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Valerio v. N.H. Department of Corrections

United States District Court, D. New Hampshire

October 23, 2017

Dwayne M. Valerio
v.
N.H. Department of Corrections Commissioner William Wrenn et al.[1]

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge.

         Before the court is plaintiff Dwayne Valerio's motion to amend his complaint (Doc. No. 49), to which is attached his proposed second amended complaint (Doc. No. 49-3) . Counsel for the putative defendants named in the second amended complaint has filed an objection (Doc. No. 50) to the motion. Valerio has filed a response (Doc. No. 51) to the objection.

         Background

         On April 1, 2016, this court directed service of claims, asserted in Valerio's initial complaint (Doc. No. 1) and first amended complaint (Doc. No. 12), related to strip searches on July 6, 2012 during Valerio's initial intake to the New Hampshire State Prison ("NHSP"), and again on October 16, 2013, after the "Tailgate Revival, " a religious event in the NHSP gym involving forty to fifty inmates and civilian volunteers. In the April 1, 2016 Order (Doc. No. 16), the only named defendant upon whom service was directed was NHSP Corrections Officer ("CO") Bonnie Johnson. The remaining defendants against whom claims had been stated were identified only as John Does #3-#5. The Doe defendants were not served at that time. In the April 1, 2016 Order, the defendant was directed to identify the John Doe defendants.

         Counsel appeared for defendant Johnson. Johnson subsequently filed a motion for summary judgment (Doc. No. 21) as to the claims asserted against her. That motion has been granted, and Johnson is no longer a defendant in this matter. See Mar. 6, 2017 Order (Doc. No. 45) (approving Feb. 1, 2017 Report and Recommendation ("R&R") (Doc. No. 41)). The claims that were authorized to be served upon the John Doe defendants remain in this case.

         When counsel initially appeared for defendant Johnson in this matter, counsel notified the court that the Attorney General's office was unable to determine the identity of any John Doe defendant at that time. During the course of this case, counsel has made efforts to identify the John Doe defendants, but has been unable to do so.

         Eventually, counsel provided Valerio with the opportunity to review photographs of all of the officers who could possibly be John Does #3-#5, to assist Valerio in identifying the officers he alleges violated his rights. In his proposed second amended complaint (Doc. No. 49-3), Valerio identifies John Does #3-#5 by name, as well as John Doe #2. The claims in the complaint and first amended complaint asserted against John Doe #2 were dismissed from this action after the court's initial preliminary review. See May 3, 2016 Order (Doc. No. 18) (approving Apr. 1, 2016 R&R (Doc. No. 15)).

         Claims Asserted in Second Amended Complaint

         In his proposed second amended complaint (Doc. No. 49-3), Valerio asserts the following claims for relief[2]:

1. Defendant CO Branden Walsh (previously identified as John Doe #3), during Valerio's intake at the NHSP on July 6, 2012, in the absence of exigent circumstances, directed Valerio to both submit to a visual body cavity strip search and to shower in the presence of another inmate and a video camera that could be monitored remotely by prison officials, in violation of Valerio's:
A. Fourth Amendment right not to be subjected to unreasonable searches; and
B. Fourteenth Amendment right to substantive due process.

         2. Defendant Cpl. Glenn Daniels (previously identified as John Doe #2), the Officer-in-Charge at the NHSP's Reception and Diagnostics Unit at the time of Valerio's intake at the NHSP on July 6, 2012, acting in his supervisory capacity, was aware that Walsh had subjected Valerio to a visual body cavity strip search and had required him to shower in the presence of another inmate and a video camera that could be monitored remotely by prison officials, in violation of Valerio's:

A. Fourth Amendment right not to be subjected to unreasonable searches; and
B. Fourteenth Amendment right to substantive due process.

         3. Defendants CO FNU Marissa (previously identified as John Doe #4) and CO FNU Sauerhaben (previously identified as John Doe #5), on October 16, 2013, subjected Valerio to a visual body cavity strip search, in front of forty to fifty other inmates and a video camera that could be monitored remotely by prison officials, without a privacy screen, and in the absence of exigent circumstances, in violation of Valerio's:

A. Fourth Amendment right not to be subjected to unreasonable searches;
B. Fourteenth Amendment right to substantive due process; and
C. First Amendment right to freely exercise his religion, as it violates Valerio's religious beliefs to be unclothed in the presence of other men.

         4. Defendants NHSP Chief of Security Maj. Jon Fouts, NHSP Warden Richard Gerry, and N.H. Department of Corrections ("DOC") Commissioner William Wrenn, acting in their supervisory capacities as policymakers for the NHSP, knew that group strip searches were utilized at the NHSP, and tacitly allowed, encouraged, and condoned such searches, including the October 16, 2013 group visual body cavity strip search to which Valerio was subjected, in violation of those supervisory defendants' duty to protect Valerio from harm, in violation of Valerio's:

A. Fourth Amendment right not to be subjected to unreasonable searches;
B. Fourteenth Amendment right to substantive due process; and
C. Fourteenth Amendment right to equal protection of the laws, to the extent that inmates at NCF were treated differently than NHSP inmates, as prison officials, in 2012, discontinued the practice of conducting group strip searches at NCF without privacy screens, in the absence of exigent circumstances, which was known to the defendants.

         Discussion

         I. Motion to Amend Standard

         A. Rule 15(a) (2)

         Federal Rule of Civil Procedure 15 provides that the court "should freely give leave" to amend a complaint "when justice so requires." Fed.R.Civ.P. 15(a) (2) . Under this standard, leave to amend should be granted absent "any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of ...


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