Burns v. Croteau et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Joshua Burns
v. Civil No. 19-cv-007-LM
Opinion No. 2019 DNH 106
N.H. Correction
Corporal FNU Croteau, et al.
O R D E R
Plaintiff Joshua Burns brings this suit against defendants
Corporal Jason Croteau (“Croteau”), Sergeant Dwyane Sweatt
(“Sweatt”), and Correction Officers “John Does,” all employees
of the Northern Correctional Facility for Men in Berlin, New
Hampshire (“NCF”). Burns alleges that Croteau and Sweatt used
excessive force against him and that the John Doe defendants
failed to intervene to protect him in violation of his civil
rights under 42 U.S.C. § 1983. Burns also brings a number of
state tort claims against Croteau and Sweatt. Currently before
the court is defendants’ motion to dismiss all the state law
claims, as well as the failure to intervene claim against the
John Doe defendants. Burns objects. For the reasons that
follow, the motion to dismiss is granted in part and denied in
part.
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STANDARD OF REVIEW
Under Fed. R. Civ. P. 12(b)(6), the court must accept the
factual allegations in the complaint as true, construe
reasonable inferences in the plaintiff’s favor, and “determine
whether the factual allegations in the plaintiff’s complaint set
forth a plausible claim upon which relief may be granted.”
Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014)
(internal quotation marks omitted). A claim is facially
plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
BACKGROUND
The following facts are taken from Burns’s amended
complaint. At all relevant times, Burns was an inmate at NCF.
On April 27, 2016, Croteau ordered Burns to do “extra-duty.”
Burns told Croteau that he did not have extra duty. Sweatt then
told Burns that if he did not perform extra-duty “his day was
not going to go well.” While stating again that Burns had extra
duty, Croteau “shov[ed] a cleaning bottle and a rag in Burns[’s]
face and down his shirt.” Burns responded that he was not going
to perform extra duty.
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Sweatt and Croteau then “slammed Burns[’s] face into a
cement wall.” While handcuffing Burns, Sweatt pulled Burns’s
arms back in such a manner that Burns suffered a dislocated
right shoulder. Croteau and Sweatt then “dragged” Burns to the
reception area to process him. Croteau asked Burns if there was
“going to be an issue if the cuffs came off,” but Burns did not
respond. Croteau then “threw Burns[’s] face down on the cement
floor” while the John Doe defendants “forcibly removed his
sneakers, socks, pants, and boxers.” Burns alleges that the
John Doe defendants were present during the incident, witnessed
the assault, and did nothing to protect Burns or prevent the
assault.
For two months after this incident, Burns felt “extreme
pain” in his right shoulder and had to wear a sling on his right
arm. Burns suffered mental health issues and recurring
nightmares because of this incident.
Following this incident, a disciplinary hearing occurred.
Burns was charged with “preventing or interfering with the
search of an inmate, his/her cell or his/her property,” and
“conduct which disrupts or interferes with the security of
orderly operation of the institution.” The hearing’s officer
concluded that the charges were “unfounded.” She also
determined that Burns “may have been unnecessarily assaulted by
officers in NCF.”
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LEGAL DISCUSSION
Defendants make two arguments. First, they argue that Burns
fails to allege a plausible claim of excessive force against the
John Doe Defendants under a failure to intervene theory. Second,
Defendants argue that certain of the state claims in Count 2
should be dismissed and, in any event, they have immunity on all
of the state tort claims.
I. Failure to Intervene
In Count I, Burns alleges that the John Doe defendants
failed to intervene when Croteau and Sweatt used excessive force
against him. Defendants argue that the allegations fail to
state a plausible claim against the John Doe defendants.
“An officer who is present at the scene 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.” Gaudreault v. Salem, 923 F.2d 203, 207 n.3
(1st Cir. 1990). To prevail on a “failure to intervene” claim
the following elements must be satisfied: (1) the defendant was
present at the scene of the alleged excessive use of force at
the time it occurred; (2) the defendant actually observed the
alleged excessive use of force; (3) the defendant was in a
position where he or she could realistically prevent the alleged
use of excessive force; and (4) there was sufficient time
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available to prevent the alleged excessive use of force. See
Davis v. Rennie, 264 F.3d 86, 97, 101 (1st. Cir. 2001)
(upholding jury instructions with these four elements); Correia
v. Town of Westport, No. 16-cv-12408-ADB, 2017 WL 3940931, at *4
(D. Mass. Sept. 7, 2017) (applying these four elements).
All four elements are plausibly alleged in the amended
complaint. First, Burns alleges that the John Doe defendants
were present at the scene during the incident on April 27, 2016.
Second, Burns alleges the John Doe defendants “saw excessive
force being applied. . . .” Third, Burns alleges that the John
Doe defendants were close enough to not just observe the
excessive force but to assist in “forcibly” removing Burns’s
clothing after the incident. Finally, the facts construed as
true and favorably to Burns support a plausible inference that
the John Doe defendants had sufficient time to intervene but did
not do so. Accordingly, the court finds the “failure to
intervene” allegations sufficiently plausible to survive a
motion to dismiss. Defendants’ motion to dismiss this claim is
therefore denied.
II. State Tort Claims
Count 2 is a collection of state law tort claims against
Croteau and Sweatt: (a) assault; (b) battery; and (c)
intentional and negligent infliction of emotional distress.
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Count 2 also states that Burns is entitled to enhanced
compensatory damages and contains a “catch all” claim for the
“violation of the rights otherwise guaranteed to the plaintiff”
under state and federal law. The parties agree that “enhanced
compensatory damages” is not a separate tort claim but is
instead a request for damages. The parties further agree that
the “catch all” claim and claims for intentional and negligent
infliction of emotional distress should be dismissed. Thus, the
only claims in Count 2 still before the court are those for
assault and battery.
Defendants first argue that RSA 541-B precludes both state
tort claims against Croteau and Sweatt from being brought in
federal court. RSA 541-B, entitled “Claims Against the State,”
provides original and exclusive jurisdiction in state-created
fora for certain claims against the State. RSA 541-B contains
four exceptions, including one for “[a]ny claim arising out of
an intentional tort, including assault, [and] battery. . . .”
RSA 541-B:19(I)(d). This exception applies
“provided that the employee whose conduct gives rise
to the claim reasonably believes, at the time of the
acts or omissions complained of, that his conduct was
lawful, and provided further that the acts complained
of were within the scope of official duties of the
employee for the state.”
RSA 541-B:19(I)(d). Not only are there exceptions to 541-B,
there is case law holding that, where the claims are against the
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defendant in his individual capacity, 541-B does not bar them.
Inserra v. Nedeau, No. 93-279-SD, 1994 U.S. Dist. LEXIS 16278,
at *11 (D.N.H. Nov. 10, 1994).
The defendants briefed neither the exceptions to 541-B nor
the applicable case law. And, the amended complaint in this
case makes clear that Burns sues Croteau and Sweatt in their
individual and not in their official capacities. The court is
not persuaded by the defendants’ 541-B argument. Defendants’
motion to dismiss the state tort claims on this basis is denied.
Defendant’s second argument is that the Eleventh Amendment
provides the state with immunity from liability for the state
tort claims. The problem with this argument is that Burns is
not suing the state. Nor is Burns suing Croteau and Sweatt in
their official capacities. The Eleventh Amendment argument is
unavailing. See Hafer v. Melo, 502 U.S. 21, 30-31 (1991).
Thus, with respect to the state tort claims for assault and
battery, defendants’ motion to dismiss is denied.
CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss
(doc. no. 9) is granted in part and denied in part. It is
granted as to the following claims in Count 2: the intentional
and negligent infliction of emotional distress claims and the
“catch all” claim for “a violation of the rights otherwise
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guaranteed to the plaintiff.” The motion is further granted to
the extent it seeks clarification that the claim for “enhanced
compensatory damages” in Count 2 is merely a request for damages
and is not a separate, stand-alone count. With respect to the
assault and battery claims in Count 2 and the failure to
intervene claim in Count 1, the motion is denied.
Remaining in this lawsuit are the following claims: the
excessive force and failure to intervene claims in Count 1; and
the assault and battery claims in Count 2.
SO ORDERED.
______________________________
Landya McCafferty
United States District Judge
July 2, 2019
cc: Counsel of Record
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