Doe v. NH Department of Corrections, Commissioner et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
John Doe1
v. 	Case No. 21-cv-604-LM
New Hampshire Department of
Corrections Commissioner, et al.
REPORT AND RECOMMENDATION
In this action, brought pursuant to 42 U.S.C. § 1983, the
plaintiff has filed complaint addenda (Doc. Nos. 28, 29, 32),
which are before this Court for preliminary review, pursuant to
28 U.S.C. § 1915A(a) and LR 4.3(d)(1). 	In conducting this
preliminary review, the Court considers those documents in the
context of the assertions and arguments set forth in the
plaintiff’s complaint (Doc. No. 1) and previously filed
complaint addenda (Doc. Nos. 2, 3, 7, 12, 13, 15, 16, 20).2
1 The Court has directed that the plaintiff be identified as
“John Doe” in documents available to the public in this case,
for reasons explained in its August 13, 2021 Order (Doc. No.
11).
2 The factual assertions and legal arguments the plaintiff
sets forth in Document Nos. 1, 2, 3, 7, 12, 13, 15, 16, 20, 28,
29, and 32, are construed, in the aggregate, as the complaint in
this matter for all purposes.
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Background3
Plaintiff alleges that in 2018, while he was incarcerated
at the New Hampshire State Prison (“NHSP”), two prisoners
assaulted him due to his association with another prisoner who
had cooperated with and provided information to law enforcement
concerning the criminal conduct of a third party. 	Plaintiff
asserts that during the assault he was punched repeatedly in his
head and neck, resulting in a concussion, a broken neck,
bruising, swelling, and pain. 	The plaintiff asserts that the
assault caused him permanent injuries.
The Court has previously found that Plaintiff stated an
Eighth Amendment claim against New Hampshire Department of
Corrections (“DOC”) Commissioner Helen Hanks, NHSP Capt. Jon
Masse, DOC Classifications Director Sarah Provencher, NHSP Lt.
Andrew Newcomb, NHSP Corporal Kimball (whose first name is
unknown, and (retired) NHSP Corporal Laura Desautelle, alleging
that those defendants failed to protect him from harm, resulting
in the above-described assault.4 	The recent complaint addenda,
3 In conducting this preliminary review, the Court applies
the standard of review set forth in its July 15, 2022 Report and
Recommendation (Doc. No. 26).
4 See July 15, 2022 Report and Recommendation (Doc. No. 26)
(approved by Oct. 21, 2022 Order (Doc. No. 34)); July 15, 2022
Order (Doc. No. 27); Sept. 6, 2022 Order (Doc. No. 30).
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considered in the context of the previously-filed complaint
documents, assert additional claims which the Court addresses in
this Report and Recommendation (“R&R”).
Discussion
I. 	Negligence
The plaintiff alleges that the facts underlying the Eighth
Amendment claim that has been served on the defendants in this
case, also give rise to a negligent claim against those
defendants under state law. 	As it is appropriate for the Court
to consider the claims together, the Court will exercise its
supplemental jurisdiction over the negligence claim. 	See 28
U.S.C. § 1367. 	Simultaneously with this R&R, the Court issues
an Order directing that the defendants answer the negligence
claim.
II. 	Criminal Prosecution
The plaintiff states that he has asked DOC officials, the
Concord Police Department, the Merrimack County Attorney’s
Office and the New Hampshire Attorney General’s Office to
investigate and criminally prosecute the individuals who
assaulted him in 2018, but that no investigation or prosecution
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has been initiated against his assailants. 	There is no cause of
action under § 1983 for the failure to investigate or prosecute
a crime, as an individual has no federal constitutional right to
have criminal wrongdoers brought to justice. 	See Leeke v.
Timmerman, 454 U.S. 83, 87 (1981); 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”).
Accordingly, the District Judge should dismiss plaintiff’s
claim that the defendants have violated his right to have his
assailants investigated and criminally prosecuted. 	Similarly,
to the extent the plaintiff seeks an order directing the
defendants or any state official to conduct an independent
investigation of the assault or the circumstances surrounding
it, or institute a criminal prosecution against his assailants,
the District Judge should deny that request.
III. Criminal Enterprise/RICO
Plaintiff asserts that the prison has been rendered
unnecessarily dangerous, particularly for vulnerable prisoners,
due in part to “racketeering activity” engaged in by a “criminal
enterprise” of corrections officers and officials, in violation
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of the Racketeer Influenced Corrupt Organizations Act (“RICO”).
To the extent the plaintiff seeks to assert criminal liability
under RICO, as explained above, he cannot state a claim upon
which relief could be granted for the criminal prosecution of
another person.
To the extent the plaintiff seeks to assert a civil RICO
claim, 18 U.S.C. § 1964 “provides a cause of action for ‘[a]ny
person injured in his business or property by reason of a
violation of [18 U.S.C. § 1962].’” 	Lerner v. Colman, 26 F.4th
71, 77 (1st Cir. 2022) (citing 18 U.S.C. § 1964). 	To state a
civil claim under RICO, a plaintiff must assert facts to
demonstrate that the alleged injury to his business or property
was caused by the “‘(1) conduct (2) of an enterprise (3) through
a pattern (4) of racketeering activity.’” 	Id. 	“Racketeering
activity” is defined as engaging in one or more of the criminal
offenses listed in 18 U.S.C. § 1962. 	See 18 U.S.C. § 1961(1).
The plaintiff has not alleged that he suffered any injury
to his business or property which can be attributed to a RICO
violation. 	Even if Plaintiff could demonstrate such an injury,
and assuming, without deciding, that the defendants could be
considered an “enterprise” for purposes of identifying a RICO
claim, he has still failed to state specific nonconclusory facts
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sufficient to satisfy the other elements of such a claim. 	The
plaintiff has failed to allege facts showing that any defendant,
in an attempt to further the goals of the alleged “enterprise,”
committed any crime listed in § 1962. 	Plaintiff’s allegations
thus fail to demonstrate a “pattern” of such criminal activity,
which requires a showing of the commission of at least two of
the criminal offenses listed in § 1962, and that those offenses
are “‘related’” and “‘amount to or pose a threat of continued
criminal activity.’” 	Lerner, 26 F.4th at 84.
Accordingly, the Court finds that the plaintiff has failed
to state a civil RICO claim upon which relief can be granted.
The district judge, therefore, should dismiss that claim.
IV. 	Conspiracy
Apart from his assertion of a RICO claim, the plaintiff
asserts generally that the defendants were involved in a
conspiracy to deprive him of his constitutional rights. 	Such
allegations of conspiracy must “be supported by material facts,
not merely conclusory statements.” 	Slotnick v. Garfinkle, 632
F.2d 163, 165 (1st Cir. 1980) (per curiam) (citation omitted).
To assert a conspiracy claim, the plaintiff must assert facts
showing that “two or more individuals conspire[d] for the
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purpose of depriving another of rights or privileges accorded to
them by law.” 	Alston v. Spiegel, 988 F.3d 564, 577 (1st Cir.
2021) (citing 42 U.S.C. § 1985(3)). 	Additionally, to state a
civil rights conspiracy claim, the plaintiff must “‘allege facts
indicating an agreement among the conspirators to deprive the
plaintiff of h[is] civil rights.’” 	Alston, 988 F.3d at 577-78
(quoting Parker v. Landry, 935 F.3d 9, 18 (1st Cir. 2019)).
“Vague and conclusory allegations about persons working
together, with scant specifics as to the nature of their joint
effort or the formation of their agreement, will not suffice” to
state a claim. 	Alston, 988 F.3d at 578.
The plaintiff has failed to assert specific facts to show
the existence of an agreement between the defendants to deprive
him of his constitutional civil rights. 	While he has alleged
that more than one defendant to this action engaged in conduct
to violate his rights, he has not pointed to facts demonstrating
that they entered into any agreement with one another to reach
that result. 	Accordingly, the plaintiff has failed to state a
conspiracy claim upon which relief might be granted, and the
District Judge should dismiss that claim.
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V. 	Secure Housing Unit
The plaintiff alleges that after he was assaulted, he
sought protective custody. 	Plaintiff states that he was placed
in the NHSP’s Secure Housing Unit (“SHU”), which he describes as
a “punishment unit,” Doc. No. 7-1, at 20, because he could not
be placed in the unit where protective custody inmates are
normally placed, because another prisoner with whom he was not
allowed to share a unit under prison policy, was being housed
there. 	The plaintiff states that while in SHU, he was locked in
segregation for more than twenty-two hours per day, despite the
fact that he was not in that unit as punishment, and had
generally been of good behavior since he was in DOC custody.
In general, absent facts demonstrating that a particular
prison classification or housing placement imposes an “‘atypical
and significant hardship on the inmate in relation to the
ordinary incidents of prison life,’” inmates do not have a right
or protected interest in any particular prison classification or
housing placement. 	See Wilson v. N.H. State Prison Warden, No.
19-cv-127-PB, 2019 U.S. Dist. LEXIS 100750, at *5-*6, 2019 WL
2504616, at *2 (D.N.H. May 14, 2019) (quoting Sandin v. Conner,
515 U.S. 472, 484 (1995)), R&R adopted sub nom. Wilson v. N.
Corr. Facility, Warden, No. 19-cv-127-PB, 2019 U.S. Dist. LEXIS
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101693, at *1, 2019 WL 2503980, at *1 (D.N.H. June 17, 2019).
Here, Plaintiff states that he was subjected to more restrictive
conditions of confinement in the SHU than were present in the
unit from which he was transferred. 	Without more, the
plaintiff’s allegations fail to demonstrate that his temporary
placement in the SHU amount to a hardship atypical of prison
life. 	See, e.g., Sandin, 515 U.S. at 484 (thirty days in
segregation is not an atypical and significant hardship);
Hardaway v. Meyerhoff, 734 F.3d 740, 744 (7th Cir. 2013) (six-
month confinement in segregation, without more, was not atypical
and significant hardship); Waldron v. Gaetz, No. 11-cv-242-JPG-
PMF, 2013 U.S. Dist. LEXIS 112965, at *6, 2013 WL 4051703, at *2
(S.D. Ill. Aug. 12, 2013) (six month segregation was not
atypical and significant hardship).
As the plaintiff has failed to demonstrate that he was
subject to hardship atypical of prison life while he was housed
temporarily in the SHU, he has failed to state a claim arising
from that placement. 	Accordingly, the District Judge should
dismiss Plaintiff’s claim challenging his placement in the SHU.
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VI. 	SPMI Classification
Plaintiff alleges that after he was properly classified at
the NHSP as “Seriously and Persistently Mentally Ill” (“SPMI”),
that NHSP Senior Psychiatric Social Worker Deborah Green
unilaterally removed his SPMI classification in violation of DOC
policy. 	Plaintiff alleges that when Ms. Green removed his SPMI
designation, she had never met or treated the plaintiff, and
that he had never discussed removing his SPMI classification
with her, that he had not agreed to removing his SPMI
classification, and that he was familiar with her only through a
single written exchange.
Plaintiff claims that DOC policy requires a decision to
remove a prisoner’s SPMI classification to be authorized by a
team which includes a physician/psychiatrist. 	Plaintiff alleges
that the removal of his SPMI classification in a manner
inconsistent with DOC policy violated his Fourteenth Amendment
due process rights. 	Plaintiff further claims that the removal
of his SPMI designation was partly responsible for the
defendants in this case placing him in harm’s way and thus was a
contributing cause of the 2018 assault.
To establish that his due process rights have been
violated, a plaintiff must demonstrate that he has suffered a
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deprivation of a protected interest in life, liberty, or
property. 	See Mathews v. Eldridge, 424 U.S. 319, 332 (1976).
In general, a prisoner has no freestanding liberty interest in
having prison officials follow prison policies. 	See McFaul v.
Valenzuela, 684 F.3d 564, 579 (5th Cir. 2012); 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, at *1, 2011 WL 63503, at *1 (D.R.I. Jan. 7,
2011). 	Without more, the facts alleged by the plaintiff do not
state a claim upon which relief can be granted for violations of
his Fourteenth Amendment right to due process with respect to
the violation of prison policy he alleges occurred when Ms.
Green removed his SPMI classification.
To the extent the plaintiff seeks to assert an Eighth
Amendment endangerment claim based on the removal of his SPMI
classification, his claim that the removal of his SPMI
classification and the 2018 assault are connected is entirely
conclusory. 	Plaintiff has failed to demonstrate that his mental
health status had anything to do with his assault, or that an
SPMI classification in place at the time of the assault would
have prevented the assault. 	For these reasons, the plaintiff
has failed to state a claim upon which relief might be granted
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arising from the removal of his SPMI classification, and the
District Judge should dismiss that claim.
VII. Threats by Prisoners
The plaintiff asserts that immediately after he was
assaulted in 2018, his assailants threatened him with further
violence if he told any prison officer or official about the
assault. 	Plaintiff further alleges he was similarly threatened
by unidentified prisoners after he was placed in the SHU.
Plaintiff asserts that DOC officers and officials violated his
Eighth Amendment right not to be subjected to cruel and unusual
punishment when they failed to protect him from being verbally
threatened by other prisoners.
To establish an Eighth Amendment claim for the failure to
protect a prisoner from harm, the plaintiff must show that (1)
he is “incarcerated under conditions posing a substantial risk
of serious harm” and (2) prison officials acted with “deliberate
indifference” by disregarding a known and excessive risk to his
safety. 	Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994).
“‘[P]rison officials cannot be indifferent . . . if they are
unaware of the risk’ of harm and, if they are aware, they still
may not be considered indifferent if ‘they responded reasonably
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to the risk.’” 	Norton v. Rodrigues, 955 F.3d 176, 185 (1st Cir.
2020) (citation omitted).
The facts the plaintiff asserts show that once they were
aware of the 2018 assault, DOC officers took immediate steps to
transfer him out of the unit where he had been assaulted and
into a secure unit for his safety. 	Plaintiff has failed to
demonstrate that moving him to SHU was an unreasonable or
inadequate response to the alleged threats, or that any officer
was aware that, under the circumstances then present, the
threats amounted to an actual risk of harm, yet failed to take
reasonable steps to protect him. 	Absent facts demonstrating a
known significant risk of serious harm, which the plaintiff has
not demonstrated in relation to any verbal threat made after the
assault, the plaintiff has failed to allege that any defendant
violated his Eighth Amendment right to be protected from harm
based on verbal threats by prisoners, and the District Judge
should dismiss that claim.
VIII. Failure to Answer Grievances
The plaintiff alleges that his Fourteenth Amendment due
process rights were violated when DOC officers and officials
failed to respond to his administrative requests and/or
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grievances. 	“A failure to process an inmate’s grievances,
without more, is not a violation of due process.” 	Gibbs v. N.H.
Dep’t of Corr. Comm’r Hanks, 561 F. Supp. 3d 139, 147 (D.N.H.
2021) (citing Freeman v. Dep't of Corr., 447 F. App'x 385, 387
(3d Cir. 2011) (as inmates “do not have a constitutional right
to prison grievance procedures,” prison officials’ “alleged
obstruction or misapplication of these procedures is not
independently actionable”)). 	Accordingly, the District Judge
should dismiss the plaintiff’s due process claims based on any
DOC officer’s or official’s failure to respond to the
plaintiff’s requests or grievances.
Conclusion
For the foregoing reasons, the district judge should
dismiss plaintiff’s claims alleging that the defendants or any
other DOC officer or official: failed to investigate or further
the criminal prosecution of the plaintiff’s assailants, violated
RICO, conspired to violate the plaintiff’s civil rights,
subjected the plaintiff to unconstitutional conditions of
confinement in the SHU, violated the plaintiff’s due process
rights by removing his “SPMI” classification, or failed to
answer the plaintiff’s request slips or grievances. 	Any
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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
November 22, 2022
cc: 	John Doe, pro se
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