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Doiron v. Capt. FNU Edmark

United States District Court, D. New Hampshire

March 2, 2018

Arthur J. Doiron
v.
Capt. FNU Edmark et al.

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Arthur J. Doiron has filed complaint addenda (Doc. Nos. 39, 40), seeking to add claims and defendants to this action. The complaint addenda are before the court for preliminary review, pursuant to LR 4.3(d)(1).[1]

         Background

         The claims presently pending in this case arise out of a June 17, 2016 incident in which, Doiron alleges, defendant corrections officers (“COs”) Glenn Nimorowski and Jason Caruso used excessive force against Doiron, and were negligent, by leaving him, tightly handcuffed, in his cell, and that CO Robert LeMay failed to protect Doiron, and was negligent, by refusing to remove the handcuffs. In the complaint addenda (Doc. Nos. 39, 40) Doiron now seeks to add the following additional claims and defendants to this action:

• “CO John Doe, ” whose identity is not known, violated Doiron's Eighth Amendment right to be protected from harm while incarcerated, and is liable to Doiron for the tort of negligence, in that on June 17, 2016, while Doiron was in his cell, handcuffed, CO John Doe refused Doiron's request to contact a supervising officer so that Doiron could report that he had been left in his cell in handcuffs;
• New Hampshire State Prison (“NHSP”) Warden Michael Zenk violated Doiron's Eighth Amendment right to be protected from harm while incarcerated, and is liable to Doiron for the tort of negligence, in that Zenk: (1) denied Doiron's June 23, 2016 grievance, in which Doiron (a) grieved being left in his cell in handcuffs on June 17, 2016, expressed concern that he would be subjected to retaliation for filing a grievance about the June 17, 2016 incident, and sought to be moved to another housing unit; and, (2) by not granting the grievance's request that Doiron be moved, effectively allowed Doiron to be left in his cell in handcuffs on July 14, 2016 by Cpl. Turcotte, whose first name is unknown, in retaliation for Doiron's filing of a grievance about the June 17, 2016 incident; and
• Cpl. Turcotte, a supervising officer on Doiron's housing unit, violated Doiron's Eighth Amendment right not to be subjected to excessive force, is liable to Doiron for the tort of negligence, and violated Doiron's First Amendment right to petition the government for a redress of grievances, in that Turcotte left Doiron in his cell in handcuffs on July 14, 2016, in retaliation for Doiron filing a grievance about the June 17, 2016 incident.

         Discussion

         I. CO John Doe

         Doiron has asserted sufficient facts to state an Eighth Amendment failure to protect claim and a negligence claim against CO John Doe upon which relief might be granted. Although Doiron has not named the John Doe officer, he has indicated that he may be able to do so after discovery is conducted in this case. Significant discovery in this case, concerning the claims and defendants initially allowed to proceed in this matter, has already occurred. Accordingly, the court, in an Order issued simultaneously with this Report and Recommendation, directs Doiron to identify CO John Doe by name. If Doiron is not able to identify CO John Doe at this time, he must so notify the court, stating what discovery materials he needs to determine CO John Doe's identity.

         II. Warden Michael Zenk

         A. Denial of Grievance

         A prisoner does not have a right to have an administrative grievance granted. Further, a prisoner does not have a right to a particular housing placement. To the extent Doiron seeks to assert a claim based on the contents of Zenk's denial of Doiron's grievance, or Zenk's refusal to move Doiron, therefore, the district judge should dismiss the claim.

         B. Failu ...


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