Cole v. NH Department of Corrections

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Christopher P. Cole
v. 	Case No. 19-cv-360-PB
New Hampshire Dep’t of Corrections
REPORT AND RECOMMENDATION
Before the court is pro se plaintiff Christopher P. Cole’s
amended complaint, which the court construes as having been
filed pursuant to 42 U.S.C. § 1983. 	(Doc. No. 8). 	The amended
complaint is before this magistrate judge for preliminary
review, pursuant to 28 U.S.C. § 1915(e)(2) and LR 4.3(d)(2).
Background
On April 4, 2019, Cole filed the cover sheet for a civil
complaint in this court, see Doc. No. 1, naming himself as
plaintiff and the New Hampshire Department of Corrections
(“NHDOC”) as the only defendant. 	The court entered an order
providing Cole the opportunity to file an amended complaint
stating with specificity the facts underlying his case and
identifying why any individual not immune from the relief sought
should be held liable. 	See April 17, 2019 Order (Doc. No. 6) at
3 (citing New Hampshire v. Ramsey, 366 F.3d 1, 14 (1st Cir.
2004) (state agencies are not proper defendants in federal
court, absent a waiver of Eleventh Amendment immunity)).
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Cole filed the instant amended complaint on April 19, 2019,
again naming only the NHDOC as defendant. 	The amended complaint
is not a model of clarity, and most of the allegations in it,
and the 84 pages of attachments, are disjointed and appear to
reflect disordered or delusional thinking.
Cole alleges that prior to October 18, 2017, he had been a
parolee living in the community. 	He was re-arrested at the
Concord Hospital on October 18, 2017, pursuant to a warrant,
which Cole describes as only partially completed and dated
October 19, 2017, issued by the New Hampshire Adult Parole Board
(“APB”). 	The arresting officers handcuffed and shackled him,
before they transported him to an isolation tank at the New
Hampshire State Prison (“NHSP”) on that date.
Cole alleges that he appeared before the APB on November
14, 2017 and was told he would be released on April 14, 2018.
Cole alleges that while incarcerated, he was transferred to the
Northern New Hampshire Correctional Facility (“NCF”) in November
2018. 	At NCF, Cole was strip searched twice in January 2019 and
charged with and found guilty of multiple disciplinary
violations arising from incidents related to the strip searches.
Cole further alleges that he was released from prison on
February 27, 2019.
Cole seeks compensation for alleged violations of his
rights under the Fourth, Eighth, and Fourteenth Amendments,
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relating to his arrest, detention, strip searches, and prison
disciplinary proceedings, as well as for false imprisonment and
other torts under state law.
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)(2). 	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).
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Discussion
I. 	Federal Claims
Cole has named the NHDOC as the sole defendant in this
action. 	The Eleventh Amendment bars suits in federal courts
against a state unless the state has waived its sovereign
immunity or Congress has exercised its power to override
sovereign immunity. 	Will v. Mich. Dep’t of State Police, 491
U.S. 58, 66 (1989).
Because Cole seeks to hold the state agency that runs the
state prisons liable for violations of his federal
constitutional rights, he necessarily seeks to invoke 42 U.S.C.
§ 1983 to provide him with a cause of action. 	Section 1983
provides as follows:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress
....
Id. (emphasis added). 	A state is not a person within the
meaning of § 1983, and Congress has not abrogated states’
Eleventh Amendment immunity in civil rights cases brought under
that section. 	Will, 491 U.S. at 64. 	Because the state is not a
person and cannot be sued for damages in a § 1983 claim, state
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agencies also are not persons for purposes of § 1983. 	Fantini
v. Salem State College, 557 F.3d 22, 33 (1st Cir. 2009) (“It is
well settled that neither a state agency nor a state official
acting in his official capacity may be sued for damages in a
section 1983 action.” (internal alterations, citations, and
quotations omitted)).
Accordingly, this court cannot consider the merits of
Cole’s claims for damages for alleged violations of his federal
constitutional rights against the only defendant he has named in
this action. 	Therefore, the district judge should dismiss
Cole’s federal claims.
II. 	State Law Claims
Cole asserts state law claims, naming the NHDOC as the
defendant. 	The district judge should dismiss those tort claims,
pursuant to 28 U.S.C. § 1367(c)(3), in light of the absence of
abrogation or a waiver of the state’s Eleventh Amendment
immunity, without prejudice to Cole’s ability to assert his tort
claims in an action filed against appropriate defendants in a
court of competent jurisdiction. 	See Lebrón v. Puerto Rico, 770
F.3d 25, 32 (1st Cir. 2014) (“Unless a state consents, ‘a suit
in which the State or one of its agencies or departments is
named as the defendant is proscribed by the Eleventh
Amendment.’” (citation omitted)).
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Conclusion
For the foregoing reasons, the district judge should
dismiss this action, without prejudice to Cole’s ability to file
a new lawsuit in a court with jurisdiction over his claims,
naming proper defendants who may be held liable for the relief
sought. 	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 16, 2019
cc: 	Christopher P. Cole, pro se
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