Hentschel v. Doe #1 et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Derrick D. Hentschel
v. Civil No. 16-cv-426-JL
John Doe et al.1
REPORT AND RECOMMENDATION
Derrick D. Hentschel, an inmate in the custody of the New
Hampshire Department of Corrections (“DOC”) has filed a
complaint (Doc. No. 1), pursuant to 42 U.S.C. § 1983. The
complaint is before this magistrate judge for preliminary
review, pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A(a), and LR
4.3(d)(1).
Preliminary Review Standard
Because Hentschel is appearing pro se, the court construes
his pleadings liberally. See Erickson v. Pardus, 551 U.S. 89,
94 (2007). The court may dismiss Hentschel’s complaint, or any
part of the complaint, if it “fails to state a claim on which
relief may be granted.” 28 U.S.C. §§ 1915(e)(2), 1915A(b)(1);
1The defendants named in the complaint are: two John Doe
inmates; a prison gang, the Brotherhood of White Warriors
(identified as either “BOWW” or the “Band of White Warriors”); a
John Doe Corrections Officer; a John Doe New Hampshire
Department of Corrections (“DOC”) Investigations officer; Lt.
Newton, whose first name is unknown; DOC Classifications
employee Kim Lacasse; DOC Commissioner William Wrenn; and New
Hampshire State Prison Warden Michael Zenk.
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LR 4.3(d)(1)(A). To determine if the complaint states a claim,
the court first disregards plaintiff’s legal conclusions and
then 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) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)).
Background
Hentschel alleges that on September 13, 2016, he was
assaulted by two John Doe inmates at the Northern New Hampshire
Correctional Facility (“NCF”). The Doe inmates, Hentschel
states, are members of a prison gang known as “BOWW.” Hentschel
states that BOWW, and it members, are his “enemies.” Hentschel
states that prior to his placement at NCF, he advised DOC
Investigations Bureau officials that BOWW members were his
enemies, and that placement at NCF would be problematic for him
due to his prior “issues” with BOWW. Despite that, DOC
Classifications employee Kim Lacasse, knowing he had BOWW
enemies at NCF, placed him at that facility, where he was housed
on a unit where there were BOWW members.
After the September 13, 2016 assault, Hentschel requested
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to be placed into protective custody, and was sent to the
“receptions area” and placed in segregation. The following day,
DOC Lt. Newton and a John Doe Investigations Bureau officer
acknowledged the threat posed to Hentschel by BOWW, and stated
they were sending Hentschel to NCF’s Block-F. Hentschel alleges
that he was assaulted on Block-F in 2012, and believed that
placement on Block-F posed a threat to him. Accordingly, he
states, he refused the placement, and Newton issued him a
disciplinary report for refusing a direct order. Hentschel was
returned to the receptions area at that time.
Discussion
I. Claims To Be Served
A. Failure to Protect
Hentschel has alleged the minimum facts necessary to
proceed on Eighth Amendment failure to protect claims against
Lacasse, for placing him at NCF with knowledge that that
placement would create a risk to Hentschel’s safety. Hentschel
has also asserted sufficient facts to assert Eighth Amendment
failure to protect claims against defendant Newton and a John
Doe Investigations Bureau officer for placing him in a housing
unit at NCF with BOWW members, knowing the risk such placement
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posed to Hentschel’s safety. In an Order issued simultaneously
with this Report and Recommendation, the court directs service
of the complaint, in regard to these failure to protect claims,
against defendants Lacasse, Newton, and a John Doe
Investigations Bureau officer.2
B. Assault
Hentschel has alleged sufficient facts to proceed on a
state law tort claim of assault against the two John Doe inmates
alleged to have assaulted Hentschel on September 13, 2016. In
the Order issued simultaneously with this Report and
Recommendation, the court authorizes service of the complaint,
in regard to the assault claims, on the two Doe inmates. In
that Order, plaintiff is directed to amend his complaint to
identify those inmates so that they may be served.
II. Insufficiently Asserted Claims
To the extent Hentschel seeks to assert claims against
BOWW, a John Doe Intake officer, DOC Commissioner William Wrenn,
2Hentschel has identified one John Doe Investigations Bureau
officer as a defendant in the caption of his complaint, but
refers to multiple John Doe Investigations Bureau officers in
the complaint narrative. The court construes the complaint to
have named only one John Doe Investigations Bureau officer. If
Hentschel intends this suit to proceed against more than one
John Doe Investigations Bureau officer, he must move to amend
his complaint accordingly.
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and NHSP Michael Zenk, he has failed to assert any facts to
support any actionable claim against those defendants.
Accordingly, the claims against BOWW, a John Doe Intake Officer,
Wrenn, and Zenk, should be dismissed, and those defendants
should be dropped from this action.
Request for Preliminary Injunctive Relief
In his prayer for relief, Hentschel includes a request that
the court issue an injunction directing the defendants to place
him in a safe environment while he is in the custody of the DOC.
In the Order issued simultaneously with this Report and
Recommendation, the court directs the defendants to respond to
Hentschel’s request for injunctive relief.
Conclusion
For the foregoing reasons, the district judge should
dismiss the claims asserted against BOWW, a John Doe Intake
officer, Wrenn, and Zenk, and drop those defendants from this
case. 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 specific written objections to the
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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
April 4, 2017
cc: Derrick D. Hentschel, pro se
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