UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Christopher Beaulieu1

v. Civil No. 15-cv-12-JD Opinion No.

Craig Orlando, et al.

O R D E R

Crystal Beaulieu, who is proceeding pro se, brings claims

against employees of the New Hampshire Department of Corrections

(“DOC”) and another inmate, Matthew Rodier, arising out of

incidents that occurred at the New Hampshire State Prison for

men in March of 2012 and April of 2014. The state defendants

move for summary judgment on the claims against them. Despite

receiving extensions of time over the past ten months, Beaulieu

failed to respond to the motion.

Standard of Review

Summary judgment is appropriate when the moving party

“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). “A genuine dispute is one that a

reasonable fact-finder could resolve in favor of either party

1 The complaint was filed by Christopher Robert Beaulieu. Since filing, Beaulieu has decided to identify as female, using the name “Crystal,” and prefers to be referred to with female pronouns. and a material fact is one that could affect the outcome of the

case.” Flood v. Bank of Am. Corp.,

(1st Cir.

2015). The facts and reasonable inferences are taken in the

light most favorable to the nonmoving party. McGunigle v. City

of Quincy,

(1st Cir. 2016). “On issues where

the movant does not have the burden of proof at trial, the

movant can succeed on summary judgment by showing ‘that there is

an absence of evidence to support the nonmoving party’s case.’”

OneBeacon Am. Ins. Co. v. Commercial Union Assurance Co. of

Canada,

(1st Cir. 2012) (quoting Celotex Corp.

v. Catrett,

(1986)).

Under the local rules in this district, a party moving for

summary judgment must include “a short and concise statement of

material facts, supported by appropriate record citations, as to

which the moving party contends there is no genuine issue to be

tried.” LR 56.1(a). A party opposing the motion must also

include a statement of material facts with appropriate record

citations to show that a genuine factual dispute exists. LR

56.1(b). “All properly supported material facts set forth in

the moving party’s factual statement may be deemed admitted

unless properly opposed by the adverse party.”

In this case, the defendants filed their motion for summary

judgment on April 6, 2017. Beaulieu was granted six extensions

2 of time to file a response to the motion. The last deadline was

February 16, 2018, when Beaulieu was notified that no further

extensions would be granted. After the deadline had passed,

Beaulieu again asked for an extension for an unspecified amount

of time. That request was denied. Therefore, the properly

supported factual statement in the defendants’ memorandum in

support of summary judgment is deemed admitted.

Background

Beaulieu was an inmate at the New Hampshire State Prison in

March of 2012 and April of 2014, when the incidents at issue in

this case occurred. The state defendants, who are Craig

Orlando, Christopher Ziemba, Ernest Orlando, Michael Shaw,

Barbara Slayton, Paul Casco, Kevin Stevenson, Page Kimball, and

Douglas Bishop, were prison officers and officials during the

time of those incidents. Beaulieu also brings claims against

Matthew C. Rodier, another inmate.

In March of 2012, Beaulieu was housed in the maximum

security Special Housing Unit (“SHU”) at the prison. Because

Beaulieu had threatened to spit on prison staff, Lieutenant

Michaud had ordered staff to put a “spit hood” on Beaulieu

whenever she was moved from her cell. In April of 2014,

Beaulieu was housed in the Secure Psychiatric Unit (“SPU”).

3 A. March 7, 2012, Incident

On March 7, 2012, Shaw asked Ziemba and Orlando to move

Beaulieu from her cell on J tier in SHU to the Officer in Charge

in SHU for a disciplinary report hearing.2 Once Beaulieu was

handcuffed, Orlando put the spit hood over her head. While

Ziemba and Orlando were escorting Beaulieu down the tier

corridor, Beaulieu kicked a deodorant stick that was on the

floor and then turned her head toward Orlando and spat at him.

Despite the spit hood, particles of spit covered the right

side of Orlando’s face. Orlando took Beaulieu to the floor, and

Ziemba helped to restrain her. During their efforts to restrain

Beaulieu, she was injured, which caused bleeding over her eye.3

When the officers had control of Beaulieu, they brought her to

her feet and took her to the SHU Officer in Charge, as planned.

Both Orlando and Ziemba state that they used only the amount of

2 The disciplinary report for the incident states that Corrections Officer Thimba also participated in escorting Beaulieu, but the defendants do not mention Thimba in their statement of facts, and Thimba is not a defendant in this case. In his own report of the incident, Thimba states that he had been passing out toilet paper from a cart on J tier and was just about to leave when the spitting incident occurred. Thimba confirmed that Beaulieu spat at Orlando. The video of the incident, which was recorded by a security camera, confirms that Thimba was present but did not participate in the incident.

3 As mentioned above, the incident was recorded by a security camera, and the court has reviewed the video.

4 force necessary to control Beaulieu and that they had no

malicious or sadistic intent.

Because of the injury, Beaulieu was taken to a dayroom for

medical treatment. Nurse Pat Keon examined and treated

Beaulieu. Beaulieu had a scrape with some swelling on her head.

Although Beaulieu also complained of right arm pain, she was

found to have a good range of motion. Keon gave Beaulieu

Ibuprofen for the scrape and cleared her to return to her cell.

Orlando went to a bathroom to wash the spit off of his

face. Other officers took Beaulieu back to her cell where she

was agitated and demanded that pictures be taken of her injury.

Shaw notified the shift commanders that the incident had

occurred. Later, when Orlando was doing rounds, Beaulieu

apologized for spitting on him.

Beaulieu was charged with a major disciplinary infraction

for striking an officer. During the disciplinary proceeding,

Beaulieu did not deny spitting on Orlando. Following a hearing,

Beaulieu was given fifteen days of punitive segregation and lost

privileges for one hundred days.

Orlando did not bring assault charges against Beaulieu. A

“Use of Force Review” was done for the incident by the prison,

which determined that Beaulieu must wear a spit hood whenever

she was out of her cell and that all of her movements would be

5 videotaped to document her behavior. In order to provide video

surveillance, Beaulieu was moved to a different cell.

B. Incidents in April of 2014

On the morning of April 18, 2014, Beaulieu was in a

therapeutic group in the Secure Psychiatric Unit (“SPU”) when

she asked to be excused. Out in the hallway, Beaulieu told her

social worker, Barbara Slayton, that she could not focus and

that if things did not change she might have to go to the

“suicide tank.” When they moved to another room, Beaulieu wrote

on a piece of paper that she gave to Slayton: “I can’t say no A

was pressured into sexually acts he has Hep C and it is

attempted murder.”

Beaulieu identified Matthew Rodier as the inmate who was

pressuring her for sex. She also said that Rodier threatened

her so that she was afraid to report the behavior. She had

concerns for her health related to sexual activity with Rodier.

Slayton called SPU Captain, Paul Cascio, who joined her meeting

with Beaulieu. Cascio told Beaulieu that she would be locked in

her cell on Acute Care Status (“ATC”), pending an investigation

of her charges.4

4 The defendants abbreviate “Acute Care Status” as “ATC”.

6 Cascio put Beaulieu on ATC for her safety and notified the

Prison Rape Elimination Act (“PREA”) investigator of Beaulieu’s

charges. Cascio also called the investigation unit and was told

an investigation would be done. Beaulieu underwent a mental

health assessment and was determined not to be a suicide risk.

At 2:00 in the afternoon the same day, SPU staff notified

Cascio that Beaulieu did not want to continue on ATC. Beaulieu

sent an inmate request slip in which she said that she did not

want to be on ATC and that “if your staff don’t talk about it

then my safety will not be at risk.” She further asked that

they not put her on ATC for the weekend.

Cascio met with Beaulieu at 4:00 p.m., and Beaulieu

recanted her accusations against Rodier. Cascio called the

investigations unit and was told to get a statement in writing

from Beaulieu. The investigator said that he would not conduct

an investigation if the allegations of sexual contact by Rodier

were recanted.

Cascio got a written statement from Beaulieu in which she

stated the following:

I am hereby writing this to inform the DOC that I have no concern for my safety or worries that Inmate Matthew Clayton Rodier nor any one for that fact will sexually assault me in anyway. I have made Allegations against Mr. Rodier but there is no concerns there and I feel safe being SC on F-ward-SPU and be allowed the same as them do to the fact that I

7 have no concerns for my safety. Nor Feel Concerned that I will be pressured in any way to do any sexual Act. Therefore wish that this be disregarded Allegations of Sexual Contact against I/M Matthew Clayton Rodier.

Doc. no. 127-11. The statement is dated April 18, 2014, at “16”

and states that the statement was given by Christopher Beaulieu

to “Captin” Paul S. Cascio. Cascio then removed Beaulieu from

ATC.

Slayton met with Beaulieu on April 21, 2014, with security

present, to address reports that Beaulieu had been making sexual

remarks and touching other inmates. Beaulieu admitted sexual

relations with Rodier and denied any coercion to engage in that

conduct. Beaulieu also said that a statement she made in a

previous inmate request slip, accusing Slayton of pressuring her

to make allegations against Rodier, was not true and explained

that she made the statement against Slayton because she felt

like blaming someone.

On May 4, 2014, Beaulieu wrote an inmate request slip in

which she alleged that Rodier had sexually assaulted her on

April 30, 2014. Beaulieu’s treatment team received the slip the

next day. Kevin Stevenson, SPU Administrator, sent the slip to

the PREA investigator and the victim advocate. By that time,

Rodier had been released from the prison on parole.

8 Beaulieu wrote two inmate request slips on June 22, 2014,

one to Cascio and one to Stevenson, stating that a medical

assessment was not done on April 18 when she alleged sexual

contact from Rodier and that while she was placed on ATC, Rodier

was not restricted. Beaulieu believed that the staff had not

followed Policy and Procedure Directive (“PPD”) 5.19, which

addresses PREA procedures, on April 18. In August, Beaulieu

sent an inmate request slip to the investigations unit, again

stating that the policy was not followed. The defendants do not

provide any information about the outcome of Beaulieu’s request

slips.

In December of 2014, Beaulieu appealed the prison’s

response to the April 18 events to the Director of Medical and

Forensic Services. Beaulieu stated that PPD 5.19 required

separation of inmates who were subject to sexual assault

allegations and that she and Rodier were both housed in F ward.

In addition, Beaulieu argued that Rodier should have been put on

ATC, and instead Rodier was allowed out of his cell, while

Beaulieu remained on lock down until she wrote the statement

recanting her accusations about sexual contact with Rodier.

C. Claims

In this case, Beaulieu brings the following claims, as have

been allowed on preliminary review and by amendment:

9 1. NHSP officers Craig Orlando and Christopher Ziemba used excessive force against Beaulieu on March 7, 2012, in violation of Beaulieu’s Eighth Amendment right not to be subject to cruel and unusual punishment.

2. NHSP officers Craig Orlando and Christopher Ziemba are liable to Beaulieu for the state law tort of assault and battery for the use of force they exerted against Beaulieu on March 7, 2012.

3. NHSP officers Ernest Orlando and Michael Shaw are liable to Beaulieu for the state law tort of negligent supervision, for their failure to adequately supervise defendants Craig Orlando and Christopher Ziemba on March 7, 2012, resulting in those defendants’ commission of the tort of assault and battery on Beaulieu.

4. NHSP officials Barbara Slayton, Paul Casco,5 and Kevin Stevenson, were deliberately indifferent to a significant risk of serious harm to Beaulieu on April 18 and 30, 2014, when, knowing that Beaulieu had been sexually assaulted by another inmate, Matthew Rodier, those individuals failed to separate Beaulieu from Rodier, resulting in Rodier threatening Beaulieu, forcing Beaulieu to recant her allegation of sexual assault, and further resulting in Rodier sexually assaulting Beaulieu again.

5. NHSP Cpl. Paige Kimball acted with deliberate indifference to a significant risk of serious harm to Beaulieu, in violation of Beaulieu’s Eighth Amendment rights, on April 18, 2014, when Kimball, who was the individual responsible for the direct supervision of the inmates/patients on F-Ward in SPU, failed to separate Beaulieu and Rodier, allowing Rodier sufficient access to Beaulieu to enable Rodier to threaten Beaulieu and coerce Beaulieu to recant her allegation that Rodier had sexually assaulted her.

6. Former NHSP Corrections Officer (“C.O.”) Douglas Bishop acted with deliberate indifference to a significant risk of serious harm to Beaulieu, in violation of Beaulieu’s Eighth Amendment rights, on April 30, 2014, when Bishop, who was

5 In their motion for summary judgment, the defendants spell the name Cascio.

10 the individual responsible for the direct supervision of the inmates/patients on F-Ward in SPU, failed to separate Beaulieu and Rodier, allowing Rodier sufficient access to Beaulieu to enable Rodier to sexually assault Beaulieu.

7. NHSP inmate Matthew Rodier committed the intentional torts of assault and battery under New Hampshire law when he sexually assaulted Beaulieu on one occasion prior to April 18, 2014, and again on April 30, 2014.

Discussion

The state defendants move for summary judgment on the

ground that Beaulieu cannot prove her claims.6 Alternatively,

the state defendants contend that they are not liable based on

qualified immunity for the claims based on Beaulieu’s

allegations arising from incidents in April of 2014. The state

defendants also ask the court to decline to exercise

supplemental jurisdiction over the state law claims if the

federal claims are dismissed.

A. March 7 Incident

Beaulieu alleges that Orlando and Ziemba used excessive

force when they subdued her after she spat on Orlando. Beaulieu

contends that the force used violated her Eighth Amendment right

to be free of cruel and unusual punishment and also constitutes

assault and battery under state law. In addition, Beaulieu

Rodier, who is proceeding pro se, did not move for summary 6

judgment.

11 alleges that Ernest Orlando and Michael Shaw are liable under

state law for negligent supervision, because they failed to

adequately supervise Orlando and Ziemba.

1. Eighth Amendment Claim

Prison officers violate the Eighth Amendment if the

physical force used was excessive in light of the need to

maintain or restore discipline and order. Hudson v. McMillian,

(1992). Force is excessive if applied

“maliciously and sadistically to cause harm” rather than “in a

good faith effort to maintain or restore discipline.”

.

Factors that are relevant to whether the use of force was

excessive include: (1) “the extent of injury suffered by [the]

inmate”; (2) “the need for application of force”; (3) “the

relationship between that need and the amount of force used”;

(4) “the threat reasonably perceived” by the officer; and (5)

“any efforts made to temper the severity of a forceful

response.”

At the time of the incident on March 7, 2012, Beaulieu was

being escorted from her cell to a disciplinary report hearing.

She was wearing a spit hood over her head because of her prior

threats to spit on staff. During the escort, Beaulieu kicked a

deodorant stick and then spit at Orlando with such force that

particles of spit covered the right side of Orlando’s face

12 despite the spit hood. Orlando took Beaulieu to the floor, and

Ziemba helped to restrain her. Beaulieu sustained an injury

over her eye. She was treated by a nurse at the prison for a

scrape and some swelling.

The officers reasonably attempted to avoid being spat upon

by using the spit hood on Beaulieu. When Beaulieu was able to

spit through the hood, the officers needed to restore order by

restraining Beaulieu to stop her from spitting. The amount of

force necessary to take Beaulieu to the floor where she could be

restrained was proportional to the threat of continued spitting.

The injury she sustained was relatively minor.

The circumstances that resulted in Beaulieu’s injury

support a conclusion that Orlando and Ziemba used reasonable

force in response to Beaulieu’s actions rather than reacting

maliciously or sadistically. See, e.g., Hardwick v. Packer,

(3d Cir. 2013) Reyes v. Chinnici,

(3d Cir. 2002); Wheeler v. Fritz,

, at

*12 (D. Md. July 20, 2015); Chestnut v. Singleton,

, at *3 (D.S.C. May 14, 2015); Jordan v. Sheehy,

, at *3 (D. Conn. Mar. 11, 2013). Therefore, no Eighth

Amendment violation occurred.

13 2. Assault and Battery Claim

A successful assault claim requires evidence that the

defendant “intended to cause harmful or offensive contact” with

the plaintiff and that the plaintiff was “put in imminent

apprehension of such contact.” King v. Friends of Kelly Ayotte,

, 129–30 (D.N.H. 2012) (quoting Yale v. Town

of Allenstown,

(D.N.H. 1997) (citing

Restatement (Second) of Torts § 21(1) (1965))). A defendant may

be held liable for battery if “(a) he acts intending to cause a

harmful or offensive contact with the person of the other or a

third person, or imminent apprehension of such a contact, and

(b) a harmful contact with the person of the other directly or

indirectly results.” Hudson v. Dr. Michael J. O'Connell's Pain

Care Ctr., Inc.,

(D.N.H. 2011) (quoting

United Nat'l Ins. Co. v. Penuche's, Inc.,

(1st

Cir. 1997) (citing Restatement (Second) of Torts § 13 (1977)));

Rand v. Town of Exeter,

, 75–76 (D.N.H. 2013).

As is discussed in the context of the Eighth Amendment

claims, the officers acted reasonably to control Beaulieu. For

that reason, the record does not support Beaulieu’s assault or

battery claims.

14 3. Negligent Supervision Claim

Beaulieu contends that Michael Shaw and Ernest Orlando were

negligent in supervising Craig Orlando and Christopher Ziemba

which resulted in Beaulieu being the victim of assault and

battery. Because Beaulieu has not shown a triable issue in

support of her assault and battery claim, the negligent

supervision claim also fails.

B. April of 2014 Incidents

As construed on preliminary review, Beaulieu claims that

prison officers Paige Kimball, Douglas Bishop, Barbara Slayton,

Paul Cascio, and Kevin Stevenson were deliberately indifferent

to a significant risk of serious harm to Beaulieu on April 18

and 30, 2014, in violation of the Eighth Amendment when they

allowed Rodier access to Beaulieu. As a result, she alleges,

Rodier threatened Beaulieu on April 18, forcing Beaulieu to

recant her allegation of sexual assault. Then, with continued

access, Rodier sexually assaulted Beaulieu again on April 30.

The defendants contend that Beaulieu cannot prove that

there was a substantial risk of harm before Rodier was allowed

access to her because Beaulieu had recanted her allegations of

being assaulted by Rodier and asked to be taken off ATC

protection. They also contend that they are entitled to

qualified immunity.

15 1. Standard

The Eighth Amendment imposes a duty on prison officials and

officers “to protect prisoners from violence at the hands of

other prisoners.” Farmer v. Brennan,

(1994)

(internal quotation marks omitted). A violation of Eighth

Amendment rights occurs when the conditions of incarceration

present “a substantial risk of serious harm” and the official or

officer was deliberately indifferent to the inmate’s health or

safety.

. Therefore, “a prison official cannot be

found liable under the Eighth Amendment for denying an inmate

humane conditions of confinement unless the official knows of

and disregards an excessive risk to inmate health or safety; the

official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists,

and he must also draw the inference.”

.

2. Circumstances in this Case

On April 18, 2014, it is undisputed that the defendants

knew that Beaulieu was a transgender person housed in the SPU in

a prison for men. They also knew that Beaulieu had accused

Rodier of rape. In response, they put Beaulieu on ATC, which

meant that she was locked in her cell in SPU for her safety, and

notified the PREA investigator about Beaulieu’s accusations.

16 Despite those precautions, Beaulieu contends that Rodier was

allowed sufficient access to her to force her to recant her

accusations of rape against Rodier, which resulted in

terminating her ATC protection and a subsequent rape by Rodier.

The record, however, shows different events, which Beaulieu

is deemed to have admitted. As soon as Beaulieu accused Rodier

of rape, she was put in ATC protection. There is no evidence

that Rodier had access to Beaulieu while she was on ATC

protection or that SPU staff knew of any contact between Rodier

and Beaulieu. Instead, Beaulieu complained to SPU staff about

being locked in her cell.

When her complaints did not result in releasing ATC

protection, Beaulieu submitted an inmate request slip in which

she stated that she had no concern about sexual assault by

Rodier or anyone else and that she would be safe if released

from ATC protection as long as the staff did not talk about her

accusations against Rodier. Based on her request and her

representations, Beaulieu was released from ATC protection.

Under those circumstances, the record does not show a

material factual dispute as to whether the defendants were

deliberately indifferent to a substantial risk of harm to

Beaulieu. Rather than being indifferent, the defendants

immediately reacted and protected Beaulieu when she accused

17 Rodier of rape. They had no information that the ATC protection

they provided was insufficient. Beaulieu was released from ATC

protection only because she asked to be and because she

represented that her safety was not an issue.

In addition, a few days later, Officer Slayton met with

Beaulieu to address reports from other inmates that Beaulieu had

been making sexual remarks and touching other inmates. During

the meeting, Beaulieu admitted sexual relations with Rodier and

denied any coercion to engage in that conduct. Beaulieu also

told Slayton that she had falsely accused Slayton of pressuring

her to make allegations against Rodier.

Beaulieu did not make her next allegations against Rodier

until May 4, when she accused Rodier of raping her on April 30.

Beaulieu points to no evidence to show that the defendants were

put on notice, after she recanted her accusations against Rodier

on April 18 and met with Slayton on April 21, that Rodier

presented a substantial risk of serious harm to Beaulieu. As a

result, the record does not show that the defendants were

deliberately indifferent to a substantial risk of harm to

Beaulieu. Because Beaulieu’s claim fails on the merits, it is

not necessary to consider qualified immunity.

18 C. Supplemental Jurisdiction

All of the constitutional claims, which are brought against

the state defendants, are resolved on summary judgment against

Beaulieu. As a result, the claims that were the basis for

subject matter jurisdiction in this case, along with related

state law claims against the state defendants, have been

dismissed. The only remaining claim is a separate state law

claim against a separate defendant, Matthew C. Rodier.

The state law claim against Rodier involve different issues

and evidence than have been considered for purposes of the state

defendants’ motion for summary judgment. The court declines to

exercise supplemental jurisdiction over the state law claims

against Rodier (Claim 7).

(a) & (c)(3).

Conclusion

For the foregoing reasons, the state defendants’ motion for

summary judgment (document no. 127) is granted.

Claims 1 through 6 are dismissed with prejudice.

The court declines to exercise supplemental jurisdiction

over the remaining state law claims brought against Matthew

Rodier in Claim 7, which is dismissed without prejudice.

Document no. 164 is terminated as moot.

19 The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge March 12, 2018

cc: Christopher R. Beaulieu, pro se Laura E.B. Lombardi, Esq. Matthew Rodier, pro se

20