Matheson v. Lacasse et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Josh Matheson
v. Civil No. 17-cv-036-PB
Kim Lacasse, New Hampshire
State Prison Warden Michael A. Zenk,
Corrections Officer FNU Miller, and
Corrections Officer FNU Batakis1
REPORT AND RECOMMENDATION
Pro se plaintiff Josh Matheson has filed a complaint (Doc.
No. 1), asserting that the conditions of his confinement at the
New Hampshire State Prison (“NHSP”) violated his Eighth
Amendment rights. Before the court is plaintiff’s request for a
preliminary injunction, set forth in the complaint’s request for
relief, see Doc. No. 1, and defendants’ response (Doc. No. 7),
which has been referred to the magistrate judge for a report and
recommendation. See Feb. 6, 2017 Order (Doc. No. 3).
Background
Construed liberally, the complaint states Eighth Amendment
endangerment claims. Plaintiff who was incarcerated at the NHSP
1Defendants named by plaintiff include Kim Lacasse and New
Hampshire State Prison (“NHSP”) Warden Michael Zenk, in their
individual and official capacities. The court construed the
complaint as also intending to state claims against NHSP
Corrections Officers FNU Miller and Batakis, in their individual
capacities. See Feb. 6, 2017 Order (Doc. No. 3).
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at the time he filed the complaint, alleges that his placement
at the NHSP, pursuant to a parole revocation on November 29,
2016, subjected him to a substantial risk of harm from gang
violence. Plaintiff further alleged that defendants were
deliberately indifferent to a substantial risk of serious harm
to him on January 11, 2017. On that date, plaintiff alleges
that he cut himself intentionally, and that corrections officers
ignored his calls for help, and did not transfer him to the
Health Services Center until after he had cut himself, although
he had repeatedly requested help before cutting himself.
The district judge completed a preliminary review of the
complaint, pursuant to 28 U.S.C. § 1915A, referred the request
for a preliminary injunction to the magistrate judge, and
ordered the Eighth Amendment claims served on the four
defendants named in the case caption. See Feb. 6, 2017 Order
(Doc. No. 3). Two of those defendants, NHSP Warden Michael Zenk
and Department of Corrections (“DOC”) Classifications
Administrator Kimberly Lacasse, have filed a response (Doc. No.
7) to plaintiff’s request for a preliminary injunction, as the
court directed in its February 6, 2017 Order (Doc. No. 3).
Warden Zenk’s declaration, Doc. No. 7-3 (“Zenk Aff.”), and
DOC Classifications Administrator Lacasse’s declaration, Doc.
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No. 7-1 (“Lacasse Aff.”), both executed on February 8, 2017,2
confirm certain facts alleged by Matheson. Matheson entered the
NHSP on November 29, 2016 on a parole revocation, and was housed
initially in the NHSP Reception and Diagnostic (“R&D”) unit.
Lacasse Aff. ¶ 7. Matheson’s claims of suicidality while at the
NHSP triggered his transfer from the R&D unit to the NHSP Health
Services Center on January 11, 2017, and again in late January
2017. Lacasse Aff. ¶ 8; Zenk Aff. ¶¶ 4-5.
Defendants Zenk and Lacasse concluded that Matheson’s
claims of suicidality and the transfers to the Health Services
Center presented a serious or significant “population management
problem” for the NHSP. Lacasse Aff. ¶ 11; Zenk Aff. ¶ 5. They
arranged for Matheson’s transfer to the Sullivan County
Department of Corrections (“SCDOC”) on February 3, 2017.
Lacasse Aff. ¶ 10; Zenk Aff. ¶ 5. Matheson remains at the SCDOC
at this time. Zenk Aff. ¶ 5; Lacasse Aff. ¶ 10.
Lacasse’s declaration further avers that she has known
about Matheson’s gang-related safety concerns, and that she
considered those concerns when she made the decision to place
Matheson in the NHSP after his parole was revoked in November
2016. Lacasse Aff. ¶¶ 2-4, 6. The record before this court
2Both declarations state that they were executed in “2016,”
an apparent typographical error.
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suggests that Matheson’s transfer to the SCDOC could be
reversed, as Lacasse’s declaration states she continues to
believe Matheson could be housed safely at the NHSP, if the
SCDOC were to seek his return in the future. Lacasse Aff. ¶ 12.
Discussion
I. Preliminary Injunction Standard
“‘A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.’” Glossip v. Gross,
135 S. Ct. 2726, 2736 (2015) (citation omitted). The likelihood
of success and irreparable harm are the factors that weigh most
heavily in the analysis. See Esso Std. Oil Co. v. Monroig–
Zayas, 445 F.3d 13, 18 (1st Cir. 2006); see also Voice of the
Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32
(1st Cir. 2011) (“‘[p]erhaps the single most important
prerequisite for the issuance of a preliminary injunction is a
demonstration that if it is not granted the applicant is likely
to suffer irreparable harm before a decision on the merits can
be rendered’” (citation omitted)). The burden of proof is on
the movant. See Esso Std. Oil Co., 445 F.3d at 18.
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The court may rule on a motion for a preliminary injunction
on the papers if it has before it “‘adequate documentary
evidence upon which to base an informed, albeit preliminary
conclusion,’” and the parties have been afforded “‘a fair
opportunity to present relevant facts and arguments to the
court, and to counter the opponent’s submissions.’” Campbell
Soup Co. v. Giles, 47 F.3d 467, 470-71 (1st Cir. 1995)
(citations omitted). The parties have had such an opportunity
to date, and an additional opportunity for briefing is provided
by the objection period that follows the issuance of this Report
and Recommendation.
II. Irreparable Harm
“Irreparable harm most often exists where a party has no
adequate remedy at law.” Charlesbank Equity Fund II, Ltd.
P’ship v. Blinds To Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004).
“A finding of irreparable harm must be grounded on something
more than conjecture, surmise, or a party’s unsubstantiated
fears of what the future may have in store.” Id.
Matheson has claimed that the conditions of his confinement
at the NHSP subjected him to a substantial risk of serious harm
while he was there, and he specifically requested a preliminary
injunction ordering his transfer to a county corrections
facility. Prison officials transferred Matheson to the SCDOC on
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February 3, 2017, and he remains at the SCDOC at this time.
Matheson cannot show that a preliminary injunction is necessary
to prevent irreparable harm at this time. Accordingly, the
district judge should deny Matheson’s request for a preliminary
injunction, without prejudice to his ability to file a new
motion for a preliminary injunction if he is transferred back to
the NHSP, and/or the specific circumstances of his housing at
that time present an immediate risk to his health or safety.
Conclusion
Matheson’s request for a preliminary injunction should be
denied, without prejudice, for reasons stated above. 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
February 24, 2017
cc: Josh Matheson, pro se
Francis Charles Fredericks, Esq.
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