Rowell v. Vissa et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Mesfen A. Rowell
v. 	Case No. 19-cv-419-JL
Sgt. FNU Vissa, Nurse FNU Bancroft,
Hillsborough County Department of Corrections
REPORT AND RECOMMENDATION
Before the court is the complaint (Doc. No. 1) filed by pro
se plaintiff, Mesfen A. Rowell, currently an inmate at the New
Hampshire State Prison (“NHSP”). 	Mr. Rowell was a pretrial
detainee at the Hillsborough County Department of Corrections
(“HCDOC”) at all times pertinent to this action. 	The complaint
is before this magistrate judge for preliminary review under LR
4.3(d)(1) and 28 U.S.C. § 1915A(a).
Preliminary Review Standard
The court may dismiss claims asserted in an inmate’s
complaint, if the court lacks subject matter jurisdiction, a
defendant is immune from the relief sought, the complaint fails
to state a claim, or the action is frivolous or malicious. 	See
28 U.S.C. § 1915A(b). 	In determining whether a pro se complaint
states a claim, the court must construe the complaint liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). 	To
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determine whether to dismiss claims for failure to state a
claim, the court takes as true the factual content in the
complaint and inferences reasonably drawn from those facts,
strips away the legal conclusions, and considers whether
plaintiff has stated a claim upon which relief can be granted.
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Background
Mr. Rowell alleges that he arrived at the HCDOC on July 15,
2018 after 10:00 p.m. 	He further alleges that before his
arrival, officers arresting or transporting him had used a taser
on him. 	Mr. Rowell asserts that he felt disoriented because of
the tasing incident and asked the HCDOC booking officer to give
him a few minutes to overcome his disorientation before
completing the booking process. 	The booking officer then
radioed the HCDOC sergeant on duty, Sgt. Vissa, who came into
the booking area a few minutes later. 	Mr. Rowell alleges that
he explained to Sgt. Vissa that he needed time to recover from
having been tased before officers at the HCDOC booked him. 	Sgt.
Vissa responded by grabbing Mr. Rowell’s arm and bringing him to
the property room. 	Mr. Rowell asserts that Sgt. Vissa pushed
him into a corner in the property room and struck him on the
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left side of his face, causing the right side of his face to hit
the wall, opening a cut above his right eye. 	Sgt. Vissa then
brought Mr. Rowell, bleeding from that cut, back to the booking
area and handcuffed him to a table, threatening more violence if
he were to report the incident, and saying, as alleged by Mr.
Rowell, that since he was a “N****r,” no one would believe him
or care about what happened.
Shortly after that incident, HCDOC Nurse Bancroft
interviewed Mr. Rowell as part of the booking process, while
Sgt. Vissa stood behind Mr. Rowell’s chair. 	Mr. Rowell asserts
that he pleaded with the nurse for help and complained that he
was in a lot of pain, but she provided no care for his injuries.
Using the wet towel Sgt. Vissa handed to her, Nurse Bancroft
wiped the blood from his face then continued to ask him booking
questions as he sat there bleeding, and he asserts, she did not
report his complaints to her supervisors in the HCDOC medical
department.
Mr. Rowell asserts that after the July 15, 2018 booking
incident, he began to suffer from severe headaches, ringing in
his ears, nightmares for months, and PTSD. 	Mr. Rowell further
asserts that he wrote out inmate requests and submitted verbal
grievances, asking to have an outside specialist determine if he
had a head injury, but he received no further medical care for
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his injuries other than ibuprofen. 	He states that he was scared
for his life while he remained at the HCDOC, because Sgt. Vissa
continued to work in his housing unit, even though Mr. Rowell
had complained to a supervisory officer, Lt. Fitzpatrick.
Mr. Rowell claims that there has been a cover-up of the
events described in his complaint. 	He alleges that he filled
out inmate requests forms and made verbal grievances about the
incident and his injuries, but those forms were discarded, and
his grievances were ignored. 	Although Lt. Fitzpatrick promised
to help, it appeared to Mr. Rowell that nothing was done since
the nurse was not fired, and Sgt. Vissa continued to work in Mr.
Rowell’s housing unit. 	Mr. Rowell further asserts that he has
asked to see incident reports about what happened to him on July
15, 2018 but has been told that there are no incident reports
recording any pertinent events from that date. 	He alleges that
HCDOC officials have told him that he was not at the HCDOC at
the time or date he says the incident occurred.
The court identifies Mr. Rowell’s claims for damages and
injunctive relief, naming the HCDOC, Sgt. Vissa, and Nurse
Bancroft as defendants, as follows:
1. 	HCDOC Sgt. Vissa violated Mr. Rowell’s Fourteenth
Amendment due process right to avoid punitive conditions of
pretrial confinement, and to avoid being subjected to
unreasonable force as a pretrial detainee, by punching him
on the left side of his face, without provocation, causing
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the right side of his face to strike a wall, opening a cut
above his eye, giving rise to Sgt. Vissa’s liability in his
individual capacity under 42 U.S.C. § 1983.
2. 	HCDOC Nurse Bancroft violated Mr. Rowell’s Fourteenth
Amendment right to avoid punitive conditions of pretrial
confinement by failing to provide him with medical care
after he complained to her about being in a lot of pain and
she saw he had blood on his face, giving rise to Nurse
Bancroft’s liability in her individual capacity under 42
U.S.C. § 1983.
3. 	Unnamed HCDOC officers who were present during the
July 2018 incident conspired to cover it up, in violation
of 42 U.S.C. §§ 1985 and 1986, by:
a. 	failing to file an incident report, and
b. 	ignoring or denying Mr. Rowell’s grievances about
what happened to him on July 15, 2018.
4. 	Unnamed HCDOC medical providers violated Mr. Rowell’s
Fourteenth Amendment right to avoid punitive conditions of
pretrial confinement, giving rise to possible liability
under 42 U.S.C. § 1983, by:
a. 	denying his requests to see a specialist to
evaluate whether he had suffered a head injury; and
b. 	providing him with no medical care other than
ibuprofen.
5. 	Defendants Sgt. Vissa and the HCDOC are liable under
state law for Sgt. Vissa’s tortious conduct amounting to
assault, battery, and the intentional infliction of
emotional distress, in that:
a. 	Sgt. Vissa struck Mr. Rowell, handcuffed him to a
chair, and subjected him to threats and offensive
racist commentary, in the manner alleged in the
complaint, resulting in Mr. Rowell’s physical
injuries, pain, suffering, and PTSD; and
b. 	Sgt. Vissa’s tortious conduct was undertaken
within the scope of his HCDOC employment.
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Discussion
I. 	Source of Rights
Mr. Rowell cites the Eighth Amendment as shielding him from
inhumane conditions of pretrial confinement. 	The Eighth
Amendment prohibition against cruel and unusual punishment
applies to conditions of confinement affecting convicted
inmates, not pretrial detainees. 	This court has construed Mr.
Rowell’s claims as intending to assert that defendants violated
his rights under the Fourteenth Amendment Due Process Clause,
which prohibits conditions of confinement that amount to
pretrial punishment. 	See Bell v. Wolfish, 441 U.S. 520, 535
(1979). 	Conditions may be punitive if they deny the inmate the
“minimal measure of necessities required for civilized living.”
Surprenant v. Rivas, 424 F.3d 5, 18 (1st Cir. 2005) (citing
Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
II. 	Sgt. Vissa (Claims 1 and 5(a))
A. 	Due Process Claim (Claim 1)
“[T]he Supreme Court has held that the appropriate standard
for a pretrial detainee’s Fourteenth Amendment excessive force
claim is simply objective reasonableness.” 	Miranda-Rivera v.
Toledo-Dávila, 813 F.3d 64, 70 (1st Cir. 2016) (citing Kingsley
v. Hendrickson, 135 S. Ct. 2466, 2473-74 (2015) (holding that
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pre-trial detainee need prove that from objective viewpoint,
officer’s action was “not rationally related to a legitimate
governmental objective or that it [was] excessive in relation to
that purpose”)).
A court must make this determination from the
perspective of a reasonable officer on the scene,
including what the officer knew at the time, not with
the 20/20 vision of hindsight. 	A court must also
account for the “legitimate interests that stem from
[the government’s] need to manage the facility in
which the individual is detained,” appropriately
deferring to “policies and practices that in th[e]
judgment” of jail officials “are needed to preserve
internal order and discipline and to maintain
institutional security.”
Considerations such as the following may bear on the
reasonableness or unreasonableness of the force used:
the relationship between the need for the use of force
and the amount of force used; the extent of the
plaintiff’s injury; any effort made by the officer to
temper or to limit the amount of force; the severity
of the security problem at issue; the threat
reasonably perceived by the officer; and whether the
plaintiff was actively resisting.
Kingsley, 135 S. Ct. at 2473 (citations omitted). 	The factual
allegations summarized as Claim 1 state a due process claim upon
which relief can be granted against Sgt. Vissa in his individual
capacity.
B. 	Intentional Torts (Claim 5(a))
The same factual allegations, and the alleged impact of
Sgt. Vissa’s conduct on Mr. Rowell, give rise to actionable
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claims of the intentional torts of assault, battery, and the
intentional infliction of emotional distress under New Hampshire
law, naming Sgt. Vissa as the defendant. 	See Rand v. Town of
Exeter, 976 F. Supp. 2d 65, 75 (D.N.H. 2013) (“A successful
assault claim requires that ‘(1) the defendant . . . intended to
cause harmful or offensive contact to the plaintiff, and (2) the
plaintiff must have been put in imminent apprehension of such
contact.’” (citation omitted)); id. at 75-76 (“A defendant may
be held liable for battery if ‘(a) he acts intending to cause a
harmful or offensive contact with the person of the other or a
third person, or imminent apprehension of such a contact, and
(b) a harmful contact with the person of the other directly or
indirectly results.’” (citation omitted)); see also Silva v.
Warden, 150 N.H. 372, 374, 839 A.2d 4, 6 (2003); Konefal v.
Hollis/Brookline Coop. Sch. Dist., 143 N.H. 256, 260, 723 A.2d
30, 33 (1998) (“one who by extreme and outrageous conduct
intentionally causes severe emotional distress to another is
subject to liability for that emotional distress”). 	In the
Order issued this date, the court has directed service of Claims
1 and 5(a) upon Sgt. Vissa in his individual capacity.
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III. Medical Care (Claims 2 and 4)
A. 	Standard
The Due Process Clause imposes an obligation on state
actors to refrain from treating a pretrial detainee with
deliberate indifference to a substantial risk of serious harm to
health and safety. 	Coscia v. Town of Pembroke, 659 F.3d 37, 39
(1st Cir. 2011). 	At a minimum, the plaintiff must allege facts
showing that the defendant possessed a purposeful, knowing, or
reckless state of mind, as “‘liability for negligently inflicted
harm is categorically beneath the threshold of constitutional
due process.’” 	Kingsley, 135 S. Ct. at 2472 (citation omitted)
(emphasis in original). 	“Proof of deliberate indifference
requires a showing of greater culpability than negligence but
less than a purpose to do harm . . . .” 	Coscia, 659 F.3d at 39
(citing Farmer, 511 U.S. at 835).1
“A serious medical need is one that has been diagnosed by a
physician as mandating treatment, or one that is so obvious that
1This court declines to determine, without a ripe motion
requiring a ruling, whether Kingsley alters the mens rea
standard that applies to Fourteenth Amendment medical care
claims. 	See Darnell v. Pineiro, 849 F.3d 17, 36 (2d Cir. 2017)
(consistency with Kingsley “dictates that deliberate
indifference be measured objectively” in due process cases filed
by detainees); Castro v. Cty. of Los Angeles, 833 F.3d 1060,
1070 (9th Cir. 2016) (en banc) (applying Kingsley’s holding to
failure-to-protect claims brought by pretrial detainees against
individual defendants under the Fourteenth Amendment); McKenney
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even a lay person would easily recognize the necessity for a
doctor’s attention.” 	Miranda-Rivera v. Toledo-Dávila, 813 F.3d
64, 74 (1st Cir. 2016) (citation and internal quotation marks
omitted). 	“Where it is shown that an officer was deliberately
indifferent to a serious medical need of a pretrial detainee, no
further mens rea of the officer — whether intent or motivation —
is necessary to state a substantive due process claim.” 	Id.
B. 	Nurse Bancroft (Claim 2)
Mr. Rowell has alleged that Nurse Bancroft, whose first
name is unknown, was unwilling to provide him with any medical
care and did not refer his complaints to any of her supervisors
in the HCDOC medical department after Sgt. Vissa struck him,
when she saw he was bleeding from a cut above his eye and heard
his pleas for help and complaints about being in a lot of pain.
Mr. Rowell has stated an actionable due process claim of Nurse
Bancroft’s deliberate indifference to an apparently serious
medical need. 	Accordingly, in the Order issued this date, the
v. Joyce, No. 2:16-CV-412-NT, 2016 WL 6304678, at *4 n.4, 2016
U.S. Dist. LEXIS 148759, at *11 n.4 (D. Me. Oct. 27, 2016) (R&R)
(“where the conduct in question is ‘purposefully or knowingly’
applied, satisfaction of an objective standard is sufficient to
establish liability” (citing Kingsley, 135 S. Ct. at 2472)).
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court has directed service of Claim 2 upon Nurse Bancroft in her
individual capacity and has directed her to answer that claim.
C. 	Unnamed HCDOC Medical Care Providers (Claim 4)
Mr. Rowell has asserted that he submitted multiple request
slips and verbal complaints about his injuries, asking for
medical care and asking to see a specialist to determine if he
had a head injury. 	He asserts he received only ibuprofen for
his headaches and no referral to a specialist to determine if he
had a head injury. 	Mr. Rowell’s allegations do not demonstrate
that any medical provider was actually aware that Mr. Rowell’s
pain and other symptoms required medication other than ibuprofen
or a specialist’s evaluation. 	The facts as pleaded, without
more, fail to demonstrate deliberative indifference to a serious
medical need. 	Accordingly, the district judge should dismiss
Claim 4.
IV. 	Cover-Up and Conspiracy (Claim 3)
Mr. Rowell’s assertions about a cover up and conspiracy
center on allegations that Sgt. Vissa used an offensive racially
derogatory remark in saying that no none would believe his
complaints about having been struck by Sgt. Vissa, his inability
to obtain an incident report or other record of the July 15,
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2018 incident even though there were other unnamed officers
present during the incident, and the fact that HCDOC officials
have told him that they have no record of Mr. Rowell having been
at the HCDOC on the date and time in question.
In order to state a cause of action arising under section
1985(3), a plaintiff must assert (a) racial or class-based
discrimination; and (b) interference with a federally
protected right. 	Additionally, a claim of conspiracy must
allege facts that suggest a conspiracy rather than set out
conclusory allegations that the defendants made an unlawful
agreement.
Boyle v. Barnstable Police Dep’t, 818 F. Supp. 2d 284, 318 (D.
Mass. 2011). 	Mr. Rowell’s allegations regarding Sgt. Vissa’s
remark, the presence of other officers in the area, the absence
of an incident report, and the lack of a record that Mr. Rowell
was at the HCDOC at the date and time he alleges that the
incident occurred do not suggest that any conspiracy existed to
interfere with his rights, or otherwise give rise to a claim of
a racially-discriminatory civil rights conspiracy that is not
conclusory. 	Accordingly, the civil rights conspiracy claim
asserted under 42 U.S.C. § 1985(3) fails to state a claim upon
which relief can be granted. 	“[A]bsent a showing of conspiracy,
[plaintiff] has no claim under § 1986, which extends liability
to those who knowingly failed to prevent conspiracies under
§ 1985.” 	Maymi v. P.R. Ports Auth., 515 F.3d 20, 31 (1st Cir.
2008) (citing 42 U.S.C. § 1986). 	Accordingly, the district
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judge should dismiss Mr. Rowell’s cover-up and conspiracy
claims, summarized here as Claim 3.
V. 	Defendant HCDOC
A. 	Federal Civil Rights Claims
Mr. Rowell has named the HCDOC as a defendant. 	A county or
other local government may not be held liable under 42 U.S.C.
§ 1983 for violating a plaintiff’s federal constitutional rights
under a theory of respondent superior. 	See Iqbal, 556 U.S. at
677. 	A plaintiff who brings a section 1983 action against a
municipality “must identify a municipal policy or custom that
caused the plaintiff’s injury.” 	Haley v. City of Boston, 657
F.3d 39, 51 (1st Cir. 2011) (citations and internal quotation
marks omitted). 	“[W]hen execution of a [local] government’s
policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official
policy, inflicts the injury,” then “the government as an entity”
may be held responsible under § 1983. 	Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 694 (1978). 	The facts alleged in this
lawsuit fail to state a claim that any official policy or
practice caused Mr. Rowell to suffer a violation of his federal
civil rights as alleged in the Complaint. 	Accordingly, the
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HCDOC is not properly joined as a defendant to Mr. Rowell’s
civil rights claims.
B. 	Tort Claims (Claim 5(b))
Under the doctrine of respondeat superior, an employer may
be held liable vicariously for the torts of an employee if she
or he was “‘acting within the scope of his or her employment
when his or her tortious act injured the plaintiff.’” 	Rand, 976
F. Supp. 2d at 76 (quoting Porter v. City of Manchester, 155
N.H. 149, 152, 921 A.2d 393, 397-98 (2007)).
“[C]onduct falls within the scope of [an employee’s]
employment if: (1) it is of the kind she is employed to
perform; (2) it occurs substantially within the authorized
time and space limits; and (3) it is actuated, at least in
part, by a purpose to serve the employer.”
Rand, 976 F. Supp. 2d at 76 (quoting Porter, 155 N.H. at 152,
921 A.2d at 397-98).
Mr. Rowell has alleged sufficient facts to state actionable
claims of assault, battery, and the intentional infliction of
emotional distress against the HCDOC, arising from its
employment relationship with Sgt. Vissa, the circumstances of
that officer’s conduct in striking and threatening Mr. Rowell
with further violence after he asked for more time before he was
booked, and the impact of that incident on Mr. Rowell, as
alleged in the Complaint and summarized in Claims 1 and 5.
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Accordingly, the Order issued this date directs service of Claim
5(b) upon the HCDOC, an agency of Hillsborough County, under a
theory of respondeat superior.
VI. 	Claims for Injunctive Relief
In the complaint, Mr. Rowell seeks an injunction directing
defendants to send him to see a specialist to evaluate and treat
him for a head injury. 	Mr. Rowell has been transferred from the
custody of the HCDOC to the NHSP. 	In the absence of claims for
damages, “[a] prisoner’s challenge to prison conditions or
policies is generally rendered moot by his transfer or release.”
Ford v. Bender, 768 F.3d 15, 29 (1st Cir. 2014). 	Accordingly,
Mr. Rowell’s request for injunctive relief is moot, and the
district judge should dismiss his claims for injunctive relief
from this action, leaving only the claims for damages that are
the subject of the Order issued this date directing service of
those claims.
Conclusion
For the foregoing reasons the district judge should dismiss
Claims 3 and 4; and dismiss Mr. Rowell’s claims for injunctive
relief. 	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
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extended upon motion. 	Failure to file 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
April 20, 2020
cc: 	Mesfen A. Rowell, pro se
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