Rose v . Warden CV-02-347-JD 01/24/03 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Joseph V. Rose
v. Civil N o . 02-347-JD Opinion N o . 2003 DNH 017
Jane Coplan, Warden, New Hampshire State Prison, et a l .
REPORT AND RECOMMENDATION
Before the Court is the complaint1 of plaintiff Joseph V .
Rose, who has filed suit against the New Hampshire State Prison
(“NHSP”) and a number of its employees pursuant to 42 U.S.C. §
1983, alleging violations of his constitutional rights resulting
from physical abuse, denial of his right to petition the
government for a redress of grievances, inadequate medical and
mental health care, and harassment during his incarceration at
the NHSP.2 As Rose is proceeding both pro se and in forma
1 Plaintiff has filed a complaint (document n o . 1 ) and two addenda to his complaint (document nos. 6 & 8 ) . Although the addenda fail to comport with the requirements of United States District Court for the District of New Hampshire Local Rule (“LR”) 15.1, I will accept the two addenda and consider them as part of the complaint. Plaintiff is advised that any future attempts to addend or amend his complaint must comply with LR 15.1. 2 The defendants named by Rose are: the NHSP, NHSP Warden Jane Coplan, Correctional Officers Jim Dunne, Mark Jordan, Cpl. pauperis, the matter is currently before me for preliminary
review. See LR 4.3(d)(2). As explained fully herein, in an
Order issued simultaneously with this Report and Recommendation,
I direct Rose’s excessive force claim to be served on defendants
Dunne, Bettis, Crowley, Jordan, Leitner, and Morrison and the
violation of the right to petition the government for a redress
of grievances claim to be served on Moyer. I recommend dismissal
of the remaining claims and defendants from this action as the
complaint does not allege any claim upon which relief might be
granted as to those claims and defendants.
In addition to his complaint, Rose has filed three motions
for the appointment of counsel (document nos. 5 , 7 & 1 4 ) . For
reasons stated herein, the motion is denied.
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 the pro se party). At this preliminary
stage of review, all factual assertions made by the plaintiff and
Britt Morrison, Cpl. McCleod, Jeff Bettis, April Crowley, Eric Leitner, Ash, Barnoski, and Unit Manager Matt Moyer.
2 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
Eveland v . Dir. of C.I.A., 843 F.2d 4 6 , 49 (1st Cir. 1988).
Background
1. Excessive Force
A. May 1 9 , 2002
Rose alleges that on May 1 9 , 2002, between 2:00 p.m. and
2:30 p.m., Correctional Officer (“C.O.”) Dunne and C.O. Bettis
entered his cell and forcefully handcuffed him. Rose did not
resist. Dunne forced Rose to the floor. Rose was then brought
to the dayroom where he was uncuffed and instructed to strip.
Dunne then grabbed Rose by the neck. Rose states that although
he did take action to stop Dunne at that point, he did so in self
defense. Dunne slammed Rose’s face into the wall three times
before pushing him to the floor. Dunne then kicked Rose in the
ribs and chin, causing some pain and injuries. Rose states that
he only resisted after he had been slammed against the wall and
3 kicked. Rose further alleges that prior to and during this
incident, he was repeatedly threatened by Dunne.
B. June 3 , 2002
Rose alleges that on June 3 , 2002, between 8:00 p.m. and
9:00 p.m., he was forcibly extracted from his cell and placed on
a stretcher, to which he was handcuffed. Rose states that he was
“a little resistive” because he was wrongfully extracted from his
cell. As a result, he was sprayed with pepper spray which
blinded him for twenty minutes. Rose alleges that during this
incident C.O. Crowley hit him twice in the eye and also hit him
on the lower right side of his back. Crowley also threatened to
stab Rose in the neck and to make his life miserable. As a
result, Rose suffered from bruises and a puffy eye.
C. June 6, 2002
Rose alleges that on June 6, 2002, C.O.’s Jordan, Leitner
and Cpl. Morrison handcuffed him in the dayroom and brought him
into a punitive segregation cell. Upon entering the cell, Rose
was facing the wall. Behind him, Rose could hear Leitner
urinating into the cell toilet. Jordan then told Rose, “You know
what’s going to happen now.” Rose saw Morrison grab a sock from
the bed in the cell. Rose then found himself on the ground.
Morrison grabbed the elastic band of Rose’s underwear with one
4 hand and stuffed the sock into Rose’s mouth with the other hand.
Rose, who was still in handcuffs, struggled because he believed
something bad was about to happen. Jordan told Rose to “let it
happen” at which point, Rose screamed, “Don’t rape me!” The
officers then dunked Rose’s head into the urine-filled toilet and
continued to abuse Rose. The officers then left Rose in the cell
with a urine-soaked face, gagged with the sock and handcuffed.
Rose was not uncuffed until the officers were on the other side
of the locked cell door. Rose reported this incident, which he
characterizes as an attempted rape, to Unit Manager Moyer, who
took no action on Rose’s report.
2. Inadequate Medical and Mental Health Care
Rose alleges that although he reported possibly broken ribs
as a result of the May 19 incident involving Dunne, he was not
provided with an x-ray. He further alleges that the pepper spray
utilized against him during the June 3 , 2002 incident was not
washed out of his eyes. Finally, Rose states that the abuse he
received at the hands of the C.O.’s caused him to have suicidal
thoughts, caused him to attempt suicide, and caused him to have
post-traumatic stress disorder, which were not adequately
addressed by NHSP personnel.
5 Rose has submitted several pages of his medical records from
the NHSP to the Court.3 The records indicate that Rose was
treated for a small cut to his chin and a bruised arm and rib
pain after the May 19 incident. The nurse examining Rose
determined that he did not appear to have a broken rib. Rose
reported rib pain again a week later and again was evaluated but
appeared not to have any abnormality in the area.
Rose’s medical records indicate that Rose reported suicidal
thoughts, accompanied by self-harming behavior with a food tray,
an attempt to cut his wrists, and an attempt to strangle himself
with torn underwear. The records also indicate that on more than
one occasion, Rose indicated to the mental health treatment staff
that his suicidal thoughts were connected to his fear of abusive
C.O.’s on his housing unit. He alleges that nothing was done to
rectify the situation on his housing unit. Rose was placed on a
suicide watch and eventually reported that he no longer had any
plan to commit suicide and would talk with mental health workers
about his mental state. He was then recommended for return to
his housing unit.
3 Rose’s medical records will be considered part of the complaint. See Fed. R. Civ. P. 10(c) (requiring that written instruments attached to a pleading be construed as part of the pleading “for all purposes”).
6 3. Harassment
Rose reports several incidents that he alleges constitute
harassment by the C.O.’s on his housing unit. He states that on
August 1 7 , 2002 at 2:00 a.m. and again on August 1 8 , 2002 at
11:30 p.m., C.O. Barnoski tapped on the outside of Rose’s window
with his flashlight in order to wake him up and to verbally
harass him. Rose also alleges that on August 1 8 , Jordan and
Morrison, in an effort to harass Rose, refused to allow him to
shower, alleging he had assaulted a corrections officer and that
he was going to be charged with assault, and repeatedly opened
and closed the window in his cell door during their rounds.
Further, Rose claims that Jordan made references to the alleged
attempted rape on June 6, 2002 in order to harass and intimidate
him. Rose also alleged that Jordan pushed his food through his
cell door in such a way as to try to make it spill and that his
food was being tampered with. Rose states that this harassment
caused him to suffer from mental anguish and post traumatic
stress disorder.
Discussion
1. Physical Abuse/Excessive Force Claims
To state a claim for the use of excessive force by a prison
official under the Eighth Amendment, an inmate must demonstrate
7 “unnecessary and wanton infliction of pain.” Whitley v . Abers,
475 U.S. 3 1 2 , 319-20 (1986). The main inquiry in determining
whether prison officials used excessive physical force turns on
“whether force was applied in a good faith effort to maintain or
restore discipline, or maliciously and sadistically to cause
harm.” Hudson v . McMillian, 503 U.S. 1 , 6 (1992) (citing
Whitley, 475 U.S. at 320-21). The “objectively harmful enough”
component of an Eighth Amendment excessive force claim is
satisfied when prison officials use force maliciously and
sadistically to cause harm, whether or not significant injury is
evident. Hudson, 503 U.S. at 7-8, 1 0 . “That is not to say that
every malevolent touch by a prison guard gives rise to a federal
cause of action.” Id. at 9. “Not every push or shove, even if it
may later seem unnecessary . . . violates a prisoner’s
constitutional rights.” Id. (internal citations omitted). The
Eighth Amendment excludes from constitutional recognition de
minimis uses of physical force, provided that the force is “not
repugnant to the conscience of mankind.” Id. at 9-10 (citing
Whitley, 475 U.S. at 327) (quoting Estelle, 429 U.S. at 1 0 6 ) .
Thus, to state a cognizable § 1983 claim for excessive force by
prison officials, Rose must allege wrongdoing amounting to more
than a de minimus use of force.
8 Rose alleges that in May and June of 2002, C.O.’s Dunne,
Bettis, Crowley, Jordan, Leitner and Morrison abused him
physically and unnecessarily and wantonly inflicting pain on him
such that he sustained a laceration and believed that his ribs
had been broken. Rose’s allegations indicate that these
incidents were unprovoked. Liberally construing the complaint, I
find that Rose has alleged sufficiently serious assaultive
incidents to allow this claim to proceed. Accordingly, in the
Order issued simultaneously with this Report and Recommendation,
I will direct that the excessive force claims be served on
defendants Dunne, Bettis, Crowley, Jordan, Leitner and Morrison.
2. Right to Petition Government for Redress of Grievances Claim
Rose also seeks to sue Moyer, who, he alleges, did nothing
when Rose reported the June 6 incident to him. The complaint
does not contain any more information about Moyer’s inaction and
how Rose was harmed by i t . To the extent that he intends to
complain, however, that he attempted to file an internal
grievance against Jordan, Leitner, and Morrison, but was thwarted
in his efforts to do so by Moyer’s inaction, he alleges a
violation of his right to petition the government for redress of
grievances.
9 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
Workers v . Ill. State Bar Ass’n, 389 U.S. 2 1 7 , 222 (1967). This
right, 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) (en banc), cert.
denied, 404 U.S. 1049 (1972). Accordingly, because Rose has set
forth facts sufficient to allege that he has been obstructed in
his attempt to petition the government for grievances, I will
order the claim to be served against Moyer.
3. Inadequate Medical and Mental Health Care Claims
Deliberate indifference of prison officials to the serious
medical needs of an inmate constitutes cruel and unusual
punishment under the Eighth Amendment. Torraco v . Maloney, 923
F.2d 231 (1st Cir. 1991) (citing Estelle, 429 U.S. at 1 0 2 ) . In
order to present a viable claim for inadequate medical care,
however, a plaintiff must demonstrate: 1 ) a serious medical need;
and 2 ) the defendants’ purposeful indifference thereto. See
Sires v . Berman, 834 F.2d 9, 12 (1st Cir. 1987). The Eighth
10 Amendment also protects an inmate from deliberate indifference to
his serious mental health and safety needs. See Cortes-Quinones
v . Jimenez-Nettleship, 842 F.2d 556, 5 5 8 , 560 (1st Cir. 1988),
cert. denied, 488 U.S. 823 (1988). To sufficiently allege that
the defendants’ behavior constitutes “deliberate indifference,”
Rose is required to allege that the defendant(s) knew of and
disregarded an excessive risk to his health or safety. See
Farmer v . Brennan, 511 U.S. 825, 837 (1994).
Rose asserts that NHSP medical and mental health providers
provided him with inadequate care when he was denied x-rays, his
eyes were not washed after he was pepper sprayed, and he was
suicidal but was returned to the housing situation which caused
his suicidal thoughts and behavior. The information provided by
Rose, however, indicates that the NHSP medical and mental health
personnel responded promptly to Rose’s need for medical and
mental health care by having him evaluated by medical and mental
health professionals who assessed his situation and took steps to
assure that he was physically and mentally stable.
Even accepting the allegations in the complaint as true, I
find that Rose has not alleged any serious medical condition
which was known to and disregarded by NHSP personnel. I find
that to the extent Rose has alleged a serious mental health need,
11 and that the prison’s mental health treatment providers were
aware of the problem, he has not alleged that they were
deliberately indifferent to the problem. Rather, Rose has
indicated that he was seen and assessed for the problem, that he
was placed on suicide watch and that he was evaluated by both a
mental health counselor and had a psychiatric consult. Although
Rose was ultimately transferred back to the housing unit, an
action he objected t o , and it is not clear whether or not he
received any other mental health treatment, there are not
sufficient facts in the complaint to support the conclusion that
the mental health treatment he did receive was so inadequate as
to be constitutionally deficient, or that necessary care was
denied to him as a result of indifference on the part of NHSP
personnel. Accordingly, I find that Rose has failed to state an
actionable claim for the denial of medical and mental health care
and I recommend those claims be dismissed.
4. Harassment Claims
Rose alleges that the verbal and other threatening
harassment he suffered at the hands of C.O.’s Barnoski, Jordan
and Morrison entitles him to some relief from this Court. While
the safety and security of all prisoners is protected by the
Constitution, see e.g., Youngberg v . Romeo, 457 U.S. 3 0 7 , 315
12 (1982), mere threats, without any physical injury resulting
therefrom do 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 abusive, verbal threats do not violate
an inmate’s constitutional rights). Without an allegation of any
actual, physical harm being sustained, the guards’ verbal abuse
and harassment may be unprofessional, but it is not
unconstitutional.
5. Theories of Defendant Liability
A. Individual Liability
42 U.S.C. § 1983 authorizes suits against state actors
operating to deprive citizens of their constitutional rights.4
Because I have found that Rose has alleged constitutional
violations against NHSP employees Dunne, Bettis, Crowley, Jordan,
Leitner, Morrison and Moyer sufficient to state a cause of action
4 The statute provides in relevant part that:
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.
13 under § 1983, those individuals are proper defendants to this
suit in their individual capacities.
B. Supervisory Liability
Rose has named NHSP Warden Jane Coplan as a defendant to
this suit. Because he does not allege that Coplan was present at
or directly involved in the incidents alleged, I assume that Rose
intends to sue Coplan in her supervisory capacity. Supervisory
liability under § 1983 must “be predicated . . . 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” between the
supervisor and the violation alleged. Id. at 4 4 . Here, Rose’s
complaint does not allege that the violations and behavior he
complains of were committed pursuant to NHSP policy for the
treatment of inmates. Neither has Rose provided facts which
would allow an inference that Coplan was involved in the
violations alleged, either as a primary actor, or by tacit
condonation or authorization of the acts alleged. Therefore, I
14 find that Rose has failed to state a claim against Coplan and I
recommend she be dismissed from this action.
C. Sovereign Immunity
Rose has named the NHSP as a defendant to this suit. I
presume in doing so that Rose has intended to sue the NHSP as a
state agency, the New Hampshire Department of Corrections
(“DOC”), and/or the state of New Hampshire for the violations
alleged. In addition to the fact that he does not cite a single
act or omission attributable to either the DOC or to the State,
it is well-settled that the Eleventh Amendment bars suits against
states and state entities unless the state has expressly waived
immunity. See Puerto Rico Aqueduct & Sewer Auth. v . Metcalf &
Eddy, Inc., 506 U.S. 139, 146 (1993) (Eleventh Amendment bars all
suits in federal court against states or their agencies); Will v .
Mich. Dept. of State Police, 492 U.S. 5 8 , 71 (1989) (holding that
§ 1983 does not override the Eleventh Amendment and that the
state is not a person within the meaning of § 1983). New
Hampshire has not waived immunity for actions brought pursuant to
42 U.S.C. § 1983. Therefore, the State of New Hampshire, the DOC
and the NHSP enjoy Eleventh Amendment immunity and I recommend
they be dismissed from this action.
15 To the extent that Rose seeks to sue any of the individual
NHSP employees in their official capacities, official capacity
suits against officers of an agency are simply “another way of
pleading an action against an entity of which [the] officer is an
agent.” Monell, 436 U.S. at n . 5 5 ; see also Will, 491 U.S. at
71. Because I find that the NHSP, the agency employing the
individual defendants to this suit, should not be held to answer
to this suit, I extend that reasoning and find that Rose has not
stated a cause of action against any of the defendant NHSP
employees in their official capacities.
Motions for Appointed Counsel
Rose has requested the court appoint counsel for him. There
is no right to free legal representation in a civil case. Bemis
v . Kelley, 857 F.2d 1 4 , 15 (1st Cir. 1988). Rather, appointment
of counsel in a civil case is left to the discretion of the
court. See 28 U.S.C. § 1915(d). An indigent litigant must
demonstrate that exceptional circumstances exist to justify
appointment of counsel, such that without counsel the litigant
most likely would be unable to obtain due process of the law.
DesRosiers v . Moran, 949 F.2d 1 5 , 23 (1st Cir. 1991); Cookish v .
Cunningham, 787 F.2d 1 , 2 (1st Cir. 1986) (per curiam). Both the
type and complexity of the case and the ability of the individual
16 bringing the claim must be evaluated by a court in determining
whether exceptional circumstances exist which warrant the
appointment of counsel. Cookish, 787 F.2d at 2 , 3 (counsel may
be appointed depending on “the indigent’s ability to conduct
whatever factual investigation is necessary to support his or her
claim; the complexity of the factual and legal issues involved;
and the capability of the indigent litigant to present the case”
(citations omitted)). Rose has thus far failed to establish the
existence of exceptional circumstances regarding either the case
or his own abilities, which would require the appointment of
counsel in this case in order for Rose to obtain due process of
law. Accordingly, I deny plaintiff’s motion for appointed
counsel without prejudice to his renewing his request should
circumstances so warrant in the future.
Conclusion
In an Order issued simultaneously with this Report and
Recommendation, I direct that the excessive force claim be served
on defendants Dunne, Bettis, Crowley, Jordan, Leitner and
Morrison, and the violation of right to petition the government
for redress of grievances claims be served on defendant Moyer. I
recommend that the inadequate medical and mental health care and
harassment claims and defendants Coplan, Ash, McCleod, Barnoski,
17 and the NHSP be dismissed from this action for the reasons
discussed in this Report and Recommendation. See U.S.C. §
1915A(b)(1).
If this Report and Recommendation is approved, the claims as
identified herein will be considered for all purposes to be the
claims raised in the complaint. If the plaintiff disagrees with
the identification of the claims herein, he must do so by
objection filed within ten (10) days of receipt of this Report
and Recommendation, or he must properly move to amend the
complaint.
Any objections to this Report and Recommendation must be
filed within ten (10) days of receipt of this notice. Failure to
file objections within the specified time waives the right to
appeal the district court’s order. See Unauthorized Practice of
Law Comm. v . Gordon, 979 F.2d 1 1 , 13-14 (1st Cir. 1992); United
States v . Valencia-Copete, 792 F.2d 4 , 6 (1st Cir. 1986).
James R. Muirhead United States Magistrate Judge Date: January 2 4 , 2003
cc: Joseph V . Rose, pro se