Wescott v. Martin

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Richard R. Wescott
v. 	Case No. 21-cv-853-PB
Dr. Wendy Martin, Chief of
Psychiatric Services,
Secure Psychiatric Unit,
New Hampshire State Prison
REPORT AND RECOMMENDATION
Plaintiff, Richard Wescott, has filed a complaint (Doc. No.
1) pursuant to 42 U.S.C. § 1983, alleging that he has been
denied adequate care for his mental illnesses during the twenty-
three years he has been incarcerated at the New Hampshire State
Prison (“NHSP”), in violation of the Eighth Amendment, and that
the defendant, Dr. Wendy Martin, the Chief of Psychiatric
Services at the NHSP’s Secure Psychiatric Unit (“SPU”), intends
to retaliate against him for litigating this action by removing
him from the SPU, in violation of the First Amendment. 	The
complaint is before the Court for preliminary review pursuant to
28 U.S.C. § 1915A(a) and LR 4.3(c)(1).
In his complaint, Mr. Wescott seeks a preliminary
injunction preventing Dr. Martin from transferring him out of
the SPU. 	The District Judge has referred the request for a
preliminary injunction to the undersigned Magistrate Judge for a
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Report and Recommendation (“R&R”) as to disposition. 	See Oct.
26, 2021 Order.
Background
Mr. Wescott asserts that he has significant mental
illnesses, including Post-Traumatic Stress Disorder (“PTSD”) and
Major Depressive Disorder, which have arisen from his military
service and other traumatic events and experiences in his life.
Mr. Wescott claims that he has not been adequately treated for
his mental illnesses, particularly his PTSD, in the twenty-three
years he has been incarcerated at the NHSP. 	Mr. Wescott asserts
that he has made two unsuccessful suicide attempts in the last
year, on December 25, 2020 and July 17, 2021, and that if he
were to be transferred out of the SPU, it is likely he would
again attempt suicide.
Recently, Mr. Wescott began to collect information,
including “a good portion of his mental health records for the
past 2 years,” Doc. No. 1, at 2, which he intends to utilize to
prosecute the Eighth Amendment claim asserted in this lawsuit.
Mr. Wescott asserts that the psychiatric staff at the SPU is
aware that he is preparing to bring this action. 	Mr. Wescott
states that, just before filing this action, a SPU staff member
told him that Dr. Martin had been overheard “talking about
getting the plaintiff out of SPU, saying that if he is well
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enough to litigate he does not need to be [in SPU].” 	Id. at 2-
3. 	Mr. Wescott believes that if Dr. Martin attempts to move him
out of the SPU, her actions would be made in retaliation for his
intent to bring suit concerning his mental health care at the
prison.
Mr. Wescott says that his direct provider at the SPU is Dr.
Knight. 	Mr. Wescott states that Dr. Knight has attempted to
assure him that he will not be moved out of the SPU, and Mr.
Wescott believes that Dr. Knight does not intend to move him out
of the SPU. 	Mr. Wescott is concerned, however, based on Dr.
Martin’s statement, that she will exercise her authority to
change his provider in order to have Mr. Wescott removed from
the SPU. 	Mr. Wescott is afraid that if he is removed from the
SPU, he will take his own life, and will also pose a risk to
others, as the inadequacy of his treatment has left him
emotionally unable to handle being housed in general population.
Preliminary Review
I. 	Standard
The court conducts a preliminary review of prisoner
complaints seeking relief from government agents. 	See 28 U.S.C.
§ 1915A(a); LR 4.3(d)(1). 	In considering whether a prisoner’s
complaint states a claim, the court construes the pleading
liberally. 	See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
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curiam). 	The court then determines whether, stripped of legal
conclusions, and with all reasonable inferences construed in
plaintiff’s favor, the complaint contains “sufficient factual
matter, accepted as true, to ‘state a claim to relief.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
The court may dismiss claims, sua sponte, 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. § 1915A(b); LR 4.3(d)(1)(A).
II. 	Exhaustion
Prisoners may not bring lawsuits against prison officials
until they have fully exhausted all of the administrative
remedies available to them at the prison. 	See 42 U.S.C.
§ 1997(e). 	That exhaustion requirement is an affirmative
defense, which, in general, means that the defendants bear the
burden to prove that a prisoner has failed to fully exhaust his
available administrative remedies prior to bringing a lawsuit.
See Jones v. Bock, 549 U.S. 199, 214-215 (2007). 	However,
“‘when a prisoner states in his pleadings that he has not
exhausted his administrative remedies, a dismissal sua sponte
for failure to exhaust is appropriate.’” 	Negron-Cruz v.
Almodovar, No. CV 19-2126 (PG), 2020 WL 762217, at *2, 2020 U.S.
Dist. LEXIS 26493, at *5 (D.P.R. Feb. 14, 2020) (citation
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omitted); see also Lax v. Corizon Med. Staff, 766 F. App’x 626,
628 (10th Cir. 2019) (district court may sua sponte dismiss a
prisoner complaint for failure to exhaust administrative
remedies in the rare case where the complaint, on its face,
demonstrates plaintiff’s failure to exhaust); Custis v. Davis,
851 F.3d 358, 361 (4th Cir. 2017) (“court may sua sponte dismiss
a complaint when the alleged facts in the complaint, taken as
true, prove that the inmate failed to exhaust his administrative
remedies.”). 	Cf. Gray v. Evercore Restructuring L.L.C., 544
F.3d 320, 324 (1st Cir. 2008) (dismissing action on basis of
affirmative defense asserted under Fed. R. Civ. P. 12(b)(6)
is permissible if facts alleged in complaint, or
matters susceptible of judicial notice, conclusively establish
elements of affirmative defense).
The New Hampshire Department of Corrections (“DOC”) employs
a three-step administrative remedy procedure. 	See Stow v.
McGrath, No. 17-cv-088-LM, 2021 U.S. Dist. LEXIS 59384, at *26-
*27, 2021 WL 1178303, at *9 (D.N.H. Mar. 29, 2021), appeal
filed, No. 21-1400 (1st Cir. May 24, 2021). 	That procedure
includes: a first level written request made to the lowest-
ranking DOC staff member with the authority to address the
request, a second level grievance to the warden of the facility
where the grievant is incarcerated, and a third level grievance
to the DOC Commissioner. 	See id.
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Here, Mr. Wescott states that, as to his inadequate
psychiatric care claims, he has filed “nearly a dozen requst
[sic] slips that have gone unanswered, and has now begun the
second stage, the grievance process.” 	Compl. (Doc. No. 1), at
2. 	Mr. Wescott’s own allegations, therefore, show that at the
time he filed this action, he had not yet completed the DOC’s
three-step administrative remedy process as to those claims.
Further, Mr. Wescott’s indication that he is currently engaged
in the exhaustion process indicates that the DOC’s
administrative remedy procedures are available to him. 	Finally,
Mr. Wescott states that his retaliation claim is based on a
statement made to him “moments” before he wrote the complaint in
this action, which makes it unlikely that he was able to begin,
and nearly impossible that he was able to complete, the DOC’s
administrative remedy procedures as to that claim prior to
bringing this lawsuit.
The face of Mr. Wescott’s complaint demonstrates
conclusively that he has failed to complete the administrative
remedy process available to him at the prison. 	Accordingly, the
District Judge should dismiss the complaint, in its entirety,
without prejudice to Mr. Wescott’s ability to bring this suit
after he has fully exhausted the administrative procedures
available to him at the DOC for each of his claims.
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Preliminary Injunction
I. 	Standard
To obtain preliminary injunctive relief, a movant “‘must
establish that he is likely to succeed on the merits,” of his
underlying claims, “that he is likely to suffer irreparable harm
in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the
public interest.’” 	Glossip v. Gross, 576 U.S. 863, 876 (2015)
(citation omitted). 	The likelihood of success and irreparable
harm are the factors that weigh most heavily in the
analysis. 	See Esso Std. Oil Co. v. Monroig–Zayas, 445 F.3d 13,
18 (1st Cir. 2006); see also Voice of the Arab World, Inc. v.
MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011).
“‘[P]erhaps the single most important prerequisite for the
issuance of a preliminary injunction is a demonstration that if
it is not granted the applicant is likely to suffer irreparable
harm before a decision on the merits can be rendered.’” 	Voice
of the Arab World, 645 F.3d at 32 (quoting 11A C. Wright, A.
Miller & M. Kane, Federal Practice & Procedure § 2948, at 129
(2d ed. 1995)). 	“A finding of irreparable harm must be grounded
on something more than conjecture, surmise, or a party’s
unsubstantiated fears of what the future may have in store.”
Charlesbank Equity Fund II, Ltd. P’ship v. Blinds To Go, Inc.,
370 F.3d 151, 162 (1st Cir. 2004).
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II. 	Likelihood of Success on the Merits
As discussed above, Mr. Wescott’s complaint makes clear
that he failed to completely exhaust his administrative remedies
prior to filing this action. 	He therefore has failed to state
any claim upon which relief might be granted and cannot
demonstrate that he is likely to succeed on the merits of his
claims in this lawsuit. 	See Green Haven Prison Preparative
Meeting of Religious Soc’y of Friends v. N.Y. State Dep’t of
Corr. & Cmty. Supervision, Docket No. 20-18-pr, 2021 U.S. App.
LEXIS 31091, at *23-*30, 2021 WL 4824127, at *8-*10 (Oct. 18,
2021) (claims for preliminary injunctive relief were properly
denied where plaintiffs were unable to demonstrate likelihood of
success on the merits of their claims, in part because they
failed to exhaust their administrative remedies or demonstrate
that they qualified for exception to the exhaustion
requirement).
III. Irreparable Harm
Even if Mr. Wescott were able to demonstrate that he was
likely to succeed on the merits of any of his claims, he has
failed to assert sufficient facts to demonstrate that he will be
irreparably harmed if the court denies his request for a
preliminary injunction. 	Mr. Wescott alleges that he will suffer
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irreparable harm if he is removed from the SPU, as he believes
such a transfer will place him at high risk of committing
suicide. 	Assuming Dr. Martin did state, as Mr. Wescott was
told, that he does not need to be in the SPU if he is well
enough to litigate this case, the complaint does not contain any
facts to demonstrate that he is actually at any imminent risk of
such transfer. 	Mr. Wescott alleges that his current mental
health care provider, Dr. Knight, is not going to have him
transferred out of the SPU, and that Dr. Knight has responded to
Mr. Wescott’s transfer concerns by assuring him that he will not
be transferred out of the unit. 	While Mr. Wescott fears Dr.
Martin may exercise her authority to change his provider, he has
not asserted facts to indicate that she has taken any step, or
actually intends, to do so.
Mr. Wescott has therefore failed to demonstrate that he is
in any immediate danger of irreparable harm if the court denies
his request for an injunction. 	Accordingly, as Mr. Wescott has
demonstrated neither a likelihood of success on the merits nor
irreparable harm in the absence of injunctive relief, the
District Judge should deny his request for a preliminary
injunction.
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Conclusion
For the foregoing reasons, the District Judge should deny
Mr. Wescott’s request for preliminary injunctive relief and
dismiss the complaint, without prejudice to Mr. Wescott’s
ability to file a new complaint after he completes the process
of exhausting his available DOC administrative remedies. 	Any
objections to this R&R 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 this R&R 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
November 9, 2021
cc: 	Richard R. Wescott, pro se
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