UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

James Covington

v. Civil No. 19-cv-384-JD Opinion No.

Veronica Paris

O R D E R

James Covington, who is proceeding pro se and is an inmate

at the New Hampshire State Prison for Men, brings a claim

against Veronica Paris, pursuant to

, alleging

that she sexually assaulted him at the prison in violation of

the Eighth Amendment when she worked there as a nurse. Paris,

who is also proceeding pro se, moves to dismiss the claim

against her. Covington objects.

The complaint was previously reviewed pursuant to

(e)(2) and Local Rule 4.3(d)(1) to determine whether

Covington asserted any claim on which relief might be granted.

Doc. no. 11. Under the preliminary review standard, the

magistrate judge construed the complaint liberally and took the

properly pleaded allegations as true and in the light most

favorable to Covington. Id. at *3. The magistrate judge

concluded that Covington had stated a claim against Paris that she violated his Eighth Amendment rights.1 Id. at *7. The

report and recommendation was approved. Doc. no. 15.

A. Motion to Dismiss/Judgment on the Pleadings

Because Paris has filed her answer, her motion is construed

as a motion for judgment on the pleadings under Federal Rule of

Civil Procedure 12(c) rather than a motion to dismiss under Rule

12(b)(6). Parker v. Landry,

(1st Cir. 2019).

Under Rule 12(c), the court takes the factual allegations in the

complaint as true and in the light most favorable to the

plaintiff and determines whether the plaintiff has pleaded

sufficient facts to state a plausible claim for relief.

Villeneuve v. Avon Prods., Inc.,

(1st Cir.

2019). To allege a plausible claim, the plaintiff must include

sufficient facts to raise the claim above speculation based on

both judicial experience and common sense.

In support of her motion, Paris disputes the allegations in

the complaint and contends that the events alleged did not

happen. She also contends that the prison did not properly

investigate Covington’s report against her. In his objection,

Covington reiterates the allegations in his complaint and refers

to an investigation that was done in the prison in response to

1 The claims against other defendants were dismissed.

2 his report of his relationship with Paris. He also refers to a

decision issued by a state judge.2

As is stated above, a motion for judgment on the pleadings

is decided based on the allegations in the complaint, which are

taken as true and all reasonable inferences are resolved in the

plaintiff’s favor. To succeed on the motion, Paris would have

to show that Covington’s allegations in the complaint, taken as

true, do not state an Eighth Amendment violation. Paris’s

denials of those allegations are insufficient to support a

motion for judgment on the pleadings. In addition, the court

does not consider extrinsic evidence, except in certain limited

circumstances, in deciding a motion for judgment on the

pleadings. Therefore, Paris’s motion, which disputes the

allegations in the complaint, cannot succeed under Rule 12(c).

B. Covington’s Claim against Paris

Covington alleges that he and Paris had a sexual

relationship for more than five years. During that time, he was

an inmate at the prison, and Paris was a nurse working in the

Health Services Center. Covington alleges that he and Paris

engaged in sexual activity on the nights that she was working

2 Covington previously filed a copy of a notice about the investigation, not the actual results of the investigation, and filed one page of the state court decision.

3 alone and he was cleaning offices and floors without

supervision. He further alleges that their relationship

violated his Eighth Amendment rights.

The standard for proving an Eighth Amendment violation is

provided in the report and recommendation. Doc. no. 11, at *4.

To prove his claim at trial, Covington bears the burden of

producing evidence to show, by a preponderance of the evidence,

that his relationship with Paris was “objectively, sufficiently

intolerable and cruel, capable of causing harm, and [that Paris

had] a culpable state of mind.” Drumgo v Kuschel,

, 118 (3d Cir. 2020); Ullery v. Bradley,

(10th Cir. 2020); Chao v. Ballista,

(D.

Mass. 2011). To refute Covington’s claim of an Eighth Amendment

violation, Paris must either show that Covington lacks evidence

to prove his claim or provide evidence to show that the sexual

relationship Covington asserts did not occur, was not

objectively sufficiently intolerable or cruel to violate the

Eighth Amendment, or that she did not have a culpable state of

mind. Evidence that an inmate consented to a sexual

relationship is relevant to whether the sexual activity was

sufficiently intolerable and cruel to violate the Eighth

Amendment. See, e.g., Wood v. Beauclair,

(9th Cir. 2012); Freitas v. Ault,

(8th Cir.

4 1997); Rotchford v. Davies, 19-cv-05154-RBL-JRC,

, at *3 (W.D. Wash. April 25, 2019) (citing cases).

In addition, Paris may be entitled to qualified immunity.

“Government officials sued in their individual capacities are

immune from damages claims unless ‘(1) they violated a federal

statutory or constitutional right, and (2) the unlawfulness of

their conduct was clearly established at the time.’” Irish v.

Fowler,

(1st Cir. 2020) (quoting District of

Columbia v. Wesby,

(2018)). “When a

defendant invokes qualified immunity, the burden is on the

plaintiff to show that the defense is inapplicable.” Escalera-

Salgado v. United States,

(1st Cir. 2018).

If Paris invokes qualified immunity from Covington’s claim

that her actions violated his Eighth Amendment rights, to

overcome the immunity, Covington must show that his Eighth

Amendment right was clearly established during the time of their

relationship. Norton v. Rodrigues,

(1st Cir.

2020). To meet that requirement, Covington must show that

controlling legal authority or a consensus of cases exists that

would have notified a reasonable official in Paris’s position

about what conduct would violate the Eighth Amendment.

The

court must then determine whether a reasonable official in

Paris’s position would have known that her actions would violate

5 Covington’s rights.

If Paris is entitled to qualified

immunity, the case will be dismissed.

C. Summary Judgment

In contrast to a motion for judgment on the pleadings, a

motion for summary judgment is decided based on evidence rather

than mere allegations. For that reason, the allegations in the

complaint are not accepted as true and instead the motion is

decided based on the evidentiary record. That is the more

appropriate context in which to test the claim in this case.

A party may move for summary judgment on a claim or part of

a claim or a defense. Fed. R. Civ. P. 56(a). The court will

grant a motion for summary judgment if the moving party “shows

that there is no genuine dispute as to any material fact and

[that the moving party] is entitled to judgment as a matter of

law.” Id.

1. Requirements of Rule 56

In moving for or objecting to summary judgment, a party

cannot rely on the allegations in the complaint. Instead, a

party must support its position or argument by citing to

documents, affidavits, declarations, or other materials that are

submitted with the motion or the objection. Fed. R. Civ. P.

56(c). The materials submitted must be in a form that would be

6 admissible in evidence. Id. A copy of Rule 56 is appended to

this order.

Affidavits or declarations may be used to support or oppose

a motion for summary judgment. To be considered, however, an

affidavit or declaration must be based on the person’s own

personal knowledge, provide facts that would be admissible in

evidence, and show that the person is competent to testify to

the facts stated. Fed. R. Civ. P. 56(c)(4). In addition, the

truth of the facts stated in an affidavit must be sworn to

before an appropriate official, such as a notary public, or the

statement must be in the form of an unsworn declaration under

that declares the facts to be true under penalty

of perjury and is signed by the declarant. See, e.g., Naes

Corp. v. Coastal Resources of Maine, LLC,

, at *2

(D. Me. Dec. 8, 2020).

An attestation that the declarant signed the document is

not sufficient to make the document an affidavit or an unsworn

declaration under § 1746.3 The affiant must swear to his or her

personal knowledge and the truth of the facts stated or sign

under penalty of perjury. As a note of caution, although an

affidavit does not necessarily include the language that it is

3 For example, Paris’s motion to dismiss is not an affidavit because it lacks the necessary statements about her personal knowledge and the truth of the facts stated.

7 signed under penalty of perjury, a material falsehood in a sworn

affidavit may constitute perjury. See

.

To the extent either party relies on other documents in

support of or in opposition to summary judgment, that party must

show that the document could be admitted in evidence. For

example, submitting only one page from a state court decision is

not admissible evidence. The court also cannot consider a

party’s statements about what an investigation did or did not

find or about the integrity of the investigation. Instead, the

party relying on the investigation must provide a copy of the

investigation report or an affidavit or deposition testimony

from the investigator. A party disputing the investigation must

provide evidence to support the asserted grounds for the

dispute. Similarly, to the extent a party relies on information

from someone else, that information must be submitted in the

form of an affidavit or deposition testimony from that person.

2. Requirements of Local Rule 56.1

In this district, motions for and objections to summary

judgment are also governed by Local Rule 56.1. Under LR 56.1, a

motion for and an objection to summary judgment must include a

memorandum in support with a statement of material facts and

citations to supporting materials in the record. A copy of that

rule is appended to this order.

8 C. Schedule

Under the parties’ discovery plan, the deadline for motions

for summary judgment is June 7, 2021.

D. Representation

Both parties are proceeding pro se in this case. The

claim, potential defenses, and discovery process raise

challenging issues for pro se parties. Trial would also pose

challenges for the pro se parties. The court encourages both

parties to seek counsel to represent them in this case.

Conclusion

For the foregoing reasons, the defendant’s motion to

dismiss (document no. 53) is denied.

Either party may file a properly supported motion for

summary judgment on or before June 7, 2021.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge January 7, 2021

cc: James Covington, pro se. Veronica Paris, pro se.

9