Hawthorne v. NH State Prison for Men

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Benjamin Hawthorne
v. Civil No. 22-cv-366-JL
New Hampshire State Prison for Men
REPORT & RECOMMENDATION
Before the court is the complaint (Doc. No. 1) and
complaint addendum (Doc. No. 8) filed by pro se plaintiff,
Benjamin Hawthorne, a prisoner at the New Hampshire State Prison
for Men in Concord, New Hampshire (“NHSP”). The complaint is
before this magistrate judge for preliminary review under LR
4.3(d)(1) and 28 U.S.C. § 1915A(a).
Preliminary Review Standard
The court may dismiss claims asserted in a prisoner’s
complaint, if the court lacks subject matter jurisdiction, a
defendant is immune from the relief sought, the complaint fails
to state a claim, or the action is frivolous or malicious. See
28 U.S.C. § 1915A(b). In determining whether a pro se complaint
states a claim, the court must construe the complaint liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). To
determine whether to dismiss claims for failure to state a
claim, the court takes as true the factual content in the
complaint and inferences reasonably drawn from those facts,
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strips away the legal conclusions, and considers whether
plaintiff has stated a claim that is plausible on its face.
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Background
Mr. Hawthorne’s complaint (Doc. No. 1) and addendum (Doc.
No. 8) relate to an incident he alleges occurred at the NHSP on
August 10, 2021. Mr. Hawthorne asserts that, on that date, he
was housed in the mental health unit at the NHSP. Another
inmate, Joshua Laclair, approached Mr. Hawthorne and made “a few
very disturbing remarks” and “sexual advances” toward Mr.
Hawthorne. Compl. (Doc. No. 1) at 9-10. Mr. Hawthorne told Mr.
Laclair to leave him alone and go away. Mr. Laclair, however,
neither listened to nor acknowledged Mr. Hawthorne’s requests.
Instead, Mr. Laclair continued to direct sexual remarks or
advances toward Mr. Hawthorne.
Afterward, Mr. Hawthorne reported the incident to a NHSP
medical staff member. The staff member forwarded Mr.
Hawthorne’s report to NHSP administration, which initiated an
investigation. The next day, a NHSP investigator – identified
only as “Investigator Phelps” – contacted Mr. Hawthorne and
assured him he would investigate and treat the matter as an
accusation under the Prison Rape Elimination Act (“PREA”).
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At some point after that, Mr. Hawthorne left the NHSP. In
January 2022, Mr. Hawthorne asserts that he was “reincarcerated”
at the Strafford County jail. Id. at 11. While at the
Strafford County jail, Mr. Hawthorne received a phone call from
a NHSP staff member who told him that, after investigation, his
claim had been found to be substantiated and accurate.1
Mr. Hawthorne attached several documents to his complaint.
As relevant, these are a typed letter from the NHSP to Mr.
Hawthorne and Investigator Phelps’s report. The letter states
as follows:
After completing an investigation pertaining
to your August 12, 2021, allegation that you
had been sexually harassed by Inmate Laclair,
. . . your allegation has been determined to
be substantiated, meaning that after the
allegation was investigated, it was determined
to have occurred. This matter will be
addressed with Inmate Laclair through the
administrative disciplinary process.
Letter (Doc. No. 1-1) at 1. A handwritten note on the bottom of
the letter states that “I, Jean Carroll, read this letter over
the phone” to Mr. Hawthorne, who stated that he understood the
context. Id. The note adds that “[t]here has not been any
contact or retaliation from Inmate Laclair.” Id.
Investigator Phelps’s report relates much of the same facts
alleged by Mr. Hawthorne in his complaint. The Investigation
1 It appears that Mr. Hawthorne has since reentered NHSP.
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Report states that Mr. Laclair had been walking around the
morning of the incident stating that he was being kicked out of
the unit and was going to be moved to another unit “where he was
going to be raped.” Investigation Report (Doc. No. 1-1) at 2.
The other inmates on the pod were trying to ignore Mr. Laclair
“with little luck.” Id. Mr. Hawthorne and some other inmates
were sitting on couches near Mr. Laclair, and Mr. Hawthorne told
Mr. Laclair that he should not “be saying stuff like that.” Id.
Mr. Hawthorne had a history of being sexually assaulted, and so
Mr. Laclair’s remarks caused Mr. Hawthorne significant mental
distress. Mr. Laclair then directed vulgar, sexual remarks
toward Hawthorne, to which Mr. Hawthorne responded that Mr.
Laclair should “shut up and leave the pod.” Id. Mr. Laclair
left but later came back to retrieve some property. While doing
so, Mr. Laclair made another vulgar, sexual remark toward Mr.
Hawthorne. Mr. Hawthorne also filed a supplement to his
complaint asserting that Mr. Laclair should be added as a
defendant to the case, as Mr. Laclair’s actions caused him
mental distress. Compl. Supplement (Doc. No. 8).
Discussion
In his pleadings, Mr. Hawthorne identified 42 U.S.C. § 1983
and PREA as the legal bases for his claims. As an initial
matter, to the extent Mr. Hawthorne sought to raise a claim
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under PREA, it “does [not] apply to harassment claims nor does
it provide a federal right enforceable in a § 1983 action.” See
Green v. Williams, No. 20-60723-CV-WILLIAMS, 2020 WL 7774727,
2020 U.S. Dist. LEXIS 188173, at *12 (S.D. Fla. Oct. 8, 2020)
(recommending dismissal of claim that prison violated PREA by
failing to investigate claim of sexual harassment), R&R adopted,
2020 U.S. Dist. LEXIS 244386 (Dec. 30, 2020); Jackson v.
Wicking, No. 3:20-cv-249, 2020 U.S. Dist. LEXIS 218534, at *6
(M.D. Tenn. Nov. 23, 2020) (collecting cases, observing that
PREA does not provide a private right of action, and stating
that a prisoner “has no constitutional right to compel a proper
investigation of his PREA complaint . . . or even to have that
complaint investigated at all”).
To the extent Mr. Hawthorne seeks to bring a claim under
§ 1983, Mr. Hawthorne did not identify the constitutional right
that he claims NHSP, or any NHSP employee, violated. As Mr.
Hawthorne proceeds pro se, the court has given the pleadings a
liberal construction, and the alleged facts suggest that Mr.
Hawthorne intended to bring a claim that the NHSP, or an
unidentified NHSP employee, violated his Eighth Amendment rights
by deliberately ignoring serious risks to his health or safety.
Furthermore, considering the facts, Mr. Hawthorne may also have
intended to bring state-law tort claims against the NHSP and Mr.
Laclair.
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I. Sovereign Immunity
Mr. Hawthorne asks only for money damages in his complaint.
See Compl. (Doc. No. 1) at 12-13 (asking for $100,000 in damages
for physical injuries and $250,000 in damages for mental
anguish); Civil Cover Sheet (Doc. No. 1-3) at 1 (indicating a
request for $450,000 in damages). The Eleventh Amendment
generally precludes a plaintiff from suing the state, its
agencies, or state employees in their official capacities,
unless the state has waived its Eleventh Amendment immunity, or
a federal law provides the requisite waiver or abrogation of
that immunity. See Town of Barnstable v. O’Connor, 786 F.3d
130, 138 (1st Cir. 2015); Davidson v. Howe, 749 F.3d 21, 27-28
(1st Cir. 2014). The NHSP is a state agency, see Guitard v.
N.H. Dep’t of Corr., No. 11-cv-194-PB, 2011 U.S. Dist. LEXIS
55455, at *2 (D.N.H. May 17, 2011), and no waiver or abrogation
of the state’s Eleventh Amendment immunity applies to Mr.
Hawthorne’s apparent § 1983 claims. See Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 65-66 (1989) (“Congress, in passing
§ 1983, had no intention to disturb the States’ Eleventh
Amendment immunity” (citation omitted)). Accordingly, the
district judge should dismiss all of Mr. Hawthorne’s § 1983
claims to the extent he seeks money damages from the state, the
NHSP (a state agency), or any state officials in their official
capacities.
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II. Eighth Amendment Claim Against NHSP
It is unclear whether Mr. Hawthorne seeks prospective
injunctive relief in addition to money damages against NHSP.
But even assuming that he does, Mr. Hawthorne has not stated any
claim for relief. As noted, construing his complaint liberally,
the only apparent federal claim raised is one for deliberate
indifference to serious risks to health or safety under the
Eighth Amendment.
“Under the Eighth Amendment, ‘prison officials have a duty
to protect prisoners from violence at the hands of other
prisoners.’” Lakin v. Barnhart, 758 F.3d 66, 70 (1st Cir. 2014)
(quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)). The
plaintiff must show that he was incarcerated under conditions
that posed a “substantial risk of serious harm” to him, and the
defendant must have acted, or failed to act, with deliberate
indifference to the plaintiff’s health or safety. Id.
Importantly, to prevail on an Eighth Amendment claim, a
plaintiff must show that the defendant’s conduct was purposeful
and not merely negligent. See Abernathy v. Anderson, 984 F.3d
1, 6 (1st Cir. 2020).
Here, the allegations do not rise to the level of
constitutional harm. Mr. Hawthorne alleges that he was sexually
harassed by another inmate. He promptly reported that
harassment to NHSP staff, who investigated the complaint, found
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the allegations substantiated, and acted accordingly by
utilizing the NHSP’s inmate disciplinary process. There is no
allegation that any NHSP employee had any reason to believe that
Mr. Laclair would act as he did prior to the incident. Further,
Mr. Hawthorne does not allege that any NHSP employee was present
when the harassment occurred or that they allowed it to happen
or continue. There is no allegation that the harassment
reoccurred afterward. Simply put, on these facts, neither the
NHSP, nor any NHSP employee, can be said to have acted with
deliberate indifference to any serious risk of harm to Mr.
Hawthorne. See Green, 2020 U.S. Dist. LEXIS 188173, at *9-10
(recommending dismissal of Eighth Amendment deliberate
indifference claim where plaintiff alleged that other inmates
sexually harassed him while he was in the shower and did not
allege any physical contact, threats, or facts showing that
prison officials disregarded a substantial risk to plaintiff).
III. State-Law Claims
In his complaint, Mr. Hawthorne may also be attempting to
raise state-law claims for, potentially, assault, negligent
infliction of emotional distress, or intentional infliction of
emotional distress against either the NHSP, an unidentified NHSP
employee, or Mr. Laclair. As there are no viable federal
claims, and because there is not complete diversity between Mr.
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Hawthorne and NHSP and Mr. Laclair, the district judge should
decline to exercise supplemental jurisdiction over any state-law
claims that Mr. Hawthorne intended to raise. See 28 U.S.C.
§ 1367(c) (“The district courts may decline to exercise
supplemental jurisdiction over a claim . . . if . . . the
district court has dismissed all claims over which it has
original jurisdiction.”); Rossi v. Gemma, 489 F.3d 26, 38-39
(1st Cir. 2007) (“As a general principle, the unfavorable
disposition of a plaintiff's federal claims at the early stages
of a suit . . . will trigger the dismissal without prejudice of
any supplemental state-law claims.” (quoting Rodriguez v. Doral
Mortg. Corp., 57 F.3d 1168, 1177 (1st Cir. 1995)).
Conclusion
For the foregoing reasons, the District Judge should
dismiss Mr. Hawthorne’s complaint in its entirety for failure to
state a federal claim, without prejudice to his ability to
assert any state law claim asserted here in an appropriate state
court. 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
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Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
October 6, 2023
cc: Benjamin Hawthorne, pro se
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