United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
K. JOHNSTONE, Magistrate Judge.
Correctional Institution, Berlin, New Hampshire
("FCI-Berlin") inmate Trenton Miller has filed a
complaint (doc. no. 1), which is before the court for
preliminary review under 28 U.S.C. Â§ 1915A and LR 4.3(d)(1).
purposes of this court's preliminary review under 28
U.S.C. Â§ 1915A and LR 4.3(d)(1), the court construes the pro
se pleading liberally in determining whether the inmate has
stated a claim. See Erickson v. Pardus, 551 U.S. 89,
94 (2007). Disregarding legal conclusions, the court
considers whether the factual content in the pleading and
inferences reasonably drawn therefrom, taken as true, state a
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)).
claims relate to an incident that occurred on October 29,
2015. On that date, Miller alleges, he was retrieving his
property from storage, and the property officer, FCI-Berlin
Corrections Officer ("C.O.") Karner asked Miller to
sign a receipt. Miller told Karner that he would not do so
until he was sure all of his property was there. Karner
"got angry and went away fuming" to his desk, and
ignored Miller at first when he asked for a bag for his
property. Miller then asserts Karner picked up a property kit
bag with metal buckles and threw it at Miller, hitting him in
the face. The bag's buckles struck Miller's eye.
Miller complained to Karner about throwing the bag, and then,
Miller alleges, Karner threatened to lock him up unless he
shut up. Miller asserts that he suffered redness, bruising,
soreness, and eye pain, and sought medical attention for his
alleges that after Miller signed the property receipt, Karner
locked him up for three hours, without cause, during which
time Karner and C.O. Martin mocked Miller. Miller further
alleges that C.O. Martin witnessed the entire incident
asserts Eighth Amendment claims of excessive force against
defendants Karner and Martin in their individual and official
capacities, under Bivens v. Six Unknown Fed. Narc.
Agents, 403 U.S. 388 (1971), seeking damages and
injunctive relief. Karner has also named Warden Esker Lee
Tatum, Jr., and the federal Bureau of Prisons
("BOP"), as defendants.
Eighth Amendment Excessive Force Claim as to Karner
Eighth Amendment protects a prisoner from excessive force
that amounts to cruel and unusual punishment. See Skinner
v. Cunningham, 430 F.3d 483, 488 (1st Cir. 2005). In
determining whether a plaintiff has established a claim for
excessive force, the "core judicial inquiry is...
whether force was applied in a good-faith effort to maintain
or restore discipline, or maliciously and sadistically to
cause harm." Hudson v. McMillian, 503 U.S. 1, 7
(1992). "[D]e minimis uses of physical force, provided
that the use of force is not of a sort repugnant to the
conscience of mankind, " do not violate the Eighth
Amendment. Id. at 9-10 (internal quotation marks and
construed, the pleading states a claim for relief against
Karner for using excessive force without any legitimate
purpose, maliciously and sadistically to harm Miller, by
throwing the kit bag at Miller's face in anger after a
verbal disagreement. Accordingly, the court, in an Order
issued with this Report and Recommendation, directs service
of the complaint upon Karner, with respect to the Bivens
claim for damages.
pleadings, liberally construed, do not suggest that anyone
other than Karner used any excessive force against Miller.
Martin's witnessing of the alleged use of force, and
failure to intervene after the fact, does not state a claim
for relief. Furthermore, there is no respondeat superior
liability under Bivens. Iqbal, 556 U.S. at 676.