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Bartlett v. Gerry

United States District Court, D. New Hampshire

February 2, 2016

Hunter Scott Bartlett
v.
Warden Richard Gerry

REPORT AND RECOMMENDATION

ANDREA K. JOHNSTONE, Magistrate Judge.

Before the court are two addenda (doc. nos. 26 and 37) to plaintiff Hunter Scott Bartlett's complaint, which are before this court for preliminary review, pursuant to 28 U.S.C. § 1915A(a) and LR 4.3(d)(1). The standard applied by this court in conducting the preliminary review is set forth in the July 16, 2015, Order (doc. no. 5).

Also before the court are motions filed by plaintiff (doc. nos. 33, 35, 38-40), seeking a hearing and injunctive relief. Those motions are before this court for a report and recommendation as to their disposition.

Background

Liberally construed, the pleadings filed to date assert the following facts. In 2015, when Bartlett was housed at the Special Housing Unit ("SHU") in the New Hampshire State Prison ("NHSP"), he was placed in a cell with another inmate, Sean Cook. Bartlett states that, over a period of six months, Cook repeatedly beat him up, causing him significant physical harm, and further, serially raped Bartlett orally and anally, causing extreme mental distress and trauma. Bartlett claims that he was placed with Cook despite, or because of, prison officials' knowledge that Cook would assault Bartlett. Bartlett also claims that, during and after the assaults, he received inadequate treatment for his medical and mental health issues.

After Bartlett filed this action, Bartlett was transferred to the Merrimack County Department of Corrections ("MCDOC") where, he alleges, officials also failed to provide him with adequate medical and mental health treatment. Bartlett recently notified the court that he has now been transferred to the Belknap County Department of Corrections.

Discussion

I. Preliminary Review

A. Criminal Charges

Bartlett asserts that certain actions of defendants constitute criminal conduct, and he seeks criminal prosecution of those individuals. There is no federal right, however, to have wrongdoers prosecuted. See Linda R.S. v. Richard P., 410 U.S. 614, 619 (1973) ("a private citizen lacks a judicially cognizable interest in the prosecution or non prosecution of another"). Bartlett's claims asserting violations of the state criminal code, therefore, should be dismissed.

B. Nonconstitutional Claims

Bartlett asserts that a number of NHSP defendants, including Lt. Masse, C.O. Darin Briggs, and Cpl. Michael Samson, engaged in one or more of the following behaviors, in violation of his Eighth Amendment rights: "abuse of power, " "false witness, " threats of bodily harm, "failure of policy, " "complicity to evade the law, " and verbal harassment. None of these allegations forms the basis of an actionable Eighth Amendment claim. See Matthews v. Vargas, 254 F.Appx. 1, 4 (1st Cir. 2007) (harassment, threats, discourtesies, and epithets do not amount to Eighth Amendment violation) (citing Skinner v. Cunningham, 430 F.3d 483, 489 (1st Cir. 2005)). The district judge should dismiss all claims asserting abuse of power, false witness, complicity to evade the law, failure of policy, or threats of harm, including all claims asserted against Lt. Masse, C.O. Darin Briggs, and Cpl. Michael Samson.

C. Inmate Defendants Bartlett has named two inmates as defendants to this suit,

Sean Cook and a SHU inmate Bartlett identifies as Newcome. To be liable under section 1983, a defendant must be a state actor. See 42 U.S.C. § 1983; Goldstein v. Galvin, 719 F.3d 16, 24 (1st Cir. 2013). Neither Cook nor Newcome are state actors, and thus neither are liable to Bartlett for any asserted violation of his federal rights. ...


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