UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Irvin Morales Case No. 17-cv-234-SM v. Opinion No.

CO John Doe #2, Jon Fouts, Roderick Greenwood, and Keith Forcier

ORDER

This case arises out of a December 2014 group strip search 1

at the New Hampshire State prison (“NHSP”). The strip search

followed a holiday party attended by approximately one hundred

inmates and their families. Morales, who attended the entire

party, alleges that about half of the inmates left early. Those

who left early, Morales asserts, were subjected only to a pat-

down search while fully clothed. Morales claims that the strip

search violated several of his constitutional rights.

Presently before the court in this prisoner civil rights case is

defendants’ motion to dismiss (Doc. No. 52) plaintiff Irvin

Morales’s Third Amended Complaint (“TAC”). (Doc No. 33-1). See

1New Hampshire Department of Corrections Policy and Procedure Directive 5.77, IV(a)(3) defines a strip search as “removing all clothing from a person and searching the clothing carefully, after which a detailed visual inspection of the individual’s naked body, including inside of the mouth, the groin area and the buttocks shall be conducted.” Fed. R. Civ. P. 12(b)(6). For the reasons that follow, the

defendants’ motion is granted in part and denied in part.

I. Standard of Review

When ruling on a motion to dismiss under Fed. R. Civ. P.

12(b)(6), the court must “accept as true all well-pleaded facts

set out in the complaint and indulge all reasonable inferences

in favor of the pleader.” SEC v. Tambone,

(1st Cir. 2010). Although the complaint need only contain “a

short and plain statement of the claim showing that the pleader

is entitled to relief,” Fed. R. Civ. P. 8(a)(2), it must allege

each of the essential elements of a viable cause of action and

“contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face,” Ashcroft v.

Iqbal,

(2009) (citation and internal

punctuation omitted).

“A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged,” requiring the plaintiff to show “more than a sheer

possibility that a defendant has acted unlawfully.” Iqbal,

(citing Bell Atl. Corp. v. Twombly,

(2007)). A plaintiff must state facts in support of “each

material element necessary to sustain recovery under some

2 actionable legal theory.” Campagna v. Mass. Dep’t. of Envtl.

Prot.,

(1st Cir. 2003). But, a “plaintiff’s

obligation to provide the grounds of his entitlement to relief

requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do[.]”

Twombly,

(internal quotations omitted). The

court should “reject unsupported conclusions or interpretations

of law.” Estate of Bennett v. Wainwright,

(1st Cir. 2008). If, upon stripping out the “labels and

conclusions,” the allegations in the complaint, taken as true,

fail to state a cognizable claim for relief, the motion to

dismiss should be granted. See Rivera v. Rhode Island,

(1st Cir. 2005).

II. Factual Background and Procedural History

Plaintiff’s TAC is the operative document before the court.

To provide context for its consideration and the defendants’

motion, the court first outlines the history of the case, before

turning to the details of the TAC.

A. Original Complaint and Preliminary Review

In June 2017, plaintiff filed the instant lawsuit against,

among other named individuals and John Does, Jon H. Fouts and

Roderick R. Greenwood. See Complaint (Doc. No. 1) (“original

complaint”). Defendant Sgt. Keith Forcier, a New Hampshire

3 State Prison (“NHSP”) corrections officer (“CO”), was not named

in the original complaint. The original complaint asserted that

following a holiday party in the NHSP gymnasium on December 18,

2014, a group strip search was conducted, without “any exigent

circumstances”:

• in the open without the use of privacy screens[;]

• in direct view and proximity of the other inmates[;]

• in direct view of a female CO who was present in the gym[;]

• within the fixed view of a mounted video surveillance camera which exposed the inmates to voyeurism and to the consequent danger of sexual assault[;] and

• in such a manner as one would “treat . . . an animal.”

Original complaint (Doc. No. 1) ¶¶ 13-20, 30-32, 34-38, 45, et

seq. (bullets added, internal punctuation omitted). The

original complaint further alleged that defendants Fouts and

Greenwood authorized the search and that an unnamed CO (“John

Doe 2”) performed it as to Mr. Morales. Id. ¶¶ 30-32, 37.

Based on these allegations, Mr. Morales asserted violations

of the Fourth (unreasonable search and seizure) (Count 1),

Eighth (cruel and unusual punishment) (Count 2) and Fourteenth

(equal protection of the laws) (Count 3) Amendments. Then,

following his signature and verification, Mr. Morales included a

4 “Table of Violations,” in which he restated the Fourth, Eighth

and Fourteenth Amendment claims and added the following: “Under

the First Amendment it goes against my religion to have other

people see my naked body.” Id. at 18.

On March 27, 2018, the Magistrate Judge issued a Report and

Recommendation (“March 2018 R&R”) (Doc. No. 10), 2 stating, as to

the original complaint’s Fourth Amendment claims, that “[t]here

[was] no principled basis for allowing Fourth Amendment claims

to proceed here where the same claims, based on

indistinguishable operative facts, were dismissed in [two other

cases] on the grounds of qualified immunity.” Id. at 4 (citing

Beers v. Fouts, No. 15-cv-454-SM,

(D.N.H. Mar. 7,

2018) (“Beers”); Beers,

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

R&R approved,

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

v. Foster, No. 16-cv-439-JD,

(D.N.H. May 25,

2017)). 3

2Mr. Morales moved to amend the complaint before the district judge had determined whether to approve or reject the March 2018 R&R’s preliminary review of the original complaint, see May 29, 2018 Order. The court subsequently withdrew the March 2018 R&R and replaced it with the January 3, 2019 R&R (Doc. No. 30) (“January 2019 R&R”) (subjecting second amended complaint’s allegations and claims to preliminary review). See Jan. 3, 2019 Order (Doc. No. 30) (withdrawing and replacing March 2018 R&R with January 2019 R&R). 3The First Circuit Court of Appeals affirmed the dismissal of Beers. See Beers v. Sununu, No. 18-1392 (1st. Cir. Aug. 1, 2019). The plaintiff in Baptiste did not appeal.

5 Similarly tracking Beers and Baptiste, the Magistrate Judge

recommended dismissal of the original complaint’s Fourteenth

Amendment equal protection claim after finding no allegations of

dissimilar treatment to the plaintiffs in those cases. March

2018 R&R (Doc. No. 10) at 7. Also, as in Beers and Baptiste,

the Magistrate Judge recommended dismissal of the original

complaint’s Eighth Amendment endangerment claim because Mr.

Morales had failed to plead facts suggesting the “group strip

search presented a substantial risk of serious harm.” March

2018 R&R (Doc. No. 10) at 5. Addressing the Eighth Amendment

humiliation claim in the original complaint, the Magistrate

Judge recommended dismissal because plaintiff did not plead

facts which suggested “that the group strip search was

‘conducted in a harassing manner intended to humiliate and cause

psychological pain.’”

at 6 (quoting King v. McCarty,

(7th Cir. 2015)). Ultimately, the Magistrate

Judge recommended dismissal of all of the original complaint’s

claims except the First Amendment Free Exercise of Religion

claim.

B. First and Second Amended Complaints

On June 27, 2018, Mr. Morales filed his first amended

complaint (Doc. No. 19), a handwritten document he replaced with

a typewritten amended complaint on July 18, 2018 (Doc. No. 24).

6 Prior to the court acting on the amended complaint, Mr. Morales

sought and was granted leave to file a second amended complaint.

See Pl.’s Motion to Extend (Doc. No. 25) ¶ 5. Mr. Morales filed

the second amended complaint on August 20, 2018 (Doc. No. 27).

In addition to new factual allegations in the second amended

complaint, Sgt. Forcier was named as a defendant for the first

time. The second amended complaint alleged that Forcier, like

defendants Fouts and Greenwood, authorized the strip search.

See second amended complaint (Doc. # 27) ¶¶ 13, 22, 65.

The second amended complaint repeated the allegations set

forth in Mr. Morales’s initial complaint. In addition, Mr.

Morales asserted that:

Upon being called to be searched by John Doe 2, plaintiff Morales protested to John Doe 2 and advised him that strip searches in front of female officers and large groups of male prisoners as well as cameras would violate his Constitutional rights.

[John] Doe 2 told plaintiff Morales that the more he protested the longer the search would take.

Plaintiff Morales continued to protest and pleaded to be searched in private as at least two others had, in a bathroom only a few feet away as is protected by his first amendment right to free speech.

[John] Doe 2 then threatened the plaintiff with a disciplinary report for failure to follow a direct order if he did not comply.

[Morales] then obeyed the order as he was compelled to do in front of the female officers, cameras, other inmates present with no privacy or dignity.

7 [Morales] was then subjected to a long, slow and humiliating search that left him naked in front of all the aforementioned persons for an excessive amount of time, subjecting him to unnecessary humiliation trauma and duress and forcing the plaintiff to repeat several embarrassing positions while naked.

Second amended complaint (Doc. No. 27) ¶¶ 33-38.

The Magistrate Judge subjected the second amended complaint

to preliminary review under 28 U.S.C. § 1915A and LR 4.3(d) and

then issued the January 3, 2019 R&R (Doc. No. 29) (“January 2019

R&R”), finding that the allegation of a “long, slow and

humiliating search” by John Doe 2, performed in retaliation for

Mr. Morales’s allegedly protected speech – his verbal protest -

survived preliminary review under the First, Fourth and Eighth

Amendments only as to John Doe 2. The January 2019 R&R

recommended dismissal of the remaining defendants named in the

second amended complaint because Mr. Morales failed to plead

facts suggesting these officers were even aware of the manner in

which John Doe 2 conducted the Morales strip search or that they

intended to subject Mr. Morales to a search of that type.

January 2019 R&R (Doc. No. 29) at 12, 15. By Order dated

February 1, 2019, the district judge approved the January 2019

R&R. See Feb. 1, 2019 Order (Doc. No. 35).

C. Third Amended Complaint (“TAC”)

With leave of court, Mr. Morales subsequently filed the TAC

“to remed[y] the perceived errors outlined by the Magistrate

8 Judge in [the January 2019] R&R . . . .” Pl.’s Mot. For Leave

(Doc. No. 33) at 2. In this, the operative complaint, Mr.

Morales has asserted that Fouts, Greenwood, and Forcier:

were fully aware of [the] method and prolonged nature of the search [by John Doe 2] as they witnessed and were aware of the prolonged and repetitive nature of the search, but were deliberately indifferent to the violation of Morales’ rights and the injury that it would cause Morales,

and

had the ability to intervene and stop the violation of his rights and injury.

TAC (Doc. No. 39) ¶¶ 38, 45 and 51.

The Magistrate Judge subjected the TAC to preliminary

review and then issued the June 17, 2019 R&R (Doc. No. 40)

(“June 2019 R&R”), finding that the case should proceed against

John Doe 2, under the First, Fourth and Eighth Amendments, and

also against defendants Fouts, Greenwood and Forcier, “under

theories of bystander and supervisory liability,” for “being

present at, and failing to intervene to stop, subordinate

officer CO John Doe 2’s alleged unconstitutional acts . . .,

despite having an opportunity to do so.” June 17 R&R (Doc. No.

40) at 5-8. The Magistrate Judge further recommended that the

TAC be dismissed as to all other parties. Id. at 8-9. By Order

(Doc. No. 43) dated July 10, 2019, the Court approved the June

2019 R&R.

9 D. Claims Currently Before the Court

The end result of this procedural history is that the

surviving claims against Defendants Fouts, Greenwood and

Forcier, previously denominated as claims 6(a) through 6(c)

[Bystander and Supervisory Liability], are as follows:

6. Fouts, Greenwood, and Forcier are liable for CO John Doe 2’s conduct in subjecting Morales to an excessively long, slow, and humiliating search, in that, while having supervisory authority over CO John Does 2, they witnessed the manner in which the search was conducted but failed to intervene to stop it, despite having the opportunity to do so:

a. In violation of Morales’s Fourth Amendment right not to be subjected to an unreasonable search, lacking any legitimate purpose;

b. In violation of Morales’s Eighth Amendment right not to be subjected to cruel and unusual punishment; and

c. In violation of Morales’s right to avoid retaliation for engaging in conduct protected by the First Amendment.

June 2019 R&R (Doc. No. 40) at 4. The instant motion to dismiss

seeks dismissal of all claims against the defendants Greenwood,

Forcier and Fouts, pursuant to Fed. R. Civ. P. 12(b)(6).

III. Analysis

The defendants assert several arguments in support of their

motion to dismiss. First, they contend that Mr. Morales’s

claims are barred by the applicable three-year statute of

limitations. Next, the defendants argue that Mr. Morales failed

10 to exhaust his administrative remedies, as required by the

Prisoner Litigation Reform Act, 42 U.S.C. § 1997e(a) (“PLRA”).

They further maintain that Mr. Morales’s First Amendment claim

should be dismissed because the speech at issue was not

constitutionally protected. Finally, the defendants argue that

qualified immunity shields them from all of Mr. Morales’s

allegations. The court addresses these arguments in turn.

A. Statute of Limitations

The TAC presents claims under

, “which

borrow[s] the statute of limitations applicable to personal

injury actions under the law of the forum state.” As relevant

here, N.H. Rev. Stat. Ann. ch. 508:4, I, bars suits brought more

than “3 years of the act or omission complained of.” Federal

law, however, governs the accrual of claims brought pursuant to

section 1983. A claim accrues once the plaintiff knows or has

reason to know of the injury which is the basis of the action.

Smith v. NH State Prison, No. 05-CV-374-JD,

, at

*3 (D.N.H. Apr. 25, 2006) (citing Carreras-Rosa v. Alves-Cruz,

(1st Cir. 1997)). Mr. Morales alleges in the

TAC that he suffered “unnecessary humiliation, trauma and

duress” contemporaneous with the December 18, 2014 strip search.

TAC (Doc. # 39) ¶ 36. He alleged in his initial complaint that

he “went to sick call in January [2015] . . . to arrange with

11 mental health staff a scheduled time for treatment for the

trauma [he] suffered as a result of the group strip search.”

Complaint (Doc. No. 1 ¶ 22). Based on these undisputed facts,

it would appear at first blush that Mr. Morales’s claims accrued

on December 18, 2014 or, at the latest, in January 2015. But

Mr. Morales’s status as a prisoner adds another layer of

inquiry.

In light of the exhaustion requirements of the PLRA, 42

U.S.C. § 1997e(a), “the statute of limitations which applies to

[Mr. Morales’] civil rights action is tolled for the period

during which his administrative remedies were being exhausted.”

Smith,

, at *3 (citing Brown v. Morgan,

(6th Cir. 2000)). In his initial complaint, Mr.

Morales discussed his use of the DOC-prescribed grievance

procedure to exhaust his administrative remedies. Complaint

(Doc. No. 1) ¶¶ 21-27. He either attached or referred to three

grievances appealed to the highest level. Id. ¶¶ 19-26. The

latest of these grievances was dated April 11, 2015, stamped

RECEIVED by the DOC Commissioner’s Office on April 13, 2015,

and addressed by the Commissioner’s designee on April 14, 2015.

Id. at ¶ 24. The new claims in the TAC are barred by the

statute of limitations unless they were filed on or before

12 April 14, 2018, three years after those claims were exhausted

through an appeal to the Commissioner’s office.

Mr. Morales seeks to extend that time period by arguing

that his relevant grievances were not exhausted until

significantly later – until April 2017 – due to some post-

grievance communications with an inmate advocate and the New

Hampshire Attorney General’s office. Pl.’s Obj. (Doc. No. 54-

1). That argument is unavailing. Those communications took

place outside of the prison’s grievance process and thus did

not generate exhausted grievances within the NHDOC’s system.

To that extent, they do not toll the statute of limitations.

See Smith,

, at *3 (observing that tolling

applies only pre-exhaustion).

1. Claims against Sgt. Forcier

As previously noted, Forcier was first named as a party on

August 20, 2018, four months after the April 14, 2018 statute of

limitations had run, when Mr. Morales filed his second amended

complaint (Doc. No. 27). All claims against Forcier are

therefore time-barred.

Mr. Morales seeks to avoid the impact of the statute of

limitations on his claims against Sgt. Forcier by arguing that

they relate back to the time he filed the original complaint.

That argument is unavailing.

13 In pertinent part, Fed. R. Civ. P. 15(c)(1)(C) requires

satisfaction of three criteria for an otherwise untimely

pleading to “relate back”:

First, the claim asserted against the newly- designated defendant must satisfy the terms of Rule 15(c)(1)(B), which provides that the claim must arise “out of the conduct, transaction, or occurrence set out—or attempted to be set out-in the original pleading.” Second, “within the period provided by [Federal Rule of Civil Procedure] 4(m) for serving the summons and complaint, the party to be brought in by amendment” must have “received such notice of the action that it will not be prejudiced in defending on the merits.” Fed. R. Civ. P. 15(c)(1)(C)(i). Third, it must appear that within the same time frame the newly-designated defendant either “knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(C)(ii).

Morel v. DaimlerChrysler AG,

(1st Cir. 2009)

(internal case citation omitted). Assuming that the first

condition is met, in that the claim against Forcier arises “out

of the conduct, transaction, or occurrence set out . . . in the

original pleading,” Fed. R. Civ. P. 15(c)(1)(B), the TAC

nevertheless fails to satisfy the second and third conditions.

There is no suggestion: (a) that Forcier “received [any] notice

of the action” before first having been named as a party on

August 20, 2018, as required by Rule 15(c)(1)(C)(i); or (b)

that the “‘mistake proviso,’” in Rule 15(c)(1)(C)(ii), applies.

See generally Cholopy v. City of Providence,

(D.R.I. 2005) (mistake proviso was designed to “‘resolve

14 the problem of a misnamed defendant[s]’ and allow a party ‘to

correct a formal defect such as misnomer or misidentification’”

(citation omitted)). Based on the foregoing, the claims

against defendant Forcier are dismissed because they were not

brought within the applicable statute of limitations and they

do not relate back.

2. Claims Against Maj. Fouts and Capt. Greenwood

Unlike Forcier, who appeared in the second amended

complaint for the first time, defendants Fouts and Greenwood

were named in the original complaint. Fouts and Greenwood have

argued in their motion to dismiss that the claims against them

in the TAC vary so much from the original complaint that the

newer allegations do not relate back. Specifically, Fouts and

Greenwood first note that the TAC only added them as witnesses

to John Doe No. 2’s long, slow, retaliatory strip search, of

which they were both fully aware and in a position to stop, but

to which they were deliberately indifferent. These

allegations, they argue, cannot relate back because the

original complaint does not reference either a “long, slow”

search, or these defendants’ awareness of any verbal protest.

Def. Mem. (Doc. No. 52-1) at 18. Thus, they maintain that the

TAC constitutes an alteration to the original complaint

significant enough so that the latter could not have given

15 Fouts and Greenwood adequate notice of the claims against them.

The court disagrees.

In the context of relating back under Fed. R. Civ. P. 15,

the First Circuit “has refused to allow an amendment to assert

a claim which was not even suggested in the original

complaint.” Tessier v. United States,

(1st

Cir. 1959). For example, in O’Laughlin v. Nat’l R.R. Passenger

Corp.,

(1st Cir. 1991), a personal injury case, the

court affirmed the trial court’s refusal to allow a subsequent

claim to relate back when the second claim was based on an

entirely different accident.

. Similarly, this court

has observed that the relation back analysis “is directed to

conduct rather than causes of action, and new legal theories

may relate back to the original filing where . . . there is a

shared basis in factual circumstances.” Frederick v. New

Hampshire, No. 14-CV-403-SM,

, at *7 (D.N.H.

Aug. 16, 2016) (internal quotation marks and citation omitted).

Here, unlike in O’Laughlin – in which the newer claims were

based on discrete events at different times -- the claims

against Fouts and Greenwood arise out of the same strip search

that has been at the center of this litigation since its

inception. The original complaint named them as defendants,

albeit with different roles than alleged in the TAC. But “[a]s

16 long as conduct is placed in issue in the complaint, a proposed

amendment applying a new legal theory to the identified conduct

should ordinarily be permitted to relate back to the original

complaint.” Zee-Bar, Inc. v. Kaplan,

(D.N.H. 1993). So it is here. From the beginning of the case,

Mr. Morales has asserted that defendants Fouts and Greenwood

were involved, at least in a supervisory capacity, in the strip

search at issue. Accordingly, as to those defendants, the

TAC’s new allegations relate back to the filing of the original

complaint, and the claims against them that this court has

allowed to proceed are not barred by the statute of

limitations.

B. PLRA Exhaustion

The defendants next argue that Mr. Morales’s claims should

be dismissed because he has failed to administratively exhaust

them, as require by the PLRA. According to the PLRA, “[n]o

action shall be brought with respect to prison conditions under

section 1983 of this title, or any other Federal law, by a

prisoner confined in any jail, prison, or other correctional

facility until such administrative remedies as are available

are exhausted.” 42 U.S.C. § 1997e(a). Claims for which

administrative remedies have not been exhausted are subject to

17 dismissal. See Medina–Claudio v. Rodríguez–Mateo,

(1st Cir. 2002).

“[T]he PLRA exhaustion requirement requires proper

exhaustion.” Woodford v. Ngo,

(2006). “[A]

prisoner must file complaints and appeals in the place, and at

the time, the prison’s administrative rules require.” Acosta

v. U.S. Marshals Serv.,

(1st Cir. 2006)

(citation omitted). “Compliance with prison grievance

procedures, therefore, is all that is required by the PLRA to

‘properly exhaust.’” Jones v. Bock,

(2007)

(citation omitted).

A prisoner, however, is only required to exhaust those

administrative remedies “available” to him or her. Ross v.

Blake,

(2016). Ultimately, “an inmate

is required to exhaust those, but only those, grievance

procedures that are ‘capable of use’ to obtain ‘some relief

for the action complained of.’”

at 1859 (quoting Booth v.

Churner,

(2001)).

“[F]ailure to exhaust is an affirmative defense under the

PLRA.” Jones,

; see also Ramos v. Patnaude,

(1st Cir. 2011). As such, it “must be raised and

proved by the defense.” Cruz Berríos v. González–Rosario,

(1st Cir. 2010) (citing Jones,

). To

18 prevail on an affirmative defense of failure to exhaust at the

motion to dismiss stage of litigation, the defendant must show

that “the facts establishing the defense [are] clear ‘on the

face of the plaintiff’s pleadings.’” Trans-Spec Truck Serv.,

Inc. v. Caterpillar Inc.,

(1st Cir. 2008)

(quoting Blackstone Realty LLC v. FDIC,

(1st

Cir. 2001)).

The defendants argue that while Mr. Morales seeks

monetary damages in this court, his failure to specifically

request money damages during his administrative grievance

process requires the court to dismiss the TAC. They rely on

New Hampshire Department of Corrections policy and procedure

Directive 1.16, IV, which requires an inmate’s grievance form

to include, inter alia, “what relief or action is requested.”

It is true, as defendants argue, that prisoners must

exhaust their administrative remedies “even where the relief

sought – monetary damages – cannot be granted by the

administrative process.” Booth,

. A critical

difference between Mr. Morales and the plaintiff in Booth,

however, is that the latter filed no administrative grievance

at all. This is an important distinction in light of the

Booth Court’s observation that “one ‘exhausts’ processes, not

forms of relief.”

. More recently, in Ross, the

19 Court held that “the exhaustion requirement hinges on the

‘availability’ of the administrative remedies. An inmate . .

. need not exhaust unavailable remedies.”

.

These cases stand for the proposition that a prisoner has to

exhaust the remedies that are available, even if they are not

the ones he wants. On the current record, it appears that Mr.

Morales did exactly that. The defendants, citing no legal

authority, rely on the converse argument, i.e., that Mr.

Morales was required to raise the remedy he wanted, even if it

was not available. But Booth forecloses this argument.

“Exhaustion,” the Court noted, “makes sense only in referring

to the procedural means, not the particular relief ordered.”

. “It would, for example, be very strange

usage to say that a prisoner must . . . ‘exhaust’ his damages

award before going to court for more. . . . Would he have to

spend the money to “exhaust” the monetary relief given him?”

Finally, the Court noted that the PLRA’s broad exhaustion

requirement was meant to prevent prisoners from “skip[ping]

the administrative process simply by limiting prayers for

relief to money damages not offered through administrative

grievance mechanisms.”

. There is no argument here

that Mr. Morales “skipped the administrative process.”

20 At this stage of the litigation, and in the absence of

contrary authority, the court cannot say that “the facts

establishing the defense [are] clear on the face of the

plaintiff’s pleadings.” Trans-Spec Truck. Serv., Inc.

(internal quotation marks omitted). Accordingly,

defendants’ motion to dismiss is denied to the extent it relies

on PLRA exhaustion.

C. First Amendment Retaliation

Mr. Morales’s First Amendment claim stems from his verbal

protests against the strip search. He specifically asserts that

“Morales protested to [John] Doe 2 and advised him that strip

searches in front of female officers and large groups of male

prisoners and cameras would violate his Constitutional rights.”

TAC (Doc. No. 39) ¶ 31. Upon John Doe 2 advising Mr. Morales

that his protest should cease, id. ¶ 32, Mr. Morales “continued

to protest,” id. ¶ 33, finally obeying only when “threatened

. . . with a disciplinary report for failure to follow a direct

order if he did not comply.” Id. ¶¶ 34-35. Mr. Morales alleges

that his protest was free speech protected by the First

Amendment, id. ¶ 33, and that John Doe 2 conducted a “long, slow

and humiliating search” in retaliation for the exercise of his

First Amendment rights.

21 In order to state a First Amendment retaliation claim, a

prisoner’s complaint must assert facts “demonstrat[ing] that:

(1) he engaged in an activity protected by the First Amendment;

(2) [the prison official] took an adverse action against him;

and (3) there is a causal link between the protected activity

and the adverse action.” Staples v. Gerry,

(1st

Cir. 2019).

The defendants argue that Mr. Morales’s claim fails at the

first step – that his reaction to the strip search was not

protected speech. They cite several cases that restate the

proposition that insubordinate speech – as opposed to grievances

and litigation – is not actionable. Defs.’s Mem. (Doc. No. 52-

1) at 21-22 (citing Caffey v. Maue,

(7th

Cir. 2017) (“Insubordinate verbal remarks to prison staff are

inconsistent with the status of a prisoner”); Kervin v. Barnes,

(7th Cir. 2015) (“backtalk by prison inmates

to guards, like other speech that violates prison discipline, is

not constitutionally protected”); Smith v. Mosley,

(11th Cir. 2008) (insubordinate remarks that are

“inconsistent with the inmate’s status as a prisoner” are not

protected); Johnson v. Carroll, No. 2:08-cv-1494 KJN P.,

, at *33-34 (E.D. Cal. June 7, 2012) (verbal statements

made to corrections officers incident to strip search that were

22 “argumentative, confrontational [and] disrespectful,” amounting

to “verbal insubordination . . . was “outside the protection of

the First Amendment”); Nunez v. Ramirez, No. 09cv413WQH(BLM),

, at *4 (S.D. Cal. Mar. 24, 2010) (verbal protest

was not protected speech, because “[s]uch a direct, face-to-face

confrontation presents a danger of a disturbance and a

disruption to institutional order and discipline that a written

grievance does not”).

At this stage of the litigation, the cases cited by the

defendants cannot support the weight defendants have attached to

them. Some courts have found that certain verbal complaints can

be constitutionally protected if they involve “matters of public

concern” to all prisoners, rather than an “isolated request.”

See, e.g., Pearson v. Welborn,

(7th Cir.

2006) (complaints about general use of shackles in group therapy

and denial of yard time). Other cases have held that an “oral

grievance” can be constitutionally protected. See, e.g., Maben

v. Thelen,

(6th Cir. 2018) (oral complaint to

cafeteria worker and supervisor about inadequate portions); Mack

v. Warden Loretto FCI,

(3d Cir. 2016) (“[The

prisoner’s] oral grievance to [the prison officer] regarding the

anti-Muslim harassment he endured at work constitutes protected

activity under the First Amendment.”)

23 The tone of the prisoner’s complaint is also relevant. In

Maben, for example, the court noted plaintiff’s assertion that

he complained “politely and quietly.”

. Here,

based on the cases they rely upon, the defendants implicitly

assert that Mr. Morales’s complaints were “insubordinate,”

“backtalk,” “argumentative,” “confrontational,” and

“disrespectful.” But those are judgments that the court cannot

make in deciding a motion to dismiss, as the facts alleged in

the TAC, construed in a light most favorable to the plaintiff,

do not warrant such findings. Accordingly, defendants’ Rule

12(b)(6) motion to dismiss Mr. Morales’s First Amendment

retaliation claim (No. 6(c)) is denied.

D. Qualified Immunity

“Qualified immunity shields government officials from civil

damages liability unless the official violated a statutory or

constitutional right that was clearly established at the time of

the challenged conduct.” Reichle v. Howards,

(2012) (emphasis supplied). When qualified immunity is invoked,

the burden is on the plaintiff to show the inapplicability of

the defense. See Rivera-Corraliza v. Puig-Morales,

(1st Cir. 2015).

In determining whether a defendant has qualified immunity

“[o]n the basis of the pleadings,” the court “must decide (1)

24 whether the facts alleged or shown by the plaintiff make out a

violation of a constitutional right; and (2) if so, whether the

right was ‘clearly established’ at the time of the defendant’s

alleged violation.” Rocket Learning, Inc. v. Rivera-Sanchez,

(1st Cir. 2013) (citations and internal quotation

marks omitted). The “relevant, dispositive inquiry” in

determining whether a right is “clearly established” is “whether

it would be clear to a reasonable [officer] that his conduct was

unlawful in the situation he confronted.”

(emphasis,

citations, and internal quotation marks omitted). To show that

the right was “clearly established,” the plaintiff must point to

controlling authority or a consensus of cases of persuasive

authority that broadcasts a clear signal to a reasonable

official that certain conduct falls short of the constitutional

norm. McKenney v. Mangino,

(1st Cir. 2017)

(internal quotation marks and citations omitted), cert. denied,

(2018).

“‘[C]learly established law’ should not be defined ‘at a

high level of generality.’ . . . [T]he clearly established law

must be ‘particularized’ to the facts of the case.” White v.

Pauly,

(2017) (citation omitted). The

standard does not require a case on point but does require “a

case where an officer acting under similar circumstances” as the

25 defendant was “held to have violated” the pertinent federal

right.

Defendants’ argument in favor of qualified immunity has two

parts. First, they note that the court previously recommended a

qualified immunity finding in favor of the officers with respect

to each of Mr. Morales’s previous complaints. See March 2018

R&R (Doc. No 10); see also January 2019 R&R (Doc. No. 29).

Next, they assert that the TAC makes essentially the same claims

as the earlier complaints, so they are entitled to the same

result. Def. Mem. (Doc. No. 52-1) at 22.

Previously, Mr. Morales had alleged that the strip search

was performed:

--in the open without the use of privacy screens;

--in direct view and proximity of the other inmates;

--in direct view of a female CO who was present in the gym;

--within the view of a mounted video surveillance camera, which exposed the inmates to “voyeurism” and to the consequent danger of sexual assault, and in such a manner as one would “treat . . . an animal,”

Complaint (Doc. No. 1) ¶¶ 13-20, 30-32, 34-38, 45, et seq.

After the court recommended dismissal of his Fourth

Amendment claim based on qualified immunity, Mr. Morales added

the following allegations in the TAC:

26 [Morales] was then subjected to a long, slow and humiliating search that left him naked in front of all the aforementioned persons for an excessive amount of time, subjecting him to unnecessary humiliation, trauma and duress and forcing the plaintiff to repeat several embarrassing positions while naked.

Defendants Fouts, Greenwood and Forcier . . . witnessed the search.

TAC (Doc. No. 54) ¶¶ 36, 38.

Defendants are correct that there is little to distinguish

the new allegations for purposes of qualified immunity. But the

court’s prior qualified immunity findings were limited to

plaintiff’s Fourth Amendment claims, denoted as Claims 1(a) and

2(a). See March 2018 R&R (Doc. No 10) at 4; see also January

2019 R&R (Doc. No. 29) at 9-12. Accordingly, these defendants

are entitled to qualified immunity with respect to Mr. Morales’s

Fourth Amendment claim, denoted as Claim 6(a).

But the defendants make no specific qualified immunity

argument with respect to Claims 6(b) (Eighth Amendment) and 6(c)

(First Amendment retaliation), as denoted in the June 2019 R&R

(Doc. No. 40). Accordingly, the defendants’ motion is denied

with respect to those claims. See Casanova v. Hillsborough Cty.

Dep’t of Corr., No. 10-cv-485-JD,

, at *4 (D.N.H.

Aug. 14, 2012) (denying defendants’ claim of immunity absent

argument to support theory (citing United States v. Zannino,

(1st Cir. 1990)).

27 IV. Conclusion

For the foregoing reasons, defendants’ motion to dismiss

(Doc. No. 52) is granted in part and otherwise denied, in

that: (1) Claim 6(a) is dismissed, on the basis of the

defendant officers’ affirmative defense of qualified immunity;

and (2) all claims against defendant NHSP Sgt. Keith Forcier

are dismissed pursuant to the applicable statute of

limitations, and Sgt. Forcier is dropped as a defendant. In

all other respects, the motion to dismiss (Doc. No. 52) is

denied.

SO ORDERED.

_______________________________ Steven J. McAuliffe United States District Judge

March 24, 2020 cc: Irvin Morales, pro se Anthony Galdieri, Esq. Lawrence Edelman, Esq.

28