Valerio v. NH Department of Corrections, Commissioner et al

`UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Dwayne M. Valerio
v. Civil No. 15-cv-248-LM
William Wrenn et al.1
REPORT AND RECOMMENDATION
Before the court is the operative complaint in this matter,
consisting of the first amended complaint (doc. no. 12), the
1In the first amended complaint (doc. no. 12), plaintiff
names the following defendants: New Hampshire Department of
Corrections (“DOC”) Commissioner William Wrenn; DOC Director of
Security and Training Christopher Kench; DOC Director of
Professional Standards/Special Investigator Colon Forbes; former
New Hampshire State Prison (“NHSP”) Warden Richard Gerry; DOC
Prison Rape Elimination Act Compliance Manager Jean Carrol;
NHSP Chief of Security Maj. Jon Fouts; NHSP Reception and
Diagnostic (“R&D”) Unit Manager Karen Anderson; R&D Corrections
Officer (“C.O.”) Bonnie Johnson; C.O. John Doe #1, an R&D
officer; C.O. John Doe #2, the R&D first shift Officer-in-Charge
on July 6, 2012; C.O. John Doe #3, the male R&D officer who
conducted plaintiff’s intake on July 6, 2012; C.O. John Doe #4,
the officer who strip-searched Valerio on October 16, 2013; C.O.
John Doe #5, the officer who monitored Valerio’s strip search on
October 16, 2013; C.O. John Does #6-#13, officers searching or
monitoring searches of other inmates on October 16, 2013; C.O.
John/Jane Doe #14, the Central Control officer monitoring video
surveillance of the R&D Unit on July 6, 2012; C.O. John/Jane Doe
#15, the Central Control officer monitoring video surveillance
at the NHSP gym on October 16, 2013; and New Hampshire Attorney
General Joseph Foster. All defendants are sued in their
individual capacities. Wrenn and Gerry are also sued in their
official capacities.
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first amended complaint’s exhibits, and the exhibits attached to
the original complaint, which are located in the docket of this
case as pages 17-50 of Document No. 1. The operative complaint,
so construed, is before this magistrate judge for preliminary
review, pursuant to 28 U.S.C. § 1915A(a) and LR 4.3(d)(1), and
for a report and recommendation as to the disposition of
plaintiff’s request for preliminary injunctive relief.2 See
Order (Mar. 28, 2016).
Standard
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 facially plausible 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)).
2In an Order issued simultaneously with this Report and
Recommendation, the undersigned magistrate judge has vacated the
November 16, 2015, Report and Recommendation (doc. no. 9) and
Order (doc. no. 10), that related to the original complaint
(doc. no. 1), which are now moot.
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Background
I. July 6, 2012 - Intake
On the afternoon of July 6, 2012, plaintiff, Dwayne
Valerio, arrived at the New Hampshire State Prison (“NHSP”)
Reception and Diagnostic Unit (“R&D”) to begin serving a lengthy
prison sentence. Valerio arrived at the prison with another
inmate. Upon arrival at R&D intake, a male Corrections Officer
(“C.O.”) John Doe #3, put Valerio and the other inmate into a
“wet cell” equipped with showerheads and a drain, so that they
could take a delousing shower. Prior to the shower, C.O. John
Doe #3 directed each inmate to disrobe and submit to a strip
search.3 After the inmates were strip-searched and showered,
C.O. John Doe #3 provided them with prison uniforms and directed
them to get dressed.
During the strip search and shower, the inmates were
visible to one another. In addition, they were visible to one
another and to C.O. John Doe #3 during the strip search.
Valerio and the other inmate were monitored by surveillance and
recording video camera during both the strip search and shower.
3Pursuant to New Hampshire Department of Corrections Policy
and Procedure Directive 5.77(IV)(3)(a), “[a] strip search
involves removing all clothing from a person and searching the
clothing carefully, after which a detailed visual inspection of
the individual’s naked body, including inside of the mouth the
groin area and the buttocks shall be conducted.”
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Valerio states that a female R&D officer, C.O. Bonnie Johnson,
monitored the video surveillance feed from her desk. Valerio
also asserts that C.O. John/Jane Doe #14, an officer in the
NHSP’s “Central Control,” monitored the video surveillance feed
from his or her desk.
II. October 16, 2013 - Tailgate Revival
On October 16, 2013, a Christian religious event called the
“Tailgate Revival” was held in the NHSP gym. The event was
attended by 150 inmates and fifty civilian volunteers. After
the event, the civilian volunteers were escorted out of the gym.
The officers present, identified by Valerio as C.O. John Does
#4-13, divided into three groups of three officers, while one
officer stood at an exit door. Each inmate in attendance was
strip-searched by one of the officers. Each strip search was
monitored by another officer. Valerio asserts that all of the
inmates were strip-searched in full view of the other inmates in
the gym at that time. Valerio requested that a privacy screen
be used during his search, but his request was denied. C.O.
John Doe #4 conducted the strip search of Valerio, and C.O. John
Doe #5 monitored the search. Present in the gym during
Valerio’s strip search were forty to fifty inmates and C.O. John
Does #6-#13.
Valerio also states that his October 16, 2013, strip search
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was monitored by C.O. John/Jane Doe #15, an officer in “Central
Control,” monitored the video surveillance feed from his or her
desk. Valerio states that being fully nude in front of other
men violates his religious beliefs.
Claims
In the first amended complaint, Valerio asserts the
following claims for relief:
1. On July 6, 2012, defendants violated Valerio’s federal
constitutional rights, in connection with Valerio’s intake
at R&D, as follows:
A. Valerio’s Fourth Amendment right not to be
subject to unreasonable searches was violated when, in
the absence of exigent circumstances:
i. R&D C.O. John Doe #3 forced Valerio to
undress, be strip-searched, and shower, in front
of (a) another inmate; (b) a video surveillance
and recording camera;
ii. Female R&D C.O. Bonnie Johnson monitored
Valerio’s strip search and shower by video;
iii. C.O. John/Jane Doe #14 viewed Valerio’s
strip search and shower on a video monitor; and
iv. R&D Unit Manager Karen Anderson, R&D first
shift Officer-in-Charge C.O. John Doe #2, DOC
Commissioner William Wrenn, former NHSP Warden
Richard Gerry, DOC Director of Security and
Training Christopher Kench, and NHSP Chief of
Security Maj. Jon Fouts, condoned and approved
video surveillance and recording of strip
searches and showers in R&D’s “wet tank,” in
their capacity as supervising officers.
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B. Valerio’s Eighth Amendment right not to be
subject to cruel and unusual punishment was violated
when, acting with deliberate indifference to a risk of
serious harm to Valerio:
i. C.O. John Doe #3 ordered Valerio and another
inmate to undress and shower in full view of one
another and a video surveillance and recording
camera; left them alone for five to ten minutes,
creating a risk of sexual assault and/or abuse of
Valerio by (a) another inmate, (b) staff-on-
offender voyeurism, and/or (c) video voyeurism.
ii. C.O. Johnson sexually assaulted and/or
abused Valerio by engaging in staff-on-offender
voyeurism when she monitored the video
surveillance of Valerio undressing, being strip-
searched, and showering;
iii. Defendants Anderson, C.O. John Does #1 and
#2, Wrenn, Kench, Gerry, and Fouts failed to
protect Valerio from harm when they, in their
capacity as supervising officers, tacitly allowed
R&D staff to utilize strip search and showering
procedures that created a significant risk of
sexual assault and/or abuse of Valerio by (a)
other inmates, (b) staff-on-offender voyeurism,
and/or (c) video voyeurism.
C. Valerio’s Eighth Amendment right not to be
subject to cruel and unusual punishment was violated
when the C.O. John Doe #3 ordered Valerio to submit to
a strip search in a manner that was harassing and
intended to cause him humiliation and psychological
pain.
D. Valerio’s Fourteenth Amendment equal protection
rights were violated when defendants C.O. John Does #2
and #3 strip searched Valerio in full view of another
inmate.
2. On October 16, 2013, defendants violated Valerio’s
federal constitutional rights, in connection with the
“Tailgate Revival” event Valerio attended at the NHSP that
day, as follows:
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A. Valerio’s Fourth Amendment right not to be
subject to unreasonable searches was violated when,
absent any exigent circumstances:
i. C.O. John Doe #4 denied Valerio’s request
for a privacy screen; forced Valerio to undress;
and conducted a strip search of Valerio in full
view of (a) forty to fifty other inmates, and (b)
a monitored video surveillance and recording
camera.
ii. C.O. John Doe #5 monitored Valerio’s strip
search;
iii. C.O. John Does #6-13 were present at the
time of Valerio’s strip search and failed to
prevent the search;
iv. C.O. John/Jane Doe #15 viewed Valerio’s
strip search on a video monitor;
v. Defendants Wrenn, Kench, Gerry, and Fouts
failed to protect Valerio from harm when they, in
their capacity as supervising officers, tacitly
allowed a group strip search to occur that
created a significant risk of sexual assault
and/or abuse of Valerio by (a) other inmates, (b)
staff-on-offender voyeurism, and/or (c) video
voyeurism.
B. Valerio’s Eighth Amendment right not to be
subject to cruel and unusual punishment was violated
when, acting with deliberate indifference to a risk of
serious harm to Valerio:
i. C.O. John Does #4 and #5 ordered Valerio to
undress and conducted a strip search in full view
of forty to fifty other inmates and a video
surveillance and recording cameras, creating a
risk of sexual assault and/or abuse of Valerio by
(a) another inmate, (b) staff-on-offender
voyeurism, and/or (c) video voyeurism.
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ii. C.O. John Does #6-#13 failed to protect
Valerio from a risk of sexual assault, abuse,
and/or harassment by (a) another inmate, (b)
staff-on-offender voyeurism, and/or (c) video
voyeurism.
iii. Defendants Wrenn, Kench, Gerry, and Fouts,
acting in their supervisory capacities, failed to
protect Valerio from a risk of sexual assault,
abuse, and/or harassment by (a) other inmates;
(b) staff-on-offender voyeurism; and/or (c) video
voyeurism.
C. Valerio’s Eighth Amendment right not to be
subject to cruel and unusual punishment was violated
when the C.O. John Does #4 and #5 ordered Valerio to
submit to a strip search in a manner that was
harassing and intended to cause him humiliation and
psychological pain.
D. Valerio’s First Amendment right to freely
exercise his religion was violated when, absent any
exigent circumstances, C.O. John Does #4 and #5,
denied Valerio’s conscientious objections and request
for a privacy screen, and ordered Valerio to undress
and undergo a strip search in full view of forty to
fifty other inmates and video surveillance and
recording cameras, causing Valerio’s nude body to be
exposed to other men and video surveillance and
recording equipment, in violation of his religious
beliefs.
E. Valerio’s Fourteenth Amendment right to equal
protection was violated when defendant C.O. John Does
#4 and #5 conducted a strip search of Valerio in full
view of other inmates.
3. Valerio’s Fourteenth Amendment right to due process
was violated when defendants: DOC Prison Rape Elimination
Act Compliance (“PREA”) Manager Jean Carrol, DOC Special
Investigator Colon Forbes, the DOC Director of Professional
Standards, Fouts, Kench, Gerry, Wrenn, and New Hampshire
Attorney General Joseph Foster failed to act within the
scope of their authority on July 6, 2012, and October
16,2013, as supervisory officers, to prevent Valerio’s
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First, Fourth, Eighth, and Fourteenth Amendment rights from
being violated.
Discussion
I. Fourth Amendment (Claims 1(A)(i)-(iii) and 2(A)(i)-(iv))
A. C.O. John Does #3-#5 and C.O. Johnson
Valerio has stated sufficient facts to assert Fourth
Amendment claims alleging that his right not to be subjected to
unreasonable searches was violated on July 6, 2012, by C.O. John
Doe #3 and C.O. Johnson, and on October 16, 2013, by C.O. John
Does #4 and #5. Accordingly, in an Order issued simultaneously
with this Report and Recommendation, the court directs service
of the first amended complaint, specifically, Claims
1(A)(i)&(ii) and 2(A)(i)&(ii) as identified above, upon C.O.
John Does #3, #4, and #5, and C.O. Johnson.
B. C.O. Does #6-#15
Valerio also asserts unreasonable search claims against
C.O. Does #1 and #6-#15. However, Valerio has not asserted that
C.O. Doe #1 or C.O. Does #6-#15 either conducted or monitored a
strip search of Valerio on either July 6, 2012, or October 16,
2013. As to C.O. John/Jane Does #14 and #15, Valerio has
alleged only that they were assigned to monitor the challenged
strip searches in Central Control. Nothing in those facts
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supports a contention that those officers bear responsibility
for the alleged unreasonable nature of the searches of Valerio
that occurred on those dates. Accordingly, the district judge
should dismiss the Fourth Amendment claims asserted against C.O.
Does #1 and #6-#15 (Claims 1(A)(iii) and 2(A)(iii)&(iv)) and
should drop those defendants from this action.
C. Supervisory Defendants (Claims 1(A)(iv) and 2(A)(v))
In this action, Valerio has sued a number of defendants in
their supervisory capacities, including: Wrenn; Kench; Forbes;
Gerry; Fouts; Anderson; C.O. John Doe #2; and Attorney General
Foster. Supervisory liability under 42 U.S.C. § 1983 lies only
where “an affirmative link between the behavior of a subordinate
and the action or inaction of his supervisor exists such that
the supervisor's conduct led inexorably to the constitutional
violation.” Maldonado v. Fontanes, 568 F.3d 263, 275 (1st Cir.
2009) (internal quotation marks and citation omitted). Here,
Valerio has not stated any facts to support a claim that any
supervisor’s conduct, act, or omission “led inexorably” to the
conduct underlying claim asserted in the complaint.
Accordingly, the district judge should dismiss the claims
asserted against the supervisory defendants and drop those
defendants from this action.
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II. Eighth Amendment Claims
A. Endangerment (Claims 1(B)(i)-(iii) and 2(B)(i)-(iii)
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)
(citation omitted). A plaintiff asserting an Eighth Amendment
prison conditions claim must allege objectively “extreme”
deprivations. Hudson v. McMillian, 503 U.S. 1, 9 (1992).
Further, the plaintiff must show that the responsible defendants
acted with deliberate indifference to the plaintiff’s health or
safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). “‘[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.’” Giroux v. Somerset Cty., 178 F.3d
28, 32 (1st Cir. 1999) (citations omitted).
Stripped of conjecture and legal conclusions, the facts
asserted in the operative complaint do not give rise to a
reasonable inference that Valerio was ever faced with a
significant risk of sexual assault or abuse during, or as a
result of, anything that occurred during his July 6, 2012,
intake at R&D, or during or after the October 16, 2013, Tailgate
Revival. Valerio does not cite any time during either occasion
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that he was left unmonitored by security personnel, with another
inmate who might have been dangerous, or that any threats, or
other indicia of potential harm known to any defendant, were
made to Valerio by any inmate or staff member. The facts
asserted do not support an allegation that any defendant acted
with deliberate indifference to a serious risk to Valerio’s
health or safety, and the district judge should dismiss
Valerio’s Eighth Amendment endangerment claims (Claims 1(B)(i)-
(iii) and 2(B)(i)-(iii)).
B. Harassment or Humiliation (Clams 1(C) and 2(C))
Valerio asserts that the July 6, 2012, and October 16,
2013, strip searches violated his rights under the Eighth
Amendment. “A prisoner states a claim under the Eighth Amendment
when he plausibly alleges that the strip search in question was
motivated by a desire to harass or humiliate rather than by a
legitimate justification, such as the need for order and
security.” King v. McCarty, 781 F.3d 889, 897 (7th Cir. 2015).
Valerio states that the strip search was motivated by, in the
first instance, his initial intake at the NHSP, and in the
second instance, by his participation in a large group event
involving contact with volunteers.
Valerio does not allege any particular behavior on the part
of any defendant officer suggesting that the strip searches were
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undertaken for any improper purpose, or with an intent to harass
or humiliate Valerio. Valerio's allegations concerning the
circumstances surrounding the strip search are insufficient to
demonstrate that they were “conducted in a harassing manner
intended to humiliate and cause psychological pain.” Id.
Accordingly, the facts asserted are insufficient to support an
Eighth Amendment claim arising out of the manner in which the
strip searches were conducted, and the district judge should
dismiss those claims (Claims 1(C) and 2(C)).
III. First Amendment Free Exercise Claim (Claim 2(D))
To assert a claim under the First Amendment's Free Exercise
Clause, “‘a plaintiff must initially demonstrate that his
sincerely held religious beliefs have been “substantially”
burdened by defendants’ conduct -- specifically, that the
government’s action pressured him to commit an act forbidden by
his religion, or prevented him from engaging in conduct or
experiences mandated by his faith.’” Cooper v. Nimirowski, No.
14-cv-11-SM, 2014 DNH 53, 2014 WL 1003842 at *1, 2014 U.S. Dist.
LEXIS 33875 at *3 (D.N.H. Mar. 13, 2014) (quoting Lewis v. Zon,
920 F. Supp. 2d 379, 384 (W.D.N.Y. 2013) (citing Salahuddin v.
Goord, 467 F.3d 263, 274–75 (2d Cir. 2006))). Valerio alleges
that his First Amendment right to freely exercise his religion
was impinged by the group strip search that occurred after the
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Tailgate Revival, as being nude in front of other men violates
his religious beliefs and practice. Valerio has asserted
sufficient facts to assert a First Amendment Free Exercise claim
(Claim 2(D)) against C.O. John Does #4 and #5, and the court
directs service of those defendants in the Order issued
simultaneously with this Report and Recommendation.
IV. Equal Protection Clause (Claims 1(D) and 2(E))
Valerio asserts that the challenged strip searches violated
his rights under the Equal Protection Clause of the Fourteenth
Amendment. “The Equal Protection Clause contemplates that
similarly situated persons are to receive substantially similar
treatment from their government.” Davis v. Coakley, 802 F.3d
128, 132 (1st Cir. 2015) (citation omitted). To establish an
equal protection claim, a plaintiff needs to allege facts
showing that “‘(1) the [plaintiff], compared with others
similarly situated, was selectively treated; and (2) that such
selective treatment was based on impermissible considerations
such as race, religion, intent to inhibit or punish the exercise
of constitutional rights, or malicious or bad faith intent to
injure [the plaintiff].’” Id. at 132-33 (citations omitted).
Proof of discriminatory intent or purpose is required to show a
violation of the Equal Protection Clause. Vill. of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977).
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Valerio has not asserted that he was treated differently
than any other similarly situated inmate on either July 6, 2012,
or October 13, 2016. Further, Valerio has not alleged that he
has been discriminated against on any improper basis.
Accordingly, the district judge should dismiss Valerio’s
Fourteenth Amendment equal protection claims (Claims 1(D) and
2(E)).
VI. Claims for Injunctive Relief
In his complaint, Valerio has included a request for
prospective preliminary and permanent injunctive relief.
Specifically, he seeks an order from this court directing each
of the defendants in this action to perform their job duties
according to institutional policy and the Constitution.
“[A] plaintiff must demonstrate standing separately for
each form of relief sought.” Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000).
“‘[A] continuing violation or the imminence of a future
violation’ is necessary to confer Article III standing to seek
injunctive relief.” Conservation Law Found. v. Public Serv. Co.
of N.H., No. 11-cv-353-JL, 2012 DNH 174, 2012 WL 4477669 at *10,
2012 U.S. Dist. LEXIS 138881 at *40 (D.N.H. Sept. 27, 2012)
(citation omitted); see also City of Los Angeles v. Lyons, 461
U.S. 95, 109 (1983) (plaintiff who had been subjected to police
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chokehold lacked standing to seek injunction against enforcement
of police chokehold policy in future absent credible threat he
would suffer harm from the policy in the future).
Valerio’s claims arise from two discreet events. Nothing
in the complaint suggests that Valerio is likely to return to
R&D intake and be subjected to another group shower, or that he
is likely to be subjected again to a group search like that
which occurred after the Tailgate Revival. See City of Los
Angeles, 461 U.S. at 109. Furthermore, Valerio has not alleged
any facts suggesting that injunctive relief is necessary to
prevent irreparable harm. See id. at 111 (an “equitable remedy
is unavailable absent a showing of irreparable injury, a
requirement that cannot be met where there is no showing of any
real or immediate threat that the plaintiff will be wronged
again” by unconstitutional law enforcement practices).
Accordingly, the district judge should deny Valerio’s request
for preliminary and permanent injunctive relief, without
prejudice to Valerio’s ability to assert a claim for injunctive
relief should circumstances warrant in the future.
VI. PREA and Failure to Prosecute (Claim 3)
Valerio asserts that defendants Carroll, Forbes, Wrenn,
Kench, Gerry, Fouts, and Attorney General Foster are liable to
him for failing to investigate, report, and prosecute his claims
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of violations of the Prison Rape Elimination Act (“PREA”) and
other laws. The PREA does not provide Valerio with a private
right of action. See Saunders v. Pelkie, No. 15–CV–0225–JD,
2015 U.S. Dist. LEXIS 101067, at *2–*3 (D.N.H. June 26, 2015),
report and recommendation adopted, 2015 U.S. Dist. LEXIS 102715
(D.N.H. July 31, 2015). Further, Valerio has no protected
interest or right to have alleged wrongdoers investigated or
prosecuted. Cf. Nieves–Ramos v. Gonzalez–De–Rodriguez, 737 F.
Supp. 727, 728 (D.P.R. 1990) (citing 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 the
claims asserted under PREA or arising out of any defendant’s
failure to investigate, report, or prosecute any violation of
the law or act of official misconduct (Claim 3).
Conclusion
For the foregoing reasons, the district judge should
dismiss all of the claims in the first amended complaint except
the Fourth Amendment claims asserted against C.O. Bonnie Johnson
and John Doe C.O.s #3, #4, and #5, and the First Amendment
claims asserted against the John Doe C.O.s #4 and #5. The
district judge should dismiss the remaining claims in this
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matter, drop the remaining defendants from the case, and deny
Valerio’s requests for injunctive relief.
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
April 1, 2016
cc: Dwayne M. Valerio, pro se
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