Robie v. NH Department of Corrections, Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Krystal V.-M. Robie1
v. Civil No. 22-cv-007-JL
New Hampshire Department
of Corrections Commissioner et al.
REPORT AND RECOMMENDATION
Pro se plaintiff Krystal V.-M. Robie filed a civil rights
complaint (Doc. No. 1), under 42 U.S.C. § 1983, against the
Commissioner of the New Hampshire Department of Corrections
(“DOC”) and other DOC employees.2 The complaint has been referred
to the undersigned Magistrate Judge 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 conducts preliminary review of complaints filed
by pro se prisoners seeking relief from government agents. See
1 The plaintiff, Krystal V.-M. Robie, is a transgender woman
who uses she/her/hers pronouns.
2 When Ms. Robie filed her complaint in 2022, she was
incarcerated at the Strafford County Department of Corrections.
The incidents that are the basis for her claims, however,
occurred in 2020, and Ms. Robie does not identify the
institution where she was incarcerated at that time. Based on
the officers she names as defendants, and the unit names
identified in the complaint, it appears that the incidents
occurred at the New Hampshire State Prison.
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28 U.S.C. § 1915A(a); LR 4.3(d)(1). Claims may be dismissed 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). In considering whether the complaint states a
claim, the court determines whether, stripped of legal
conclusions, and with all reasonable inferences construed in the
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 construes pro se pleadings liberally. See De Paula
Vieira v. De Souza, 22 F.4th 304, 311 (1st Cir. 2022).
Background
Ms. Robie alleges that in March 2020, she was housed in the
Medium Custody South Unit (“MCS”) (presumably at the New
Hampshire State Prison) when a corrections officer, Sgt. Eric
Stone, moved her to “1-D Pod” in the MCS, where Kevin Laurent
was also housed. Ms. Robie alleges that staff knew that Mr.
Laurent was preying on transgender prisoners but, nevertheless,
housed her with Mr. Laurent. She alleges she was sexually
assaulted by Mr. Laurent and reported the assault. In response,
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DOC Investigator Todd Phelps began an investigation of the
incident pursuant to the Prison Rape Elimination Act (“PREA”).
On 1-D Pod, the prisoners have imposed a “buddy companion”
system whereby a prisoner who meets with a unit security officer
is accompanied by another prisoner. Ms. Robie further alleges
that prison employees are aware of the “buddy companion” system
and did nothing to stop it. Ms. Robie states that when she met
with Investigator Phelps she was accompanied by another
prisoner, and for that reason told Investigator Phelps she had
nothing to say about the sexual assaults by Mr. Laurent she had
previously reported. Without a statement from Ms. Robie, Mr.
Laurent continued to be housed on 1-D Pod. Ms. Robie further
alleges that the meeting with Investigator Phelps put her safety
at risk because inmates called her a snitch and stole her
property.
Ms. Robie alleges that she tried to move off of 1-D Pod
without success. She alleges that the 1-D Pod staff knew she was
being frequently sexually assaulted by another prisoner, Jon
King, but did nothing to stop those assaults, and refused to
move her into protective custody or transfer her out of 1-D Pod.
In May 2020, Ms. Robie alleges she was raped by eight prisoners
while she was intoxicated on drugs, which she took because
another prisoner had threatened her with harm if she refused.
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Ms. Robie alleges that conditions on 1-D Pod endangered her
safety because staff members were allowed to sleep in the
control room, and therefore were not monitoring what was
happening on the units. She also alleges that staff allowed the
prisoners to run 1-D Pod.
Ms. Robie alleges that officers on 1-D Pod knew that she
previously had filed lawsuits against prison officers, and made
it difficult for her to transfer to another pod because of her
previous litigation. The officers told her that they did not
like that she engaged in such litigation, and that her time
would be easier if she stopped filing complaints. She alleges
that the officers, in retaliation for her previous litigation,
endangered her safety by labelling her as a snitch or causing
her to be labelled as a snitch, and by charging her with
disciplinary offenses in order to have her security status
upgraded.
Claims
Ms. Robie states that prison staff violated her rights
under the First and Eighth Amendments, and were negligent in
failing to protect her from harm. Accordingly, she asserts the
following claims:
1. Between March 2020 and May 2020, Investigator Todd
Phelps, Lt. James Brown, Capt. Gary Burke, Sgt. Eric Stone,
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Corrections Officer (“CO”) J. Christie, PREA Victim
Advocate Jean Carroll, and an unnamed second shift officer
(“CO John Doe”), violated Ms. Robie’s Eighth Amendment
rights when they failed to protect her from harm, in that
they:
a. placed Ms. Robie on a unit with Kevin Laurent,
who they knew was a predator who targeted transgender
prisoners, thus allowing her to be sexually assaulted
by Mr. Laurent;
b. failed to stop other prisoners from interfering
with Ms. Robie’s ability to make a statement to
support her report of having been sexually assaulted
by Kevin Laurent, when she was accompanied to her
meeting with Investigator Phelps by another prisoner
because of the prisoner-created “buddy companion”
system, of which the defendants were aware;
c. failed to prevent other prisoners from stealing
Ms. Robie’s property and labelling her as a snitch, in
retaliation for her attempt to report having been
sexually assaulted by Kevin Laurent;
d. failed to prevent Ms. Robie from being repeatedly
sexually assaulted by Jon King;
e. failed to prevent Ms. Robie from being raped by
eight prisoners (other than Kevin Laurent and Jon
King);
f. failed to adequately monitor prisoners on 1-D pod
by allowing prisoners to “run” that pod, and by
sleeping while on duty; and
g. refused to grant Ms. Robie protective custody or
allow her to transfer out of 1-D Pod.
2. Between March 2020 and May 2020, Lt. James Brown,
Capt. Gary Burke, Sgt. Eric Stone, and Investigator Todd
Phelps, in engaging in the conduct summarized in Claims
1(a)-(g), were negligent in failing to protect Ms. Robie
from the harm she alleges resulted from the conduct
summarized in Claims 1(a)-(g).
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3. Lt. James Brown, Capt. Gary Burke, and Sgt. Eric Stone
violated Ms. Robie’s First Amendment rights in that they
retaliated against her because of her litigation against
prison officers by:
a. not granting her “protective custody” or allowing
her to be transferred off of 1-D Pod; and
b. charging Ms. Robie with disciplinary offenses,
and/or having others charge Ms. Robie with
disciplinary offenses, in order to have her security
status upgraded.
Discussion
I. DOC Commissioner Helen Hanks
Although Ms. Robie lists DOC Commissioner Helen Hanks in
the complaint as a defendant, she asserts no allegations against
Commissioner Hanks. For that reason, Ms. Robie has not stated a
cognizable claim against Commissioner Hanks, and the District
Judge should dismiss Commissioner Hanks from this case.
II. Failure to Protect Claims
A. Eighth Amendment (Claims 1(a)-(g))
The Eighth Amendment “‘protect[s] prisoners from violence
at the hands of other prisoners.’” Farmer v. Brennan, 511 U.S.
825, 832 (1994) (citation omitted). To state an Eighth Amendment
failure to protect claim, the plaintiff must allege facts to
show that a situation existed that posed a “substantial risk of
serious harm” to the plaintiff and that the defendants were
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deliberately indifferent to that risk. Norton v. Rodrigues, 955
F.3d 176, 185 (1st Cir. 2020). A substantial risk of harm must
be an objectively intolerable risk, such as when there is a
“‘strong likelihood that violence would occur.’” Elwell v.
Correia, 585 F. Supp. 3d 163, 166 (D.N.H. 2022) (quoting Purvis
v. Ponte, 929 F.2d 822, 825 (1st Cir. 1991)). Deliberate
indifference requires facts that show the defendant knew of the
substantial risk of harm and disregarded the risk. See Elwell,
585 F. Supp. 3d at 166 (quoting Purvis, 929 F.2d at 825).
In Claims 1(a)-(g), Ms. Robie alleges that the officers
identified in this Report and Recommendation (“R&R”) as
defendants to that claim, knew of the substantial risk of
serious harm to her that existed on 1-D Pod, but failed to
protect her from such harm, which resulted in, among other
things, several incidents of sexual assault against her and her
inability to make a statement to support her sexual assault
allegations against Mr. Laurent due to the “buddy companion”
system. Ms. Robie alleges sufficient facts to survive
preliminary review as to Claims 1(a)-(g). In an order issued
this date, the court has directed service of Claims 1(a)-(g) on
the defendants named in that claim.
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B. Negligence (Claims 3(a)-(b))
To state a claim for negligence under New Hampshire law,
the plaintiff must allege facts to “‘show that the defendant
owes a duty to the plaintiff and that the defendant’s breach of
that duty caused the plaintiff’s injuries.’” Sacco v. Am.
Institutional Med. Grp., 609 F. Supp. 3d 22, 50 (D.N.H. 2022)
(quoting Christen v. Fiesta Shows, Inc., 170 N.H. 372, 375, 173
A.3d 162 (2017)). In the prison context, a prison officer has a
duty to prevent prisoners from injuring other inmates if the
officer knows of a risk of injury or “kn[ows] facts that would
lead a reasonable person so to believe,” and the officer’s
“reckless disregard for the prisoner’s safety proximately caused
harm to the inmate.” Crosby v. Dowaliby, Civil No. 12-cv-383-SM,
2013 U.S. Dist. LEXIS 67760, at *13, 2013 WL 1975360, at *5
(D.N.H. Apr. 22, 2013) (citing Murdock v. City of Keene, 137
N.H. 70, 73 (1993)), R&R approved sub nom., Crosby v. Strafford
Cty. Dep’t of Corr., Superintendent, 2013 U.S. Dist. LEXIS
69254, at *1, 2013 WL 1975359, at *1 (D.N.H. May 10, 2013).
In Claims 3(a)-(b), Ms. Robie asserts negligence claims
against defendants Lt. Brown, Capt. Burke, Sgt. Stone, and
Investigator Phelps, based on their conduct summarized in this
R&R as Claims 1(a)-(g). Claims 3(a)-(b) are sufficiently stated
to survive preliminary review. In an Order issued this date,
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the Court directs service of Claims 3(a)-(b) against those
defendants.
III. First Amendment Retaliation Claim (Claim 2)
The First Amendment protects prisoners from retaliation by
prison employees for prisoners’ engagement in activities
protected by the First Amendment, including bringing litigation
about prison conditions. See Hannon v. Beard, 645 F.3d 45, 48
(1st Cir. 2011). To state a retaliation claim, a prisoner must
allege facts that show she “engaged in a protected activity,
that the state took an adverse action against [her], and that
there is a causal link between the former and the latter.” Id.
Ms. Robie alleges that the individuals identified as
defendants to Claim 2 told her that they did not like that she
had brought lawsuits against the prison and prison officers, and
that her time in prison would be easier if she stopped filing
complaints. She further alleges that the defendants would not
allow her to move off of 1-D Pod, and wrote her up for
disciplinary offenses, in an effort to get her security status
upgraded, because of her litigation. Ms. Robie has alleged
sufficient facts as to Claim 2 to survive preliminary review. In
an order issued this date, the court has directed service of
Claim 2 on the defendants named in that claim.
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Conclusion
For the foregoing reasons, the District Judge should
dismiss all claims against DOC Commissioner Helen Hanks, and
dismiss her from this action. In an Order issued this date, the
Court directs service of the complaint on the other defendants
identified in the complaint.
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 by motion. Only those
issues raised in the objection to this R&R are subject to review
in the district court. See Sch. Union No. 37 v. United Natl Ins.
Co., 617 F.3d 554, 564 (1st Cir. 2010). Any issues not preserved
by such objection(s) are precluded on appeal. See id. Failure to
file any 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
June 28, 2023
cc: Krystal V.-M. Robie, pro se.
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