Doe v. NH Department of Corrections, Commissioner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John Doe1
v. 	Civil No. 21-cv-604-LM
Commissioner, New Hampshire
Department of Corrections, et al.
Report and Recommendation
John Doe, who is incarcerated at the New Hampshire State
Prison (“NHSP”) and is proceeding pro se and in forma pauperis,
brings claims against the Commissioner of the New Hampshire
Department of Corrections (“DOC”) and other prison officials and
officers.2 	His claims arise from an incident in 2018 when Doe
was assaulted by two other inmates and was seriously injured.
His complaint (document no. 1), and addenda to the complaint,
which are construed as amendments, (documents nos. 7, 12, 13,
15, 16, and 20) are referred for preliminary review pursuant to
LR 4.3(d)(1) and 28 U.S.C. §§ 1915(e)(2) and 1915A.
Standard of Review
The court may dismiss sua sponte an action brought by a pro
se inmate against prison officials if, among other things, the
1 See doc. no. 11.
2 Doe was at the NHSP at the time of the assault alleged in
his complaint but was housed at the Northern Correctional
Facility in Berlin, New Hampshire, when he filed the complaint.
He was then moved back to the NHSP as of April 29, 2022.
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plaintiff fails to allege facts that state a claim for relief.
§§ 1915(e)(2)(B) & 1915A(a); see also Lomax v. Ortiz-Marquez,
140 S. Ct. 1721, 1725 (2020). 	For purposes of deciding whether
the complaint states an actionable claim, the court takes the
factual allegations, without legal conclusions, as true and
determines whether those facts are sufficient to state a
plausible cause of action. 	Hernandez-Cuevas v. Taylor, 723 F.3d
91, 102 (1st Cir. 2013); Machado v. Weare Police Dept., 494 F.
App’x 102, 105 (1st Cir. 2012). 	The court liberally construes a
pro se complaint, using a less stringent standard than would
apply to a pleading filed by a lawyer. 	Erickson v. Pardus, 551
U.S. 89, 94 (2007).
Background
Doe alleges that he has been in prison since March of 2013,
when he turned himself in for parole violations.3 	In 2018, Doe’s
son, Ricky, began serving a sentence at the NHSP, and Doe was
concerned that his son would be assigned to the Hancock
Building. 	Doe was housed in Unit C at the Hancock Building and
was aware of issues that he thought would be dangerous for his
son who had recently overdosed on opioids.
3 The record shows that he may have been incarcerated based
on a conviction in State v. Davis, No. 219-2013-cr-290 (N.H.
Super. Ct., Strafford Cty.); see Davis v. Edmark, 18-cv-1246-PB
(D.N.H. report and recommendation, Aug. 27, 2019).
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In January of 2018, Doe notified prison officials about his
concerns in a note to the Director of Classifications, Sarah
Provencher. 	Doe wrote that opioids were readily available in
the Hancock Building and that there was no control over assaults
and assaultive behavior. 	He asked that his son not be assigned
to that building. 	In response, Provencher wrote that they would
meet with Doe’s son and talk with him about housing. 	She also
suggested that Doe report his concerns to the warden. 	Doe’s son
was transferred to the Northern Correctional Facility in Berlin,
New Hampshire, (“NCF”) to attend the drug program, which was a
relief to Doe.
Another of Doe’s sons, Joshua, was incarcerated at the NHSP
in July of 2018 and was assigned to the Hancock Building. 	Doe
and his son spent time together in the prison yard each day.
After twelve days, without notice to Doe, Joshua was moved to
the protective custody unit.
On August 1, 2018, Doe was assaulted by two inmates. 	Doe
states that the inmates were gang members and provides their
names and identification numbers. 	Doe further alleges that the
attackers told him not to report the assault and threatened that
if he did report the attack his son at NCF would be killed. They
told him to tell officers that he slipped in the shower.
Because of that threat, Doe did not immediately seek help
for his injuries. 	On August 3, however, he went to the office
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for medical attention. 	The officer asked what happened, and he
said he slipped in the shower.
When Doe arrived at the prison infirmary following the
assault, Major John Fouts noticed his injuries and questioned
him about what happened. 	Fouts took Doe to the infirmary
security office and called the infirmary officer, FNU Omini, to
join them. 	Doe told them he had been attacked by gang members.
Fouts made a telephone call and said that Doe could not be
returned to his unit but had to go to protective custody.
Doe then was taken for examination. 	The nurse who did the
examination called the attending doctor. 	The doctor sent Doe to
the hospital. 	He was transported to Catholic Medical Center
where an MRI was done along with other examinations and
treatment. 	Doe alleges that he suffered a broken neck, a severe
concussion, abrasions, black eyes, and bruising. 	He also
alleges that the attack exacerbated his PTSD and other
psychiatric illnesses.
After his diagnosis at the hospital, Doe was taken back to
the prison and discharged from the health services center. 	He
was returned to the same unit in the Hancock Building. 	Doe
states that Fouts did not contact the investigations department
or write an incident report. 	Officer Masterello in Doe’s unit
said that Doe could not stay there because of his injuries and
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asked him to complete a statement. 	Doe wrote the statement and
asked for protective custody classification.
Doe’s son, Joshua, was already housed in protective
custody. 	Doe states that prison regulations preclude housing
family members in the same unit. 	For that reason, Doe alleges,
he was sent to the Special Housing Unit instead of to protective
custody. 	Doe alleges that he remained in the Special Housing
Unit for thirty days and was then moved to medium custody south.
Doe filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254, on November 6, 2018, and filed an amended
petition on April 16, 2019. 	Davis v. Edmark, 18-cv-1246-PB
(D.N.H. report and recommendation, Aug. 27, 2019, app’d Sept.
25, 2019). 	He included claims about the conditions of his
confinement at NHSP in the petition, including claims about the
assault. 	His conditions of confinement claims were dismissed on
preliminary review. 	Id.
Doe sent grievances and letters about the attack that are
dated between August of 2018 and April of 2019, asking for
action from the prison physician, Dr. Englander, director of
Medical and Forensic Services Paula Mattis, Director of NHSP
warden, NHSP director of security, the Concord Police
Department, the Merrimack County Attorney, the New Hampshire
Attorney General, the investigations unit staff at the NHSP, the
New Hampshire Parole Board, the NHSP classifications department
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staff. 	Because he did not receive responses, Doe believes the
communications may have been intercepted by staff in the Secure
Housing Unit.
In April of 2019, Christopher Kench, the director of
security, responded that the request for an investigation had
been forwarded to the Professional Standards Director. 	Kench
also wrote that the record showed that Doe was not cooperative
during the initial investigation because he claimed that he fell
in the shower. 	Kench also wrote that the inmates involved in
the attack had been disciplined and charged restitution.
In May of 2019, Doe was called to the mental health unit.
Corrections Officer Amnot was waiting for him and took him to a
room where Investigator James Azzara opened the door. 	Another
investigator, FNU Walsh, was also there. 	Azzara and Walsh told
him to stop pursuing the assault issue because it was not going
anywhere.
Doe alleges that he learned after the assault that an
inmate named David Hobson was at the NHSP before and during the
time he was assaulted and was housed in medium security south.
Doe alleges that Hobson circulated information that Doe’s son,
Joshua, had cooperated with authorities to apprehend Hobson
after he escaped from the Carroll County Jail several years
previously. 	Doe alleges that Hobson intended to have Joshua
assaulted or killed.
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Doe alleges that certain people at NHSP, including Masse
and his staff, were aware of the situation with Hobson and
Joshua. 	Joshua was warned that he was in danger and requested
protective custody. 	Doe states that he was not notified about
that situation with Hobson and the information Hobson had
circulated before the assault. 	He contends that he was
assaulted because of the issue between Hobson and Joshua. 	When
Joshua was moved to protective custody, he became the target.
With respect to the inmates who assaulted him, Doe alleges
that they are members of the Gangsters Disciples and that one of
them has the name of a prison gang tattooed on his leg. 	He
alleges that both inmates were active gang members at the time
of the assault. 	He further alleges that one of the inmates was
charged with assaults in 2008.
Doe brings a claim under the Eighth Amendment for failure
to protect him from harm that resulted in the assault by two
other inmates. 	For purposes of that claim, Doe names as
defendants the Commissioner, Captain Jon Masse, Major John
Fouts, Officer Omini, Director of Security Christopher Kench,
Investigator James Azzara, Investigator FNU Walsh, and
Corrections Officer NFU Amnot.
In a subsequent filing, Doe alleges that his rights under
the Americans with Disabilities Act (“ADA”) have been violated
in prison, specifically that the defendants failed to protect
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him, an inmate with mental illness. 	As defendants, he names the
Commissioner, Masse, Director of Mental and Forensic Services
Paula Mattis, Senior Psychiatric Social Worker Deborah Green,
Mental Health Management Inc., Kimberly Lacasse, and Sarah
Provencher.
He alleges that he was designated Severely and Persistently
Mentally Ill (“SPMI”) and that in May of 2015 Deborah Green
removed that designation. 	Doe alleges that SPMI cannot be
removed by one team member. 	He alleges that the named
defendants were negligent in placing him in harms way for the
assault.
Doe contends that because of his mental illness diagnoses
he should not have been in the Hancock Building. 	He also
contends that he should not have been in proximity to gang
members and in particular to inmates with a known history of
assaults. 	He alleges that Masse and the Classification
Department knew about one of the inmate’s prior assaults and
about Doe’s mental illness and yet housed them together.
In another filing, Doe makes general allegations about a
pattern of assaults by inmates and staff in the Hancock Building
and in SHU. 	He alleges that because Christopher Kench is the
director of training the problems with assaultive behavior by
staff begin with him. 	He contends that the DOC, its staff, and
the State Employees Association are part of a conspiracy to
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cover up the assaults that occur in the prison. 	Doe asks that a
federal investigation be conducted of the DOC for criminal
wrongdoing.
Discussion
In his complaint and addenda, Doe makes allegations
pertaining to (1) violation of the Eighth Amendment by failing
to protect him from assault, and (2) retaliation for filing
suit, and (3) violation of the ADA. 	To the extent Doe alleges
that various officers, officials, or entities have violated
criminal laws or have conspired to violate criminal laws, those
allegations do not state a cause of action. 	See Cok v.
Consentino, 876 F.2d 1, 2 (1st Cir. 1989).
A. 	Eighth Amendment
The Eighth Amendment prohibition against cruel and unusual
punishment requires prison officials “to take reasonable
measures to guarantee the safety of the inmates.” 	Farmer v.
Brennan, 511 U.S. 825, 832 (1994)). 	To succeed on an Eighth
Amendment claim for failure to protect an inmate, the plaintiff
must allege facts that show the conditions posed a substantial
risk of serious harm to the inmate and that the defendants were
deliberately indifferent to the inmate’s safety. 	Norton v.
Rodrigues, 955 F.3d 176, 185 (1st Cir. 2020). 	Deliberate
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indifference is more than negligence, and instead requires facts
that show the defendant knew of and disregarded a substantial
risk to safety. 	Farmer, 511 U.S. at 837.
Doe has alleged sufficient facts to survive preliminary
review for an Eighth Amendment claim against the Commissioner,
Captain Masse, and Director Provencher.4 	Although he names other
officers and officials, his allegations pertain to events that
occurred after the assault and, therefore, do no support an
Eighth Amendment failure to protect claim. 	The Eighth Amendment
claim is the following:
The Commissioner, Captain Masse, and Director
Provencher violated Doe’s Eighth Amendment right by failing
to protect him from assault after Hobson circulated
information about Doe’s son’s cooperation with authorities
and Doe’s son was put in protective custody.
B. 	Retaliation
The First Amendment protects prisoners from retaliation by
prison officials and officers for initiating litigation against
the prison or its staff. 	See Hannon v. Beard, 645 F.3d 45, 48
(1st Cir. 2011). 	To state a claim for retaliation in this
context, a plaintiff must allege facts that show he engaged in a
protected activity, such as filing a lawsuit, the prison or its
4 To the extent Doe intended to bring the Eighth Amendment
claim against members of Captain Masse’s staff, he may add those
names through a motion to amend and may propound discovery to
learn their names if necessary.
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officials or officers took an adverse action against him, and
that there is a causal link between the filing of the lawsuit
and the adverse action. 	Id.
Doe moved for a preliminary injunction based on his concern
that the DOC, prison officials, or officers would retaliate
against him for filing this lawsuit. 	The court denied that
request without prejudice. 	Doc. no. 24. 	For the reasons stated
in that order, Doe has not alleged a claim for retaliation, that
is, while he has expressed concern about possible retaliation,
he has alleged no facts to show that he has experienced any
adverse action related to filing this lawsuit. 	Therefore, his
claim for retaliation should be dismissed.
C. 	ADA
In the context of prison, the ADA provides that “no
qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of [the
prison], or be subjected to discrimination [in the prison].” 	42
U.S.C. § 12132; Pa. Dep’t of Corrs. v. Yeskey, 524 U.S. 206, 210
(1998). 	Under the ADA, prisons must take “reasonable steps to
overcome barriers, like stairs, which impede access to those
programs for inmates with disabilities.” 	Snell v. Neville, 998
F.3d 474, 499 (1st Cir. 2021).
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Doe appears to allege that he is disabled by mental illness
and that certain defendants were obligated under the ADA to
protect him from assault because of his disability. 	His
allegations do not implicate the ADA and do not state a cause of
action under the ADA. 	Therefore, any claim brought under the
ADA should be dismissed for failure to state a claim.
Conclusion
For the foregoing reasons, claims for retaliation,
violation of the ADA, and criminal charges should be dismissed.
Doe has alleged an Eighth Amendment claim:
The Commissioner, Captain Masse, and Director Provencher
violated Doe’s Eighth Amendment right by failing to protect
him from assault after Hobson circulated information about
Doe’s son’s cooperation with authorities and Doe’s son was
put in protective custody.
That claim will be served on DOC Commissioner Helen Hanks,
Captain Jon Masse, and Director Sarah Provencher pursuant to an
order issued on this same date. 	All other defendants named in
the complaint and addenda should be dismissed 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). 	The fourteen-day period may be extended
upon motion. 	Only those issues raised in the objection to this
Report and Recommendation are subject to review in the district
court. See Sch. Union No. 37 v. United Natl Ins. Co., 617 F.3d
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554, 564 (1st Cir. 2010). Any issues not preserved by such
objection(s) are precluded on appeal. 	See id. 	Failure to file
any 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
July 15, 2022
cc: John Doe, pro se
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