United States District Court, D. New Hampshire
SUPPLEMENTAL REPORT AND RECOMMENDATION
ANDREA K. JOHNSTONE, Magistrate Judge.
This Supplemental Report and Recommendation ("Supplemental R&R") is issued in response to the June 22, 2015, Order (doc. no. 105), which directed the magistrate judge to reconsider whether to add to this action new Eighth Amendment excessive force claims against new defendants, New Hampshire State Prison ("NHSP") Officer Forcier, Capt. Fiorillo, and Sgt. Carroll, through allegations summarized in the May 11, 2015, Service Order (doc. no. 85) as Claim 9. This Supplemental R&R supplements the May 11, 2015, R&R ("May 11 R&R") (doc. no. 84), Part III, concerning plaintiff Frank Staples's "Amended and Supplemental Complaint" (doc. no. 63).
Document No. 63, construed liberally, in pertinent part, seeks to add new Eighth Amendment excessive force claims to this action against Fiorillo, Forcier, and Carroll, who were not previously named as parties. The allegations at issue, pleaded by Staples in paragraphs 45-48 and 51-52 of the "Amended and Supplemental Complaint" (doc. no. 63), were previously summarized and identified as Claim 9 in the May 11, 2015, Order (doc. no. 85), directing service upon the new defendants ("May 11 Service Order"). Those excessive force claims are described in greater detail below:
9. Defendants are liable for violating Staples's Eighth Amendment rights, for using force to cause harm, maliciously or sadistically, in a manner unjustified by the need to maintain or restore discipline, in that:
A. Sgt. Carroll tazered plaintiff on February 9, 2012, and caused plaintiff to be thrown to the floor and kicked, while plaintiff was naked and defenseless, because plaintiff had refused to comply with an order to cuff up while protesting his inability to access dictionaries and self-help/religious texts;
B. On April 10, 2012, unnamed officers used excessive force in executing Dr. Daniel Potenza's order that plaintiff be removed from his cell, in tazering plaintiff while he was lying in his bed, carrying him to the Health Services Center, and ripping off his clothes;
C. Capt. Fiorillo caused plaintiff to be tazered by Officer Forcier in November 2012, while plaintiff stood naked with his hands up, because plaintiff had refused to perform a body cavity search upon himself.
Document No. 63 also added a disability discrimination claim, under the Rehabilitation Act and Title II of the Americans with Disabilities Act ("ADA"), against the New Hampshire Department of Corrections ("DOC"), for actions taken by officers and agents of the DOC, NHSP, and Adult Parole Board ("APB"), involving Staples, after November 22, 2011, as alleged more fully in Document No. 63. The May 11 Service Order (doc. no. 85) identified that claim as Claim 8.
Claim 8 is described in greater detail below:
8. Defendants are liable under the ADA Title II and the Rehabilitation Act, for actions taken by the APB, NHSP, and DOC, through its officers, in failing to accommodate Staples's post-concussion syndrome, with respect to the following incidents, each of which occurred after Staples had alerted NHSP officials that he had post-concussion syndrome:
A. On November 22, 2011, twelve unnamed NHSP officers beat and pepper-sprayed plaintiff for refusing to remove a string from his own finger, without first attempting to talk with plaintiff or remove the string themselves, where plaintiff's behavior manifested his post-concussion syndrome;
B. Officers including Fiorillo, Carroll, and Forcier caused plaintiff to be tazered and otherwise subjected to excessive force, as described more fully in Claims 9(a)-(c), for behavior manifesting plaintiff's post-concussion syndrome, without providing plaintiff with a reasonable accommodation for his post-concussion syndrome;
C. The New Hampshire Adult Parole Board did not reschedule plaintiff's April 2013 parole hearing prior to December 2013, or grant him retroactive parole at that time, thereby failing to provide plaintiff with a reasonable accommodation for plaintiff's refusal to leave his cell ...