Beaulieu v. NH Department of Corrections, Commissioner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Christopher Beaulieu, a/k/a
Crystal Beaulieu
v. Civil No. 14-cv-280-SM
John P. Aulis, Aaron M. Belanger,
Edward P. Kirrane, Dominic M. Salce,
Michael Shepley, Paul Laflamme,
Kevin Washburn, Jason Whitney,
Scott Collier, and Rueben James Ruiter
REPORT AND RECOMMENDATION
Plaintiff Christopher (a/k/a Crystal1) Beaulieu is an inmate
at the New Hampshire State Prison (“NHSP”) who filed claims
against corrections officers and two inmate defendants. The
clerk of court entered defaults against the inmate defendants,
Scott Collier and Rueben James Ruiter, after they failed to
appear.2 See Doc. Nos. 50, 57. Before the court are Beaulieu’s
motions (Doc. Nos. 92, 93), and supplemental exhibits (Doc. No.
97), seeking default judgments and damages as to Ruiter and
Collier.
On December 16, 2016, the court held an evidentiary hearing
on the motions for default judgment. Neither Ruiter nor Collier
1Beaulieu identifies as transsexual, and the court defers to
her gender preference in this Report and Recommendation.
2The court has granted summary judgment on the remaining
claims against the corrections officers. See Sept. 28, 2016
Order (Doc. No. 90).
Case 1:14-cv-00280-SM Document 98 Filed 03/02/17 Page 1 of 18

2
appeared at the hearing, and neither of them responded to
Beaulieu’s motions for default judgment, although the court had
caused a copy of each motion and a notice of the hearing to be
mailed to them at their current places of incarceration. See
Nov. 22 & 23, 2016 Orders.
Default Judgment Standard
After a default is entered and when the amount at issue is
not a sum certain, “the party must apply to the court for a
default judgment.” Fed. R. Civ. P. 55(b)(2). “Although a
defaulting party admits the factual basis of the claims asserted
against it, the defaulting party does not admit the legal
sufficiency of those claims.” 10-55 James Wm. Moore, Moore’s
Federal Practice ¶ 55.32[1][b] (3d ed. 2013). Therefore, before
entering default judgment, the court must determine whether the
admitted facts state actionable claims. Vázquez-Baldonado v.
Domenech, 595 F. App'x 5, 5 (1st Cir. 2015). It is the
plaintiff’s burden to establish an entitlement to recovery. Joe
Hand Promotions, Inc. v. Rajan, No. 10–40029–TSH, 2011 WL
3295424, at *3 n.2, 2011 U.S. Dist. LEXIS 83311, at *8 n.2 (D.
Mass. July 28, 2011).
The standard for determining whether default judgments may
be entered is “akin to that necessary to survive a motion to
Case 1:14-cv-00280-SM Document 98 Filed 03/02/17 Page 2 of 18

3
dismiss for failure to state a claim.” Surtain v. Hamlin
Terrace Found., 789 F.3d 1239, 1245 (11th Cir. 2015).
Accordingly, a default judgment will not issue if the
plaintiff’s factual allegations, and all reasonable inferences
therefrom, taken in the light most favorable to the plaintiff,
fail to state a claim for relief. Lister v. Bank of Am., N.A.,
790 F.3d 20, 23 (1st Cir. 2015).
While liability is admitted, “[a] party who defaults by
failing to plead or defend does not admit the allegations in the
claim as to the amount of damages.” 10-55 James Wm. Moore,
Moore’s Federal Practice ¶ 55.32[1][c] (3d ed. 2013). Rule
55(b) of the Federal Rules of Civil Procedure states that the
court may conduct a hearing if, among other things, it needs to
“determine the amount of damages” or “establish the truth of any
allegation by evidence.” “[T]he defaulting party is liable only
for those damages that arise from the acts and injuries that
were pleaded.” 10-55 James Wm. Moore, Moore’s Federal Practice
¶ 55.32[1][c] (3d ed. 2013). Rule 54(c) further provides that a
default judgment must not be different in kind from, or exceed
the amount demanded in, the pleadings. Fed. R. Civ. P. 54(c).
Discussion
I. Assault and Battery
Case 1:14-cv-00280-SM Document 98 Filed 03/02/17 Page 3 of 18

4
A. Standard
Beaulieu has claimed that Ruiter and Collier are each
liable to him for “assault and battery” under state law, for
separate incidents.
A successful assault claim requires that “(1) the defendant
. . . intended to cause harmful or offensive contact to the
plaintiff, and (2) the plaintiff must have been put in
imminent apprehension of such contact.” A defendant may be
held liable for battery if “(a) he acts intending to cause
a harmful or offensive contact with the person of the other
or a third person, or imminent apprehension of such a
contact, and (b) a harmful contact with the person of the
other directly or indirectly results.”
Rand v. Town of Exeter, 976 F. Supp. 2d 65, 75–76 (D.N.H. 2013)
(citations omitted); see also Silva v. Warden, 150 N.H. 372,
374-75, 839 A.2d 4, 6 (2003).
B. January 2012 Incident Involving Ruiter
Beaulieu contends that Ruiter is liable for an “assault and
battery” that occurred on January 19, 2012. Doc. No. 19, at 1.
On January 19, 2012, both Beaulieu and Ruiter were housed on C-
tier, in the NHSP Special Housing Unit (“SHU”). Ruiter was a
“tier worker,” whose cleaning duties involved being outside of
his cell in the corridor at times. On January 19, Ruiter was in
the corridor, near Beaulieu’s cell, while Beaulieu’s cell was
unlocked. See Doc. No. 1, at 11. Another inmate from a nearby
cell egged Ruiter on to “bust [Beaulieu’s] sh*t.” Id. A
security video shows Ruiter “leaping into plaintiff’s cell
Case 1:14-cv-00280-SM Document 98 Filed 03/02/17 Page 4 of 18

5
swinging.” Doc. No. 19, at 2. After striking Beaulieu, Ruiter
left Beaulieu’s cell and bragged to other SHU inmates that he
had “just beat the sh*t out of” Beaulieu. Doc. No. 1, at 12.
Ruiter then reentered Beaulieu’s cell and hit her again. Id. at
12. Beaulieu suffered injuries around her eye that a
corrections officer noticed later. Id. The facts alleged in
Beaulieu’s pleadings, admitted by Ruiter’s failure to answer,
establish that Ruiter is liable to Beaulieu for the intentional
torts of assault and battery, for the January 2012 attack on
Beaulieu.
C. March 2014 Incident Involving Collier
Beaulieu has claimed that Collier is liable for an “assault
and battery” that occurred in March 2014. Doc. No. 19, at 2;
Doc. No. 1, at 31. Collier’s prison job in March 2014 allowed
him to have unsupervised contact with Beaulieu, while Collier
was cleaning showers in the NHSP Secure Psychiatric Unit
(“SPU”). Doc. No. 1, at 31. Collier sprayed Beaulieu with the
firehose he was using to clean the SPU shower more than once, in
a manner that was “not accidentally done.” Doc. No. 1, at 31.
The facts alleged in Beaulieu’s pleadings, taken as true,
with all reasonable inferences construed in Beaulieu’s favor,
establish that Collier intentionally sprayed Beaulieu with a
firehose, without her consent. Those allegations, deemed
Case 1:14-cv-00280-SM Document 98 Filed 03/02/17 Page 5 of 18

6
admitted by Collier’s failure to answer, establish Collier’s
liability for the intentional tort of battery under New
Hampshire law.
II. Damages
Damages for bodily harm and emotional distress caused by an
assault may be recovered without proof of pecuniary loss.
See Restatement (Second) of Torts § 905 (1979). A plaintiff
“may recover damages for emotional distress and personal
humiliation that he proves he actually suffered, if his damage
is of a kind that normally results from an assault and is normal
and reasonable in its extent.” Silva, 150 N.H. at 375, 839 A.2d
at 6. Such damages may be proven by lay testimony. See id., 150
N.H. at 374-75, 839 A.2d at 6 (“allegations of an intentional
assault do not require expert . . . testimony to prove damages
for emotional and mental suffering”). It is not necessary that
a plaintiff show actual physical injury to recover such damages.
See id., 150 N.H. at 374, 839 A.2d at 6; Fischer v. Hooper, 143
N.H. 585, 592–93, 732 A.2d 396, 402 (1999)).
A. Damages as to Ruiter’s Assault and Battery
Beaulieu seeks $10,300 in compensatory damages for physical
injuries and emotional distress on her claim against Ruiter,
relating to the January 2012 attack. Specifically, Beaulieu
demands $5,300 as compensation for “assaulting plaintiff,” and
Case 1:14-cv-00280-SM Document 98 Filed 03/02/17 Page 6 of 18

7
$5,000 for “emotional distress,” plus costs in an unspecified
amount. Doc. No. 92-1.
Beaulieu’s testimony at the December 16, 2016 hearing was
consistent with the facts alleged in the pleadings. Beaulieu
testified that she was sitting in her cell when she heard her
cell door unlock. Ruiter, at the time, was standing near her
cell in the corridor, and another inmate was telling him to
attack Beaulieu. Ruiter then came into Beaulieu’s unlocked cell
“swinging,” having been baited by other inmates, and attacked
Beaulieu twice. Beaulieu testified that Ruiter struck her four
or five times before leaving the first time, then hit her five
or six times the second time using his hands and also kicking
her in the head. Beaulieu testified that the attacks resulted
in serious bruising around her face, above her eye, and on her
forehead, and a split lip for at least two weeks, for which she
sought medical attention. See N.H. Dep’t of Corr. (“DOC”)
Progress Notes, Jan. 19, 2012 (Doc. No. 97-1, at 1-2). She
further testified that she believes she suffered a concussion.
In the December 16, 2016 hearing, Beaulieu testified that
in the years since the January 2012 assault she has had problems
with her vision, particularly, with distance vision for which
she has been prescribed glasses, as well as “random headaches,”
and sharp pains running from her upper lip to her forehead. She
Case 1:14-cv-00280-SM Document 98 Filed 03/02/17 Page 7 of 18

8
attributes the vision problems, headaches, and facial pain to
the assault, as, she said, they arose after the assault. She
further testified that she has been told she has post-concussion
syndrome.
Beaulieu testified that, as a result of Ruiter’s January
2012 assault, whenever she hears a door open, she has a “panic
attack,” in which her chest tightens, her vision blurs, and she
has difficulty breathing. She testified that these panic
attacks often take approximately five minutes to resolve,
sometimes more or less, and that it takes a lot of energy to
control these panic attacks. She testified that the panic
attacks wake her up at night if a door opens, and that loud
noises make her jump. She further testified that she is “jumpy”
and has a hard time being around other people, as she feels she
always has to be on guard for possible assaults. She testified
that she was diagnosed with post-traumatic stress disorder
(“PTSD”) after the January 2012 incident. A medical record,
dated April 6, 2012, filed in support of Beaulieu’s motion for a
default judgment states that Beaulieu reported to a clinical
mental health counselor that she was having nightmares about the
January 2012 assault, and that she had trauma from other
assaults in her past. See DOC Mental Health Servs., Apr. 6,
2012 SOAP Note (Doc. No. 97-1, at 3).
Case 1:14-cv-00280-SM Document 98 Filed 03/02/17 Page 8 of 18

9
The court credits as true Beaulieu’s testimony describing
the January 2012 assault and battery, her physical injuries, and
the temporary disfigurement she suffered. Beaulieu’s
description of the assault is corroborated by the DOC’s
contemporaneous investigations of the incident, and the
surveillance video in the record. See Disciplinary Rep. (Doc.
No. 59-20); Video, SHU C-tier, Jan. 19, 2012. Her description
of facial injuries is consistent with medical records and photos
taken of her shortly after the attack, which are also in the
record. See DOC Progress Notes, Jan. 19, 2012 (Doc. Nos. 97-1,
at 1-2); Photos (Doc. No. 59-20, at 10).
Beaulieu’s testimony that she suffered emotional distress,
including pain, anxiety, and disrupted sleep, as a result of the
January 2012 attack is also generally credible. The pain and
suffering and emotional distress she described does not appear
unreasonable in its extent, which means that it can be proven
without expert testimony. Beaulieu’s demand of $10,300 as
compensation for all of her injuries to date is consistent with
the damages awarded in similar circumstances. See EEOC v.
Meadowview Cmty. Action, Inc., CIV. NO. S-06-1562 GEB GGH, 2008
WL 314536, at *3, 2008 U.S. Dist. LEXIS 8033, at *6 (E.D. Cal.
Feb. 4, 2008) (“[c]ases awarding damages for emotional distress
. . . have awarded a wide range, from $5,000 to $20,000,” in
Case 1:14-cv-00280-SM Document 98 Filed 03/02/17 Page 9 of 18

10
circumstances in which plaintiffs, subjected to employment
discrimination, felt “shocked, anxious, humiliated, hurt,” and
“suffered from stomach aches, sleeplessness, [and] nausea”), R&R
adopted, CIV. NO. S-06-1562 GEB GGH, 2008 WL 683478, at *2, 2008
U.S. Dist. LEXIS 19673, at *1-*2 (E.D. Cal. Mar. 12, 2008);
Jowers v. DME Interactive Holdings, Inc., No. 00 CIV. 4753 LTS
KNF, 2006 WL 1408671, at *13, 2006 U.S. Dist. LEXIS 32536, at
*12-*13 (S.D.N.Y. May 22, 2006) ($15,000 awarded for emotional
distress where plaintiff testified that she suffered “continued
stress, anger, sadness, and frustration,” and “humiliation,” and
cried most days, was depressed, suffered panic attacks,
headaches, nausea, loss of appetite, and insomnia, and broke out
in hives). Beaulieu’s demand for $10,300 is reasonable, in
light of the record before this court. Accordingly, the
district judge should order Ruiter to pay the full amount of
compensatory damages demanded by Beaulieu, $10,300, as
compensation for the injuries and emotional distress caused by
the January 2012 attack.
B. Damages as to Collier’s Conduct
Beaulieu also seeks $10,300 in compensatory damages for
physical injuries and mental suffering on her claim against
Collier, relating to the March 2014 incidents. Specifically,
Case 1:14-cv-00280-SM Document 98 Filed 03/02/17 Page 10 of 18

11
she demands $5,300 as compensation for the assault and $5,000
for “emotional distress,” plus costs. Doc. No. 93-1.
Beaulieu testified that Collier intentionally sprayed her
twice with a firehose, without her consent, while Collier and
Beaulieu were cleaning SPU shower stalls together on one
occasion in March 2014. In particular, Beaulieu testified that
Collier stood about one foot away from her both times and
sprayed her directly in the face each time, laughing and
taunting her while he did so. Beaulieu testified that she told
Collier to stop it, while it was happening, but Collier kept
spraying Beaulieu, only letting up after five minutes the first
time, and then relenting after two or three minutes the second
time.
A written description of the incident drafted by Beaulieu
within days of its occurrence, see Dep’t of Corrs. (“DOC”)
Resident Request Slip, Mar. 9, 2014 (Doc. No. 59-17, at 4)
(“March 9 RRS”), describes the incident, in pertinent part, as
follows:
On March 7, 2014 Inmate Collier spray[ed] me with the Fire
Hose (3x’s), 2x’s in front of Officer Kum. [Collier] was
never locked down. Well I had my cloth[es] soaked. . . .
Id. The March 9 RRS specifically asks that “something be done
about [Collier].” That statement and the grievances relating to
the same incident -- in which Beaulieu characterizes the
Case 1:14-cv-00280-SM Document 98 Filed 03/02/17 Page 11 of 18

12
incident as an “assault” warranting an investigation, see DOC
Grievance Form, May 12, 2014 (Doc. No. 59-17, at 1) -- are
consistent with the admitted allegations that the assault
occurred, but do not corroborate Beaulieu’s specific testimony
regarding the intensity of the spray and its direct, forceful
application to her face.
There are no contemporaneous medical records of the
incident. Beaulieu testified that the firehose spray caused her
eye pain for which she sought medical attention after the
spraying incident, but she was told by a nurse at that time that
she would be “fine.” Beaulieu testified that the nurse made no
written report of Beaulieu’s complaints.
As to emotional harm, Beaulieu testified that the firehose
incident exacerbated the PTSD symptoms she feels that are
triggered when she sees fire suppression sprinklers. Beaulieu
testified that she was in a county jail prior to the incidents
at issue in this case when sprinklers “popped” and blasted water
in her cell. She testified that the sound the firehose made
when water was released is similar to the sound that the
sprinklers made. She testified that when she is around fire
sprinklers, she has panic attacks, generally lasting five
minutes, involving her chest tightening, her vision blurring,
and her breathing becoming difficult, and that the firehose
Case 1:14-cv-00280-SM Document 98 Filed 03/02/17 Page 12 of 18

13
incident replays in her mind at those times. She further
testified that Collier has brought up the firehose incident to
harass her whenever he has returned to the state prison, and
that his harassment of her causes her to relive the event.
While the court does not question that a battery occurred,
and deems Collier’s liability for it to be admitted, no award of
substantial damages for the incident appears appropriate. In
the first place, Beaulieu’s testimony about being blasted in the
face by a high pressure firehose for up to five minutes at point
blank range, did not appear credible to the court. Written
accounts of the incident prepared by Beaulieu within days or
weeks of the incident, while consistent with a finding that
Collier sprayed Beaulieu with a firehose, are notably lacking in
detail regarding the force of the spray, its direction, or its
impact on Beaulieu’s eyes and mental health. In that respect,
such contemporaneous written accounts do not substantiate her
present claim for substantial damages for pain and suffering or
emotional distress, resulting from the firehose incident.
Furthermore, the emotional distress Beaulieu described in
her testimony does not appear to be the type of reasonable and
foreseeable consequence to getting sprayed while cleaning a
shower, for which expert testimony would be unnecessary. In
particular, the record does not provide this court with a
Case 1:14-cv-00280-SM Document 98 Filed 03/02/17 Page 13 of 18

14
reasonable basis for allocating any substantial part of
Beaulieu’s panic attacks to the firehose incident. Expert
testimony would be necessary to reasonably apportion damages
between the firehose incident and other traumatic events in
Beaulieu’s life that predate that incident. An award of any
substantial damages for emotional distress arising from the
firehose incident is not reasonable under the circumstances.
Accordingly, the district judge should enter a default judgment
as to Collier for the firehose incident and should award her
only $1 as nominal damages on that claim.
III. Costs
Beaulieu seeks an award of costs with respect to her claims
against Ruiter and Collier. Beaulieu has specifically demanded
$85.16 as to Collier, and an unspecified additional amount, for
serving Collier’s and Ruiter’s summonses and the complaint.3
Federal Rule of Civil Procedure 54(b) authorizes an award
of costs to a prevailing party. Federal law lists the type of
costs that may be taxed by the court, see, e.g., 28 U.S.C.
§ 1920, and the manner in which those costs must be proven, see
id. at § 1924 (setting forth the requirement that prevailing
3Beaulieu did not verify her costs by way of any notarized
affidavit or declaration executed under penalty of perjury. The
court effected service on those defendants by ordering the U.S.
Marshals Service to serve process on them.
Case 1:14-cv-00280-SM Document 98 Filed 03/02/17 Page 14 of 18

15
party file affidavit verifying bill of costs). Local Rule 54.1
sets forth procedures to be followed in this court by a
prevailing party claiming costs. As plaintiff’s demand for
costs in this action does not include the information required
by either LR 54.1 or 28 U.S.C. § 1924, this court lacks the
information it requires at this time to tax costs in this case.
Accordingly, plaintiff’s request for an award of costs as to
both Ruiter and Collier should be denied without prejudice to
refiling, in accordance with the procedures required by law and
LR 54.1.
IV. Prejudgment Interest
This court applies New Hampshire law in determining
Beaulieu’s entitlement to prejudgment interest. See Berkowitz
v. Berkowitz, 817 F.3d 809, 814 (1st Cir. 2016). “‘Ordinarily,
upon a verdict for damages and upon motion of a party, interest
is to be awarded as part of all judgments.’” State v. Exxon
Mobil Corp., 168 N.H. 211, 265, 126 A.3d 266, 309 (2015)
(citation omitted), cert. denied, 136 S. Ct. 2009 (2016). While
Beaulieu has not specifically requested an award of prejudgment
interest, such an award is appropriate here to compensate her
more completely.
New Hampshire law authorizes an award of prejudgment
interest to a prevailing party, accruing on the amount of
Case 1:14-cv-00280-SM Document 98 Filed 03/02/17 Page 15 of 18

16
damages awarded, from the date of the filing of the action to
the date of entry of judgment. See N.H. Rev. Stat. Ann. (“RSA”)
524:1-b; see also Exxon Mobil Corp., 168 N.H. at 266, 126 A.3d
at 309. A state statute, RSA § 336:1, II, provides the
applicable interest rate. The pertinent accrual date in this
case is March 31, 2015, when Beaulieu placed his motion to add
Collier and Ruiter as defendants in the prison mail system.
Accordingly, the district judge should direct the clerk to add
prejudgment interest to the damages awarded in this case,
applying the state statutory rate, using March 31, 2015 as the
accrual date.
V. Periodic Payments
Beaulieu requests that this court establish a payment
schedule for the damages awarded on her claims against Collier
and Ruiter. The request for a payment plan as to Collier should
be denied. The request as to Ruiter should be denied without
prejudice to refiling, should Beaulieu find that she is unable
to collect on any judgment issued by this court.
Conclusion
For the foregoing reasons, Beaulieu’s motions for default
judgments (Doc. Nos. 92, 93) as to Collier and Ruiter should be
granted. Nominal damages in the amount of $1 should be entered
Case 1:14-cv-00280-SM Document 98 Filed 03/02/17 Page 16 of 18

17
as to the claims against Collier, and compensatory damages in
the amount of $10,300 should be awarded as to the claims against
Ruiter. An award of prejudgment interest, running from March
31, 2015 to the date of the judgment, should be added to the
damage awards, calculated using the rate of interest described
in RSA § 336:1, II. The district judge should deny Beaulieu’s
request for an award of costs as to Collier and Ruiter, without
prejudice to Beaulieu’s ability to refile a motion for such
costs, pursuant to LR 54.1 and 28 U.S.C. § 1924, and the
district judge should also deny Beaulieu’s request that the
court establish a periodic payment schedule for Collier and
Ruiter.
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 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
March 2, 2017
cc: Christopher (Crystal) Beaulieu, pro se
Laura E.B. Lombardi, Esq.
Case 1:14-cv-00280-SM Document 98 Filed 03/02/17 Page 17 of 18

18
Scott Collier (c/o last known address)
Rueben James Ruiter (c/o last known address)
Case 1:14-cv-00280-SM Document 98 Filed 03/02/17 Page 18 of 18