Ligocki v. Lacasse et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
David T. Ligocki
v. 	Case No. 18-cv-1112-SM
Kim Lacasse, John E. Perkins,
J. Masse, NH State Prison,
NH Department of Corrections Commissioner
William Wrenn, Chris Kench,
NH State Prison Warden Michael
Zenk, and FNU Marchant
REPORT AND RECOMMENDATION
Before the court is pro se plaintiff David T. Ligocki’s
complaint (Doc. Nos. 1, 1-1) filed pursuant to 42 U.S.C. § 1983.
The complaint is before this magistrate judge for preliminary
review 	See 28 U.S.C. §§ 1915(e)(2), 1915A; LR 4.3(d)(1).
Preliminary Review Standard
The court may dismiss claims asserted in an inmate’s
complaint, if the court lacks subject matter jurisdiction, a
defendant is immune from the relief sought, the complaint fails
to state a claim, or the action is frivolous or malicious. 	See
28 U.S.C. § 1915A(b). 	In determining whether a pro se complaint
states a claim, the court must construe the complaint liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). 	To
survive preliminary review, the complaint must contain
“sufficient factual matter, accepted as true, to ‘state a claim
to relief.’” 	See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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(citation omitted). 	The court treats as true all well-pleaded
factual allegations, and construes reasonable inferences in
plaintiff’s favor. 	See Ocasio-Hernández v. Fortuño-Burset, 640
F.3d 1, 12 (1st Cir. 2011).
Background
Mr. Ligocki is a prisoner of the State of New Hampshire.
On an unspecified date, he was transferred from the New
Hampshire State Prison (“NHSP”) in Concord, New Hampshire, to
the Northern New Hampshire Correctional Facility (“NCF”) in
Berlin, New Hampshire.1 	He was transferred back to the NHSP
three days later. 	Upon his return, the NHSP Administrator of
Classifications, Kim Lacasse, refused to assign Ligocki to his
previous housing unit, Medium Custody North (“MCN”), and
assigned him instead to H-Building, which, he asserts, has a
reputation as a place where inmates are assaulted.
Ligocki refused to comply with the order to move to H-
Building and was placed on suicide watch in the NHSP infirmary’s
isolation tank.2 	The next day, he was evaluated by mental health
1It appears from various allegations in the complaint that
Ligocki’s move to and from NCF occurred in February or March
2016. 	See Compl. (Doc. No. 1, at 5, 10); see also Mar. 15, 2016
Inmate Request Slip (Doc. No. 1-1, at 1).
2Ligocki does not state why he was placed on suicide watch,
so the court is left to infer that it was because he refused to
comply with order to be housed in H-Building.
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staff who, on his behalf, attempted to have him reassigned to
MCN. 	Although the mental health staff was unsuccessful in
having Ligocki reassigned to MCN, they cleared him from suicide
watch. 	The mental health and medical staff briefed H-Building
staff, who asked Ligocki some questions and then assigned him to
cell #4 in D-Pod, which housed seven other inmates.3
When Ligocki entered the cell, another inmate warned him
that Chanel Cote, an inmate Ligocki had conflict with a year
prior, was also assigned to that cell. 	Ligocki asserts that
NHSP staff was aware of his prior conflict with Mr. Cote. 	When
Cote saw Ligocki for the first time in H-Building, Cote acted
like he was ready to fight, but Ligocki diffused the situation
by telling Cote that staff had put them together hoping they
would fight.
At some point, Cote used resources in the prison library,
specifically the Lexis Nexis website, to print a copy of a pro
se habeas petition filed by John Russo (“Russo Petition”).
Ligocki had testified against Mr. Russo in a criminal trial.
Cote put a copy of the petition on Ligocki’s bed. 	The petition
alleged that Ligocki had psychiatric problems and had cooperated
with the State to obtain favorable treatment. 	Other inmates
3Ligocki does not name the individual H-Building staff
members who were briefed, provide any information about what
medical staff told H-Building staff, or indicate what questions
the H-Building staff asked either the medical staff or Ligocki
personally.
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learned of the allegations in the petition or printed their own
copies of it. 	Since Cote obtained a copy of the petition,
Ligocki has repeatedly requested that inmates no longer have
access to Lexis Nexis or that they be prohibited from removing
documents from the prison library that are not being used for
legal purposes. 	Ligocki’s requests have been ignored, or he has
been told there is nothing that can be done to prevent inmates
from accessing public information from Lexis Nexis. 	Cote
extorted, or attempted to extort, money and/or sexual favors
from Ligocki and threatened him with violence.
On May 13, 2016, Ligocki was moved to another cell on an
upper tier in the same cell block. 	Cote was upset because he
thought, incorrectly, that Ligocki had asked to be moved to get
away from him. 	At 9:00 p.m. the same night, Ligocki went
downstairs to the day room near cell #4. 	Cote was present and
made comments about the Russo Petition, asking, for example,
what Russo would think about Ligocki’s move to another cell, but
Ligocki ignored Cote. 	Cote became more agitated and began to
“blurt” things out before moving back into his cell. 	Ligocki
stood in the doorway of the cell trying to calm Cote down.
When Ligocki turned his head to speak to another inmate,
Cote stabbed Ligocki with a shank or knife, cutting his face and
breaking his nose. 	A fight ensued during which Cote stabbed
Ligocki on the top of the head and in the leg. 	Ligocki picked
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up Cote, threw him to the ground, and kicked him. 	Cote lost
consciousness.
After the fight, Ligocki and Cote were taken to Concord
Hospital, where Ligocki received 5-6 stitches in his face.
Ligocki’s face is scarred from Cote’s attack, and surgery has
been recommended to open the air passages in Ligocki’s broken
nose.
Both men were charged with disciplinary infractions, but
Cote’s charges were more serious. 	Ligocki pled guilty to two
infractions - mutual combat fighting and being out of place.
Subsequently, Cote was indicted by a Merrimack County Grand Jury
for felonious assault by a prisoner but was later found to be
incompetent to stand trial.
Ligocki asserts that prior to the attack, he spoke and/or
wrote to Lt. Larette, NHSP Librarian John Perkins, the unit
counselor, H-Building Unit Capt. J. Masse, NHSP investigations,
the NHSP mental health department, NHSP Director of Security and
(former) Interim Warden Chris Kench, (former) NHSP Warden
Michael Zenk, New Hampshire Department of Corrections (“NHDOC”)
(former) Commissioner William Wrenn, and Assistant Attorney
General Ben Agate, who prosecuted John Russo, to complain that
documents available through Lexis Nexis were being used to
threaten and to extort money and sexual favors from Ligocki.4
4Ligocki does not name either Lt. Larette or Mr. Agate as
defendants, provide the name of the unit counselor he spoke to,
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Ligocki also accuses Masse of intercepting his inmate request
slips and letters in order to hide what happens to inmates in H-
Building.
In this action, Ligocki seeks declaratory and injunctive
relief, compensatory and punitive damages, reimbursement of his
costs in this action, and reimbursement for any future medical
bills related to the May 13, 2016 incident. 	Ligocki sues the
defendants in their official and individual capacities.
Claims
Plaintiff purports to bring the following claims for
relief:
1. Supervisory NHSP defendants inadequately
supervised and controlled their subordinates, in
violation of Ligocki’s Eighth Amendment rights.
2. The defendants were deliberately indifferent to
Ligocki’s safety, in violation of the Eighth
Amendment, when they assigned him to H-building
and placed him in a tier, unit, and cell with
Chanel Cote, knowing Ligocki had had problems
with Cote in the past.
3. The defendants were deliberately indifferent to
Ligocki’s safety, in violation of the Eighth
Amendment, when they failed to stop inmates from
obtaining copies of the Russo Petition after Cote
obtained a copy of the petition from the prison
library.
4. The defendants were deliberately indifferent to
Ligocki’s safety, in violation of the Eighth
Amendment, when they failed to protect him from
Cote after Cote obtained a copy of the petition.
5. The defendants were deliberately indifferent to
Ligocki’s safety, in violation of the Due Process
Clause of the Fourteenth Amendment, when they
or identify who he spoke to in the NHSP investigations or mental
health departments.
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assigned him to H-building and placed him in a
unit and cell with Cote, knowing Ligocki had had
problems with Cote in the past.
See Compl. (Doc. No. 1), at 4, 17-18 ¶¶ 29-30.
Discussion
I. 	Eleventh Amendment
Ligocki has named the NHSP as a defendant and has named all
the NHSP defendants in their official capacities. 	His claims
for damages and injunctive relief against the prison, and his
claims for damages against state officers in their official
capacities, are barred by the Eleventh Amendment. 	See Town of
Barnstable v. O’Connor, 786 F.3d 130, 138 (1st Cir. 2015).
Accordingly, the district judge should dismiss the NHSP as a
defendant in this action and dismiss all claims for damages
against the remaining defendants in their official capacities.
II. 	Eighth Amendment Claims
A. 	Elements
The Eighth Amendment guarantees the right of individuals to
be free from “‘cruel and unusual punishments’” while in custody.
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
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state of mind.” 	Wilson v. Seiter, 501 U.S. 294, 298 (1991).
Second, the conduct must have been objectively “harmful enough,”
or “sufficiently serious” to violate the Constitution. 	Id.
B. 	Endangerment
Under the Eighth Amendment, “‘prison officials have a duty
to protect prisoners from violence at the hands of other
prisoners.’” 	Lakin v. Barnhart, 758 F.3d 66, 70 (1st Cir. 2014)
(quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)).
[A] prison official violates an inmate’s Eighth
Amendment right against cruel and unusual punishment
‘based on a failure to prevent harm’ to the inmate
only under two circumstances: 	‘the inmate must show
that he is incarcerated under conditions posing a
substantial risk of serious harm,’ and the prison
official must have acted, or failed to act, with
‘deliberate indifference to inmate health or safety.’
Lakin, 758 F.3d at 70 (citation omitted). 	To act with
deliberate indifference, a prison “official must both be aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
the inference.” 	Farmer, 511 U.S. at 837.
C. 	Inadequate Supervision and Control of Subordinates
In Claim 1, Ligocki alleges there was inadequate
supervision and control of subordinates in violation of the
Eighth Amendment. 	“It is well-settled that only those
individuals who participated in the conduct that deprived the
plaintiff of his rights can be held liable” under § 1983.
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Vélez–Rivera v. Agosto–Alicea, 437 F.3d 145, 146 (1st Cir. 2006)
(quotation marks omitted). 	Here, Ligocki has not identified the
defendants who failed to adequately supervise and control their
subordinates; the subordinates the offending defendants failed
to supervise and control; or the specific actions the
subordinates took, or did not take, as a result of the offending
defendants failure to supervise or control them. 	In short,
plaintiff has failed to allege any facts to support this claim,
and the district judge should dismiss Claim 1 for failure to
state a claim upon which relief may be granted.
D. 	Supervisory Liability Claims
To the extent Ligocki asserts claims of supervisory
liability under § 1983 against the administrative correctional
defendants, namely former Commissioner Wrenn, former Interim
Warden Kench, former Warden Michael Zenk, and NHSP Head of
Investigations Marchant, whose first name is unknown, premised
on the theory that those defendants are responsible for the
operation of the NHSP and/or the security and safety of the
inmates at the NHSP, see, e.g., Compl. (Doc. No. 1), at 7-9, he
has failed to state a claim upon which relief may be granted.
“Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of
respondeat superior.” 	Iqbal, 556 U.S. at 676. 	“Because
vicarious liability is inapplicable to . . . § 1983 suits, a
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plaintiff must plead that each Government-official defendant,
through the official's own individual actions, has violated the
Constitution.” 	Id.
“A supervisor may be held liable for the constitutional
violations committed by his subordinates where ‘an affirmative
link between the behavior of a subordinate and the action or
inaction of his supervisor exists such that the supervisor’s
conduct led inexorably to the constitutional violation.’”
Morales v. Chadbourne, 793 F.3d 208, 221 (1st Cir. 2015)
(citations omitted). 	To state a claim of supervisory liability,
then, the plaintiff “must show ‘an affirmative link, whether
through direct participation or through conduct that amounts to
condonation or tacit authorization,’ between the actor and the
underlying violation.” 	Sanchez v. Pereira-Castillo, 590 F.3d
31, 49 (1st Cir. 2009) (citation omitted).
Here Ligocki does little more than allege that Wrenn,
Kench, Zenk, and Marchant were “legally responsible” for the
overall operation of the NHSP or were “legally responsible” for
the safety and security of the inmates at the NHSP. 	See Compl.
(Doc. No. 1), at 7-9. 	He does not allege that any of those
individuals had a role in his housing assignment or a role in
inmates obtaining copies of the Russo Petition from Lexis Nexis.
As Ligocki cannot allege a constitutional claim against those
defendants based solely on their supervisory authority, the
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district judge should dismiss Ligocki’s Eighth Amendment claims
against Wrenn, Kench, Zenk, and Marchant.
E. 	Defendants Lacasse, Perkins and Masse
Plaintiff has alleged sufficient facts to survive initial
review on the remainder of his Eighth Amendment claims (Claims
2-4). 	Therefore, in an Order issued simultaneously with this
Report and Recommendation, the court has directed service of
those claims against defendants Ms. Lacasse, Mr. Perkins, and
Capt. Masse.
III. Fourteenth Amendment Claims
In Claim 5 of the complaint, Ligocki alleges the defendants
violated his rights under the Fourteenth Amendment:
with deliberate indifference to a serious risk to the
plaintiffs (sic) safety, mentally and physically by
placing the plaintiff in a building, unit, tier and
cell knowingly or should have known previous conflicts
between Chanel Cote and the plaintiff and provided
documentation having a safety issue over false
documents.
Compl. (Doc. No. 1), at 18 ¶30. 	It appears Ligocki is raising
as an alternative ground for relief, independently of the Eighth
Amendment, that his placement in Building H and in the same
unit, tier, and cell as Cote deprived him of a protected liberty
interest without due process of law, in violation of the
Fourteenth Amendment.
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The Due Process Clause of the Fourteenth Amendment provides
no greater protection for prisoners, however, than the Eighth
Amendment prohibition on cruel and unusual punishment and is
therefore not an alternative basis for an inmate safety claim.
See Whitley, 475 U.S. at 327 (holding that the Eighth Amendment
“serves as the primary source of substantive protection to
convicted prisoners” and, in a case involving inmate safety,
that the Fourteenth Amendment affords the plaintiff “no greater
protection” than the Eighth Amendment). 	Accordingly, the
district judge should dismiss Ligocki’s due process claims
(Claim 5).
IV. 	Preliminary Injunctive Relief
In the complaint, Ligocki seeks preliminary injunctive
relief in the form of an Order directing the New Hampshire
Department of Corrections (“NHDOC”) to return him to New
Hampshire, as he was incarcerated at a Rhode Island facility at
the time he filed this action. 	In June 2019, Ligocki notified
the court that he had been returned to the NHSP. 	See June 27,
2019 Let. (Doc. No. 13). 	The court entered an endorsed order
finding the request for injunctive relief was likely moot but
deferring a final decision until it had conducted a preliminary
review of the complaint. 	See Nov. 25, 2019 Order.
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NHDOC records show Ligocki remains incarcerated at the NHSP
and that his maximum release date is May 14, 2024.5 	Accordingly,
Ligocki’s request for preliminary injunctive relief in the form
of an Order directing the NHDOC to return him to New Hampshire
is moot, see Ford v. Bender, 768 F.3d 15, 29 (1st Cir. 2014) (In
the absence of claims for damages, “[a] prisoner’s challenge to
prison conditions or policies is generally rendered moot by his
transfer or release.”), and the district court should dismiss it
as such.
Conclusion
For the foregoing reasons, the district judge should
dismiss Ligocki’s: 	request for preliminary injunctive relief
requiring the NHDOC to return him to New Hampshire; Fourteenth
Amendment claims (Claim 5); Eighth Amendment claims against the
NHSP, Commissioner Wrenn, Interim Warden Kench, Warden Zenk, and
NHSP Head of Investigations Marchant; and Eighth Amendment
claims for damages asserted against defendants Lacasse, Perkins,
and Masse in their official capacities. 	The district judge
should also drop the NHSP, Commissioner Wrenn, Interim Warden
Kench, Warden Zenk, and NHSP Head of Investigations Marchant as
defendants in this action.
5See NHDOC Website, https://business.nh.gov/inmate_locator/
(Ligocki, David, last viewed April 6, 2020).
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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
April 8, 2020
cc: 	David T. Ligocki, pro se
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