Beaulieu v. New Hampshire Governor

          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 ...