Covington v. NH State Prison, Warden et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
James Covington
v. 	Case No. 20-cv-330-JL
New Hampshire State Prison Warden et al. 1
REPORT AND RECOMMENDATION
Before the court is pro se plaintiff James Covington’s
complaint (Doc. No. 1) and two addenda to the complaint (Doc.
Nos. 6, 7). 	The complaint and the complaint addenda are before
the court for preliminary review, pursuant to 28 U.S.C.
§§ 1915(e)(2), 1915A(a); and LR 4.3(d)(1).
Preliminary Review Standard
The court screens complaints filed by plaintiffs proceeding
in forma pauperis and by prisoners seeking relief against an
employee of a government entity. 	See 28 U.S.C. §§ 1915(e)(2),
1915A; LR 4.3(d)(1). 	Claims may be dismissed, sua sponte, if,
among other things, the court lacks jurisdiction, a defendant is
1 Defendants named in the initial pleadings (Doc. Nos. 1, 6,
7) are: New Hampshire State Prison (“NHSP”) Warden Michelle
Edmark and NHSP Corrections Officers Bezel (whose first name is
unknown (“FNU”)), FNU Bronoski, FNU Carver, FNU Cass, FNU
Farrah, FNU Forbes, FNU Forcier, FNU Hill, FNU Hyde, FNU
Jackson, FNU Kratovil, FNU Lancot, FNU Lemay, FNU O’Brien, FNU
Picone, FNU Rubio, Michael Shaw, FNU Sisk, FNU Smith, and FNU
Williams.
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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), 1915A(b)(1); Fed. R. Civ. P. 12(h)(3). 	As the
plaintiff has filed this action pro se, the court construes his
pleadings liberally. 	See Erickson v. Pardus, 551 U.S. 89, 94
(2007).
Background
Plaintiff, a prisoner, alleges that a nurse at the New
Hampshire State Prison (“NHSP”) sexually assaulted him over the
course of five and a half years, beginning in January 2013. 	Mr.
Covington alleges that the sexual assaults occurred nights when
he was in the NHSP Health Services Center performing work he was
authorized to do, and the nurse was working alone.
Defendants are the NHSP Warden and twenty corrections
officers who plaintiff alleges failed to ensure that he was not
left unsupervised with the nurse on the nights when they were on
duty. 2 	Mr. Covington specifically alleges that two of the
defendant officers slept during their shifts.
2 Mr. Covington is presently suing the nurse in a separate
case that has been construed to invoke the court’s jurisdiction
under 28 U.S.C. § 1343(a), see Covington v. Paris, No. 19-cv-
334-JD (D.N.H.).
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Discussion
I. 	Claims against Warden
Plaintiff names the NHSP Warden in the case caption, but
none of his allegations assert any facts regarding what the
Warden did or failed to do that resulted in the alleged
assaults. 	To the extent plaintiff has named the Warden based on
a theory of vicarious liability, respondeat superior is
unavailable in the context of claims asserted under 42 U.S.C.
§ 1983. 	See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). 	Mr.
Covington has failed to state any federal claim upon which
relief can be granted against the NHSP Warden in this case.
Accordingly, the district judge should dismiss any federal claim
Mr. Covington intended to assert against the Warden in this
action.
II. 	Claims against Remaining Defendants
Mr. Covington characterizes all of his claims against the
defendant corrections officers as negligence claims. 	At a
minimum, to state a constitutional tort or other civil rights
claim upon which relief can be granted pursuant to 42 U.S.C.
§ 1983, the plaintiff must allege facts showing that the
defendant possessed a purposeful, knowing, or reckless state of
mind, as “‘liability for negligently inflicted harm is
categorically beneath the threshold of constitutional due
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process.’” 	Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472
(2015) (emphasis in original, citation omitted). 	The complaint
here fails to assert facts alleging any acts or omissions of the
defendants more culpable than negligence. 	Accordingly,
plaintiff has failed to state any actionable federal civil
rights claim against those defendants, and the district judge
should dismiss any such claims on that basis.
III. Dismissal of State Claims without Prejudice
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 Mr. Covington’s failure to state any
claim upon which this court may exercise its original
jurisdiction against any of the named defendants, the district
judge should dismiss the complaint, without prejudice to Mr.
Covington’s ability to refile his common law negligence claims
in a state court of competent jurisdiction.
Conclusion
For the foregoing reasons, the district judge should
dismiss Mr. Covington’s complaint without prejudice to his
ability to file his tort claims against the named defendants in
a state court of competent jurisdiction. 	Any objections to this
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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 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).
________________________________
Andrea K. Johnstone
United States Magistrate Judge
September 10, 2020
cc: 	James Covington, pro se
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