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 .

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

, 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,

, 15 (1st Cir. 1990) (following Estelle v .

Gamble,

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,

, 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.,

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,

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,

, 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,

, 1 0 . “That is not to say that

every malevolent touch by a prison guard gives rise to a federal

cause of action.”

. “Not every push or shove, even if it

may later seem unnecessary . . . violates a prisoner’s

constitutional rights.”

(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.”

at 9-10 (citing

Whitley, 475 U.S. at 327) (quoting Estelle,

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,

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,

7 8 , 200 (2d Cir. 1971) (en banc), cert.

denied,

(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,

(1st Cir. 1991) (citing Estelle,

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,

(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,

, 5 5 8 , 560 (1st Cir. 1988),

cert. denied,

(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,

(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,

0 7 , 315

12 (1982), mere threats, without any physical injury resulting

therefrom do not invoke Constitutional protection. See Shabazz

v . Cole,

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

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, . . .

.

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,

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,

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.

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.,

(1993) (Eleventh Amendment bars all

suits in federal court against states or their agencies); Will v .

Mich. Dept. of State Police,

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

. 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,

4 , 15 (1st Cir. 1988). Rather, appointment

of counsel in a civil case is left to the discretion of the

court. See

(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,

5 , 23 (1st Cir. 1991); Cookish v .

Cunningham,

, 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,

, 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,

1 , 13-14 (1st Cir. 1992); United

States v . Valencia-Copete,

, 6 (1st Cir. 1986).

James R. Muirhead United States Magistrate Judge Date: January 2 4 , 2003

cc: Joseph V . Rose, pro se

18