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John J. Sweeney, Jr. v. New Hampshire State Prison*Fn1

October 26, 2012

JOHN J. SWEENEY, JR.
v.
NEW HAMPSHIRE STATE PRISON*FN1



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

ORDER

John J. Sweeney, Jr., an inmate at the New Hampshire State Prison ("NHSP") has commenced this action, alleging violations of his First and Eighth Amendment rights. Sweeney's pleadings (doc. nos. 1 and 7) also assert a request for preliminary injunctive relief. The matter is before the court for preliminary review to determine whether it states any claim upon which relief might be granted. See 28 U.S.C. § 1915A(a); United States District Court District of New Hampshire Local Rule ("LR") 4.3(d)(2). Also before the court are Sweeney's motion to reconsider (doc. no. 7), seeking reversal of this court's designation of this action as a civil case, and the request for preliminary injunctive relief contained in Sweeney's complaint (doc. no. 1). See Order (doc. no. 6) (referring request for preliminary injunctive relief to the magistrate judge for a report and recommendation).

Motion to Reconsider (Doc. No. 7)

Sweeney initially titled this action: "Writ of Mandamus for Services/Motion for Immediate-Emergency Medical Treatment and Care by Speicialist(s) [sic]" (doc. no. 1). The court has construed this document as a complaint in a civil action filed pursuant to 42 U.S.C. § 1983, containing a request for a preliminary injunction. Sweeney seeks reconsideration of this designation. Alternatively, Sweeney asks the court either to dismiss this action with prejudice or to allow him a 200-day continuance to prepare to litigate this matter.

A petition for a writ of mandamus is pursued via the Mandamus and Venue Act, 28 U.S.C. § 1361 ("MVA"), which provides that "the district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." By its terms, the MVA only authorizes this court to issue writs of mandamus to compel federal employees or officers to perform certain duties. The defendants in this case are all state actors, and the MVA does not provide this court with the authority to direct or compel state actors to perform any act.

To the extent a plaintiff seeks a court order directing state defendants to act, or refrain from acting, in a particular matter, such a request is ordinarily made by plaintiff moving for a preliminary injunction pursuant to Fed. R. Civ. P. 65(a). Here, the court has construed the complaint (doc. no. 1), to include such a request.

Civil actions, such as this one, seeking relief against state actors for alleged violations of a plaintiff's constitutional rights, are cognizable under 42 U.S.C. § 1983. The court has evaluated Sweeney's pleadings (doc. nos. 1 and 7), which seek relief for alleged violations of Sweeney's constitutional rights by state actors, and construed his action to have been properly characterized as one raised pursuant to § 1983.*fn2

The request to reconsider (doc. no. 7), is denied. The denial is without prejudice to renewal should Sweeney still wish not to proceed with prisoner civil rights claims asserted under § 1983 at this time.

Preliminary Review

I. Standard

Pursuant to LR 4.3(d)(2) and 28 U.S.C. § 1915A(a), the magistrate judge conducts a preliminary review of pro se in forma pauperis prisoner complaints before defendants have an opportunity to respond to the claims. The magistrate judge may direct service of the complaint, or, as appropriate, recommend to the district judge that one or more claims be dismissed if: the court lacks subject matter jurisdiction, a 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 28 U.S.C. § 1915A(b); LR 4.3(d)(2).

In determining whether a pro se prisoner complaint states a claim, the court must construe the complaint liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). To survive preliminary review, the complaint must contain "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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Sepulveda-Villarini v. Dep't of Educ., 628 F.3d 25, 29 (1st Cir. 2010). To determine plausibility, the court treats as true all well-pleaded factual allegations, and construes all reasonable inferences drawn therefrom in the plaintiff's favor. See Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011).

II. Background

A. Beating

Sweeney alleges that on October 4, 2011, he was badly beaten by NHSP Corrections Officer Stephen Sullivan. Sweeney states that Sullivan "smashed" Sweeney twice in the chest while holding handcuffs in his fist. Eight hours later, Sweeney was taken to the NHSP's Health Services Center ("HSC"). Sweeney has not specified or described the nature of any injury he may have sustained as a result of the alleged beating.

Sweeney immediately reported the beating to an unnamed NHSP official. Sweeney claims that since making his report, he has been followed, harassed, and assaulted by unnamed NHSP officers. Sweeney also claims that Sullivan assaulted him ...


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