Barber v. NH State Prison, Warden et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John Barber
v. Civil No. 14-cv-98-JL
Richard Gerry, Warden, New
Hampshire State Prison, et al.
REPORT AND RECOMMENDATION
Before the court for preliminary review is an addendum to
the complaint (doc. no. 63), filed by plaintiff, John Barber, an
inmate at the New Hampshire State Prison (“NHSP”). The addendum
was originally docketed as a motion to amend the complaint, and
in an Order issued on this date, the court granted the motion.
The court has construed the assertions in the motion to amend as
an addendum to the complaint, which is before the court for
preliminary review, pursuant to LR 4.3(d)(1) and 28 U.S.C.
§ 1915A(a).
Background
In his original complaint (doc. no. 1), plaintiff initially
asserted two claims alleging violations of his Eighth Amendment
rights. First, Barber asserted, on March 22, 2013, NHSP Corrections
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Officer (“C.O.”) Brian Hill failed to protect Barber from harm by
allowing Barber to be assaulted in his cell by another inmate.
Second, Barber claimed that he was subjected to inhumane conditions of
confinement in the NHSP’s Health Services Center. In his original
complaint (doc. no. 1), Barber named Hill and NHSP Warden Richard
Gerry as defendants to this action.
On May 5, 2015, Barber filed a stipulation of dismissal (doc. no.
57), dismissing Hill from this action with prejudice. Now, in an
addendum to the complaint (doc. no. 63), Barber seeks to add defendant
C.O. David Biondi to this action. Barber asserts that, during the
internal NHSP investigation of the March 22, 2013, assault, Biondi
provided a statement to investigators indicating that he bore, and
accepted, some responsibility for the assault, as he had opened
Barber’s cell door, allowing the assault to occur.
Barber also asserts that Gerry bears responsibility for the
assault due to his failure to fulfill his responsibility to properly
train and supervise defendant Hill. Specifically, Barber states that
Hill was stationed on the Secure Housing Unit, where maximum security
inmates are held, without having familiarized himself with the
particular rules of that unit, and without having been trained in the
management of maximum security inmates. Barber alleges that Gerry was
responsible for insuring that Hill had been properly trained in those
matters, and failed to do so.
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Discussion
I. C.O. David Biondi
The facts alleged in the complaint addendum are sufficient
to assert a claim against Biondi for failure to protect Barber,
in violation of Barber’s Eighth Amendment rights. Accordingly,
in an Order issued simultaneously with this Report and
Recommendation, the court directs service of the complaint (doc.
no. 1) and complaint addendum (doc. no. 63) upon Biondi.
II. Warden Richard Gerry
A. Eighth Amendment Claim
Claims asserted against a supervisor, in an action brought
pursuant to 42 U.S.C. § 1983, may not be based on a theory of
respondeat superior. See Ramírez-Lluveras v. Rivera-Merced, 759
F.3d 10, 19 (1st Cir. 2014). Instead, claims against prison
supervisors must be based on the supervisor’s own acts or
omissions constituting “‘supervisory encouragement, condonation
or acquiescence, or gross negligence of the supervisor amounting
to deliberate indifference.’” Grajales v. P.R. Ports Auth., 682
F.3d 40, 47 (1st Cir. 2012) (alteration and citation omitted).
Barber has not asserted facts to demonstrate that Gerry was personally
involved in, aware of, or deliberately indifferent to the proper
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training of Hill concerning unit policies and management of maximum
security inmates. Barber’s conclusory statements that Gerry is
responsible for failing to adequately train and supervise Hill,
unaccompanied by specific factual allegations as to Gerry’s knowledge
of Hill’s training, and actions that specifically placed Hill on
Barber’s unit without that training, fail to state a constitutional
violation actionable under § 1983. Accordingly, the Eighth Amendment
failure to protect claim asserted against Gerry should be dismissed
from this action.
B. State Law Claims
To the extent Barber may have intended to assert state law
claims for negligent failure to train and supervise against
Gerry, the court should decline to exercise its supplemental
jurisdiction over those claims, as the related federal claims
should be dismissed from this action. See 28 U.S.C. § 1367.
Any intended state law claims against Gerry should be dismissed
from this action without prejudice to Barber’s ability to raise
those issues in a state court action.
Conclusion
For the foregoing reasons, the court recommends that the
Eighth Amendment failure to protect claims be dismissed from
this action, and that the court decline to exercise its
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supplemental jurisdiction over any related state law claims
asserted against Gerry, which should be dismissed from this
action without prejudice. In an Order issued this date, the
court directs service of this action upon C.O. David Biondi.
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 United States v. De Jesús-Viera, 655 F.3d 52, 57
(1st Cir. 2011); Sch. Union No. 37 v. United Nat’l Ins. Co., 617
F.3d 554, 564 (1st Cir. 2010).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
July 16, 2015
cc: John Barber, pro se
Brian Hill, pro se
Francis Charles Fredericks, Esq.
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