United States District Court, D. New Hampshire
ANDREA K. JOHNSTONE, Magistrate Judge.
New Hampshire State Prison ("NHSP") inmate John Barber has filed a complaint (doc. no. 1), which is before the court for preliminary review, pursuant to 28 U.S.C. § 1915A(a) and LR 4.3(d)(1). In his complaint, Barber has also requested preliminary injunctive relief. That request has been referred to this magistrate judge for a report and recommendation. See Order (July 2, 2015) (doc. no. 4).
On February 19, 2015, plaintiff John Barber was housed in the NHSP's Secure Housing Unit ("SHU"). Another inmate, Jason Chapman, was placed in Barber's cell. Within minutes of moving into the cell, Chapman assaulted Barber, punching him in the face and breaking his nose. Chapman then told Barber to inform the corrections officials on SHU that Barber had to be moved out of the cell.
Approximately fifteen minutes later, Cpl. Michael Miller came to plaintiff's tier on SHU to deliver medications. Barber told Miller that he did not feel safe in his cell and needed to be moved. Miller asked to see Barber's face and saw that Barber appeared to have been recently punched and that his nose was broken. Miller then asked to see Chapman's right fist, and noted that it was swollen, and that Barber and Chapman had been fighting.
Miller then continued to deliver medications on the tier, told Barber and Chapman he'd be back "in a minute, " and left. Once he was gone, Chapman punched Barber once on the side of his face, causing minor swelling. Several minutes later, multiple officers arrived and removed both Barber and Chapman from the cell. Barber was then taken to the NHSP's Health Services Center.
I. Preliminary Review
A. Preliminary Review Standard
In determining whether a pro se pleading states a claim, the court construes the pleading liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Disregarding any 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, 723 F.3d 91, 102-03 (1st Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
B. Failure to Protect
Barber claims that by not removing him from his cell immediately upon Barber's request, Miller violated Barber's right to be protected from harm. Under the Eighth Amendment, "prison officials have a duty... to protect prisoners from violence at the hands of other prisoners." Giroux v. Somerset Cty., 178 F.3d 28, 32 (1st Cir. 1999) (internal quotation marks and citations omitted). "Prison officials... must take reasonable measures to guarantee the safety of the inmates." Id. at 31 (internal quotation marks and citations omitted).
To state an Eighth Amendment failure to protect claim, the prisoner must show that a prison official acted with "deliberate indifference'" to a serious risk to the prisoner's health or safety. Id. at 32 (quoting Farmer, 511 U.S. at 828). "[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they respond reasonably to the risk, even if the harm was not ultimately averted." Farmer, 511 U.S. at 844 (internal quotation marks and citation omitted).
Barber alleges sufficient facts to demonstrate that he was subject to a risk of serious harm as long as he remained in a cell with Chapman. Further, Barber alleges that Miller became aware of that risk when Miller saw him in his cell with Chapman while he was passing out medications, and noted Barber's broken nose and Chapman's swollen fist. Accordingly, the complaint states sufficient facts to demonstrate ...