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Burns v. N.H. Correction Corporal FNU Croteau

United States District Court, D. New Hampshire

July 2, 2019

Joshua Burns
v.
N.H. Correction Corporal FNU Croteau, et al.

          ORDER

          Landya McCafferty United States District Judge.

         Plaintiff 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.

         STANDARD OF REVIEW

         Under 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).

         BACKGROUND

         The 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.

         Sweatt 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.

         For two 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.

         Following 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 NCF.”

         LEGAL DISCUSSION

         Defendants 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.

         I. Failure to Intervene

         In 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.

         “An 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, ...


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