Justice v. Nathaniel Seabron, et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
William Soler Justice
v. 	Case No. 20-cv-517-PB
Christopher T. Sununu et al.1
AMENDED REPORT AND RECOMMENDATION
Plaintiff William Soler Justice brings this action pursuant
to 42 U.S.C. § 1983, alleging that the defendants have violated
his federal constitutional and statutory rights, and are liable
to him under state law. 	Mr. Justice’s complaint (Doc. No. 1) is
before the court for preliminary review pursuant to 28 U.S.C.
§§ 1915(e)(2) and LR 4.3(d)(2).
Preliminary Review Standard
The Court reviews complaints filed by individuals
proceeding pro se and in forma pauperis to determine, among
1 The plaintiff identifies the following defendants in his
complaint: New Hampshire Governor Christopher T. Sununu; the New
Hampshire Department of Corrections (“DOC”); DOC Commissioner
Helen E. Hanks; DOC Medical and Forensic Services Director Paula
L. Mattis; the DOC Secure Psychiatric Unit (“SPU”); SPU Medical
Director Daniel P. Potenza, M.D.; SPU Psychiatrist Wendy Martin,
M.D.; SPU Administrator Deborah Robinson; SPU Director of
Nursing Carlene Ferrier; SPU Nurses John Lombard and Mark Gagne;
SPU Corrections Officers Frank Logan, Scott J. Marshall, Joshua
N. Deblois, Mark J. Kimball, Randal G. Carver, and Nathaniel P.
Seabron; the Office of Public Guardian (“OPG”); and the former
OPG guardian of Mr. Justice’s person, Eric VanGelder.
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other things, whether the complaint states a claim. 	The court
determines whether, stripped of legal conclusions, and with all
reasonable inferences construed in the plaintiff’s favor, the
complaint contains “sufficient factual matter, accepted as true,
to ‘state a claim to relief.’” 	Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted). 	The Court may dismiss claims sua
sponte if, among other things, the court lacks jurisdiction, a
defendant is immune from the relief sought, or the complaint
fails to state a claim upon which relief may be granted. 	See LR
4.3(d)(1). 	The court construes pro se plaintiffs’ filings
liberally. 	See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Background
I. 	Mr. Justice’s Initial Placement in the SPU
Mr. Justice was charged in the New Hampshire Superior Court
(“Superior Court”) with attempted murder, assault, and reckless
conduct with a dangerous weapon (a car). 	On February 9, 2018,
the Superior Court found that Mr. Justice, who has been
diagnosed with schizophrenia, paranoid type, was not competent
to stand trial on the charges against him, and that he was not
restorable to competence. 	Thereafter, the New Hampshire Circuit
Court, Sixth Circuit, Probate Division (“Probate Court”)
determined that Mr. Justice was potentially dangerous to himself
and others, and civilly committed him to the Secure Psychiatric
Unit (“SPU”), for a period of five years, with allowance for a
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conditional discharge from that placement when and if such a
discharge was clinically appropriate, pursuant to N.H. Rev.
Stat. Ann. § (“RSA”) 135-C. 	See Feb. 9, 2018 Invol. Admis.
Order, In re Soler, No. 317-2018-IN-00027 (Probate Court) (Doc.
No. 1-13, at 1). 	The SPU is a New Hampshire Department of
Corrections (“DOC”) facility located in the New Hampshire State
Prison.
Mr. Justice was placed at the SPU on February 13, 2018.
Mr. Justice asserts that he felt unsafe while housed at the SPU,
because the SPU is a prison setting, rather than a hospital
setting, and while there he was comingled with convicted
prisoners housed in that unit and subjected to punitive
corrections tactics which he alleges are not appropriate for a
nonprisoner patient committed to a mental health facility. 	Mr.
Justice further alleges that the SPU is not licensed or
accredited as a mental health treatment facility, and is not
subject to oversight by any agency outside of the DOC.
II. 	Use of Force Against Mr. Justice2
2 Mr. Justice has attached a number of documents to his
complaint which were prepared by DOC employees. 	See, e.g., Feb.
18, 2018 DOC Involuntary Treatment Authorization of Dr. Wendy
Martin (Doc. No. 1-16); Apr. 10, 2018 SPU SOAP Notes of Nurse
John Lombard (Doc. No. 1-20, at 1); Apr. 10, 2018 DOC Post
Pepper Spray Report of Nurse John Lombard (Doc. No. 1-21); July
13, 2017 Post Use-of-Force Report of Nurse Mark Gagne (Doc. No.
1-22); Jan. 22, 2019 SPU SOAP Note of Nurse John Lombard (Doc
No. 1-20, at 2); Jan. 22, 2019 Invol. Emerg. Treatment
Authorization of Scott Congdon (Doc. No. 1-23). 	The documents
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A. 	February 18, 2018
On February 18, 2018, Mr. Justice was housed in the SPU
infirmary when, because he was irritated by SPU Nurse John
Lombard’s refusal to answer his questions, he banged on his cell
door for approximately ten minutes. 	Corrections Officers
(“COs”) Joshua Deblois and Mark Kimball entered Mr. Justice’s
cell with a shield and a Taser. 	CO Deblois deployed the Taser
to Mr. Justice’s left thigh, which caused Mr. Justice to feel
“electrical throbbing and burning pain.” Compl. (Doc. No. 1, at
5). 	CO Deblois then forced Mr. Justice onto the concrete
mattress frame in the cell. 	Mr. Justice asserts he was then
“involuntarily medicated and roughly transported to the
restraint room” where he was evaluated, and held in four-point
restraints for one to two hours. 	Id.
B. 	April 10, 2018
On April 10, 2018, CO Logan was firing a Taser outside of
Mr. Justice’s cell where Mr. Justice could hear it. 	Mr.
Justice, anticipating being tased, blocked the gap between his
cell door and the wall with his mattress. 	CO Logan ordered Mr.
prepared by DOC staff members at times describe the incidents
underlying the claims in this action differently than Mr.
Justice does in the narrative of his complaint. 	For purposes of
preliminary review, the Court credits Mr. Justice’s version, see
Iqbal, 566 U.S. at 678, and declines to resolve any potential
factual disagreements between the parties that may arise during
the litigation of this matter.
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Justice to remove the mattress. 	Mr. Justice followed that
order, but CO Logan continued to ask him why the door was still
blocked. 	While Mr. Justice was trying to explain to CO Logan
that he had removed the mattress, CO Logan deployed pepper spray
into Mr. Justice’s cell. 	CO Logan left Mr. Justice in his cell
for thirty to sixty minutes before returning and telling Mr.
Justice to “cuff up.” 	Id. at 6. 	Mr. Justice, agitated by what
he perceived to be CO Logan’s unjustified use of pepper spray,
threatened to throw urine on CO Logan and refused to cooperate
with him.
Nurse Lombard and CO Nathaniel Seabron then arrived at Mr.
Justice’s cell, at which time Mr. Justice cooperated with the
SPU staff. 	Nurse Lombard assessed Mr. Justice but failed to
note in Mr. Justice’s medical record that Mr. Justice had
“breathing distress from exposure to the pepper spray.” 	Id.
C. 	July 13, 20183
On July 13, 2018, Mr. Justice placed newspaper over the
window in his cell. 	CO Randal Carver told him to remove the
newspaper or “cuff up.” 	Id. 	Mr. Justice climbed to the top of
a concrete shelf in the cell and, anticipating being pepper-
sprayed, put a pillow over his face. 	CO Carver repeatedly
3 Since filing his initial complaint, Mr. Justice has
notified the Court that July 13, 2018 may not be the precise
date of the incident described. 	See Nov. 9, 2022, Pl.’s Mot. To
Correct (Doc. No. 27).
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deployed pepper spray into Mr. Justice’s locked cell. 	The
exposure to pepper spray caused Mr. Justice to “double over in
pain, coughing and spitting.” 	Id.
Thirty minutes later, CO Logan entered Mr. Justice’s cell
and forced him off of the high shelf and onto the concrete
mattress frame, and handcuffed him, causing “painful injuries to
[Mr. Justice’s] wrists.” 	Id. 	Mr. Justice asserts that prior to
being handcuffed, he had not engaged in any assaultive, violent,
or aggressive behavior. 	Once Mr. Justice was handcuffed, CO
Logan ordered him to get up and go to the shower. 	When Mr.
Justice told CO Logan that he couldn’t breathe, SPU Nurse Mark
Gagne conducted a “cursory” examination of Mr. Justice. 	Id. at
7.
D. 	January 22, 2019
On January 22, 2019, Mr. Justice was housed in a cell in
the SPU infirmary when CO Logan accused him of attempting to
spit at a female CO, and restrained Mr. Justice on the floor.
CO Seabron then tased Mr. Justice while he was restrained,
handcuffed, on the floor. 	While Mr. Justice was handcuffed, CO
Logan pulled him off the floor and to his feet, and then dragged
him to the “restraint room,” pulling Mr. Justice’s face back “in
a belittling and humiliating manner” in front of six other staff
members. 	Id.
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In the restraint room, Mr. Justice claims CO Logan and CO
Seabron roughly placed him in four-point restraints. 	CO Seabron
then tased Mr. Justice again while Mr. Justice was in four-point
restraints. 	Mr. Justice was left in those restraints for three
hours, during which he was begging for help because the incident
in his cell had aggravated an old back injury and he was in
pain. 	When CO Deblois released Mr. Justice from the four-point
restraints, he unnecessarily strip-searched Mr. Justice before
escorting him back to his cell.
III. Request for Transfer to NHH and Eric VanGelder
On May 10, 2019, Mr. Justice’s SPU psychiatrist, Dr.
Garrett Graves, and SPU Administrator Deborah Robinson sent a
letter to Dr. Alexander de Nesnera, the Chief Medical Officer at
the New Hampshire Hospital (“NHH”), stating: “Currently Mr.
[Justice] has been consistently safe around staff and peers he
was advanced to the least restrictive level of care at SPU. 	He
has been doing very well and is actively participating in his
treatment, including working on a WRAP plan.”4 	May 10, 2019
Letter of Deborah Robinson and Dr. Garret Graves (Doc. No. 1-
32). 	On July 12, 2019 Dr. de Desnera requested that Dr. Jack
Hinck, an NHH psychiatrist, evaluate Mr. Justice and “give an
4 Neither the complaint nor the attachments thereto explain
what the acronym “WRAP” stands for.
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opinion as to whether Mr. [Justice] is appropriate for transfer
to [NHH].” 	July 12, 2019 Letter of Dr. Jack Hinck (Doc. No. 1-
33, at 1).
Dr. Hinck responded to Dr. de Nesnera that he had met with
Mr. Justice on July 3, 2019 and had reviewed at least some of
his psychiatric records. 	See id. 	Dr. Hinck’s letter stated
that Mr. Justice, at that time, “d[id] not appear to be safe to
transfer to NHH,” based on his continuing “severe psychotic
symptoms with persistent delusions that many people around him
are part of a conspiracy against him,” his “history of engaging
in dangerous behaviors toward others based on these delusions,”
and his “poor insight into having a mental illness.” 	Id. 	Dr.
Hinck also recommended that Mr. Justice’s medication be
increased or changed prior to any transfer to NHH and that “a
formal risk assessment be completed to assess his safety to
transfer to [NHH] in the future.” 	Id. 	On July 15, 2019, based
on Dr. Hinck’s assessment and recommendations, Dr. de Nesnera
denied Mr. Justice a transfer to NHH. 	See July 15, 2019 Letter
of Dr. Alexander de Nesnera (Doc. No. 1-38).
Attached to Mr. Justice’s complaint is a December 10, 2019
violence risk assessment report (Doc. No. 1-36) prepared at the
request of the DOC by Kaitlyn Peretti, Psy. D. 	Dr. Peretti
examined Mr. Justice, reviewed his records, and conducted risk
assessment testing. 	See Dec. 10, 2019 Rpt. of Kaitlyn Peretti,
Psy. D. (Doc. No. 1-36, at 1). 	Dr. Peretti concluded that
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transferring Mr. Justice from the SPU to NHH was appropriate at
that time. 	See id. at 10. 	Based on the recommendations of Dr.
Graves, Ms. Robinson, and Dr. Peretti, on December 23, 2019, Dr.
de Nesnera accepted Mr. Justice for transfer to the NHH when a
bed became available at that facility. 	See Dec. 23, 2019 Letter
of Dr. Alexander de Nesnera (Doc. No. 1-37).
At the time Mr. Justice filed this action, the Probate
Court had appointed the Office of Public Guardian (“OPG”) to be
the guardian of his person and estate. 	See July 29, 2018 Order,
In re Soler, No. 317-2018-GI-00414 (Probate Court) (Doc. No. 12,
at 4-13). 	Eric VanGelder served as Mr. Justice’s guardian on
behalf of the OPG.5 	Mr. Justice asserts that once his treating
psychiatrist, Dr. Graves, recommended that Mr. Justice be
transferred to the NHH, Mr. VanGelder was obligated to, but did
not, assist him in obtaining a transfer out of the SPU to a less
restrictive mental health treatment facility. 	On August 7,
2020, Mr. Justice notified the Court that he had been
transferred to NHH. 	See Aug. 10, 2020, Pl.’s Notice of Change
of Address (Doc. No. 9).
5 After this case was filed, the Probate Court appointed
Wanda J. Duryea as successor guardian of Mr. Justice’s person.
See Mar. 4, 2021 Order, In re Soler, No. 317-2018-GI-00414
(Probate Court) (Doc. No. 12, at 15-21). 	Since then, the
Probate Court has appointed Eric Hansmeier of the OPG as the
guardian of Mr. Justice’s person.
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Claims
The court, having construed Mr. Justice’s complaint
liberally, and considered all reasonable inferences in his
favor, finds that Mr. Justice has asserted the following claims
in this case:
1. 	Defendants violated William Justice’s Fourteenth
Amendment right not to be subjected to an objectively
unreasonable use of force, in that:
a. 	On February 18, 2018, CO Joshua N. Deblois, in
response to Mr. Justice banging on his cell door for
ten minutes, and without sufficient provocation by Mr.
Justice to make a use of force by CO Deblois
objectively reasonable:
i. 	deployed a Taser to Mr. Justice’s thigh,
ii. 	pushed Mr. Justice down on the cement
mattress frame in his cell,
iii. medicated Mr. Justice against his will,
iv. 	“roughly transported” Mr. Justice to a
“restraint room” in the SPU, and
v. 	placed Mr. Justice in four-point restraints
for one-to-two hours.
b. 	On April 10, 2018, CO Frank Logan, in response to
his incorrect belief that Mr. Justice had continued to
block his cell door with a mattress after being
instructed to remove the mattress, and without
sufficient provocation by Mr. Justice to make a use of
force by CO Logan objectively reasonable:
i. 	pepper-sprayed Mr. Justice in his cell, and
ii. 	left Mr. Justice in his cell for thirty to
sixty minutes after deploying pepper spray into
the cell.
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c. 	On July 13, 2018,6 in response to Mr. Justice’s
refusal to remove newspaper from his cell window, and
without sufficient provocation by Mr. Justice to make
a use of force against him objectively reasonable:
i. 	CO Randal G. Carver repeatedly deployed
pepper spray into Mr. Justice’s closed cell; and
ii. 	CO Frank Logan forced Mr. Justice off a
shelf in his cell and onto a concrete mattress
frame, causing “painful injury” to Mr. Justice’s
wrists and leg.
d. 	On January 22, 2019, believing that Mr. Justice
had attempted to spit on a CO, and without sufficient
provocation by Mr. Justice to make a use of force
against him objectively reasonable:
i. 	CO Frank Logan forced Mr. Justice onto the
floor of his cell while Mr. Justice was in
restraints;
ii. 	CO Nathaniel P. Seabron tased Mr. Justice
while he was restrained on the floor of his cell;
and
iii. CO Seabron tased Mr. Justice while he was in
four-point restraints.
2. 	Defendants violated William Justice’s Fourteenth
Amendment right to be protected from the objectively
unreasonable use of force against him, in that:
a. 	on July 18, 2018, CO Mark J. Kimball accompanied
CO Joshua N. Deblois into Mr. Justice’s cell, and
failed to protect Mr. Justice from being tased by CO
Deblois, despite having a realistic ability and
opportunity to do so; and
b. 	on January 22, 2019, CO Frank Logan failed to
protect Mr. Justice, despite having a realistic
ability and opportunity to do so, from:
i. 	being tased by CO Nathaniel P. Seabron while
Mr. Justice was in restraints on the floor of his
cell; and
6 See supra note 3.
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ii. 	being tased by CO Seabron while Mr. Justice
was in four-point restraints.
3. 	CO Joshua Deblois violated William Justice’s Fourth
and Fourteenth Amendment rights by subjecting him to an
unnecessary strip search on January 22, 2019.
4. 	Defendants violated William Justice’s Fourteenth
Amendment right to due process by subjecting him to
seclusion within the SPU, which amounted to objectively
unreasonable punishment.7
5. 	Defendants violated William Justice’s Fourteenth
Amendment right to equal protection by:
a. 	subjecting him to restraints, pepper-spraying,
tasing, and other abuse while he was housed in the
SPU, when other similarly situated people housed in
the SPU were not so treated; and
b. 	discriminated against him based on his
disability, serious mental illness.
6. 	The DOC violated William Justice’s rights under Title
II the Americans with Disabilities Act by:
a. 	discriminatorily denying him benefits and
services available in the SPU based on Mr. Justice’s
disability, serious mental illness; and
b. 	violating the terms of a consent decree issued
August 12, 2014 in Amanda D. v. Hassan, No. 12-cv-53-
SM (D.N.H.).
7. 	CO Frank Logan subjected William Justice to punitive
conditions of confinement on January 22, 2019, by forcing
his head up in front of six COs, while dragging Mr. Justice
from his cell to a restraint room, thus humiliating Mr.
Justice in violation of his Fourteenth Amendment rights.
8. 	Defendants violated William Justice’s Fourteenth
Amendment right to receive adequate medical care while
confined at the SPU, in that:
7 Mr. Justice has not named any defendants to the claim
identified here as Claim 4. 	Mr. Justice must move to amend his
complaint to identify those individuals by name once he obtains
their names in discovery.
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a. 	On April 10, 2018, SPU Nurse John Lombard
examined Mr. Justice after Mr. Justice had been
pepper-sprayed in his cell, and left in that cell for
thirty to sixty minutes, but failed to note in Mr.
Justice’s medical record that Mr. Justice was
experiencing “breathing distress” as a result of being
exposed to pepper spray; and
b. 	On July 13, 2018, Nurse Mark Gagne examined Mr.
Justice after Mr. Justice had been pepper-sprayed in
his cell, and left in that cell for thirty minutes,
and after CO Frank Logan caused “painful injuries” to
Mr. Justice’s wrists and leg, but his examination was
“cursory.”
9. 	Defendants violated William Justice’s Fourteenth
Amendment right to receive adequate mental health treatment
at the SPU as that facility is neither licensed nor
accredited as a mental health treatment facility.
10. 	William Justice’s personal belongings were missing
after “shakedowns” of his cell in the SPU.
11. 	Supervisory DOC and SPU defendants, including DOC
Commissioner Helen E. Hanks, DOC Medical and Forensic
Services Director Paula L. Mattis, SPU Medical Director Dr.
Daniel P. Potenza, SPU Administrator Deborah Robinson, and
SPU Nurse Coordinator Carlene Ferrier, violated William
Justice’s Fourteenth Amendment right not to be subject to a
significant risk to his health and safety while he was in
the SPU by failing to train SPU employees to properly
interact with and protect SPU patients with serious mental
illness, where the lack of and need for such training was
obvious due to previous multiple injuries and deaths of
mentally ill patients at the SPU.
12. 	New Hampshire Governor Christopher T. Sununu, DOC
supervisory officials, including DOC Commissioner Helen E.
Hanks, DOC Medical and Forensic Services Director Paula L.
Mattis, SPU Medical Director Dr. Daniel P. Potenza, SPU
Administrator Deborah Robinson, and SPU Nurse Coordinator
Carlene Ferrier, violated William Justice’s Fourteenth
Amendment right to due process when, after Mr. Justice sent
those defendants Patient Request Slips, grievances, and/or
letters concerning his complaints about the SPU COs’ uses
of force against him, including placing him in restraints,
not using appropriate means for interacting with a
nonprisoner patient in a mental health treatment facility,
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failed to adequately investigate or resolve Mr. Justice’s
complaints.
13. 	The Office of Public Guardian and Eric VanGelder,
during the time he was William Justice’s guardian:
a. 	failed to intercede on Mr. Justice’s behalf to
protect him from being subject to violations of his
civil rights while at the SPU; and
b. 	failed to ensure that Mr. Justice was promptly
transferred from the SPU to a less restrictive
environment, either the NHH or another mental health
treatment facility, once Mr. Justice was deemed ready
for such a transfer.
14. 	All of the defendants knew of and failed to report the
abuses to which William Justice was subjected in the SPU to
appropriate state authorities, as required by N.H. Rev.
Stat. Ann. § 161-F:46.
15. 	The defendants are liable to William Justice under
state law as follows:
a. 	The defendants identified in Claim 1 are liable
to Mr. Justice for the tort of assault for the conduct
alleged to underlie that claim.
b. 	The defendants identified in Claim 1 and Claim 2
are liable to Mr. Justice for the tort of battery for
the conduct alleged to underlie those claims.
c. 	The defendants identified in Claim 1 and Claim 2,
are liable to Mr. Justice for negligence in that they
breached their duty to Mr. Justice while engaging in
the conduct alleged to underlie those claims in that
the defendants:
i. 	failed to exercise reasonable care to ensure
that Mr. Justice was provided with a safe place
to live;
ii. 	failed to exercise reasonable care to ensure
that Mr. Justice was not subjected to punishment
while at the SPU; and
iii. failed to exercise reasonable care in their
use of restraints, pepper spray, and Tasers on
Mr. Justice.
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d. 	The defendants identified in Claims 1, 2, 3, 4,
and 11 are liable to Mr. Justice for the tort of
intentional infliction of emotional distress for the
conduct alleged to underlie those claims.
e. 	The defendants identified in Claims 1, 2, 3, 4,
and 11 are liable to Mr. Justice for the tort of
negligent infliction of emotional distress for the
conduct alleged to underlie those claims.
f. 	The defendants identified in Claim 6(b) are
liable to Mr. Justice for breach of contract in that
they failed to meet their obligations as set forth in
the Consent Decree issued in Amanda D. v. Hassan, No.
12-cv-53-SM (D.N.H.).
g. 	The defendants identified in Claim 8 are liable
to Mr. Justice for negligence in that they failed to
provide timely medical care to Mr. Justice after he
was pepper-sprayed.
h. 	The defendants identified in Claim 11 are liable
to Mr. Justice for negligent supervision of SPU COs
Frank Logan, Mark Kimball, Nathaniel Seabron, Joshua
Deblois, and Randal Carver, in that the defendants to
Claim 11 breached their duty to control the conduct of
COs on SPU, by:
i. 	failing to prevent COs Logan, Kimball,
Seabron, Deblois, and Carver from engaging in
abusive behavior toward Mr. Justice as that
behavior was inappropriate for a nonprisoner
patient in a mental health treatment facility;
and
ii. 	failing to ensure that SPU COs Logan,
Seabron, Deblois, and Carver communicated with
Mr. Justice in a nonaggressive and
nonconfrontational manner.
Discussion
I. 	Claims to Be Served
Mr. Justice has asserted sufficient facts to allow the
following claims, as identified and summarized in this Report
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and Recommendation (“R&R”), to proceed against the defendants
identified in the claims: Claim 1 (with subparts); Claim 2(with
subparts); Claim 3; Claim 4; Claim 11, Claims 15(a)-(e), and
Claim 15(h). 	In an Order issued simultaneously with this R&R,
the Court directs service of the above-listed claims on the
defendants identified therein.
II. 	Claims the District Judge Should Dismiss
A. 	Equal Protection
1. 	Differential Treatment – Claim 5(a)
In the claim identified in this R&R as Claim 5(a), Mr.
Justice alleges that the defendants mistreated him by
restraining, pepper-spraying, tasing, and otherwise abusing him
while he was in the SPU, but did not so abuse other similarly
situated SPU residents.
[T]he Equal Protection Clause demands that “all
persons similarly situated should be treated alike.”
To establish an equal protection claim, a plaintiff
must show that “(1) the person, compared with others
similarly situated, was selectively treated; and (2)
that such selective treatment was based on
impermissible considerations such as race, religion,
intent to inhibit or punish the exercise of
constitutional rights, or malicious or bad faith
intent to injure a person.”
Shurtleff v. City of Bos., 986 F.3d 78, 97 (1st Cir.) (citations
omitted), rev’d on other grounds, 142 S. Ct. 1583, 1593 (2022).
Here, Mr. Justice’s allegation of differential treatment is
not supported by any facts showing that any other SPU resident
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was, in fact, similarly situated to him in all relevant respects
but was not subjected to the same abuse as Mr. Justice.
Stripped of conclusory allegations, therefore, Mr. Justice has
failed to state a claim upon which relief may be granted for
unequal treatment in violation of the Equal Protection Clause,
and the District Judge should dismiss Claim 5(a) for failure to
state a claim.
2. 	Class-Based Discrimination (Claim 5(b))
In the claim identified in this R&R as Claim 5(b), Mr.
Justice alleges that the DOC discriminatorily denied him
benefits and services generally available in the SPU based on
his having a disability, specifically, a mental illness, in
violation of the Equal Protection Clause of the Fourteenth
Amendment. 	As noted above, Mr. Justice does not assert any
facts to demonstrate that any defendant to this action
discriminated against him because he has a mental illness.
Further, he has not named any defendants to this claim,
described the conduct he alleges was discriminatory, or how such
conduct violated his rights. 	Accordingly, Mr. Justice has
failed to assert facts sufficient to state an equal protection
claim based on mental illness discrimination. 	The District
Judge, therefore, should dismiss Claim 5(b) from this action for
failure to state a claim.
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B. 	Americans with Disabilities Act
1. 	Title II of the ADA - Claim 6(a)
In the claim identified in this R&R as Claim 6(a), Mr.
Justice alleges that while he was in the SPU, the DOC
discriminatorily denied him benefits and services in violation
of Title II of the Americans with Disabilities Act (“ADA”),
based on his having a disability, mental illness. 	Under Title
II of the ADA, “no qualified individual with a disability shall,
by reason of such disability, be excluded from participation in,
or denied the benefits of the services, programs, or activities
of a public entity, or be subjected to discrimination by any
such entity.” 	42 U.S.C. § 12132. 	To establish a violation of
Title II, a plaintiff must establish that:
(1) [the plaintiff] is a qualified individual with a
disability; (2) ... he was either excluded from
participation in, or denied the benefits of a public
entity's services, programs, or activities or was
otherwise discriminated against; and (3) ... such
exclusion, denial of benefits, or discrimination was
by reason of [his] disability.
Snell v. Neville, 998 F.3d 474, 499–500 (1st Cir. 2021)
(internal quotation marks and citations omitted).
Mr. Justice has asserted sufficient facts to demonstrate
that he is a qualified individual with a disability. 	He has
not, however identified the individuals who he alleges violated
his rights under the ADA, what any such defendants did or failed
to do which violated his rights, or what benefits or services he
was excluded from or denied. 	More importantly, Mr. Justice has
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not stated any facts which suggest that he has been mistreated,
or denied access to services or programs, based on
discrimination against him because he is mentally ill. 	Stripped
of conclusory allegations, the complaint does not assert
sufficient facts to state a claim for discrimination under Title
II of the ADA, and the District Judge should dismiss Claim 6(a)
for failure to state a claim upon which relief can be granted.
2. 	Consent Decree – Claim 6(b)
Mr. Justice asserts that the defendants have violated his
Fourteenth Amendment right to due process by violating a consent
decree incorporated into a settlement agreement approved by a
judge of this court on February 12, 2014, in Amanda D. v.
Hassan, No. 12-cv-53-SM (D.N.H.) (“Amanda D.”). 	Amanda D. is a
class action suit brought in this Court against New Hampshire
officials responsible for the provision of public mental health
care, in which the plaintiffs alleged that the defendants’
conduct violated their rights under the ADA. 	The plaintiff
class in Amanda D. consisted of thousands of individuals defined
as:
All persons with serious mental illness who are
unnecessarily institutionalized in New Hampshire
Hospital or Glencliff or who are at serious risk of
unnecessary institutionalization in these facilities.
At risk of institutionalization means persons who,
within a two year period: (1) had multiple
hospitalizations; (2) used crisis or emergency room
services for psychiatric reasons; (3) had criminal
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justice involvement as a result of their mental
illness; or (4) were unable to access needed community
services.
Feb. 12, 2014 Class Action Settlement Agreement (“Settlement
Agreement”), Amanda D. (ECF No. 105, at 2).
Here, Mr. Justice has not asserted facts which demonstrate
that the Settlement Agreement entitles him to relief. 	“[A]
consent decree is not enforceable directly or in collateral
proceedings by those who are not parties to it even though they
were intended to be benefitted by it.” 	Blue Chips Stamps v.
Manor Drug Stores, 421 U.S. 723, 750 (1975).
Mr. Justice has not shown that he was a member of the
plaintiff class at the time the Settlement Agreement was
entered, and even if he could, the exclusive avenues available
to an Amanda D. plaintiff to enforce the Settlement Agreement
are set forth in that document, and do not include private suits
brought by members of the plaintiff class. 	See Settlement
Agreement, at 25-27. 	To the extent Mr. Justice claims that he
was at risk of institutionalization, and therefore should
benefit from the Settlement Agreement, that document
specifically states that:
[n]o person or entity is intended to be a third-party
beneficiary of the provisions of this Settlement
Agreement for purposes of any other civil, criminal,
or administrative action. 	No person or entity may
assert any claim or right as a beneficiary or
protected class under this Settlement Agreement in any
separate action. 	This Settlement Agreement is not
intended to expand the right of any person or
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organization to seek relief against the State or their
officials, employees, or agents.
Settlement Agreement at 24.
Accordingly, Mr. Justice may not assert a claim based on
any alleged violation of the Amanda D. Settlement Agreement.
The District Judge, therefore, should dismiss Claim 6(b),
without prejudice to Mr. Justice’s ability to seek enforcement
of the Settlement Agreement as set forth in that document to the
extent he has standing to do so.
C. 	Claim 7 – Humiliation
Mr. Justice states that on January 22, 2019, CO Logan
humiliated and belittled him, in violation of his Fourteenth
Amendment right not to be subjected to punishment during his
civil commitment. 	“Persons who have been involuntarily
committed are entitled to more considerate treatment and
conditions of confinement than criminals whose conditions of
confinement are designed to punish.” 	Youngberg v. Romeo, 457
U.S. 307, 321-22 (1982). 	De minimis impingement of a civilly
committed person’s constitutional interests, however, does not
violate the constitution. 	See id. at 320.
In the claim identified in this R&R as Claim 7, Mr. Justice
asserts that his right not to be punished was violated when CO
Logan held Mr. Justice’s head up while roughly dragging him to a
restraint room, in front of other officers. 	Mr. Justice’s
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allegations are insufficient to assert more than a de minimis
insult to his right to nonpunitive civil confinement, and
therefore fail to assert a claim under the Fourteenth Amendment.
Accordingly, the District Judge should dismiss Claim 7 for
failure to state a claim.
D. 	Medical Care
1. 	Legal Standard
In the claims identified in this R&R as Claims 8(a) and
8(b), Mr. Justice asserts that on two occasions, shortly after
he had been subjected to a use of force by DOC personnel, he was
seen by a SPU nurse who paid insufficient attention to his
medical issues. 	To state a Fourteenth Amendment claim alleging
that a plaintiff was denied adequate medical care while confined
to a facility by the State, the plaintiff must, at a minimum,
allege facts showing that the defendant, in failing to provide
the plaintiff with adequate medical care, did so purposely,
knowingly, or recklessly, as “‘liability for negligently
inflicted harm is categorically beneath the threshold of
constitutional due process.’” 	Kingsley v. Hendrickson, 576 U.S.
389, 396 (2015) (emphasis in original) (citation omitted). 	If
the plaintiff fails to demonstrate that a medical provider’s
actions were more than merely negligent, she or he cannot state
a Fourteenth Amendment claim for inadequate medical care.
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2. 	Nurse John Lombard – Claim 8(a)
In Claim 8(a), Mr. Justice asserts that on April 10, 2018,
Nurse Lombard examined him after he had been pepper-sprayed, but
failed to note in Mr. Justice’s medical records that Mr. Justice
was experiencing breathing distress. 	Mr. Justice has attached
to his complaint a copy of a DOC document titled “Post Pepper
Spray – Completed by: John Lombard on 4/10/2018.” 	Apr. 10, 2018
Medical Note of Nurse John Lombard (Doc. No. 1-21) (“Lombard
PPS”). 	That document indicates that on April 10, 2018, Nurse
Lombard evaluated Mr. Justice for distress or acute injuries
after he was pepper-sprayed in his cell on that date. 	In
completing the Lombard PPS, Nurse Lombard checked “Normal” under
the section titled “Respiratory,” and did not check the boxes in
that section which would, if checked, indicate that Mr. Justice
was coughing, short of breath, or wheezing. 	Id. at 2. 	Further,
Nurse Lombard noted in that document that Mr. Justice’s oxygen
saturation level was not below ninety percent, that he was not
in acute respiratory distress, and that he should be sent to the
emergency room if his medical condition became life-threatening.
See id.
In this claim, Mr. Justice appears to challenge Nurse
Lombard’s incorrect completion of a medical form, but does not
otherwise allege that he was denied any necessary medical care.
The Lombard PPS indicates that Mr. Justice was seen and examined
after he was pepper-sprayed, and that that examination included
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Nurse Lombard’s evaluation of Mr. Justice’s respiratory
condition and symptoms. 	While Mr. Justice asserts that he had
“breathing distress,” Nurse Lombard did not reach that
conclusion after examining him. 	If Nurse Lombard’s assessment
was incorrect, Mr. Justice’s assertions, at best, allege
negligence, and fail to assert a constitutional violation.
Accordingly, the District Judge should dismiss Claim 8(a) from
this action for failure to state a claim upon which relief might
be granted.
3. 	Nurse Mark Gagne – Claim 8(b)
In Claim 8(b), Mr. Justice asserts that on July 13, 2018,
Nurse Gagne conducted only a “cursory” examination of Mr.
Justice after he had been pepper-sprayed and had suffered
“painful injuries” to his wrists. 	Compl. (Doc. No. 1, at 6).
Mr. Justice has attached to his complaint a copy of a DOC
document entitled “Post Use-of-Force – Completed by: Mark Gagne
on 7/13/2018.” 	July 13, 2018 Medical Note of Mark Gagne (Doc.
No. 1-22) (“Gagne PUOF”). 	The Gagne PUOF indicates that on July
13, 2018, Nurse Gagne attempted to examine Mr. Justice after Mr.
Justice complained of a wrist injury, but that Mr. Justice
“would not allow [Nurse Gagne] to conduct a full assessment.”
Id. at 2. 	Nurse Gagne further noted that Mr. Justice ultimately
agreed to a partial examination, and to take ibuprofen, as
needed, for his wrists. 	See id. at 2.
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Mr. Justice’s assertion that Nurse Gagne’s examination of
him was “cursory,” even if true, fails to assert a violation of
Mr. Justice’s Fourteenth Amendment rights. 	Here, Nurse Gagne
heard Mr. Justice’s complaint, attempted to examine Mr. Justice,
and recommended treatment for his injuries. 	Nothing in Mr.
Justice’s allegations about Nurse Gagne’s conduct is sufficient
to state a constitutional claim for relief. 	Assuming, without
deciding, that Nurse Gagne’s examination of Mr. Justice was
cursory, that fact, without more, does not equate to an
assertion of unconstitutional medical care. 	The District Judge,
therefore, should dismiss Claim 8(b) from this action for
failure to state a claim upon which relief might be granted.
E. 	Mental Health Care – Claim 9
In Claim 9, Mr. Justice alleges that he has not received
adequate mental health care at the SPU, in violation of his
Fourteenth Amendment right to such care, because that facility
is neither licensed nor accredited as a mental health treatment
facility. 	Those assertions, standing alone, are insufficient to
demonstrate that the mental health care Mr. Justice received at
the SPU was actually inadequate.
Where a plaintiff confined to a facility pursuant to a
civil commitment seeks to “challeng[e] the treatment provided as
constitutionally inadequate, [the] civilly committed person[]
must show that ‘the defendant failed to exercise a reasonable
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professional judgment.’” 	Healey v. Spencer, 765 F.3d 65, 78
(1st Cir. 2014) (citation omitted); see also Youngberg, 457 U.S.
at 321. 	Mr. Justice does not assert facts demonstrating that
any defendant to this action failed to exercise reasonable
professional judgment in providing or failing to provide Mr.
Justice with mental health care. 	Accordingly, the District
Judge should dismiss Claim 9 as it fails to state a claim upon
which relief might be granted.
F. 	Missing Property – Claim 10
In the claim identified in this R&R as Claim 10, Mr.
Justice asserts that SPU staff members conducted “shakedowns” of
his cell, and that after each such shakedown, he would discover
that he was missing personal property. 	“[A]n unauthorized
intentional deprivation of property by a state employee does not
constitute a violation of the procedural requirements of the Due
Process Clause of the Fourteenth Amendment if a meaningful
postdeprivation remedy for the loss is available.” 	Hudson v.
Palmer, 468 U.S. 517, 533 (1984).
The State of New Hampshire provides a postdeprivation
remedy, pursuant to RSA 541–B:9 and 541–B:14 (1997), which is
adequate to redress Mr. Justice’s loss of property.
Accordingly, Mr. Justice’s assertions underlying Claim 10 do not
assert an actionable claim under the Fourteenth Amendment, and
the District Judge should dismiss that claim without prejudice
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to Mr. Justice’s ability to bring a claim under state law
concerning the property missing from his SPU cell.
G. 	Failure to Redress Grievances - Claim 12
In his claim identified in this R&R as Claim 12, Mr.
Justice alleges that while he was held at the SPU, he sent at
least one letter to Gov. Sununu, and sent Patient Request Slips
and grievances to various supervisory DOC and SPU officials,
including Commissioner Hanks, Director Mattis, Dr. Potenza, Ms.
Robinson, and Ms. Ferrier. 	Mr. Justice asserts that those
individuals failed to adequately investigate or resolve his
complaints.
“[T]he failure to respond to a grievance to the
satisfaction of the inmate does not, standing alone implicate a
liberty interest.” 	Spencer v. Bender, Civil Action No. 08-
11528-RGS, 2010 U.S. Dist. LEXIS 23249, at *26, 2010 WL 972207,
at *9 (D. Mass. Mar. 11, 2010). 	To allege a Fourteenth
Amendment violation based on the conduct of supervisory
officials, such conduct:
“must be based upon active unconstitutional behavior.
The acts of one’s subordinates are not enough . . . .
For the same reason that a supervisory relationship is
insufficient to establish liability for the misconduct
of a subordinate, denying a grievance or failing to
act based on information contained in a grievance is
insufficient to establish § 1983 liability.”
El v. Hazlewood, No. 19-cv-647-JL, 2020 WL 3086289, at *6
(D.N.H. May 7, 2020) (citation omitted), R&R approved sub. nom,
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Re El v. FCI Berlin, Warden, No. 19-cv-647-JL, 2020 U.S. Dist.
LEXIS 101518, at *1, 2020 WL 3086273, at *1 (D.N.H. June 9,
2020). 	To state a claim against supervisory officials based on
the conduct of their subordinates, a plaintiff must show “an
affirmative link” between the constitutional violation alleged
and “some action or inaction on the supervisor’s part.” 	Parker
v. Landry, 935 F.3d 9, 14 (1st Cir. 2019).
Mr. Justice does not allege that any of the defendants to
Claim 12 had any direct role in their subordinates’ allegedly
unconstitutional conduct. 	Further, he has not alleged facts to
show an affirmative link between the conduct of any of the
supervisor defendants and the allegedly unconstitutional acts
underlying the claims asserted in this action. 	Mr. Justice’s
allegations, therefore, do not give rise to a Fourteenth
Amendment claim against any supervisory official for their
handling of his administrative claims. 	Accordingly, the
District Judge should dismiss Claim 12 from this action for
failure to state a claim upon which relief might be granted.
H. 	OPG and Eric VanGelder – Claim 13
In the claim identified in this R&R as Claim 13, Mr.
Justice alleges that the OPG and Eric VanGelder, who was Mr.
Justice’s guardian on behalf of the OPG from July 2018 to March
2021, failed to protect Mr. Justice from violations of his civil
rights at the SPU. 	In Claim 13(b), Mr. Justice alleges that
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once he was deemed able to be safely transferred from the SPU to
a less restrictive mental health facility, but was retained at
the SPU because there were no beds available at NHH, the OPG and
Mr. VanGelder were obliged to seek an alternative placement for
Mr. Justice which was less restrictive than the SPU, but did
not.
To assert a § 1983 claim, Mr. Justice must demonstrate that
the defendants, while engaging in the conduct he alleges
violated his constitutional rights, did so while acting “under
color of state law.” 	42 U.S.C. § 1983. 	State action is a
necessary element of a § 1983 claim. 	See Runge v. Kelly, No.
05-CV-10849, 2006 WL 167497, at *2 (D. Mass. Jan. 23, 2006).
The Probate Court appointed the OPG to serve as the
guardian of Mr. Justice’s person, and Mr. VanGelder served as
Mr. Justice’s guardian on behalf of the OPG. 	See In re Soler,
No. 317-2018-GI-00414 (Probate Court). 	According to its
website, the OPG is “a private non-profit corporation” which
“provides services throughout the state of New Hampshire to
legally incapacitated adults.” 	Office of Public Guardian,
https://www.opgnh.org/ (last visited Feb. 11, 2022).
In Polk Cty. v. Dodson, 454 U.S. 312 (1981), the Supreme
Court held that court-appointed public defenders are not state
actors, notwithstanding the fact that the state pays for their
services and appoints them to represent their clients, as public
defenders act in the best interest of their client and have no
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“obligation to the mission of the state.” 	454 U.S. 312, 320,
325 (1981). 	Courts which have considered whether court-
appointed guardians are state actors for purposes of § 1983,
relying on Polk Cty., have found that a guardian is not a state
actor, but is instead analogous to a public defender in that the
guardian serves her or his ward’s best interests and not the
interests of the state.8 	See e.g., Milan v. Wertheimer, 808 F.3d
961, 964 (2d Cir. 2015) (citing Kirtley v. Rainey, 326 F.3d
1088, 1093 (9th Cir. 2003) and Meeker v. Kercher, 782 F.2d 153,
155 (10th Cir. 1986)).
Mr. Justice has not asserted facts which provide a basis to
find that the OPG and Mr. VanGelder were state actors, or
“acting under color of state law,” while serving as Mr.
Justice’s guardian. 	Mr. Justice cannot, therefore, maintain a
federal constitutional claim upon which relief might be granted
with regard to the OPG or Mr. VanGelder, and the District Judge
should dismiss Claims 13(a) and 13(b) from this action without
prejudice to Mr. Justice’s ability to seek relief in the Probate
Court or other state court as appropriate.
8 New Hampshire law states that “[a] guardian shall act with
respect to the ward in a manner which safeguards to the greatest
extent possible the civil rights of the ward, and shall restrict
the personal freedom of the ward only to the extent necessary.”
RSA 464-A:25, I(h).
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I. 	Failure to Report – Claim 14
In the claim identified as Claim 13 in this R&R, Mr.
Justice alleges, that each of the defendants named in this
lawsuit was aware that Mr. Justice was being abused at the SPU,
and failed to report those abuses to state authorities as
required by state law. 	State law requires that the abuse of an
adult be reported as follows:
Any person, including, but not limited to, physicians,
other health care professionals, social workers,
clergy, and law enforcement officials, suspecting or
believing in good faith that any adult who is or who
is suspected to be vulnerable, at the time of the
incident, has been subjected to abuse, neglect, self-
neglect, or exploitation or is, or was living in
hazardous conditions shall report or cause a report to
be made . . ..
RSA 161-F:46. 	State law further provides that “[a]ny person who
knowingly fails to make any report required by RSA 161-F:46
shall be guilty of a misdemeanor.” 	RSA 161-F:50.
To the extent a violation of RSA 161-F:46 is a criminal,
not civil, matter under state law, and Mr. Justice cannot assert
a civil claim in a § 1983 action on the basis that the
defendant’s conduct was criminal. 	See Linda R.S. v. Richard D.,
410 U.S. 614, 619 (1973) (“[A] private citizen lacks a
judicially cognizable interest in the prosecution or
nonprosecution of another.”). 	Moreover, RSA 161-F:42-:57 does
not provide a private right of action for violations of RSA 161-
F:46. 	See Ahrendt v. Granite Bank, 144 N.H. 308, 315, 740 A.2d
1058, 1064 (1999); cf. Marquay v. Eno, 139 N.H. 708, 713-16, 662
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A.2d 272, 276-78 (1995) (describing appropriate analysis for
determining whether a state law provides a private right of
action and holding there is none under the child abuse reporting
statute). 	Accordingly, the District Judge should dismiss Claim
14 as it fails to state a claim upon which relief may be
granted.
J. 	State Law - Claims 15(f) and 15(g)
In the claims identified in this R&R as Claims 15(f) and
15(g), Mr. Justice asserts state law claims which arise out of
the facts and events underlying Claims 6 and 8, against the
defendants to those federal claims. 	In this R&R, the
undersigned recommends that the District Judge dismiss Claims 6
and 8 from this case. 	The District Judge, therefore, should
decline to exercise supplemental jurisdiction over Claims 15(f)
and 15(g) under 28 U.S.C. § 1367, and dismiss Claims 15(f) and
15(g) from this action without prejudice to Mr. Justice’s
ability to assert those claims, as appropriate, in an action
brought in state court.
K. 	Official Capacity and Sovereign Immunity
In his complaint, Mr. Justice identified the DOC and the
SPU as defendants in this case. 	Mr. Justice also asserts claims
against a number of DOC employees in both their individual and
official capacities.
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A suit against a state agency, or a state official in her
or his official capacity, is treated as a suit brought against
the state. 	The Eleventh Amendment generally precludes suits
against the state for damages, absent exceptions not applicable
here. 	See Davidson v. Howe, 749 F.3d 21, 27 (1st Cir. 2014).
Mr. Justice’s claims against the DOC and the SPU, and his
official capacity claims against DOC employees are thus
precluded by the Eleventh Amendment, and the District Judge
should dismiss those claims.
L. 	Injunctive Relief
Mr. Justice seeks injunctive relief in that he asks the
Court to prohibit the defendants from continuing to confine
civilly committed individuals to either the SPU or to any
another penal institution.9 	Since filing that request, Mr.
Justice has been transferred from the SPU to NHH, rendering his
request for an injunction moot. 	Accordingly, the district judge
should deny Mr. Justice’s claims for injunctive relief as moot.
Conclusion
For the foregoing reasons, the district judge should:
1. 	Dismiss the claims identified in this R&R as Claims 5,
6(a), 7, 8, 9, 12, and 14, for failure to state a claim
upon which relief might be granted;
9 As a self-represented non-attorney plaintiff, Mr. Justice
may not litigate claims on behalf of anyone but himself. 	See 28
U.S.C. § 1654; LR 83.2(d). 	Accordingly, the court construes Mr.
Justice’s request for injunctive relief to have been brought
only on his own behalf.
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2. 	Dismiss the claims identified in this R&R as Claims
6(b), 10, 13, 15(f), and 15(g) without prejudice; and
3. 	Dismiss the following defendants identified in the
complaint, as Mr. Justice has not stated any cognizable
claim against them: Gov. Sununu, the DOC, the SPU,
Commissioner Hanks, Director Mattis, Dr. Potenza, Dr.
Martin, Ms. Robinson, Ms. Ferrier, Nurse Lombard, Nurse
Gagne, CO Scott J. Marshall,10 the OPG, and Mr. VanGelder.
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). 	Only
those issues raised by the objection(s) to this Report and
Recommendation “‘are subject to review in the district court and
those not preserved by such objection are precluded on
appeal.’” 	Id. (citations omitted).
_____________________________
Andrea K. Johnstone
United States Magistrate Judge
December 2, 2022
cc: William Soler Justice
10 The undersigned recommends that CO Marshall be dismissed
from this action as he was not mentioned anywhere in the
complaint other than the caption.
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