Santiago v. NH Department of Corrections, Commissioner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jonathan Santiago
v. 	Case No. 19-cv-236-JL
William L. Wrenn, N.H. Department of
Corrections Commissioner Helen Hanks,
Warden Michelle Edmark, Commissioner’s
Office Representative Christopher Kench,
Major Jon Fouts, and Corrections Officer
Jeffrey Bettez
REPORT AND RECOMMENDATION
Before the court is the complaint (Doc. No. 1) filed by
plaintiff, Jonathan Santiago, an inmate at the New Hampshire
State Prison for Men (“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 an inmate’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
Case 1:19-cv-00236-JL Document 12 Filed 04/15/20 Page 1 of 11

2
claim, the court takes as true the factual content in the
complaint and inferences reasonably drawn from those facts,
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
On January 7, 2018, Mr. Santiago was housed in the NHSP
Close Custody Unit (“CCU”), a unit where Corrections Officer
(“CO”) Jeffrey Bettez was assigned. 	On the way to the chow hall
for lunch on that date, Mr. Santiago was speaking in Spanish
with another inmate. 	He asserts that CO Bettez, overhearing
them, interjected, saying, “Stop speaking Spanish or go back to
your country.” 	Compl. at 2. 	Mr. Santiago, who asserts that
there is no prison rule against speaking in Spanish, further
alleges that CO Bettez’s remark triggered a “brief exchange of
words” between him and CO Bettez. 	Compl. at 2. 	Upon returning
from lunch, Mr. Santiago found that CO Bettez had searched his
cell and left it in disarray. 	Mr. Santiago then had a “heated
exchange of words” with CO Bettez. 	Compl. at 3.
All CCU prisoners were then locked in, except Mr. Santiago,
who asserts that his cell door was opened, and he was summoned
to see the Officer-in-Charge (“OIC”). 	Mr. Santiago alleges that
Case 1:19-cv-00236-JL Document 12 Filed 04/15/20 Page 2 of 11

3
CO Bettez approached him aggressively in the OIC’s office and
then “put his hands” on Mr. Santiago. 	Compl. at 3. 	Mr.
Santiago was fearful because he was aware that CO Bettez had a
“reputation for assaulting prisoners,” that CO Bettez had
previously been acquitted of felony charges relating to an
assault, and that CO Bettez had been sued civilly for assaulting
inmates. 	Mr. Santiago at that point turned to the OIC for help.
Compl. at 3. 	When the OIC shrugged his shoulders, Mr. Santiago
took steps he describes as “defend[ing] himself.” 	Compl. at 3.
Disciplinary proceedings ensued. 	Mr. Santiago pleaded not
guilty to charges of assault and threatening conduct, in
violation of prison rules. 	After a disciplinary hearing, the
Hearings Officer concluded that Mr. Santiago was guilty. 	She
found that after one or more officers brought Mr. Santiago “to
the ground” for refusing an order to lock in, Mr. Santiago
assaulted CO Bettez by sitting on his back. 	Jan. 25, 2018 Hr’g
Results (Doc. No. 1-1, at 1).
The court identifies Mr. Santiago’s claims for equitable
relief and damages as follows:
1. 	CO Bettez discriminated against Mr. Santiago on the
basis of race or national origin, in violation of the
Fourteenth Amendment’s Equal Protection Clause, by telling
Mr. Santiago to “stop speaking Spanish or go back to your
country.”
Case 1:19-cv-00236-JL Document 12 Filed 04/15/20 Page 3 of 11

4
2. 	The defendant supervisory prison officials violated
Mr. Santiago’s Eighth Amendment rights by failing to
protect Mr. Santiago from CO Bettez, despite knowing of
that officer’s history of having assaulted inmates.
3. 	Defendants are liable to plaintiff under state law for
the intentional torts of assault, false arrest, false
imprisonment, intentional infliction of emotional distress,
libel, and slander.
Discussion
I. 	Claim 1
In Claim 1, Mr. Santiago alleges that CO Bettez violated
his Fourteenth Amendment right to equal protection by telling
Mr. Santiago not to speak Spanish and to go home to his own
“country,” presumably meaning somewhere other than the United
States. 	Mr. Santiago further asserts that there is no rule
prohibiting inmates from speaking in Spanish.
A guard’s use of racially-charged or xenophobic language,
standing alone, does not generally amount to a violation of an
inmate’s equal protection rights. 	See Watson v. Louis, 560 F.
App’x 911, 913 (11th Cir. 2014) (courts have held that
“offensive or derogatory statements, even if racially tinged or
racially motivated, do not violate equal protection guarantees
unless they are so pervasive as to amount to racial harassment
or are accompanied by some other conduct that deprives a person
of the equal protection of the laws” (citing cases)); Gannaway
v. Berks Cty. Prison, 439 F. App’x 86, 91 (3d Cir. 2011)
Case 1:19-cv-00236-JL Document 12 Filed 04/15/20 Page 4 of 11

5
(“‘[t]he use of racially derogatory language, while
unprofessional and deplorable, does not violate the
Constitution’” (citation omitted)). 	Mr. Santiago has not
alleged any facts suggesting that CO Bettez subjected him to the
type of racially-motivated pervasive harassment or
discriminatory treatment that would state a claim of a
Fourteenth Amendment violation upon which relief can be granted.
Accordingly, the district judge should dismiss Claim 1.
II. 	Claim 2
In Claim 2, Mr. Santiago alleges that the defendant
supervisory prison officials failed to protect him from CO
Bettez, an officer who is alleged to have had a reputation for
assaulting inmates and a history of being a defendant in cases
involving inmate assaults.
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) (citations
omitted).
Although a supervisor need not personally engage in the
subordinate’s misconduct in order to be held liable, his
own acts or omissions must work a constitutional violation.
Facts showing no more than a supervisor’s mere negligence
vis-à-vis his subordinate’s misconduct are not enough to
make out a claim of supervisory liability. 	At a minimum,
Case 1:19-cv-00236-JL Document 12 Filed 04/15/20 Page 5 of 11

6
the plaintiff must allege facts showing that the
supervisor’s conduct sank to the level of deliberate
indifference.
Id. at 15 (citations omitted). 	“A showing of deliberate
indifference has three components: “the plaintiff must show ‘(1)
that the officials had knowledge of facts, from which (2) the
official[s] can draw the inference (3) that a substantial risk
of serious harm exists.’” 	Id. (citation omitted).
In order for a subordinate’s earlier conduct to put
officials on notice of a substantial risk of serious harm,
there must be some fact or facts that, whether viewed
singly or in combination, plausibly signal a likelihood
that particular misconduct may occur. 	An isolated incident
that concerns arguably relevant misconduct, without more,
typically will not be enough to ground a reasonable
inference that a substantial risk of serious harm was in
prospect.
Id. at 16 (citations omitted).
And even if the complaint contains facts plausibly showing
deliberate indifference, the plaintiff must also allege
facts giving rise to a causal nexus between the
supervisor’s acts or omissions and the subordinate's
misconduct. 	In other words, a supervisor’s deliberate
indifference must lead in a straight line to the putative
constitutional violation.
Id. (citations omitted).
The complaint’s allegations as to CO Bettez begin with Mr.
Santiago’s allegation that CO Bettez made a racist,
ethnocentric, or xenophobic remark to Mr. Santiago, unrelated to
any legitimate purpose, which triggered an exchange of words
between the guard and the inmate. 	Then, while Mr. Santiago was
Case 1:19-cv-00236-JL Document 12 Filed 04/15/20 Page 6 of 11

7
at lunch, CO Bettez searched Mr. Santiago’s cell and left it in
disarray, which Mr. Santiago considered to be harassing and
retaliatory, and which led to a “heated” argument between the
guard and the inmate. 	And then, in the OIC’s office, CO Bettez
“put his hands on” Mr. Santiago, without the OIC intervening,
triggering Mr. Santiago’s aggressive response that resulted in
disciplinary charges.
The allegations about the cell search and CO Bettez’s
remark do not give rise to any viable claim that CO Bettez
violated Mr. Santiago’s federal constitutional rights. 	See,
e.g., Hudson v. Palmer, 468 U.S. 517, 530 (1984) (inmates have
no protected liberty interest to be free from searches of their
cells); Beal v. Foster, 803 F.3d 356, 358 (7th Cir. 2015) (“most
verbal harassment by jail or prison guards does not rise to the
level of cruel and unusual punishment”); Cote v. Barnhart, No.
1:12-cv-00081-NT, 2012 U.S. Dist. LEXIS 42228, at *8, 2012 WL
1038918, at *3 (D. Me. Mar. 23, 2012) (“a thorough cell search
is not ‘sufficiently serious,’ to describe objectively cruel and
unusual treatment” (citations omitted)), R&R approved, 2012 U.S.
Dist. LEXIS 85439 (D. Me. June 20, 2012); Koch v. Westerman, No.
07-cv-0004-MJR, 2009 WL 249222, at *5, 2009 U.S. Dist. LEXIS
7060, at *12 (S.D. Ill. Feb. 2, 2009) (“cell searches” and
“verbal harassment” are “minor annoyances of everyday prison
Case 1:19-cv-00236-JL Document 12 Filed 04/15/20 Page 7 of 11

8
life and would not support a retaliation claim”); Zavala v.
Barnik, 545 F. Supp. 2d 1051, 1058 (C.D. Cal. 2008) (“verbal
harassment, abuse, and threats, without more, are not sufficient
to state a Fourteenth Amendment constitutional deprivation under
[42 U.S.C.] § 1983”), aff’d, 348 F. App’x 211 (9th Cir. 2009).
Moreover, the allegation that CO Bettez “put his hands on”
Mr. Santiago in the OIC’s office after they had a “heated”
argument does not state a claim that CO Bettez violated Mr.
Santiago’s Eighth Amendment rights. 	Under the Eighth Amendment,
an excessive force claim “‘has two components -- one subjective,
focusing on the defendant’s motive for his conduct, and the
other objective, focusing on the conduct’s effect.’” 	Staples v.
Gerry, 923 F.3d 7, 13 (1st Cir. 2019) (citations omitted). 	“The
subjective prong turns on ‘whether force was applied in a good
faith effort to maintain or restore discipline or maliciously
and sadistically for the very purpose of causing harm.’” 	Id.
(citations omitted). 	While an inmate must also show that “the
alleged wrongdoing was objectively harmful enough to establish a
constitutional violation,” id. (internal quotation marks and
citations omitted), an inmate need not prove a “‘significant
injury’ in order to state an excessive force claim,” Wilkins v.
Gaddy, 559 U.S. 34, 36-37 (2010) (citation omitted).
The “factors” that “are relevant to that ultimate
Case 1:19-cv-00236-JL Document 12 Filed 04/15/20 Page 8 of 11

9
determination” include “the extent of the threat to the
safety of staff and inmates, as reasonably perceived by the
responsible officials,” “the need for the application of
force,” “the relationship between the need and the amount
of force that was used,” “the extent of the injury
inflicted,” and “any efforts made to temper the severity of
a forceful response.”
Staples, 923 F.3d at 13 (quoting Whitley v. Albers, 475 U.S.
312, 321 (1986)).
The facts pleaded by Mr. Santiago indicate that CO Bettez
had physical contact with Mr. Santiago in the presence of a
third party, the OIC, after they had engaged in a “heated”
exchange. 	Although Mr. Santiago alleges that he considered CO
Bettez’s demeanor to have been aggressive as he approached Mr.
Santiago, the allegations do not suggest that the physical
contact inflicted any injury at all, or otherwise amounted to a
malicious or sadistic display of “excessive” force. 	In
addition, the timing of the event, after an argument, suggests
that the officers perceived a need to restore discipline.
Without more, the allegations do not suffice to state a claim
that CO Bettez violated Mr. Santiago’s Eighth Amendment rights.
Absent a showing that CO Bettez’s words and conduct
violated Mr. Santiago’s federal constitutional rights, plaintiff
cannot show that the supervisory prison officials named as
defendants caused a violation of Mr. Santiago’s federal rights.
Furthermore, the facts pleaded by Mr. Santiago do not show that
Case 1:19-cv-00236-JL Document 12 Filed 04/15/20 Page 9 of 11

10
prison officials were aware of, or deliberately indifferent to,
CO Bettez’s “reputation” for assaulting inmates, or that they
were on notice that the unspecified incident for which Mr.
Santiago asserts CO Bettez was acquitted and then sued civilly
involved an assault that was likely to recur. 	Cf. Parker, 935
F.3d at 16 (“In order for a subordinate’s earlier conduct to put
officials on notice of a substantial risk of serious harm, there
must be some fact or facts that, whether viewed singly or in
combination, plausibly signal a likelihood that particular
misconduct may occur.”). 	Accordingly, the district judge should
dismiss Claim 2, for failure to state a claim upon which relief
can be granted.
III. Claim 3
In Claim 3, Mr. Santiago alleges that the defendants are
liable to him under state tort law. 	Under 28 U.S.C.
§ 1367(c)(3), this court may decline to exercise supplemental
jurisdiction over state law claims where the court has dismissed
all claims over which it has original jurisdiction. 	In light of
the foregoing recommendation that the district judge dismiss all
of Mr. Santiago’s federal claims, the district judge should also
dismiss the state law claims (summarized in Claim 3) without
prejudice to Mr. Santiago’s ability to file a new complaint in
state court raising those claims.
Case 1:19-cv-00236-JL Document 12 Filed 04/15/20 Page 10 of 11

11
Conclusion
For the foregoing reasons the district judge should: (1)
dismiss all of Mr. Santiago’s federal claims under 42 U.S.C.
§ 1983 (Claims 1 and 2) for failure to state a claim upon which
relief can be granted; (2) dismiss Mr. Santiago’s state law
claims (Claim 3) without prejudice to his ability to file a new
lawsuit in state court raising those claims; and (3) direct that
judgment be entered, and this case be closed.
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). 	That 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
April 15, 2020
cc: 	Jonathan Santiago, pro se
Case 1:19-cv-00236-JL Document 12 Filed 04/15/20 Page 11 of 11