Barber v. NH State Prison, Warden et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John Barber
v. Case No. 14-cv-98-JL
David Biondi
REPORT AND RECOMMENDATION
Through the mechanism of 42 U.S.C. § 1983, John Barber, an
inmate in the New Hampshire State Prison (“NHSP” or “prison”),
has sued corrections officer (“CO”) David Biondi. Barber claims
that CO Biondi violated his rights under the Eighth Amendment to
the United States Constitution by opening the door to his cell,
which facilitated an assault on Barber by another inmate.
Before the court for a report and recommendation is defendant’s
motion to dismiss (doc. no. 73). Plaintiff objects (doc. no.
74). For the reasons that follow, it is recommended that
defendant’s motion to dismiss be granted.
The Legal Standard
Ruling on a motion to dismiss for “failure to state a claim
upon which relief can be granted,” Fed. R. Civ. P. 12(b)(6),
requires the court to conduct a limited inquiry, focusing on
“‘not whether [plaintiff] will ultimately prevail’ . . . but
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whether his complaint was sufficient to cross the federal
court’s threshold.” Skinner v. Switzer, 562 U.S. 521, 529-30
(2011) (internal citation omitted) 416 U.S. 232, 236 (1974).
When considering such a motion, a trial court must “accept as
true all well-pleaded facts in the complaint and draw all
reasonable inferences in the pleader’s favor.” Guerra-Delgado
v. Popular, Inc., 774 F.3d 776, 780 (1st Cir. 2014) (citing
Tasker v. DHL Ret. Sav. Plan, 621 F.3d 34, 38 (1st Cir. 2010)).
To survive a Rule 12(b)(6) motion, a “complaint must contain
enough factual material to raise a right to relief above the
speculative level . . . and state a facially plausible legal
claim.” Guerra-Delgado, 774 F.3d at 780 (quoting Ocasio-
Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011));
see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Background
Unless otherwise indicated, the facts recited in this
section are drawn from Barber’s complaint, which consists of
document nos. 1 and 63. See Order, Doc. No. 66 at 2.
At all times relevant to this action, Barber was housed in
the NHSP’s Secure Housing Unit (“SHU”) and was classified as “a
max inmate (C5),” Compl., Doc. No. 1, ¶ 8. On March 22, 2013,
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when CO Biondi was working in the control room, CO Brian Hill
asked CO Biondi, over his radio, to remotely open the door to
Barber’s cell. CO Biondi did so. CO Hill allowed inmate Scott
Collier to enter Barber’s cell and then walked away. While
alone in the cell with Barber, Collier struck Barber multiple
times with closed fists. Thereafter, CO Hill returned to
Barber’s cell and told Collier to stop hitting Barber. Collier
did so. CO Hill and Collier exited Barber’s cell, and CO Hill
asked CO Biondi, again by radio, to close the door to Barber’s
cell. CO Biondi did so. CO Hill was originally named as a
defendant in this case, but has been dismissed by stipulation.
See Doc. No. 57.
On April 29, 2013, CO Biondi made the following statements
to NHSP investigator Marc Marchand concerning the March 22
incident:
I was in the Control Room. I take responsibility for
being in the Control [Room] and what happened um, as
far as me opening up the cell door.
Mot. to Amend, Doc. No. 63 at 2. In his objection to
defendant’s motion to dismiss, plaintiff says that Collier told
Marchand: “you know, Biondi knew what time it was, knew that I .
. . you know had the issue and needed my radio back.” Pl.’s
Obj, Doc. No. 74, ¶ 3.
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This action followed. The only claim remaining in the case
is Barber’s claim that CO Biondi violated his Eighth Amendment
right to be free from cruel and unusual punishment by opening
the door to his cell, which created the opportunity for Collier
to assault him.
Discussion
CO Biondi moves to dismiss, arguing that Barber has failed
to allege facts sufficient to support a claim that CO Biondi
acted with deliberate indifference to a substantial risk of
serious harm to Barber. In his objection, plaintiff relies upon
several statements drawn from Marchand’s report that were
attributed to Collier. This court agrees with defendant that
plaintiff has failed to state a claim upon which relief can be
granted.
“Under the Eighth Amendment, ‘prison officials have a duty
to protect prisoners from violence at the hands of other
prisoners.’” Lakin v. Barnhart, 758 F.3d 66, 70 (1st Cir. 2014)
(quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994); citing
Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st
Cir. 1988)). That said,
a prison official violates an inmate’s Eighth
Amendment right against cruel and unusual punishment
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“based on a failure to prevent harm” to the inmate
only under two circumstances: “the inmate must show
that he is incarcerated under conditions posing a
substantial risk of serious harm,” and the prison
official must have acted, or failed to act, with
“deliberate indifference to inmate health or safety.”
Lakin, 758 F.3d at 70 (quoting Farmer, 511 U.S. at 834).
Moreover,
[t]he “deliberate” part of “deliberate indifference”
[has been] defined by the Supreme Court as requiring
that a prison official subjectively “must both be
aware of facts from which the inference could be drawn
that substantial risk of serious harm exists, and he
must also draw the inference.”
Burrell v. Hampshire Cty., 307 F.3d 1, 8 (1st Cir. 2002)
(quoting Farmer, 511 U.S. at 837). And, in addition, “[p]rison
officials cannot be indifferent . . . if they are unaware of the
risk.” Burrell, 307 F.3d at 8.
In Giroux v. Somerset Cty., 178 F.3d 28 (1st Cir. 1999),
the court of appeals reversed a grant of summary judgment to the
defendant in a § 1983 action in which a prison inmate, under
protective custody, asserted an Eighth Amendment violation based
upon his having been left alone in a holding cell with another
inmate who assaulted him. The court of appeals subsequently
characterized Giroux this way:
In Giroux, jail officials inexplicably introduced a
person posing a known danger, another inmate who had
repeatedly threatened Giroux, into the holding cell
where Giroux was being kept. They did so after taking
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actions which they appear to have known would tar
Giroux as an informant and thereby increase the risk
to him. Giroux, 178 F.3d at 29–30.
Burrell, 307 F.3d at 9; see also Mosher v. Nelson, 589 F.3d 488,
494 (1st Cir. 2009) (describing Giroux the same way).
Here, while plaintiff alleges that he was housed in SHU, he
does not allege that he was in protective custody. Nor does he
allege that CO Biondi had any reason to believe that CO Hill
would let Collier into his cell or that Collier posed a known
risk to Barber.1 Nothing in the complaint suggests that CO
Biondi was aware of any threat Collier posed to Barber.
Plaintiff merely alleges that if “Biondi didn’t open the cell
door the assault would have never taken place.” Mot. to Amend,
Doc. No. 63 at 2. That may be true, but more than “but for”
causation is necessary to state a claim for deliberate
indifference. See Lakin, 758 F.3d at 70; Burrell, 307 F.3d at
8. Because plaintiff has not adequately alleged sufficient
knowledge on CO Biondi’s part to qualify his state of mind as
deliberate indifference to plaintiff’s safety, plaintiff has
1 Barber does allege that the March 22 “incident was not the
first incident where Defendant Brian Hill witnessed inmate
Collier assault the plaintiff John Barber,” Compl., Doc. No. 1,
¶ 14, but he does not allege that CO Biondi was aware of any
previous assaults by Collier.
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failed to state an Eighth Amendment claim upon which relief can
be granted against CO Biondi.
Conclusion
For the reasons detailed above, it is recommended that the
district judge grant CO Biondi’s motion to dismiss (doc. no.
73). Moreover, as the claim against CO Biondi is the only claim
in this case that has not previously been dismissed, it is
further recommended that this case be closed.
Any objection to this Report and Recommendation must be
filed within 14 days of receipt of this notice. See Fed. R.
Civ. P. 72(b)(2). Failure to file an objection within the
specified time waives the right to appeal the district court’s
order. See Garayalde-Rijos v. Mun. of Carolina, 747 F.3d 15,
21-22 (1st Cir. 2014).
_________________________
Andrea K. Johnstone
United States Magistrate Judge
December 1, 2015
cc: John Barber, pro se
Francis Charles Fredericks, Esq.
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