Beaulieu v. NH Department of Corrections, Commissioner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Christopher Robert Beaulieu
v. Civil No. 14-cv-280-SM
Aaron Belanger, Edward Kirrane, John Aulis,
Dominic M. Salice, Michael Shepley
REPORT AND RECOMMENDATION
Before the court is New Hampshire State Prison (“NHSP”)
inmate Christopher Beaulieu’s motion to amend the complaint
(doc. no. 19) to add new defendants and new claims. Defendants
remaining in this action, all of whom are NHSP Corrections
Officers (“C.O.s”), have objected (doc. no. 26), contending that
Beaulieu’s failure to append a proposed complaint amendment to
his motion renders this court unable to complete its preliminary
review of the claims asserted therein.
Background
Beaulieu filed this action in 2014. Upon completing its
preliminary review of the original complaint (doc. no. 1), the
court allowed the following claims for relief to proceed under
42 U.S.C. § 1983, see Sept. 29, 2014, Order (doc. no. 10):
1. On August 16, 2013, NHSP C.O. Edward Kirrane and C.O.
Aaron Belanger used excessive force against Beaulieu, in
violation of Beaulieu’s Eighth Amendment rights.
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2. On January 19, 2012, C.O. Michael Shepley, in
violation of Beaulieu’s Eighth Amendment rights, allowed
inmate Rueben Ruiter access to Beaulieu’s cell and did not
prevent Ruiter’s ensuing assault of Beaulieu, despite
Shepley’s knowledge that Ruiter had been egged on to attack
Beaulieu, and that Ruiter presented a substantial risk of
serious harm to Beaulieu.
3. Defendants C.O. John Aulis and C.O. Dominic Salice
disclosed unspecified “security information,” including
Beaulieu’s sex offender status, to inmate Scott Collier,
and then failed to prevent Collier from harassing and
assaulting Beaulieu with a fire hose.
Through the instant motion to amend (doc. no. 19), Beaulieu
seeks to add new claims and defendants to this action.
Construed liberally in conjunction with the factual allegations
in the original complaint (doc. no. 1), the claims asserted in
Document No. 19 are the following:
4. NHSP Chief Paul Laflamme, C.O. Jason Whitney, and C.O.
Kevin Washburn, who were in the Secure Housing Unit (“SHU”)
control room when Ruiter attacked Beaulieu on January 19,
2012, each acted with deliberate indifference to a
substantial risk of serious harm, in violation of
Beaulieu’s Eighth Amendment rights: (a) by allowing
Beaulieu’s cell door to be open at a time when Ruiter was
on the tier and had access to Beaulieu’s cell; and/or (b)
by allowing Laflamme unauthorized access to the SHU control
room and engaging in a social conversation with him, which
caused the officers to fail to observe Beaulieu’s cell
while Ruiter was working on the tier.
5. Ruiter committed the intentional torts of assault and
battery under New Hampshire law when he entered Beaulieu’s
SHU cell twice on January 19, 2012, and assaulted and
injured Beaulieu on both occasions.
6. Former NHSP inmate Scott Collier committed the
intentional torts of assault and battery under New
Hampshire law when he assaulted Beaulieu with a fire hose.
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Additionally, Beaulieu asserts that Collier slandered him, and
that Sgt. Eric Barbaro refused to take photos that Beaulieu
believes would substantiate his claim that Kirrane and Belanger
assaulted him.
Discussion
I. Motion to Amend
Federal Rule of Civil Procedure 15(a) provides that the
court should freely grant a plaintiff leave to amend the
complaint, “when justice so requires.” A proposed amendment
seeking to add new parties “is technically governed by [Federal
Rule of Civil Procedure] 21,” but the “same standard of
liberality” applies under either rule. Garcia v. Pancho Villa’s
of Huntington Vill., Inc., 268 F.R.D. 160, 165 (E.D.N.Y. 2010)
(citations omitted).
The factual allegations giving rise to Claims 4 to 6 above
are closely related to the claims that are presently proceeding
in this action. The original defendants have not demonstrated
that granting the motion would interfere with the orderly
disposition of the claims in this case, or otherwise unfairly
prejudice their interests. Therefore, in an Order issued on
this date, the court has granted the motion to add claims and
defendants to this action (doc. no. 19), and deems the factual
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allegations asserted in Document No. 19 to be a complaint
addendum, subject to preliminary review pursuant to 28 U.S.C.
§ 1915A and LR 4.3(d)(1).
II. Preliminary Review of Document No. 19
A. Standard
The court next subjects Document No. 19 to preliminary
review, pursuant to 28 U.S.C. § 1915A and LR 4.3(d)(1). The
standard applied in conducting that review is the same as that
set forth in the August 20, 2014, Report and Recommendation
(doc. no. 6).
B. Claims 4-6
Claims 4-6, when construed liberally in connection with the
facts alleged in the original complaint, are sufficient to
survive preliminary review, and to warrant service upon the
defendants identified in those claims. In the Order issued on
this date, the court has directed service of those claims
against the NHSP officers identified in Claim 4.
Claim 5 and 6 cannot be served upon Ruiter and Collier at
this time because plaintiff has not prepared summonses for them,
and he has alleged that both of them are former NHSP inmates.
In the Order issued on this date, the court has directed
plaintiff to attempt to obtain addresses for Collier and Ruiter,
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to prepare summonses for them, and to file those completed
summonses by August 9, 2015; or to seek appropriate relief from
this court, prior to that date, if he is unable to obtain
Ruiter’s or Collier’s last known address.
C. Remaining Allegations
In Document No. 19, Beaulieu asserts that Collier is liable
to him for “slander[].” When stripped of legal conclusions,
however, Document No. 19 does not state facts sufficient to show
that former inmate Collier is liable for slander or for any
other reputational tort. Accordingly, the district judge should
dismiss Beaulieu’s slander claim against Collier, asserted in
Document No. 19.
Beaulieu also asserts a claim in Document No. 19 against
NHSP Sgt. Eric Barbaro, for “tampering with evidence” by
refusing to take pictures of “marks” on Beaulieu in August 2013,
which Beaulieu believes would be evidence that Kirrane and
Belanger assaulted him. Beaulieu’s allegations as to Sgt.
Barbaro’s conduct, without more, do not state any actionable
claim for relief under state or federal law. Accordingly, the
district judge should drop Barbaro as a defendant, and should
dismiss the claims asserted against Barbaro, arising out of the
facts alleged in Document No. 19.
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Conclusion
For the foregoing reasons, the district judge should
dismiss the slander claim asserted against defendant Scott
Collier, and should dismiss all claims asserted against Sgt.
Eric Barbaro, arising out of the facts alleged in Document No.
19. Barbaro should be dropped as a defendant.
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
June 10, 2015
cc: Christopher Robert Beaulieu, pro se
Laura E.B. Lombardi, Esq.
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