Gero v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Aaron Gero
v. Civil No. 23-cv-315-LM-AJ
FCI Berlin Warden
REPORT AND RECOMMENDATION
Before the court is Aaron Gero’s Complaint (Doc. No. 1),
which he filed when he was a prisoner at the Federal
Correctional Institution in Berlin, New Hampshire (“FCI
Berlin”). The complaint is before this magistrate judge for
preliminary review under LR 4.3(d)(1) and 28 U.S.C. § 1915A(a).
Preliminary Review Standard
The court may dismiss claims asserted in a prisoner’s
complaint, if the court lacks 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). The court construes pro se pleadings liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
Background
Mr. Gero filed this action with less than six months left
to serve on his sentence, complaining about incidents that
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occurred while he was participating in the FCI Berlin medication
assisted treatment (“MAT”) program to treat his opioid
addiction. Construed liberally, the Complaint asserts the
following types of claims for injunctive relief:
1. An Eighth Amendment deliberate indifference
claim, arising from an FCI Berlin nurse’s conduct in
seeking to induce Mr. Gero to accept an injectable
medication known as sublocade, in lieu of his prescribed
daily dose of an oral medication known as suboxone;
2. An Eighth Amendment harassment/humiliation claim,
arising from: (a) the conduct of an FCI Berlin nurse in
calling the Lieutenant’s office on two occasions after Mr.
Gero had taken his suboxone, and (b) the conduct of the FCI
Berlin corrections officers in subjecting Mr. Gero to a
strip search and an anal cavity search thereafter; and
3. A Fifth Amendment equal protection claim, arising
from an FCI Berlin nurse’s conduct in subjecting Mr. Gero,
who is black, to less favorable treatment than other
prisoners in the MAT program, who receive suboxone without
enduring harassment or pressure to switch to sublocade.
The only relief requested is an order directing the BOP to allow
the plaintiff to take suboxone and to cease harassing him. The
FCI Berlin Warden is the only named defendant.
Discussion
I. Mootness
Mr. Gero is no longer a prisoner in BOP custody. The BOP
Online Inmate Locator states that Mr. Gero was released on
November 29, 2023. The information in the BOP Online Inmate
Locator is self-authenticating and properly the subject of
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judicial notice. See Fed. R. Evid. 201(b)(2), 902(5); United
States v. Rivera, 466 F. Supp. 3d 310, 313 (D. Conn. 2020).
Mootness provides a basis for this court, sua sponte, to
dismiss all of the claims in this case, based on the nature of
the relief requested, and plaintiff’s release. 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”). Cf. Anderson v. Rehmer, 696 F. App’x
536, 537 (2d Cir. 2017) (affirming sua sponte dismissal of
complaint seeking only injunctive relief, as inmate’s “transfer
to a new facility prevents him from seeking either injunctive or
declaratory relief against officials of his prior facility”).
The district judge should thus dismiss this case as moot,
without prejudice to the plaintiff’s ability to file a similar
action asserting claims for damages.
II. Failure to Pay Filing Fee or File In Forma Pauperis Motion
Mr. Gero has not complied with the order requiring him to
pay the filing fee or to file an application to proceed in forma
pauperis (“IFP”) in this case. See June 15, 2023 Notice (Doc.
No. 2). His failure to do so suggests an intent to abandon this
case, which would provide an additional ground for dismissal
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without prejudice, if the plaintiff does not file an IFP
application or pay the filing fee within the time allowed for
objecting to this Report and Recommendation (“R&R”). See
generally 28 U.S.C. §§ 1914, 1915; see also Link v. Wabash R.
Co., 370 U.S. 626, 630 (1962) (court has inherent power to
dismiss sua sponte for lack of prosecution); Olsen v. Mapes, 333
F.3d 1199, 1204 (10th Cir. 2003) (courts may “dismiss actions
sua sponte for a plaintiff’s failure to prosecute or comply with
the rules of civil procedure or court’s orders”); Heck v. Payne
Cnty. Sheriff’s Off., No. CIV-23-869-D, 2023 WL 8114376, at *1,
2023 U.S. Dist. LEXIS 209204, at *1 (W.D. Okla. Nov. 22, 2023)
(declining to dismiss case for lack of payment of filing fee and
lack of filing of IFP motion, where plaintiff filed IFP motion
during R&R’s objection period).
Conclusion
For the foregoing reasons the district judge should dismiss
this action as moot, without prejudice to Mr. Gero’s ability to
file an action for damages, upon paying the filing fee or filing
an application to proceed in forma pauperis. 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 objection period may be extended upon motion. Only those
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issues raised in the written objections “‘are subject to review
in the district court,’” and any issues “‘not preserved by such
objection are precluded on appeal.’” Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016) (citations omitted).
___________ ______________
Andrea K. Johnstone
United States Magistrate Judge
December 4, 2023
cc: Aaron Gero, pro se
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