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Duane Leroy Fox v. Superintendent

January 17, 2012


The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge


Duane Leroy Fox has filed a complaint (doc. no. 1) seeking damages against the superintendent of the Strafford County Department of Corrections ("SCDC") for alleged violations of Fox's constitutional rights during his incarceration at that facility. The matter is before the court for preliminary review to determine whether the complaint states any claim upon which relief might be granted. See 28 U.S.C. § 1915A(a); United States District Court for the District of New Hampshire Local Rule ("LR") 4.3(d)(2).

Fox has also filed several motions for the court's consideration. Fox has filed two motions seeking court-appointed counsel (doc. nos. 8 and 14), a motion for a temporary restraining order (doc. no. 13), a motion to amend his complaint (doc. no. 15), and a motion requesting the production of documents (doc. no. 16). The motions for court-appointed counsel, to amend the complaint, and for discovery are addressed herein. The motion for a temporary restraining order will be addressed in a separately issued report and recommendation.

Standard of Review

Under LR 4.3(d)(2), when an incarcerated plaintiff or petitioner commences an action pro se, the magistrate judge conducts a preliminary review. The magistrate judge may issue a report and recommendation after the initial review, recommending that claims be dismissed if the court lacks subject matter jurisdiction, the defendant is immune from the relief sought, the complaint fails to state a claim upon which relief may be granted, the allegation of poverty is untrue, or the action is frivolous or malicious. See id. (citing 28 U.S.C. § 1915A & Fed. R. Civ. P. 12(b)(1)). In conducting a preliminary review, the magistrate judge construes pro se pleadings liberally, to avoid inappropriately stringent rules and unnecessary dismissals. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976), to construe pleadings liberally in favor of pro se party); Castro v. United States, 540 U.S. 375, 381 (2003).

To determine if the complaint states any claim upon which relief could be granted, the court applies a standard analogous to that used in reviewing a motion to dismiss filed under Fed. R. Civ. P. 12(b)(6). The court decides whether the complaint contains sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S. Ct. 1937, 1949 (2009).

To make this determination, the court employs a two-pronged approach. See Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). The court first screens the complaint for statements that "merely offer legal conclusions couched as fact or threadbare recitals of the elements of a cause of action." Id. (citations, internal quotation marks and alterations omitted). A claim consisting of little more than "allegations that merely parrot the elements of the cause of action" may be dismissed. Id. The second part of the test requires the court to credit as true all non-conclusory factual allegations and the reasonable inferences drawn from those allegations, and then to determine if the claim is plausible. Id. The plausibility requirement "simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence" of illegal conduct. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). The "make-or-break standard" is that those allegations and inferences, taken as true, "must state a plausible, not a merely conceivable, case for relief." Sepulveda-Villarini v. Dep't of Educ., 628 F.3d 25, 29 (1st Cir. 2010); see Twombly, 550 U.S. at 555-56 ("Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." (internal citations and footnote omitted)).

Evaluating the plausibility of a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at ___, 129 S. Ct. at 1950 (citation omitted). In doing so, the court may not disregard properly pleaded factual allegations or "attempt to forecast a plaintiff's likelihood of success on the merits." Ocasio-Hernandez, 640 F.3d at 13. "The relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw from the facts alleged in the complaint." Id.


On June 28, 2010, Duane Leroy Fox, a federal prisoner, was housed at the SCDC awaiting an out-of-state transfer. SCDC staff placed Fox in E-Pod, a protective custody unit. Because E-Pod had no empty cells, Fox was placed in the dayroom. There was no restroom in the dayroom, and Fox therefore had to use the restroom in another inmate's cell.

An inmate who lived in cell 107 on E-Pod offered to leave his cell door open so that Fox would have access to the restroom in that inmate's cell. Fox and the other inmate became friendly. During conversations between the two, the other inmate confided in Fox that he was in jail for having sex with an underage male whom he had believed to be of age. The other inmate also told Fox that he was a martial artist and that he had a black belt.

One day, the other inmate gave Fox a note stating: "go to my cell, pull your pants down, or else!" Fox was afraid of the other inmate due to the inmate's martial arts training, and therefore complied with the directive in the note. Fox went into the other inmate's cell where he was forced to perform oral sex on the other inmate. This occurred for six days in a row. On one occasion, the other inmate tried to perform oral sex on Fox, but Fox was unable to become aroused.

While these forced sexual acts were occurring, Fox stopped eating. Fox was sent to mental health because he was not eating. Fox informed a mental health worker of the other inmate's sexual assaults on him. Fox was then removed from EPod and placed into an isolation cell on suicide watch. Fox was interviewed by members of the Strafford County Sheriff's Department and the prosecutor's office about what had occurred. Fox was removed from the SCDC the following day.

Fox states that he is a homosexual, and has a history of mental health issues and self-destructive tendencies. Fox states that the staff and mental health professionals at the SCDC were aware of his mental health issues and his homosexuality. Fox states that SCDC officials should therefore have placed him in an isolation cell immediately upon his entry to the SCDC.


I. The Claim

A government official may be held personally liable under 42 U.S.C. ยง 1983 if, acting under color of state law, the official caused the deprivation of a federal constitutional or ...

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