Barry v. NH Department of Corrections et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Timothy Barry
v. Civil No. 24-cv-429-LM-AJ
N.H. Department of Corrections
Commissioner, et al.1
REPORT AND RECOMMENDATION
Self-represented plaintiff, Timothy Barry, who is
incarcerated at the New Hampshire State Prison for Men (“NHSP”),
filed a Complaint (Doc. No. 1) under 42 U.S.C. § 1983 against
the (former) Commissioner of the New Hampshire Department of
Corrections (“NHDOC”) Helen Hanks, NHSP Lt. DeMoss (first name
unknown (“FNU”)), and four unnamed NHSP Corrections Officers
(identified here as John Does 1-4), concerning two incidents
involving the use of force against him at the NHSP on December
29, 2021. Mr. Barry’s Complaint is before the undersigned
Magistrate Judge for preliminary review under LR 4.3(d)(1) and
28 U.S.C. § 1915A(a).
1 The court liberally construes the Complaint as intending to
name (former) N.H. Department of Corrections (“NHDOC”)
Commissioner Helen Hanks and four unnamed Corrections Officers,
identified here as John Does 1-4, as defendants, as well as
Defendant DeMoss, whose first name is unknown. This Report and
Recommendation recommends that the district judge drop the
Commissioner and the NHDOC as defendants.
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Preliminary Review Standard
The court conducts a preliminary review of a prisoner’s
complaint pursuant to 28 U.S.C. § 1915A(a) and LR 4.3(d)(1).
The court may dismiss claims if it lacks subject matter
jurisdiction, a defendant is immune from the relief sought, the
assertions in the complaint fail to state a claim upon which
relief can be granted, or it is frivolous or malicious. See 28
U.S.C. § 1915A(b). To determine if the complaint states a claim
upon which relief can be granted, the court takes as true the
factual allegations and favorable 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. See Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-
03 (1st Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). Where the plaintiff is proceeding pro se, the court
construes his filing liberally. See Donovan v. Maine, 276 F.3d
87, 94 (1st Cir. 2002).
Background
Mr. Barry has been incarcerated since 1979. In 2018, he
was diagnosed with bladder cancer. In March 2019, Mr. Barry
underwent a tumor reduction procedure, resulting in the removal
of his bladder, prostate, and lymph nodes. After that
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procedure, one of Mr. Barry’s kidneys became enlarged. An
attempt was made at a local hospital to put a stent into Mr.
Barry’s ureter on December 29, 2021, which was unsuccessful.
Mr. Barry awoke from that surgery at the hospital with a tube
that drained urine into a bag.
Within an hour and fifteen minutes of waking up from
sedation, Mr. Barry was back in the NHSP medical unit. Mr.
Barry then returned to his housing unit and, within fifteen
minutes, Sgt. Solce ordered Mr. Barry to “cuff up.” Doc. No. 1
at 5. Sgt. Solce then escorted Mr. Barry to Sgt. DeMoss (later
known as Lt. DeMoss). DeMoss then took Mr. Barry to a holding
cell in the south unit of NHSP, where, Mr. Barry alleges, DeMoss
grabbed the back of Mr. Barry’s head and smashed his face into a
wall. Id. at 6. Mr. Barry asserts that Lt. Brown witnessed
that incident.
DeMoss then shuttled Mr. Barry to the special housing unit
(“SHU”). In the SHU, Mr. Barry alleges, DeMoss again smashed
his face into a wall, then took him to the ground by kicking his
legs out from underneath him. Id. When he was on the ground,
Mr. Barry asserts, DeMoss and three or four other prison guards
punched, kicked, and dragged him across the floor by pulling on
the shackles attached to his legs. Id. at 6–7. Mr. Barry, who
was 71 at that time, recalls the officers yelling “we don’t care
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how old you are.” Id. at 7. He asserts that the incident was
captured on video.
Mr. Barry was then strip searched and brought to the
medical unit, where he was placed in the suicide tank, where he
experienced a seizure. Although the details are not clear to
Mr. Barry, he recalls being transported by ambulance to Concord
Hospital’s emergency room and was eventually returned to NHSP’s
medical unit once he was stabilized.
After the December 29 use-of-force incidents, Mr. Barry
suffered pain in his kidney and back, wrists, and lower legs.
He asserts that his vision, short-term memory, and balance were
affected.
Mr. Barry asserts that for a period of time in 2022, DeMoss
and ten other corrections officers were placed on leave pending
an investigation into their involvement in an assault on another
prisoner. In June 2022, according to Mr. Barry, the New
Hampshire Attorney General’s Office ended its own investigation,
and DeMoss returned to work. Mr. Barry asserts that DeMoss then
taunted prisoners about being invincible and told Mr. Barry, “I
can kill you and get away with it.” Id. at 9.
Mr. Barry submitted two grievances about DeMoss after the
December 29, 2021 use-of-force incidents. Mr. Barry did not
receive a response to either grievance. Mr. Barry alleges that
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DeMoss knew about the grievances, expressed he was not happy
about them, and threatened Mr. Barry. Mr. Barry filed his
instant Complaint on December 25, 2024.2
Claims
Liberally construed, the Complaint asserts the following
claims for relief:
1. DeMoss and four unnamed defendant Corrections Officers
identified as John Does 1-4 subjected Mr. Barry to
excessive force, maliciously or sadistically for the
purpose of causing harm, in violation of Mr. Barry’s Eighth
Amendment rights, rendering them liable under 42 U.S.C. §
1983, in that:
a. DeMoss smashed Mr. Barry’s face against a wall in
a holding cell in the south unit of NHSP on December
29, 2021, causing him injuries; and
b. In the NHSP SHU on December 29, 2021, DeMoss
smashed Mr. Barry’s face into a wall, took him down by
kicking his legs out from underneath him, and, along
with John Does 1-4, punched, kicked, and dragged Mr.
Barry across the floor by pulling on the shackles
attached to his legs, causing him injuries.
2. DeMoss and John Does 1-4 are liable for the state law
torts of assault and battery, in connection with matters
summarized in Claims 1(a)-(b).
3. (Former) NHDOC Commissioner Hanks violated Mr. Barry’s
federal constitutional rights, rendering her liable under
42 U.S.C. § 1983, in connection with matters alleged in the
Complaint.
2 Mr. Barry’s Complaint was received and docketed by the court on
December 27, 2024. Under the prison mailbox rule, however, the
court considers the Complaint to have been filed on the date Mr.
Barry signed it, December 25, 2024.
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Discussion
I. Eleventh Amendment
Construed liberally, the Complaint appears to seek relief
in the form of damages from the State of New Hampshire and its
agencies. The Eleventh Amendment, however, precludes any claims
in this case asserted against the State, the NHDOC, or
defendants in their official capacities. See Davidson v. Howe,
749 F.3d 21, 27–28 (1st Cir. 2014). Accordingly, the district
judge should dismiss all such claims.
II. Eighth Amendment Excessive Force (Claims 1(a)-(b))
The Eighth Amendment prohibits infliction of “cruel and
unusual punishments” on prisoners. U.S. Const. amend. VIII. To
state an Eighth Amendment excessive force claim, a plaintiff
must allege facts to establish that the defendants’ actions were
“objectively harmful enough to establish a constitutional
violation” and that subjectively the force was applied
“maliciously and sadistically for the very purpose of causing
harm.” Segrain v. Duffy, 118 F.4th 45, 56, 58 n.6, 61 (1st Cir.
2024) (cleaned up).
The facts alleged in the Complaint are sufficient to state
Eighth Amendment claims for damages against DeMoss and John Does
1-4, pursuant to 42 U.S.C. § 1983. The Service Order issued on
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this date directs service of Claim 1 upon DeMoss, the only
officer involved in the incidents whose name is known. In a
separate Order on this date, the court further directs the N.H.
Attorney General’s Office, within thirty days of filing an
appearance in this action, to file a document listing the names
of corrections officers involved in the December 29, 2021 use of
force in the SHU, summarized in Claim 1(b), which may be used in
identifying John Does 1-4. Mr. Barry may use that information
to move to amend the Complaint to join them as named defendants.
III. State Law Claims (Claim 2)
Construed liberally, the Complaint asserts state law tort
claims of assault and battery, arising from the same allegations
giving rise to the Eighth Amendment excessive force claims
(Claims 1(a)-(b)), involving the same defendants. Those claims
survive this court’s preliminary review. The Order issued on
this date directs service of those claims upon DeMoss, as the
only defendant whose name is provided. Plaintiff is free to
move to amend the Complaint to name the John Does and to join
them as defendants.
IV. Supervisory Liability (Claim 3 against Defendant Hanks)
Mr. Barry names (former) NHDOC Commissioner Hanks as a
defendant. But his Complaint is silent as to her involvement in
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the events underlying his claim for relief under 42 U.S.C. §
1983 (Claims 1(a)-(b)). He appears to intend to assert a claim
that Hanks is liable under § 1983 in her capacity as a
supervisor of DeMoss and the other corrections officers who are
alleged to have violated his federal rights.
A government official sued under 42 U.S.C. § 1983 is “only
liable for his or her own misconduct.” Iqbal, 556 U.S. at 677.
A supervisor may not be held liable for the constitutional
violations of subordinates unless there is an “affirmative link”
between the behavior of the subordinate and the action or
inaction of his supervisor, “such that the supervisor’s conduct
led inexorably to the constitutional violation.” Feliciano-
Hernandez v. Pereira-Castillo, 663 F.3d 527, 533 (1st Cir. 2011)
(quoting Soto-Torres v. Fraticelli, 654 F.3d 153, 158 (1st Cir.
2011)). In addition, “the plaintiff must allege facts showing
that the supervisor’s conduct sank to the level of deliberate
indifference.” Parker v. Landry, 935 F.3d 9, 15 (1st Cir.
2019). 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).
The only time Mr. Barry references the Commissioner in the
Complaint is when he describes the grievances he filed about
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DeMoss and, more specifically, that the Commissioner never
responded. See Doc. No. 1 at 10. The Commissioner’s failure to
respond to that after-the-fact grievance, without more, does not
manifest that she was deliberately indifferent to DeMoss’s
alleged violation of Mr. Barry’s constitutional rights, see
Justice v. Sununu, No. 20-cv-517-PB, 2022 WL 18275895, at *11,
2022 U.S. Dist. LEXIS 235485, at *30-31 (D.N.H. Dec. 2, 2022).
Moreover, those allegations fail to establish the requisite
causal connection between any act or omission of Hanks and the
alleged use of excessive force by DeMoss and John Does 1-4.
Accordingly, the district judge should dismiss Claim 3 for
failure to state a claim upon which relief can be granted.
Conclusion
For the foregoing reasons, the district judge should (1)
dismiss plaintiff’s official capacity claims and claims against
the NHDOC; (2) dismiss the claim asserted against (former) NHDOC
Commissioner Helen Hanks (Claim 3, identified above); and (3)
drop the NHDOC and (former) NHDOC Commissioner Hanks as
defendants.
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 objections within the specified
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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 15, 2025
cc: Timothy Barry, pro se
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