United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
ANDREA
K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE
Before
the court is plaintiff Christopher “Crystal”
Beaulieu's complaint (Doc. No. 1), and amended complaint
(Doc. No. 12), filed pursuant to 42 U.S.C. § 1983,
asserting that the defendants, a New Hampshire State Prison
(“NHSP”) inmate and New Hampshire Department of
Corrections (“DOC”) employees, have violated
Beaulieu's federal constitutional rights and have engaged
in tortious conduct rendering them liable under state law.
The complaint and amended complaint are before the court for
preliminary review, pursuant to 28 U.S.C. § 1915A(a) and
LR 4.3(d)(1).
Discussion
I.
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 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)).
II.
Discussion
A.
Discrimination and Equal Protection
1.
Standard
Beaulieu
asserts claims of discrimination based on her status as a
transsexual inmate and she also alleges that she has been
assigned to a single cell in SHU in a discriminatory manner.
“‘The Equal Protection Clause contemplates that
similarly situated persons are to receive substantially
similar treatment from their government.'”
Davis v. Coakley, 802 F.3d 128, 132 (1st Cir. 2015)
(citation omitted). To establish an equal protection claim, a
plaintiff needs to allege facts showing that
“‘(1) the [plaintiff], compared with others
similarly situated, was selectively treated; and (2) that
such selective treatment was based on impermissible
considerations such as race, religion, intent to inhibit or
punish the exercise of constitutional rights, or malicious or
bad faith intent to injure [the plaintiff].'”
Id. at 132-33 (citations omitted). “Unequal
treatment that does not involve a fundamental right or
suspect classification is justified if it bears a rational
relation to legitimate penal interest.” Druley v.
Patton, 601 F. App'x 632, 635 (10th Cir. 2015)
(citing City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 439-40 (1985)).
2.
Gender Identity
Beaulieu
is a transsexual inmate who has been incarcerated since
January 6, 2011 at the NHSP, a facility that almost
exclusively houses male prisoners. Beaulieu asserts that,
since 2011, prison officials have been aware that she is a
transsexual, and that she is at a high risk of harm at the
prison because she is a transsexual.[2] During her incarceration at
the NHSP, Beaulieu has held herself out as a transsexual
female, and has attempted to live as a female, including the
way she wears her clothing, wears makeup, and styles her
hair. In October 2015, during her present incarceration,
Beaulieu began hormone treatment.
Beaulieu
alleges that the DOC allows nontranssexual female inmates in
its custody to have makeup, earrings, hair dryers, and other
items available in the female property catalog. Beaulieu
claims that, as a transsexual woman, she is being treated
differently than other women in DOC custody, as she has no
access to those items. Beaulieu asserts that on occasions
when she has been able to wear makeup in the prison, she has
not had trouble with any inmate on that basis.
While
housed in the prison's Special Housing Unit
(“SHU”), Beaulieu asserts that she, like other
SHU inmates, is only able to shave once a month. As a result,
she has been forced to grow facial hair that, due to her
female gender identity, has caused her severe distress.
Beaulieu
alleges that she has made efforts to have the policies
denying her access to female items and shaving reversed. She
asserts that Warden Michael Zenk has been unwilling to change
policies at the NHSP to allow her to have those items and to
shave more frequently while in SHU.
Beaulieu's
Fourteenth Amendment equal protection claims concerning the
denial of female items and the inability to shave more than
once a month while in SHU are sufficiently stated to survive
preliminary review. The only defendant Beaulieu has
specifically named as to this claim is Warden Zenk. In an
Order issued simultaneously with this Report and
Recommendation (the “Simultaneous Order”), the
court directs service of Fourteenth Amendment equal
protection claims, alleging the denial of access to female
items and more frequent opportunities to shave at SHU, upon
Zenk.
3.
Single-Cell Housing
Beaulieu
alleges that while housed in SHU from 2015 through 2017, she
has been generally denied cellmates. Beaulieu was told that
she was in a single cell due to her history of accusing
cellmates of sexual assault or having cellmates accuse her of
sexual assault. Between 2015 and 2017, several other
transsexuals have been housed in SHU. Beaulieu alleges that
the other transsexual inmates in SHU have been allowed to
have cellmates, although at least one of them has accused
cellmates, and/or has been accused by cellmates, of sexual
assault.
To the
extent Beaulieu states that any defendant treated her
differently than other inmates in SHU by denying Beaulieu a
cellmate, the facts alleged do not indicate that Beaulieu was
treated differently because of her status as a transsexual
inmate or her affiliation with any other class of
individuals. Furthermore, Beaulieu has not pleaded facts to
state a claim that she was singled out for discrimination for
reasons unique to her. Such a “class of one”
equal protection claim requires proof of “‘an
extremely high degree of similarity between [plaintiffs] and
the persons to whom they compare themselves'”;
Beaulieu must show that she and the other comparator inmate
“‘engaged in the same activity . . . without such
distinguishing or mitigating circumstances as would render
the comparison inutile.'” Snyder v.
Gaudet, 756 F.3d 30, 34 (1st Cir. 2014) (citations
omitted). In addition, a “class of one” plaintiff
must generally plead facts to “show that the
defendant's differential treatment of the plaintiff was
motivated by ‘bad faith or malicious intent to
injure.'” Id. (citation omitted).
There
are numerous factors that might impact prison officials'
housing decisions, including fluctuations in inmate
population numbers, the nature of the assault claims that an
inmate has lodged against her cellmate or has had asserted
against her, as well as other factors that are unique to the
inmates who might be housed together. Beaulieu has not
pleaded sufficient facts to show that any transsexual SHU
inmate allowed to have a cellmate was similarly situated to
Beaulieu in all relevant respects. Accordingly, Beaulieu has
failed to state a claim of a violation of her right to equal
protection based on being housed without a roommate in SHU,
and the district judge should dismiss that claim.
B.
Endangerment
1.
Standard
The
Eighth Amendment “prohibits prison officials from
depriving inmates of ‘the minimal civilized measure of
life's necessities.'” Brown v. Plata,
131 S.Ct. 1910, 1959 (2011) (citation omitted).
“‘[A] prison official cannot be found liable
under the Eighth Amendment for denying an inmate humane
conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or
safety.'” Giroux v. Somerset Cty., 178
F.3d 28, 32 (1st Cir. 1999) (citations omitted). Beaulieu
alleges that defendants violated her Eighth Amendment rights
by creating, or failing to prevent, a significant risk to her
safety.
2.
Endangerment Claims to be Served
The
following endangerment claims, which have been asserted both
as Eighth Amendment violations and as state law negligence
claims, may proceed:
• Claims against SHU Sgt. Stefan Czak and Corrections
Officer (“CO”) Eric Turner for housing Beaulieu
with inmate Shawn Cook in March 2015, knowing that Beaulieu
was at particular risk of sexual victimization and that Cook
had a history of sexual assault;
• Claims that defendants Capt. Michael Edmark and Lt.
Scott Marshall, knowing that Beaulieu suffers from mental
health problems, housed Beaulieu in a cell that was situated
underneath inmate Cook's cell, on May 20, 2015, while the
investigation of Beaulieu's sexual assault claim against
Cook was ongoing, and knowingly allowing Cook to harass and
threaten Beaulieu, thus creating a substantial risk to
Beaulieu's mental health;
• A claim that an unnamed officer, now identified by the
court as John Doe #1, [3] on May 27, 2016, put Beaulieu in a cell
with an inmate who the officer knew or should have known was
a member of a gang with which Beaulieu had prior
difficulties, thus placing Beaulieu at a substantial risk of
serious harm;
• Claims that CO Christopher Brownlie told another
inmate that Beaulieu was a “rat, ” CO Young told
inmates that Beaulieu was a “rat” and a
“skinner, ” and CO Dominic Salce yelled, where
all of the inmates on Beaulieu's tier could hear him,
that Beaulieu had requested statement forms, which Beaulieu
claims Salce knew would cause other inmates to think Beaulieu
is a “rat, ” thus placing Beaulieu at a
substantial risk of serious harm from other inmates;
• Claims that Warden Zenk, Maj. Jon Fouts, Capt.
Boynton, Lt. Paul Carroll, Sgt. Gary Lydick, Sgt. Jeremiah
Totten, Cpl. Stone, and Cpl. Pat Wright, knowing that
Beaulieu suffers from mental health problems, allowed
Brownlie to work in proximity to, and interact with, Beaulieu
during the investigation of Beaulieu's sexual assault
accusation against Brownlie, and allowing Brownlie to harass
Beaulieu, thus creating a substantial risk of serious harm to
Beaulieu's mental health;
• After July 28, 2016, Sgt. Lydick, Lt. Carroll, and
Capt. Edmark, knowing that CO David Dionne had previously
used excessive force on Beaulieu and harassed Beaulieu, and
knowing that Beaulieu suffers from mental health problems,
allowed Dionne to continue to work in proximity to Beaulieu,
thus creating a substantial risk of serious harm to
Beaulieu's mental health; and
• On July 6, 2017, Sgt. Totten, CO Jason Caruso and Lt.
Marshall denied Beaulieu's request to see a mental health
worker when Beaulieu told the officers she was actively
suicidal and instead told Beaulieu to “just kill
[her]self, ” and laughed at and provoked Beaulieu, thus
creating a substantial risk of serious harm to Beaulieu's
mental health.
In the
Simultaneous Order, the court directs service of these
endangerment claims on the defendants named in those claims.
3.
Denial of Protective Custody
On
December 5, 2016, Beaulieu alleges that while Sgt. Totten was
escorting her to I-Tier, Beaulieu told Totten that she was in
fear for her safety on I-Tier, but Totten attempted to force
her to live there anyway, and would not let her seek
protective custody status. Beaulieu was not placed on I-Tier
at that time. Beaulieu's allegations concerning
Totten's refusal to place Beaulieu in protective custody
are insufficient to demonstrate that Totten was aware of an
actual, substantial risk to Beaulieu's safety, and failed
to protect ...