James Covington v. Veronica Paris
This text of 2021 DNH 073 (James Covington v. Veronica Paris) is published on Counsel Stack Legal Research, covering District Court, D. New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
James Covington
v. Civil No. 19-cv-384-JD Opinion No. 2021 DNH 073 Veronica Paris
O R D E R
James Covington, who is an inmate at the New Hampshire
State Prison for Men and is proceeding pro se, brought a claim
that he was sexually assaulted by Veronica Paris, a nurse at the
prison, and that the assault violated his Eighth Amendment
rights. Paris is also proceeding pro se. Previously, the court
instructed the parties on the summary judgment procedure. Doc.
no. 56. Covington moved for summary judgment, and the motion
was denied because it lacked appropriate support. Doc. no. 62.
The court again provided the requirements for summary judgment.
Covington now moves for summary judgment a second time.
Once again, he did not follow the requirements of Local Rule
56.1, although a copy of that rule was provided with the court’s
order issued on January 7, 2021, along with a copy of Federal
Rule of Civil Procedure 56. He did not include a factual
statement supported by citations to record evidence in his
motion and instead refers to his allegations. He also ignored
the legal standard necessary to prove his claim that was
provided in the January 7 order. Paris did not file a response. Standard of Review
Summary judgment is appropriate when if “the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). As the party moving for summary judgment in this
case, the plaintiff bears the burden of showing that summary
judgment is appropriate. Joy v. Rushmore Loan Mgmt. Servs.,
2017 WL 6994890, at *1 (D. Me. Sept. 1, 2017). When the
nonmoving party fails to respond to a motion for summary
judgment, the court nevertheless determines whether the moving
party has met the summary judgment standard. Murray v. Walmart
Stores Inc., 2019 WL 6689900, at *5 (D. Me. Dec. 6, 2019).
Discussion
Covington alleges an Eighth Amendment sexual assault claim
against Paris. In support, he provides a copy of a notification
to him from Todd Phelps, Investigator for the New Hampshire
Department of Corrections, that after an investigation of his
allegations it had been determined that the sexual relationship
with a prison staff occurred. He argues that his sexual
relationship with Paris proves that she violated his Eighth
Amendment rights. He is mistaken.
2 A. Proof of Claim
“After incarceration, only the unnecessary and wanton
infliction of pain constitutes cruel and unusual punishment
forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S.
312, 319 (1986). To prove an Eighth Amendment violation, an
inmate must satisfy a two-step standard. Hudson v. McMillan,
503 U.S. 1, 4 (1992). The subjective component requires proof
that the prison staff person acted with a sufficiently culpable
state of mind, and the objective component requires proof that
the challenged conduct was sufficiently objectively harmful to
cause a constitutional violation. Id. at 8.
As was previously explained, sexual activity between an
inmate and a prison staff member may cause an Eighth Amendment
violation but only in certain circumstances. See January 7
Order, doc. no. 56, at *4; Freitas v. Ault, 109 F.3d 1335, 1338
(8th Cir. 1997); Ojo v. Hillsborough County Dept. of Corrs.,
2014 DNH 102, 2014 WL 1803309, at *5 (D.N.H. May 7, 2014).
Sexual assault of an inmate by a prison guard violates the
Eighth Amendment. See Brown v. Flowers, 974 F.3d 1178, 1185-86
(10th Cir. 2020); Bearchild v. Cobban, 947 F.3d 1130, 1144 (9th
Cir. 2020). To rise to the level of assault, however, the
sexual activity must be forced, not consensual. Rafferty v.
Trumbull County, 915 F.3d 1087, 1096 (6th Cir. 2019); Graham v.
Sheriff of Logan County, 741 F.3d 1118, 1123-24 (10th Cir.
3 2013). Some courts presume that an inmate cannot consent to
sexual activity with a guard, based on the authority a guard has
over every aspect of an inmate’s life. See Lucente v. County of
Suffolk, 980 F.3d 284, 305 (2d Cir. 2020); Rafferty, 915 F.3d
1087 at 1096; Wood v. Beauclair, 692 F.3d 1041, 1047 (9th Cir.
2012); Cash v. County of Erie, 654 F.3d 324, 337 (2d Cir. 2011).
In non-consensual circumstances, sexual assault occurs when “a
prison staff member, acting under color of law and without
legitimate penological justification, touche[s] the prisoner in
a sexual manner or otherwise engage[s] in sexual conduct for the
staff member’s own sexual gratification, or for the purpose of
humiliating, degrading, or demeaning the prisoner.” Bearchild,
947 F.3d at 1145.
Covington argues that his sexual relationship with Paris
violated his Eighth Amendment rights simply because he is an
inmate and she was a prison staff member. Covington has not
shown, however, that Paris sexually assaulted him. Importantly,
Covington provides no evidence that Paris had any authority over
him or that their more than five-year relationship, as he
alleges it, was coerced.
Paris was a nurse at the prison. Covington had contact
with her when he cleaned at night and she covered the Medical
Services Center, in the same area. Paris was not a guard.
Covington was not her patient. Apparently, during the more than
4 five years that the relationship continued, Covington never
reported assault or abuse or otherwise made any effort to stop
the relationship or avoid Paris until July of 2018. The record
includes no allegations, much less proof, that Paris coerced
Covington into a sexual relationship. Based on the meager
record available, it appears that the relationship between Paris
and Covington was entirely consensual.
Therefore, Covington has not provided evidence that he was
sexually assaulted to support his Eighth Amendment claim. For
that reason, his motion for summary judgment is denied.
B. Status of Case
Covington has had two opportunities to present evidence and
argument for summary judgment in his favor but has not provided
sufficient evidence to prove his claim. Discovery has been
fully developed in this case. In appropriate circumstances and
after notice and an opportunity to respond, the court may enter
summary judgment, sua sponte, for a nonmovant. Fed. R. Civ. P.
56(f)(1); Chung v. StudentCity.com, Inc., 854 F.3d 97, 103 (1st
Cir. 2017); Block Is. Fishing, Inc. v.
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2021 DNH 073, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-covington-v-veronica-paris-nhd-2021.