Gigliotti v. Northern NH Correctional Facility et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Cody Gigliotti
v. Civil No. 24-cv-09-JL-TSM
Northern N.H. Correctional Facility
Capt. FNU Nadeau and Lt. FNU Sweat
REPORT AND RECOMMENDATION
Before the court is Northern New Hampshire Correctional Facility (“NCF”) prisoner Cody
Gigliotti’s complaint (Doc. No. 1), as well as his motion for a preliminary injunction (Doc. No. 2),
which assert that the defendant corrections officers, NCF Capt. Nadeau and NCF Lt. Sweat, whose
first names are unknown (“FNU”), have violated, and continue to violate, his Eighth Amendment
rights by failing to protect him from a threat of inmate-on-inmate violence presented by his former
cellmate, a prisoner he says is known to be a sexual predator. Mr. Gigliotti seeks damages as well
as injunctive relief directing defendants to keep him separated from his former cellmate. Mr.
Gigliotti’s pleadings are here for preliminary review, under 28 U.S.C. § 1915A and LR 4.3(d)(1).
Background
Mr. Gigliotti alleges that in September 2023, he was celled at NCF with a person who he
alleges was known to be a sexual predator. Mr. Gigliotti asserts that his cellmate asked him for
sexual favors at that time. Mr. Gigliotti reported that incident to defendants NCF Capt. Nadeau
and NCF Lt. Sweat and asked to be separated from that person. The defendants “laughed in his
face” and said his problem was, “No big deal.”
Defendants placed him and that other prisoner in separate cells but refused to put them in
different units or facilities to separate them. Mr. Gigliotti asserts that his former cellmate is still
able to “get his hands on” Mr. Gigliotti. He further alleges that he lives in constant fear of being
Case 1:24-cv-00009-JL-TSM Document 5 Filed 01/11/24 Page 1 of 5

2
raped by that person, a risk he asserts that defendants have not addressed or adequately
ameliorated. He asserts claims of violations of his First, Fifth, Eighth, and Fourteenth Amendment
rights and seeks damages and injunctive relief.
Discussion
I. Preliminary Standard
The court conducts a preliminary review of complaints filed by prisoners seeking relief
from government agents. See LR 4.3(d)(1); see also 28 U.S.C. § 1915A. In considering whether
the complaint states a claim, the court determines whether, stripped of legal conclusions, and with
all reasonable inferences construed in the plaintiff’s favor, the complaint contains “sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Claims may be dismissed, sua sponte, if the
court lacks jurisdiction, a defendant is immune from the relief sought, or the complaint fails to
state a claim upon which relief may be granted. See 28 U.S.C. § 1915A; LR 4.3(d)(1)(A). Because
Mr. Gigliotti is proceeding pro se, the court construes his filings liberally. See Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam).
II. Eighth Amendment Failure to Protect Claim
The Eighth Amendment prohibition against cruel and unusual punishment, applied to the
States through the Fourteenth Amendment, requires prison officials to provide humane conditions
of confinement to inmates, including protection from substantial risks of serious
harm. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). An Eighth Amendment endangerment
claim has both objective and subjective elements. See Wilson v. Seiter, 501 U.S. 294, 298
Case 1:24-cv-00009-JL-TSM Document 5 Filed 01/11/24 Page 2 of 5

3
(1991). The objective component is satisfied when the deprivation at issue denies prisoners “‘the
minimal civilized measure of life’s necessities.’” Id. (citation omitted).
A showing of deliberate indifference to a substantial risk of serious harm satisfies the
subjective prong. See Farmer, 511 U.S. at 834. A prisoner pleading deliberate indifference must
show that 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 be
manifested by “‘wanton disregard to a prisoner’s needs . . . akin to criminal recklessness, requiring
consciousness of impending harm, easily preventable.” Abernathy v. Anderson, 984 F.3d 1, 6 (1st
Cir. 2020) (citation omitted). To prevail on an Eighth Amendment claim, a plaintiff must show
that the defendant’s conduct was purposeful and not merely negligent. See id.
The facts alleged in the Complaint are sufficient to state a claim of Capt. Nadeau’s and Lt.
Sweat’s deliberate indifference to a substantial risk of serious harm to Mr. Gigliotti, based on their
acts and omissions, after they received specific notice of the threat presented to him by his former
cellmate. Accordingly, in the Service Order this date, the court has directed those defendants to
file an answer to the Complaint’s Eighth Amendment failure-to-protect claim.
III. Eleventh Amendment
The Eleventh Amendment generally precludes a plaintiff from suing the State or its
agencies in federal court, unless the State has waived its Eleventh Amendment immunity, or a
federal law provides the requisite waiver or abrogation of that immunity. See Town of Barnstable
v. O’Connor, 786 F.3d 130, 138 (1st Cir. 2015). No waiver or abrogation of the Eleventh
Amendment immunity applies to any of Mr. Gigliotti’s claims asserted against the NCF or his
Case 1:24-cv-00009-JL-TSM Document 5 Filed 01/11/24 Page 3 of 5

4
claims for damages asserted against defendants in their official capacities. See Will v. Mich. Dep’t
of State Police, 491 U.S. 58, 65-66 (1989) (“Congress, in passing § 1983, had no intention to
disturb the States’ Eleventh Amendment immunity” (citation omitted)); Davidson v. Howe, 749
F.3d 21, 27 (1st Cir. 2014). Accordingly, the district judge should dismiss all of Mr. Gigliotti’s
claims against the NCF, as well as all of his claims for damages asserted against the individual
officers in their official capacities, because of the Eleventh Amendment.
The Eleventh Amendment does not bar claims asserted against defendants in their personal
capacities. See Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 531 (1st Cir. 2009). And
the Eleventh Amendment does not bar federal claims asserted against state officers sued in their
official capacities for continuing violations of the plaintiff’s constitutional rights, seeking
prospective relief. Cf. Doe v. Shibinette, 16 F.4th 894, 903 (1st Cir. 2021) (“In determining
whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need
only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation
of federal law and seeks relief properly characterized as prospective.” (internal quotation marks
and citation omitted)). Applying those authorities, Mr. Gigliotti’s Eighth Amendment claims for
damages asserted against defendants in their individual capacities, along with his claims for
prospective injunctive relief asserted against them in their official capacities, may proceed.
IV. Remaining Claims
Without clarifying the nature of his First Amendment claims, Mr. Gigliotti asserts that
defendants are liable to him for violating the First Amendment. In that the plaintiff has not alleged
facts sufficient to state any claim upon which relief can be granted for a violation of the right to
free expression, to petition to government for a redress of grievances, to freely practice religion,
to avoid the establishment of religion, or to engage in any other conduct protected by the First
Case 1:24-cv-00009-JL-TSM Document 5 Filed 01/11/24 Page 4 of 5

5
Amendment, the district judge should dismiss his First Amendment claims for failure to state a
claim upon which relief can be granted.
Mr. Gigliotti also cites the Fifth Amendment as a source of law for his claims, without
further elaboration. Mr. Gigliotti has failed to plead any facts sufficient to state a claim for a
violation of any of his rights protected by the Fifth Amendment. Accordingly, the district judge
should dismiss his insufficiently-pleaded Fifth Amendment claims, for failure to state a claim upon
which relief can be granted.
Conclusion
For the foregoing reasons, the district judge should dismiss all of Mr. Gigliotti’s claims
asserted against the NCF, all of his claims for damages asserted against defendants in their official
capacities, and all of his First Amendment and Fifth Amendment claims asserted against any
defendant.
Any objections to this Report and Recommendation must be filed within fourteen days of
receipt of this notice. Fed. R. Civ. P. 72(b)(2). The fourteen-day period may be extended upon
motion. Failure to file any objection 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). Only
those issues raised in the written objections to this Report and Recommendation “‘are subject to
review in the district court,’” and any issues “‘not preserved by such objection are precluded on
appeal.’” Id. (citations omitted).
_______________________________
Talesha L. Saint-Marc
United States Magistrate Judge
January 11, 2024
cc: Cody Gigliotti, pro se
Case 1:24-cv-00009-JL-TSM Document 5 Filed 01/11/24 Page 5 of 5