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Cherry v. Hanks

United States District Court, D. New Hampshire

May 10, 2019

David M. Cherry
v.
Helen E. Hanks, Commissioner, New Hampshire Department of Corrections et al.[1]

          David Cherry, pro se Lawrence Edelman, Esq. Seth Michael Zoracki, Esq.

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge

         David Cherry, a former inmate at the New Hampshire State Prison (“NHSP”) has filed this action, pursuant to 42 U.S.C. § 1983, asserting that defendants violated his Eighth Amendment right to be free from cruel and unusual punishment, and are liable for negligence under state law, by failing to protect him from harm. Specifically, this action arises from Cherry's allegation that the defendant prison officials, aware that Cherry had safety concerns at the prison, due to, among other things, Cherry's well-known status as a “snitch, ” transferred him from protective custody to a general population housing unit. As a result, Cherry alleges, he was assaulted and seriously injured by another inmate.

         Before this magistrate judge for a Report and Recommendation is the defendants' motion to dismiss (Doc. No. 18). Plaintiff objected to the motion, see Doc. Nos. 19, 20, and the defendants filed a response (Doc. No. 21) to his objections.

         Motion to Dismiss Standard

         When ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, see Fed.R.Civ.P. 12(b)(6), the court must “‘accept as true all well-pleaded facts alleged in the complaint and draw all reasonable inferences therefrom in the [plaintiff's] favor.'” Lemelson v. Bloomberg L.P., 903 F.3d 19, 23 (1st Cir. 2018) (citation omitted). Then, when focusing “on the non-speculative, non-conclusory facts and reasonable inferences implied by those facts, [the court must] ask whether it is plausible, as opposed to merely possible, that [the] plaintiff's complaint narrates a claim for relief.” Lemelson, 903 F.3d at 23 (citation omitted). Applying this standard, the court relies on the following facts, drawn from plaintiff's complaint.

         Background

         In February 2018, Cherry was incarcerated at the NHSP. Also incarcerated at that facility, at that time, were several men against whom Cherry had testified at ¶ 2010 murder trial. Cherry states that he is widely regarded among the NHSP inmate population as an informer, or “snitch.”

         Before his incarceration at the NHSP commenced, Cherry sent letters and emails to the prison's Classification Office, and to the NHSP's Classifications Administrator, Sarah Provencher, informing that office that his safety would be at risk at the NHSP because of his 2010 testimony and his reputation as a “snitch.” Once Cherry arrived at the NHSP, he used inmate request slips to advise prison officials of those risks to his safety.

         The New Hampshire Department of Corrections (“DOC”) has issued a No. of directives (called “keep aways”) directing that, for safety reasons, Cherry be kept separate from certain other inmates. Until February 1, 2018, Cherry was classified as a protective-custody inmate and was housed in a protective-custody unit. On that date, however, Provencher, NHSP security chief Jon Fouts, and former NHSP Warden Michael Zenk transferred Cherry into the general population. On February 18, Cherry was assaulted with a weapon by another inmate, Samuel Hill, in a blind spot in the recreation room in the South housing unit. Cherry states he suffered serious physical and psychological injuries in the assault.

         Discussion

         In his complaint, Cherry asserts that the defendants' failure to protect him from harm at the hands of other inmates, resulting in his being assaulted and physically injured, violated Eighth Amendment rights and constituted negligence under state law. In their motion to dismiss, the defendants argue that Cherry has failed to allege facts sufficient to satisfy the “causation” element of either of those claims.

         I. Eighth Amendment Claim

         Defendants argue that Cherry has failed to allege facts that satisfy the causation element of ...


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