Collins v. FCI Berlin, Warden et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Darrell Collins
v. 	Case No. 18-cv-1109-PB
FCI Berlin Warden, et al.
REPORT AND RECOMMENDATION
Darrell Collins, who was an inmate at the Federal
Correctional Institution in Berlin, New Hampshire, and is
proceeding pro se, filed a complaint alleging civil rights
violations by Robert Hazelwood, who is the Warden of FCI Berlin,
and fourteen corrections officers. 	The defendants filed a
combined motion to dismiss and motion for summary judgment (doc.
no. 31). 	Collins also filed a complaint addendum (doc. no. 46),
which names an additional five prison employees as defendants.
For the reasons that follow, it is recommended that the
defendants’ motion to dismiss/motion for summary judgment be
granted and that Collins’s suit be dismissed.
Background 1
Collins’s allegations relate to his treatment in the
Special Housing Unit (“SHU”) at the federal prison in Berlin,
New Hampshire. 	Collins was housed in the SHU beginning on July
1 The following facts are taken from Collins’s complaint and
complaint addendum. 	Because Collins filed his complaint pro se,
the court construes it liberally. 	Foss v. Marvic, Inc., 994
F.3d 57, 63 n.7 (1st Cir. 2021) (citing Erickson v. Pardus, 551
U.S. 89, 94 (2007)).
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27, 2018. 	His sister committed suicide on September 18, 2018.
Three or four days later, Collins received a letter from his
aunt informing Collins of his sister’s death. 	Collins’s aunt
was upset that Collins had not called, and Collins’s aunt stated
in the letter that she told a prison official about the death.
Collins, who alleges that it is FCI Berlin’s policy to notify
inmates about the death of a loved one and provide them a
courtesy phone call, “lost control of his emotions.” 	Doc. 1 at
2-3. 	Unnamed prison staff saw Collins and concluded that he
must be high on drugs or that he was “acting out.” 	Id.
An unnamed officer told Collins that they did not “give a
fuck about [his] sister.” 	Id. at 3. 	The officer cuffed Collins
and put him in a “hard cell,” which lacks a bed, a shower, or
table. 	In the “hard cell” inmates are expected to sleep on a
mat that is placed on a concrete block. 	Id. 	A toilet and sink
are available. 	Inmates are placed in the “hard cell” as
punishment.
The officer cuffed Collins’s hands so tightly that his
circulation was cut off and his hands swelled. 	Officers pushed
Collins into the hard cell, which caused him to trip. 	Because
he was handcuffed, Collins was unable to break his fall. 	The
officers laughed at Collins. 	Collins was left in the cell
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handcuffed for one hour, and he has not received medical
attention for his injuries. 2
Collins was kept in the hard cell for two days. 	During
this time period, white staff members at the prison directed
racial slurs and racially-demeaning language toward Collins, who
is African-American. 	Staff members also insulted Collins’s
sister and called her derogatory names. 	Collins contemplated
suicide. 	On September 25, a chaplain provided Collins with a
phone call.
After the defendants filed their motion to dismiss/motion
for summary judgment, Collins filed a complaint addendum (doc.
no. 46), which is before the court on preliminary review. 	In
his complaint addendum, Collins names several corrections
officers and accuses them of the following misconduct:
 	Lieutenant Twas: 	Collins alleges that Lt. Twas
“[p]sychologically tormented” him by accusing him of lying
and directing racial slurs toward him while communicating
with him about the death of his sister. 	Collins also
alleges that Twas falsified a property form that caused his
personal property to be confiscated.
2 Collins does not specify in his complaint what his
injuries are or what medical attention he requires. 	Collins is
no longer housed at FCI Berlin.
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 	Chaplain Jim Thompson: 	Collins alleges that Thompson
failed to notify him about the death of his sister and that
Thompson accused Collins of lying about his sister’s death.
 	Officer Blize: Collins alleges that Blize gave him a
mattress with half of the cotton gone and that Blize knew
that Collins required a bottom bunk for medical reasons.
Collins alleges that Blize also insulted Collins using
obscene language.
 	Officer Gardner: 	Collins alleges that Gardner insulted and
disrespected him in an unprofessional manner when Collins
asked for a better mattress.
 	Officer Martin: 	Collins alleges that Martin insinuated
that he should commit suicide. 3
In addition, in his complaint addendum, Collins asserts that he
has been unable to receive documentation for this case and other
administrative grievances that he has filed that are open.
Discussion
The defendants contend that (1) Collins’s complaint fails
to allege the personal involvement of any of the named
defendants as to the conduct that he alleges violated his civil
rights and (2) Collins failed to exhaust his administrative
3 The complaint addendum indicates that Officer Martin is a
corrections officer at FCI Allenwood, not FCI Berlin.
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remedies prior to filing this lawsuit. 	Collins responds 4 by
indicating that the defendants did not timely file their
response to his complaint and that the defendants have failed to
provide evidence to dispute his allegations. 	Collins also filed
a complaint addendum, which the court has considered 5 alongside
evaluating the defendants’ motion to dismiss and motion for
summary judgment. 6
4 The court construes Collins’s “Summary of Judgment to Move
Forward with Complaint” (doc. no. 37) and “Addendum Memorandum
to Motion for Summary Judgment” (doc. no. 38) together as an
objection to the motion to dismiss/motion for summary judgment.
5 Although the defendants’ motion to dismiss/motion for
summary judgment does not cover Collins’s complaint addendum, it
is before the court on preliminary review under Local Rule
4.3(d) and 28 U.S.C. 1915A(a). 	See Order of March 30, 2021.
“The clerk’s office shall forward to the magistrate judge for
preliminary review the initial filings, and any subsequent
amendments to those filings, by all nonincarcerated parties
proceeding in forma pauperis . . . .” 	LR 4.3(d)(2). 	After
preliminary review, the magistrate judge may report and
recommend that the action be dismissed because, inter alia, it
fails to state a claim upon which relief can be granted. 	Id.
6 The defendants’ motion to dismiss/motion for summary
judgment was timely filed by the court’s December 14, 2020,
deadline, which was set by a December 7, 2020, order that
granted the defendants’ motion to extend their time to answer.
It appears from the record that Collins did not initially
receive the defendants’ motion because he was transferred
between prisons. 	See docs. 33, 34, 36, 42.
Collins had sufficient notice and time to file a response
to the defendants’ dispositive motion. 	In February 2021, the
court granted in part Collins’s motion for copies of all of his
and the defendants’ filings in this case and informed Collins
that he should specify which documents (in addition to his
complaint) that he was requesting. 	The court also directed the
defendants to send Collins copies of any of their filings within
seven days of any specific request made by him. 	Per an earlier
order, Collins’s deadline to file any further response to the
defendants’ motion to dismiss/motion for summary judgment was
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A. 	Failure to State Claims
The defendants move to dismiss Collins’s complaint on the
ground that he fails to connect any of the misconduct alleged in
his complaint with the actions of any of the named defendant
corrections officers. 	Collins did not directly respond to this
argument by the defendants.
In considering a motion to dismiss, the court asks whether
the plaintiff has made allegations that are sufficient to render
his entitlement to relief plausible. 	Manning v. Boston Med.
Ctr. Corp., 725 F.3d 34, 43 (1st Cir. 2013). 	The court accepts
all well-pleaded facts as true and draws all reasonable
inferences in the non-moving party’s favor. 	Hamann v.
Carpenter, 937 F.3d 86, 88 (1st Cir. 2019). 	The court
disregards conclusory allegations that simply parrot the
applicable legal standard. 	Manning, 725 F.3d at 43. 	To
determine whether a complaint survives a motion to dismiss, the
court should use its “judicial experience and common sense,” but
should also avoid disregarding a factual allegation merely
because actual proof of the alleged facts is improbable. 	Id.
extended until March 31, 2021. 	The court also informed Collins
that he should contact defendants’ counsel as soon as possible
to submit any discovery requests.
Collins did not submit an additional response, but instead
filed a motion to amend his complaint and the complaint
addendum. 	The court granted the motion to amend the complaint,
and, as noted, the complaint addendum is before the court for
preliminary review.
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Collins’s complaint fails to state any claims upon which
relief can be granted because Collins does not connect the
misconduct he alleges with the actions of the individuals that
he named as defendants. 	See Educadores Puertorriquenos en
Accion v. Hernandez, 367 F.3d 61, 68 (1st Cir. 2004) (“[I]n a
civil rights action as in any other action subject to notice
pleading standards, the complaint should at least set forth
minimal facts as to who did what to whom, when, where, and why—
although why, when why means the actor's state of mind, can be
averred generally.”); Graham v. Sabol, 734 F. Supp. 2d 194, 205
(D. Mass. 2010) (“Personal involvement in the unconstitutional
conduct is required to maintain a Bivens claim.”). 7 	In other
words, Collins named fifteen individuals as defendants to the
lawsuit, but he does not allege how or in what way any of them
contributed to the civil rights violations that he alleges. 	To
be sure, in the complaint addendum, Collins identifies
additional individuals (Lt. Twas, Chaplain Thompson, Officer
Blize, Officer Gardner, and Officer Martin) and alleges how he
believes they violated his civil rights. 	However, the
misconduct he alleges in the complaint addendum does not amount
to cognizable constitutional violations.
7 Although Collins states in his complaint that he brings
his claims under 42 U.S.C. § 1983, the court construes Collins’s
claims as brought under Bivens v. Six Unknown Named Agents of
the Federal Bureau of Narcotics, 403 U.S. 388 (1971), because
§ 1983 does not apply to federal officials.
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For example, lying, the use of racial slurs and insults,
and unprofessional conduct on the part of corrections officers
does not, on its own, violate the Eighth Amendment. 	E.g., Cote
v. Barnhart, 2012 WL 1038918, at *2 (D. Me. March 23, 2012)
(“The Court obviously does not condone racist remarks on the
part of corrections officers or other acts of harassment
directed at inmates. 	However, verbal harassment does not rise
to the level of a constitutional deprivation just because the
speaker is a state officer and the harassment includes racist
language.”); Knowles v. Maine, 2009 WL 3517589, at *4 (D. Me.
Oct. 29, 2009) (rejecting inmate’s claim that corrections
officers violated the Eighth Amendment by “defam[ing]” his
character and directing “racial gay slurs” toward him); Shabazz
v. Cole, 69 F. Supp. 2d 177, 199-200 (D. Mass. 1999) (“Without
more, ‘racial slurs do not deprive prisoners of the minimal
civilized measure of life's necessities,’ and thus do not
constitute an Eighth Amendment violation.”). 	The failure to
timely follow a prison policy of notifying inmates about the
death of a family member is not a violation of the Eighth
Amendment, which requires prison officials to maintain humane
conditions of confinement but does not mean that all violations
of prison policy are violations of the Eighth Amendment. 	See
Leite v. Bergeron, 911 F.3d 47, 52 (1st Cir. 2018) (explaining
standard for violations of Eighth Amendment); Gardner v. Howard,
109 F.3d 427, 430 (8th Cir. 1997) (“[T]here is no § 1983
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liability for violating prison policy.”); see also Lisasuain v.
Mattis, No. 19-cv-593-PB, 2021 WL 919893, at *4 (“Moreover, to
the extent plaintiff bases his due process claim on prison
officials’ violation of prison policies, manual, and/or
guidelines, such allegations, without more, do not give rise to
an actionable claim of any violation of his federally protected
rights.”) (D.N.H. Feb. 11, 2021), report and recommendation
adopted, 2021 WL 919866 (Mar. 10, 2021). 	Similarly, the
provision of a thin mattress does not violate the Eighth
Amendment without additional allegations that show that
depriving Collins of a full mattress was a sufficiently serious
deprivation of medical care to which prison officials showed
deliberate indifference. 	See Leite, 911 F.3d at 52. 	Collins’s
complaint and complaint addendum do not allege such facts.
Lastly, Collins’s claim that Lieutenant Twas falsified a
property form resulting in Collins’s property being confiscated
is not cognizable under the Fourth Amendment. 	See Hudson v.
Palmer, 468 U.S. 517, 530 (1984) (holding that prisoners do not
have a reasonable expectation of privacy in their prison cells
and that “there are adequate state tort and common-law remedies
available” to redress harassment by prison officials, including
destruction of personal property). 	Nor is it cognizable under
the Fifth Amendment. 	See id. (holding “that an unauthorized
intentional deprivation of property by a state employee does not
constitute a violation of the procedural requirements of the Due
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Process Clause of the Fourteenth Amendment if a meaningful
postdeprivation remedy for the loss is available”); West v.
Schult, No. 13-cv-528-SM, 2014 WL 2880024, at *2 (D.N.H. Feb. 4,
2014) (rejecting claim that deprivation of prisoner’s property
by federal prison official was violation of due process under
Fifth Amendment because Bureau of Prisons’s Administrative
Remedy Program is an adequate postdeprivation system); Phelps v.
Winn, 2007 WL 2872465, at *3 (D. Mass. Sept. 27, 2007) (same).
Furthermore, even if the confiscation of Collins’s property was
sufficient to raise a constitutional violation of some form,
Collins’s allegations are insufficient to plausibly allege that
it was Twas’s actions that led to his property being
confiscated. 	Collins does not allege what form it was that Lt.
Twas falsified, what false information Lt. Twas put on the form,
when the form was falsified, or how the false information on the
form led to Collins’s property being confiscated. 	Without these
facts, Lt. Twas and the court are left to guess at what
Collins’s allegations are about, which renders the claim subject
to dismissal. 	See Fed. R. Civ. P. 8(a)(2); Educadores, 367 F.3d
at 68. 	For those reasons, the allegations in Collins’s
complaint addendum are not sufficient to state any claims upon
which relief can be granted.
B. 	Exhaustion of Remedies
As an alternative to their arguments that Collins’s
complaint fails to state any claims upon which relief can be
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granted, the defendants move for summary judgment on the ground
that Collins has failed to exhaust his administrative remedies
as to his claims in this case. 	Summary judgment is appropriate
when the moving party “shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law.” 	Fed. R. Civ. P. 56(a); Faiella v. Fed. Nat’l
Mortg. Assoc., 928 F.3d 141, 145 (1st Cir. 2019). 	“A genuine
issue of material fact only exists if a reasonable factfinder
. . . could resolve the dispute in that party’s favor.” 	Town of
Westport v. Monsanto Co., 877 F.3d 58, 64-65 (1st Cir. 2017)
(internal quotation marks and citation omitted).
Under the Prison Litigation Reform Act, “[n]o action shall
be brought with respect to prison conditions under section 1983
of this title, or any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 	42
U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 524, 532
(2002) (applying PLRA to suits under Bivens and holding “that
the PLRA’s exhaustion requirement applies to all inmate suits
about prison life”). 	“A prisoner seeking to exhaust his
administrative remedies under the PLRA must complete the
administrative review process that is available at his
correctional facility in accordance with the procedural rules of
that facility.” 	Hokenstrom v. N.H. Dep’t of Corr., No. 14-CV-
557-SM, 2016 WL 6989763, at *2 (D.N.H. Nov. 8, 2016), report and
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recommendation adopted, 2016 WL 6989766 (Nov. 29, 2016). 	If a
prisoner fails to exhaust his administrative remedies before
filing suit, the unexhausted claims must be dismissed. 	See
Medina-Claudio v. Rodriguez-Mateo, 292 F.3d 31, 36 (1st Cir.
2002).
To succeed on an affirmative defense of failure to exhaust
remedies, the government must demonstrate that no reasonable
jury could find that the plaintiff exhausted the remedies that
were available to him. 	See Jones v. Bock, 549 U.S. 199, 216
(2007) (“We conclude that failure to exhaust is an affirmative
defense under the PLRA, and that inmates are not required to
specially plead or demonstrate exhaustion in their
complaints.”); Hubbs v. Suffolk Cty. Sheriff’s Dep’t, 788 F.3d
54, 59 (2d Cir. 2015); Albino v. Baca, 747 F.3d 1162, 1172 (9th
Cir. 2014) (en banc); Tuckel v. Grover, 660 F.3d 1249, 1254
(10th Cir. 2011). 	If the government shows that the plaintiff
failed to exhaust the remedies that were generally available,
the burden shifts to the plaintiff to provide evidence showing
that something in his case made those generally available
remedies unavailable to him. 	Albino, 747 F.3d at 1172.
Here, the defendants provide evidence that Collins filed
multiple administrative grievances via the Bureau of Prisons’s
Administrative Remedy Program, which is the generally-available
administrative procedure for obtaining remedies for civil rights
violations at FCI Berlin. 	See 28 C.F.R. § 542. 	Collins,
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however, did not file any administrative grievances pertaining
to the claims he makes in his complaint. 	Moreover, around the
same time of his sister’s death and while he was housed in the
SHU, Collins filed several administrative grievances on other
subjects. 	Specifically, Collins filed ten grievances between
August 27 and December 26, 2018, and several others before and
after those dates. 8 	See doc. 31-6 at 9-13.
Collins does not dispute the defendants’ evidence, and he
provides no evidence of his own in support of the argument that
the generally-available administrative procedures for bringing
the claims he alleged in his complaint were unavailable to him.
Accordingly, even if Collins’s complaint had alleged any claims
upon which relief could be granted, the defendants have
demonstrated that they are entitled to summary judgment as to
the claims in Collins’s complaint 9 because Collins failed to
exhaust his administrative remedies.
8 Collins’s complaint in this case is dated October 8, 2018.
9 Because Collins filed his complaint addendum after the
defendants filed their motion for summary judgment and because
the defendants have not been directed to respond to the new
allegations in the complaint addendum, it is unclear whether the
defendants would contend that Collins failed to exhaust his
administrative remedies for the claims Collins sought to raise
in his complaint addendum . 	Accordingly, the defendants have
only demonstrated that Collins failed to administratively
exhaust the claims he raises in his complaint, not his complaint
addendum. 	In any event, for the reasons already discussed, it
is recommended that the court dismiss the allegations in
Collins’s complaint addendum for failure to state a claim upon
which relief can be granted.
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Conclusion
For the foregoing reasons, it is recommended that the
district judge grant the defendants’ motion to dismiss and
motion for summary judgment (doc. no. 31), dismiss Collins’s
complaint and complaint addendum, and close the case. 	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). 	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); Fed. R.
Civ. P. 72(b)(2).
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
June 15, 2021
cc: 	Darrell Collins, pro se
Frances Susan Cohen, Esq.
Robert J. Rabuck, Esq.
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