. Johnson has asserted that the defendants violated his
constitutional rights by failing to adhere to prison policies.
As fully explained in the 2021 R&R, prisoners generally have no
freestanding constitutional right to have prison officials
follow prison policies. 	See McFaul v. Valenzuela, 684 F.3d 564,
579 (5th Cir. 2012); Doiron v. Brown, No. 21-cv-360-SM, 2022
U.S. Dist. LEXIS 91198, at *24, 2022 WL 1607861, at *9 (D.N.H.
Apr. 25, 2022), R&R approved, 2022 U.S. Dist. LEXIS 90802, at
*1, 2022 WL 1607294, at *1 (D.N.H. May 20, 2022).
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). 	As fully explained in the
2021 R&R, the District Judge should dismiss the claims asserted
in the complaint and complaint addenda based on alleged
violations of prison policy.
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F. 	Claims Alleging Interference with Administrative
Grievances
In Document Nos. 13, 57, and 59, Mr. Johnson has asserted
that his Fourteenth Amendment right to due process was violated
by the defendants’ interference with his ability to file
administrative grievances at the NHSP. 	As fully explained in
the 2021 R&R, “prisoners are not constitutionally entitled to
unfettered access to a grievance procedure.” 	Dallas v. Chippewa
Corr. Facility, No. 20-1941, 2022 U.S. App. LEXIS 5381, at *8,
2022 WL 905857, at *3 (6th Cir. Mar. 1, 2022). 	For the same
reasons explained in the 2021 R&R, the District Judge should
dismiss Mr. Johnson’s alleging interference with his
administrative grievances.
G. 	Supervisory Liability Claims
In Document No. 13, Mr. Johnson has asserted that DOC
Commissioner Helen Hanks, DOC Director of Medical and Forensic
Services Paula Mattis, and NHSP Warden Michelle Edmark violated
his Eighth Amendment right to adequate medical care, and his
rights under state law, because their subordinates failed to
provide Mr. Johnson with appropriate doses of his medication on
several occasions in August 2018. 	As fully explained in the
2021 R&R, supervisory officials are generally liable under §
1983 for a constitutional violation only if his or her own acts
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or omissions “‘led inexorably to’” the violation. 	Penate v.
Hanchett, 944 F.3d 358, 367 (1st Cir. 2019) (citation omitted);
see also Justiniano v. Walker, 986 F.3d 11, 20 (1st Cir. 2021).
Mr. Johnson does not allege that any of the supervisory
officials identified in Document No. 13 engaged in conduct which
“led inexorably to” their subordinates’ conduct which Mr.
Johnson alleges caused him to be overmedicated. 	Accordingly,
for the same reasons explained in 2021 R&R, the District Judge
should dismiss Mr. Johnson’s claims based on supervisory
liability, and should dismiss Commissioner Hanks, Director
Mattis, and Warden Edmark from this action.
H. 	Claims Asserting Verbal Harassment
In Document No. 16, Mr. Johnson reasserts harassment claims
he previously asserted against Nurse Bowden, which were
identified in the 2021 R&R as Claims (3)(b)(i)-(ii). 	In the
2021 R&R, the Court recommended that the District Judge dismiss
those claims, as allegations of verbal threats and harassment
are insufficient to assert a constitutional violation. 	Mr.
Johnson has not asserted any facts in his complaint addenda
which alter this Court’s previous recommendation that Claims
(3)(b)(i) and 3(b)(ii) be dismissed.
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I. 	Insufficiently Stated Claims
In its previously-issued Order (Doc. No. 9), this Court
provided Mr. Johnson with an opportunity to amend the claims
identified in the 2021 R&R as Claims 1(h)(v) and 1(h)(vi), which
had been asserted against Nurse Bowden. 	The Corut, having found
that those claims were conclusorily asserted, and were not
supported by sufficient facts to state a claim upon which relief
might be granted. 	Mr. Johnson has not, in his complaint
addenda, provided any additional facts to support those claims.
Accordingly, for the reasons explained in the 2021 R&R, the
District Judge should dismiss Claims 1(h)(v) and 1(h)(vi), as
they fail to state a claim upon which relief might be granted.
Conclusion
For the foregoing reasons, and the reasons stated in the
2021 R&R, the District Judge should dismiss Mr. Johnson’s claims
asserted against DOC/NHSP Pharmacist Ren Carbone in his
individual capacity; claims asserted against any defendant in
his or her supervisory capacity; the claims identified in the
2021 R&R as Claims 1(h)(v) and 1(h)(vi); and the claims alleging
violations of prison policy, interference with administrative
grievances, verbal harassment, criminal conduct, violations of
the PREA, and substantive due process violations. 	The District
Judge should also approve the 2021 R&R.
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Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	Fed. R.
Civ. P. 72(b)(2). 	The fourteen-day period may be extended upon
motion. 	Failure to file objections 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
December 19, 2022
cc: 	Jacob William Johnson, pro se
Lawrence Gagnon, Esq.
Nathan W. Kenison-Marvin, Esq.
Pamela L. P. Eaton, Esq.
Stephen J. Soule, Esq.
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