Beaulieu v. NH Department of Corrections, Commissioner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Christopher Beaulieu
v. Civil No. 15-cv-012-JD
Cpl. Craig Orlando et al.1
REPORT AND RECOMMENDATION
Plaintiff Christopher “Crystal” Beaulieu, an inmate in the
custody of the New Hampshire Department of Corrections (“DOC”)
presently housed at the New Hampshire State Prison (“NHSP”) has
filed a motion (Doc. No. 55) seeking to amend the complaint in
this matter. The motion is before this court for a
recommendation as to disposition.
Motion to Amend Standard
Federal Rule of Civil Procedure 15(a)(2) provides that a
party who is no longer able to amend the complaint as of right
may amend only with the court’s leave, and that “[t]he court
1The defendants presently in this action are the following
New Hampshire State Prison employees: Craig Orlando, Christopher
Ziemba, Michael Shaw, Ernest Orlando, Barbara Slayton, Kevin
Stevenson, and Paul Cascio. If this Report and Recommendation
is approved, new parties Paige Kimball, Douglas Bishop, and
Matthew Rodier will be joined as defendants.
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should freely give leave when justice so requires.” Fed. R.
Civ. P. 15(a)(2). Where a proposed amendment seeks to add a new
party, that request is “‘technically governed by Rule 21, which
provides that the court may at any time, on just terms, add or
drop a party . . . .’” Gigunda Group, Inc. v. Creative
Collective Group, No. 15-cv-104-LM, 2015 WL 6872281, at *1, 2015
U.S. Dist. LEXIS 151771, at *4 (D.N.H. Nov. 9, 2015) (citation
omitted). “‘[T]he same standard of liberality applies under
either [Rule 15(a) or 21].’” Id. (citation omitted). “[A]
district court may deny leave to amend when the request is
characterized by undue delay, bad faith, futility, or the
absence of due diligence on the movant’s part.” Nikitine v.
Wilmington Tr. Co., 715 F.3d 388, 390 (1st Cir. 2013) (internal
quotation marks and citations omitted).
Background
The following claims have been served on the appropriate
defendants and are presently pending in this matter:
1. NHSP officers Craig Orlando and Christopher Ziemba
used excessive force against Beaulieu on March 7, 2012, in
violation of Beaulieu’s Eighth Amendment right not to be
subject to cruel and unusual punishment.
2. NHSP officers Craig Orlando and Christopher Ziemba are
liable to Beaulieu for the state law tort of assault and
battery for the use of force they exerted against Beaulieu
on March 7, 2012.
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3. NHSP officers Ernest Orlando and Michael Shaw are
liable to Beaulieu for the state law tort of negligent
supervision, for their failure to adequately supervise
defendants Craig Orlando and Christopher Ziemba on March 7,
2012, resulting in those defendants’ commission of the tort
of assault and battery on Beaulieu.
4. NHSP officials Barbara Slayton, Paul Cascio, and Kevin
Stevenson, were deliberately indifferent to a significant
risk of serious harm to Beaulieu on April 18 and 30, 2014,
when, knowing that Beaulieu had been sexually assaulted by
another inmate, Matthew Rodier,2 those individuals failed to
separate Beaulieu from Rodier, resulting in Rodier
threatening Beaulieu, forcing Beaulieu to recant her
allegation of sexual assault, and further resulting in
Rodier sexually assaulting Beaulieu again.
Beaulieu, in her complaint amendment, asserts the following
additional claims in this matter:
5. NHSP Cpl. Paige Kimball acted with deliberate
indifference to a significant risk of serious harm to
Beaulieu, in violation of Beaulieu’s Eighth Amendment
rights, on April 18, 2014, when Kimball, who was the
individual responsible for the direct supervision of the
inmates/patients on F-Ward in SPU, failed to separate
Beaulieu and Rodier, allowing Rodier sufficient access to
Beaulieu to enable Rodier to threaten Beaulieu and coerce
Beaulieu to recant her allegation that Rodier had sexually
assaulted her.
6. Former NHSP Corrections Officer (“C.O.”) Douglas
Bishop acted with deliberately indifference to a
significant risk of serious harm to Beaulieu, in violation
of Beaulieu’s Eighth Amendment rights, on April 30, 2014,
when Bishop, who was the individual responsible for the
direct supervision of the inmates/patients on F-Ward in
2Although Beaulieu asserts that Rodier is a former NHSP
inmate, the DOC website’s inmate locator indicates that Rodier
is presently incarcerated at the NHSP. See
http://business.nh.gov/inmate_locator/default.aspx (last viewed
Nov. 22, 2016).
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SPU, failed to separate Beaulieu and Rodier, allowing
Rodier sufficient access to Beaulieu to enable Rodier to
sexually assault Beaulieu.
7. NHSP inmate Matthew Rodier committed the intentional
torts of assault and battery under New Hampshire law when he
sexually assaulted Beaulieu on one occasion prior to April 18,
2014, and again on April 30, 2014.
8. NHSP Sgt. Eric Barbaro is liable to Beaulieu for the
state law tort of negligent supervision of NHSP officers
Kimball and Bishop on April 18 and 30, 2014, in that, while
under Barbaro’s direct supervision, Kimball and Bishop
breached their duty to protect Beaulieu from harm.
9. Former DOC Director of Medical and Forensic Services
Helen Hanks violated Beaulieu’s rights by failing to
adequately supervise Barbaro, Kimball, and Bishop on April
18 and 30, 2014.
10. DOC Commissioner William Wrenn violated Beaulieu’s
rights by failing to adequately supervise and/or train
Hanks, Barbaro, Kimball, and Bishop on April 18 and 30,
2014.
11. New Hampshire Governor Margaret Hassan violated
Beaulieu’s rights by failing to adequately supervise Wrenn
or the DOC on April 18 and 30, 2014.
12. DOC Social Worker Barbara Slayton failed to provide
Beaulieu with any mental health care or treatment after
Beaulieu was sexually assaulted on April 18 and 30, 2014,
thereby acting with deliberate indifference to Beaulieu’s
serious medical need for mental health treatment, in
violation of Beaulieu’s Eighth Amendment rights.
13. DOC Investigations Unit Sgt. Joel A. Dinsmoor, the
main investigator assigned to investigate Beaulieu’s April
18, 2014, accusation of sexual assault against Rodier,
failed to adequately investigate the allegations, in
violation of the Prison Rape Elimination Act (“PREA”) and
DOC policy.
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14. DOC PREA Victim Advocate Jean E. Carroll acted
callously in regard to Beaulieu’s April 2014 accusations of
sexual assault, in violation of DOC policy and PREA.
15. DOC Investigations Unit Director Colon K. Forbes
failed to adequately supervise or train Dinsmoor, in
violation of DOC policy, resulting in Dinsmoor’s inadequate
investigation of Beaulieu’s April 2014 accusations of
sexual assault.
Discussion
I. Claims 5-7
A. Individual Capacity Claims 5-6 and Claim 7 May Proceed
The claims identified in this Report and Recommendation as
Claims 5, 6, and 7 are sufficiently stated to allow them to
proceed against the following defendants, to the extent those
defendants are sued in their individual capacities: Claim 5,
asserted against defendant NHSP Cpl. Paige Kimball; Claim 6,
asserted against former NHSP C.O. Douglas Bishop, and Claim 7,
asserted against NHSP inmate Matthew Rodier. Accordingly, the
motion to amend (Doc. No. 55) should be granted, in part, to the
extent it seeks to add Claims 5-7, as identified in this R&R, to
this action, to the extent those claims are asserted against
Kimball and Bishop in their individual capacities, and Rodier.
B. Official Capacity Claims Should Not Be Added
Beaulieu also asserts those claims against Kimball and
Bishop in their official capacities. Official capacity claims
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against state corrections officials are generally barred by the
Eleventh Amendment, except where the state’s immunity has been
waived or abrogated, or where plaintiffs seek prospective
injunctive relief. See Bergemann v. R.I. Dep’t of Envtl. Mgmt.,
665 F.3d 336, 339 (1st Cir. 2011); Colon-Rivera v. Asociacion de
Suscripcion Conjunta del Seguro de Responsabilidad Obligatorio,
451 F. App’x 5, 8 (1st Cir. 2011). Congress did not abrogate
the state’s Eleventh Amendment immunity through § 1983, and New
Hampshire has not waived its immunity. Further, Beaulieu has
not sought prospective injunctive relief against Kimball or
Bishop. Therefore, Beaulieu’s motion to amend (Doc. No. 55)
should be denied, in part, to the extent it seeks to add
official capacity claims against Kimball and Bishop.
II. Supervisory Defendants (Claims 8-11 and 15)
In the claims identified as Claims 8 – 11 and 15 above,
Beaulieu asserts claims against various DOC officials and the
Governor of New Hampshire, in their capacities as supervisors of
other individuals named as defendants in the motion to amend
(Doc. No. 55). In general, supervisory liability under 42
U.S.C. § 1983 lies only where “an affirmative link between the
behavior of a subordinate and the action or inaction of his
supervisor exists such that the supervisor’s conduct led
inexorably to the constitutional violation.” Maldonado v.
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Fontanes, 568 F.3d 263, 275 (1st Cir. 2009) (internal quotation
marks and citation omitted). Beaulieu has not alleged facts
that demonstrate an affirmative link between the acts or
omissions of any of the supervisors named, and the conduct of
those under their supervision that is alleged to have resulted
in violations of Beaulieu’s rights. Accordingly, Beaulieu has
not stated sufficient facts to support supervisory liability
against those individuals for any federal constitutional
violations. Further, to the extent Beaulieu intends to sue the
supervisory defendants for negligent supervision under New
Hampshire law, her allegations, stripped of legal conclusions,
are insufficient to assert negligent supervision or negligent
training claims. For these reasons, the motion to amend (Doc.
No. 55) should be denied, in part, to the extent it seeks to add
Claims 8-11 and 15 to this action.
III. Claims Asserted Under PREA and DOC Policy (Claims 13 & 14)
Beaulieu asserts that defendants Carroll and Dinsmoor
violated her rights by failing to properly or adequately
investigate her claims of sexual assault which, Beaulieu
alleges, violated sexual assault investigation procedures
established by PREA and by DOC policy. PREA, however, does not
provide Beaulieu with a private right of action. See Saunders
v. Pelkie, No. 15–CV–0225–JD, 2015 WL 4634949, at *1, 2015 U.S.
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Dist. LEXIS 101067, at *2–*3 (D.N.H. June 26, 2015), R&R
adopted, 2015 WL 4628734, at *1, 2015 U.S. Dist. LEXIS 102715
(D.N.H. July 31, 2015). Further, an inmate does not have a
right of action arising out of any defendant’s failure to follow
prison policy. See McFaul v. Valenzuela, 684 F.3d 564, 579 (5th
Cir. 2012) (“An assertion that prison officials failed to follow
prison rules or policies does not set forth a constitutional
claim.”); see also Querido v. Wall, No. 10-098 ML, 2010 WL
5558915, at *3, 2010 U.S. Dist. LEXIS 139201, at *8-*9 (D.R.I.
Dec. 8, 2010), R&R adopted, 2011 WL 63503, at *1, 2011 U.S.
Dist. LEXIS 1882 (D.R.I. Jan. 7, 2011). Accordingly, the
district judge should deny the motion to amend (Doc. No. 55), in
part, to the extent it seeks to add the claims identified above
as Claims 13 and 14 to this action.
IV. Claim Asserting Denial of Mental Health Care (Claim 12)
Beaulieu alleges that her social worker at the NHSP,
Barbara Slayton, violated Beaulieu’s Eighth Amendment right to
adequate mental health care by failing to provide Beaulieu with
mental health treatment on April 18 or 30, 2014 after Beaulieu
alleged she had been sexually assaulted by Rodier. “[T]o prove
an Eighth Amendment violation, a prisoner must satisfy both of
two prongs: (1) an objective prong that requires proof of a
serious medical need, and (2) a subjective prong that mandates a
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showing of prison administrators’ deliberate indifference to
that need.” Kosilek v. Spencer, 774 F.3d 63, 82 (1st Cir.
2014), cert. denied, 135 S. Ct. 2059 (2015).
Beaulieu’s allegations are only that, on two particular
dates, one individual failed to provide her with mental health
care. Even assuming that Beaulieu could demonstrate a serious
medical need for mental health care, the facts asserted do not
demonstrate that Slayton, or any other individual, failed to
provide Beaulieu with mental health treatment with the knowledge
that doing so on two particular dates would result in serious
harm to Beaulieu. Accordingly, the district judge should deny
the motion to amend (Doc. No. 55), in part, to the extent it
seeks to add Claim 12 to this action.
Conclusion
For the foregoing reasons, the district judge should grant
the motion to amend (Doc. No. 55), in part, to the extent it
seeks to add the individual capacity claims identified above as
Claims 5-7, and seeks to join new defendants Paige Kimball,
Douglas Bishop, and Matthew Rodier to this action. The district
judge should otherwise deny the motion to amend (Doc. No. 55).
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
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R. Civ. P. 72(b)(2). Failure to file objections within the
specified time waives the right to appeal the district court’s
order. See Garayalde-Rijos v. Mun. of Carolina, 747 F.3d 15,
21-22 (1st Cir. 2014).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
November 28, 2016
cc: Christopher R. Beaulieu, pro se
Laura E.B. Lombardi, Esq.
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