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Morales v. Foster

United States District Court, D. New Hampshire

January 3, 2019

Irvin Morales
v.
Joseph Foster, William Wrenn, Christopher Kench, Colon Forbes, Richard Gerry, Jean Carrol, Jon Fouts, Roderick Greenwood, Keith Forcier, Kelly Jardine, John Doe 1, John Doe 2, John Doe 3, and Jane Doe 1

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge

         Before 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 A separate order issued along with this R&R has withdrawn the March 27, 2018 R&R.

         Preliminary Review Standard

         The 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).

         Dismissing 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 certitude.'”).

         Background

         This 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.[1]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.

         Morales 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.[2] 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.

         Upon 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, ¶ 38.

         Morales 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 beliefs.

         Two 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).[3]

         Claims

         Seeking 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:

         1. In 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 purpose;
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.

         2. 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 under

a. the Fourth Amendment, and
b. the Eighth Amendment.

         3. COs 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.

         4. COs 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 ...


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