Johnson v. Englander et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jacob William Johnson
v. 	Case No. 20-cv-398-JL
Dr. Celia Englander et al.1
REPORT AND RECOMMENDATION
Jacob William Johnson, a Florida prisoner currently being
housed by the New Hampshire Department of Corrections (“DOC”),
has filed a complaint (Doc. No. 1), alleging that while he was
at the New Hampshire State Prison (“NHSP”), the defendants
violated his federal constitutional rights, violated DOC policy,
and are liable to him for negligence under State law. 	Mr.
Johnson’s complaint is before the court for preliminary review
pursuant to 28 U.S.C. § 1915A(a) and LR 4.3(d)(1).
1The defendants identified in the caption and/or body of the
complaint (Doc. No. 1) are: New Hampshire State Prison (“NHSP”)
Drs. Celia Englander and Jeff Fetter; NHSP Nurse Coordinators
Ryan Landry and Carlene Ferrier; NHSP Nurses John Lombard,
Denise Downing, Brad Bowden, Olivia Gamelin, Donna Dufresne,
Martha Barbosa, Karen Carr, Fallon Marchand, Ellen Halle-
Cocoran, Nancy Clayman, Jane Dillon, Tina Crissfulli, Wendy
Gioux, Ann Marie McCoole, and Veronica Paris; NHSP Corrections
Officers Capt. Boynton, whose first name is unknown (“FNU”), Lt.
FNU Lidick, and Sgt. FNU Turcotte; New Hampshire Department of
Corrections (“DOC”) Commissioner Helen Hanks; (former) DOC
Commissioner William Wrenn; DOC Medical and Forensic Services
Director Paula Mattis; DOC Attorney Lynmarie Cusack; NHSP Warden
Michelle Edmark; (former) NHSP Warden Michael Zenk; NHSP
employees, Douglas Laidlaw, and Barbara Slayton; and additional
DOC employees not yet identified. 	All of the defendants are
sued in both their individual and official capacities.
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Preliminary Review Standard
The court conducts a preliminary review of prisoner
complaints seeking relief from government employees or entities.
28 U.S.C. § 1915A(a); LR 4.3(d)(1). 	Pro se complaints are
construed liberally. 	See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam). 	In considering whether the complaint
states a claim, the court construes reasonable inferences in the
plaintiff’s favor to determine whether the complaint contains
“sufficient factual matter, accepted as true, to ‘state a
claim’” upon which relief can be granted. 	Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation omitted). 	Claims may be
dismissed, sua sponte, if, among other things, the court lacks
jurisdiction, a defendant is immune from the relief sought, or
the complaint fails to state a claim upon which relief may be
granted. 	See 28 U.S.C. § 1915A(b)(1); LR 4.3(d)(1)(A).
Background and Claims
In the complaint, Mr. Johnson states that he has a medical
condition he refers to as “a False Passage in [his] penis.”
Compl. at 14. 	That condition requires, among other things, that
Mr. Johnson use a catheter to empty his bladder and prevent
urinary retention. 	Mr. Johnson asserts that, if left
unresolved, urinary retention can become acute and result in a
medical emergency and/or a urinary tract infection (“UTI”).
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During the time period relevant to this matter, Mr. Johnson
initially used a Foley catheter which had to be changed by
medical personnel at least once every thirty days, according to
Mr. Johnson’s urologist’s instructions. 	At some point during
his incarceration, Mr. Johnson stopped using a Foley catheter
and instead used disposable catheters which allowed him to empty
his bladder without medical assistance. 	Mr. Johnson claims that
according to his urologist, he needed six disposable catheters
per day while at the NHSP.
In this action, Mr. Johnson alleges that the defendant NHSP
medical staff members failed to properly and adequately treat
his urinary tract issues and that defendants’ actions and
failures to act caused the worsening of his urinary tract
conditions, infections, and extreme pain. 	Mr. Johnson also
alleges that, while he was at the NHSP, the defendants
overmedicated him, made false statements in his prison medical
record, denied him adequate mental health care, harassed and
threatened him, interfered with his ability to file
administrative grievances, retaliated against him for filing
grievances, failed to redress his complaints, housed him in
unsanitary conditions in the NHSP Secure Housing Unit (“SHU”)
while denying him cleaning supplies, failed to use proper
employment practices, and violated prison policies.
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Seeking damages, Mr. Johnson asserts the following claims
against the defendants identified in each claim2:
1. 	Defendants violated Mr. Johnson’s Eighth Amendment
right to receive adequate medical care for his serious
medical needs related to his false passage and urinary
tract problems and are liable to him for negligence or
professional malpractice under State law, in that:
a. 	DOC/NHSP Dr. Celia Englander:
i. 	on March 3, 2017, failed to diagnose acute
urinary retention 	and 	thus 	failed 	to 	address
Mr. Johnson’s pain, swollen stomach, 	and body
aches, despite being advised that Mr. Johnson
was unable to urinate and was suffering from
urinary retention, and knowing of Mr. Johnson’s
underlying urinary tract conditions;
ii. 	on March 4, 2017, instructed a nurse not
to send Mr. Johnson to the hospital despite
knowing Mr. Johnson was in excruciating pain
due to his urinary tract problems; and
iii. failed to instruct NHSP Nurses John
Lombard, Denise Downing, and Wendy Gioux to
provide 	Mr. Johnson with appropriate 	medical
care when he was suffering from sharp pain due
to acute urinary retention.
b. 	DOC/NHSP Dr. Jeffrey Fetter:
i. 	on August 21, 2017, inflicted trauma on
Mr. Johnson’s penis by making repeated
unsuccessful attempts to catheterize Mr.
Johnson, even after Mr. Johnson told Dr. Fetter
2 In the complaint, Mr. Johnson makes references to the
defendants violating his mother’s rights and the rights of other
inmates. 	Because Mr. Johnson cannot represent anyone other than
himself here, see LR 83.2(d) (in general parties who are not
lawyers may appear “only on their own behalf”), Mr. Johnson’s
claims are construed to assert only violations of his own
rights. 	Any claims asserted on behalf of others are properly
dismissed without prejudice to refiling by those individuals or
their attorney.
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that he “couldn’t 	take it anymore,” causing Mr.
Johnson extreme pain, Compl. at 27;
ii. 	denied Mr. Johnson care for a week for a
UTI diagnosed subsequent to Dr. Fetter’s August
21, 2017 failure to catheterize 	Mr. Johnson,
despite being aware that Mr. Johnson was
experiencing urinary retention and that his
Foley catheter was blocked 	and leaking; and
iii. failed 	to change Mr. Johnson’s 	Foley
catheter every thirty days and failed to provide
Mr. Johnson with sufficient disposable
catheters, contrary to Mr. Johnson’s urologist’s
instructions.
c. 	DOC/NHSP Nurse Wendy Gioux:
i. 	on March 2, 2017, failed to identify Mr.
Johnson’s urinary retention, resulting 	in a
progression of his condition 	to acute urinary
retention; and
ii. 	refused, on more than one occasion, to
catheterize Mr. Johnson when his Foley catheter
was clogged, 	stating 	that “she didn’t feel like
it,” Compl. at 26.
d. 	DOC/NHSP Nurse John Lombard:
i. 	on March 3, 2017, delayed evaluating Mr.
Johnson when Mr. Johnson was experiencing a
medical emergency due to acute urinary
retention and, when he eventually saw Mr.
Johnson, failed to catheterize him, 	failed to
have Mr. Johnson seen at a hospital, and failed
to use a bladder scanner to evaluate 	Mr.
Johnson’s 	condition; and
ii. 	failed to follow prison policy requiring him to
notify 	the NHSP Warden and DOC Commissioner
that on 	March 3, 2017 a doctor instructed him to
act contrary to his medical training 	and Mr.
Johnson’s 	medical 	needs.
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e. 	DOC/NHSP Nurse Denise Downing:
i. 	on March 4, 2017, disregarded Mr.
Johnson’s acute urinary retention and instead
instructed 	Mr. Johnson to drink more fluids,
failed to catheterize 	Mr. Johnson, disregarded
the blood in Mr. Johnson’s urine, and failed to
obtain necessary additional medical assistance
for Mr. Johnson, 	which caused 	Mr. Johnson 	to
experience 	extreme 	pain; and
ii. 	failed to follow prison policy requiring
her to notify appropriate prison officials that
she was given “poor instructions” 	by a doctor
which contradicted her assessment of Mr.
Johnson and her medical 	training.
f. 	DOC/NHSP Nurse Donna Dufresne;
i. 	on June 15, 2017, refused to change Mr.
Johnson’s Foley catheter, which had been placed
on 	May 4, 2017, even though his catheter was
supposed to be changed at least every thirty
days, “despite obvious signs of [the catheter]
not working,” Compl. at 20-21, causing Mr.
Johnson excruciating pain and necessitating
that he be taken to the hospital 	for treatment;
ii. 	on August 21, 2017, when Mr. Johnson went
to the medical department due to a problem with
his Foley catheter, removed his catheter but
was unable to insert a replacement catheter
despite numerous attempts, causing Mr. Johnson
“enormous 	pain,” 	Compl. at 21; and
iii. on August 28, 2017, 	when 	Mr. Johnson had an
infected 	penis which “needed to be cleaned
constantly,” Compl. at 21, 	denied 	him alcohol
wipes and told him to use soap and water 	rather
than alcohol wipes, contrary to Mr. Johnson’s
urologist’s instruction that Mr. Johnson keep
the area sanitized to prevent 	infection.
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g. 	DOC/NHSP Nurse Olivia Gamelin:
i. 	on June 17, 2017, was unable to
catheterize Mr. Johnson and sent him back to
his unit, although he was in extreme pain due
to urinary retention severe enough to
constitute 	a medical emergency, without
remedying his emergency condition or treating
his pain;
ii. 	on August 20, 2017, refused to properly
care for Mr. Johnson and did not treat his
pain, relating to what was subsequently diagnosed
as a UTI, when Mr. Johnson went to the NHSP
medical department because his Foley catheter
was “clogging up really bad,” Compl. at 19;
iii. refused to provide Mr. Johnson with an
adequate number of disposable catheters May 5-
7, 2018, which prevented Mr. Johnson from
sufficiently emptying his bladder, in that she
gave him only one for an entire day and night,
contrary to the urologist’s instructions that
Mr. Johnson use six catheters per day; and
iv. 	made him catheterize himself in unsanitary
conditions when Mr. Johnson was housed in an
unsanitary and filthy cell.
h. 	DOC/NHSP Nurse Brad Bowden:
i. 	on August 23, 2017, failed to treat Mr.
Johnson when he sought medical care for UTI
symptoms caused by his failing and leaking Foley
catheter;
ii. 	on August 26, 2017, denied 	Mr. Johnson
adequate 	medical 	care for a UTI;
iii. on Saturday, March 10, 2018, gave Mr.
Johnson ten disposable catheters and instructed
him not to return to the medical department for
more catheters until the following Saturday,
stating that he didn’t care that ten catheters
would not last for the full week, contrary to
Mr. Johnson’s urologist’s instructions that he
use six catheters per day;
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iv. 	on 	May 3, 2018, denied Mr. Johnson
disposable 	catheters “despite [Mr. Johnson]
needing and begging for them,” 	Compl. 	at 22;
v. 	on September 10, 2018, refused 	to 	provide
Mr. Johnson with any care for Mr. Johnson’s
serious medical needs; and
vi. 	on September 14, 2018, refused 	to 	provide
Mr. Johnson with any care for Mr. Johnson’s
serious medical needs.
i. 	DOC/NHSP Nurse Tina Crissfulli, on August 26,
2017, when Mr. Johnson went to the NHSP medical
department for “an emergency with [his] 	Foley
catheter which was plugging up resulting in
leakage,” Compl. at 25, would not let Mr. Johnson
demonstrate 	how his catheter was leaking or provide
adequate care for his urinary tract problem, 	which
was diagnosed 	the following 	day as a UTI.
j. 	DOC/NHSP Nurse Veronica Paris:
i. 	on August 28, 2017, failed to provide Mr.
Johnson with alcohol pads to clean himself,
despite Mr. Johnson’s urologist’s instruction
that Mr. Johnson keep the area sanitized to
prevent 	infection, when Mr. Johnson reported
that, due to his UTI, urine was leaking from
his Foley catheter; and
ii. 	on September 5, 2017, did not help Mr.
Johnson when he went to the NHSP medical
department 	for assistance with his Foley
catheter, 	which was blocked, “causing voiding
issues,” Compl. at 27, due to what was later
diagnosed 	as a UTI.
k. 	DOC/NHSP Nurse Jane Dillon:
i. 	on February 25, 2018, told Mr. Johnson to
catheterize himself less than two or three
times a day, contrary to his urologist’s
instruction that he catheterize himself six
times per day, despite knowing that his bladder
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retains urine and does not fully void, placing
Mr. Johnson at risk of infection;
ii. 	on May 5-7, 2018, would not allow Mr.
Johnson more than one disposable catheter 	per
day, contrary 	to his urologist’s instruction
that he use six disposable catheters per day,
and knowing that his bladder retains urine and
does not fully void; and
iii. on May 5-7, 2018, with an “enormous
attitude,” Compl. at 24, refused to catheterize
Mr. Johnson with a Foley catheter when his
bladder felt full, after he told her that he
needed 	to have a Foley catheter.
l. 	DOC/NHSP Nurse Ellen Halle-Cocoran, on March
14, 2018, gave Mr. Johnson only six disposable
catheters to utilize for the rest of the week,
contrary to his urologist’s instruction that he use
six disposable catheters per day.
m. 	DOC/NHSP Nurse Nancy Clayman, on May 4, 2018,
denied Mr. Johnson medical supplies he needed to
care for his urinary tract problems, did not listen
to Mr. Johnson’s concerns regarding medical matters,
and 	stated 	that 	Mr. Johnson had no rights.
n. 	DOC/NHSP Nurse Ann McCoole disregarded Mr.
Johnson’s medical needs and interfered 	with all of
Mr. Johnson’s 	attempts 	to get necessary 	medical care
and treatment.
o. 	SHU Officers Capt. Boynton and Lt. Lidick
refused to allow 	Mr. Johnson 	to try to obtain
sufficient disposable catheters from the NHSP medical
department.
p. 	Unnamed NHSP Corrections Officers failed to get
Mr. Johnson sufficient medical help for his serious
medical needs on March 3-4, 2017, despite witnessing
blood coming from Mr. Johnson’s penis and Mr.
Johnson begging them for help for hours.
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q. 	Unnamed DOC/NHSP medical personnel:
i. 	failed to arrange all of the medical
appointments necessary to treat Mr. Johnson’s
serious urinary tract issues, including an
appointment with a neuro-urologist; and
ii. 	allowed medical supplies Mr. Johnson
needed to treat his urinary tract issues to run
out on many occasions.
2. 	Defendants violated Mr. Johnson’s Eighth Amendment
right to receive adequate medical care during his
incarceration and are liable to him for negligence or
professional malpractice under State law, in that:
a. 	DOC/NHSP Dr. Celia Englander, on August 6, 7, and
30, 2018, failed to ensure 	that Mr. Johnson received
the proper daily dose of his 	medications.
b. 	DOC/NHSP Nurse Karen Carr, on August 6, 2018,
overmedicated Mr. Johnson by causing him to get
extra doses of Oxcarbazepine Trilecto and Clonidine.
c. 	DOC/NHSP Nurse Fallon Marchand, on August 6,
2018, overmedicated Mr. Johnson by causing him to
get extra doses of Oxcarbazepine Trilecto and
Clonidine.
d. 	DOC/NHSP Nurse Martha Barbosa, on 	August 7,
2018, overmedicated Mr. Johnson by causing him to get
extra doses of Oxcarbazepine 	Trilecto and Clonidine.
e. 	On August 30, 2018, DOC/NHSP Nurse Olivia
Gamelin, knowing that Mr. Johnson had been
overmedicated on August 6 and 7, 2018, overmedicated
Mr. Johnson by causing hm to get an extra dose of his
Oxcarbazepine Trilecto.
f. 	SHU Officers Capt. Boynton, Lt. Lydick, and Sgt.
Turcotte, on August 6 and 7, 2018, overmedicated Mr.
Johnson by improperly administering his psychological
and pain medications to him and causing him to get
extra doses of Oxcarbazepine Trilecto and Clonidine.
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3. 	Defendants violated Mr. Johnson’s Eighth Amendment
right not to be subjected to cruel and unusual punishment,
or Fourteenth Amendment right to substantive due process,
by verbally abusing and harassing Mr. Johnson, in that:
a. 	DOC/NHSP Nurse Veronica Paris, on July 19, 2017,
directed him to return to his housing unit with
urine on his leg and pants and “refused to let [him]
wash up so [he] wouldn’t be humiliated,” stating
that 	“she didn’t care and was content with 	[Mr.
Johnson] returning with urine all over [him],”
Compl. at 26, as a result of Mr. Johnson’s
malfunctioning catheter.
b. 	DOC/NHSP Nurse Brad Bowden:
i. 	on August 23, 2017, “harassed” and
“intimidated” Mr. Johnson, accused him of lying
about his symptoms, and “refused [him] medical
care,” Compl. at 	21, when Mr. Johnson sought
care for 	symptoms of a UTI ;
ii. 	on August 	26, 2017, harassed 	Mr. Johnson by
“put[ting] 	his hands in [Mr. Johnson’s] 	face,”
Compl. at 21, and “accus[ing him] 	of 	having 	a
twisted agenda,” 	id. 	at 25;
iii. on or after September 11, 2017,
intimidated Mr. Johnson by “pushing [Mr.
Johnson] 	in [his] 	wheel chair wildly and out of
control, really fast and scary,” 	Compl. 	at 22;
iv. 	on September 10, 2018, intimidated 	Mr.
Johnson at the NHSP medical 	department;
v. 	on September 14, 2018, when Mr. Johnson
went to the NHSP medical department with health
concerns, said, sarcastically, “Oh, it’s you
again,” 	Compl. at 22, and was dismissive of Mr.
Johnson’s health concerns; and
vi. 	on September 23, 2018, instructed Mr.
Johnson not to bring used catheters to the
medical department, but refused to put that
instruction in writing, and accused Mr. Johnson
of “playing games,” Compl. at 22, when Mr.
Johnson brought used disposable catheters to the
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NHSP medical department to exchange for new
ones, as he had 	been instructed to do by NHSP
medical personnel.
c. 	DOC/NHSP Nurse Tina Crissfulli:
i. 	on August 26, 2017, “allowed Nurse Bowden
to invade [Mr. Johnson’s] personal space behind
the curtain,” and “nodded 	her head in agreement
when Nurse Bowden accused 	[Mr. Johnson] 	of
having 	a twisted agenda,” 	Compl. 	at 25; and
ii. 	on September 15, 2017, “participated in
gossip with personnel from Manchester Urology,”
about Mr. Johnson’s mother, Compl. at 25.
d. 	DOC/NHSP Nurse Nancy Clayman:
i. 	prior to May 4, 2018, 	told Mr. Johnson that
she thinks he deserves a life sentence, despite
not knowing anything about Mr. Johnson or his
criminal history; and
ii. 	on May 4, 	2018, was rude and demeaning to
Mr. Johnson, telling him to “be a man,” to stop
having his mother 	intervene in his medical care
at the prison, and threatening to have his
mother “fined and penalized” by the State,
Compl. at 24.
e. 	DOC/NHSP Nurse Olivia Gamelin “constantly
tormented” Mr. Johnson, and on one occasion told Mr.
Johnson that her boyfriend, DOC Officer Rubio,
“‘would 	pay [Mr. Johnson] 	a visit if [he] kept it
up,’” telling Mr. Johnson “‘we both know you don’t
want that.’” 	Compl. at 19.
f. 	DOC/NHSP employee Barbara Slayton was rude,
disrespectful, and insincere in her interactions
with Mr. Johnson.
g. 	SHU Officer Sgt. Turcotte threatened to beat up
Mr. Johnson.
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h. 	SHU Officers Capt. Boynton and Lt. Lidick
allowed Sgt. Turcotte to threaten to beat up Mr.
Johnson and to work near where Mr. Johnson was
housed in the SHU.
4. 	Defendants violated Mr. Johnson’s Eighth Amendment
right to humane conditions of confinement, in that:
a. 	DOC/NHSP Nurse Jane Dillon, on May 5-7, 2018,
refused to help Mr. Johnson obtain cleaning
supplies, 	knowing that he was not able to get
cleaning supplies from the SHU staff, despite Mr.
Johnson telling her that he had a heightened risk of
infection because of the filthy condition of his cell.
b. 	SHU Officers Capt. Boynton, 	Lt. Lidick, and Sgt.
Turcotte :
i. 	on many occasions, allowed toilet water to
flood Mr. Johnson’s housing tier and allowed Mr.
Johnson’s cell to remain flooded for hours while
denying him cleaning supplies, which deprived him
of a sanitary place to catheterize 	himself and
contaminated his disposable catheters; and
ii. 	failed to provide Mr. Johnson with access to
daily showers and failed to ensure the showers on
Mr. Johnson’s housing unit were clean.
5. 	SHU Officers Capt. Boynton, Lt. Lidick, and Sgt.
Turcotte violated Mr. Johnson’s First Amendment right to
petition the government for a redress of grievances, and
his Fourteenth Amendment right to due process, 	in that:
a. 	they interfered with administrative grievances
Mr. Johnson sent to NHSP Warden Michelle Edmark and
DOC Medical and Forensic Services Director Paula
Mattis;
b. 	Lt. Lidick and Sgt. Turcotte denied Mr. Johnson
inmate request slips and grievance forms on many
occasions; and
c. 	Capt. Boynton and Lt. Lidick “were very
persistent on [Mr. Johnson] not following through
with a complaint on Sargent Turcotte,” Compl at 29.
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6. 	SHU Officer Lt. Lidick violated Mr. Johnson’s First
Amendment right to petition the government for redress of
his grievances when Lt. Lidick threatened to send Mr.
Johnson, who is serving a Florida state sentence at the
DOC, back to Florida for “filing grievances and making
complaints,” 	Compl. at 29, knowing that Mr. Johnson would
likely be murdered if he were returned 	to Florida.
7. 	DOC employee Barbara Slayton violated Mr. Johnson’s
Eighth Amendment right to receive adequate care and
treatment for his serious mental health needs by failing
to be concerned with his mental health.
8. 	DOC/NHSP Nurse Wendy Gioux, violated Mr. Johnson’s
right to accurate medical records when, on June 8, 2017,
she falsely reported in Mr. Johnson’s prison medical
record that she had offered 	him a chance to have his
Foley catheter changed on that date when she had not.
9. 	DOC employee Douglas Laidlaw is not qualified 	for
his position.
10. 	DOC Commissioner Helen Hanks is responsible for
“having the office of the Deputy Director [v]acant,”
Compl. at 33
11. 	DOC/NHSP 	medical personnel, 	DOC Medical and Forensic
Services Director Paula Mattis, NHSP Warden Michelle
Edmark, and DOC Commissioner 	Helen Hanks violated 	Mr.
Johnson’s 	Fourteenth 	Amendment 	right 	to 	due 	process,
in that each of them failed to take corrective action
concerning 	the constitutional violations and negligence Mr.
Johnson alleges in Claims 1-8, in response to Mr. Johnson’s
administrative grievances concerning 	those matters.
12. 	Supervisory officials DOC Commissioner Helen Hanks,
former DOC Commissioner William Wrenn, DOC Director of
Medical and Forensic Services Paula Mattis, DOC Attorney
Lynmarie Cusack, NHSP Warden Michelle Edmark, former NHSP
Warden Michael Zenk, and DOC/NHSP Nursing Coordinators
Ryan Landry and Carlene Ferrier are liable for the
alleged constitutional violations and torts Mr. Johnson
alleges their subordinates effected in Claims 1-8, to the
extent such conduct occurred during each particular
supervisory official’s tenure at the DOC and/or NHSP.
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Discussion
I. 	Official Capacity Claims
Seeking money damages, Mr. Johnson has asserted each of his
claims against each defendant in both their individual and
official capacities. 	When a state official is sued in his or
her official capacity, the claim is treated as one brought
against the State, even if the State is not a named party. 	See
Lewis v. Clarke, 137 S. Ct. 1285, 1290 (2017) (citing Kentucky
v. Graham, 473 U.S. 159, 165-66 (1985)); Negrón-Almeda v.
Santiago, 579 F.3d 45, 53 (1st Cir. 2009). 	The Eleventh
Amendment generally precludes such suits for damages, absent
exceptions not applicable here. 	See Davidson v. Howe, 749 F.3d
21, 28 (1st Cir. 2014). 	Mr. Johnson’s official capacity claims
are thus precluded by the Eleventh Amendment, see Lewis, 137 S.
Ct. at 1291, and the District Judge should dismiss all of the
official capacity claims Mr. Johnson has asserted here.
II. 	Individual Capacity Claims
A. 	First Amendment Claim to Be Served (Claim 6)
In Claim 6, Mr. Johnson alleges that the defendants
identified therein retaliated against him for exercising his
First Amendment rights. 	To state a retaliation claim, a
prisoner must allege: (1) that he engaged in conduct protected
by the First Amendment; (2) that he suffered a non-de minimis
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adverse action at the hands of the defendant prison officials;
and (3) that there was a causal link between the exercise of his
First Amendment rights and the adverse action. 	See Hannon v.
Beard, 645 F.3d 45, 48 (1st Cir. 2011).
Mr. Johnson has pleaded a First Amendment retaliation claim
upon which relief can be granted, arising from facts summarized
in this Report and Recommendation (“R&R”) as Claim 6. 	In an
Order issued this date, the court has directed service of Claim
6 upon SHU Officer Lt. Lidick in his individual capacity.
B. 	Other Claims Served or to Be Amended – Legal Standards
1. 	Eighth Amendment Health Care Claims
Mr. Johnson alleges defendants violated his Eighth
Amendment rights by denying him adequate care for his serious
medical and mental health needs. 	To state an Eighth Amendment
claim related to the sufficiency of medical or mental health
care in prison, a plaintiff must allege that the defendants
displayed “deliberate indifference to serious medical needs.”
Estelle v. Gamble, 429 U.S. 97, 106 (1976).
This standard has both an objective and a subjective prong.
Zingg v. Groblewski, 907 F.3d 630, 635 (1st Cir. 2018). 	To
satisfy the objective prong, a plaintiff must allege that he had
a serious medical need “that has been diagnosed by a physician
as mandating treatment, or one that is so obvious that even a
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lay person would easily recognize the necessity for a doctor’s
attention.” 	Kosilek v. Spencer, 774 F.3d 63, 82 (1st Cir. 2014)
(en banc) (internal quotation marks omitted).
Under the subjective prong, the plaintiff must allege facts
showing that the defendant had “a sufficiently culpable state of
mind.” 	Zingg, 907 F.3d at 635. 	A showing of deliberate
indifference to a substantial risk of serious harm satisfies the
subjective prong of an Eighth Amendment claim. 	See Farmer v.
Brennan, 511 U.S. 825, 834 (1994). 	To establish deliberate
indifference, an inmate must demonstrate that: defendants were
aware of facts that gave rise to an inference that a substantial
risk of serious harm existed; defendants drew the inference that
such a risk existed; and defendants, by act or omission, did not
take reasonable steps to reduce or eliminate the
risk. 	See id. at 828-29; Leite v. Bergeron, 911 F.3d 47, 52–53
(1st Cir. 2018).
“[W]anton” or criminal recklessness in the medical
treatment provided will suffice to demonstrate deliberate
indifference, where the plaintiff has shown that the defendants
had “actual knowledge of impending harm, easily preventable, and
yet failed to take the steps that would have easily prevented
that harm.” 	Zingg, 907 F.3d at 635 (internal quotation marks
and citation omitted). 	Such a showing may be made by
demonstrating that a defendant provided medical care that was
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“so inadequate as to shock the conscience.” 	Feeney v. Corr.
Med. Servs., Inc., 464 F.3d 158, 162 (1st Cir. 2006) (internal
quotation marks omitted). 	In such circumstances, the care
received must be “so clearly inadequate as to amount to a
refusal to provide essential care.” 	Torraco v. Maloney, 923
F.2d 231, 234 (1st Cir. 1991) (internal quotation marks
omitted).
However, not every harm experienced by a prisoner in
relation to medical treatment rises to the level of an Eighth
Amendment violation. 	See Snell v. Neville, 998 F.3d 474, 494-95
(1st Cir. 2021). 	Prisons are not required to provide ideal
medical care, or a prisoner’s preferred medical treatment. 	See
id. 	Further, a showing of negligence is not enough to state an
Eighth Amendment claim. 	See id. at 496-97; Ruiz–Rosa v. Rullán,
485 F.3d 150, 156 (1st Cir. 2007) (“substandard care,
malpractice, negligence, inadvertent failure to provide care,
and disagreement as to the appropriate course of treatment are
all insufficient to prove a constitutional violation” (internal
citations and quotation marks omitted)).
2. 	Negligence and Professional Malpractice
Mr. Johnson has generally alleged that defendants are
liable to him for negligence or professional malpractice. 	To
state a negligence claim, “the plaintiff must plead facts
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showing that (1) the defendant owed the plaintiff a duty; (2)
the defendant breached that duty; and (3) the breach proximately
caused the plaintiff’s injuries.” 	Doe v. Trs. of Dartmouth
Coll., No. 21-cv-085-JD, 2021 U.S. Dist. LEXIS 127228, at *30,
2021 WL 2857518, at *10 (D.N.H. July 8, 2021) (citing Coan v.
N.H. Dep’t of Env’t Servs., 161 N.H. 1, 7, 8 A.3d 109, 115
(2010)). 	Under state law, a plaintiff states a viable claim of
medical malpractice by alleging that he suffered injuries
proximately caused by a health care provider’s failure to
provide care consistent with the standard of reasonable
professional practice at the time the care was rendered. 	See
Beckles v. Madden, 160 N.H. 118, 124, 993 A.2d 209, 214 (2010)
(citing N.H. Rev. Stat. Ann. § 507-E:2).
C. 	Medical Care - Federal and State Claims to Be Served
Mr. Johnson has sufficiently stated the following Eighth
Amendment medical and mental health care claims, as identified
in R&R, to allow them to proceed against the defendants
identified in each claim, in their individual capacities:
1(a)(i)-(iii), 1(b)(i)-(iii), 1(c)(i)-(ii), 1(d)(i), 1(e)(i),
1(f)(i)-(iii), 1(g)(i)-(iv), 1(h)(i)-(iv), 1(i), 1(j)(i)-(ii),
1(k)(i)-(iii), 1(l), 1(m), 1(o), 2(a)-(f), 4(a), and 4(b)(i).
Those claims may also proceed against the same defendants as
claims for damages for negligence or professional malpractice
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under New Hampshire law. 	In an Order issued simultaneously with
this R&R, the court directs service of those Eighth Amendment
claims and the related state tort claims.
D. 	Medical/Mental Health Care Claims to Be Amended
1. 	Claims 1(h)(v), 1(h)(vi), 1(n), 7
Mr. Johnson alleges generally that Nurse Bowden (Claims
1(h)(v)-(vi)) and Nurse McCoole (Claim 1(n)) violated his Eighth
Amendment rights and are liable to him for negligence or
professional malpractice under state law, by disregarding his
serious medical needs and/or interfering with his necessary
medical treatment. 	In Claim 7, Mr. Johnson alleges generally
that Ms. Slayton violated his Eighth Amendment right to receive
adequate treatment for his serious mental health needs.
Mr. Johnson’s allegations summarized here as Claims
1(h)(v)-(vi), 1(n), and 7 are conclusory and do not presently
warrant service upon defendants. 	But in an abundance of
caution, considering Mr. Johnson’s pro se status, the court has
granted Mr. Johnson the opportunity to amend those claims,
requiring him, in the Order issued this date, to file an amended
pleading stating, with specificity, what Nurse Bowden, Nurse
McCoole, and Ms. Slayton did, or failed to do, which violated
his Eighth Amendment rights and/or rendered them liable to him
for negligence or professional malpractice.
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2. 	Claims 1(p) and 1(q)(i)-(ii)
In the claims identified here as Claims 1(p) and 1(q)(i)-
(ii), Mr. Johnson has failed to name any defendant whose acts or
omissions manifested deliberate indifference to Mr. Johnson’s
serious medical needs. 	In the Order issued this date, Mr.
Johnson is granted leave to file an amended pleading, naming
those defendants and stating, with specificity, what each
defendant did or failed to do which violated his rights under
the Eighth Amendment or which constituted negligence or
professional malpractice.3
D. 	Claims to Be Dismissed
1. 	False Notation in Medical Record (Claim 8)
In Claim 8, Mr. Johnson states that on one occasion, Nurse
Gioux placed false information in his medical record, a notation
that she had offered him the opportunity to have his catheter
changed when, Mr. Johnson alleges, she had not. 	Mr. Johnson
does not state that he was denied necessary medical care, or
otherwise harmed, as a result of Nurse Gioux’s alleged false
notation. 	Further, one false statement in Mr. Johnson’s medical
3 To obtain the names of the appropriate defendants, Mr.
Johnson may serve interrogatories and/or requests for production
of documents on the served defendants, as explained in the Order
issued this date.
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record regarding an offer to change his catheter on one
occasion, absent any facts showing any resulting adverse
consequence does not rise to the level of a constitutional
violation. 	The District Judge, therefore, should dismiss Claim
8 for failure to state a claim.
2. 	Threats and Harassment (Claims 3(a)-(h))
In the claims identified here as Claims 3(a)-(h), Mr.
Johnson asserts that the defendants identified in those claims
threatened and/or verbally harassed him at the NHSP. 	Mr.
Johnson claims that the verbal harassment and threats violated
his rights under the Eighth Amendment and/or the Fourteenth
Amendment.
Allegations of verbal threats and harassment, standing
alone, are insufficient to assert any constitutional violation.
See Shabazz v. Cole, 69 F. Supp. 2d 177, 200-01 (D. Mass. 1999)
(without more, verbal harassment by officers does not violate
inmate’s constitutional rights) (collecting cases); see also
DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000) (“Standing
alone, simple verbal harassment does not constitute cruel and
unusual punishment, deprive a prisoner of a protected liberty
interest or deny a prisoner equal protection of the laws.”).
Although inappropriate and unprofessional, the threats and
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verbal harassment alleged in the Complaint do not state a claim
upon which relief can be granted under 42 U.S.C. § 1983.
Mr. Johnson further alleges that some of the harassment
involved touching and scaring him. 	His allegations in that
regard, as summarized in Claims 3(a)-(h), without more, do not
state claims upon which relief can be granted. 	Cf. Wilkins v.
Gaddy, 559 U.S. 34, 38 (2010) (“not every malevolent touch by a
prison guard gives rise to a federal cause of action”; and “[a]n
inmate who complains of a push or shove that causes no
discernible injury almost certainly fails to state a valid
excessive force claim” (internal quotation marks omitted)
(citing Hudson v. McMillian, 503 U.S. 1, 9 (1992)). 	He has not
pleaded the type of facts that could be deemed to convert the
apparently unprofessional and indefensible types of harassment
he alleges he suffered into the type of malicious or sadistic
infliction of excessive force or the type of “credible threat to
kill, or to inflict any other physical injury” that could
violate the Eighth Amendment. 	Dobbey v. Ill. Dep’t of Corr.,
574 F.3d 443, 446 (7th Cir. 2009). 	Accordingly, the District
Judge should dismiss Claims 3(a)-(h).
3. 	Shower Claims (Claim 4(b)(ii))
In Claim 4(b)(ii), Mr. Johnson asserts that the defendant
SHU officers identified therein subjected him to unsanitary
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conditions of confinement, in violation of his Eighth Amendment
rights. 	Specifically, Mr. Johnson asserts that the defendants
failed to provide him with daily showers while he was housed in
the SHU and failed to keep the showers consistently clean.
To establish a constitutional violation under the Eighth
Amendment based on inhumane conditions of confinement, the
“claim must meet both objective and subjective criteria.”
Surprenant v. Rivas, 424 F.3d 5, 18-19 (1st Cir. 2005) (citing
Farmer, 511 U.S. at 834). 	Objectively, the conditions of
confinement must deny the inmate “the minimal measure of
necessities required for civilized living.” 	Id. 	Subjectively,
the defendant must be “deliberately indifferent” to the
prisoner’s “health or safety.” 	Surprenant, 424 F.3d at 18-19
(citing Farmer, 511 U.S. at 836-37.
The allegations in Mr. Johnson’s complaint do not show that
he was at risk of serious harm due to the lack of daily showers
and a consistently clean shower. 	Further, no non-conclusory
facts in the complaint suggest that the defendants were aware of
and disregarded a risk to Mr. Johnson’s health and safety
arising from his allegations concerning the SHU showers. 	Mr.
Johnson has thus failed to state an Eighth Amendment claim based
on the SHU showers, and, accordingly, the District Judge should
dismiss Claim 4(b)(ii).
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4. 	Prison Policy Violations
a. 	Fourteenth Amendment Due Process Claims
Mr. Johnson has alleged that the defendants violated prison
policy, in violation of his Fourteenth Amendment due process
rights, with respect to the medical care that he sought for
treatment of his urinary tract issues. 	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). 	In general, a prisoner has
no freestanding liberty interest in having prison officials
follow prison policies. 	See McFaul v. Valenzuela, 684 F.3d 564,
579 (5th Cir. 2012); Querido v. Wall, C.A. No. 10-098 ML, 2010
U.S. Dist. LEXIS 139201 at *14, 2010 WL 5558915, at *3 (D.R.I.
Dec. 8, 2010), R&R adopted, 2011 U.S. Dist. LEXIS 1882, 2011 WL
63503 (D.R.I. Jan. 7, 2011). 	Without more, the facts alleged by
Mr. Johnson do not state claims upon which relief can be
granted, for violations of his right to due process under the
Fourteenth Amendment, with respect to his claims relating to the
medical care he received for his urinary tract issues.
b. 	Eighth Amendment (Claim 1(d)(ii), 1(e)(ii))
In Claims 1(d)(ii) and 1(e)(ii), Mr. Johnson claims that
nurses violated his Eighth Amendment rights by failing to follow
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prison policies requiring them to notify the NHSP Warden and DOC
Commissioner that physicians had given them instructions
inconsistent with their training and experience. 	Mr. Johnson
has not pleaded facts sufficient to show, however, that the
nurses’ failure to make such reports of poor or mistaken
instructions, per se, was more than mere negligence on the part
of those nurses, or that they were aware that their failure to
make such reports, per se, subjected Mr. Johnson to a
substantial risk of serious harm. 	Accordingly, the policy
violations or reporting lapses at issue do not state claims that
those nurses violated Mr. Johnson’s federal rights, and for that
reason, the District Judge should dismiss the claims summarized
herein as Claims 1(d)(ii) and 1(e)(ii), for failure to state a
claim upon which relief can be granted.
5. 	Administrative Grievances (Claims 5(a)-(c), 11)
In the claims identified here as Claims 5(a)-(c), Mr.
Johnson asserts that the defendants named in those claims
violated his Fourteenth Amendment right to due process by
engaging in conduct which interfered with his ability to file
administrative grievances at the NHSP. 	“There is no
constitutionally protected due process right to unfettered
access to prison grievance procedures.” 	Walker v. Mich. Dep’t
of Corr., 128 F. App’x 441, 445 (6th Cir. 2005). 	Accordingly,
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Mr. Johnson is not entitled to relief on his claim that the
defendants interfered with his access to grievance procedures,
and the District Judge should dismiss Claims 5(a)-(c).
In Claim 11, Mr. Johnson alleges that the defendants named
therein violated his Fourteenth Amendment right to due process,
and are liable to him under state law for negligence, in that
they denied him relief in response to many of the grievances he
filed at the NHSP. 	“[T]he failure to respond to a grievance to
the satisfaction of the inmate does not, standing alone
implicate a liberty interest.” 	Spencer v. Bender, Civil Action
No. 08-11528-RGS, 2010 U.S. Dist. LEXIS 23249, at *26, 2010 WL
972207, at *9 (D. Mass. Mar. 11, 2010). 	As the denial of his
administrative complaints did not implicate any liberty
interest, Mr. Johnson has no Fourteenth Amendment due process
right to have his grievances granted. 	The district judge
therefore should dismiss Claim 11 to the extent it asserts a
Fourteenth Amendment violation and decline to exercise its
supplemental jurisdiction to the extent it asserts a negligence
claim, as no federal claim upon which relief can be granted is
stated against any of the defendants named in Claim 11. 	See 28
U.S.C. § 1367(c).
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6. 	Claims 9 and 10
In the allegations summarized here as Claim 9, Mr. Johnson
complains that a DOC and/or NHSP employee, Douglas Laidlaw, does
not have the qualifications required to perform his job. 	Mr.
Johnson has identified neither Mr. Laidlaw’s position nor what
qualifications Mr. Laidlaw lacks. 	And in Claim 10, Mr. Johnson
asserts that Commissioner Hanks is responsible for leaving the
job of “Deputy Director” vacant. 	Mr. Johnson does not assert
that he was injured in any way with regard to Mr. Laidlaw’s lack
of qualifications or the vacant Deputy Director position, and
his claims in that regard do not otherwise appear to state any
claim upon which relief might be granted. 	Accordingly, the
District Judge should dismiss Claims 9 and 10.
7. 	Supervisory Liability (Claim 12)
In Claim 12, Mr. Johnson alleges that the supervisory DOC
and NHSP officials identified therein are responsible for the
constitutional violations arising from the conduct of their
subordinates underlying Claims 1-8. 	Generally, a supervisory
official is liable for a constitutional violation under § 1983
only if his or her own actions or inactions caused the
violation, or if his or her conduct “led inexorably to” a
subordinate’s violation of the plaintiff’s constitutional
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rights. 	Penate v. Hanchett, 944 F.3d 358, 367 (1st Cir. 2019);
see also Justiniano v. Walker, 986 F.3d 11, 20 (1st Cir. 2021).
Mr. Johnson does not allege that any supervisory officials
were engaged in conduct which “led inexorably to” their
subordinates’ conduct underlying Claims 1-8, which he alleges
violated his constitutional rights. 	Accordingly, the District
Judge should dismiss Claim 12 and should drop all of the
defendants identified therein.
Conclusion
For the foregoing reasons, the district judge should:
1. 	Dismiss all of Mr. Johnson’s claims asserted on
behalf of his mother or other prisoners, without prejudice;
2. 	Dismiss all of Mr. Johnson’s official capacity
claims asserted against any defendant in this case;
3. 	Dismiss all of Mr. Johnson’s Fourteenth Amendment
due process claims arising from alleged violations of
prison policies relating to medical care for Mr. Johnson’s
urinary tract issues, for failure to state a claim upon
which relief can be granted;
4. 	Dismiss Claims 1(d)(ii), 1(e)(ii), 3(a)-(h),
4(b)(ii), 5(a)-(c), and 8-12, for failure to state a claim
upon which relief can be granted; and
5. 	Dismiss the following defendants from this
action, as no claim upon which relief can be granted has
been stated against them: DOC Commissioner Helen Hanks;
(former) DOC Commissioner William Wrenn; DOC Medical and
Forensic Services Director Paula Mattis; DOC Attorney
Lynmarie Cusack; NHSP Warden Michelle Edmark; (former) NHSP
Warden Michael Zenk; NHSP employee Douglas Laidlaw; and
DOC/NHSP Nurse Coordinators Ryan Landry and Carlene
Ferrier.
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Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	Fed. R.
Civ. P. 72(b)(2). 	The fourteen-day 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
December 15, 2021
cc: 	Jacob William Johnson, pro se
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