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Morales v. Foster

United States District Court, D. New Hampshire

June 17, 2019

Irvin Morales
v.
Joseph Foster et al.[1]

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE

         Before the court is plaintiff Irvin Morales's Third Amended Complaint (“TAC”) (Doc. No. 33-1). The TAC is before the court for preliminary review, pursuant to LR 4.3(d)(1) and 28 U.S.C. § 1915(e)(2), to determine whether any of the claims stated in that pleading may proceed.

         Preliminary Review Standard

         This court applies the same preliminary review standard to the TAC that the court used to conduct the preliminary review of the Second Amended Complaint (“SAC”) in this case. That standard is set forth in the January 3 R&R.

         Background

         The undersigned Magistrate Judge conducted a preliminary review of Morales's Second Amended Complaint (“SAC”) (Doc. No. 27) on January 3, 2019, which resulted in the issuance of a Report and Recommendation (“January 3 R&R”) (Doc. No. 29) recommending that the district judge dismiss most of the claims in the SAC and all of the named defendants, and an Order (Doc. No. 30) directing service of the SAC on the remaining defendant, an unnamed Corrections Officer (“CO”) identified as CO John Doe 2. Morales filed the proposed TAC as an exhibit in response to the January 3 R&R and submitted it along with a motion seeking leave to file it, see Doc. No. 33. The district judge subsequently approved the January 3 R&R, see Feb. 1, 2019 Order (Doc. No. 35).

         The TAC is like the SAC, with some differences. Fewer supervisory defendants are identified in the TAC, one claim has been dropped altogether, and several new or clarified allegations have been added. In the January 3 R&R, the court identified and numbered Claims 1-4 in the SAC, as follows:

1. In making Morales the object of an excessively long, slow, and humiliating search after Morales protested that the search would violate his rights, Corrections Officer (“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 left the event early to be searched by being patted-down while wearing clothes.

         Upon completing its preliminary review of the SAC, the court dismissed Claims 2(a), 2(b), 3, and 4, see Feb. 1, 2019 Order (Doc. No. 35) (approving Jan. 3, R&R (Doc. No. 29)), and directed service of Claims 1(a), 1(b), and 1(c) upon defendant CO John Doe 2, see Jan. 3 Order (Doc. No. 30). Morales has reasserted Claims 1-4 in the TAC.[2]

         In the TAC, Morales also asserts the following new claim of supervisory and/or bystander liability, identified in this R&R as Claim 6, against defendants who are ...


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