Waite v. Burke

1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
RICHARD A. WAITE
v. Civil No. 26-cv-112-LM-TSM
CAPTAIN FNU BURKE ET AL.
REPORT AND RECOMMENDATION
Self-represented Plaintiff Richard A. Waite, who is incarcerated in the Special Housing
Unit (“SHU”) at the New Hampshire State Prison for Men (“NHSP”), filed a Complaint (Doc. No.
1) and Amended Complaint (Doc. No. 4) in which he seeks injunctive and monetary relief and
alleges that, while he was housed in the Medium Custody North (“MCN”) unit, certain officers1
would repeatedly “pop” doors electronically, and repeatedly slam the door to the MCN unit almost
every night, in violation of the Eighth Amendment’s protection against cruel and unusual
punishment. Doc. No. 4 at pgs. 9–11. Plaintiff further alleges that the New Hampshire Department
of Corrections (“NHDOC”) Commissioner and Major Fouts, acting NHSP Warden, are liable in
in their official capacities as supervisors for knowing about, but being deliberately indifferent to,
the ongoing Eighth Amendment violations.2 See id. at pgs. 10, 23. Presently before the court is
Mr. Waite’s motion for a preliminary injunction to “stop the ongoing torture by Defendants and/or
1 The MCN officers are Capt. Burke, Cpl. FNU Cooper, C.O. FNU Diaz, C.O. J. Deering, Capt.
FNU Totten (in their official and individual capacities), Sgt. FNU Cordova, Cpt. FNU Williams,
and NHSP librarian Ms. Queshell (in their individual capacities). Doc. No. 4 at pgs. 3–5.
2 Mr. Waite brings this lawsuit against the NHDOC Commissioner in their official capacity and
against Major Fouts in his individual and official capacities. See Doc. Nos. 4, 28.
Case 1:26-cv-00112-LM-TSM Document 32 Filed 08/20/26 Page 1 of 3

2
their agents” of popping and slamming doors in the MCN. Doc. No. 2 at pg. 1; Doc. No. 7.
Defendants object.3 Doc. Nos. 15, 20, 31.
The claims Mr. Waite asserts in this action arose while he was housed in the MCN. Mr.
Waite notified the court that he is now housed in the SHU and has neither alleged nor provided
any evidence that he continues to experience the same issues in the SHU. Doc. No. 26. Mr.
Waite’s transfer out of the MCN, where he alleges officers slammed doors and deprived him of
sleep, rendered his request for injunctive relief moot. See Snell v. Neville, 998 F.3d 474, 485 (1st
Cir. 2021) (“An inmate generally loses the right to challenge ‘prison conditions or policies’ at a
particular facility when he transfers or leaves that prison . . . .” (citation omitted)); see also Ford
v. Bender, 768 F.3d 15, 29 (1st Cir. 2014) (“Once an inmate is removed from the environment in
which he is subjected to the challenged policy or practice, absent a claim for damages, he no longer
has a legally cognizable interest in a judicial decision on the merits of his claim.” (internal
quotation marks and citation omitted)).
In addition, Mr. Waite’s request for damages for his Eighth Amendment claim does not
warrant a preliminary injunction. “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.” Dist. 4 Lodge of the Int’l Ass’n of Machinists & Aerospace Workers Loc. Lodge
207 v. Raimondo, 40 F.4th 36, 39 (1st Cir. 2022) (citation omitted). Because Mr. Waite’s
injunctive relief is moot and he seeks damages, he has not demonstrated that he is likely to suffer
3 Defendants object to Mr. Waite’s request for a preliminary injunction on the grounds that Mr.
Waite failed to demonstrate he is likely to succeed on the merits of his claim or that he will suffer
irreparable harm absent an injunction. Doc. Nos. 15, 20, 31. However, for the reasons stated in
this Report and Recommendation, the court does reach Defendants’ arguments.
Case 1:26-cv-00112-LM-TSM Document 32 Filed 08/20/26 Page 2 of 3

3
irreparable harm. Together Emps. v. Mass Gen. Brigham Inc., 19 F.4th 1, 8 (1st Cir. 2021)
(denying plaintiffs’ injunction motion where “[m]oney damages would adequately resolve all of
the alleged harms[]”); K-Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 914 (1st Cir. 1989) (“[I]f
money damages will fully alleviate harm, then the harm cannot be said to be irreparable.”).
Accordingly, the district judge should deny Mr. Waite’s request for preliminary injunctive relief
as moot, without prejudice to his ability to seek similar relief in the future should circumstances
so warrant.
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 any objection 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).
______________________________
Talesha L. Saint-Marc
United States Magistrate Judge
August 20, 2026
cc: Richard A. Waite, pro se
Counsel of Record
Case 1:26-cv-00112-LM-TSM Document 32 Filed 08/20/26 Page 3 of 3