Buthelezi v . Dept. of Corrections CV-99-563-B 09/27/01 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Themba H . A . Buthelezi
v. Civil N o . 99-563-B Opinion N o . 2001 DNH 178 Hillsborough County Department of Corrections, et a l .
O R D E R
Before the court is pro se plaintiff Themba H . A . Buthelezi,
who has filed suit1 against the Hillsborough County Department of
Corrections (“DOC”) and a number of its employees pursuant to 42
U.S.C. § 1983 and 42 U.S.C. § 1981. Buthelezi seeks redress for
alleged violations of his Eighth and Fourteenth Amendment rights
caused by physical abuse, threats and other improper treatment
received during his incarceration at the Hillsborough County
House of Corrections (“HOC”). As Buthelezi is proceeding both
pro se and in forma pauperis, the matter is currently before me
for preliminary review. See United States District Court for the
District of New Hampshire Local Rules 4.3(d)(2). As explained
fully herein, I order the majority of Buthelezi’s claims to be
1 Buthelezi has filed a number of narrative documents. I will consider them, in the aggregate, to be the complaint in this matter. served.2 In a Report and Recommendation issued simultaneously
with this Order, I recommend the dismissal of the remaining
claims and defendants from this action.
Standard of Review
In reviewing a pro se complaint, the court is obliged to
construe the pleading liberally. See Ayala Serrano v . Lebron
Gonzales, 909 F.2d 8 , 15 (1st Cir. 1990) (following Estelle v .
Gamble, 429 U.S. 9 7 , 106 (1976) to construe pro se pleadings
liberally in favor of that party). At this preliminary stage of
review, all factual assertions made by the plaintiff and
inferences reasonably drawn therefrom must be accepted as true.
See Aulson v . Blanchard, 83 F.3d 1 , 3 (1st Cir. 1996) (stating
the “failure to state a claim” standard of review and explaining
that all “well-pleaded factual averments,” not bald assertions,
must be accepted as true). This review ensures that pro se
pleadings are given fair and meaningful consideration. See
2 Specifically, I order the following claims to be served against the following defendants: excessive force claims against Corrections Officers McCord, Martineau, Polotano, Sullivan, Kowack, Beaudoin, and Matte; Equal Protection claims against McCord, Martineau, Polotano, Kowack, and Beaudoin, improper strip search claims against Beaudoin and Provencal, destruction of property claim against Matte, improper disciplinary procedures claim against Sawyer, and an improper grievance procedure claim against Velasquez-Cunningham.
2 Eveland v . Director of C.I.A., 843 F.2d 4 6 , 49 (1st Cir. 1988).
Dismissal of pro s e , in forma pauperis complaints is appropriate
if they are frivolous or malicious, fail to state a claim on
which relief may be granted, or seek monetary relief against a
defendant who is immune from such relief. See 28 U.S.C. §
1915(e)(2)(B)(i), (ii) & (iii).
Background
On July 2 2 , 1999, Buthelezi, an INS 3 detainee, was in
Housing Unit (“HU”) 1-C at the HOC playing checkers when the door
to the medical office burst open and corrections officers came
charging into HU 1-C. Corrections Officer Polotano told
Buthelezi to step into his cell but pointed to a cell on the
lower tier rather than Buthelezi’s cell on the upper tier.
Buthelezi walked toward the stairs leading to his cell. At that
time, for no apparent reason, Corrections Officers Timothy McCord
and Polotano tackled Buthelezi, bringing him to the floor.
Polotano and McCord pinned Buthelezi down with their knees,
although he did not resist in any way, while Sgt. Sullivan was
“jumping all over” another inmate who was handcuffed, shackled,
and lying on the floor. L t . Duffy came in and took charge of the
3 “INS” is the Immigration and Naturalization Service.
3 other inmate while Sullivan approached Buthelezi with clenched
fists and gritted teeth. Sullivan ordered McCord and Polotano to
pick Buthelezi up and throw him down again. As a result,
Buthelezi suffered numbness in both his legs and arms, a sprained
shoulder, and his glasses were broken.
After Buthelezi was tackled to the floor, McCord and
Polotano brought him from HU 1-C to HU 2-B4. While en route,
McCord continuously attempted to trip Buthelezi, despite the fact
that Buthelezi was both handcuffed at the wrists and shackled at
the ankles. During this transport, McCord also yelled
continuously and directly into Buthelezi’s right ear.
Upon arriving at HU 2-B, Buthelezi was brought into cell
2104 and told to strip naked. Sargeant John Kowack told
Buthelezi he would have to remain nude in his cell due to
“policy.” Buthelezi refused to do this as he believed it to be
cruel and unusual punishment. He was then handcuffed and
shackled again and moved to cell 2098 where he was told to stand
in the corner of the cell without talking or moving. When he did
not comply with this instruction, as he thought it was
4 HU 2-B is a maximum security unit.
4 ridiculous, he was thrown on the floor and barraged with a series
of ethnic slurs by the corrections officers present.
An officer added a set of flexible plastic handcuffs to the
handcuffs already on Buthelezi’s wrists and tightened both sets
of handcuffs and his shackles. His hands and arms went
immediately numb and his skin was broken by all three sets of
restraints due to their excessive tightness. When he complained
about the tightness of the restraints, he was told that they were
intended to be painful and he was called names. While lying on
the floor thus restrained Sargeant Brian Martineau kicked him
three times, once on each thigh and once in the rib cage. Two
corrections officers also observed Martineau choke Buthelezi.
The corrections officers who were present then proceeded to
verbally abuse him.
Buthelezi was then dragged in restraints to cell 2099 where
he was strapped to a restraining chair and made to endure more
physical and verbal abuse. He was kicked above his knee and
threatened with additional abuse. Corrections Officer Steve
Beaudoin, in an apparent attempt to hit a pressure point, rubbed
his knuckle into Buthelezi’s head behind his ear until Buthelezi
was bleeding.
5 While in the restraining chair, Buthelezi’s arms and legs
were restrained. Martineau choked him for at least two minutes
until he was falling in and out of consciousness. Martineau also
threatened to kill Buthelezi and make it look like a suicide.
Buthelezi felt that this was not an idle threat, that Martineau
had possibly done such a thing before, and that Martineau had the
present ability to do i t . Buthelezi reports that Martineau was
so excited and aggressive that he was actually foaming at the
mouth. None of the corrections officers present made any attempt
to restrain or calm Martineau. Two supervising corrections
officers were present and observed Martineau kick the plaintiff.
Kowack and Sullivan were also present.
As a result of the events on July 2 2 , 1999, Officers Sykes,
McCord, Beaudoin, Kowack and Martineau filed disciplinary reports
against Buthelezi. Buthelezi alleges that at his disciplinary
hearing, Disciplinary Hearing Officer Anthony Sawyer refused to
take a written statement in evidence. After the hearing was
resolved against him, Sawyer refused to accept Buthelezi’s
written appeal.
Buthelezi attempted to file a criminal complaint with the
Manchester Police Department. On July 3 0 , 1999, he was
6 interviewed by Manchester Police Officer Connerra. Connerra was
reluctant to process any criminal complaint against the officers
involved and ended the interview apparently concluding that
Buthelezi wanted to file a civil action. Buthelezi’s criminal
complaint was never prosecuted. Buthelezi did attempt to follow
up on the criminal case, but was told he would have to contact
the Manchester Police Department. He requested, but was not
provided with, an address or phone number for the Manchester
Police Department. Buthelezi charges that two corrections
officers, Sullivan and Robbins, participated in preventing him
from pursuing his complaint with the Manchester Police
Department.
On November 1 2 , 1999, Buthelezi filed an internal grievance
at the HOC. The investigating corrections officer, Sgt. Scott
Velasquez-Cunningham, Buthelezi charges, did not adequately
investigate his complaint, as he failed to either record a fair
account of the incident or afford Buthelezi the opportunity to do
so.
On November 1 9 , 1999, while Buthelezi was housed in HU 2-B,
Corrections Officer Paul Matte announced that all of the inmates
on that unit would lose their out-of-cell recreation time on the
7 following day because of noise on the unit. Buthelezi, feeling
the response was excessive to the infraction, requested that the
unit be given a second chance. Matte, construing this request as
insolent and disrespectful, became irate and began swearing. He
retrieved keys from another officer and went into Buthelezi’s
cell. He began to push Buthelezi around and yell in his face.
He then knocked all of plaintiff’s possessions off a desk in the
cell, including books and legal paperwork, some of which went
into the toilet or out the cell door. Matte then discarded
anything that went out the cell door.
The last incident giving rise to plaintiff’s complaint
occurred when Beaudoin, along with Corrections Officer Trainee
Provencal, went into plaintiff’s cell to conduct a strip search.
After the strip search, Beaudoin instructed Buthelezi to take his
clothing outside of the cell and get dressed there. Buthelezi
thought this was an absurd request and began to dress in his
cell, in part because there were female training officers in the
HU. Beaudoin proceeded to verbally abuse Buthelezi. Two
disciplinary reports were filed against Buthelezi for this
incident. Buthelezi alleges they were retaliation for his prior
complaints against the officers, including Beaudoin.
8 Discussion
Buthelezi alleges that he was subjected to physical abuse
and excessive force, verbal abuse including threats, insults and
ethnic slurs, the denial of various privileges and subjection to
inappropriate punishment, and a failure of the police to
prosecute or the HOC to fairly address his grievances, all in
violation of his rights under the Eighth and Fourteenth
Amendments.5 He also alleges that he was subjected to a
conspiracy between the defendants to violate his constitutional
rights and that he was subjected to discrimination based on his
national origin in violation of his right to equal protection.
Claims Regarding Physical Abuse
5 As an INS detainee, Buthelezi’s challenges to the conditions of his detention arise under the Fourteenth Amendment. See, e.g., Lyons v . Powell, 838 F.2d 2 8 , 29 (1st Cir. 1988) (per curiam) (rejecting an Eighth Amendment challenge to pretrial detention). Detainees have a constitutional right under the due process clause of the Fourteenth Amendment to be free of punishment. See O’Connor v . Huard, 117 F.3d 1 2 , 15 (1st Cir. 1997), cert. denied, 522 U.S. 1047 (1998). However, challenged conditions or restrictions which can be rationally related to some legitimate administrative goal or security concern generally will not be deemed unconstitutional “punishment.” Id. Because the Due Process Clause prohibits the infliction of punishment on a person prior to a judgment of conviction, the issue is ultimately whether the conditions of confinement were reasonably related to a legitimate state interest or were intended instead as punishment. See Collazo-Leon v . United States Bureau of Prisons, 51 F.3d 315, 317 (1st Cir. 1995).
9 As a detainee, Buthelezi is protected by the Due Process
Clause of the Fourteenth Amendment from “the use of excessive
force that amounts to punishment.” Graham v . Connor, 490 U.S.
386, 395 n.10 (1989); Garcia v . City of Boston, 115 F.Supp.2d 7 4 ,
81 (D.Mass. 2000). In determining whether a plaintiff has stated
a claim for unconstitutionally excessive force, the court should
look to the following four factors: (1) “the need for application
of force,” (2) “the relationship between the need and the amount
of force that was used,” (3) “the extent of injury inflicted,”
and (4) “whether the force was applied in good faith to maintain
or restore discipline or maliciously and sadistically for the
very purpose of inflicting harm.” Garcia, 115 F.Supp.2d at 8 1 .
Applying these factors in the case, and assuming, as I must,
that the facts stated in the complaint are true, I find that
plaintiff has clearly alleged facts sufficient to support a
finding that the use of force by several corrections officers was
unconstitutionally excessive. First, Buthelezi has alleged that
in the July 2 2 , 1999 incident, corrections officers Polotano,
Martineau, McCord, Sullivan, Kowack, and Beaudoin used
significant physical force against him, including kicking,
overtightening of restraints, kneeling on the plaintiff and other
10 physically abusive acts 6 . According to the complaint, none of
this force was required as Buthelezi, at no time, engaged in any
sort of threatening or dangerous behavior, resistance or
disruption. Second, as no force was necessary, the use of such
force was clearly out of proportion to any need. Third, although
Buthelezi does not allege that he suffered significant injury,
the fact that he was injured at all by the actions of the
officers indicates further that the use of force was excessive.
Fourth, Buthelezi has demonstrated that the officers in question
acted in bad faith as he was physically abused while being
completely restrained, non-resistant and lying on the floor.
Further, Buthelezi alleges that the officers told him that their
purpose was to cause him pain. I find, therefore, that Buthelezi
has sufficiently alleged a Fourteenth Amendment claim for
excessive force against Polotano, Sullivan, McCord, Martineau,
6 To the extent that any of the officers observed, rather than committed an act of physical force, I find that those officers failed to restrain the officers who did use force and that those officers violated their duty to intervene and protect Buthelezi, a detainee, from such an assault. See Davis v . Rennie, N o . 99-1453, slip o p . at 17 (1st Cir. Sept. 5 , 2001) (adopting as its holding dicta in Gaudreault v . Salem, 923 F.2d 203, 207 n.3 (1st Cir. 1990) (per curiam), cert. denied, 500 U.S. 956 (1991) which states that “[a]n officer who is present at the scene and who fails to take reasonable steps to protect the victim of another officer’s use of excessive force can be held liable under section 1983 for his nonfeasance.”).
11 Beaudoin, and Kowack and order that claim to be served on these
defendants.
Buthelezi further alleges physical abuse by Corrections
Officer Matte on November 1 9 , 1999. He alleges that Matte, in a
fit of anger which was disproportionate to the verbal
disagreement which preceded i t , pushed Buthelezi around in his
cell. Applying the same analysis to this incident, I find that
for the purposes of this review, Buthelezi has stated a claim
against Matte because, in a situation where force was not
necessary, it was utilized. Therefore, although there was no
injury sustained and no indication of bad faith, maliciousness or
sadism, the fact that force was applied when none was necessary
allows this claim to proceed at this time against Matte.
Claims Regarding Verbal Abuse, Ethnic Slurs, and Equal Protection
Buthelezi alleges that he was verbally abused, insulted,
threatened and subjected to ethnic slurs by the corrections
officers involved in the July 2 2 , 1999 incident. Although verbal
abuse generally does not invoke constitutional protection, see
Shabazz v . Cole, 69 F.Supp.2d 1 7 7 , 198-201 (D.Mass. 1999) (citing
authority to explain that racial slurs and verbal threats do not
violate a prisoner’s constitutional rights), generously
12 construing Buthelezi’s allegations it appears that he may be
attempting to state a claim under the Equal Protection Clause.
Prisoners are protected against invidious discrimination by
the Equal Protection Clause of the Fourteenth Amendment. Wolff
v . McDonnell, 418 U.S. 539, 556 (1974). The Equal Protection
Clause allows courts to scrutinize a classification based on
national origin to determine whether or not the classification
violates constitutional rights. See United States v . Virginia,
518 U.S. 515, 567 (1996). To state such a claim, “the element of
illegal motive must be pleaded by alleging specific non-
conclusory facts from which such a motive may reasonably be
inferred, not merely by generalized asseveration alone.” Judge
v . City of Lowell, 160 F.3d 6 7 , 72 (1st Cir. 1998); see also
Correa-Martinez v . Arillaga-Belendez, 903 F.2d 4 9 , 51 (1st Cir.
1990) (requiring that alleged facts in complaint “specifically
identify the particular instance(s) of discriminatory treatment
and, as a logical exercise, adequately support the thesis that
the discrimination was unlawful.”).
In his description of the July 2 2 , 1999 incident, Buthelezi
alleges that the various officers involved were “throwing slurs
at” him, including “Fuckin’ Immigrant,” “Go back to your
13 country,” and “You are a piece of shit, that is why your country
does not want you” among others. Buthelezi ascribes particular
statements to Martineau and Kowack as well as a general
allegation that the comments were made by the officers present.7
Further, Buthelezi describes witnessing physical and verbal
assaults similar to the one he was subjected to against at least
five other INS detainees. These facts sufficiently allege that
the officers in question “intentionally subjected him to
discrimination.” Judge, 160 F.3d at 7 5 . I find, therefore, that
Buthelezi has failed to state any constitutional claim for
general verbal abuse, but has stated an Equal Protection claim
against Martineau, Kowack, McCord, Polotano, and Beaudoin for
discriminatory verbal abuse based on ethnic origin.
Strip Search Claim
Although Buthelezi’s complaint does not identify precisely
what claim he seeks to pursue surrounding the strip search
incident, liberally construing the complaint, I find that he is
challenging the legality of the strip search, and, in particular,
being made to remain nude in a public place. A challenge to the
7 Buthelezi, however, specifically states that Sullivan did not articulate any ethnic slurs, but merely grunted.
14 legality of a search arises under the Fourth Amendment’s
protection against unreasonable searches and seizures.
Pretrial detainees retain constitutional rights during their
incarceration, including their Fourth Amendment right against
unreasonable searches and seizures. Bell v . Wolfish, 441 U.S.
520, 545 (1979). “However, those rights may be subject to
restrictions based on the fact of confinement, the legitimate
goals and policies of the penal institution, and the need of the
institution to maintain security and internal order.” Roberts v .
Rhode Island, 239 F.3d 1 0 7 , 110 (1st Cir. 2001); Bell, 442 U.S.
at 545-46. “‘When an institutional restriction infringes a
specific constitutional guarantee,’--here, the Fourth Amendment
right against unreasonable searches,--‘the practice must be
evaluated in the light of the central objective of prison
administration, safeguarding institutional security.’” Roberts,
239 F.3d at 110; quoting Bell, 442 U.S. at 546. In Bell, the
Court instructed courts examining prison strip searches to
“consider the scope of the particular intrusion, the manner in
which it is conducted, the justification for initiating i t , and
the place in which it is conducted.” Bell, 441 U.S. at 559. This
Circuit has held that in the context of prisoners held in local
15 jails for minor offenses, “the Bell balance requires officers to
have a reasonable suspicion that a particular detainee harbors
contraband prior to conducting a strip or visual body cavity
search.” Roberts, 239 F.3d at 1 1 0 , citing Swain v . Spinney, 117
F.3d 1 , 5 (1st Cir. 1997).
Applying the Bell balancing factors in the present case, I
find that the strip search conducted by officers Beaudoin and
Provencal, because it required Buthelezi to entirely undress, was
a significant intrusion worthy of scrutiny. Moreover, the manner
in which it was conducted was, according to the complaint,
brusque. Furthermore, there does not appear in the complaint any
evidence of a justification for initiating the search beyond a
general institutional interest in security that can be presumed.
Rather, the complaint suggests that the true motive for this
particular search was to train Officer Provencal and not the
result of any particularized suspicion that Buthelezi was
harboring some contraband on his person or in his clothing.
Finally, and perhaps most troubling in this case, is that the
search was to be conducted in a relatively “public” place as
Buthelezi was required to leave his cell naked and put on his
clothing there. The fact that Buthelezi refused to do s o ,
16 although it might diminish damage to Buthelezi in this case, does
not erase the unreasonableness of the request, or the taint that
the request places on the reasonableness of the search.
I find that Buthelezi’s complaint sufficiently demonstrates
that the strip search conducted in this case was unreasonable, as
it was not apparently based on a particularized suspicion that
Buthelezi was in possession of contraband. Also, there is no
indication that Buthelezi has committed a serious offense, or any
offense for that matter, as he is an INS detainee who does not
appear to be currently charged with a crime. There appears to be
no reason to assume, therefore, that Buthelezi was at any risk
for acquiring contraband from other inmates. The search does not
appear to be tied to any contact with anyone outside the jail.
There do not appear to be aggravating factors which might tip the
scale in favor of a governmental interest in this search. See
Roberts, 239 F.3d at 111-12 (discussing factors which mitigate
against the reasonableness of strip searches, including apparent
dangerousness of inmate and the minor nature of the committing
offense). I find, therefore, that Buthelezi has successfully
stated a claim upon which relief might be granted against
corrections officers Beaudoin and Provencal for a violation of
17 his Fourth Amendment right to be free from unreasonable searches
by virtue of the unreasonable strip search described in his
complaint.
Claim Regarding Treatment of Plaintiff’s Property
Here again, the precise nature of the claim attempted is not
made clear in the complaint. However, affording liberal
construction it can be inferred that Buthelezi is attempting to
make claims that he was denied access to the courts because he
was both deprived of his legal paperwork and deprived of his
property by a state actor without due process when Matte
intentionally destroyed or discarded his belongings.
The taking of legal property by a corrections officer,
resulting in denial of access to the courts is actionable as a
violation of the plaintiff’s constitutional right of access to
the courts. Simmons v . Dickhaut, 804 F.2d 1 8 2 , 185 (1st Cir.
1986). In this case, to survive dismissal at a later stage of
the proceedings, Buthelezi will have to fill in the particulars
of this claim to identify the legal proceeding which was
interfered with by Matte’s taking of his property. However, for
purposes of preliminary review, I find that Buthelezi has stated
18 a claim upon which relief might be granted and order that this
claim be served on Officer Matte.
Claims Regarding Inappropriate Disciplinary Procedures
Buthelezi also complains he was subjected to disciplinary
procedures without adequate due process because he was the
subject of undeserved retaliatory disciplinary reports and
because he was denied the right to submit evidence and to appeal
findings of disciplinary infractions. In effect, all of these
complaints amount to an allegation that Buthelezi was subjected
to disciplinary procedures that were intended to punish him for
his pursuit of redress for the abuse committed against him by
corrections officers.
Although, as stated above, pretrial detainees are not
generally subject to being punished in jail, see Bell, 441 U.S.
at 536, the jail may “impose administrative restrictions and
conditions upon a pretrial detainee that effectuate his
detention” and “that maintain security and order in the detention
facility.” O’Connor v . Huard, 117 F.3d 1 2 , 16 (1st Cir. 1997).
For the court to decide is “whether the disability is imposed for
the purpose of punishment or whether it is but an incident of
some other legitimate governmental purpose.” Bell, 441 U.S. at
19 538. A jail may thus discipline a detainee who violates the
facilities regulations. Discipline for the purpose of punishing
an inmate in retaliation for non-rulebreaking conduct, however,
is impermissible and violates the due process rights of the
inmate. As Buthelezi’s claim can be clearly construed to allege
such a deprivation, I find that he has stated this claim against
Corrections Officer Anthony Sawyer, the disciplinary hearings
officer who refused to allow certain evidence to be filed on
Buthelezi’s behalf or to permit Buthelezi to file an appeal of
the findings of his disciplinary hearing.
Claim Regarding Failure to Prosecute Internal Grievance
Buthelezi claims that he attempted to file a grievance but
was thwarted in this attempt by Sgt. Velasquez-Cunningham, who
refused to record certain information, objectively investigate
Buthelezi’s complaint, or properly prosecute the grievance. This
complaint is a claim that his right to petition the government
for redress of grievances was infringed by the acts and omissions
of Velasquez-Cunningham.
The right to petition the government for a redress of
grievances has been characterized as “among the most precious of
the liberties safeguarded by the Bill of Rights.” United Mine
20 Workers v . Illinois State Bar Ass’n, 389 U.S. 2 1 7 , 222 (1967).
The right of petition, in the prison context, means that inmates
must be “permit[ted] free and uninhibited access . . . to both
administrative and judicial forums for the purpose of seeking
redress of grievances against state officers.” Sostre v .
McGinnis, 442 F.2d 1 7 8 , 200 (2d Cir. 1971) (in banc), cert.
denied, 404 U.S. 1049 (1972). “[I]ntentional obstruction of a
prisoner’s right to seek redress of grievances is precisely the
sort of oppression that . . . section 1983 [is] intended to
remedy.” Franco v . Kelly, 854 F.2d 5 8 4 , 589-90 (2d Cir. 1988)
(internal quotations omitted).
Because Buthelezi has set forth facts that, for purposes of
this review, are sufficient to allege that he has been obstructed
in his attempt to petition the government for grievances, I find
that he has stated a claim against Velasquez-Cunningham and order
the claim to be served.
Claim Regarding Failure to Prosecute Criminally
As for his claim that Manchester Police Officer Cannerra
declined to prosecute Buthelezi’s criminal complaint against the
abusive corrections officers, it is unclear under what theory
suit was intended. If Buthelezi is challenging the failure to
21 prosecute, the complaint might have attempted to name the
prosecutor rather than the police officer.8 To the extent that
Buthelezi alleges a conspiracy between the Manchester Police
Officer and the corrections officers, I find that he has failed
to allege sufficient facts to support a claim of conspiracy. In
order to state such a claim “the plaintiff must plead conspiracy
in some detail and provide some factual basis supporting the
existence of a conspiracy.” Slagel v . Shell Oil Refinery, 811 F.
Supp. 3 7 8 , 381 (C.D. Ill. 1993). “Mere conjecture that there has
been a conspiracy is not enough to state a claim.” Tarkowski v .
Robert Bartlett Realty Co., 644 F.2d 1204, 1206-07 (7th Cir.
1980). The only facts Buthelezi offers to support a theory of
conspiracy between Connerra and the corrections officers include
a conversation where Connerra opined that Buthelezi wanted to sue
the jail and questioned the advisability of criminal charges
against the DOC, and Connerra’s subsequent failure to prosecute.
8 Such a claim, of course, would have failed, as a prosecutor has absolute immunity from suit for a decision as to whether or not to initiate a criminal prosecution. See Imbler v . Pachtman, 424 U.S. 409, 431 (1976); Harrington v . Almy, 977 F.2d 3 7 , 40 (1992) (“The decision whether or not to charge is at the core of the prosecutorial functions the courts have sought to insulate from second guessing through civil litigation.”).
22 These facts do not amount to much more than conjecture and will
not sustain this claim.
Theories of Liability
1. Individual Capacity Suits
42 U.S.C. § 1983 authorizes suits against state actors
operating to deprive citizens of their constitutional rights.9
Because I have found that Buthelezi has alleged constitutional
violations against various corrections employees sufficient to
state a cause of action under § 1983, those corrections officers
will be defendants in this suit in their individual capacities.
2. Municipal Liability
Municipalities and local government entities are “persons”
within the meaning of § 1983. See Monell v . Dept. of Social
Services, 453 U.S. 6 5 8 , 690 (1978). Under New Hampshire law,
counties, such as Hillsborough County, are considered local
9 The statute provides in relevant part:
Every person who, under color of any [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and the laws, shall be liable to that party injured in any action at law, . . .
42 U.S.C. § 1983 (Supp. 1997).
23 governmental units. See N.H. Rev. Stat. Ann. (“RSA”) 507-B:1
(1997) (defining “governmental unit” as “any political
subdivision within the state including any county, city,
town . . . , but [not including] the state or any department or
agency thereof.”); see also RSA 23:1 (1988) (providing that “each
county is a body corporate for the purpose of being sued. . . ” ) .
In order to maintain a claim against the DOC as a municipality
under 42 U.S.C. § 1983, however, the claim must be grounded upon
an unconstitutional municipal custom or practice and two
requirements must be met. “First, the custom or practice must be
attributable to the municipality, i.e., it must be ‘so well
settled and widespread that the policymaking officials of the
municipality can be said to have either actual or constructive
knowledge of it yet did nothing to end the practice.’” Miller v .
Kennebunc County, 219 F.3d 8 , 12 (1st Cir. 2000) (quoting Bordano
v . Mcleod, 871 F.2d 1151, 1156 (1st Cir 1989)). Second, the
custom must have been the cause of and “the moving force” behind
the deprivation of constitutional rights. Id. at 1157. Because
he has failed to show that Hillsborough County engaged in a
custom or policy of allowing or enabling unconstitutional
24 treatment of prisoners, Buthelezi fails to state a § 1983 claim
against the DOC.
3. Supervisory Liability
Buthelezi has named the Prison as a defendant in his suit.
I will assume that he intended to name the Prison’s
administrators as defendants in their supervisory role as he
lists no particular offense against the administration.
“Supervisory liability under § 1983 cannot be predicated on a
respondeat theory, but only on the basis of the supervisor’s own
acts or omissions.” Matos v . Toledo Davila, 135 F.3d 1 8 2 , 192
(1st Cir. 1998). A supervisor must be “either a primary actor
involved i n , or a prime mover behind, the underlying violation.”
Camilo-Robles v . Zapata, 175 F.3d 4 1 , 43-44 (1999). There must
be “an affirmative link, whether through direct participation or
through conduct that amounts to condonation or tacit
authorization.” Id. at 4 4 . Here, Buthelezi alleges that there
were supervising officers, including Sullivan and Martineau,
involved in or observing some of the abuses against him. He has
named those officers and sued them in their individual capacities
and I have discussed them in the body of this Order. To the
extent that these officers were alleged to be acting in their
25 supervisory capacity, he has stated a claim sufficient to render
them so liable, as it is clear from the complaint that the
supervisors’ presence and support at the scene of the abuse
constituted both primary participation in as well as condonation
of the abuses.
Conclusion
Without commenting further on the merits of the complaint, I
find that Buthelezi has stated claims upon which relief may be
granted. Accordingly, I order that the complaint be served on
Corrections Officer Timothy McCord, Sgt. Brian Martineau,
Corrections Officer Polotano, Sgt. Sullivan, Corrections Officer
John Kowack, Corrections Officer Steve Beaudoin, Corrections
Officer Paul Matte, Corrections Officer Trainee Provencal,
Disciplinary Hearing Officer Anthony Sawyer and Corrections
Officer Scott Velasquez-Cunningham.
My review of the file indicates that Buthelezi has neglected
to prepare summons forms for the defendants in this action.
Buthelezi is ordered to prepare summons forms for each of the
defendants he wishes to sue and return them to the Clerk’s office
within thirty days of the date of this Order. Failure to do so
26 will result in a recommendation of dismissal of this action
against any defendants for whom summons forms are not completed.
The Clerk’s office is directed to issue the necessary
summons forms and forward to the United States Marshal for the
District of New Hampshire (the “U.S. Marshal’s office”) the
summonses and copies of the complaint (document n o . 1 ) , the
Report and Recommendation issued this date, and this Order. Upon
receipt of the necessary documentation, the U.S. Marshal’s office
shall effect service upon McCord, Martineau, Polotano, Sullivan,
Kowack, Beaudoin, Matte, Provencal, Sawyer, and Velasquez-
Cunningham. See Fed. R. Civ. P. 4(c)(2).
McCord, Martineau, Polotano, Sullivan, Kowack, Beaudoin,
Matte, Provencal, Sawyer, and Velasquez-Cunningham are instructed
to answer or otherwise plead within twenty days of service. See
Fed. R. Civ. P. 12(a)(1)(A).
Buthelezi is instructed that all future pleadings, written
motions, notices, or similar papers shall be served directly on
27 each of the defendants by delivering or mailing the materials to
them or their attorney(s), pursuant to Fed. R. Civ. P. 5 ( b ) .
SO ORDERED.
James R. Muirhead United States Magistrate Judge
Date: September 2 7 , 2001
cc: Themba H . A . Buthelezi, pro se