Beers v. NH Governor et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Timothy Beers
v. Civil No. 15-cv-454-SM
New Hampshire Governor Maggie Hassan et al.1
REPORT AND RECOMMENDATION
Timothy Beers, an inmate at the New Hampshire State Prison
(“NHSP”), has filed a complaint (doc. no. 1) pursuant to 42
U.S.C. § 1983 alleging that the defendants, acting in their
individual and official capacities, have violated his Fourth,
Eighth, and Fourteenth Amendment rights. Beers’s complaint is
1In his complaint (doc. no. 1) plaintiff names the following
state officers and employees as defendants in this action, in
both their individual and official capacities: Governor Maggie
Hassan; Attorney General Joseph Foster; Department of
Corrections (“DOC”) Commissioner William Wrenn; DOC Director of
Security and Training Standards Christopher Kench; DOC Director
of Investigations Colon Forbes; former New Hampshire State
Prison (“NHSP”) Warden Richard Gerry; NHSP Director of Prison
Rape Elimination Act Standards Jean Carroll; NHSP Maj. Jon
Fouts; NHSP Corrections Officer K. Jardine; an unnamed NHSP male
Shift Commander, December 18, 2014, second shift (“John Doe 1”);
an unnamed NHSP male corrections officer, December 18, 2014,
second shift, who ordered plaintiff and others to strip for a
group strip search (“John Doe 2”); nine unnamed NHSP male
corrections officers, December 18, 2014, second shift, who were
present during the group strip search (“John Does 3-11); and an
unnamed NHSP corrections officer, second shift H-Building,
responsible for sorting outgoing mail (“John/Jane Doe 12”).
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before the court for preliminary review, see 28 U.S.C.
§ 1915A(a); LR 4.3(d)(1), and for consideration of the request
for preliminary injunctive relief therein.
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)).
Background
Beers has alleged that, at the NHSP, the Recreation
Department organizes an annual Christmas Holiday Event for
inmates and their families. Inmates apply to attend with their
families, and if certain criteria are met, the inmate applicants
are allowed to attend.
Beers asserts that he and a group of approximately fifty
inmates from his unit attended the 2014 NHSP Holiday Event on
December 18, 2014, in the NHSP gymnasium. At the end of the
event, family members were escorted out of the building, while
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the inmates stayed behind.
Beers alleges that ten corrections officers remained with
the inmates, including one female corrections officer (“C.O.”),
K. Jardine. Beers further alleges that Maj. Jon Fouts was also
present in the gymnasium at that time. An unnamed male
corrections officer (“John Doe 1”) ordered the inmates to strip
down for a “group visual body cavity search.” No privacy
screens were set up. Beers alleges that he had to strip down
along with seven other inmates, near other groups of inmates
waiting their turn to be strip-searched. The inmates were
compelled to strip, bend over, and cough in full view of one
another, in the presence of about ten corrections officers,
including Jardine. A continuously operating video surveillance
camera was trained on the area where the inmates were searched
and, Beers believes, the group strip search was displayed on
monitors connected to that camera.
Beers filed an inmate request slip about the incident in
January 2015. Fouts answered Beers’s inquiries, stating that in
light of concerns that had been raised about the group search,
NHSP officials had been prompted to reevaluate that practice for
future events. Fouts’s response further stated that supervisors
had assured Fouts that no female officers had been present
during the group strip search.
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Beers sent a grievance addressed to New Hampshire
Department of Corrections (“DOC”) Commissioner Wrenn, which
Warden Richard Gerry answered. Gerry denied the grievance,
stating that Fouts had addressed Beers’s issue, and that changes
in their practices would be made “as necessary” for the 2015
Holiday event. Beers appealed to the DOC Commissioner, and
Christopher Kench, DOC Director of Security and Training
Standards, denied that grievance, stating that the
Commissioner’s office supported the Warden’s response. Beers
then contacted New Hampshire Attorney General Joseph Foster and
Governor Maggie Hassan. Beers alleges that Attorney General
Foster replied by stating that he was turning the investigation
over to Maj. Fouts, and that Governor Hassan never replied to
Beers’s letter.
Attached to the complaint is a copy of the form inmates
used to apply to attend the 2015 Holiday Event. See Doc. No. 1,
at 34. At the bottom of the form appears the following
disclaimer:
By submitting this request to attend the Holiday event, I
understand that I will be required to be stripped out in a
group setting in front of other inmates and male staff
members. I further understand that the Holiday Event with
family is a privilege and not a right and that if I refuse
to agree to be stripped out in a group setting that it
could be reason enough to deny my request to attend a
holiday event.
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Discussion
I. Strip Search Claims
A. Eighth Amendment Endangerment
“‘[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). An
Eighth Amendment claim challenging the conditions of a
prisoner’s confinement has an objective and subjective
component. Wilson v. Seiter, 501 U.S. 294, 298 (1991). To
satisfy the objective component of a prison conditions claim,
the deprivations alleged must be “extreme.” Hudson v.
McMillian, 503 U.S. 1, 9 (1992). 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).
Nothing in the facts asserted by plaintiff gives rise to a
reasonable inference that the December 2014 group strip search
presented a substantial risk of serious harm to Beers. Beers
alleges facts showing that the strip search occurred in the
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presence of numerous officers and a video surveillance camera.
Beers has not alleged any facts suggesting that any officer was
deliberately indifferent to a substantial risk that inmates who
stripped together could harm each other.
Therefore, the facts asserted do not support an allegation
that any defendant acted with deliberate indifference to Beers’s
health or safety. Accordingly, Beers’s Eighth Amendment
endangerment claim should be dismissed.
B. Eighth Amendment Humiliation
Beers asserts that the strip search to which he was
subjected 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).
Beers has alleged facts suggesting that the strip search
was motivated by the inmates having just completed a contact
visit with their families, en masse. Beers does not allege any
behavior on the part of any officer suggesting that the group
search was undertaken for any improper purpose, or with an
intent to harass or humiliate Beers or any other inmate.
Beers’s allegations concerning the circumstances surrounding the
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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 strip search, and that claim should be dismissed.
C. Fourteenth Amendment Equal Protection
Beers asserts that the strip search and other actions of
defendants violated his equal protection rights. Nothing
alleged by Beers, however, suggests that he was treated
differently than any other similarly situated inmate. Moreover,
the allegations regarding the incident, and the response of
supervisory personnel to Beers’s grievances relating to whether
a female guard had been permitted to view the search, do not
give rise to a reasonable inference that Beers was subjected to
any equal protection violation, including the type of sexual
harassment that has been deemed actionable, outside of the
prison context, under the Equal Protection Clause. See, e.g.,
Lipsett v. Univ. of P.R., 864 F.2d 881, 897-98 (1st Cir. 1988)
(discussing elements of sexual harassment claims under Title IX
and Equal Protection Clause). Accordingly, Beers’s equal
protection claims should be dismissed.
D. Fourth Amendment Claims for Damages
Beers asserts that the group strip search violated his
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Fourth Amendment right to be protected from unreasonable
searches and seizures, in that it occurred in the presence of
other inmates, male corrections officers, and Maj. Fouts, in
full view of a continuously operating video surveillance camera,
and in the presence of a female corrections officer. Beers has
alleged sufficient facts to survive preliminary review of his
Fourth Amendment claims, to allow this claim to proceed against
Maj. Fouts, C.O. Jardine, the unnamed male C.O. who ordered the
inmates to strip (John Doe 2), and the unnamed male Shift
Commander (John Doe 1) who authorized the use of a group strip
search with Jardine present, in a non-exigent circumstance,
without privacy screens, in full view of a surveillance camera,
in view of other male officers and inmates. Accordingly, in an
Order issued simultaneously with this Report and Recommendation,
the court directs service of this claim upon Jardine, Fouts, and
John Does 1 and 2, in their individual capacities.
E. Fourth Amendment Claim for Injunctive Relief
In his complaint, Beers has included a request for
prospective preliminary and permanent injunctive relief.
Specifically, he seeks an order from this court directing each
defendant to perform job duties according to institutional
policy, and federal and state law in the future.
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“[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. Pub. Serv. Co.
of N.H., No. 11-cv-353-JL, 2012 WL 4477669, at *10, 2012 U.S.
Dist. LEXIS 138881, at *40, 2012 DNH 174 (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
chokehold in past lacked standing to seek injunction against
enforcement of police chokehold policy in future because he
could not credibly allege that he faced realistic threat from
policy).
Beers’s claims arise out of his December 18, 2014,
attendance at the NHSP Holiday event. Attendance at each
Holiday Event is voluntary; inmates must apply if they wish to
be eligible to attend. Beers has not stated facts indicating
that he applied to attend the event in 2015, that he is likely
to attend such events in the future, or that foregoing the event
in 2015 or in other years would likely subject him to any harm.
Beers has therefore failed to allege sufficient facts to show
that he has standing to obtain injunctive relief, relating to
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the strip search procedures, or that such relief is necessary to
prevent irreparable harm. See City of Los Angeles, 461 U.S. 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, Beers’s request for preliminary and
permanent injunctions relating to his Fourth Amendment claim
should therefore be denied, and his claims for such relief
should be dismissed, without prejudice to his ability to assert
such claims should circumstances warrant in the future.
F. Supervisory Liability
In this action, Beers has sued a number of defendants
purely in their supervisory capacities, specifically: Governor
Hassan, DOC Commissioner William Wrenn, Christopher Kench, and
former NHSP Warden Richard Gerry. 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, Beers has not stated any
facts to support a claim that those supervisors’ conduct, act,
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or omission “led inexorably” to the conduct underlying the
Fourth Amendment claims asserted in the complaint. Accordingly,
the claims asserted against the supervisory defendants should be
dismissed from this action.
II. Failure to Prosecute and Prison Rape Elimination Act
Beers claims that defendants including Jean Carroll, Colon
Forbes, and Attorney General Foster are liable to him for
failing to investigate, report, and prosecute his claims of
violations of the Prison Rape Elimination Act (“PREA”) and other
laws. The PREA does not provide Beers 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). Furthermore, Beers does not have a 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 PREA and failure to investigate,
report, and prosecute claims should all be dismissed.
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III. Failure to Train and Supervise
Beers alleges that defendant Christopher Kench, in
responding to Beers’s grievances, manifested deliberate
indifference in failing to train and supervise his subordinates.
Beers’s allegations in that regard do not state a claim for
relief, when stripped of legal conclusions. Accordingly, the
failure to train and supervise claims asserted against defendant
Kench should be dismissed.
IV. Official Capacity Claims
Beers has asserted claims against each defendant in this
action in his or her official capacity. Beers has not stated
any viable claim for injunctive relief in his complaint, and the
Eleventh Amendment precludes official capacity suits for
damages. See Davidson v. Howe, 749 F.3d 21, 27-28 (1st Cir.
2014). Accordingly, the court should dismiss all of the claims
in this action to the extent they are asserted against any
defendant in his or her official capacity.
Conclusion
For the foregoing reasons, the district judge should
dismiss all of the claims in this action, except the following
Fourth Amendment claim for damages concerning the December 18,
2014, group strip search that occurred after the Holiday Event,
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asserted against the defendants named below:
Defendants Maj. Jon Fouts; C.O. K. Jardine; the unnamed
male C.O., second shift, who ordered the inmates to strip
en masse following the December 18, 2014, Holiday Event
(“John Doe 2”); and the unnamed male Shift Commander,
second shift, December 18, 2014 (“John Doe 1”), who
authorized the use of a group strip search with Jardine
present, each violated Beers’s Fourth Amendment right to be
protected from unreasonable searches and seizures, in that
the group strip search occurred in the presence of other
inmates and officers, in full view of a continuously
operating video surveillance camera, and in the presence of
a female corrections officer.
All other defendants named in the complaint should be dropped
from this action, and all other claims should be dismissed. The
district judge should also deny Beers’s request for injunctive
relief, and dismiss his claims for such relief, without
prejudice.
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 Garayalde-Rijos v. Mun. of Carolina, 747 F.3d 15,
21-22 (1st Cir. 2014).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
December 14, 2015
cc: Timothy Beers, pro se
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