United States District Court, D. New Hampshire
McCafferty United States District Judge.
Joshua Burns brings this suit against defendants Corporal
Jason Croteau (“Croteau”), Sergeant Dwyane Sweatt
(“Sweatt”), and Correction Officers “John
Does, ” all employees of the Northern Correctional
Facility for Men in Berlin, New Hampshire
(“NCF”). Burns alleges that Croteau and Sweatt
used excessive force against him and that the John Doe
defendants failed to intervene to protect him in violation of
his civil rights under 42 U.S.C. § 1983. Burns also
brings a No. of state tort claims against Croteau and Sweatt.
Currently before the court is defendants' motion to
dismiss all the state law claims, as well as the failure to
intervene claim against the John Doe defendants. Burns
objects. For the reasons that follow, the motion to dismiss
is granted in part and denied in part.
Fed.R.Civ.P. 12(b)(6), the court must accept the factual
allegations in the complaint as true, construe reasonable
inferences in the plaintiff's favor, and “determine
whether the factual allegations in the plaintiff's
complaint set forth a plausible claim upon which relief may
be granted.” Foley v. Wells Fargo Bank, N.A.,
772 F.3d 63, 71 (1st Cir. 2014) (internal quotation marks
omitted). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
following facts are taken from Burns's amended complaint.
At all relevant times, Burns was an inmate at NCF. On April
27, 2016, Croteau ordered Burns to do
“extra-duty.” Burns told Croteau that he did not
have extra duty. Sweatt then told Burns that if he did not
perform extra-duty “his day was not going to go
well.” While stating again that Burns had extra duty,
Croteau “shov[ed] a cleaning bottle and a rag in
Burns['s] face and down his shirt.” Burns responded
that he was not going to perform extra duty.
and Croteau then “slammed Burns['s] face into a
cement wall.” While handcuffing Burns, Sweatt pulled
Burns's arms back in such a manner that Burns suffered a
dislocated right shoulder. Croteau and Sweatt then
“dragged” Burns to the reception area to process
him. Croteau asked Burns if there was “going to be an
issue if the cuffs came off, ” but Burns did not
respond. Croteau then “threw Burns['s] face down on
the cement floor” while the John Doe defendants
“forcibly removed his sneakers, socks, pants, and
boxers.” Burns alleges that the John Doe defendants
were present during the incident, witnessed the assault, and
did nothing to protect Burns or prevent the assault.
months after this incident, Burns felt “extreme
pain” in his right shoulder and had to wear a sling on
his right arm. Burns suffered mental health issues and
recurring nightmares because of this incident.
this incident, a disciplinary hearing occurred. Burns was
charged with “preventing or interfering with the search
of an inmate, his/her cell or his/her property, ” and
“conduct which disrupts or interferes with the security
of orderly operation of the institution.” The
hearing's officer concluded that the charges were
“unfounded.” She also determined that Burns
“may have been unnecessarily assaulted by officers in
make two arguments. First, they argue that Burns fails to
allege a plausible claim of excessive force against the John
Doe Defendants under a failure to intervene theory. Second,
Defendants argue that certain of the state claims in Count 2
should be dismissed and, in any event, they have immunity on
all of the state tort claims.
Failure to Intervene
Count I, Burns alleges that the John Doe defendants failed to
intervene when Croteau and Sweatt used excessive force
against him. Defendants argue that the allegations fail to
state a plausible claim against the John Doe defendants.
officer who is present at the scene and who fails to take
reasonable steps to protect the victim of another
officer's use of excessive force can be held liable under
section 1983 for his nonfeasance.” Gaudreault v.
Salem,923 F.2d 203, 207 n.3 (1st Cir. 1990). To prevail
on a “failure to intervene” claim the following
elements must be satisfied: (1) the defendant was present at
the scene of the alleged excessive use of force at the time
it occurred; (2) the defendant actually observed the alleged
excessive use of force; (3) the defendant was in a position
where he or she could realistically prevent the alleged use
of excessive force; and (4) there was sufficient time
available to prevent the alleged excessive use of force. See
Davis v. Rennie,264 F.3d 86, 97, ...