Morales v. NH Attorney General et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Irvin Morales
v. 	Civil No. 17-cv-234-SM
Joseph Foster et al.1
REPORT AND RECOMMENDATION
Before the court is plaintiff Irvin Morales’s Third Amended
Complaint (“TAC”) (Doc. No. 33-1). 	The TAC is before the court
for preliminary review, pursuant to LR 4.3(d)(1) and 28 U.S.C.
§ 1915(e)(2), to determine whether any of the claims stated in
that pleading may proceed.
Preliminary Review Standard
This court applies the same preliminary review standard to
the TAC that the court used to conduct the preliminary review of
the Second Amended Complaint (“SAC”) in this case. 	That
standard is set forth in the January 3 R&R.
1After the court completed its preliminary review of the
Second Amended Complaint, the only defendant remaining in this
action was an unnamed corrections officer (“CO”) identified as
CO John Doe 2. 	See Feb. 1, 2019 Order (Doc. No. 35) (approving
Jan. 3, 2019 R&R (Doc. No. 29)). 	The Third Amended Complaint
(“TAC”) (Doc. No. 33-1) names as defendants COs John Does 1-3,
Jane Doe One, CO Kelly Jardine, Maj. Jon Fouts, Capt. Roderick
Greenwood, and Sgt. Keith Forcier. 	This R&R recommends
dismissal of all defendants named in the TAC except for CO John
Doe 2, Greenwood, Fouts, and Forcier.
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Background
The undersigned Magistrate Judge conducted a preliminary
review of Morales’s Second Amended Complaint (“SAC”) (Doc. No.
27) on January 3, 2019, which resulted in the issuance of a
Report and Recommendation (“January 3 R&R”) (Doc. No. 29)
recommending that the district judge dismiss most of the claims
in the SAC and all of the named defendants, and an Order (Doc.
No. 30) directing service of the SAC on the remaining defendant,
an unnamed Corrections Officer (“CO”) identified as CO John Doe
2. 	Morales filed the proposed TAC as an exhibit in response to
the January 3 R&R and submitted it along with a motion seeking
leave to file it, see Doc. No. 33. 	The district judge
subsequently approved the January 3 R&R, see Feb. 1, 2019 Order
(Doc. No. 35).
The TAC is like the SAC, with some differences. 	Fewer
supervisory defendants are identified in the TAC, one claim has
been dropped altogether, and several new or clarified
allegations have been added. 	In the January 3 R&R, the court
identified and numbered Claims 1-4 in the SAC, as follows:
1. 	In making Morales the object of an excessively long,
slow, and humiliating search after Morales protested that
the search would violate his rights, Corrections Officer
(“CO”) John Doe 2:
a. 	Violated Morales’s Fourth Amendment right not to
be subjected to an unreasonable search, lacking any
legitimate purpose;
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b. 	Violated Morales’s Eighth Amendment right not to
be subjected to cruel and unusual punishment; and
c. 	Violated Morales’s right to avoid retaliation for
engaging in conduct protected by the First Amendment.
2. 	Defendant COs Jane Doe 1, John Doe 1, Kelly Jardine,
and John Doe 3; Maj. Jon Fouts; Capt. Roderick Greenwood;
and Sgt. Keith Forcier, in causing Morales to be strip-
searched without privacy screens in the presence of other
male inmates and COs, including a female CO, in view of a
surveillance camera monitored by a female CO, violated
Morales’ rights under
a. 	the Fourth Amendment, and
b. 	the Eighth Amendment.
3. 	COs Jardine, Jane Doe 1, and John Does 1, 2, and 3;
Capt. Greenwood; Sgt. Forcier; and Maj. Fouts violated
Morales’s First Amendment right to the free exercise of
religion, in that they required Morales to perform acts
forbidden by his religion.
4. 	COs Jane Doe 1, John Does 1-3, and Jardine; Capt.
Greenwood; Sgt. Forcier; and Maj. Fouts violated Morales’s
Fourteenth Amendment right to equal protection by
subjecting only inmates like Morales who stayed until the
end of the holiday event to a strip-search, while allowing
inmates who left the event early to be searched by being
patted-down while wearing clothes.
Upon completing its preliminary review of the SAC, the court
dismissed Claims 2(a), 2(b), 3, and 4, see Feb. 1, 2019 Order
(Doc. No. 35) (approving Jan. 3, R&R (Doc. No. 29)), and
directed service of Claims 1(a), 1(b), and 1(c) upon defendant
CO John Doe 2, see Jan. 3 Order (Doc. No. 30). 	Morales has
reasserted Claims 1-4 in the TAC.2
2In the SAC, Morales asserted a spoliation of evidence claim
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In the TAC, Morales also asserts the following new claim of
supervisory and/or bystander liability, identified in this R&R
as Claim 6, against defendants who are alleged to have been CO
John Doe 2’s supervisors:
6. 	Maj. Jon Fouts, Capt. Roderick Greenwood, and Sgt.
Keith Forcier are liable for CO John Doe 2’s conduct in
subjecting Morales to an excessively long, slow, and
humiliating search, in that, while having supervisory
authority over CO John Doe 2, they witnessed the manner in
which the search was conducted but failed to intervene to
stop it, despite having the opportunity to do so:
a. 	In violation of Morales’s Fourth Amendment right
not to be subjected to an unreasonable search, lacking
any legitimate purpose;
b. 	In violation of Morales’s Eighth Amendment right
not to be subjected to cruel and unusual punishment;
and
c. 	In violation of Morales’s right to avoid
retaliation for engaging in conduct protected by the
First Amendment.
Discussion
I. 	Claims 1(a)-(c)
Claims 1(a)-(c) in the TAC, asserted against CO John Doe 2,
are the same claims of violations of Morales’s First, Fourth,
and Eighth Amendment rights asserted against CO John Doe 2 that
the court allowed to proceed upon completing its preliminary
that the court in the January 3 R&R numbered as Claim 5. 	That
claim has been dismissed. 	See Feb. 1, 2019 Order (Doc. No. 35)
(approving Jan. 3, 2019 R&R (Doc. No. 29)). 	Morales has not
reasserted Claim 5 in the TAC.
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review of the SAC. 	The court allows those claims to remain in
the case, and, in the Order issued this date, grants plaintiff
leave to conduct limited discovery at this time for the purpose
of discovering CO John Doe 2’s identity.
II. 	Claims 6(a)-(c)
In the TAC, Morales injects new claims of bystander or
supervisory liability against Fouts, Greenwood, and Forcier for
being present at, and failing to intervene to stop, subordinate
officer CO John Doe 2’s alleged unconstitutional acts summarized
in Claims 1(a)-(c), despite having an opportunity to do so.
Morales also alleges that the defendants to Claim 6(a)-(c) have
supervisory authority over CO John Doe 2.
A. 	Bystander Liability
Allegations that law enforcement officers who have
witnessed a fellow officer using excessive force but have not
intervened despite a reasonable opportunity to do so may state a
viable claim under section 1983. 	See Martinez v. Colon, 54 F.3d
980, 985 (1st Cir. 1995) (“‘an officer who is present at the
scene [of an arrest] and who fails to take reasonable steps to
protect the victim of another officer’s use of excessive force
can be held liable under section 1983 for his nonfeasance,’
provided that he had a ‘realistic opportunity’ to prevent the
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other officer’s actions” (quoting Gaudreault v. Salem, 923 F.2d
203, 207 n.3 (1st Cir. 1990)). 	Although such bystander
liability has generally been applied in cases involving claims
of excessive force, “other constitutional violations also may
support a theory of bystander liability.” 	Whitley v. Hanna, 726
F.3d 631, 647 n.11 (5th Cir. 2013) (citing cases). 	Bystander
liability has been applied to Fourth Amendment claims
challenging searches, see, e.g., Douglas v. Johnson, No. 7:11-CV-
00468, 2013 U.S. Dist. LEXIS, at *32, 2013 WL 1123849, at *10
(W.D. Va. Mar. 18, 2013); Fernandors v. District of Columbia,
382 F. Supp. 2d 63, 73–74 (D.D.C. 2005), and to claims
challenging First Amendment retaliation, see, e.g., Mays v.
Smith, No. 5:18-CT-3186-FL, 2019 U.S. Dist. LEXIS 31860, at *7,
2019 WL 958401, at *3 (E.D.N.C. Feb. 27, 2019). 	Under a theory
of bystander liability, at this stage of the case, Claims 6(a),
6(b), and 6(c) may proceed against defendants Fouts, Greenwood,
and Forcier.
B. 	Supervisory Liability
A plaintiff may state a claim of supervisory liability
under 42 U.S.C. § 1983 upon allegations showing that there was
an “affirmative link” between a supervisory defendant and the
unconstitutional acts or omissions of her or his subordinate
officer, which “led inexorably to the constitutional violation.”
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Morales v. Chadbourne, 793 F.3d 208, 221 (1st Cir. 2015).
Supervisory liability typically arises in one of two ways,
either by a showing of the supervisor’s “direct participation”
in the constitutional tort, or by allegations regarding the
supervisor’s conduct in training, supervising, or hiring a
subordinate “‘with deliberate indifference toward the
possibility that deficient performance of the task eventually
may contribute to a civil rights deprivation.’” 	Sanchez v.
Pereira-Castillo, 590 F.3d 31, 49 (1st Cir. 2009) (citation
omitted). 	To state a claim of supervisory liability, the
plaintiff “must show ‘an affirmative link, whether through
direct participation or through conduct that amounts to
condonation or tacit authorization,’ between the actor and the
underlying violation.” 	Id. (citation omitted); cf. Maldonado v.
Fontanes, 568 F.3d 263, 275 (1st Cir. 2009) (citation omitted)
(finding that supervisor’s promulgation of policy that was
silent as to manner of implementation, and his “mere presence,”
when his subordinates engaged in acts alleged to have violated
plaintiff’s constitutional rights in implementing that policy,
was “insufficient to create the affirmative link necessary for a
finding of supervisory liability”).
The facts alleged in the TAC regarding the supervisory
officers’ observations of the search of Morales, and their
failure to intervene despite an opportunity to do so under the
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circumstances, suffice to state a claim of supervisory
condonation or tacit authorization, upon which relief might be
granted, as to Claims 6(a)-(c). 	Accordingly, in an Order issued
this date, the court has directed Fouts, Greenwood, and Forcier
to file an answer or other response to Claims 6(a)-(c), under
theories of bystander and supervisory liability.
III. Claims 2(a), 2(b), 3, 4
The February 1, 2019 Order (Doc. No. 35) (approving January
3 R&R) dismissed all other claims in this action, and dropped
all defendants, except for Claims 1(a)-(c) as to CO John Doe 2.
The reasons for dismissing those claims -- qualified immunity as
to Claims 2(a) and 3 and failure to plead sufficient facts to
state a claim as to Claims 2(b) and 4 -- are equally applicable
to the TAC as to those defendants, as the new allegations in the
TAC do not substantially alter the factual allegations in the
SAC, or otherwise warrant restoring those dismissed claims and
rejoining those defendants. 	Accordingly, the claims asserted in
the TAC identified in this R&R as Claims 2(a), 2(b), 3, and 4
should be dismissed, and all defendants other than CO John Doe
2, Fouts, Greenwood, and Forcier, should be dropped as parties.
Conclusion
For the foregoing reasons, the district judge should
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dismiss Claims 2(a), 2(b), 3, and 4, and drop as parties all
defendants other than CO John Doe 2, Maj. Jon Fouts, Capt.
Roderick Greenwood, and Sgt. Keith Forcier. 	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).
The fourteen-day period may be extended upon motion. 	Failure to
file objections 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).
_______________ 	__________
Andrea K. Johnstone
United States Magistrate Judge
June 17, 2019
cc: 	Irvin Morales, pro se
Francis Charles Fredericks, Esq.
Lawrence Edelman, Esq.
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