United States District Court, D. New Hampshire
MEMORANDUM AND ORDER
Barbadoro United States District Judge.
Staples, a former inmate at the New Hampshire State Prison,
is a practicing Taoist. He invoked his religious beliefs when
refusing to comply with a prison policy that prohibits
inmates from having beards longer than 1/4 inch. He then
challenged the beard policy and asserted additional claims
against multiple prison officials in successive lawsuits. In
a prior order, I dismissed Staples' claims that the
defendants violated his First and Fourteenth Amendment rights
by attempting to enforce the beard policy against him.
Staples v. NH State Prison, Warden, 2017 DNH 046. I
also determined that Staples could not recover on his claims
based on the Religious Land Use and Institutionalized Person
Act, 42 U.S.C. § 2000cc-1. Staples v. NH State
Prison, Warden, 2017 DNH 023.
remaining claims allege that Correctional Officer Robert
Parent used excessive force against him on September 12,
2013, and Correctional Officer Scott Marshall used excessive
force and unlawfully retaliated against him on July 25, 2015.
This Memorandum and Order addresses defendants' summary
judgment motion challenging both claims.
September 12, 2013, prison officials attempted to transfer
Staples and six other inmates from the Special Housing Unit
(SHU) to the Closed Custody Unit (CCU). Doc. No.
49-2 at 8. At the time, Parent was the sergeant in
charge of the CCU. Doc. No. 49-13 at 8.
inmates are required to comply with the prison's beard
policy. Doc. No. 49-13 at 10. Accordingly, Staples
and the other inmates were brought to Parent's office
without handcuffs and he instructed them to shave. Doc. No.
49-2 at 10. Staples, however, repeatedly refused to
comply with Parent's directive. Id. at 8. During
one exchange, Parent told Staples that he needed to comply
because “[t]his is my unit [and] I control my
unit.” Id. Staples responded by saying
“[t]his is my face, and I control my face.”
Id. Eventually, Parent told Staples “[a]ll
right, I am going to send you back to SHU
PC.” Id. When Staples again refused to
shave, Parent handed Staples a statement form and instructed
him to “write down why you want a PC.”
Id. Staples refused to sign the form and instead
held it in front of Parent at arm's length and tore it in
half. Id. at 11. Parent responded by grabbing
Staples' right arm, forcefully turning and pushing him
into a concrete support pillar, and handcuffing him behind
his back. Id. Staples hit his head on the pillar
during Parent's maneuver and he later experienced
significant head, chest, and shoulder pain. Id.
Staples was handcuffed, he was led to another secure area and
asked if he wanted medical attention, which he accepted. Doc.
No. 49-2 at 13. Nurse Donna Dufresne examined
Staples and noted that she “did not see any injury to
Inmate Staples' head . . . nor did Inmate Staples
complain to [her] that he had injured his head.” Doc.
No. 49-8 at 3. Staples later claimed that he had
suffered a concussion, but the record does not contain
medical evidence to support his claim. Doc. No. 49-2
filed a complaint in this court on October 22, 2014 naming
the Warden, the Corrections Commissioner, and the Parole
Board as defendants (2014 Lawsuit). Case. No. 14-cv-473-LM,
Doc. No. 1 at 1. He amended his complaint on May 11,
2015 to add Marshall as a defendant. Case No. 14-cv-473-LM,
Doc. No. 84 at 9.
25, 2015, Correctional Officers David Dionne and Korey
McCauley attempted to move Staples to a new cell within SHU,
where Staples was then housed. Doc. No. 49-2 at 53.
Although the officers repeatedly told Staples to pack his
belongings and prepare to be moved, he refused and made it
clear that he would not leave his cell voluntarily.
Id. at 22-24. McCauley and Dionne later consulted
with Marshall and they decided to use Oleoresin Capsicum
Spray, (“pepper spray”) to gain Staples'
compliance, as authorized under official department policies
and procedures. Doc. No. 49-16 at 2. Armed with
the spray, Marshall approached Staples' cell and
repeatedly ordered him to “cuff up.” When staples
refused, Marshall told him that he would be sprayed if he did
not comply. Staples responded, “spray me, tase me, do
whatever the fuck you want.” Doc. No. 49-16 at
then dispersed the pepper spray into Staples' cell by
spraying it through the rectangular “tray slot”
on the lower half of the cell door. Pursuant to PPD 5.58,
which requires staff to record any event where pepper spray
“is used as a planned use of force option, e.g., cell
extraction, ” the event was videotaped using a handheld
audio and visual recording device. See Doc. No.
49-25; Doc. No. 49-18 at 3. In the recording,
Marshall can be seen and heard spraying the substance into
Staples' cell for approximately nine seconds as Staples
backed away from the cell door. Marshall explained that he
believed he used the amount of spray reasonably necessary to
have the desired effect, considering the size of Staples'
cell and the fact that he had backed up away from the door
and covered his face. Doc. No. 49-18 at 4.
Dufresne was called to Staples' cell shortly after the
incident to observe him through the cell window, in
accordance with PPD 5.58. Doc. No. 49-8 at 1. She
noted that he had a runny nose, but was not rubbing his eyes
and did not say he was in any distress. Doc. No.
49-8 at 1-2. Officers were able to get Staples to
comply with the cuff-up order and leave his cell
approximately 90-minutes later, at which time he was provided
a shower and offered medical attention. Doc. No.
49-17 at 2; Doc. No. 49-18 at 6.