Doiron v. Camirand et al

`UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Arthur J. Doiron
v. Civil No. 16-cv-264-SM
New Hampshire Department of
Corrections et al.1
REPORT AND RECOMMENDATION
Plaintiff Arthur J. Doiron, a prisoner proceeding pro se,
has filed a complaint (Doc. No. 1). The complaint is before the
court for preliminary review, pursuant to 28 U.S.C. § 1915A(a)
and LR 4.3(d)(1).
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
1The defendants named in this action are: the New Hampshire
Department of Corrections (“DOC”); New Hampshire State Prison
(“NHSP”) Corrections Officer (“CO”) Camirand, whose first name
is unknown (“FNU”); DOC Director of Community Corrections Kim
Mackay; DOC Commissioner William Wrenn; and NHSP CO FNU Copp.
All defendants are sued in their individual and official
capacities.
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the pleading and inferences reasonably drawn therefrom, taken as
true, state a facially plausible 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)).
Background
On May 14, 2016, at 6:30 p.m., while Doiron was asleep in
his cell at the New Hampshire Department of Corrections (“DOC”)
Transitional Work Center (“TWC”), Corrections Officer (“CO”)
Camirand was conducting a count of the inmates. When he got to
Doiron’s cell, and found him sleeping, he hit him two or three
times in the shoulder and neck area with a clipboard.
Immediately after the count was completed, Doiron went to
see the Officer-in-Charge, CO Copp, to complaint about Camirand
hitting him with a clipboard. Copp told Doiron he would not get
involved and told Doiron to file a grievance. Copp then
cautioned Doiron that filing a grievance would likely result in
Doiron being moved out of the TWC and to a housing unit “behind
the walls” of the New Hampshire State Prison.
Doiron asserts that, in violation of prison policy, Copp
neither wrote a report nor contacted the shift commander
concerning Doiron’s complaint. Doiron, after later being moved
out of the TWC, filed requests and grievances, but apparently
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did not file a grievance when he was at the TWC for fear of
being transferred.
Doiron also claims that DOC Commissioner William Wrenn, and
the DOC Director of Community Corrections, Kim Mackay, violated
Doiron’s right to a safe prison environment by allowing COs
Camirand and Copp to work at the TWC. Seeking damages, Doiron
asserts that each of the defendants he has named is liable to
him in their individual and official capacities.
Discussion
I. Excessive Force
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). “[D]e minimis uses
of physical force, provided that the use of force is not of a
sort repugnant to the conscience of mankind,” do not violate the
Eighth Amendment. Id. at 9-10 (internal quotation marks and
citations omitted).
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Here, Doiron asserts that he was sleeping when he was
struck two or three times by a clipboard. While the facts
alleged demonstrate that Camirand’s actions were unprovoked,
nothing in the complaint, even liberally construed, shows that
Camirand acted maliciously or sadistically, or exercised more
than “de minimis” force against Doiron. Accordingly, Doiron has
failed to state an Eighth Amendment claim based on this
incident, and the district judge should dismiss Doiron’s
excessive force claim.
II. Failure to Follow Prison Policies and Procedures
An inmate has no freestanding constitutional right to have
prison officials follow prison policies if the officials’
actions are otherwise constitutional. 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). Here,
Doiron has not asserted sufficient facts to demonstrate that
Copp’s failure to write a report or contact the shift commander
concerning the clipboard incident, violated Doiron’s
constitutional rights. Accordingly, Doiron cannot assert a
claim based on Copp’s failure to properly follow prison
policies, and the district judge should dismiss that claim.
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III. Supervisory Liability – Defendants Wrenn and Mackay
Doiron has not alleged any facts indicating that either
Wrenn or Mackay, themselves, acted, or failed to act, in a
manner that violated his rights. Without such a showing,
supervisory prison officials are not liable for the acts of
their subordinates, based solely on their supervisory authority
over, or even awareness of, those acts. See Soto-Torres v.
Fraticelli, 654 F.3d 153, 159 (1st Cir. 2011); see also Iqbal,
556 U.S. at 676. Accordingly, the district judge should dismiss
the claims asserted against Wrenn and Mackay.
IV. Official Capacity
Doiron’s claims against the DOC, and against the other
defendants in their official capacities, should be dismissed, as
such claims are barred by the Eleventh Amendment. See Davidson
v. Howe, 749 F.3d 21, 27-28 (1st Cir. 2014); Coggeshall v. Mass.
Bd. of Reg. of Psychologists, 604 F.3d 658, 662 (1st Cir. 2010).
Accordingly, the district judge should dismiss Doiron’s official
capacity claims.
V. State Law Claims
Doiron asserts that defendants are liable to him in tort,
under state law, based on the facts asserted in his complaint.
Because the court finds that Doiron has failed to state any
federal claim upon which relief might be granted, the district
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judge should decline to exercise its supplemental jurisdiction,
see 28 U.S.C. § 1367, over the asserted state law claims,
without prejudice to Doiron’s ability to assert those claims in
state court.
Conclusion
For the foregoing reasons, the court finds that Doiron has
failed to state any federal claim upon which relief might be
granted, and recommends that the district judge dismiss this
action in its entirety. The dismissal of Doiron’s claims
asserted under state law should be without prejudice.
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 Garayalde-Rijos v. Mun. of Carolina, 747 F.3d 15,
21-22 (1st Cir. 2014).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
October 24, 2016
cc: Arthur J. Doiron, pro se
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