Lisasuain v. Mattis et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Armando Lisasuain
v. 	Case No. 19-cv-593-PB
Paula Mattis, Debra Robinson,
and Daryl Bazydlo
REPORT AND RECOMMENDATION
Before the court is Armando Lisasuain’s Complaint (Doc. No.
1) and his “Addendum to Complaint under the Civil Rights Act 42
U.S.C. § 1983” (Doc. No. 9). 	The court has docketed that latter
filing twice, first as a complaint addendum (Doc. No. 9), and as
Mr. Lisasuain’s objection (Doc. No. 10) to the April 20, 2020
Report and Recommendation (Doc. No. 6) (“April 20 R&R”). 	The
complaint addendum (Doc. No. 9) and the original complaint (Doc.
No. 1) are before the court for preliminary review, pursuant to
the April 20, 2020 Order (Doc. No. 7), LR 4.3(d)(1), and 28
U.S.C. § 1915A. 	This R&R and the Order issued this date replace
the April 20 R&R, which the court has withdrawn on this date.
Standard
The court may dismiss claims asserted in an inmate’s
complaint and in an addendum to that complaint, if the court
lacks subject matter jurisdiction, a defendant is immune from
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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 determine whether to
dismiss claims for failure to state a claim, the court takes as
true the factual content in the complaint and complaint addenda
and inferences reasonably drawn from those facts, strips away
the legal conclusions, and considers whether plaintiff has
stated a claim that is plausible on its face. 	Hernandez-Cuevas
v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013) (citing Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)).
Background
I. 	Disciplinary Proceedings and Discharge from RTU
On November 23, 2018, when Mr. Lisasuain was housed in the
New Hampshire State Prison (“NHSP”) Residential Treatment Unit
(“RTU”), another RTU inmate, who was white, assaulted him. 	Mr.
Lisasuain, who does not identify as white, asserts he struck
back to protect himself. 	Corrections Officers (“COs”) charged
both inmates with disciplinary violations, and both inmates were
transferred to the Special Housing Unit (“SHU”) for a period of
time during and after the disciplinary proceedings. 	Mr.
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Lisasuain alleges that the inmate who attacked him pleaded
guilty to the incident report immediately after the fight. 	That
inmate spent five days in SHU as a penalty imposed for his
guilty plea before returning to the RTU.
Mr. Lisasuain alleges that he initially pleaded not guilty.
On December 5, 2018, officers moved Mr. Lisasuain to the SHU
during an investigation of the charges. 	Seven days later, the
Hearings Officer found that he was not the aggressor, dropped
the disruptive conduct charge, and reduced the fighting charge
to a Level “C” offense, because Mr. Lisasuain had swung back.
Mr. Lisasuain pleaded guilty to that lesser charge and was
released to a medium custody unit approximately seven days
later. 	Mr. Lisasuain spent a total of about fifteen days in
SHU, including seven days in Pending Administrative Review
status prior to his hearing, and approximately one week in
segregation after he pleaded guilty.
Mr. Lisasuain further alleges that after his release from
SHU, he was dropped from the RTU program. 	He asserts he did not
receive the transition hearing required by prison policies prior
to RTU discharge. 	He further alleges that the reason he was
given for his discharge from the RTU - “program failure” - was a
pretext, as he had satisfied all program requirements and
completed all of the programming available in the RTU.
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II. 	CPAP Machine
Mr. Lisasuain has alleged that for many years preceding and
including part of his incarceration at the NHSP, he frequently
woke up at night gasping for breath and was unable to sleep for
more than two to three hours per night. 	After he complained to
his NHSP mental health care provider about his sleeping issues,
he underwent a sleep study at the NHSP. 	The nurse who wired him
for the sleep study told him that he “could die,” presumably as
a result of his nighttime breathing issues. 	Doc. No. 9, at 7.
Following the sleep study, NHSP health care providers prescribed
a CPAP machine, 1 which he received approximately two weeks after
the sleep study, at some time prior to November 23, 2018.
Mr. Lisasuain alleges that, for some of the time he spent
in SHU, including the four or five days he spent in Cell 1 on I-
Tier, and lasting through the first four or five days he spent
on F-Tier, he lacked access to his CPAP machine. 	In particular,
he alleges that when officers moved him into Cell 1 on I-Tier on
or about December 5, 2018, he noticed that the cell did not have
1 A CPAP (Continuous Positive Airway Pressure) machine is a
medical device that “uses mild air pressure to keep . . .
breathing airways open,” which may be prescribed “to treat
sleep-related breathing disorders including sleep apnea.” 	U.S.
Dep’t of Health and Human Servs., Nat’l Heart, Lung, and Blood
Inst., Health Topics, CPAP, available at
https://www.nhlbi.nih.gov/health-topics/cpap (last visited Feb.
5, 2021).
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an electrical outlet. 	He told the NHSP Corrections Officer who
moved him there that he would not be able to survive a night
there, since he needed to plug in his CPAP machine. 	That
officer did not take any steps to move Mr. Lisasuain into a
different cell. 	On the first day he spent in Cell 1 on I-Tier,
Mr. Lisasuain told at least five other COs (whose names he does
not know) that he needed his CPAP machine because of his night-
time breathing issues, and that the lack of an outlet in Cell 1
would prevent him from using that device. 	In addition, he told
each of the nurses (whose names he does not know) who came to
his cell on I-Tier during the four or five days that he was in
that cell, that he needed his CPAP machine. 	He further alleges
that he repeated that complaint to the nurses (whose name he
does not know) whom he saw between December 8 and December 13,
2018, after corrections officers moved him to F-Tier, before his
CPAP machine was delivered to him on F-Tier on or about December
13, 2018. 	During the time period when he did not have access to
his CPAP machine, Mr. Lisasuain asserts that he slept no more
than two to three hours per night, and he woke up many times
gasping for breath. 	Doc. No. 9, at 9.
III. Claims
The court identifies the claims for relief asserted by Mr.
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Lisasuain in Doc. Nos. 1 and 9 as follows:
1. 	The SHU I-Tier COs identified in Document No. 9 as
John Does, and the SHU Nurses on I-Tier and F-Tier,
identified in Document No. 9 as Jane Does, violated Mr.
Lisasuain’s Eighth Amendment rights, in that, with
knowledge of Mr. Lisasuain’s unmet medical need for a CPAP
machine, they failed to take any reasonable steps to
provide him with his CPAP machine for approximately eight
nights, comprising about four days on I-Tier and four days
on F-Tier, beginning when Mr. Lisasuain was transferred to
I-Tier on or about December 5, 2018, and ending when the
CPAP machine was delivered to him in his F-Tier cell on or
about December 13, 2018.
2. 	Defendants violated Mr. Lisasuain’s Fourteenth
Amendment right to due process by:
a. 	Placing him in SHU for approximately fifteen
days; and
b. 	Transferring him out of the RTU on the basis of
“program failure,” without cause and without a
hearing, in violation of prison policies.
3. 	Defendants violated Mr. Lisasuain’s Fourteenth
Amendment right to equal protection by discriminating
against him on the basis of his race, in that, as an inmate
who does not identify as white:
a. 	He was sanctioned more severely than the white
inmate who assaulted him, even though the hearing
officer concluded that he was not the aggressor in the
altercation, and he was allowed to plead guilty to a
lower level disciplinary offense than that for which
the white inmate was sanctioned; and
b. 	Mr. Lisasuain was discharged from the RTU, on the
false pretext of “program failure,” when the white
inmate who was the aggressor was allowed to return to
the RTU.
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Discussion
I. 	Eighth Amendment Claim (Claim 1)
An Eighth Amendment claim challenging the adequacy of
prison health care services or interference with an inmate’s
receipt of medical care has both an objective and a subjective
component. 	See Wilson v. Seiter, 501 U.S. 294, 298 (1991).
“[T]he deprivation alleged must be, objectively, ‘sufficiently
serious.’” 	Farmer v. Brennan, 511 U.S. 825, 834 (1994)
(citations omitted). 	The objective component may be established
by evidence of a health need, “that has been diagnosed by a
physician as mandating treatment, or one that is so obvious that
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).
To prevail on an Eighth Amendment claim, a plaintiff must
also present evidence of the defendants’ deliberate indifference
to that serious health need. 	See Farmer, 511 U.S. at 828-29;
Leite v. Bergeron, 911 F.3d 47, 52–53 (1st Cir. 2018)
(“‘plaintiff must provide evidence that the defendant had
‘actual knowledge of impending harm, easily preventable,’ and
yet failed to take the steps that would have easily prevented
that harm’” (citations omitted)). 	Deliberate indifference is
not established by evidence of negligence. 	See Ruiz–Rosa v.
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Rullan, 485 F.3d 150, 156 (1st Cir. 2007) (“substandard care,
malpractice, negligence, inadvertent failure to provide care,
and disagreement as to the appropriate course of treatment are
all insufficient to prove a constitutional violation” (internal
citations and quotation marks omitted)); see also Kosilek v.
Spencer, 774 F.3d 63, 82 (1st Cir. 2014).
In Claim 1, Mr. Lisasuain alleges that the unnamed
defendant “John Doe” SHU I-Tier COs and unnamed defendant “Jane
Doe” SHU Nurses on I-Tier and F-Tier violated his Eighth
Amendment rights by their deliberate indifference to his
complaint that he needed access to his CPAP machine for
approximately eight days while in the SHU. 	The facts alleged by
Mr. Lisasuain in Document Nos. 1 and 9 state a claim upon which
relief can be granted as to one or more of the John Doe COs and
Jane Doe Nurses who both knew he lacked access to a CPAP machine
in SHU and whose acts or omissions delayed his access to that
CPAP machine. 	In the Order issued this date, the court has
directed that this matter may be served, pursuant to the
Agreement on Acceptance of Service, with respect to the claim
summarized herein as Claim 1.
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II. 	Fourteenth Amendment Due Process Claims (Claim 2)
To establish that his due process rights have been
violated, a plaintiff must demonstrate that he has suffered a
deprivation of a protected interest in life, liberty, or
property. 	See Mathews v. Eldridge, 424 U.S. 319, 332 (1976).
“A liberty interest may arise from the Constitution itself, by
reason of guarantees implicit in the word ‘liberty.’” 	Wilkinson
v. Austin, 545 U.S. 209, 221 (2005) (citations omitted). 	“[T]he
Constitution itself,” however, “does not give rise to a liberty
interest in avoiding transfer to more adverse conditions of
confinement.” 	Id.
Protected interests may also arise from prison regulations,
subject to the limitations set forth in Sandin v. Conner, 515
U.S. 472 (1995). 	See Wilkinson, 545 U.S. at 221-22. 	Under
Sandin, the court considers whether the restrictions at issue
impose an “‘atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.’” 	See id. at
223 (quoting Sandin, 515 U.S. at 484). 	Mr. Lisasuain has failed
to show that his placement in SHU and his subsequent discharge
from the RTU, allegedly without cause, imposed any atypical and
significant hardship upon him, in relation to the ordinary
incidents of prison life. 	See, e.g., Beamon v. Pollard, 711 F.
App’x 794, 795 (7th Cir. 2018) (“Whether a liberty interest is
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implicated by disciplinary segregation depends on both the time
and conditions of confinement, and 135 days in segregation —
absent any atypical conditions related to confinement — does not
violate the Fourteenth Amendment.” (citation omitted)).
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. 	See Evans v. Baker, 442 F. App’x 108, 110
(5th Cir. 2011) (“The failure to comply with prison regulations
does not constitute a per se constitutional violation when other
constitutional safeguards have been employed.”). 	Accordingly,
as Mr. Lisasuain has not pleaded facts sufficient to state a
claim of a violation of his federal due process rights upon
which relief can be granted, arising from his placement in SHU
and discharge from the RTU, the district judge should dismiss
Claims 2(a) and 2(b).
III. Equal Protection Claims (Claim 3)
A. 	Elements
The Fourteenth Amendment Equal Protection Clause dictates
“that ‘similarly situated persons are to receive substantially
similar treatment from their government.’” 	Kuperman v. Wrenn,
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645 F.3d 69, 77 (1st Cir. 2011) (citation omitted). 	To assert
an equal protection claim, a plaintiff must state facts
sufficient to show that, as compared to others similarly
situated, the plaintiff was treated differently based on an
improper consideration. 	See id. at 78.
B. 	Claim 3(a)
The complaint alleges that Mr. Lisasuain was treated less
favorably than another inmate of a different race, with respect
to the disciplinary proceedings that followed the November 23,
2018 fight. 	Mr. Lisasuain has alleged that the other inmate
pleaded guilty immediately, while Mr. Lisasuain initially
pleaded not guilty and then was allowed to plead guilty to a
lower level disciplinary offense after a hearings officer
concluded that he was not the aggressor. 	Mr. Lisasuain has not
pleaded any facts to show that he and the other inmate had the
same pertinent conviction record and disciplinary history, and
thus he has failed to assert facts which demonstrate that the
other inmate in the altercation was similarly situated to him in
all respects relevant to the imposition of disciplinary
sanctions. 	Accordingly, the district judge should dismiss Claim
3(a) for failure to state an equal protection/race
discrimination claim upon which relief can be granted.
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C. 	Claim 3(b)
The complaint further alleges that Mr. Lisasuain was
treated less favorably than other inmates discharged from the
RTU, in that: he did not receive a transition hearing as
required by prison policies; the reason provided for his
discharge (“program failure”) was pretextual, as he completed
all programming available in the RTU; and the other inmate who
started the fight was allowed to return to the RTU. 	Mr.
Lisasuain has not alleged facts demonstrating, however, that
there were no other factors relating to the other inmate’s
mental health history and/or housing needs that could provide
race neutral reasons for the difference in that inmate’s
treatment following his release from the RTU; that other inmates
who are white and are discharged from the RTU following
disciplinary proceedings generally receive transition hearings;
that other inmates who are white who complete all programming
available through the RTU are generally not discharged for
reasons including “program failure.” 	Accordingly, the district
judge should dismiss Claim 3(b), for failure to state an equal
protection/race discrimination claim upon which relief can be
granted.
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IV. 	Named Defendants
The named defendants, Paula Mattis, Debra Robinson,
and Daryl Bazydlo, should be dropped from this case, as no claim
upon which relief can be granted is stated against any of them.
Conclusion
For the foregoing reasons, the district judge should
dismiss the claims identified in this R&R as Claims 2(a), 2(b),
3(a), and 3(b), for failure to state a claim upon which relief
can be granted; and defendants Paula Mattis, Debra Robinson, and
Daryl Bazydlo should be dropped as parties as no viable claim is
stated against them. 	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). 	That period may be
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
February 11, 2021
cc: 	Armando Lisasuain, pro se
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