Beers v. NH State Prison, Warden et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Timothy Beers
v. 	Case No. 20-cv-968-LM
Warden, New Hampshire
State Prison, et al.
Report and Recommendation
Timothy Beers, who is an inmate at the New Hampshire State
Prison and is proceeding pro se, filed a civil rights complaint
against the Warden and state prison employees alleging violation
of his constitutional rights. Beers claims for inadequate
medical and dental care in violation of the Eighth Amendment
have been served. Beers has moved to amend his complaint and
moved to hold the warden in contempt. Docs. nos. 51, 53, 54, 55,
60, & 61. The motions to amend are referred for preliminary
review, and the motion for contempt has been referred for a
report and recommendation.
Background
On preliminary review, the court found that Beers alleged
claims for deliberate indifference to his serious medical needs
for working hearing aids and prescribed medications (Claims 1(a)
and (b)) and for dental care (Claim 2), as alleged in documents
nos. 1 and 18. Docs. nos. 10, 21, 29, 30, & 40. Beers did not
state cognizable claims under the Eighth Amendment for a lack of
routine examinations and treatments or other medical
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accommodations (Claims 1(c) and 1(d)); supervisory liability,
Claim 3; and retaliation, Claim 4. With respect to those claims,
the court granted Beers the opportunity to amend his complaint.
The court dismissed two claims that the prison’s medical care
violated Beers’s right to equal protection under the Fourteenth
Amendment (Claims 5 and 6), a claim that certain officers
removed money from Beers’s account in violation of the Eighth
Amendment (Claim 7), and a claim that certain employees violated
Beers’s rights under the First and Fourteenth Amendments by
interfering with his court mail (Claim 8). Doc. no. 44.
Beers filed several responses to the report and
recommendation on preliminary review along with motions to add
other claims. Beers’s motion for injunctive relief to provide
additional library time was denied. Docs. nos. 29 & 44. The
district judge dismissed the claims identified in report and
recommendation that were insufficient but could have been
amended, Claims 1(c) and 1(d), 3, and 4, and granted Beers an
opportunity to amend his complaint to add a claim that prison
employees were interfering with his legal mail in violation of
his constitutional rights. Docs. nos. 44 & 48. The district
judge granted defendant Bernie Campbell’s motion to dismiss. Doc
no. 44. The remining defendants are Dr. Thomas Groblewski,
Alexis M. Isabelle, and Registered Nurse John/Jane Does, #1-8.
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In response, Beers filed the motions that are addressed in
this report and recommendation.
Discussion
Beers moves to amend his complaint to add a claim about the
prison mailroom and alleges that the prison grievance procedure
is broken. Docs. nos. 51 & 55. He moves to add a claim that Dr.
Groblewski and his staff refused to treat his diabetes, showing
deliberate indifference to his serious medical need. Doc. no.
54. He moves to bring a claim for injunctive relief to have the
court stop the New Hampshire Department of Corrections from
retaliating against him by not paying him for 4 weeks of work
and alleges that the grievance system is not working to correct
the problem. Doc. no. 60. He also moves to amend his previous
claim for supervisory liability (Claim 3). Doc. no. 61. Separate
from the motions to amend, Beers moves to have the warden held
in contempt of court for failing to have Beers transported to a
hearing scheduled in this court on April 4, 2022. Doc. no. 53.
A. 	Preliminary Review
Pursuant to this court’s authority to subject inmate
complaints and complaints filed in forma pauperis to preliminary
review, Beer’s motions seeking to amend the complaint (docs.
nos. 51, 54, 55, 60, and 61) are subject to preliminary review.
The court may dismiss claims sua sponte if the court lacks
subject matter jurisdiction, a defendant is immune from the
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relief sought, the complaint fails to state a claim, or the
action is frivolous or malicious. See 28 U.S.C. §§ 1915A(b),
1915(e)(2); LR 4.3(d)(1). In determining whether a pro se
pleading states a claim, the court must construe the pleading
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 inferences reasonably drawn from those facts,
strips away the legal conclusions, and considers whether the
plaintiff has stated a claim for relief 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)).
1. Motion to Amend to Add Claims Challenging Mailroom
Procedures and Grievance System
Beers moves to add a claim challenging the actions of
prison employees in the mailroom and a claim challenging the
prison’s grievance system. Docs. nos. 51 & 55. With respect to
the mailroom claim, he alleges that mailroom employees have
opened and read his legal mail when he was not present and have
not sent some of his mail, including motions to the court in
this case. He also alleges that the prison’s grievance system is
broken, which causes violations of his First Amendment rights.
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a. Incoming Mail
Opening an inmate’s legal mail outside his presence may
violate his First Amendment rights. Hayes v. Idaho Corr. Ctr.,
849 F.3d 1204, 1210 (9th Cir. 2017). Legal mail, for purposes of
constitutional protections, is limited to confidential mail
between an inmate and his counsel and not does not include mail
to and from the courts. Id. at 1211. As stated in the report and
recommendation, generally court mail is a matter of public
record and inspection of court mail does not violate an inmate’s
federal constitutional rights. See Martin v. Brewer, 830 F.2d
76, 78 (7th Cir. 1987). In addition, to show a violation of his
First Amendment right of access to the courts, an inmate must
show that the defendants’ actions caused him actual injury in
violation of his right of access to the courts. See Lewis v.
Casey, 518 U.S. 343, 351 (1996).
Because mail from the court is public, Beers has not
alleged a viable claim that prison employees violated his
constitutional rights by opening and/or reading his incoming
mail from the court. See, e.g., Ash-Shaheed v. FCI Berlin, No.
21-cv-227-LM, 2021 U.S. Dist. LEXIS 88181, 2021 WL 1795636, at
*1 (D.N.H. Mar. 26, 2021) (citing cases) (holding that no
constitutional violation occurs when prison employees open mail
addressed to an inmate from the court). To the extent Beers
alleges that prison employees violated his constitutional rights
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by opening and reading mail to him from an attorney representing
a defendant in this case, that allegation does not appear to
implicate legal mail and Beers has not alleged that any injury
resulted.
b. Outgoing Mail
Obstruction of or interference with an inmate’s outgoing
mail to the court may violate the inmate’s First Amendment right
to access the courts. See Davis v. Goord, 320 F.3d 346, 351 (2d
Cir. 2006). Occasional interference with mail, however, does not
support a constitutional violation. Winston v. Acuff, No. 21-cv-
01134-JPG, 2021 U.S. Dist. LEXIS 225163, 2021 WL 5493391, at *4
(S.D. Ill. Nov. 22, 2021); McNeill v. Poole, 1:17CV924, 2020
U.S. Dis. LEXIS 122433, 2020 WL 3960951, at *6 (M.D.N.C. July
13, 2020). If obstruction is sufficiently alleged, the inmate
also must allege facts to show that he suffered an injury as the
result of the obstruction of his mail. Johnson v. Barone, No.
3:21CV1514(KAD), 2022 U.S. Dist. LEXIS 20310, 2022 WL 344272, at
*3 (D. Conn. Feb. 4, 2022); Riddick v. Gilbert, No. 7:20CV00598,
2021 U.S. Dist. LEXIS 143938, 2021 WL 3285336, at *2 (W.D. Va.
Aug. 2, 2021).
Beers alleges that the prison mail room employees failed to send
2 motions to the court in this case and alleges that they failed
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to send many letters.1 Despite the problems he alleges, Beers has
made 26 filings in this case, including 7 filings during the
time that he alleges his motions and letters were withheld by
prison employees. He has not shown that any delay in filing the
2 motions or the absence of the letters has prejudiced his case
here.2 Based on the allegations in his complaint and his motion
to amend, Beers has not stated a claim against prison mailroom
employees for interfering with his mail.
His motion to amend to add a claim about interference with
his mail (doc. no. 55) should be denied.
c. Grievance Procedure
Beers alleges that the prison’s grievance procedure is
broken because he did not receive responses to the grievances
that he filed. As an example, Beers filed a copy of a grievance
he sent to the Commissioner of the New Hampshire Department of
Corrections in which he stated that the Warden and a major at
1 Beers generally alleges that “many” motions were not sent
by the mailroom employees but provides no specific information
about any other unsent motions.
2 Beers states that his experience is the same as the
prisoners at the Strafford County jail as alleged in Human
Rights Defense Center v. Board of County Commissioners for
Strafford County, 22-cv-91 (D.N.H. filed on Mar. 11, 2022). He
is mistaken. That case is brought by a nonprofit entity that is
seeking injunctive relief to be allowed to send its publications
to prisoners at the Strafford County jail. Beers’s allegations
have no relationship to the issues in that case.
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the prison did not investigate or solve the problems he
identified in grievances sent to them. He alleges that prison
officials’ failure to respond to his grievances violates his
First Amendment rights. Doc. nos. 51.
Prisoners do not have a constitutional right to a grievance
procedure or to receive responses to grievances. Walker v.
Matteson, No. 21-12013-RGS, 2022 U.S. Dist. LEXIS 95413, 2022 WL
1719290, at *4 (D. Mass. May 27, 2022). In addition, the
examples that Beers provides show that he did receive responses,
which included asking for more information. His dissatisfaction
with the responses he received does not show a violation of his
constitutional rights. He has not raised an actionable claim
that the grievance procedure at the prison is not functioning.
2. Motion to Amend the Medical Claim
Beers moves to “stop medical from not providing medicine
for the victim’s diabetes.” Doc. no. 54, at 1 (edited). He
alleges that Dr. Groblewski and his staff refused to correct
Beers’s blood sugar before December of 2021. He alleges that “NP
Sara” has not helped him for the past 4 months, has lowered the
dose of his diabetes medication, and has not corrected the
problem or responded to his request slips. He further alleges
that he “had to go through the Pharmacy to have the problems
corrected by medical.” Doc. no. 54, at 2.
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The court has determined that Beers states a claim under
the Eighth Amendment for deliberate indifference to his serious
medical needs for failing to provide him with prescribed
medications. Doc. no. 10, at 5, Claim 1(b); Doc. no. 30, at 8-
10. That claim was served on Dr. Groblewski and Registered Nurse
John/Jane Does, #1-8. In his current motion, Beers identifies
one of the Jane Doe nurses as “NP Sara.” Beers’s allegations in
this motion are focused on his diabetes medication, and for that
reason, his allegations are construed as part of Claim 1(b).
Beers’s Eighth Amendment claim against Dr. Groblewski,
alleging that Dr. Groblewski failed to provide him with needed
medication, is supplemented by this motion to include failure to
provide diabetes medication.3 Nurse Practitioner Sara, who may
have been included in the Registered Nurse John/Jane Does
previously named in Claim 1(b), is added as a defendant in Claim
1(b). Therefore, Beers’s motion to amend his complaint (doc. no.
54) is granted to add allegations against Dr. Groblewski and NP
Sara, about their failure to provide diabetes medication, in
support of Claim 1(b) but should otherwise be denied.
3 Beers alleges that other inmates have also experienced
problems with the medical staff at the prison and states that
his trying to help those inmates. Beers cannot bring claims on
behalf of anyone but himself. No claims of other inmates are
recognized in this case.
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3. Retaliation Claim
In his motion, Beers alleges that the NHDOC is retaliating
against him by not paying him for work he has done. Doc. no. 60.
As the court previously explained, to state a First Amendment
retaliation claim Beers must allege facts that:
(1) identify the specific individual(s) who allegedly
retaliated against him, (2) allege additional facts
showing what specific adverse action each identified
defendant took against Beers, (3) show how each
adverse action was non-de minimis, and (4) allege
facts showing how Beers’s engagement in activities
protected by the First Amendment was a but-for cause
for each allegedly adverse action taken against him.
Doc. no. 30, at 14 (citing doc. no. 11, at 16-17); see also
Falmouth Sch. Dep’t v. Doe, 44 F.4th 23, 47 (1st Cir. 2022).
Beers has not provided any allegations to meet the requirements
for a First Amendment retaliation claim. In addition, to the
extent Beers is referring to his prior allegations about
disability discrimination, those claims are not part of this
case. Doc. no. 30, at 15-16; Doc. no. 44.
Therefore, his motion to amend to add a retaliation claim
(doc. no. 60) should be denied.
4. Supervisory Liability Claim
Beers moves to add a claim for supervisory liability based
on “new evidence.” Doc. no. 61, at 1. He alleges that Dr.
Groblewski, Bernie Campbell, Paula Mattis, Warden Edmark,
Commissioner Hanks, Major Fouts, Chris Kench, Lynmarie Cusack,
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Captain Masse, and Governor Sununu all are liable under § 1983
as supervisors. The court previously dismissed Beers’s
supervisory liability claims against some of the same officials
because he failed to allege facts to show causation and
deliberate indifference. Doc. no. 30, at 14; Doc. no. 44.
To state a claim for supervisory liability under § 1983,
Beers must plausibly allege that a supervisor’s subordinate
abridged his constitutional right and allege facts that show “an
affirmative link between the abridgement and some action or
inaction on the supervisor’s part.” Parker v. Landry, 935 F.3d
9, 14 (1st Cir. 2019). The affirmative link may be shown by
“behavior that constitutes supervisory encouragement,
condonation or acquiescence, or gross negligence . . . amounting
to deliberate indifference.” Id. (cleaned up). “A showing of
deliberate indifference has three components: the plaintiff must
show (1) that the officials had knowledge of facts, from which
(2) the officials can draw the inference (3) that a substantial
risk of serious harm exists.” Id. at 15 (cleaned up). The
“supervisor’s deliberate indifference must lead in a straight
line to the putative constitutional violation.” Id.
Beers alleges that the named individuals, as supervisors,
did not correct issues about medical services that he raised in
grievances. He focuses on a failure to provide him with
prescribed medication for his diabetes. He alleges that he sent
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grievances to each of the named supervisors and that they failed
to provide the services he needed and failed to correct the
problems with medical services that he identified in the
grievances.4
To state a claim for supervisory liability, Beers must
allege facts that show an affirmative link between the action or
inaction of the supervisor and the constitutional violation he
is alleging to show that the supervisor’s conduct caused the
constitutional violation perpetrated by the subordinate. Parker,
935 F.3d at 14. Mere knowledge of the misconduct of a
subordinate does not show that a supervisor is deliberately
indifferent to the subordinate’s violation of a constitutional
right. Maldonado v. Fontanes, 568 F.3d 263, 275 (1st Cir. 2009).
Denying a grievance and failing to act based on information
provided in a grievance, alone, is not sufficient to support
supervisory liability under § 1983. Justice v. Sununu, No. 20-
cv-517-PB, 2022 U.S. Dist. LEXIS 235485, 2022 WL 18275895, at
*11 (D.N.H. Dec. 2. 2022). Instead, Beers must allege facts that
show, with reasonable inferences, both that the supervisor was
deliberately indifferent to his serious medical need and that
4 Although Beers says the grievances were submitted with the
motion, they were not. Beers did submit grievances with a
subsequent motion, doc. no. 61, and those grievances were
considered for purposes of this motion.
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the supervisor’s actions or inaction caused the violation to
occur. Doc. no. 10, at 14.
In relation to the diabetes medication, Beers alleges that
Dr. Groblewski knew about his need for the medication, knew
about the medical staff’s change or failure to renew the
prescription, and failed to have his subordinates correct the
problem. Although meager, Beers alleges facts to state a
supervisory liability claim against Dr. Groblewski. His motion
to amend the complaint is allowed to add a claim of supervisory
liability, Claim 3, against Dr. Groblewski.
Beers has not alleged sufficient facts to state a
supervisory liability claim against the other named supervisors,
who include prison officers, the warden, the commissioner, and
the governor. Beers states that the supervisors were notified of
his need for and deprivation of prescribed medications for
diabetes through the grievances he filed but provides no detail
to show that to be true. See Doc. no. 10, at 13-14.
The grievances that Beers filed show that he asked Paula
Mattis to investigate and correct “the problem.”5 Doc. no. 61-1,
at 9. In response, Mattis asked what problem needed correcting
and directed Beers to contact his medical provider about
5 Beers did not identify Paula Mattis’s role at the prison.
She is the Director of Forensic and Medical Services. Johnson v.
Englander, No. 20-cv-398-JL, 2023 U.S. Dist. LEXIS 4698, 2023 WL
159640, at *1 (D.N.H. Jan. 11, 2023).
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medication or to go to sick call. Mattis also told Beers that he
was expected to participate in his own health care. In a
subsequent response, Mattis wrote that Beers continued to
disregard the grievance rules about providing specific
information. Dissatisfied, Mattis sent a grievance to the
commissioner, stating that Mattis was not doing her job. The
grievance was sent to Mattis who responded that she was doing
her job to be sure that Mattis had access to health care.
None of the interactions demonstrated in the grievances and
responses show that Mattis or any other supervisor engaged in
conduct such as condonation, acquiescence, or gross negligence,
amounting to deliberate indifference, that caused a subordinate
to violate Beers’s Eighth Amendment rights. For that reason, he
does not state a claim of supervisory liability against the
additional supervisors listed in the motion.
Therefore, Beers is allowed to amend his complaint to add a
supervisory liability claim against Dr. Groblewski. His motion
to add claims of supervisory liability against the other named
supervisors should be denied.
B. Motion to Hold Warden in Contempt
Beers moves to hold the warden in contempt for failing to
transport Beers to the court for the pretrial conference
scheduled in April of 2022. Doc. no. 53. Beers asserts in his
motion that he notified the warden of the hearing and that he
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has sent grievances about the failure to transport him. In
response, counsel for defendant Alexis Isabelle acknowledges
that it was his responsibility to keep the warden informed about
the hearing for purposes and that he did not fulfill that
responsibility due to his lack of experience.
“To prove civil contempt, the moving party . . . must show
by clear and convincing evidence that: (1) the alleged contemnor
had notice of the order, (2) the order was clear and
unambiguous, (3) the alleged contemnor had the ability to comply
with the order, and (4) the alleged contemnor violated the
order.” Rodriguez-Miranda v. Benin, 829 F.3d 29, 46 (1st Cir.
2016). Beers has not satisfied any of the requirements for a
civil contempt order. Instead, the transport issue was a mistake
due defense counsel’s lack of familiarity with the process.
Therefore, Beers’s motion to hold the warden in contempt of
court should be denied.
Beers also asks the court to issue another transport order
and to have the U.S. Marshals Service transport him to the
court. Because of the motions Beers filed required preliminary
review, there is no pretrial conference currently scheduled and,
therefore, no need for a transport order. As stated in the
court’s order dated April 4, 2022, a pretrial conference will be
scheduled after preliminary review is complete.
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Conclusion
For the foregoing reasons, those parts of Beers’s motions
to amend (docs. nos. 51 and 61) are granted in part to add a
claim against NP Sara LNU as part of Claim 1(b) and to add a
supervisory liability claim against Dr. Groblewski. The district
judge should deny the remainder of those motions and should also
deny Beers’s motions to amend and for contempt (documents no.
53, 54, 55, and 60).
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. Only those issues raised in the objection to this
Report and Recommendation are subject to review in the district
court. See Sch. Union No. 37 v. United Natl 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
February 9, 2023
cc: 	Timothy Beers, pro se
Counsel of record
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