United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge
the court for preliminary review, pursuant to 28 U.S.C.
§ 1915A and LR 4.3(d)(1), is plaintiff Irvin
Morales's Second Amended Complaint (Doc. No.
27), the operative complaint, superseding
Morales's original complaint (Doc. No. 1), his
handwritten “Amended Civil Rights Complaint”
(Doc. No. 19), and his typed “Amended Civil
Rights Complaint” (Doc. No. 24). This Report
and Recommendation (“R&R”) replaces the March
27, 2018 R&R (Doc. No. 10), relating to
Morales's original complaint. A separate order issued
along with this R&R has withdrawn the March 27, 2018
court may dismiss claims asserted in an inmate's
complaint if the court lacks subject matter 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. § 1915A(b). 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 the plaintiff's
favor, in deciding if the pleading states a claim upon which
relief can be granted. See Ocasio-Hernández v.
Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011).
an action on the basis of an “immunity” defense
under 28 U.S.C. § 1915A(b)(2), prior to service of the
complaint, is permissible if the facts alleged in the
complaint, or matters of which the court can take judicial
notice, conclusively establish the elements of that defense.
See Story v. Foote, 782 F.3d 968, 970 (8th Cir.
2015) (affirming dismissal as “the defense of qualified
immunity is established on the face of the complaint”).
Cf. Gray v. Evercore Restructuring LLC, 544 F.3d
320, 324 (1st Cir. 2008) (“Where a court grants a Rule
12(b)(6) or Rule 12(c) motion based on an affirmative
defense, the facts establishing that defense must: (1) be
‘definitively ascertainable from the complaint and
other allowable sources of information,' and (2)
‘suffice to establish the affirmative defense with
case arises out of a December 2014 group strip search at the
New Hampshire State Prison (“NHSP”). The search
followed a holiday party attended by approximately one
hundred inmates and their families. Morales, who attended the
entire event, alleges that about half of the inmates left the
event early. The inmates who left early, Morales claims, were
subjected to a fully-clothed pat-down search upon leaving.
After the event ended and the families left, a
“cadet” corrections officer (“CO”)
identified in the Amended Complaint as “John Doe 3,
” Am. Compl. ¶ 16 (Doc. No. 27), at 7,
announced to all of the remaining inmates, including Morales,
that they would be subjected to a strip search, under orders
of NHSP Maj. Jon Fouts, Sgt. Keith Forcier, and Capt.
Roderick Greenwood.Morales further alleges that an unnamed
officer, who Morales identifies as “CO John Doe 1,
” was one of the COs who ordered and conducted the
strip search. Second Am. Compl. ¶¶ 15, 58, 67 (Doc.
No. 27), 7, 11-12.
asserts that two of the inmates at the party were given the
opportunity to be strip-searched in a bathroom off the
gymnasium. The remaining inmates were compelled to strip,
bend over, lift their testicles, spread their buttocks, and
cough in groups of eight in the center of the gymnasium,
without privacy screens. The searches occurred in the
presence of other male inmates and a No. of COs, including
one female CO, defendant Kelly Jardine, who Morales asserts
“gawked” at the inmates being searched from her
position above the gymnasium floor, some distance
away. Id. at 8, ¶¶ 22-28. The
search occurred beneath a video surveillance camera that
Morales asserts, “on information and belief, ”
was monitored by a female CO he identifies as “Jane Doe
1.” Id. at 8, ¶ 29.
being directed to submit to the strip search, Morales and
other inmates verbally protested, stating that the search
would violate their rights. Morales asserts that “John
Doe 2, ” a “cadet” CO near him, responded
by threatening to issue Morales a disciplinary ticket if he
did not comply, and by saying that the more Morales
protested, the longer his search would take. See Id.
at 7-9, ¶¶ 15, 34, 36. Morales asserts that CO John
Doe 2 then subjected Morales to an excessively “long,
slow and humiliating search.” Id. at 9, ¶
further asserts that his “devout catholic”
religious beliefs, Id. at 12, ¶ 63, forbid him
from baring his body to people to whom he is not married.
Morales claims that the December 2014 group strip search
required him to act in a manner contrary to his religious
NHSP inmates, in addition to Morales, filed lawsuits in this
court claiming that the December 2014 holiday party group
strip search violated their federal rights, naming similar
defendants and alleging similar facts. See Beers v.
Fouts, No. 15-cv-454-SM (D.N.H.); Baptiste v.
Foster, No. 16-cv-439-JD (D.N.H.). Unlike Morales,
however, the plaintiffs in Baptiste and
Beers did not include any allegations about: cadet
CO John Doe 2 engaging in retaliation, CO Jane Doe 1
monitoring the surveillance camera, or the early departure
and pat-down search of any inmates. The analogous claims in
Beers and Baptiste were resolved in the
defendants' favor. See, e.g., Mar. 30, 2017
Order, Baptiste v. N.H. Att'y Gen'l, No.
16-cv-439-JD, 2017 U.S. Dist. LEXIS 49496, 2017 WL 1207505
(D.N.H. Mar. 30, 2017) (ECF No. 11) (“Baptiste
I”) (complaint fails to state claim under Eighth
Amendment); May 25, 2017 Order, Baptiste v. Foster,
2017 DNH 098, 2017 U.S. Dist. LEXIS 80241, 2017 WL 2303975
(D.N.H. May 25, 2017) (ECF No. 15)
(“Baptiste II”) (Fourth Amendment claim
is barred by qualified immunity); July 17, 2017 Order,
Baptiste v. MacDonald, 2017 DNH 140, 2017 U.S. Dist.
LEXIS 110172, 2017 WL 3034254 (D.N.H. July 17, 2017) (ECF No.
22) (“Baptiste III”) (same). See also
Feb. 2, 2016 Order, Beers v. N.H. Governor, No. 15-cv-454-SM,
2016 U.S. Dist. LEXIS 12075, 2016 WL 409695 (D.N.H. Feb. 2,
2016) (ECF No. 13) (“Beers I”) (complaint fails
to state claim under Eighth Amendment); Sept. 12, 2017 Order,
Beers v. Fouts, No. 15-cv-454-SM, 2017 U.S. Dist.
LEXIS 147077, 2017 WL 4041316 (D.N.H. Sept. 12, 2017) (ECF
No. 92) (“Beers II”) (Fourth
Amendment claim is barred by qualified immunity); March 7,
2018 Order, Beers v. Fouts, 2018 DNH 045, 2018 U.S.
Dist. LEXIS 37911, 2018 WL 1221157 (D.N.H. Mar. 7, 2018) (ECF
No. 102) (“Beers III”) (same);
July 10, 2018 Order, Beers v. Fouts, 2018 DNH 144,
2018 U.S. Dist. LEXIS 114202, 2018 WL 3370628 (D.N.H. July
10, 2018) (ECF No. 114) (“Beers
IV”) (First Amendment free exercise claim is
barred by qualified immunity and for failure to state a claim
upon which relief can be granted).
declaratory and injunctive relief against defendants in their
official capacities and damages against defendants in their
individual capacities, Morales asserts the following claims
under 42 U.S.C. § 1983 and state law:
making Morales the object of an excessively long, slow, and
humiliating search after Morales protested that the search
would violate his rights, CO John Doe 2:
a. Violated Morales's Fourth Amendment right not to be
subjected to an unreasonable search, lacking any legitimate
b. Violated Morales's Eighth Amendment right not to be
subjected to cruel and unusual punishment; and
c. Violated Morales's right to avoid retaliation for
engaging in conduct protected by the First Amendment.
Defendant COs Jane Doe 1, John Doe 1, Kelly Jardine, and John
Doe 3; Maj. Jon Fouts; Capt. Roderick Greenwood; and Sgt.
Keith Forcier, in causing Morales to be strip-searched
without privacy screens in the presence of other male inmates
and COs, including a female CO, in view of a surveillance
camera monitored by a female CO, violated Morales' rights
a. the Fourth Amendment, and
b. the Eighth Amendment.
Jardine, Jane Doe 1, and John Does 1, 2, and 3; Capt.
Greenwood; Sgt. Forcier; and Maj. Fouts violated
Morales's First Amendment right to the free exercise of
religion, in that they required Morales to perform acts
forbidden by his religion.
Jane Doe 1, John Does 1-3, and Jardine; Capt. Greenwood; Sgt.
Forcier; and Maj. Fouts violated Morales's Fourteenth
Amendment right to equal protection by subjecting only
inmates like Morales who stayed until the end of the holiday
event to a strip-search, while allowing inmates who ...