United States District Court, D. New Hampshire
Cherry, pro se
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge
David Cherry, an inmate presently incarcerated at the
Rockingham County Department of Corrections, has filed this
action, pursuant to 42 U.S.C. § 1983, alleging that the
defendants, employees of the New Hampshire Department of
Corrections (“DOC”), violated his constitutional
rights while he was incarcerated at the New Hampshire State
Prison (“NHSP”). Cherry seeks monetary damages
and an order directing the defendants to either transfer
Cherry out of the NHSP to another incarcerative facility, or
to place him on GPS monitoring, and further that Cherry not
be returned to the NHSP. The complaint is before this
magistrate judge for preliminary review, pursuant to 28
U.S.C. §§ 1915(e)(2), 1915A(a) and LR 4.3(d)(1).
asserts that on February 18, 2018, while housed in the
NHSP's Medium Custody South Unit (“MCS”), he
was seriously injured when he was assaulted with a weapon by
another inmate, Samuel Hill. Cherry states that the assault
occurred in a “blind spot” at MCS in that the
area was not visible to officers due to a lack of video
asserts that the defendants moved him from protective custody
to MCS on February 1, 2018. Cherry alleges that DOC
Classifications Administrator Sarah Provencher, NHSP Chief of
Security Jon Fouts, NHSP Warden Michael Zenk, and DOC
Commissioner Helen Hanks knew that Cherry was at a
substantial risk of serious harm in general population, and
disregarded that risk in placing him in South Unit.
Specifically, Cherry alleges that the defendants were aware,
prior to the February 18 assault, that Cherry was at risk of
physical harm from other inmates because: Cherry had a No. of
“keep aways, ” which are DOC directives that
Cherry should be kept separate from particular inmates;
Cherry had been in protective custody until eighteen days
prior to being assaulted; Cherry had advised prison officials
numerous times of his “status as a ‘snitch,
'” and the officials had reason to believe that
Cherry's “snitch” status was “known
around the prison”; that inmates against whom Cherry
had testified were incarcerated at the NHSP in February 2018;
and that MCS contained areas not visible to officers or video
cameras at the time Cherry was placed there.
court may dismiss claims asserted in a complaint filed in
forma pauperis, if the court lacks jurisdiction, a defendant
is immune from the relief sought, the complaint fails to
state a claim, or the action is frivolous or malicious. See
28 U.S.C. § 1915(e)(2); LR 4.3(d)(2). In determining
whether a pro se complaint states a claim, the court must
construe the complaint liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam). To survive
preliminary review, the complaint must contain
“sufficient factual matter, accepted as true, to
‘state a claim to relief.'” See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
The court treats as true all well-pleaded factual
allegations, and construes reasonable inferences in
plaintiff's favor. See Ocasio-Hernández v.
Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011).
Eighth Amendment and Negligence Claims
Eighth Amendment protects inmates from cruel and unusual
punishment. U.S. Const. Amend. VIII. Prison officials have a
duty to “take reasonable measures to guarantee the
safety of the inmates, ” which includes “‘a
duty to protect prisoners from violence at the hands of other
prisoners.'” Lakin v. Barnhart, 728 F.3d
66, 70 (1st Cir. 2014) (quoting Farmer v. Brennan,
511 U.S. 825, 832-33 (1994)). To establish unconstitutional
endangerment, an inmate must assert acts to demonstrate that,
objectively, he was incarcerated “under conditions
posing a substantial risk of serious harm, ” and that
the involved prison officials knew of and disregarded the
excessive risk to the inmate's safety. Id. at
‘substantial risk' is one that is
‘objectively intolerable.'” Jones v.
Higgins-O'Brien, 2018 WL 935421, at *5 (D. Mass.
Feb. 16, 2018) (quoting Farmer, 511 U.S. at 846). A
substantial risk exists if “there was a strong
likelihood that violence would occur.” Purvis v.
Ponte, 929 F.2d 822, 825 (1st Cir. 1991). Further, the
plaintiff must assert facts to demonstrate that the
defendants were subjectively aware of “facts from which
the inference could be drawn that a substantial risk of
serous harm exists, ” and that the defendants
“dr[e]w the inference.” Mosher v.
Nelson, 589 F.3d 488, 494 (1st Cir. 2009) (internal
citations and quotation marks omitted).
court finds that Cherry has stated sufficient facts to allow
Eighth Amendment and common law negligence claims to proceed
against the defendants for endangerment and failure to
protect Cherry from harm. Accordingly, in an Order issued
simultaneously with this Report and Recommendation, the court