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. 19-cv-384-JD
New Hampshire State Prison Warden
Michelle Edmark, Veronica Paris,
Bernie Campbell, Brian Isabelle,
James Brown, Michael Mosher, and
FNU Castallano
REPORT AND RECOMMENDATION
Before the court is pro se plaintiff James Covington’s
complaint, which the court construes as having been filed
pursuant to 42 U.S.C. § 1983. 	(Doc. No. 1). 	The complaint is
before this magistrate judge for preliminary review, pursuant to
28 U.S.C. § 1915(e)(2) and LR 4.3(d)(1).
Background
Plaintiff is a prisoner of the State of New Hampshire who
alleges that beginning in January 2013 he engaged in sexual
intercourse and/or oral sex twice weekly with defendant Veronica
Paris, identified as a nurse at the New Hampshire State Prison
(“NHSP”) in Concord. 	Plaintiff alleges that these encounters
occurred in the Health Services Center on the nights Paris
worked alone. 	On those nights, plaintiff asserts, he was
authorized to clean offices and wax floors without supervision.
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According to the complaint, the sexual encounters ended on
or about July 9, 2018. 	Plaintiff asserts that he made sexual
assault allegations against Paris under the Prison Rape
Elimination Act (“PREA”), and that on October 30, 2018, the PREA
advocate notified him that his allegations had been
substantiated after an investigation by the NHSP Internal
Investigations Department. 	Plaintiff sues Paris in her
individual capacity and seeks compensatory and punitive damages
for violation of his rights under the Eighth Amendment.
Plaintiff also seeks compensatory and punitive damages for
Eighth Amendment violations by defendants Bernie Campbell,
identified as Deputy Director of Medical Forensics at NHSP, and
Brian Isabelle, James Brown, Michael Mosher, and FNU Castallano,
identified as NHSP officers, in their individual capacities.
Covington claims that these defendants played an unspecified
role in authorizing unsupervised release from his housing unit
to clean offices on nights defendant Paris worked alone in the
Health Services Center. 	Finally, Covington sues Michelle Edmark
in her official capacity as Warden of NHSP, alleging she had
“constructive knowledge” of the other defendants’ practice of
sending him, unsupervised, to clean offices and wax floors in
the Health Services Center on nights Paris worked alone.
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Preliminary Review Standard
The court screens complaints filed by plaintiffs proceeding
in forma pauperis to determine, among other things, whether the
plaintiff has asserted any claim upon which relief might be
granted or seeks monetary relief from any defendant who is
immune from the relief sought. 	See 28 U.S.C. § 1915(e)(2); LR
4.3(d)(1). 	To determine if the pleading states a claim upon
which relief can be granted, the court first disregards any
parts of the pleading that amount to legal conclusions; next,
takes as true all well-pleaded facts in the plaintiff’s
complaint, the inferences reasonably drawn from those facts,
implications from documents incorporated into the complaint, and
facts subject to judicial notice; and finally, construes those
facts in a light most favorable to the plaintiff’s theory of
liability. 	See Breiding v. Eversource Energy, 939 F.3d 47, 49
(1st Cir. 2019); Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03
(1st Cir. 2013). 	In determining whether a pro se pleading
states a claim upon which relief can be granted, the court
construes the pleading liberally. 	See Erickson v. Pardus, 551
U.S. 89, 94 (2007).
Discussion
I. 	Eighth Amendment Individual Capacity Damages Claims
A. 	Elements
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The Eighth Amendment guarantees the right to be free from
“cruel and unusual punishments” while in custody. 	Whitley v.
Albers, 475 U.S. 312, 318 (1986) (quoting U.S. Const. amend.
VIII). 	A properly stated Eighth Amendment claim must allege a
subjective and objective element. 	Hudson v. McMillian, 503 U.S.
1, 8 (1992). 	First, it must appear from the complaint that the
defendant official acted with a “sufficiently culpable state of
mind.” 	Wilson v. Seiter, 501 U.S. 294, 298 (1991). 	Second, the
conduct must have been objectively “harmful enough,” or
“sufficiently serious” to violate the Constitution. 	Id.
B. 	Sexual Abuse
“[P]rison sexual abuse can violate the Constitution.”
Ricks v. Shover, 891 F.3d 468, 473 (3d Cir. 2018) (citing
Washington v. Hively, 695 F.3d 641, 643 (7th Cir. 2012)).
“[S]evere or repetitive sexual abuse of an inmate by a prison
officer can be ‘objectively, sufficiently serious’ enough to
constitute an Eighth Amendment violation.” 	Ricks, 891 F.3d at
474 (citation omitted). 	“Where no legitimate law enforcement or
penological purpose can be inferred from the defendant’s alleged
conduct, the abuse itself may, in some circumstances, be
sufficient evidence of a culpable state of mind.” 	Id. (citation
and internal quotation marks omitted).
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Plaintiff has sufficiently alleged an Eighth Amendment
sexual abuse claim against defendant Paris to survive initial
review. 	In an Order issued this date, the court has directed
service of Plaintiff’s Eighth Amendment claim against defendant
Paris.
C. 	Endangerment
Under the Eighth Amendment, “[p]rison officials have a duty
to . . . take reasonable measures to guarantee the [health and]
safety of the[ir] inmates.” 	Giroux v. Somerset Cty., 178 F.3d
28, 31 (1st Cir. 1999) (quoting Farmer v. Brennan, 511 U.S. 825,
832 (1994)) (internal quotation marks omitted). 	To state a
claim that a prison officer failed to protect an inmate in
violation of the Eighth Amendment, the inmate must allege facts
showing that the officer was deliberately indifferent to his
health or safety. 	See Farmer, 511 U.S. at 834. 	A prison
official or officer is not deliberately indifferent to an
inmate’s safety “unless the official knows of and disregards an
excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also
draw the inference.” 	Id. at 837.
Covington has failed to allege any facts from which it
reasonably can be inferred that defendants Edmark, Campbell,
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Isabelle, Brown, Mosher, or Castallano knew of and disregarded
the risk that Paris would sexually abuse Covington or that these
defendants were aware of facts from which they could have
inferred there was a substantial risk Paris would sexually abuse
Covington and that they drew that inference. 	In short,
Covington has failed to allege sufficient facts to state an
Eighth Amendment claim for relief for those supervisory
defendants’ alleged failure to protect him from sexual abuse by
defendant Paris. 	As such, the district court should dismiss
Covington’s Eighth Amendment claims against defendants Edmark,
Campbell, Isabelle, Brown, Mosher, and Castallano.
II. 	Eleventh Amendment and Official Capacity Damages Claims
Covington is seeking compensatory and punitive damages for
an Eighth Amendment violation against Edmark in her official
capacity as Warden. 	See Compl. (Doc. No. 1) at 6. 	“Absent an
explicit waiver from the state, the Eleventh Amendment bars
official capacity suits against state actors in federal court
unless the suit seeks prospective injunctive relief.” 	Caisse v.
DuBois, 346 F.3d 213, 218 (1st Cir. 2003). 	Covington does not
seek prospective injunctive relief, and nothing suggests that
New Hampshire has waived its immunity for purposes of
Covington’s § 1983 claims. 	Accordingly, the district judge
should dismiss Covington’s Eighth Amendment claim against
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defendant Edmark in her official capacity, as she is immune from
the relief sought. 	See 28 U.S.C. § 1915(e)(2).
Conclusion
For the foregoing reasons, the district judge should
dismiss Covington’s claims against defendants Edmark, Campbell,
Isabelle, Brown, Mosher, and Castallano, and those defendants
should be terminated from this action. 	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).
________________________________
Andrea K. Johnstone
United States Magistrate Judge
December 27, 2019
cc: 	James Covington, pro se
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