Barber v. NH State Prison, Warden et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John Barber
v. Civil No. 14-cv-98-JL
Richard Gerry, Warden, New
Hampshire State Prison, et al.
REPORT AND RECOMMENDATION
John Barber brought this action, pursuant to 42 U.S.C.
§ 1983, against New Hampshire State Prison (“NHSP”) Warden
Richard Gerry and a former NHSP corrections officer, Brian Hill,
in their individual capacities, alleging Eighth Amendment
violations for failing to protect Barber from harm, and
subjecting Barber to inhumane conditions of confinement at the
NHSP Health Services Center (“HSC”).1 Before the court for a
report and recommendation as to disposition is defendant Gerry’s
motion to dismiss (doc. no. 42) for failure to state a claim,
filed pursuant to Fed. R. Civ. P. 12(b)(6). See LR 72.1.
1Defendant Hill has been dismissed from this action by
stipulation. See Doc. No. 57 (Stipulation of Dismissal); May 6,
2015, Order (approving Stipulation of Dismissal). The court
has, in an Order issued this date, authorized service of the
complaint (doc. no. 1) and complaint addendum (doc. no. 63) upon
another NHSP corrections officer, David Biondi, in regard to the
failure to protect claim.
Case 1:14-cv-00098-JL Document 69 Filed 07/16/15 Page 1 of 9

2
Barber objects. See Doc. No. 46.
Background
On March 22, 2013, Barber was a maximum security inmate
housed in NHSP’s Secure Housing Unit (“SHU”). Barber alleges
that on March 22, 2013, former corrections officer Brian Hill
permitted another inmate to assault him. Following the assault,
Barber notified a nurse at the HSC of the circumstances of the
assault, and the matter was reported to NHSP officials. Based
on the nature of the allegations, and the involvement of a
corrections officer, Gerry ordered that Barber be housed in the
HSC and placed in isolation for Barber’s safety. Barber
remained at the HSC until March 28, 2013, when he was
transferred to another facility.
During Barber’s six-day confinement in the HSC, he was
allowed out of his isolation cell only twice, to shower, once
for three minutes and once for ten minutes. Barber requested,
but was denied, additional out-of-cell time, additional showers,
clean clothes, toothpaste, a toothbrush, cleaning supplies to
clean his cell, and a phone call to his family. In response to
Barber’s requests for these things, he was told that “medical
isn’t made for [maximum security] inmates” or “I’ll see what I
Case 1:14-cv-00098-JL Document 69 Filed 07/16/15 Page 2 of 9

3
can do” or “no.” On March 28, 2013, Barber was transferred to
the Rockingham County House of Corrections until the NHSP
investigation into the March 22, 2013, assault was completed.
Discussion
I. Motion to Dismiss Standard
In ruling on a motion to dismiss under Fed. R. Civ. P.
12(b)(6), the court must consider whether the factual content in
the complaint and inferences reasonably drawn therefrom, taken
as true, state a claim to relief. Hernandez-Cuevas v. Taylor,
723 F.3d 91, 102-03 (1st Cir. 2013) (citing Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). In doing so, the court disregards
any legal conclusions in the complaint. Hernandez-Cuevas, 723
F.3d at 102-03. The court is generally limited to considering
“‘facts and documents that are part of or incorporated into the
complaint,’” as well as “‘documents incorporated by reference in
[the complaint], matters of public record, and other matters
susceptible to judicial notice.’” Giragosian v. Ryan, 547 F.3d
59, 65 (1st Cir. 2008) (citations omitted). As Barber is
proceeding pro se in this action, the court must construe his
pleadings liberally. See Erickson v. Pardus, 551 U.S. 89, 94
(2007).
Case 1:14-cv-00098-JL Document 69 Filed 07/16/15 Page 3 of 9

4
II. Conditions of Confinement
“The Eighth Amendment prohibits prison officials from
depriving inmates of ‘the minimal civilized measure of life’s
necessities.’” Brown v. Plata, 131 S. Ct. 1910, 1959 (2011)
(quoting Rhodes v. Chapman, 452 U.S. 337, 347). Barber claims
that Gerry’s order that he be housed in HSC in an isolation cell
for six days, and the denial of out-of-cell time, showers, clean
clothes, toothpaste, a toothbrush, cleaning supplies, and a
phone call to his family, violated the Eighth Amendment.
An Eighth Amendment inhumane conditions of confinement
claim has an objective and subjective component. Wilson v.
Seiter, 501 U.S. 294, 298 (1991). To satisfy the objective
component of an inhumane prison conditions claim, the
deprivations alleged must be “extreme.” Hudson v. McMillian,
503 U.S. 1, 9 (1992). The duration of allegedly
unconstitutional conditions of confinement “may affect the
Eighth Amendment calculus.” Suprenant v. Rivas, 424 F.3d 5, 20
(1st Cir. 2005) (citing Hutto v. Finney, 437 U.S. 678, 687
(1978) (unpleasant conditions of confinement “might be tolerable
for a few days and intolerably cruel for weeks and months.”).
Case 1:14-cv-00098-JL Document 69 Filed 07/16/15 Page 4 of 9

5
The subjective component of an Eighth Amendment claim
requires the plaintiff to demonstrate that the prison officials
acted with deliberate indifference to the plaintiff’s health or
safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994);
Wilson, 501 U.S. at 298-99. “[T]he official involved must have
had a ‘sufficiently culpable state of mind,’ described as
‘deliberate indifference’ to inmate health or safety.” Giroux
v. Somerset Cty., 178 F.3d 28, 32 (1st Cir. 1999) (citations
omitted). “‘[A] prison official cannot be found liable under
the Eighth Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an
excessive risk to inmate health or safety.’” Id. (quoting
Farmer, 511 U.S. at 834).
A. Objective Component
Barber was deprived of out-of-cell time, showers, a change
of clothing, a toothbrush and toothpaste, cell cleaning
supplies, and a telephone call to his family for six days while
housed in the HSC, prior to his transfer out of the NHSP.
Barber does not allege that he suffered any harm, or that he was
subject to any risk of serious harm as a result of these
deprivations. The six-day deprivations alleged are not, as a
Case 1:14-cv-00098-JL Document 69 Filed 07/16/15 Page 5 of 9

6
matter of law, of sufficient seriousness or duration to satisfy
the objective component of the Eighth Amendment test. See
Fantone v. Herbick, 528 F. App’x 123, 127 (3d Cir. 2013) (denial
of telephone privileges, outdoor exercise, and a razor, for
forty-six days, does not amount to cruel and unusual
punishment); Richmond v. Settles, 450 F. App’x 448, 455 (6th
Cir. 2011) (six days without a shower and personal hygiene items
not actionable (citation omitted)); Brown v. Lamanna, 304 F.
App’x 206, 207 (4th Cir. 2008) (“With regard to lack of
recreation, an inmate must show specific harm resulting from the
deprivation and a complete denial for an extended period of
time.”); Pearson v. Ramos, 237 F.3d 881, 884 (7th Cir. 2001)
(denial of yard privileges for up to ninety days at a time is
not cruel and unusual punishment); Hightower v. Vose, 95 F.3d
1146, 1996 WL 516123, at *2, 1996 U.S. App. LEXIS 24041, at *6
(1st Cir. 1996) (unpublished table decision) (denial of shower
for eight days is a de minimis imposition that does not
implicate constitutional concerns); Knight v. Armontrout, 878
F.2d 1093, 1095-96 (8th Cir. 1989) (thirteen days without
recreation does not violate the Eighth Amendment); Oliver v.
Dep’t of Corrs., No. 3:13CV-P820-H, 2014 U.S. Dist. LEXIS 10627,
Case 1:14-cv-00098-JL Document 69 Filed 07/16/15 Page 6 of 9

7
at *11 (W.D. Ky. Jan. 29, 2014) (denial of change of clothing
for nine days does not constitute Eighth Amendment violation);
Cole v. Thyng, No. 11-cv-018-JL, 2011 U.S. Dist. LEXIS 139159,
at *25-26 (D.N.H. Nov. 8, 2011) (short-term deprivation of out-
of-cell time does not violate the Eighth Amendment), report and
recommendation adopted, 2011 U.S. Dist. LEXIS 139099, at *1
(D.N.H. Dec. 2, 2011); Johnson v. Poulin, No. 07-cv-161-PB, 2008
U.S. Dist. LEXIS 9254, at *23-24 (D.N.H. Apr. 24, 2008)
(deprivation of personal hygiene items for ten days did not
constitute cruel and unusual punishment), aff’d on other
grounds, Johnson v. Thyng, 369 F. App’x 144, 149 (1st Cir.
2010); Dolberry v. Levine, 567 F. Supp. 2d 413, 417 (W.D.N.Y.
2008) (denial of showers and cleaning supplies for several weeks
did not give rise to a constitutional violation).
Barber has failed to state sufficient facts to satisfy the
objective component of an Eighth Amendment claim in regard to
the conditions of his confinement in the HSC. The conditions of
confinement claim is subject to dismissal on that basis.
B. Subjective Component
Even if Barber could allege that the conditions in the HSC
presented a significant risk to his health and safety, Barber
Case 1:14-cv-00098-JL Document 69 Filed 07/16/15 Page 7 of 9

8
has failed to state facts demonstrating that Gerry was aware of
any of the specific deprivations of which Barber complains, and
failed to take steps to address those deprivations. To the
contrary, Gerry responded to the risk to Barber’s safety in SHU
by placing him to the HSC, where he would be safe. While Barber
has alleged that Gerry knew that the HSC was not equipped to
house maximum security inmates, an allegation regarding that
knowledge, per se, does not show or give rise to a reasonable
inference that Gerry knew that conditions in the HSC would
present a substantial risk of serious harm to Barber for the
duration of his temporary stay. Accordingly, Barber’s pleadings
do not state an Eighth Amendment claim with respect to the
conditions of Barber’s confinement in the HSC, and for that
reason, Gerry’s motion to dismiss (doc. no. 42) should be
granted, to the extent it seeks dismissal of that conditions of
confinement claim.
III. Failure to Protect
A separate Report and Recommendation (“R&R”) issued on this
date recommends dismissal of Barber’s failure to protect claim,
pursuant to 28 U.S.C. § 1915A(a), to the extent it is asserted
against defendant Gerry. The same reasons asserted in that R&R
Case 1:14-cv-00098-JL Document 69 Filed 07/16/15 Page 8 of 9

9
for dismissing the failure to protect claim as to Gerry are
incorporated herein by reference. The district judge, for those
reasons, should grant Gerry’s motion to dismiss the failure to
protect claim asserted against him.
Conclusion
For the foregoing reasons, the district judge should grant
defendant Gerry’s motion to dismiss (doc. no. 42), and defendant
Gerry should be dropped from this action. 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).
Failure to file objections within the specified time waives the
right to appeal the district court’s order. See United States
v. De Jesús-Viera, 655 F.3d 52, 57 (1st Cir. 2011); Sch. Union
No. 37 v. United Nat’l Ins. Co., 617 F.3d 554, 564 (1st Cir.
2010).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
July 16, 2015
cc: John Barber, pro se
Brian Hill, pro se
Francis Charles Fredericks, Esq.
Case 1:14-cv-00098-JL Document 69 Filed 07/16/15 Page 9 of 9