UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Joseph Crocco

v. Civil No. 19-cv-882-LM Opinion No.

Richard Van Wickler et al.

O R D E R

Before the court is Joseph Crocco’s amended complaint.

Crocco asserts that defendants violated his Eighth Amendment

rights while he was in the custody of the Cheshire County

Department of Corrections (the “DOC”).1 Crocco’s amended

complaint is subject to preliminary review pursuant to 28 U.S.C.

§ 1915A.

The court previously granted Crocco leave to amend his

pleading to clarify the basis for his claims against the

defendants.2 On July 9, 2020, Crocco filed a statement of facts

(doc. no. 8) that he apparently intended to serve that purpose.

1 Crocco is currently in the custody of Federal Correctional Institution, Williamsburg.

2 Crocco brings his claims against DOC Superintendent Richard Van Wickler, DOC psychologist Barnes Peterson, DOC Sergeant Michael Oulette, DOC Captain Thomson (first name unknown), DOC Major James Erwin, DOC Sergeant McKim Mitchell, and DOC Sergeant Jeremy France. Each defendant is sued in both his official and individual capacities. The court construes Crocco’s filing of July 9 as supplementing

rather than superceding his originally filed complaint, and

accordingly construes doc. nos. 1 and 8 as collectively

constituting his amended complaint.

PRELIMINARY REVIEW STANDARD

The court conducts a preliminary review of prisoner

complaints filed by inmates seeking relief from government

officials. See 28 U.S.C. § 1915A. In determining whether a pro

se pleading states a claim, the court construes the pleading

liberally. See Erickson v. Pardus,

(2007).

Disregarding allegations constituting legal conclusions, the

court considers whether the factual content in the pleading and

inferences reasonably drawn therefrom, taken as true, state a

facially plausible claim to relief. Hernandez-Cuevas v. Taylor,

(1st Cir. 2013) (citing Ashcroft v. Iqbal,

(2009)). Following preliminary review, the

court must dismiss a prisoner’s claims sua sponte if the court

determines that it lacks subject-matter jurisdiction, that the

defendant is immune from the requested relief or from suit, or

that the complaint fails to state a claim upon which relief can

be granted. See 28 U.S.C. § 1915A(b); Fed. R. Civ. P. 12(h)(3).

2 BACKGROUND

Crocco alleges that on September 25, 2017, while he was

being held at the DOC, he was convicted and sentenced for an

unspecified crime. After he learned of his conviction, he

advised other DOC inmates that he intended to take his own life.

Those inmates reported Crocco’s suicidal ideation to Sergeant

Oulette, the DOC shift supervisor. Crocco believes that,

pursuant to DOC policy, such reports are forwarded to DOC

psychologist Peterson, who is then required to interview the

inmate. Crocco additionally believes that it is DOC policy for

Peterson to interview all inmates at the conclusion of their

trials. Peterson did not, however, interview Crocco either to

investigate his possible suicidal ideation or to check in with

him after the conclusion of his trial. Crocco alleges that

Peterson had actual knowledge that Crocco feared that he could

not survive a prison sentence, and that in light of this

knowledge, Peterson’s failure to interview him constituted

deliberate indifference to his safety.

After receiving the report that Crocco intended to take his

own life, Sergeant Oulette observed Crocco giving all of his

belongings away to other inmates. Sergeant Oulette asked Crocco

how he was doing, and stated that he had heard that Crocco had

“had a bad day.” Crocco told Sergeant Oulette to leave, and

Sergeant Oulette complied. Sergeant Oulette did not order

3 Crocco isolated or placed on suicide watch. Crocco alleges that

Sergeant Oulette had actual knowledge of Crocco’s history of

mental health issues, in light of which his failure to take more

effective measures constituted deliberate indifference to the

risk that Crocco would harm himself.

Either that same evening or the following morning, Sergeant

Oulette reported Crocco’s suicidal ideation to Captain Thomson.

Captain Thomson briefed some of the duty officers (including

Sergeants Mitchell and France) regarding Crocco’s situation.

Crocco believes that Major Erwin, Superintendent Van Wickler,

and Peterson may have been present at the briefing.

Crocco slept in his cell that night. In the morning,

Crocco approached duty officers Sergeants Mitchell and France to

request a shaving razor. Although the officers had been briefed

regarding Crocco’s suicidal ideation, they gave him the razor,

first receiving authorization to do so from Major Erwin.

Crocco returned to his cell, where he shaved his face.

Crocco then used the razor blade to cut two deep incisions into

his carotid artery. After making the cuts, Crocco turned out

the light in his cell, got in his bunk, and pulled blankets over

his head. Shortly thereafter, he lost consciousness. When he

awoke, he was in a hospital bed, having received medical

attention while unconscious.

4 Crocco attaches a number of DOC incident reports as

exhibits to his complaint. Those reports tend to confirm that

inmates reported Crocco’s suicidal ideation to Sergeant Oulette,

that Sergeants Mitchell and France had been briefed by Captain

Thomson regarding Crocco’s intent to take his own life, and that

Sergeants Mitchell and France provided him with a razor after

receiving authorization to do so from Major Erwin. There is no

suggestion in the reports that either Superintendent Van Wickler

or Peterson was present at any briefing where Crocco’s situation

was discussed.

The reports state that after giving Crocco the requested

razor, Sergeants Mitchell and France increased the frequency of

their checks on Crocco. The reports indicate that Sergeants

Mitchell and France observed the light go off in Crocco’s cell

at 8:33 a.m. on September 26, 2017, and that at approximately

8:41 a.m. Sergeant France entered Crocco’s cell to check on him.

The reports indicate that when Sergeant France found Crocco

unconscious and bleeding from the neck, he called for medical

assistance. The reports indicate that Crocco received emergency

medical care from DOC medical personnel until the arrival of an

ambulance. Medical personnel then transported Crocco to a

hospital for further care.

5 DISCUSSION

A public official’s deliberate indifference to the strong

likelihood that a prisoner will inflict harm upon himself

violates the Eighth Amendment's prohibition against cruel and

unusual punishment. Torraco v. Maloney,

(1st

Cir. 1991); see also, e.g., Cortes-Quinones v. Jimenez-

Nettleship,

(1st Cir. 1988). “To

demonstrate deliberate indifference a plaintiff must show (1) a

grave risk of harm, (2) the defendant's actual or constructive

knowledge of that risk, and (3) his failure to take easily

available measures to address the risk.” Camilo-Robles v.

Hoyos,

(1st Cir. 1998). The crux of the

deliberate indifference determination in the context of prison

suicide is whether the prison officials knew or should have

known about the prisoner’s suicidal tendencies. Torraco,

.

Crocco’s only allegation regarding Superintendent van

Wickler’s actual or constructive knowledge of the risk that

Crocco would harm himself is that he believed the Superintendent

might have been present when Captain Thomson briefed the duty

officers. Crocco offers no allegation that Superintendent Van

Wickler had easily available measures he could have taken to

prevent the risk to Crocco which he failed to take. None of

Crocco’s allegations reasonably supports the conclusion that

6 Superintendent Van Wickler was deliberately indifferent to

Crocco’s safety. Because Crocco’s amended complaint fails to

state a claim against Superintendent Van Wickler as to which

relief can be granted, Crocco’s Eighth Amendment claim against

the Superintendent is subject to dismissal on preliminary

review.

By contrast, Crocco alleges the existence of two DOC

policies pursuant to which DOC psychologist Peterson should have

been aware of the risk to Crocco’s safety: a policy requiring

that suicide risks be reported to him and a policy requiring him

to interview inmates at the conclusion of their trials. Crocco

further alleges that Peterson was actually aware that Crocco

suffered from mental health issues, and should therefore have

understood that Crocco was at significant risk of self-harm. If

the truth of Crocco’s allegations were established, a finder of

fact could reasonably conclude that Peterson had actual or

constructive knowledge of the risk to Crocco. Moreover, as a

DOC psychologist, Peterson had available measures to him

(including isolating Crocco or placing him on suicide watch)

that could have mitigated the risk. Crocco’s allegations are

therefore at least minimally sufficient to state a claim against

Peterson at this early stage of these proceedings.

Crocco clearly alleges that Sergeant Oulette learned about

Crocco’s suicidal ideation from other inmates (and corroborated

7 their reports with his own observations), and that he reported

the risk to Captain Thomson. Crocco appears to base his claim

against Sergeant Oulette on the theory that the Sergeant

displayed deliberate indifference by merely passing information

about the risk to Crocco up the chain of command rather than by

taking the initiative to order Crocco into isolation or suicide

watch on his own authority. In light of Crocco’s allegation

that Sergeant Oulette had actual knowledge of Crocco’s history

of mental health problems, these allegations are at least

minimally sufficient to support an Eighth Amendment claim at

this pleading stage of proceedings.

Similarly, Captain Thomson had clear authority to order

precautionary measures such as isolation or suicide watch but

declined to do so. Crocco’s allegations against Captain Thomson

are therefore at least minimally sufficient for his claim to

survive preliminary review.

As to Major Erwin and Sergeants Mitchell and France,

Crocco’s allegations are that all three had been briefed

regarding his suicidal ideation and knew that he was at

significant risk of self-harm. Crocco alleges that after he

asked that the Sergeants provide him with a razor, they asked

Major Erwin how to proceed, and he directed them to provide the

requested razor. The exhibits to Crocco’s amended complaint

indicate that after providing the razor, the Sergeants increased

8 the frequency of their surveillance of Crocco’s activities, and

that they responded swiftly and appropriately within minutes

after Crocco harmed himself.

The allegations and exhibits clearly support a claim

against Major Erwin. The DOC incident reports attached as

exhibits to Crocco’s complaint establish that, at the time he

gave his authorization, Major Erwin was aware of at least some

degree of risk that Crocco would attempt to harm himself, and he

could easily have ordered the Sergeants not to provide the

requested razor or to allow him to use it only under close

supervision. Major Erwin nevertheless authorized the Sergeants

to provide Crocco with a razor. This is sufficient to support

the conclusion that Major Erwin demonstrated deliberate

indifference to Crocco’s safety.

Although it is a closer call, the allegations are likewise

at least minimally sufficient to support an Eighth Amendment

claim against the Sergeants. Sergeants Mitchell and France had

been briefed regarding the risk that Crocco would harm himself.

The court acknowledges that Crocco’s request for a razor was

approved by the Sergeants’ superior officer; the court further

acknowledges that the Sergeants took some measures calculated to

mitigate the risk to Crocco when they increased their

surveillance checks. However, the most obvious and easily

available measures to safeguard Crocco from harm would have been

9 either to refuse to provide him with a razor or to permit him to

use the razor only under close supervision. Construing Crocco’s

allegations in the light most favorable to him, provision of a

razor to an inmate known to be a suicide risk could constitute

deliberate indifference to a grave risk of harm to the inmate.

Moreover, at this stage of these proceedings it is not

clear on the face of Crocco’s amended complaint that any of the

defendants enjoy qualified immunity from suit.3 It is well

established in the First Circuit that deliberate indifference to

the risk that an inmate would attempt suicide is an actionable

violation of an inmate’s constitutional rights. See, e.g.,

Bowen v. City of Manchester,

(1st Cir. 1992).

In consequence, the First Circuit has found that an official is

not entitled to qualified immunity where the official had actual

knowledge of an unusually serious risk of self-inflicted harm

but failed to take obvious steps to address the risk. See

At this stage of proceedings, Crocco’s allegations are

sufficient to avoid dismissal at the stage of preliminary review

on qualified immunity grounds.

The court accordingly finds that Crocco’s Eighth Amendment

claims against Peterson, Sergeant Oulette, Captain Thomson,

3 The court makes no finding as to whether some or all of the defendants may ultimately be able to establish, on the basis of a fully developed record, that they are entitled to qualified immunity.

10 Major Erwin, Sergeant Mitchell, and Sergeant France are

sufficiently stated and supported in the amended complaint to

allow them to proceed. By allowing these claims to proceed at

this stage, the court finds only that those claims are

sufficiently stated to allow Crocco to initiate this action, and

to require the defendants to respond to the complaint after they

are served. At this early stage of the proceedings, the court

does not make any finding as to the merits of Crocco’s claims or

of any defenses the defendants may raise.

CONCLUSION

For these reasons, Crocco’s Eighth Amendment claim against

Superintendent Van Wickler is dismissed without prejudice.

Crocco’s claims are allowed to proceed against Peterson,

Sergeant Oulette, Captain Thomson, Major Erwin, Sergeant

Mitchell, and Sergeant France. The court directs the clerk’s

office to prepare summonses for, and serve, those defendants at

the DOC address: 825 Marlboro St, Keene, NH 03431. See

(d); Fed. R. Civ. P. 4(e) and 4(j). The clerk’s

office is further directed to forward to the United States

Marshal for the District of New Hampshire (the “U.S. Marshal’s

office”), the summonses, copies of this Order, and the amended

complaint (doc. nos. 1 and 8). Upon receipt of the necessary

documentation, the U.S. Marshal’s office shall serve process

11 upon the defendants listed above, pursuant to Fed. R. Civ. P.

4(c)(3), 4(e), and 4(j).

Defendants are instructed to answer or otherwise plead

within twenty-one days of service. See Fed. R. Civ. P.

12(a)(1)(A).

After the complaint is served, Crocco may serve documents

on defendants, or their attorneys who have appeared in this

action, in accordance with Fed. R. Civ. P. 5(b) or AP 2.8(b).

Thus, as to any party or attorney who is not registered to use

the court’s electronic filing system, Crocco may serve all

future pleadings, written motions, notices, or similar papers

directly on defendants by delivering or mailing the materials to

defendants or their attorney(s), pursuant to Fed. R. Civ. P.

5(b). As to any attorney or party that is registered to use the

court’s electronic filing system, Crocco need not serve a hard

copy of his filings on that party or attorney, as a party using

the electronic filing system will receive notice when Crocco’s

documents are filed in the court, so mailing a hard copy of the

same filing to that party or attorney is unnecessary. AP 2.8(b)

does not cover discovery requests and responses, however, which

means that copies of certain Rule 26 disclosures, discovery

requests, and responses must still be mailed to other parties or

their attorneys, pursuant to Fed. R. Civ. P. 5(d)(1). A

12 certificate of service must be included with all filings, in

accordance with Fed. R. Civ. P. 5(d)(1) and LR 5.1(d).

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

August 10, 2020

cc: Counsel of Record

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