Elwell et al v. Doe #1 et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Christopher M. Elwell
v. 	Case No. 18-cv-906-LM
John Doe #1, Strafford County
Department of Corrections
Superintendent FNU Brackett,
John Doe #2, John Doe #3, and
John Doe #4
REPORT AND RECOMMENDATION
Before the court is pro se plaintiff Christopher M.
Elwell’s amended civil rights complaint (Doc. Nos. 1, 8), filed
pursuant to 42 U.S.C. § 1983. 	The amended complaint is before
this magistrate judge for preliminary review, pursuant to 28
U.S.C. §§ 1915(e)(2), 1915A; LR 4.3(d)(1).
Background
Plaintiff is a prisoner of the State of New Hampshire. 	He
claims the defendants violated his federal constitutional right
to be free from cruel and unusual punishment when they failed to
protect him from injury by another inmate. 	The violations
allegedly occurred while Plaintiff was in the custody of three
Strafford County Sherriff’s Department (“SCSD”) deputies.
Plaintiff was arrested on June 24, 2017 for aggravated
felonious sexual assault. 	He asserts that because of the nature
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of his crime, he was housed for his own safety in an
administrative protective unit at the Strafford County House of
Corrections (“SCHC”) while awaiting trial and sentencing.
Plaintiff contends that the Strafford County Sheriff, identified
in the amended complaint as John Doe #1, was directly
responsible for the oversight and operation of the Sheriff’s
Department and the SCHC and that Superintendent (“Supt.”)
Brackett was directly responsible for the administration and
operation of the SCHC.
According to plaintiff, on November 30, 3017, defendants
John Doe #2 and John Doe #3, SCSD deputies, transported
plaintiff and Josiah Davies, an inmate from a general population
unit, from the SCHC to the Strafford County Superior Court. 	In
the courtroom, John Doe #4, a SCSD deputy and courtroom officer,
seated plaintiff and Davies next to each other on the same
bench. 	Plaintiff alleges that during the proceedings, Davies
told the three deputies not to seat him next to plaintiff
because of the nature of plaintiff’s offense, but the deputies
ignored Davies.
After plaintiff was sentenced, the deputies again seated
him next to Davies. 	Plaintiff alleges Davies immediately head-
butted him twice – in the face and forehead – in the presence of
the three deputies, causing swelling of plaintiff’s cheekbone
and forehead. 	Upon his return to the SCHC, plaintiff was
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examined by medical personnel, who noted no other injuries.
Plaintiff asserts that video of the assault was televised, and
the incident was reported in the newspaper and on social media.
Plaintiff alleges Davies subsequently was criminally charged
with assault by a prisoner and assault by an inmate.
Plaintiff was transferred to the New Hampshire State Prison
(“NHSP”) where, at his request, he was housed in the protective
custody unit. 	He asserts that he was threatened while in
protective custody and had to request to be housed in the NHSP’s
Special Housing Unit, which provided additional protection.
Plaintiff contends that because of the defendants’ failure
to protect him from the assault and because of the widespread
media and social media coverage of the assault, he has suffered
physical injury, threats of harm, extortion attempts, several
months of extreme mental and emotional stress and harm, and fear
for his safety, which have required him to remain in protected
custody. 	Plaintiff seeks $50,000 in punitive damages and
$150,000 in compensatory damages. 	Plaintiff does not seek
equitable relief.
Preliminary Review Standard
The court screens complaints filed by incarcerated
plaintiffs proceeding in forma pauperis to determine, among
other things, whether the plaintiff has asserted any claim upon
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which relief might be granted or seeks monetary relief from any
defendant who is immune from the relief sought. 	See to 28
U.S.C. §§ 1915(e)(2), 1915A; LR 4.3(d)(1). 	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).
Discussion
I. 	Eighth Amendment Claims
A. 	Elements
Section 1983 provides a remedy against persons who, while
acting under color of state law, deprive others of rights
secured by the federal constitution or federal law. 	Klunder v.
Brown Univ., 778 F.3d 24, 30 (1st Cir. 2015). 	The Eighth
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Amendment guarantees the right of those convicted of crimes to
be free from “cruel and unusual punishments.” 	Whitley v.
Albers, 475 U.S. 312, 318 (1986) (quoting U.S. Const. amend.
VIII). 	A properly stated Eighth Amendment claim must allege a
subjective and objective element. 	Hudson v. McMillian, 503 U.S.
1, 8 (1992). 	First, it must appear from the complaint that the
defendant official acted with a “sufficiently culpable state of
mind.” 	Wilson v. Seiter, 501 U.S. 294, 298 (1991). 	Second, the
conduct must have been objectively, “sufficiently serious” to
violate the Constitution. 	Id.
B. 	Endangerment/Failure to Protect
Under the Eighth Amendment, “[p]rison officials have a duty
to . . . ‘take reasonable measures to guarantee the [health and]
safety of the[ir] inmates.’” 	Giroux v. Somerset Cty., 178 F.3d
28, 31 (1st Cir. 1999) (quoting Farmer v. Brennan, 511 U.S. 825,
832 (1994)). 	To state a claim that a prison officer failed to
protect an inmate in violation of the Eighth Amendment, the
inmate must allege facts showing that the officer was
deliberately indifferent to the inmate’s health or safety. 	See
Farmer, 511 U.S. at 834. 	A prison official or officer is not
deliberately indifferent to an inmate’s safety “unless the
official knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts from
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which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.” 	Id.
at 837.
II. 	Supervisory Liability
Plaintiff sues the Strafford County Sheriff, identified in
the amended complaint as John Doe #1, and SCHC Supt. Brackett in
their capacities as overseers and administrators of the SCSD
and/or the SCHC. 	Supervisors cannot be held liable in a § 1983
suit for damages under a theory of respondeat superior.
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). 	In other words,
liability cannot rest on a defendant's position of authority
alone. 	Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 16 (1st
Cir. 2011).
Liability for supervisors is only triggered under § 1983 if
“a plaintiff can establish that his or her constitutional injury
resulted from the direct acts or omissions of the official, or
from indirect conduct that amounts to condonation or tacit
authorization.” 	A plaintiff must allege a strong causal
connection, or an “affirmative link between the behavior of a
subordinate and the action or inaction of his supervisor . . .
such that the supervisor's conduct led inexorably to the
constitutional violation.” Soto-Torres v. Fraticelli, 654 F.3d
153, 158 (1st Cir. 2011) (omission in original) (citation and
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internal quotation marks omitted). 	Additionally, “the plaintiff
must show that the official had actual or constructive notice of
the constitutional violation.” 	Rodríguez–García v. Miranda–
Marín, 610 F.3d 756, 768 (1st Cir. 2010) (citation and internal
quotation marks omitted).
A supervisor “may be liable for the foreseeable
consequences” of a subordinate's conduct if the supervisor
“would have known of it but for his deliberate indifference or
willful blindness.” 	Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st
Cir. 1998) (citation and internal quotation marks omitted). 	To
establish deliberate indifference, a plaintiff must show “(1)
grave risk of harm, (2) the defendant's actual or constructive
knowledge of that risk, and (3) his failure to take easily
available measures to address the risk.” 	Id.
Plaintiff has not alleged any facts from which the court
reasonably can infer that either the Strafford County Sheriff or
Supt. Brackett had actual or constructive knowledge that
plaintiff was being transported or seated in proximity to a
general population inmate. 	Even assuming, without deciding,
that the circumstances plaintiff describes placed him in harm’s
way, without facts demonstrating that the supervisory defendants
were actually or constructively aware of those circumstances,
plaintiff cannot assert a claim for relief against those
defendants for failure to protect. 	See Rodríguez–García, 610
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F.3d at 768 	Therefore, the district court should dismiss
Plaintiff’s Eighth Amendment claims against defendants Strafford
County Sheriff John Doe #1 and SCHC Supt. Brackett for failure
to protect him from assault by inmate Josiah Davies.
III. Defendants John Doe #2, #3 and #4
In an Order issued simultaneously with this Report and
Recommendation, the court has directed service of plaintiff’s
Eighth Amendment claims against defendants John Doe #2, #3, and
#4.
Conclusion
For the foregoing reasons, the district judge should
dismiss Plaintiff’s Eighth Amendment claims against defendant
John Doe #1, Strafford County Sheriff, and Strafford County
Department of Corrections Superintendent FNU Brackett, and those
defendants should be terminated from this action. 	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).
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________________________________
Andrea K. Johnstone
United States Magistrate Judge
February 13, 2020
cc: 	Christopher M. Elwell, pro se
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