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Tito v. State

United States District Court, D. New Hampshire

October 15, 2018

Albert Tito
State of New Hampshire[1]

          Albert Tito, pro se Anthony Galdieri, Esq. Lawrence Edelman, Esq.


          Andrea K. Johnstone United States Magistrate Judge.

         Plaintiff, Albert Tito, a New Hampshire Department of Corrections (“DOC”) prisoner, filed this action complaining of violations of his federal constitutional rights which occurred when he was an inmate at the New Hampshire State Prison (“NHSP”). The court subjected his original pleadings (Doc. Nos. 1, 2) to preliminary review pursuant to LR 4.3(d)(1) and 28 U.S.C. § 1915A and directed service of the matter upon defendant (former) New Hampshire State Prison (“NHSP”) Warden Michael Zenk, NHSP Sgt. Gary Lydick, NHSP Corrections Officer (“CO”) Farradon Young, and the unnamed corrections officers identified as “John Does 1-4.” See Jan. 25, 2018 Order (Doc. No. 4). The court then subjected Tito's next set of complaint addenda to further preliminary review and, on March 21, 2018, issued a Report and Recommendation (Doc. No. 41) (“March 21 R&R”), and a supplemental Order (Doc. No. 40) (“March 21 Order”) to serve the new defendants identified by the court. Both parties objected. The district judge's May 23, 2018 Order (Doc. No. 77) concluded that although plaintiff's objection (Doc. No. 48) was without merit, defendants' objection (Doc. No. 47) made legitimate points regarding the possible misjoinder of unrelated claims in this case; and transferred Document No. 47, construed as a motion to reconsider the March 21 R&R, to the magistrate judge to reconsider the identification, service, and possible severance of any claims misjoined in this case. Plaintiff thereafter filed a motion to reconsider (Doc. No. 81) the March 21 R&R, and also filed a number of documents that appear intended to amend the allegations underlying his claims, including Document No. 48, which this court treats as a complaint addendum for purposes of preliminary review. This Amended Report and Recommendation (“Amended R&R”) effectively replaces the March 21 R&R; summarizes the allegations and identifies the claims in plaintiff's original pleadings (Doc. Nos. 1, 2) and complaint addenda[2]; and addresses issues raised in Doc. No. 47, in accordance with the May 23, 2018 Order (Doc. No. 77).


         I. Conditions of Confinement and Retaliation

         A. SHU PAR Status

         While incarcerated at the NHSP in 2017/2018, Tito was first housed in the Reception and Diagnostic Unit (“R&D”) and was then transferred to the Secure Housing Unit (“SHU”) in “pending administrative review” (“PAR”) status. For the duration of his PAR placement in SHU, Tito asked officers every day for access to a shower, to make a phone call, and to go outside for recreation. Tito asserts that those requests were denied, but that Tito's cellmate, Alfred Nyoni made the same requests which were granted as to Nyoni. Tito alleges that SHU Corrections Officers (“COs”) Young, T. Miller, Salse, and others, told Tito he was their least favorite SHU inmate and was on “the list.” Doc. No. 6-1, at 23.

         B. CCU Recreation Schedule and Cell Assignments

         Tito alleges that he was transferred from SHU to the Close Custody Unit (“CCU”). Sgt. Parent altered the recreation schedule after Tito's arrival, Tito asserts, to elicit a confrontation between Tito and other inmates, knowing, Tito asserts, that every inmate in CCU linked the change in the schedule to Tito. Further, Tito asserts, Tito was assigned to cells with “paranoid schizophrenic” cellmates, including an inmate with a history of violence against his cellmates; an inmate who had threatened to kill “whole tiers and had gone through countless cellmates, ” with whom Tito ended up having a good relationship; and a third inmate, nicknamed the “Nashua Slicer, ” who wanted to be celled with Tito, but with whom Tito did not agree to be celled. Doc. No. 48, at ¶ 13. Sgt. Parent was responsible for those cell assignments and altered the recreation schedule, Tito asserts, because Tito had filed one or more Inmate Request Slips (“IRSs”) complaining about harassment and cover ups in the CCU, including an August 12 IRS forwarded to the warden by Lt. Fontaine on August 14, 2017. See Aug. 15, 2017 Warden Response to Aug. 12, 2017 IRS (Doc. No. 52, at 9).

         C. SHU Suicide Watch & SHU Segregation

         Tito further asserts that on August 21, 2017, while housed in SHU, he was placed on suicide watch in a SHU dayroom for a night and a day, after a mental health assessment indicated he was at risk of self-harm. See Doc. No. 6-1, at 29. Tito asserts that CO Salse issued him an oversized gown with no Velcro, served him spaghetti and corn sauce with a squirt of mustard in a paper bag tossed through the tray slot onto the floor, gave him a foam mattress without a cover soaked with cooking water, and left him overnight in a room that reeked of urine. Tito asserts that SHU officers refused Tito's requests, and a request made by CO “Kirk” or “Kurk, ” to replace those items. Doc. No. 48, ¶ 5.

         The next day, Tito was transferred to a SHU cell, where he remained until September 20, 2017. For sixteen days, Tito alleges, he had only one shirt, one pair of pants, one pair of boxers, two blankets, and a pillow case. Tito asked officers for clean clothes and a sheet, but those requests were denied. See Doc. No. 6-1, at 30-31. Tito asserts that every other SHU inmate had clean clothes and bedding. See Doc. No. 48, at 7.

         Tito further alleges that, when he was in disciplinary segregation in SHU for sixty-two days from October 2017 through December 24, 2017, the conditions in which he was held did not adequately protect him from winter weather, as the window in his cell did not close properly (a fact known to Warden Zenk), and, Tito further asserts, beginning on December 24, 2017 until January 9, 2018, he was assigned to a cell on a tier without heat, where ice formed on the inside of his window. Tito asserts he could not sleep due to the cold, and his requests for extra blankets and clothes were denied. He further asserts that Capt. Boynton reported to the warden that the heat situation was better, although in Tito's estimation, it had not improved.

         II. CO Bazile

         Tito alleges that when he was in the CCU prior to November 2017, CO Bazile targeted him for intimidation by trashing his cell during cell searches, throwing his chessboards in the toilet, stealing two of his pictures, and falsely accusing him of disciplinary offenses which caused him to be placed in the “tank” a number of times. On one occasion, Tito asserts, Bazile handcuffed Tito during a cell search and then slammed Tito's head against a wall. Tito called out to Sgt. Dupree but did not receive assistance. The warden ordered an “after action review” of Bazile's use of force, which was undertaken by Capt. Boynton and Lt. Fontaine. After that review was completed, Zenk found Tito's grievance about Bazile's use of force to be unsubstantiated. See Doc. No. 52, at 1 (Tito, Nov. 23, 2017 IRS).

         III. November 9, 2017 Incident and Aftermath

         Plaintiff has claimed that on November 9, 2017, a week after Zenk responded to Tito's grievance about SHU conditions, SHU officers retaliated by assaulting Tito. Specifically, he alleges that SHU COs Geoffrey Boffitto, Young, and Jason Caruso, and Sgts. Lydick and Totten, handcuffed Tito behind his back and removed him from his cell. Lydick and Young then took Tito to a SHU dayroom to be strip-searched. Other officers entered after them. Plaintiff alleges that, while he was still handcuffed, and compliant with orders, including Lydick's order that Tito be strip searched, officers pulled Tito's leg out from under him and took him to the floor. Tito alleges he went limp and did not resist. He alleges that while he was falling and lying on the ground, handcuffed, either CO Young or CO Boffitto punched him multiple times on the right side of his face, bouncing the left side of his head off the floor. Tito further alleges that Lydick tasered him in the lower back multiple times as well as in his face. Tito states that Boffitto put his knees on Tito's back and right arm, and Lydick shackled Tito.

         After the incident ended, a nurse arrived to examine Tito. Tito was then strip-searched and left alone, unhandcuffed and partially clothed, in the dayroom. Plaintiff alleges that because of that incident, he had swelling, abrasions, and redness on his head, face, and neck, which caused his face to be unrecognizable. Tito also believes one of his testicles was injured during that incident, and that he may require surgery for that testicular injury.

         On November 9, 2017, at the relevant time, Lt. Edmark was stationed in the SHU control room, in front of video monitors, including one streaming from a wall-mounted security camera showing the SHU dayroom where guards had brought Tito. The video recorded by that security camera begins before Tito was escorted into the SHU dayroom and ends after Tito was left alone after he was strip-searched. Tito has incorporated images from that video by reference in his pleadings.[3] Tito alleges that having watched the security camera video, he has noted that CO Young looks directly at the camera before taking him down, and, Tito concludes, Young appears to have been waiting for Edmark's “signal” indicating that Edmark had refocused the camera “elsewhere in the room, ” Doc. No. 56, at 1-2, to “conceal the attack, ” Doc. No. 43, at 1. Tito further asserts that the refocusing of the camera occurred “swiftly, ” as if Edmark had done so “9, 000 times” before, Doc. No. 56, at 1, and that the refocusing appears “obvious[]” in the video, Doc. No. 48, at 5.

         Tito asserts that he feared for his physical safety while at the NHSP after the November 9 assault, as officers told him that his complaints brought them negative attention and threatened their jobs, which they need to support their families. Tito further alleges that Sgt. Lydick and COs Caruso and Salse began to serve him meal trays in early 2018, as an attempt to intimidate him, because “the [November 9] assault by staff issue started with my meal being tampered with.” Tito further alleges that CO Salse made remarks about Tito's food, and Lydick gave him “threatening looks.” Doc. No. 9, at 4. As a result, Tito began to refuse meals and lose weight.

         Tito asserts that “biased” hearing officers found him guilty of disciplinary offenses arising out of the November 9 incident. He was sentenced to twenty-five days of punitive segregation (in addition to a fifty-five day punitive segregation sanction Tito was then serving).

         Capt. Boynton and Maj. Fouts participated in an after-action review following the November 9 incident. Tito alleges that Boynton's characterization of the November 9 incident in a report, describing the videos, includes false information. Maj. Fouts signed off on Capt. Boynton's report.

         IV. Coos County Deputy Sheriff

         Tito has alleged that NHSP corrections officers involved in the November 9 incident, and others who have abused Tito, belong to the “Silver Eagles, ” which Tito describes as a gang comprised of corrections officers. Tito alleges that a Coos County Sheriff's Department Deputy, named “Charlie, ” is also Silver Eagle, and that Charlie has tried to intimidate Tito, his family, and friends in the past. Tito asserts that Charlie prevented Tito's brother from attending a jury voir dire and interfered with the jury pool in Tito's criminal case.

         V. Legal Mail Issues and Legal Property

         Tito alleges that SHU officers interfered with his legal mail by: delaying delivery of plaintiff's incoming legal mail and opening, outside of Tito's presence, Tito's mail from the courts, the New Hampshire Justice Department, and Tito's attorney. Tito further asserts that SHU officers have held up his outgoing legal mail, including mail addressed to the American Civil Liberties Union (“ACLU”). Tito also alleges that while he was in SHU in September 2017, his requests for access to his legal files in advance of a court proceeding were not promptly addressed.

         VI. Mental Health Issues

         Upon Tito's arrival at the NHSP, NHSP mental health providers took plaintiff off the psychiatric medications he had been prescribed at the Coos County Department of Corrections. Tito asserts that his requests for mental health appointments and medication addressed to the NHSP nursing staff did not yield appointments for months, until he ended up on suicide watch on August 22, 2017.

         Tito alleges that CCU Lt. Fontaine forwarded Tito's July 18, 2017 IRS about a lack of mental health appointments to Paula Mattis, after noting on the IRS that Tito had met several times with a mental health provider within the previous three weeks. See Doc. No. 18-1, at 1. Tito states that he had not had any mental health appointments during that period.

         VII. Dental Issues

         Tito alleges that upon his arrival at the NHSP, and prior to November 2017, he suffered from two rotten, painful, abscessed teeth and a missing filling, and that his requests for dental care were not promptly or properly addressed. Tito alleges that he could not attend appointments that were scheduled for him due to conflicts with court dates, and that he declined one appointment because it was scheduled during an expected visit from his girlfriend. Tito alleges that the dental care provider he saw after September 6, 2017 made him choose which problem to address. See Doc. No. 6, at 4-5. Tito's other dental problems remained untreated for months.

         VIII. Failure to Protect

         Tito alleges that while he was housed in the CCU and SHU, he complained about abusive conditions, unmet mental health needs, and emergent dental problems to prison guards, supervisory personnel, his public defender, mental health providers, Coos County Sheriff's Department personnel, and NHSP health care providers. See, e.g., Doc. No. 6. Tito asserts that those people did not properly document or address his concerns.

         Tito specifically asserts that his grievances to Warden Zenk, and to Christopher Kench and DOC Commissioner Helen Hanks, regarding his claims of harassment and retaliation, did not yield effective responses. Tito has alleged that Zenk was aware, both prior to and since the November 2017 assault, that Tito had been a target of retaliatory “violence” and harassment from COs for his complaints about prison staff.


          The claims asserted in Tito's complaint and complaint addenda (Doc. Nos. 1, 2, 6, 8, 10, 18, 27, 29, 37, 43, 48, 52, 56, 57, 62) are the following:

1. NHSP Sgt. Gary Lydick, CO Farradon Young, CO Geoffrey Boffitto, and CO Jason Caruso violated Tito's Eighth Amendment rights on November 9, 2017, in that, while Tito was complying with the officers' orders and handcuffed with his hands behind his back, outside the presence of other inmates:
a. Lydick, Young, Boffitto, and Caruso forced Tito down to the floor, causing injuries;
b. Young, Boffitto, and/or the other officers punched Tito in the face, causing pain, swelling, bruising, and lacerations on Tito's face and scalp, blurry vision, and other injuries;
c. Lydick drive-stunned Tito multiple times with a Taser pressed against Tito's back and face, causing pain and injuries to Tito; and
d. Boffitto knelt on Tito's back after the punching stopped, as Lydick put Tito in leg shackles.
2. NHSP Warden Michael Zenk failed to protect Tito, in violation of Tito's Eighth Amendment rights, in that:
a. Zenk, with deliberate indifference to a substantial risk of serious harm to Tito, prior to November 9, 2017, failed to protect Tito from the officers ...

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