UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Timothy Beers

v. Civil No. 15-cv-454-SM Opinion No.

Jon Fouts et al.

O R D E R

Before the court are two post-judgment motions filed by

plaintiff, Timothy Beers (Doc. Nos. 104, 105). Construed

liberally, both motions seek relief from the final judgment,

Doc. No. 103, pursuant to Fed. R. Civ. P. 59(e). Defendants

object. See Doc. No. 111.

Procedural History

The claims in this action arose out of a December 18, 2014

group strip search of New Hampshire State Prison (“NHSP”)

inmates, including Beers, conducted in the NHSP gymnasium after

a contact-visit holiday event attended by inmates and their

families. After the families left the event, NHSP corrections

officers strip-searched the inmates in the presence of other

inmates, a video surveillance camera, and other corrections

officers, including a female officer.

Beers filed this case to challenge the validity of the

group strip search. Beers’s claims asserted under the Prison Rape Elimination Act (“PREA”) claims, the Fourteenth Amendment’s

Equal Protection Clause, and claims alleging Eighth Amendment

violations for humiliation and endangerment were dismissed for

failure to state a claim upon which relief could be granted.

See Feb. 2, 2016 Order (Doc. No. 13) (approving Dec. 14, 2015

Report and Recommendation (“R&R”) (Doc. No. 7)). The court

allowed Beers to proceed on a claim asserting that the group

strip search was unreasonable, in violation of the Fourth

Amendment. See

The defendants to that claim were the NHSP

officers who Beers claimed had ordered or authorized the group

strip search at issue. See

Defendants filed motions asserting that they were entitled

to qualified immunity as to the Fourth Amendment claim. See

Defs. Fouts’s, Greenwood’s, Jardine’s, and Orlando’s Mot. for

Summ. J. (Doc. No. 44); Def. Forcier’s Mot. to Dismiss (Doc. No.

86). The court granted those motions, finding that the

defendants were entitled to qualified immunity as to the Fourth

Amendment claim, and the clerk entered judgment for defendants

in this case. See Sept. 12, 2017 Order (Doc. No. 92),

,

(D.N.H. Sept. 12, 2017)

(granting motion for summary judgment); Mar. 7, 2018 Order (Doc.

No. 102) (granting motion to dismiss); Mar. 12, 2018 Judgment

(Doc. No. 103). Beers then filed two motions seeking to reopen

2 the judgment, to allow for more discovery, and to schedule a

jury trial. See Doc. Nos. 104, 105.

Rule 59(e) Standard

Beers’s motions seek relief under Rule 59(e) of the Federal

Rules of Civil Procedure, as they were filed less than twenty-

eight days after judgment was entered in this case. See Alicea

v. Machete Music,

(1st Cir. 2014); Aybar v.

Crispin-Reyes,

, 17 n.3 (1st Cir. 1997). Although

courts have “considerable discretion” in deciding whether to

grant or deny a motion to alter or amend a judgment under Rule

59(e), Venegas-Hernandez v. Sonolux Records,

(1st Cir. 2005), such relief is “‘an extraordinary remedy which

should be used sparingly.’” Palmer v. Champion Mortg.,

(1st Cir. 2006) (citation omitted). This court may grant

a Rule 59(e) motion based on an intervening change in the law, a

manifest error of law or fact underlying the judgment, or newly-

discovered evidence that could not have been produced before

judgment entered. Deka Int’l S.A. v. Genzyme Corp. (In re

Genzyme Corp. Sec. Litig.),

(1st Cir. 2014);

Markel Am. Ins. Co. v. Díaz-Santiago,

(1st Cir.

2012); Glob. NAPs, Inc. v. Verizon New England, Inc.,

(1st Cir. 2007). When a motion for relief from a

judgment is coupled with a motion to amend the complaint, the

3 motions may be properly denied if the proposed amendment is

futile. Feliciano-Hernández v. Pereira-Castillo,

,

538 (1st Cir. 2011).

Motion to Re-open and Expand the Record (Doc. No. 105)

In Document No. 105, Beers asks the court to add a document

to the record, Doc. No. 105-1, entitled, “PREA Audit Report,”

concerning PREA reports at the Northern New Hampshire

Correctional Facility (“NCF”), as well as unspecified New

Hampshire Department of Corrections (“DOC”) training records,

which Beers asserts would show that all DOC employees have

received training concerning sexual abuse, “voyeurism,” and/or

sexual harassment. Beers states the document he seeks to add to

the record contains information contrary to what defendants

represented and disclosed in discovery in this case.

Even if the PREA Audit Report and training records were

deemed to be new evidence that Beers could not have produced

before entry of judgment, the existence of those records would

not change the result in this case. In granting defendant

Forcier’s motion to dismiss and the remaining defendants’ motion

for summary judgment on grounds of qualified immunity, this

court determined that the law was not clearly established in

December 2014 in the First Circuit that the group strip search

at issue would violate the Fourth Amendment. The existence of

4 records showing that corrections officers had been trained in

the recognition and prevention of sexual assault, voyeurism, and

sexual abuse would not have altered that legal conclusion.

Accordingly, the relief sought in Document No. 105 is denied.

Motion to Litigate First Amendment Claim (Doc. No. 104)

I. Background

The March 7, 2018 Order (Doc. No. 102) granting defendant

Forcier’s motion to dismiss stated, in pertinent part, that all

claims in the case had been resolved, and for that reason, the

court directed the clerk to enter judgment. In Document No.

104, Beers argues that this court erred in not addressing his

First Amendment religious freedom claim. Neither Beers’s

original complaint (Doc. No. 1), nor Beers’s sole motion to

amend the complaint (Doc. No. 49), referred to plaintiff’s

religious beliefs or alleged facts stating a First Amendment

claim.

The court has reviewed its docket to ascertain whether

Beers pleaded a First Amendment free exercise claim or any

related, potentially viable claim in this case, and, if so, what

facts he alleged as to those claims. The court’s review of the

record shows that the religious freedom claim Beers now claims

to have asserted in this action began to take shape in December

2016, when Beers filed an affidavit written by inmate Javier

5 Santana (Doc. No. 33-1) as an attachment to a discovery motion.

In that affidavit, Santana stated that Santana told a

supervising officer that stripping out in front of other inmates

would violate Santana’s religious rights. Santana avers that

the officer, whom Beers later identified as defendant Forcier,

allowed Santana’s strip search to occur in a locker room, away

from the other inmates, after saying “[w]e would not want to

violate any rights.” Doc. No. 33-1, at 2.

In Beers’s objection to defendants’ motion for summary

judgment (Doc. No. 65), filed in March 2017, Beers asserted

facts for the first time in the case regarding his own religious

beliefs, which he alleged prohibited him from appearing naked in

front of others unknown to him, for their entertainment, at the

time of the group strip search. See Doc. No. 65 at ¶¶ 41, 95,

at 16, 30. Beers alleged similar facts in Document No. 88, in

objecting to and seeking reconsideration of the June 12, 2017

R&R. In addition, in Document Nos. 87 and 88, Beers asserted

that Forcier’s order that Santana be strip-searched in a locker

room gave rise to a Fourteenth Amendment equal protection claim

based on the defendants’ allegedly preferential treatment of

Santana. 1 See Doc. No. 87, at 2; Doc. No. 88, at 15. The court

1Beers had asserted an equal protection claim in the original complaint, which the court dismissed for failure to state a claim. See Feb. 2, 2016 Order (Doc. No. 13). Beers’s later filings (Doc. Nos. 33-1, 87, 88) added the new allegations

6 concludes that, when it ruled on the dispositive motions in this

case, it failed to recognize that Beers was attempting to assert

a First Amendment claim in Document Nos. 33-1, 65, 87, and 88.

In ruling on Document No. 104, this court now considers

whether this case may be reopened to allow Beers to litigate a

First Amendment free exercise claim or a Fourteenth Amendment

equal protection claim against defendants, based on the facts

asserted in the Santana affidavit (Doc. No. 33-1), Beers’s

pleadings (Doc. No. 1, 78), exhibits (Doc. Nos. 45-1, 45-2), and

Document Nos. 65, 87, and 88.

II. Discussion

A. First Amendment Free Exercise Claim

1. Standard

The government may not “prohibit” the free exercise of

religion. U.S. Const. amend. I. The First Amendment Free

Exercise Clause “requires government respect for, and

noninterference with, the religious beliefs and practices of our

Nation’s people.” Cutter v. Wilkinson,

(2005). While “[i]nmates clearly retain protections afforded by

the First Amendment, including its directive that no law shall

prohibit the free exercise of religion,” the Supreme Court has

relating to Sgt. Forcier’s handling of Santana.

7 noted that “lawful incarceration brings about the necessary

withdrawal or limitation of many privileges and rights,” and

such “limitations on the exercise of constitutional rights arise

both from the fact of incarceration and from valid penological

objectives -- including deterrence of crime, rehabilitation of

prisoners, and institutional security.” O’Lone v. Estate of

Shabazz,

(1987) (citations and internal

quotation marks omitted).

A restriction placed on an inmate’s ability to practice his

religion implicates the First Amendment. See LeBaron v.

Spencer,

(1st Cir. 2013). Such an

impingement violates the Constitution, unless it was imposed

pursuant to a prison policy that was “reasonably related to

legitimate penological interests, and [was] not an exaggerated

response to such objectives.” Beard v. Banks,

(2006) (internal quotation marks and citations omitted); see

also Turner v. Safley,

(1987).

Four factors are relevant in making this determination: “(1) whether there is a valid, rational connection between the regulation and the legitimate government interest put forward to justify it; (2) whether alternative means to exercise the right exist; (3) the impact that accommodating the right will have on prison resources; and (4) the absence of alternatives to the prison regulation.”

Lebaron v. Spencer,

(1st Cir. 2013)

(quoting Kuperman v. Wrenn,

(1st Cir. 2011)).

8 In examining a restriction under the Turner factors, substantial

deference must be given to prison administrators’ judgment. See

Overton v. Bazzetta,

(2003). The burden “is

not on the State to prove the validity of prison regulations but

on the prisoner to disprove it.”

Here, plaintiff asserts that the group strip search

contravened his religious beliefs because it exposed his body to

individuals unknown to him, who lacked a proper reason to view

his body. 2 The sworn statement of defendant NHSP Maj. Jon Fouts,

however, explains the safety and security objectives served by

the group strip search. Def. Jon Fouts’s Answer to Pl.’s

Interrog. No. 11, Doc. No. 44-4, at 10. Cf. Bell v. Wolfish,

(1979) (visual strip searches after contact

visits with person from outside facility is reasonable in light

of “serious security dangers” in detention facility, together

with common occurrence of smuggling of contraband). Fouts avers

that the group format of the search reduced the risk that

contraband would enter the prison. The procedures employed

following the event minimized the amount of time between the

departure of guests and the search of inmates, which gave the

inmates less time to hide or disseminate contraband.

2Beers asserts that his religion prohibited displaying his body to others unknown to him for their entertainment. The assertion that the procedure at issue was entertaining to any officer or other defendant is purely speculative.

9 Fouts’s statement regarding the legitimate purposes served by

the search at issue is undisputed. This court defers to the

professional expertise and judgment of corrections officials,

such as Fouts, as to issues of institutional safety, security,

and order. See O’Lone, 482 U.S. at 349; Pell v. Procunier,

(1974).

Beers has not pleaded facts regarding the nature of his

religion and religious practices, other than his assertion that

his religion forbids him from exposing his body to others

unknown to him for their entertainment. Nothing before the

court suggests that Beers lacked alternative means of exercising

his religious rights. While Beers points to several

alternative, more private search procedures that could have been

used in lieu of the group strip search, Fouts’s statement

provides grounds for concluding that employing a different

method of searching inmates at the event would have imposed

additional burdens on prison safety and security resources. The

record before the court does not show that the alternatives

proposed by Beers were feasible at the time of the group strip

search, or that the same procedures used at other facilities or

at subsequent NHSP events could have been deployed in December

2014. In any event, Beers has not shown that the search was an

exaggerated response to a legitimate safety and security

concern. Therefore, assuming, without deciding, that the search

10 burdened Beers’s religious practices, Beers would not be

entitled to relief if a First Amendment free exercise claim were

added to this case, as the group search at issue appears to have

been reasonably related to a legitimate penological objective,

and was not an exaggerated response to that concern. Cf. Israel

v. City of N.Y., No. 11 CIV. 7726 JMF,

, at *3,

, at *8-*9 (S.D.N.Y. Oct. 5, 2012)

(dismissing Fourth Amendment claim upon concluding that strip

searching prisoners entering and leaving facility serves

legitimate interest of preventing smuggling of contraband, and

“[t]he presence of other inmates and officers, males and

females, does not alter this determination”).

2. Qualified Immunity

Further, this court previously concluded that defendants

are shielded by qualified immunity from plaintiff’s Fourth

Amendment challenge to the group strip search. See Mar. 7, 2018

Order (Doc. No. 102); Sept. 12, 2017 Order (Doc. No. 92)

(approving June 12, 2017 R&R (Doc. No. 82)). The court applies

the law on qualified immunity set forth in the pertinent

recommendations and rulings relating to the Fourth Amendment

claims (Doc. Nos. 82, 102) to Beers’s asserted First Amendment

claim. The relevant inquiry for purposes of evaluating a

qualified immunity defense in this context would be whether it

11 would have been clear to a reasonable NHSP officer in December

2014 that a group strip search under the circumstances would

violate the First Amendment free exercise right of an inmate

whose religion prohibited him from exposing his naked body to

other inmates and officers.

Neither the Supreme Court nor the First Circuit has

addressed that Free Exercise Clause claim. Appellate court

decisions from other jurisdictions considering similar claims in

analogous circumstances indicate that the right under the Free

Exercise Clause was not clearly established at the relevant

time. See, e.g., Harvey v. Segura,

(10th

Cir. 2016) (Gorsuch, J.) (qualified immunity applied to First

Amendment free exercise claim of inmate who in January 2013 had

been strip searched by guard of opposite sex); Canedy v.

Boardman,

(7th Cir. 1996) (qualified immunity

applied to cross-gender strip search free exercise claim,

because “it was not at all clear” in 1992 that plaintiff’s

“interest in observing Islam’s nudity taboos” decisively

outweighed prison’s “very strong interest in having its guards

observe prisoners at all times and in all situations, and . . .

[its] interest in providing equal employment opportunity to

women”).

While there are some district court decisions declining to

dismiss First Amendment free exercise claims challenging strip

12 searches, including Valerio v. Wrenn, No. 15-cv-248-LM,

, at *8,

, at *20 (D.N.H.

Oct. 23, 2017) (deferring consideration of qualified immunity

defense until later stage of case), R&R approved,

,

(D.N.H. Nov. 29, 2017),

there are a number of lower court decisions from other

jurisdictions dismissing such claims pretrial, see, e.g.,

Bradford v. Kramer, No. 15-cv-1405-JPG-SCW,

, at *14-*22 (S.D. Ill. Jan. 27, 2017) (use of

security cameras to continuously monitor cell of inmate whose

religion prevented him from being seen naked by anyone other

than his spouse, was not an exaggerated response to defendants’

legitimate safety and security interests), R&R approved,

(S.D. Ill. Mar. 28, 2017); George v. City

of N.Y., No. 12 CIV. 6365 PKC JLC,

, at *9 n.3,

, at *24-*25 n.3 (S.D.N.Y. Nov. 6,

2013) (S.D.N.Y. Nov. 6, 2013) (dictum) (lack of controlling

precedent would likely entitle defendants to prevail on

qualified immunity defense to First Amendment free exercise

claim challenging group strip search).

This court cannot find “controlling authority or a robust

consensus of cases of persuasive authority,” Plumhoff v.

Rickard,

(2014) (citation and internal

quotation marks omitted), establishing that, under the

13 circumstances described by Beers, an inmate had a First

Amendment free exercise right to avoid being subjected to a

group strip search. As it would not have been clear to a

reasonable officer that the group strip search violated the Free

Exercise Clause, qualified immunity shields each defendant from

liability for damages on that claim. Accordingly, the Rule

59(e) motion (Doc. No. 104) seeking leave to allow Beers to

litigate his Free Exercise claim against defendants is denied as

futile.

B. Equal Protection

In addition to his First Amendment claim, Beers has alleged

in his objections to defendants’ dispositive motions that the

strip search violated his Fourteenth Amendment right to equal

protection. Specifically Beers alleged that Sgt. Forcier

treated Santana preferentially by allowing him to be strip-

searched in a locker room, while officers caused Beers to

undergo the strip search along with the others in the gym. “The

Fourteenth Amendment’s Equal Protection Clause prohibits a state

from treating similarly situated persons differently because of

their classification in a particular group.” Mulero-Carrillo v.

Román-Hernández,

(1st Cir. 2015).

To establish an equal protection claim, a plaintiff needs

to allege facts showing that “‘(1) the [plaintiff], compared

14 with others similarly situated, was selectively treated; and (2)

that such selective treatment was based on impermissible

considerations such as race, religion, intent to inhibit or

punish the exercise of constitutional rights, or malicious or

bad faith intent to injure’” the plaintiff. Davis v. Coakley,

(1st Cir. 2015) (citations omitted). To

meet the “‘threshold requirement’” of differential treatment, a

plaintiff must “‘identify and relate specific instances where

persons situated similarly in all relevant aspects were treated

differently,’” to show that he was “‘singled out for unlawful

oppression.’” Ayala–Sepúlveda v. Munic. of San Germán,

(1st Cir. 2012) (emphasis in original) (citation

omitted).

A showing that someone similarly situated was treated

differently is missing here. While Santana and Beers were both

ordered to strip after the holiday event, Santana, unlike Beers,

specifically complained that the group strip search violated his

religious beliefs. Beers has neither pleaded nor shown that he

told any guard that the strip search violated his religious

beliefs, or that any officer was aware of that religious

conviction. Beers’s silence during the event distinguishes his

circumstance from Santana’s, and precludes this court from

finding that Beers’s equal protection claim is viable.

15 Conclusion

For the foregoing reasons, plaintiff’s post-judgment

motions (Doc. Nos. 104, 105) are DENIED.

SO ORDERED.

_______________ ______________ Steven J. McAuliffe United States District Judge

July 10, 2018

cc: Timothy Beers, pro se Francis Charles Fredericks, Esq. Lynmarie C. Cusack, Esq. Seth Michael Zoracki, Esq.

16