Kiniry v. Carroll, et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Aaron Kiniry
v. Civil No. 17-cv-38-LM
Lt. Carroll et al.1
REPORT AND RECOMMENDATION
Before the court is plaintiff Aaron Kiniry’s complaint
(Doc. No. 1), filed pursuant to 42 U.S.C. § 1983, alleging that
defendants, employees of the New Hampshire State Prison
(“NHSP”), have violated Kiniry’s constitutional rights during
his incarceration at that facility. The complaint is before
this magistrate judge for preliminary review, pursuant to 28
U.S.C. § 1915A(a) and LR 4.3(d)(1). Kiniry’s complaint also
contains a request for preliminary injunctive relief, which has
been referred to this magistrate judge for a report and
recommendation as to disposition. See Mar. 20, 2017 Order.
1Plaintiff has named the following employees of the New
Hampshire State Prison as defendants to this action: Lt.
Carroll, whose first name is unknown (“FNU”); FNU Totten; Cpl.
FNU Wright; Sgt. FNU Lydick; Corrections Officer (“CO”) FNU
Sake; CO FNU Young; Sgt. FNU Marshall; CO FNU Brownhe; CO FNU
O’Donahue; and Maj. FNU Fouts.
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Background
In his complaint, Kiniry alleges that he suffers from a
number of mental health problems, including post-traumatic
stress disorder, anger-management issues, attention deficit
hyperactivity disorder, oppositional defiant disorder, and
obsessive-compulsive disorder. Kiniry alleges that on more than
one occasion, corrections officers have “become provocative” “to
the point where [Kiniry] would cut [him]self severely enough to
actually attempt suicide.” Compl. (Doc. No. 1). Kiniry states
that on several occasions officers knew he was “cutting up” and
did nothing about it. Id. Kiniry suggests that defendants knew
he was suicidal as he has, more than once, overdosed on aspirin,
resulting in his hospitalization.
Kiniry alleges that on one occasion, NHSP Sgt. Marshall
took pictures of Kiniry’s wrist when it was “slit wide open,”
without Kiniry’s consent. Id. Kiniry states that he is “going
through channels to hold [Marshall] accountable” for taking
pictures of Kiniry’s wrist. Kiniry alleges that, as a result of
his complaints about Marshall’s conduct, one or more officers
have retaliated against him by discarding his property,
including sentimental items that cannot be replaced, and his DD-
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214 Form.2 Kiniry further asserts that the named defendants
retaliate against him “any way they can,” and that he does not
feel safe around them.
Discussion
I. Preliminary Review
A. Standard
The court reviews complaints filed by pro se incarcerated
plaintiffs to determine, among other things, whether plaintiff
has asserted any claim upon which relief might be granted. See
28 U.S.C. § 1915A(a), LR 4.3(d)(1). In determining whether a
pro se pleading states a claim, the court construes the pleading
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Disregarding any legal conclusions, the court considers whether
the factual content in the pleading 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)
2A DD-214 Form, or “Certificate of Release or Discharge from
Active Duty,” is a record issued by the Department of Defense
containing information about the service member’s duty, rank,
service, and separation, “normally needed to verify military
service for benefits, retirement, employment and membership in
veterans’ organizations.” National Archives, “DD Form 214,
Discharge Papers and Separation Documents,”
https://www.archives.gov/st-louis/military-personnel/dd-
214.html.
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(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
B. Eighth Amendment Claims
Kiniry alleges that the defendant corrections officers
violated his Eighth Amendment rights when they: 1) engaged in
conduct that provoked Kiniry to harm himself and/or to attempt
suicide; and 2) failed to respond when they knew that Kiniry was
engaged in self-harm and suicidal behavior. Kiniry’s claims
concerning this conduct allege violations of his Eighth
Amendment rights.
The Eighth Amendment’s Cruel and Unusual Punishment Clause
requires prison officials to take “reasonable measures to
guarantee the safety of the inmates.” Farmer v. Brennan, 511
U.S. 825, 832-33 (1994). To establish unconstitutional
endangerment, an inmate must assert facts to demonstrate that,
objectively, he was incarcerated “under conditions posing a
substantial risk of serious harm,” and that the involved prison
officials knew of and disregarded the excessive risk to the
inmate’s safety. Id. at 834.
In order to state a claim for the denial of adequate
medical care under the Eighth Amendment, an inmate must allege
that defendants committed “acts or omissions . . . sufficiently
harmful to evidence deliberate indifference to serious medical
needs.” Leavitt v. Corr. Med. Servs., 645 F.3d 484, 497 (1st
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Cir. 2011). At a minimum, the plaintiff must allege facts
showing that the defendant(s) possessed a purposeful, knowing,
or reckless state of mind, as “‘liability for negligently
inflicted harm is categorically beneath the threshold of
constitutional due process.’” Kingsley v. Hendrickson, 135 S.
Ct. 2466, 2472 (2015) (citation omitted) (emphasis in original).
To the extent Kiniry alleges that any officer was aware
that Kiniry was harming himself and failed to act, or provoked
Kiniry to harm himself, Kiniry has stated claims for relief
under the Eighth Amendment. Accordingly, those claims should
not be dismissed at this stage of the case.
Kiniry has not specified which particular officers named as
defendants are liable for his Eighth Amendment claims. In an
Order issued simultaneously with this Report and Recommendation,
therefore, the court grants Kiniry leave to amend his complaint
to identify the defendants to his Eighth Amendment claims, and
to state, with specificity, what each defendant did that
violated his rights, and what facts demonstrate that each
defendant acted with deliberate indifference to Kiniry’s serious
medical needs, or a known substantial risk to Kiniry’s health
and safety.
C. Retaliation Claims
To state a First Amendment retaliation claim, an inmate
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must allege: (1) that the conduct which led to the retaliation
was protected by the First Amendment; (2) that he suffered
adverse action at the hands of the prison officials; and (3)
that there was a causal link between the exercise of his First
Amendment rights and the adverse action taken. See Hannon v.
Beard, 645 F.3d 45, 48 (1st Cir. 2011). De minimis reactions to
protected speech are not actionable. See Morris v. Powell, 449
F.3d 682, 685-86 (5th Cir. 2006). An adverse act taken in
response to protected conduct is not de minimis, however, if it
would deter an individual of ordinary firmness from exercising
his or her First Amendment rights. See id.; see also Starr v.
Dube, 334 F. App’x 341, 342-43 (1st Cir. 2009).
Kiniry alleges that defendant corrections officers have
discarded his property and engaged in other unspecified acts, to
retaliate against him for complaining about Marshall
photographing Kiniry’s wrist without Kiniry’s consent. Kiniry’s
claim falters as to the “causation” element of a retaliation
claim, and as to the lack of specifics as to the timing and type
of complaints he made and as to the timing and type of adverse
consequences he suffered. Stripped of legal conclusions,
Kiniry’s complaint contains no facts demonstrating that the
adverse acts to which he was subject were motivated by an intent
to retaliate against Kiniry for complaining about Marshall.
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Kiniry’s nonspecific allegations regarding the timing and
sequence of events, without more, are insufficient to state a
retaliation claim upon which relief might be granted.
In the Order issued simultaneously with this Report and
Recommendation, the court grants Kiniry leave to amend his
complaint to assert additional facts to state one or more First
Amendment retaliation claims. To do so Kiniry must amend his
complaint to: 1) identify the officers who took adverse acts
against him, what those adverse acts were, and when they
happened; 2) identify the specific conduct undertaken by Kiniry
(for example, writing a grievance) that he believes prompted the
defendants to take adverse acts against him; and 3) identify the
facts to demonstrate that defendants intended that their adverse
acts would be consequences for Kiniry’s conduct.
II. Preliminary Injunctive Relief
Kiniry seeks unspecified preliminary injunctive relief,
alleging that he does not feel safe around the named defendants,
who have engaged in largely unspecified adverse acts against
him. “‘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.’” Glossip v. Gross,
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135 S. Ct. 2726, 2736 (2015) (citation omitted); see also Voice
of the Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d
26, 32 (1st Cir. 2011). Demonstrating a likelihood of success
on the merits is a prerequisite to obtaining preliminary
injunctive relief. See Esso Std. Oil Co. v. Monroig–Zayas, 445
F.3d 13, 18 (1st Cir. 2006) (“if the moving party cannot
demonstrate that he is likely to succeed in his quest,”
preliminary injunctive relief is properly denied without further
analysis).
To date, Kiniry has failed to assert sufficient facts to
state any claim upon which relief may be granted. Further, he
has failed to state specific facts that indicate that he is
likely to be subjected to irreparable harm in the future if the
court does not grant injunctive relief. Accordingly, Kiniry’s
request for preliminary injunctive relief should be denied,
without prejudice to Kiniry’s ability to file a motion for a
preliminary injunction should circumstances warrant in the
future.
Conclusion
For the foregoing reasons, the court recommends that
Kiniry’s request, contained within his complaint, for
preliminary injunctive relief be denied without prejudice. 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 specific written objections to the
Report and Recommendation 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); Fed. R.
Civ. P. 72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
August 17, 2017
cc: Aaron Kiniry, pro se
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