United States District Court, D. New Hampshire
Timothy Beers, pro se Francis Charles Fredericks, Esq.
Lynmarie C. Cusack, Esq. Seth Michael Zoracki, Esq.
ORDER
Steven
J. McAuliffe United States District Judge
Before
the court is defendant New Hampshire State Prison
(“NHSP”) Sgt. Keith Forcier's motion to
dismiss (Doc. No. 86), in which Forcier asserts entitlement
to qualified immunity in this matter. Plaintiff Timothy Beers
has filed an objection (Doc. No. 87).
Background
I.
December 2014 Strip Search
The
facts underlying Beers's claim against Forcier have been
previously set forth in this case in detail, most recently in
the magistrate judge's June 12, 2017 Report and
Recommendation (Doc. No. 82), 2017 WL 4048283, 2017 U.S.
Dist. LEXIS 147378 (D.N.H. June 12, 2017) (“June 12
R&R”), R&R approved by Sept. 12, 2017
Order (Doc. No. 92), 2017 WL 4041316, 2017 U.S. Dist. LEXIS
147077 (D.N.H. Sept. 12, 2017) (“September 12
Order”). Those facts need not be repeated here. It is
sufficient, for purposes of this Order, to note that this
action arises out of a December 18, 2014 group strip search
(“December 2014 search”), conducted at the NHSP
after an event attended by inmates, including Beers, and
members of the inmates' families. During the December
2014 search, officers, some or all of whom were subordinates
of Forcier, conducted “visual body cavity”
searches of inmates in the presence of other inmates, a video
surveillance camera, and corrections officers, including a
female officer.
Beers
has alleged that Forcier was present at the December 2014
search in his capacity as a supervisory officer. Beers claims
that Forcier, based on his training, knew that the December
2014 search violated NHSP administrative rules and policies,
as well as unspecified state and federal laws. Beers asserts
that Forcier had the ability and authority to prevent or stop
the December 2014 search, as evidenced by the fact that
Forcier did in fact allow one inmate to be searched privately
upon request, but Forcier did not prevent or stop the other
inmates from being subjected to the group search.
In this
case, the court has recognized the following claim against
Forcier:
Sgt. Keith Forcier violated Beers's Fourth Amendment
rights, in that Beers was subjected to an unreasonable group
strip search after the December 18, 2014 Holiday Event,
although Forcier, who had personal knowledge of the
circumstances under which the strip search occurred, as well
as the authority to stop that search, failed to issue orders
to cause the search to stop, and was deliberately indifferent
to the violation of Beers's Fourth Amendment rights
caused by that search.
See Mar. 8, 2017 Order (Doc. No. 60), at 6. This
claim arises under Forcier's supervisory liability, as
Beers has asserted that Forcier was directly involved in
and/or deliberately indifferent to the
“rights-violating conduct” of his subordinates.
II.
Procedural History
A.
Previous Grant of Summary Judgment
This
court previously granted summary judgment in this case in
favor of the other defendants named in this action, in regard
to Beers's claims that the conduct of those defendants
during the December 2014 search violated Beers's Fourth
Amendment rights. See September 12 Order (approving
June 12 R&R). In granting summary judgment in the
defendants' favor, the court found that the defendants
were entitled to qualified immunity, in that, at the time of
the pertinent group strip search, it was not clearly
established “that it was unlawful to subject a prisoner
to a ‘visual body cavity search' in a group
setting; without privacy screens, in view of other inmates
and staff, including a corrections officer of the opposite
sex, and a prison surveillance camera, following an event
involving contact between inmates and visitors.” June
12 R&R, at 5-6.
B.
Moti ...