Blackcloud v. Cunningham CV-96-105-JD 04/22/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert Blackcloud

v. Civil No. 96-015-JD

Michael Cunningham, Warden, et al.

O R D E R

The pro se plaintiff, Robert Blackcloud, brought this action

under

against Leonard Kinney, a corporal in the

New Hampshire State Prison.1 Before the court is the defendant's

motion for summary judgment (document no. 35).

Background2

On December 23, 1995, the plaintiff, an inmate at the New

Hampshire State Prison, had a visitor. Following the visit, in

accordance with prison policy, the plaintiff was subjected to a

routine strip search for contraband prior to his return to the

general prison population. The plaintiff got in the end of the

line of prisoners waiting to be searched.

'The plaintiff voluntarily dropped his claims against Warden Michael Cunningham.

2The court considers all genuinely disputed issues of fact in the light most favorable to the plaintiff for the purposes of resolving the instant motion. The defendant called the plaintiff to be searched ahead of

other prisoners in the line. The plaintiff went into the room

where the searches were being conducted. In addition to the

defendant, three other guards were present searching other

inmates.

The defendant began supervising the plaintiff's search, but

was not pleased with the pace set by the plaintiff. He informed

the plaintiff that the search would proceed at the pace set and

in the manner desired by the defendant, and not the plaintiff.

The procedure for displaying hair in such a searh is for the

prisoner to run his fingers through it, fanning the hair out and

separating the strands of hair. The plaintiff's hair was long,

and the defendant was dissatisfied with the way the plaintiff was

displaying the upper portion of it.

The defendant first verbally instructed the plaintiff how

properly to display his hair. When this did not achieve the

desired result, the defendant took off his hat and demonstrated

on his own hair what the plaintiff should do. When this also

failed to achieve the desired result, the defendant made contact

with the plaintiff.

The parties dispute the extent of the contact. The

defendant claims that he only ran his fingers through the

plaintiff's hair three or four times and that he may, though he doubts it, have touched the plaintiff's scalp incidental to this

contact. The plaintiff, on the other had, asserts that the

defendant slapped him on the head three times. Both parties have

provided the statements of witnesses that corroborate their

stories. It is undisputed both that at the time of the contact

the plaintiff was bending forward with his head tipped forward

and that the defendant lost patience with what he perceived as

the plaintiff's uncooperative behavior. Both parties raised

their voices during the incident. After the incident the

defendant apologized to the plaintiff for touching him, but the

plaintiff asserts that the apology was undercut by the

defendant's threatening manner.

The plaintiff did not seek medical treatment after the

incident, and according to the defendant, suffered no injury.

The plaintiff appears to assert that he suffered pain, as

evidenced by his statement that "plaintiff feel[s] that each

individual has the right to decide exactly how they suffered and,

the pain they experienced and live with, from being slapped

across the . . . head and face." Plaintiff's Objection to

Defendant's Motion for Summary Judgment, 5 9. The plaintiff has

not provided, however, any competent evidence that he suffered

any injury other than pain.

On January 9, 1996, the plaintiff brought this action

3 alleging that the defendant, in both his official and individual

capacities, violated the plaintiff's Eighth Amendment right to be

free from cruel and unusual punishment by striking him on the

head during the search.3 The defendant has moved for summary

judgment on the plaintiff's claim.

Discussion

The role of summary judgment is "to pierce the boilerplate

of the pleadings and assay the parties' proof in order to

determine whether trial is actually reguired." Snow v.

Harnischfeger Corp.,

(1st Cir. 1993) (guoting

Wynne v. Tufts Univ. Sch. of Medicine,

(1st

Cir. 1992)). The court may only grant a motion for summary

judgment where the "pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

3The plaintiff also claims that the same conduct violated his rights under the Fourteenth Amendment. The defendant, however, has treated the two claims as if they were the same and the plaintiff has not objected to this characterization. Because the Fourteenth Amendment provides "no greater protection" than the Eighth Amendment to prisoners challenging the unnecessary and wanton infliction of pain, the court considers the plaintiff to have elected to proceed under the Eighth Amendment. See Whitley v. Albers,

(1986); see also Risdal v. Martin,

, 1050 n.l (S.D. Iowa 1993).

4 as a matter of law." Fed. R. Civ. P. 56(c). The party seeking

summary judgment bears the initial burden of establishing the

lack of a genuine issue of material fact. See Celotex Corp. v.

Catrett,

(1986); Quintero de Quintero v.

Aponte-Rogue,

(1st Cir. 1992). The court

must view the entire record in the light most favorable to the

plaintiff, "'indulging all reasonable inferences in that party's

favor.'" Mesnick v. General Elec. Co.,

(1st

Cir. 1991) (guoting Griqqs-Ryan v. Smith,

(1st

Cir. 1990)). However, once the defendant has submitted a

properly supported motion for summary judgment, the plaintiff

"may not rest upon mere allegation or denials of his pleading,

but must set forth specific facts showing that there is a genuine

issue for trial." Anderson v. Liberty Lobby, Inc.,

(1986) (citing Fed. R. Civ. P. 56(e)).

The plaintiff has brought his § 1983 claim against the

defendant in both the defendant's official and individual

capacities.4 However, state actors acting in their official

4Section 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . 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 laws, shall be liable to the party

5 capacity are not subject to monetary liability under § 1983

because they are not "persons" within the meaning of the statute.

See Will v. Michigan Dept, of State Police,

(1989). Therefore, the court dismisses the plaintiff's action

against the defendant in his official capacity and considers only

his claim against the defendant in his individual capacity. See

The Eighth Amendment prohibits cruel and unusual punishment.

To demonstrate a violation of the Eighth Amendment based on

excessive use of force in a prison setting, a plaintiff must show

that the defendant used force "maliciously and sadistically" to

cause harm rather than to maintain discipline. Hudson v.

McMillian,

(1992). As the Supreme Court has

stated:

When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency are always violated. This is true whether or not significant injury is evident........... That is not to say that every malevolent touch by a prison guard gives rise to a federal cause of action. The Eighth Amendment's prohibition of "cruel and unusual" punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort "repugnant to the conscience of mankind."

injured in an action at law, suit in eguity, or other proper proceeding for redress.

(West 1994).

6 Hudson,

(citations omitted). As JudgeFriendly

noted in Johnson v. Glick:

[T]he constitutional protection [of the Eighth Amendment] is nowhere nearly so extensive as that afforded by the common law tort action for battery . . . . Not every push or shove, even if it later may seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.

, 1033 (2d Cir. 1973); see also Barber v. Grow,

(E.D. Pa. 1996) ("What is enough to support a

common law tort claim is not necessarily enough to support an

Eighth Amendment claim.").

The factual dispute in this case, while genuine, only

reguires a trial if it is also material, i.e., if it could change

the outcome of the dispute. Here, however, even accepting the

plaintiff's version of events, the defendant's conduct

represented only a de minimis use of force that did not violate

the Eighth Amendment. No reasonable fact finder could conclude

that the defendant's conduct, even if it might constitute a

common law tort, rose to the level of an Eighth Amendment

violation. See Black Spotted Horse v. Else,

(8th Cir. 1985) (injury to leg, poking, and belligerent comments

"may amount to a battery . . . but is not a constitutional

violation"); Malloy v. DeFrank, No. 95 CIV.9122 AJP PKL,

, at *5 (S.D.N.Y. Oct. 31, 1996) (push in the back was not

7 Eighth Amendment violation) (collecting similar cases); Barber v.

Grow,

(E.D. Pa. 1996) ("Pulling a chair out

from under someone [resulting in cuts and bruises] is childish

and stupid, but it is not 'repugnant to the conscience of

mankind.'"); Risdal v. Martin,

(S.D. Iowa

1993) (taunting and jostling did not constitute Eighth Amendment

violation); Collins v. Bopson,

(E.D. Pa.

1993) (medical evidence of minimal physical injury indicated

force, if used, was de minimis as a matter of law); Friedman v.

Young,

(S.D.N.Y. 1988) ("the line between a

pat down and a fondle is too insubstantial to support the burden

of supporting a claim for constitutional tort"). The most

favorable inference to which the plaintiff is entitled is that

the defendant, while engaged in the legitimate penalogical

function of attempting to obtain the plaintiff's compliance with

the prison's admitted valid strip search procedure, exceeded the

scope of the force which he was entitled to employ. While this

may constitute a state law tort and certainly reflects poor

judgment by the defendant, it is insufficient, as a matter of

law, to support a claim of a constitutional violation.5

5The court notes that the prison administration did not disregard the plaintiff's complaint. The complaint was subjected to administrative review and investigation, as a result of which the defendant was transferred from his visiting room assignment.

8 Therefore, the court grants summary judgment to the

defendant on the plaintiff's Eighth Amendment claim against him

in his individual capacity.

Conclusion

For the reasons stated above, the defendant's motion for

summary judgment (document no. 35) is granted. The clerk is

ordered to close the case.

SO ORDERED.

Joseph A. DiClerico, Jr, Chief Judge

April 22, 1997

cc: Robert Blackcloud Suzanne M. Gorman, Esguire

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