Wilson v. Peter Picone

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jarrell Wilson
v. 	Case No. 19-cv-1064-PB
Michelle Edmark, N.H. State Prison
Warden; Nicholas Patten; Fran Reed;
Sgt. Peter Picone; Maj. Jon Fouts;
N.H. Department of Corrections Hearings
Officer Linda Paulson; Capt. FNU Boynton;
and Lt. Troy Fontaine
REPORT AND RECOMMENDATION
Before the court is the complaint (Doc. No. 1) filed by
Jarrell Wilson, an inmate at the Northern New Hampshire
Correctional Facility (“NCF”) who was an inmate at the New
Hampshire State Prison (“NHSP”) when he filed this action. 	The
complaint (Doc. No. 1) and several addenda to the complaint
(Doc. Nos. 3, 4, 6) are before the court for preliminary review
under LR 4.3(d)(1) and 28 U.S.C. § 1915A(a). 	Also before the
court are two motions seeking preliminary injunctions (Doc. Nos.
3, 4), which have been referred to the undersigned magistrate
judge for a report and recommendation. 	See July 10, 2020 Order.
I. 	Preliminary Review
A. 	Standard
The court may dismiss claims asserted in an inmate’s
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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
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
plaintiff has stated a claim 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)).
B. 	Background
On April 4, 2019 at 5:00 a.m., while eating breakfast at
the chow hall in the NHSP, in the presence of three or four
corrections officers (“COs”), including Sgt. Peter Picone, CO
Fran Reed, and/or CO Nicholas Patten, an unidentified inmate
came up behind Mr. Wilson and “suckerpunched” him, that is,
struck him without warning or provocation.1 	As Mr. Wilson
1Exhibits filed in Wilson v. N.H. State Prison Warden, No.
1:19-cv-786-JL (D.N.H.) (“Wilson I”), indicate that the incident
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started to react, he asserts, someone jumped on his back. 	Mr.
Wilson alleges that his head slammed against the table, cracking
his jaw. 	Unaware that it was NHSP Sgt. Peter Picone on his
back, Mr. Wilson struggled to knock him off and sent the officer
flying into what Mr. Wilson calls a “juice container.” 	Mr.
Wilson was charged with the disciplinary offense of causing
bodily harm, as a result of that incident. 	Mr. Wilson’s jaw
broke, necessitating surgical repairs. 	He continued to suffer
pain, traumatic dreams, and disrupted sleep as a result of the
incident, for which he was prescribed medication (Prazosin).
After the incident in the chow hall, corrections officers
brought Mr. Wilson to the Special Housing Unit (“SHU”) to await
further proceedings. 	Although an unidentified CO told Mr.
Wilson that, from the description in the disciplinary report, it
looked like he had acted in self-defense and could count on
being released out of SHU, the disciplinary charges were not
dismissed. 	Mr. Wilson appeared before Hearings Officer Linda
Paulson and was found guilty of the disciplinary offense of
causing bodily injury. 	The sanction imposed on Mr. Wilson
occurred on April 4, 2019. 	See, e.g., Nov. 18, 2019 Am. Compl.,
Exs. 1, 4, Wilson I (ECF Nos. 13-1, 13-4).
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included SHU confinement for up to nine months.2
C. 	Claims
The claims asserted by Mr. Wilson are the following:
1. 	In jumping on Mr. Wilson and causing his head to
strike a table, breaking his jaw, defendant Sgt. Peter
Picone violated:
a. 	Mr. Wilson’s Eighth Amendment right not to
be subjected to excessive force, applied maliciously
and sadistically, and not in good faith to maintain or
restore discipline; and
b. 	Mr. Wilson’s Fourteenth Amendment right to
equal protection.
2. 	Defendants NHSP Warden Michelle Edmark, NHSP CO
Fran Reed, NHSP CO Nicholas Patten, and NHSP Sgt. Peter
Picone violated Mr. Wilson’s Eighth Amendment right to
avoid cruel and unusual punishment, by failing to protect
him from the sucker-punch in the chow hall.
3. 	By pursuing disciplinary proceedings based on
false charges that did not acknowledge that Mr. Wilson had
acted in self-defense, defendants NHSP Warden Michelle
Edmark, DOC HO Linda Paulson, NHSP Capt. Boynton, NHSP Lt.
Troy Fontaine, NSHP Maj. Jon Fouts, and NHSP Sgt. Peter
Picone violated:
a. 	Mr. Wilson’s Fourteenth Amendment right to
due process; and
2In another case, Wilson I, Mr. Wilson alleged that after
the April 4, 2019 incident, he spent 5½ weeks in the NHSP
medical unit. 	See July 26, 2019 Compl., Wilson I (ECF No. 1, at
3). 	In a motion/complaint addendum (Doc. No. 4) filed in this
case in October 2019, Mr. Wilson alleged that he “has to do nine
(9) month[s] in SHU.” 	He was transferred to the Northern New
Hampshire Correctional Facility, approximately nine months after
the April 2019 incident. 	See Jan. 15, 2020 Notice (Doc. No. 7).
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b. 	Mr. Wilson’s Fourteenth Amendment right to
equal protection.
D. 	Discussion
1. 	Excessive Force (Claim 1(a))
Under the Eighth Amendment, an excessive force claim “‘has
two components -- one subjective, focusing on the defendant’s
motive for his conduct, and the other objective, focusing on the
conduct’s effect.’” 	Staples v. Gerry, 923 F.3d 7, 13 (1st Cir.
2019) (citations omitted). 	“The subjective prong turns on
‘whether force was applied in a good faith effort to maintain or
restore discipline or maliciously and sadistically for the very
purpose of causing harm.’” 	Id. (citations omitted). 	While an
inmate must also show that “the alleged wrongdoing was
objectively harmful enough to establish a constitutional
violation,” id. (internal quotation marks and citations
omitted), an inmate need not prove a “‘significant injury’ in
order to state an excessive force claim,” Wilkins v. Gaddy, 559
U.S. 34, 36-37 (2010) (citation omitted).
The “factors” that “are relevant to that ultimate
determination” include “the extent of the threat to the
safety of staff and inmates, as reasonably perceived by the
responsible officials,” “the need for the application of
force,” “the relationship between the need and the amount
of force that was used,” “the extent of the injury
inflicted,” and “any efforts made to temper the severity of
a forceful response.”
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Staples, 923 F.3d at 13 (quoting Whitley v. Albers, 475 U.S.
312, 321 (1986)).
Applying the relevant factors to the facts alleged by Mr.
Wilson, the court concludes that Mr. Wilson has stated an Eighth
Amendment excessive force claim upon which relief can be
granted, as to Sgt. Picone’s use of force in the chow hall on
April 4, 2019. 	In the Order issued this date, the court has
directed Sgt. Picone, in his individual capacity, to file a
response to Claim 1(a).
2. 	Failure to Protect (Claim 2)
Under the Eighth Amendment, “[p]rison officials have a duty
to . . . ‘take reasonable measures to guarantee the safety of
the 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 an 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 his 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
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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.” 	Id. at 837.
With respect to his failure-to-protect claim, Mr. Wilson
has pleaded facts indicating that three or four corrections
officers were in attendance in the chow hall when an
unidentified inmate came up behind Mr. Wilson and unexpectedly
punched him. 	The facts alleged provide no details regarding
that inmate’s known proclivities or past conduct that could have
alerted any named defendant to a risk he could strike Mr. Wilson
without warning. 	The allegations in the complaint regarding the
“suckerpunch” do not state a claim of deliberate indifference to
a known risk of serious harm, in violation of Mr. Wilson’s
Eighth Amendment rights. 	Accordingly, Claim 2 should be
dismissed without prejudice for failure to state a claim upon
which relief can be granted.
3. 	Due Process (Claim 3(a))
To establish that his due process rights have been
violated, a plaintiff must demonstrate that he has suffered a
deprivation of a protected interest in life, liberty, or
property. 	See Mathews v. Eldridge, 424 U.S. 319, 332 (1976).
“A liberty interest may arise from the Constitution itself, by
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reason of guarantees implicit in the word ‘liberty,’ or it may
arise from an expectation or interest created by state laws or
policies.” 	Wilkinson v. Austin, 545 U.S. 209, 221 (2005)
(citations omitted). 	As a general matter, however, inmates do
not have a constitutional right or protected interest in any
particular institutional classification, placement, or
eligibility for rehabilitative programming. 	See Riley v.
O’Brien, No. 16-11064-LTS, 2016 U.S. Dist. LEXIS 120039, at *17-
18, 2016 WL 8679258, at *6 (D. Mass. Sept. 6, 2016); see also
Palmigiano v. Mullen, 491 F.2d 978, 980 (1st Cir. 1974) (absent
unusual circumstances, inmates do not have right to any
particular security classification). 	The Due Process Clause
itself does not provide a basis for Wilson to ground any
protected liberty interest in challenging his transfer to SHU.
Where prison disciplinary sanctions impose an “‘atypical
and significant hardship on the inmate in relation to the
ordinary incidents of prison life,’” courts may find a protected
liberty interest arising under state policies or regulations.
Wilkinson, 545 U.S. at 223 (quoting Sandin v. Conner, 515 U.S.
472, 484 (1995)). 	Courts applying Sandin, however, have
concluded that the loss of a favorable security classification
and a transfer to a restrictive housing unit for nine months are
not atypical and significant hardships relative to the ordinary
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incidents of prison life. 	See, e.g., Pona v. Weeden, No. 16-612
S, 2017 U.S. Dist. LEXIS 121093, at *15-16, 2017 WL 3279012, at
*6 (D.R.I. June 29, 2017) (“courts . . . have repeatedly held
that placement in punitive segregation for up to one year is not
sufficient to implicate a liberty interest” (citing cases)), R&R
adopted, 2017 U.S. Dist. LEXIS 120544, 2017 WL 3278874 (D.R.I.
Aug. 1, 2017); see also Hamner v. Burls, 937 F.3d 1171, 1180
(8th Cir. 2019) (203-day administrative segregation did not did
not present atypical and significant hardship); Dawson v.
Norwood, No. 1:06-CV-914, 2008 U.S. Dist. LEXIS 115077, 2008 WL
7866181, at *6 (W.D. Mich. Sept. 16, 2008) (nine month
administrative segregation was not atypical and significant
hardship (citing cases)), R&R adopted, 2010 U.S. Dist. LEXIS
54306, 2010 WL 2232355 (W.D. Mich. June 1, 2010). 	Cf. Graham v.
Fortier, No. 10-CV-332-JL, 2010 WL 11404450, at *9, 2010 U.S.
Dist. LEXIS 126814, at *26 (D.N.H. Nov. 15, 2010) (“New
Hampshire law ‘does not give [an inmate] a right to any
particular custody status[,] and a change in custody status is
not the type of ‘atypical and significant hardship’ from which a
prisoner is entitled to protection under the due process
clause’” (citations omitted)), R&R approved, 2011 WL 1237668,
2011 U.S. Dist. LEXIS 36869 (D.N.H. Apr. 4, 2011).
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The duration and conditions of Mr. Wilson’s SHU placement
are not described in terms that render such cases inapposite.
Mr. Wilson has alleged that while in SHU, he had access to two
hours of out-of-cell time daily. 	Doc. No. 4, at 1. 	And he has
further alleged he received mental health care, including
prescription medication, for his trauma symptoms while in SHU.
Cf. Orr v. Larkins, 610 F.3d 1032, 1033-34 (8th Cir. 2010) (nine
months in administrative segregation that led to a deterioration
of the inmate’s mental health was not atypical or significant
hardship, where inmate received mental health treatment); Bealer
v. Kern Valley State Prison Classification Comm., No. 1:18-cv-
01170-DAD-SAB (PC), 2019 WL 5448300, at *16, 2019 U.S. Dist.
LEXIS 185207, at *14 (E.D. Cal. Oct. 24, 2019) (sixteen month
“disciplinary and administrative segregation” did not impose
atypical and significant hardship, absent further allegations
contrasting disciplinary and administrative segregation
conditions with those in “general population, protective
custody, or segregated housing”), R&R adopted, 2019 U.S. Dist.
LEXIS 217614, 2019 WL 6894049 (E.D. Cal. Dec. 17, 2019). 	The
district judge should thus dismiss Claim 3(a), for failure to
state a due process claim upon which relief can be granted.
4. 	Equal Protection (Claims 1(b), 3(b))
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The Fourteenth Amendment Equal Protection Clause dictates
“that ‘similarly situated persons are to receive substantially
similar treatment from their government.’” 	Kuperman v. Wrenn,
645 F.3d 69, 77 (1st Cir. 2011) (citation omitted). 	To assert
an equal protection claim, a plaintiff must state facts
sufficient to show that, as compared to others similarly
situated, the plaintiff was treated differently based on an
improper consideration. 	See id. at 78.
Mr. Wilson has claimed that defendants Sgt. Peter Picone,
in subjecting him to a use of force on April 4, 2019, and the
defendants named in Claim 3(b), in subjecting him to
disciplinary proceedings arising from that incident, violated
his equal protection rights. 	There are, however, no allegations
in the complaint suggesting that any similarly situated inmate
has been treated more favorably than Mr. Wilson, with respect to
the use of force or disciplinary proceedings. 	Absent any
allegations regarding a comparator or other factual allegations
regarding discrimination that could form the basis of a claim
that Mr. Wilson was treated differently on some improper basis,
Claims 1(b) and 3(b) fail to state plausible claims for relief.
Accordingly, the district judge should dismiss Claims 1(b) and
3(b), for failure to state a Fourteenth Amendment equal
protection claim upon which relief can be granted.
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II. 	Preliminary Injunction Motions (Doc. Nos. 3, 4)
Mr. Wilson filed two motions, each entitled “Motion for
Expedited Ruling,” which this court liberally construes as
requesting preliminary injunctive relief. 	Those motions have
been referred to the undersigned magistrate judge for a
recommendation as to their disposition.
A. 	Preliminary Injunction Standard
“‘A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.’” 	Glossip v. Gross,
135 S. Ct. 2726, 2736 (2015) (citation omitted). 	The likelihood
of success and irreparable harm are the factors that weigh most
heavily in the analysis. 	See Esso Std. Oil Co. v. Monroig–
Zayas, 445 F.3d 13, 18 (1st Cir. 2006); see also Voice of the
Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32
(1st Cir. 2011). 	“A finding of irreparable harm must be
grounded on something more than conjecture, surmise, or a
party’s unsubstantiated fears of what the future may have in
store.” 	Charlesbank Equity Fund II, Ltd. P’ship v. Blinds To
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Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004). 	The burden of
proof is on the movant. 	See Esso Std. Oil Co., 445 F.3d at 18.
B. 	Irreparable Harm (Doc. Nos. 3, 4)
In Document No. 3, Mr. Wilson alleges that he has suffered
from traumatic dreams and disrupted sleep as a result of the
April 4, 2019 incident. 	He states that he has been diagnosed
with an acute stress disorder and is receiving treatment for his
symptoms. 	He has moved for court-ordered relief, directing that
he be transferred into the NHSP Residential Treatment Unit
(“RTU”) to participate in rehabilitative programming, as he
believes he will have a better opportunity for recovery through
such treatment. 	In Document No. 4, Mr. Wilson moves for a court
order directing that he be released from SHU into the general
prison population.
Since Mr. Wilson filed this motion, his SHU confinement has
ended. 	Mr. Wilson was transferred to NCF in January 2020. 	See
Jan. 15, 2020 Notice (Doc. No. 7). 	Therefore, to the extent Mr.
Wilson seeks release from SHU, his motion in that regard (Doc.
No. 4) should be denied as moot.
In addition, for reasons stated in this Report and
Recommendation, Mr. Wilson has failed to plead facts sufficient
to state any viable Eighth Amendment failure-to-protect claim,
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Fourteenth Amendment equal protection claim, or Fourteenth
Amendment due process claim, with respect to the April 4, 2019
incident, or the disciplinary proceedings that followed. 	Mr.
Wilson has failed to demonstrate any likelihood of success on
the merits of those claims.
With respect to his Eighth Amendment excessive force claim
that has been allowed to proceed against Sgt. Picone in his
individual capacity, Mr. Wilson’s claim of irreparable harm is
speculative. 	He has not provided this court with any facts
suggesting that he is a suitable candidate for an RTU placement
or that the mental health treatment he is presently receiving,
in the absence of a court order, will not address his mental
health condition. 	He has also failed to show that damages would
not suffice to make him whole on that claim. 	Cf. Charlesbank
Equity Fund II, 370 F.3d at 162 (“Irreparable harm most often
exists where a party has no adequate remedy at law.”).
Accordingly, the district judge should deny both of Mr. Wilson’s
motions for expedited rulings (Doc. Nos. 3, 4), to the extent
they seek transfers, without prejudice to Mr. Wilson’s ability
to file a similar motion if his circumstances change, upon a
showing of irreparable harm, a likelihood of success on the
merits, and satisfaction of the remaining relevant factors.
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Conclusion
For the foregoing reasons the magistrate judge recommends
as follows:
1. 	The district judge should approve this Report and
Recommendation and dismiss Claims 1(b), 2, 3(a), and 3(b),
as numbered above, for failure to state a claim upon which
relief can be granted.
2. 	The district judge should deny Mr. Wilson’s two
motions for expedited rulings (Doc. Nos. 3, 4), without
prejudice.
3. 	The district judge should direct that the
following parties be dropped as defendants: 	Michelle
Edmark, NHSP Warden; NHSP Corrections Officers Nicholas
Patten and Fran Reed; NHSP Maj. Jon Fouts; N.H. Department
of Corrections Hearings Officer Linda Paulson; NHSP Capt.
Boynton; and NHSP Lt. Troy Fontaine, as there are no viable
claims stated in the action against them.
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). 	That period may be extended upon motion.
Failure to file 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
July 13, 2020
cc: 	Jarrell Wilson, pro se
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