Trawalley v. NH Department of Corrections et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
OUSMAN TRAWALLEY
v. Civil No. 23-cv-00465-JL-TSM
NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS
NORTHERN NH CORRECTIONAL FACILITY, ET AL.
REPORT AND RECOMMENDATION ON PRELIMINARY REVIEW
Ousman Trawalley (“Trawalley”), a prisoner proceeding pro se, brings this Complaint
against Defendants, the New Hampshire Department of Corrections (“NHDOC”), Northern New
Hampshire Correctional Facility (“NCF”) Warden, NCF Corrections Officer Briggs (“CO
Briggs”), and NCF Sergeant Nadeau (“Sgt. Nadeau”).1 Trawalley alleges that CO Briggs and Sgt.
Nadeau violated his Eighth Amendment right to be free from cruel and unusual punishment by
sexually harassing him and placing him in fear of sexual assault on an unspecified date prior to
October 15, 2022, when Trawalley was in punitive segregation. Trawalley seeks damages. The
matter is before this court for preliminary review pursuant to 28 U.S.C. § 1915A and LR 4.3(d).
For the reasons that follow, the magistrate judge recommends that the district judge dismiss this
case as Trawalley’s Complaint (Doc. No. 1) and Complaint Addenda (Doc. Nos. 3-5, 7, 10, 12)
fail to state a claim upon which relief can be granted.
1 Trawalley’s Complaint (Doc. No. 1) and his Addenda to the Complaint (Doc. Nos. 3-5, 7, 10, 12)
identify the defendants as Cory Riendeau, Warden of the NCF, (former) NCF Sgt. Nadeau, and
(former) NCF CO Briggs. The pleadings initially identified Sgt. Nadeau as Sgt. Nadou. This court
further construes the pleadings liberally as intending to state claims against “Acting Warden Maj.
S. Nelson,” who responded to Trawalley’s administrative complaint about the incident at issue in
this case. See Doc. No. 4-1 at pg. 2.
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LEGAL STANDARD
This court conducts a preliminary review of actions that are filed in forma pauperis by
prisoners seeking relief from government agents. 28 U.S.C. § 1915(e)(2); 28 U.S.C. 1915A; LR
4.3(d)(2). The court may dismiss claims if the court lacks jurisdiction, a defendant is immune
from the relief sought, or the complaint fails to state a claim upon which relief may be
granted. See 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A; LR 4.3(d)(2).
BACKGROUND
The facts are drawn from Trawalley’s Complaint and Complaint Addenda. Trawalley is
incarcerated at NCF. On an unspecified date before October 18, 2022, while Trawalley was in
punitive segregation, Trawalley asked CO Briggs and Sgt. Nadeau if he could take a shower. Doc.
No. 7 at pg. 3. As Trawalley walked from his cell to his shower Sgt. Nadeau said, “[H]ey Mr.
Trawalley, my coworker Officer Briggs is a straight freak and wants to f[*]ck you.” Id. Sgt.
Nadeau then “closed one hand like an orifice and proceeded to insert the index finger of the other
hand into it repeatedly.” Doc. No. 1 at pg. 1. Trawalley responded, “I am a player, but I don’t play
that way.” Id. Sgt. Nadeau’s comments made Trawalley fearful to shower because he thought he
“was going to be raped.” Doc. No. 7 at pg. 3.
Despite his fear that he would be sexually assaulted, Trawalley showered. When he
finished showering, Trawalley found both Sgt. Nadeau and CO Briggs “standing at the doorway[,]
staring at [him] and glaring at [him]” as he returned to his cell. Id. (ellipsis omitted). Trawalley
asserts that as a result of the incident, he remains “mentally[,] physically[,] and emotionally
wrecked.” Doc. No. 10 at pg. 1. Trawalley further alleges that he feared he could be sexually
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assaulted while he slept because his nighttime medications reduce his alertness. Doc. No. 7 at pg.
4.
Trawalley reported the incident to prison investigators but was told that because he lacked
evidence, “there was nothing to be done”. Doc. No. 3 at pg. 1. Trawalley alleges that he requested
that prison authorities review camera footage of the incident but was told “that Officer Briggs no
longer worked at the prison.” Id. Additionally, Trawalley reported the incident to the Warden, but
Warden Riendeau “responded with ‘its [sic] impossible what your [sic] saying since Officer Briggs
has been gone for a couple of months.” 2 Doc. No. 7 at pg. 4.
Liberally construed, Trawalley’s pleadings assert the following claims for damages under
42 U.S.C. § 1983:
1. Defendants violated Trawalley’s Eighth Amendment and Fourteenth Amendment
rights, in that:
a. Sgt. Nadeau made sexually harassing comments and gestures to Trawalley on
an unspecified date prior to October 18, 2022, when Trawalley was on his way
from his cell to a shower, placing Trawalley in fear of a sexual assault by CO
Briggs; and
b. Sgt. Nadeau along with CO Briggs stared and glared at Trawalley as he walked
back to his cell, after his shower on that unspecified date.
2. Defendants violated Trawalley’s Eighth Amendment rights, in that Warden Riendeau,
and/or Acting Warden Maj. S. Nelson failed to take appropriate action in response to
2 Trawalley filed an October 18, 2022 Inmate Request Slip (“IRS”) as an exhibit to his pleadings.
See Doc. No. 4-1 at pg. 2. That IRS, signed by Trawalley and addressed to the Warden, describes
the shower harassment incident and asks the Warden to treat it seriously and to look into it, see id.
The Warden’s response to that request, signed by “Maj. S. Nelson, Acting Warden,” states as
follows:
I reached out to Sgt. Nadeau and discussed any interactions he may [have] had with you.
As for [CO Briggs’s] interactions with you, this would be impossible as [CO] Briggs has
not worked for the [NHDOC] for several months.
Doc. No. 4-1 at pg. 2.
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Trawalley’s reports regarding the shower incident involving Sgt. Nadeau’s and CO
Briggs’s sexually harassing words and gestures.
DISCUSSION
I. Eleventh Amendment Immunity
In his Complaint, Trawalley seeks monetary damages against the NHDOC, NCF,
and the individual Defendants in their official capacities.
Claims for damages cannot be maintained in federal court against unconsenting
states and their agents, absent Congressional abrogation of the State’s sovereign
immunity. See Bergemann v. R.I. Dep’t of Envtl. Mgmt., 665 F.3d 336, 339 (1st
Cir. 2011) (Eleventh Amendment generally shields non-consenting states from
liability for damages in federal court); Fantini v. Salem State Coll., 557 F.3d 22, 33
(1st Cir. 2009) (neither state agency nor state official acting in his official capacity
may be sued for damages in a § 1983 action). “[A]bsent waiver or valid abrogation,
federal courts may not entertain a private person’s suit against a State.” Va. Office
for Prot. & Advocacy v. Stewart, 563 U.S. 247, 254 (2011). New Hampshire has
not waived its immunity for damages claims in federal court, and Congress did not
abrogate the state’s Eleventh Amendment immunity through 42 U.S.C. § 1983. See
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 67 (1989).
LeBlanc v. Gerry, No. 12-cv-84-JL, 2012 U.S. Dist. LEXIS 134073, at * 10-11, 2012 WL 4321387,
at * 4 (D.N.H. Aug. 16, 2012), R&R approved, 2012 WL 4321356 (D.N.H. Sept. 17, 2012).
The only form of relief Trawalley seeks is monetary damages. See Doc. No. 10. Therefore,
New Hampshire’s Eleventh Amendment immunity bars Trawalley’s suit to the extent that he brings
claims against the NHDOC, NCF or any of the individual Defendants in their official capacities.
Accordingly, the district judge should dismiss Trawalley’s official capacity claims against those
state agents and agencies.
II. Personal-Capacity Claims
The court next examines whether Trawalley’s pleadings state claims under 42 U.S.C.
§ 1983 against the Defendants in their individual capacities for Eighth Amendment cruel and
unusual punishment/harassment claims and deliberate indifference claims.
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A. Sexual Harassment Claim
“‘The first inquiry in any § 1983 suit ... is whether the plaintiff has been deprived of a right
“secured by the Constitution and laws.” . . . Section 1983 imposes liability for violations of rights
protected by the Constitution, not for violations of duties of care arising out of tort law.”’ Santiago
de Castro v. Morales Medina, 943 F.2d 129, 130 (1st Cir. 1991) (quoting Baker v. McCollan, 443
U.S. 137, 140, 146 (1979) (alterations in original)).
“Acts of verbal harassment, however reprehensible, unprofessional, or inappropriate, do
not violate the federal constitution.” Levesque v. State, 2010 U.S. Dist. LEXIS 57249, 2010 WL
2367346, at * 35 (D.N.H. May 12, 2010), R&R adopted, 2010 U.S. Dist. LEXIS 71345, 2010 WL
2794072 (D.N.H. Jul. 13, 2010) (citing Jane Doe 5 v. City of Haltom City, 106 Fed. Appx. 906,
908 (5th Cir. 2004); McBride v. Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001); Jean-Laurent v.
Wilkinson, 438 F. Supp. 2d 318, 325 (S.D.N.Y. 2006); Collins v. Graham, 377 F.Supp.2d 241, 244
(D.Me.2005). Further, “emotional damage by verbal harassment does not amount to an
infringement of a constitutional right, and thus is not actionable under Section 1983.” Duran v.
Duval, No. 96-10482-GAO, 1998 U.S. Dist. LEXIS 17431, at * 8-9, 1998 WL 765726, at * 3 (D.
Mass. Oct. 28, 1998) (citations omitted)). And fear from spoken words does not constitute grounds
for a 42 U.S.C. § 1983 action. See Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir. 1989).
Here, Trawalley describes a single, apparently isolated incident involving offensive,
sexually-harassing words and gestures, staring, and glaring as Trawalley walked from the shower
to his cell. Trawalley does not allege that any of the Defendants touched him. Further, he does
not allege continuous harassment, as none of the Defendants allegedly harassed him on any
occasion before or after this single isolated incident. The circumstances alleged in the complaint
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do not give rise to an actionable claim of a violation of the Eighth Amendment. Accordingly,
Trawalley’s allegations, without more, fail to state a claim for relief under 42 U.S.C. § 1983.
B. Deliberate Indifference Claims
1. Standard
Trawalley’s complaint is similarly unavailing when construed as an Eighth Amendment
claim, pleading that Defendants were deliberately indifferent to Trawalley’s exposure to prison
conditions that placed him in fear of an assault. That type of Eighth Amendment claim has both
an objective and a subjective component. See Wilson v. Seiter, 501 U.S. 294, 298 (1991). The
objective component is satisfied when the defendants’ act or omission denies prisoners “‘the
minimal civilized measure of life’s necessities.’” Id. (citation omitted); see also Farmer v.
Brennan, 511 U.S. 825, 834 (1994). A showing of deliberate indifference to inmate health or safety
satisfies the subjective prong of that type of claim. See Farmer, 511 U.S. at 834. A plaintiff states
a claim of deliberate indifference upon allegations that (1) defendants knew of circumstances
giving rise to an inference that a substantial risk of serious harm existed; (2) defendants drew the
inference that such a risk existed; and (3) defendants failed to take reasonable measures to abate
the risk. See id. at 837, 842-43, 847.
2. Application to Claims Against Sgt. Nadeau and CO Briggs
Trawalley conclusively alleges that the incident wrecked him. Doc. No. 10 at pg. 1. But
he fails to allege facts suggesting that either CO Briggs or Sgt. Nadeau possessed any subjective
knowledge that a single, isolated incident of harassing remarks and gestures would subject
Trawalley to any substantial risk of serious harm. Accordingly, the district judge should dismiss
the Eighth Amendment claims asserted against Sgt. Nadeau and CO Briggs, for failure to state any
Eighth Amendment claim upon which relief can be granted under 42 U.S.C. § 1983.
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3. Application to Claims against Warden(s) (Claim 2)
Liberally construed, plaintiff claims that Warden Riendeau and/or Acting Warden Maj. S.
Nelson failed to respond appropriately to his complaints about the incident and failed to protect
him, in violation of his federal constitutional rights. His claims asserted against those individuals
arise from their supervisory responsibilities and from his after-the-fact complaint about Sgt.
Nadeau’s gestures and remarks and Sgt. Nadeau’s and CO Briggs’s conduct in staring at him after
his shower.
In general, “[42 U.S.C.] § 1983 liability cannot rest solely on a defendant’s position of
authority.” Ramírez-Lluveras v. Rivera-Merced, 759 F.3d 10, 19 (1st Cir. 2014). “A supervisory
liability claim under section 1983 has two elements: the plaintiff must plausibly allege that ‘one
of the supervisor’s subordinates abridged the plaintiff’s constitutional rights’ and then forge an
affirmative link between the abridgement and some action or inaction on the supervisor’s
part.” Parker v. Landry, 935 F.3d 9, 14 (1st Cir. 2019) (citation omitted). A supervisor’s “own acts
or omissions must work a constitutional violation.” Id. at 15.
Trawalley cannot establish that either Briggs or Nadeau “abridged” Trawalley’s
constitutional rights, and therefore, the court concludes that he cannot establish a constitutional
claim against the Warden in his individual capacity.
Trawalley does not allege that the Warden or Acting Warden knew that Sgt. Nadeau or CO
Briggs would sexually harass Trawalley when he left his cell to take a shower. Trawalley
additionally fails to allege that these officers were involved in any other sexual harassment or
misconduct incident after Trawalley’s complaint to the Warden. The allegations here consequently
do not state an Eighth Amendment deliberate indifference claim against the supervisors named as
Defendants. Accordingly, the district judge should dismiss Claim 2, as identified above.
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CONCLUSION
For the foregoing reasons, the district judge should dismiss all claims in this case against
Defendants for failure to state a claim upon which relief can be granted. Any objections to this
Report and Recommendation must be filed within fourteen (14) days of receipt of this notice. The
fourteen-day period may be extended upon motion. Failure to file any objection 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). Only those issues raised in the objection(s) to this
Report and Recommendation “are subject to review in the district court” and any issues “not
preserved by such objection are precluded on appeal.” Sch. Union No. 37 v. United Nat’l Ins. Co.,
617 F.3d 554, 564 (1st Cir. 2010) (citation omitted).
________________________
Talesha L. Saint-Marc
United States Magistrate Judge
November 24, 2025
Cc: Ousman Trawalley, pro se
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