Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Beaulieu v. New Hampshire Governor

United States District Court, D. New Hampshire

June 28, 2018

Christopher Beaulieu a/k/a Crystal Beaulieu[1]
v.
New Hampshire Governor, et al.

          ORDER

          JOSEPH A. DICLERICO, JR. UNITED STATES DISTRICT JUDGE.

         Crystal Beaulieu, who is proceeding pro se and in forma pauperis, is an inmate at the New Hampshire State Prison for Men. As allowed on preliminary review, Beaulieu brings claims against the warden and officers at the prison. The defendants move to dismiss, arguing that Beaulieu's in forma pauperis status should be revoked and that she fails to state an actionable claim. Beaulieu objects to the motion.

         I. Revocation of In Forma Pauperis Status

         The defendants assert that the court must revoke Beaulieu's in forma pauperis status because she has had three prior cases in this court that were dismissed for failure to state a cause of action. In support, the defendants list Beaulieu v. Quay, 11-cv-514-JL; Beaulieu v. Frisbie Mem. Hosp., 12-cv-191-JD; and Beaulieu v. Winters, 15-cv-04-JL. They acknowledge that in Quay and Winters the magistrate judge recommended that the federal claims be dismissed and that the court decline to exercise supplemental jurisdiction over the state law claims. The magistrate judge's recommendations were approved, and the cases were dismissed accordingly.

         Under 28 U.S.C. § 1915(g), a prisoner may not proceed in forma pauperis if he or she has had three or more prior actions that resulted in "strikes". A prior action counts against in forma pauperis status as a "strike" if the "action . . . was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." Id. The question here is whether a case in which the federal claims were dismissed for failure to state a claim and the court declined to exercise supplemental jurisdiction over the state law claims counts as a strike under § 1915(g).

         The First Circuit has not decided whether a prior action counts as a strike when it was dismissed for reasons other than those listed in § 1915(g). Most of the courts of appeal that have addressed the issue have decided that "[i]f a court dismisses one or more of a prisoner's claims for a reason that is not enumerated in [§ 1915(g)], the case does not count as a strike." Fourstar v. Garden City Gr., Inc., 875 F.3d 1147, 1151-52 (D.C. Cir. 2017) (citing cases from seven circuit courts of appeals); see also Washington v. Los Angeles County Sheriff's Dep't, 833 F.3d 1048, 1054-60 (9th Cir. 2016) ("When we are presented with multiple claims within a single action, we assess a [§ 1915(g)] strike only when the 'case as a whole' is dismissed for a qualifying reason under [§ 1915(g)]."). For that reason, "a case in which a court declines to exercise supplemental jurisdiction over state-law claims does not count as a strike." Fourstar, 875 F.3d at 1152; accord Ladeairous v. Sessions, 884 F.3d 1172, 1173 (D.C. Cir. 2018); see also Tolbert v. Stevenson, 635 F.3d 646, 651-55 (4th Cir. 2011) (holding that entire action must be dismissed for an enumerated reason to constitute a strike and citing cases).

         Although a few courts have counted cases as strikes under § 1915(g) when supplemental jurisdiction over state law claims was declined, those cases do not provide a reasoned basis for that outcome. See, e.g., Kroncke v. City of Phoenix, 606 Fed.Appx. 382, 384 (9th Cir. 2015) (memorandum opinion in which court dismissed plaintiff's claims and in one sentence, without explanation, denied plaintiff's motion to remove a strike under § 1915(g)); Gross v. Normand, 576 Fed.Appx. 318, 321 (5th Cir. 2014) (stating without explanation that district court's dismissal based in part on declining supplemental jurisdiction counted as a strike); Warren v. Londorff, 2017 WL 2172433, at *4 (CD. Ill. May 17, 2017) (court declined to exercise supplemental jurisdiction but nevertheless held that the state law claim lacked merit and counted the dismissal as a strike); Beals v. Daniels, 2016 WL 7324085, at *1 (W.D. Okla. Dec. 15, 2016) (declining supplemental jurisdiction but also dismissing the complaint with prejudice and designating the case as a strike). The lack of a reasoned basis for counting a case as a strike, even when not all claims were dismissed for reasons stated in § 1915(g), makes those cases unpersuasive, particularly in light of contrary circuit court authority. See, e.g., Washington, 833 F.3d at 1057); Brown v. Megg, 857 F.3d 287, 288 (5th Cir. 2017); Turley v. Gaetz, 625 F.3d 1005, 1008-09 (7th Cir. 2010) .

         Based on the persuasive analyses provided by the District of Columbia Circuit, the Fourth Circuit, and the Ninth Circuit, along other decisions, the court will not count Quay and Winters as strikes against Beaulieu for purposes of § 1915(g). As a result, Beaulieu's in forma pauperis status is not revoked in this case.

         II. Motion to Dismiss

         The defendants move to dismiss Beaulieu's claims on a variety of grounds. They contend that Beaulieu fails to state a cognizable cause of action in twelve of the thirteen claims that were allowed on preliminary review. The defendants also raise affirmative defenses.

         In considering a motion to dismiss, the court accepts all well-pleaded facts as true, disregarding mere legal conclusions, and resolves reasonable inferences in the plaintiff's favor.[2]Galvin v. U.S. Bank, N.A., 852 F.3d 146, 155 (1st Cir. 2017). Taken in that light, the complaint must state sufficient facts to support a plausible claim for relief. In re Curran, 855 F.3d 19, 25 (1st Cir. 2017). The plausibility standard is satisfied if the factual allegations in the complaint "are sufficient to support the reasonable inference that the defendant is liable." In re Fidelity ERISA Float Litig., 829 F.3d 55, 59 (1st Cir. 2016) (internal quotation marks omitted). The complaint need not include "a high degree of factual specificity" but "must contain more than a rote recital of the elements of a cause of action." Carcia-Catalan v. United States, 734 F.3d 100, 103 (1st Cir. 2013) (internal quotation marks omitted).

         A. Background

         Beaulieu is a transsexual inmate who has been incarcerated at the New Hampshire State Prison for Men since January 6, 2011. Although born a male, she identifies as female, which is reflected in her clothing, makeup, and hair style. She began hormone treatment in October of 2015.

         Because of her transsexual status, Beaulieu alleges that she is particularly at risk in the prison environment. She also alleges that she has mental health issues and that the prison staff is aware of those issues. Beaulieu's allegations reflect her tumultuous history at the prison, including allegations of sexual assaults and disciplinary measures imposed on multiple occasions.

         On preliminary review, the magistrate judge ordered service of the following claims:

1. Warden Zenk violated Beaulieu's Fourteenth Amendment right to equal protection by denying her access to female items and to more frequent opportunities to shave at SHU.
2. SHU Sgt. Stefan Czak and Corrections Officer ("CO") Eric Turner violated Beaulieu's Eighth Amendment rights, and committed the state law tort of negligence, by 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.
3. Defendants Capt. Michael Edmark and Lt. Scott Marshall, knowing that Beaulieu suffers from mental health problems, violated Beaulieu's Eighth Amendment rights, and committed the state law tort of negligence by housing Beaulieu in a cell below inmate Cook 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.
4. An unnamed NHSP corrections officer, identified in the R&R as John Doe #1, on May 27, 2016, violated Beaulieu's Eighth Amendment rights, and committed the state law tort of negligence, by putting 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.
5. CO Christopher Brownlie, CO Young, and CO Dominic Salce violated Beaulieu's Eighth Amendment rights, and committed the state law tort of negligence, by placing Beaulieu at a substantial risk of serious harm from other inmates, in that:
a. CO Christopher Brownlie told another inmate that Beaulieu was a "rat";
b. CO Young told inmates that Beaulieu was a "rat" and a "skinner," and
c. CO Dominic Salce yelled, where all of the inmates on Beaulieu's tier could hear him, that Beaulieu had requested statement forms, which Salce knew would cause other inmates to think Beaulieu is a "rat."
6. 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, violated Beaulieu's Eighth Amendment rights, and committed the state law tort of negligence, by allowing 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.
7. Sgt. Lydick, Lt. Carroll, and Capt. Edmark violated Beaulieu's Eighth Amendment rights, and committed the state law tort of negligence, in that, knowing that CO David Dionne had previously used excessive force on Beaulieu and harassed Beaulieu, and knowing that Beaulieu suffers from mental health problems, those defendants allowed Dionne after July 28, 2016, to continue to work in proximity to Beaulieu, thus creating a substantial risk of serious harm to Beaulieu's mental health.
8. On July 6, 2017, Sgt. Totten, CO Jason Caruso and Lt. Marshall violated Beaulieu's Eighth Amendment rights, and committed the state law tort of negligence, by denying 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 by laughing at and provoking Beaulieu, thus creating a substantial risk of serious harm to Beaulieu's mental health.
9. In retaliation for Beaulieu's First Amendment activities including her filing of a complaint against CO Brownlie, accusing that officer of sexually assaulting her, as well as Beaulieu's oral and written grievances, and lawsuits filed against other DOC staff members:
a. An unnamed officer, identified in the R&R as John Doe #2, charged Beaulieu with a disciplinary violation for disrespecting CO Chandonnet, when Beaulieu objected to Chandonnet's actions that Beaulieu considered to be sexual assault;
b. Sgt. Pelletier, CO John Aulis, Lt. Andrew Newcomb, and CO Timothy Miller, Capt. Masse, Cpl. Paz, and CO Lamontagne, charged Beaulieu with multiple disciplinary infractions;
c. Unnamed officers, identified in the R&R as the "Keep Away John Does," instituted a "Keep Away" directive preventing Beaulieu and her boyrfriend, Steven Newcombe, from having any type of contact with one another.
d. On May 11, 2017, Sgt. Lydick inflicted unnecessary force on Beaulieu, causing her severe pain;
e. Cpl. Wright told Beaulieu to kill herself;
f. CO Young told other inmates that Beaulieu is a "rat" and a "skinner"; and
g. On July 6, 2017, Beaulieu was subjected to unprovoked excessive force, tazed, kicked, and placed in a restraint chair by Sgt. Totten, CO Caruso, Lt. Carroll, Capt. Edmark, and Lydick.
10. On an unspecified date in 2016, CO G. Nimorowski, while escorting Beaulieu between areas of the prison while Beaulieu was handcuffed, violated Beaulieu's Eighth Amendment right not to be subjected to excessive force maliciously or sadistically applied, in that Nimorwski, without provocation, pulled and twisted Beaulieu's arm, and then, when Beaulieu told Nimorowski that he was hurting her, Nimorowski forcefully pushed her handcuffs toward her elbows, causing her pain;
11. On December 5, 2016, Sgt. Totten, while escorting Beaulieu between areas of the prison, after Beaulieu said she refused to live on a particular tier in SHU and then stated that she was suicidal, violated Beaulieu's Eighth Amendment right not to be subjected to excessive force maliciously or sadistically applied, in that:
a. Sgt. Totten slammed Beaulieu's head against the window, and held her against the window by her arms; and
b. After Beaulieu had smashed her own head against the window, Sgt. Totten slammed Beaulieu against a doorframe and then slammed her face into the floor, while Beaulieu was not resisting Totten's attempts to restrain her.
12. Shortly after May 11, 2017, in response to Beaulieu's accusation of sexual assault against CO Brownlie, Sgt. Lydick and other unnamed officers, identified by the court in the Report and Recommendation issued this date as "May 11 John Does," violated Beaulieu's Eighth Amendment right not to be subjected to excessive force maliciously or sadistically applied, in that, without provocation:
a. Lydick forced Beaulieu to the ground while she was in handcuffs, without allowing her the opportunity to get down voluntarily; and
b. The officers present then got "on" Beaulieu while she was on the floor in handcuffs, causing her severe pain.
13. On May 27, 2017, in response to Beaulieu smashing her cup, which she did because she was suicidal and had been refused mental health care, CO Caruso, CO Young, Capt. Edmark, Lt. Carroll, and Sgt. Lydick violated Beaulieu's Eighth Amendment right not to be subjected to excessive force maliciously or sadistically applied, in that:
a. CO Caruso, CO Young, Capt. Edmark, Lt. Carroll, and Sgt. Lydick forcibly pulled Beaulieu's arms through the tray slot in her door and handcuffed her, and put her on the floor in the SHU rotunda;
b. Lydick shot Beaulieu with a Tazer;
c. Edmark kicked Beaulieu in the face while she was on the floor;
d. after Beaulieu got up, Caruso and Young pulled her arms while she was handcuffed, then dropped her to the ground on her shoulder;
e. CO Caruso, CO Young, Capt. Edmark, Lt. Carroll, and Sgt. Lydick fell on top of her after Caruso and Young dropped ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.