Cherry v. NH Department of Corrections, Commissioner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
David Cherry
v. 	Civil No. 18-cv-565-SM
Helen Hanks, Commissioner, New
Department of Corrections et al.1
REPORT AND RECOMMENDATION
Plaintiff David Cherry, an inmate presently incarcerated at
the Rockingham County Department of Corrections, has filed this
action, pursuant to 42 U.S.C. § 1983, alleging that the
defendants, employees of the New Hampshire Department of
Corrections (“DOC”), violated his constitutional rights while he
was incarcerated at the New Hampshire State Prison (“NHSP”).
Cherry seeks monetary damages and an order directing the
defendants to either transfer Cherry out of the NHSP to another
incarcerative facility, or to place him on GPS monitoring, and
further that Cherry not be returned to the NHSP. 	The complaint
is before this magistrate judge for preliminary review, pursuant
to 28 U.S.C. §§ 1915(e)(2), 1915A(a) and LR 4.3(d)(1).
1The plaintiff identifies the following defendants to this
action in the caption and/or narrative of the complaint (Doc.
No. 1): New Hampshire Department of Corrections (“DOC”)
Commissioner Helen Hanks; DOC Classifications Administrator
Sarah Provencher; New Hampshire State Prison (“NHSP”) Chief of
Security Jon H. Fouts;(former) NHSP Warden Michael A. Zenk.
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Background
Cherry asserts that on February 18, 2018, while housed in
the NHSP’s Medium Custody South Unit (“MCS”), he was seriously
injured when he was assaulted with a weapon by another inmate,
Samuel Hill. 	Cherry states that the assault occurred in a
“blind spot” at MCS in that the area was not visible to officers
due to a lack of video monitoring cameras.
Cherry asserts that the defendants moved him from
protective custody to MCS on February 1, 2018. 	Cherry alleges
that DOC Classifications Administrator Sarah Provencher, NHSP
Chief of Security Jon Fouts, NHSP Warden Michael Zenk, and DOC
Commissioner Helen Hanks knew that Cherry was at a substantial
risk of serious harm in general population, and disregarded that
risk in placing him in South Unit. 	Specifically, Cherry alleges
that the defendants were aware, prior to the February 18
assault, that Cherry was at risk of physical harm from other
inmates because: Cherry had a number of “keep aways,” which are
DOC directives that Cherry should be kept separate from
particular inmates; Cherry had been in protective custody until
eighteen days prior to being assaulted; Cherry had advised
prison officials numerous times of his “status as a ‘snitch,’”
and the officials had reason to believe that Cherry’s “snitch”
status was “known around the prison”; that inmates against whom
Cherry had testified were incarcerated at the NHSP in February
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2018; and that MCS contained areas not visible to officers or
video cameras at the time Cherry was placed there.
Discussion
I. 	Preliminary Review
A. 	Standard
The court may dismiss claims asserted in a complaint filed
in forma pauperis, if the court lacks jurisdiction, a defendant
is immune from the relief sought, the complaint fails to state a
claim, or the action is frivolous or malicious. 	See 28 U.S.C.
§ 1915(e)(2); LR 4.3(d)(2). 	In determining whether a pro se
complaint states a claim, the court must construe the complaint
liberally. 	See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam). 	To survive preliminary review, the complaint must
contain “sufficient factual matter, accepted as true, to ‘state
a claim to relief.’” 	See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation omitted). 	The court treats as true all well-
pleaded factual allegations, and construes reasonable inferences
in plaintiff’s favor. 	See Ocasio-Hernández v. Fortuño-Burset,
640 F.3d 1, 12 (1st Cir. 2011).
B. 	Eighth Amendment and Negligence Claims
The Eighth Amendment protects inmates from cruel and
unusual punishment. 	U.S. Const. Amend. VIII. 	Prison officials
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have a duty to “take reasonable measures to guarantee the safety
of the inmates,” which includes “‘a duty to protect prisoners
from violence at the hands of other prisoners.’” 	Lakin v.
Barnhart, 728 F.3d 66, 70 (1st Cir. 2014) (quoting 	Farmer v.
Brennan, 511 U.S. 825, 832-33 (1994)). 	To establish
unconstitutional endangerment, an inmate must assert acts to
demonstrate that, objectively, he was incarcerated “under
conditions posing a substantial risk of serious harm,” and that
the involved prison officials knew of and disregarded the
excessive risk to the inmate’s safety. 	Id. at 834.
“A ‘substantial risk’ is one that is ‘objectively
intolerable.’” 	Jones v. Higgins-O’Brien, 2018 WL 935421, at *5
(D. Mass. Feb. 16, 2018) (quoting Farmer, 511 U.S. at 846). 	A
substantial risk exists if “there was a strong likelihood that
violence would occur.” 	Purvis v. Ponte, 929 F.2d 822, 825 (1st
Cir. 1991). 	Further, the plaintiff must assert facts to
demonstrate that the defendants were subjectively aware of
“facts from which the inference could be drawn that a
substantial risk of serous harm exists,” and that the defendants
“dr[e]w the inference.” 	Mosher v. Nelson, 589 F.3d 488, 494
(1st Cir. 2009) (internal citations and quotation marks
omitted).
The court finds that Cherry has stated sufficient facts to
allow Eighth Amendment and common law negligence claims to
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proceed against the defendants for endangerment and failure to
protect Cherry from harm. 	Accordingly, in an Order issued
simultaneously with this Report and Recommendation, the court
directs that the complaint be served upon defendants Hanks,
Provencher, Fouts, and Zenk.
II. 	Preliminary Injunctive Relief
“‘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); see also March
v. Mills, 867 F.3d 46, 52-53 (1st Cir. 2017), cert. denied, 138
S. Ct. 1545 (2018). 	The burden of proof is on the movant. 	See
Esso Std. Oil Co. v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir.
2006).
In his complaint, Cherry seeks a court order directing the
defendants to transfer him out of the NHSP to another
incarcerative facility, or to release him to the community on
GPS monitoring, and not to return him to the NHSP. 	Since filing
his complaint, Cherry has notified the court that he has been
transferred to the RCDC. 	Nothing in the record presently before
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the court indicates that Cherry is at risk of being returned to
the NHSP in the foreseeable future.
Cherry has obtained the relief he sought in his request
for an injunction, and has therefore failed to meet his burden
to demonstrate that he will suffer irreparable harm in the
absence of the court’s issuance of the requested injunction.
Accordingly, the district judge should dismiss Cherry’s claims
for injunctive relief as moot, without prejudice to Cherry’s
ability to renew his request in the future if circumstances
warrant.
Conclusion
For the foregoing reasons, the district judge should deny
Cherry’s request for preliminary injunctive relief. 	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 specific written objections to the
Report and Recommendation 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).
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__________________________
Andrea K. Johnstone
United States Magistrate Judge
November 20, 2018
cc: 	David Cherry, pro se
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