Casanova v. Ramos

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Daniel Casanova
v. 	Case No. 21-cv-851-PB
N.H. State Prison Corrections Officer
FNU Ramos et al.1
REPORT AND RECOMMENDATION
Daniel Casanova, who is incarcerated at the N.H. State
Prison (“NHSP”), filed initial pleadings (Doc. Nos. 1, 2, 12,
13, 16, 17, 18, 26) in this case which, together, assert his
claims in this action. 	Those pleadings and claims are here for
preliminary review under LR 4.3(d)(1), 28 U.S.C. § 1915A, and 28
U.S.C. § 1915(e)(2). 	Also before the court are Mr. Casanova’s
three filings, each entitled, “Motion for Summary Judgment”
(Doc. Nos. 13, 24, 28).
1 Plaintiff filed another case in this court, Casanova v.
Hanks, No. 21-cv-973-JL (D.N.H.), which was consolidated with
the above-captioned case. 	In the pleadings filed in this
consolidated case, Mr. Casanova has asserted claims against N.H.
State Prison (“NHSP”) Corrections Officer (“CO”) Ramos (whose
first name is unknown (“FNU”)), NHSP Nurse Keith Larocque, N.H.
Department of Corrections (“DOC”) Director of Medical and
Forensic Services Paula Mattis, DOC Commissioner Helen Hanks,
and the State of New Hampshire. 	In addition, the court has
construed Mr. Casanova’s initial pleadings liberally as
asserting claims against an unnamed Special Housing Unit CO
(“SHU CO John Doe”) and an unnamed NHSP Special Housing Unit
Nurse (“SHU Nurse Jane Doe”).
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Background
On the morning of October 15, 2021, Mr. Casanova was
released from the NHSP Special Housing Unit (“SHU”) and returned
to H Block. 	After he arrived at H Block, NHSP Corrections
Officer (“CO”) Ramos ordered Mr. Casanova to proceed to C Block
or to seek protective custody. 	Mr. Casanova refused that order.
CO Ramos then told Mr. Casanova to face the wall and put his
arms behind his back for handcuffing. 	Mr. Casanova alleges he
complied with that order and that, while placing him in
handcuffs, CO Ramos struck the wall next to his head several
times and swore at him, using the “F-word.” 	Mr. Casanova swore
back. 	Mr. Casanova states that after he was handcuffed, CO
Ramos reached down and lifted Mr. Casanova’s feet “7 foot high,”
Doc. No. 1, at 1, and threw Mr. Casanova down forcefully. 	The
impact fractured Mr. Casanova’s arm and caused other injuries.
CO Ramos and another officer then got Mr. Casanova up and
walked him back to the SHU. 	One of the officers asked Mr.
Casanova why he was not walking normally. 	Mr. Casanova
responded that he could feel he had broken bones.
That day, unnamed SHU COs took Mr. Casanova to see a nurse
on that unit. 	The female nurse who looked at him on that date
(“SHU Nurse Jane Doe”) said it did not look like he had any
broken bones, and that he was “fine.” 	Mr. Casanova alleges that
when he saw the same nurse later that day at 8:00 p.m., he told
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her he needed to go to a hospital for surgery for his injuries.
He alleges that, after looking at him again through a cell
window, SHU Nurse Jane Doe repeated that he did not have any
broken bones, refused his request for further medical
assistance, and swore at him, using the “F-word.”
Mr. Casanova alleges he spent the next five days in the SHU
in severe pain and unable to sleep, before his injuries were
diagnosed and/or treated. 	He further alleges that one unnamed
SHU officer (“SHU CO John Doe”), aware of Mr. Casanova’s
complaints, caused him further pain and/or injuries by pulling
and twisting his arms through the cell slot door while taking
him out of the cell at night, and, on one occasion, left him in
the bathroom for fifteen hours.
On October 17-18, 2021, Mr. Casanova alleges, Nurse Keith
Larocque noticed the bruises on his left arm and heard his
complaints about having broken bones, but did not provide any
further medical attention to Mr. Casanova. 	Rather, he alleges,
Nurse Larocque swore at him and walked away in response to his
complaints.
On or about October 19, 2021, a different nurse
distributing medications on SHU, identified as Nurse Kasey,
noticed Mr. Casanova’s bruised left arm, asked him what had
happened, and heard his explanation. 	Nurse Kasey then arranged
for Mr. Casanova to be moved to the Medical Department. 	Doc.
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No. 16. 	Follow-up X-rays at a local hospital revealed that Mr.
Casanova had a “mildly displaced” fracture of his left upper
arm. 	Doc. No. 13-1. 	Mr. Casanova alleges that other x-rays
revealed fractures in his back, spine, and/or waist. 	Mr.
Casanova underwent surgery to repair his fractured left arm on
October 28, 2021.
In grievances and Inmate Request Slips (”IRSs”) in
November/December 2021 relating to his injuries and his severe
pain that disrupted his sleep, Mr. Casanova asked the NHSP
Medical Department to arrange for surgical repairs of the
injuries in his back, waist, and/or spine. 	On December 20,
2021, New Hampshire Department of Corrections (“DOC”) Medical
Director Paula Mattis responded to Mr. Casanova’s December 15,
2021 grievance, stating that (DOC Chief Medical Officer) Dr.
Thomas Groblewski had told Mr. Casanova on December 9, 2021,
that his injuries could take time to heal, and that specialists
at Concord Orthopedics who examined Mr. Casanova on December 13,
2021 “are not recommending surgery.” 	See Doc. No. 14, at 3.
Director Mattis’s December 21, 2021 response to his December 8,
2021 IRS further explains that she could find no record that any
provider had recommended surgery for him. 	Doc. No. 11, at 4.
On January 4, 2022, Nurse Practitioner Deanna Benjamin answered
Mr. Casanova’s December 22, 2021 IRS -- which also complained of
pain, disrupted sleep, and a need for surgery -- by stating that
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he was scheduled for a physical therapy appointment on January
27, 2022; that he would be scheduled for a provider visit to
evaluate his chronic back pain; that ibuprofen and Tylenol had
been ordered for him; and that he could use his physical therapy
appointment and sick call to discuss his problems and seek
treatment. 	See Doc. No. 26-1, at 2.
The initial pleadings filed by Mr. Casanova (Doc. Nos. 1,
2, 12, 13, 16, 17, 18, 26) assert the following claims for
damages and other relief:
1. 	On October 15, 2021, after striking the wall near
Daniel Casanova’s head and swearing at him, CO Ramos pulled
Mr. Casanova’s feet out from under him, while Mr. Casanova
was handcuffed, and threw him to the ground forcefully,
using excessive force against him in bad faith, maliciously
or sadistically to cause harm, breaking Mr. Casanova’s arm
and causing other serious injuries:
a. 	In violation of Mr. Casanova’s Eighth Amendment
rights, rendering CO Ramos liable under 42 U.S.C.
§ 1983; and
b. 	Rendering CO Ramos liable under New Hampshire law
for the intentional torts of (i) assault and (ii)
battery.
2. 	On October 15, 2021, SHU Nurse Jane Doe violated
Daniel Casanova’s Eighth Amendment rights, in that, with
deliberate indifference to a substantial risk of serious
harm, she refused his request for further medical attention
and contributed to the delay in diagnosing and treating Mr.
Casanova’s fractured arm and severe pain, rendering her
liable under 42 U.S.C. § 1983.
3. 	On October 17 and 18, 2021, Nurse Keith Larocque
violated Daniel Casanova’s Eighth Amendment rights, in
that, with deliberate indifference to a substantial risk of
serious harm, Nurse Larocque refused Mr. Casanova’s request
for further medical attention and contributed to the delay
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in diagnosing and treating Mr. Casanova’s fractured arm and
severe pain, rendering Nurse Larocque liable under 42
U.S.C. § 1983.
4. 	SHU CO John Doe violated Daniel Casanova’s Eighth
Amendment rights, in that, with deliberate indifference to
a substantial risk of serious harm, SHU CO John Doe twisted
Mr. Casanova’s arms while removing him from his cell,
knowing he was complaining of injuries and severe pain, on
one or more occasions between October 15, 2021 and October
20, 2021, rendering that defendant liable under 42 U.S.C.
§ 1983.
5. 	SHU CO John Doe violated Daniel Casanova’s Eighth
Amendment right not to be subjected to inhumane conditions
of confinement, in that he left Mr. Casanova in the
bathroom for an extended period of time (fifteen hours),
rendering that defendant liable under 42 U.S.C. § 1983.
6. 	Supervisory prison officials DOC Commissioner Helen
Hanks and DOC Medical and Forensics Director Paula Mattis
violated Daniel Casanova’s Eighth Amendment rights,
rendering them liable under 42 U.S.C. § 1983, in that:
a. 	Commissioner Hanks and Director Mattis
denied Mr. Casanova’s grievances asking for surgery
for injuries to his waist, back, and spine; and
b. 	Commissioner Hanks and Director Mattis held
supervisory authority, with respect to each officer
and nurse named as a defendant in this action, making
those supervisory officials responsible for their
subordinates’ misconduct alleged in Claims 1-5.
7. 	The defendants are subject to criminal charges for the
conduct underlying Claims 1-6.
Discussion
I. 	Preliminary Review
A. 	Standard
The court may dismiss claims asserted by a prisoner seeking
relief from a government agency or officer if: the court lacks
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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. § 1915(e)(2);
28 U.S.C. § 1915A. 	To determine whether to dismiss a claim for
failure to state a claim, the court strips away legal
conclusions, takes as true the factual content in the complaint
and inferences reasonably drawn from those facts, and considers
whether the 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)).
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).
B. 	CO Ramos: 8th Am. Excessive Force (Claim 1(a))
The Eighth Amendment prohibits COs from using excessive
force against prisoners in bad faith, maliciously, and
sadistically to cause harm. 	See Hudson v. McMillian, 503 U.S.
1, 6–7 (1992) (“whenever prison officials stand accused of using
excessive physical force in violation of the Cruel and Unusual
Punishments Clause, the core judicial inquiry is . . . whether
force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm”). 	An
Eighth Amendment excessive force claim “‘has two components --
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one subjective, focusing on the defendant’s motive for his
conduct, and the other objective, focusing on the conduct’s
effect.’” 	Staples v. Gerry, 923 F.3d 7, 13 (1st Cir.
2019) (citations omitted). 	“The subjective prong turns on
‘whether force was applied in a good faith effort to maintain or
restore discipline or maliciously and sadistically for the very
purpose of causing harm.’” 	Id. (citations omitted). 	As to the
objective prong, a prisoner must show that “the alleged
wrongdoing was objectively harmful enough to establish a
constitutional violation,” id. (internal quotation marks and
citations omitted), an inmate need not prove a “‘significant
injury’ in order to state an excessive force claim,” Wilkins v.
Gaddy, 559 U.S. 34, 36-37 (2020) (citation omitted).
The “factors” that “are relevant to that ultimate
determination” include “the extent of the threat to
the safety of staff and inmates, as reasonably
perceived by the responsible officials,” “the need for
the application of force,” “the relationship between
the need and the amount of force that was used,” “the
extent of the injury inflicted,” and “any efforts made
to temper the severity of a forceful response.”
Staples, 923 F.3d at 13 (quoting Whitley v. Albers, 475 U.S.
312, 321 (1986)).
Mr. Casanova’s allegations summarized here as Claim 1(a)
state an Eighth Amendment excessive force claim upon which
relief can be granted, as to CO Ramos’s use of force on October
15, 2021. 	In an Order issued this date, the court has directed
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service of this matter on CO Ramos, in his individual capacity,
and has directed CO Ramos to file an answer to Claim 1(a).
C. 	CO Ramos: Assault & Battery (Claims 1(b)(i)- (ii))
The same factual allegations, and the alleged impact of CO
Ramos’s conduct on Mr. Casanova, give rise to actionable claims
of the intentional torts of assault and battery under New
Hampshire law. 	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)). 	In the Order issued
this date, the court has directed service upon CO Ramos, in his
individual capacity of this matter, and has ordered CO Ramos to
file an answer to Claims 1(b)(i) and (ii).
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D. 	CO John Doe: 8th Am. Failure to Prevent Harm (Claim 4)
[A] prison official violates an inmate’s Eighth
Amendment right against cruel and unusual
punishment “based on a failure to prevent harm” to the
inmate only under two circumstances: “the inmate must
show that he is incarcerated under conditions posing a
substantial risk of serious harm,” and the prison
official must have acted, or failed to act,
with “deliberate indifference to inmate health or
safety.”
Lakin v. Barnhart, 758 F.3d 66, 70 (1st Cir. 2014) (quoting
Farmer v. Brennan, 511 U.S. 825, 834 (1994)). 	To demonstrate
deliberate indifference, a plaintiff must present evidence
showing that the defendant prison official’s conduct was
purposeful and not merely negligent, see Farmer, 511 U.S. at
835, and that the official was “both . . . aware of facts from
which the inference could be drawn that a substantial risk of
serious harm exist[ed], and he must also [have] draw[n] that
inference,” id. at 837.
Mr. Casanova’s allegations, summarized here as Claim 4,
state an Eighth Amendment deliberate indifference claim as to
SHU CO John Doe, for his failure to prevent harm to Mr. Casanova
relating to his conduct in twisting and pulling Mr. Casanova’s
fractured arm. 	As Mr. Casanova has not named that officer,
however, the Order issued this date does not direct SHU CO John
Doe to file a response to Claim 4 at this time. 	Mr. Casanova
may file a motion for discovery needed for the purpose of
identifying SHU CO John Doe, or Mr. Casanova may seek to amend
the complaint to name SHU CO John Doe and join him as a
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defendant, in accordance with any applicable rules or orders
issued in this case.
E. 	Nurses: 8th Am. Medical Care (Claims 2, 3)
The Eighth Amendment requires prison officials to provide
humane conditions of confinement to prisoners, including
necessary medical care for serious medical needs. 	See Farmer,
511 U.S. at 832. 	An Eighth Amendment medical care claim has
both objective and subjective elements. 	See Wilson v. Seiter,
501 U.S. 294, 298 (1991). 	Where an alleged failure to treat a
medical condition forms the basis of an inmate’s claim, the
objective component of the claim may be established by evidence
of a medical 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) (citation omitted). 	“The ‘seriousness’ of an
inmate’s needs may also be determined by reference to the effect
of the delay of treatment.” 	Abernathy v. Anderson, 984 F.3d 1,
6 (1st Cir. 2020) (citations omitted).
A showing of deliberate indifference to a substantial risk
of serious harm satisfies the subjective prong of an Eighth
Amendment claim. 	See Farmer, 511 U.S. at 834. 	An inmate
pleading deliberate indifference must allege facts showing that
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defendants were aware of circumstances that gave rise to an
inference that a substantial risk of serious harm existed; that
defendants drew the inference that such a risk existed; and that
defendants, by act or omission, did not take reasonable steps to
ameliorate the risk. 	See id. at 828-29; Leite v. Bergeron, 911
F.3d 47, 52–53 (1st Cir. 2018). 	Deliberate indifference may
also be manifested by “‘wanton disregard to a prisoner’s needs
. . . akin to criminal recklessness, requiring consciousness of
impending harm, easily preventable.” 	Abernathy, 984 F.3d at
6 (citation omitted).
Mr. Casanova’s allegations summarized here as Claims 2 and
3 state Eighth Amendment deliberate indifference claims upon
which relief can be granted under 42 U.S.C. § 1983, as to SHU
Nurse Jane Doe and Nurse Keith Larocque. 	In the Order issued
this date, the court has directed service upon Nurse Larocque,
in his individual capacity, and has directed Nurse Larocque file
an answer to Claim 3.
As Mr. Casanova has not named SHU Nurse Jane Doe, however,
the Order issued this date does not direct SHU Nurse Jane Doe to
file a response to Claim 2 at this time. 	Mr. Casanova may file
a motion for discovery needed for the purpose of identifying SHU
Nurse Jane Doe, or Mr. Casanova may seek to amend the complaint
to name SHU Nurse Jane Doe and join has as a defendant, in
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accordance with any applicable rules or orders issued in this
case.
F. 	Claims to Be Dismissed & Parties to Be Dropped
1. 	State of New Hampshire: 11th Am. Immunity
Mr. Casanova’s initial pleadings, see, e.g., Doc. No. 16,
seek damages from the State of New Hampshire. 	“Long interpreted
as an affirmation of state sovereign immunity, the [Eleventh]
Amendment . . . bars a citizen from bringing a federal court
action against his or her own State, including instrumentalities
of the state, such as state agencies.” 	Town of Barnstable v.
O’Connor, 786 F.3d 130, 138 (1 st Cir. 2015) (citation, brackets,
and quotation marks omitted). 	The Eleventh Amendment precludes
Mr. Casanova’s claims seeking to recover damages from the State
of New Hampshire. 	Accordingly, the district judge should
dismiss Mr. Casanova’s claims naming the State of New Hampshire
as a defendant, as well as his claims seeking damages from any
defendant in his or her official capacity. 	Additionally, the
State of New Hampshire should be dropped as a defendant.
2. 	Criminal Prosecution (Claim 7)
Mr. Casanova seeks to have defendants prosecuted for
criminal acts. 	In general, a plaintiff does not have standing
to bring claims of criminal misconduct in a civil case. 	See
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Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private
citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another.”). 	Accordingly, the
district judge should dismiss Mr. Casanova’s claims seeking to
charge defendants with criminal misconduct (Claim 7).
3. 	SHU CO John Doe: Claim 5
In the allegations summarized and identified here as Claim
5, Mr. Casanova alleges that SHU CO John Doe left him in the
bathroom for an extended period of time (“fifteen hours”), in
violation of Mr. Casanova’s Eighth Amendment rights. 	Mr.
Casanova’s allegations summarized in Claim 5 in this R&R do not
show that he was subjected to a substantial risk of serious harm
by being left in the bathroom for the time period alleged.
Moreover, Mr. Casanova has not asserted any factual allegations
showing that SHU CO John Doe was subjectively aware of facts
suggesting that leaving him in the bathroom for that time period
would subject Mr. Casanova to such a substantial risk of serious
harm. 	Accordingly, without more, Mr. Casanova’s assertion that
he was left in a bathroom for fifteen hours does not state a
claim upon which relief can be granted under 42 U.S.C. § 1983,
and the district judge should dismiss Claim 5.
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4. 	Supervisory Defendants
a. 	Denial of Grievances (Claim 6(a))
In Claim 6(a), Mr. Casanova alleges that Commissioner Hanks
and Director Mattis failed to grant his grievances seeking
surgery for his back, waist, and spinal injuries in December
2021 and January 2022. 	Mr. Casanova has filed copies of his
grievances and request slips asking for such surgery, as well as
Director Mattis’s response that the specialists who had examined
him had not recommended surgery, and that no other providers had
recommended surgery. 	Other documents filed by Mr. Casanova
indicate that he: was receiving physical therapy in January
2022; had been prescribed pain relievers; and would be meeting
with a health care provider to discuss his chronic back pain
issues. 	Absent any further factual allegations demonstrating
that Director Mattis or Commissioner Hanks were aware of and
deliberately indifferent to any known risk of serious harm when
they denied his grievances requesting surgery in December 2021-
January 2022, Mr. Casanova has failed to state a claim upon
which relief can be granted under 42 U.S.C. § 1983.
Accordingly, the district judge should dismiss Claim 6(a).
b. 	Supervisory Authority (Claim 6(b))
In Claim 6(b), Mr. Casanova asserts claims against
Commissioner Hanks and Director Mattis based on their
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supervisory authority over other defendants who Mr. Casanova
alleges violated his Eighth Amendment rights. 	“Generally, a
supervisor cannot be held liable under 42 U.S.C. § 1983 on a
respondeat superior theory.” 	Justiniano v. Walker, 986 F.3d 11,
20 (1st Cir. 2021) (citations and brackets omitted). 	Section
1983 liability “cannot rest solely on a defendant’s position of
authority.” 	Ramírez-Lluveras v. Rivera-Merced, 759 F.3d 10, 19
(1st Cir. 2014). 	Accordingly, the district judge should dismiss
Claim 6(b), and drop Commissioner Hanks and Director Mattis as
defendants, as their positions of authority alone do not provide
grounds for finding them liable for their subordinates’ conduct.
II. 	Motions for Summary Judgment (Doc. Nos. 13, 24, 28)
Before the court are three filings entitled “Motion for
Summary Judgment” (Doc. Nos. 13, 24, 28), which Mr. Casanova
filed before this court completed its preliminary review of the
complaint. 	Those motions are premature as no defendant has been
served, none have appeared, and none have had the opportunity to
conduct discovery. 	Accordingly, the district judge should deny
the three motions for summary judgment (Doc. Nos. 13, 24, 28)
without prejudice to plaintiff’s ability to move for summary
judgment at a later stage of this case.
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Conclusion
For the foregoing reasons, the magistrate judge recommends
that the district judge:
1. 	Dismiss Claims 5, 6(a), 6(b), and 7, and all
claims asserted against the State of New Hampshire;
2. 	Drop DOC Commissioner Helen Hanks, DOC Medical
and Forensics Director Paula Mattis, and the State of New
Hampshire as defendants; and
3. 	Deny Mr. Casanova’s three motions for summary
judgment (Doc. Nos. 13, 24, 28), without prejudice, as
premature.
Any objections to this R&R 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.
Only those issues raised in the objection(s) to this Report
and Recommendation are subject to review in the district court.
See Sch. Union No. 37 v. United Nat’l Ins. Co., 617 F.3d 554,
564 (1st Cir. 2010). 	Any issues not preserved by such
objection(s) are precluded on appeal. 	See id. 	Failure to file
any 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
Date: 	February 28, 2022
cc: 	Daniel Casanova, pro se
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