UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Bryan Bernard a/k/a/

Josebh Vaillancour t

v . 07-cv-327-SM

New Hambshire Department

of Corrections, et al .

REPORT AND RECOMMENDATION

Pro se plaintiff Bryan Bernard brings this civil rights

action, pursuant to 42 U .S .C . § 1983, alleging that defendants

have abridged his rights under the Eighth Amendment to the United

States Constitution (document nos . 1 and 3-4} . He further

alleges that defendants have abridged his rights under Title II

of the Americans With Disabilities Act ("ADA"), 42 U .S .C . §

12132, et seq .

Named as defendants are William L . Wrenn, Commissioner of

the New Hampshire Department of Corrections ( "NHDOC"), Kelly A .

Ayotte, New Hampshire Attorney General, and the followin g

employees of the New Hampshire State prison ( °NHSP") : Bruce W .

Cattell, Former Warden ; Gregg Crompton, Deputy Warden ;

Case 1:07-cv-00327-SM Document 7 Filed 02/26/08 Page 1 of 12
corrections officers Tim Moquin, Christopher Shaw, Todd Ash and

Ross Cunningham . Also named is Officer O'Brien, an employee of

the New Hampshire State Police .

The complaint is before me for preliminary review to

determine whether, among other things, it states a claim upon

which relief may be granted . See 28 U .S .C . § 1915A ; U .S .

District Court for the District of New Hampshire Local Rule

('ZR") 4 .3(d)(2) . For the reasons stated below, I find that

Bernard has alleged Eighth Amendment claims, premised upon the

use of excessive force, against Moquin, Shaw, Ash, Cattell and

Wrenn . I recommend dismissal of all remaining claims .

Standard of Review

Under this court's local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

magistrate judge is directed to conduct a preliminary review . LR

4 .3(d)(2) . In conducting the preliminary review, the court

construes pro se pleadings liberally, however inartfully pleaded .

See Erickson v . Pardus , _ U.S . _, 127 S . Ct . 2197, 2200

(2007) (following Estelle v . Gamble , 429 U .S . 97, 106 (1976) and

Haines v . Kerner , 404 U .S . 519, 520-21 (1972) to construe pro s e

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pleadings liberally in favor of the pro se party) . "The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled ." See

Castro v . United States , 540 U .S . 375, 381 (2003) (noting that

courts may construe pro se pleadings so as to avoid

inappropriately stringent rules and an unnecessary dismissals of

claims) ; Ahmed v . Rosenblatt , 118 F .3d 886, 890 (1st Cir . 1997) .

All of the factual assertions made by a pro se plaintiff and

inferences reasonably drawn therefrom must be accepted as true .

See id . This review ensures that pro se pleadings are given fair

and meaningful consideration . I apply this standard in reviewing

Bernard's complaint .

Background

The following facts are derived from the complaint an d

construed in Bernard's favor . This action stems from Bernard's

confinement in the secured housing unit ("SHU") at the NHSP and

corrections officers' alleged use of excessive force against him .

According to Bernard, on at least four occasions during April

2005 through October 2005, corrections officers in the control

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room intentionally caused him to be crushed by the electronic

metal doors in the SHU while he was attempting to exit . As a

result, he allegedly sustained physical injuries and endured

unnecessary pain and suffering . Although he has not identified

his injuries, Bernard alleges that he was crushed by the metal

doors . He further alleges that the following officers were

responsible for his injuries and acted with deliberate

indifference to his safety : (1) Tim Moquin, SHU Unit Manager ; (2)

Lieutenant Chris Shaw ; and (3) Corrections Officer Todd Ash .

Bernard allegedly reported the deprivations and resulting

injuries to Cattell, Warden of the NHSP, and to Wrenn,

Commissioner of the NHDOC, however, they failed to remedy the

problem or take any corrective action . He now brings this civil

rights action, alleging that defendants' acts and omissions

violate his rights under Section 1983 and Title II of the ADA .

Discussion

I . Section 1983 Claims

Section 1983 creates a cause of action against those who,

acting under color of state law, violate federal law . See 42

U .S .C . § 1983 ; Parratt v . Taylor, 451 U .S . 527, 535 (1981) ;

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Rodriauez-Cirilo v . Garcia , 115 F .3d 50, 52 (lst Cir . 1997) . In

order to be held liable for a violation under Section 1983, a

defendant's conduct must have been a cause in fact of the alleged

constitutional deprivation . See Monell v . Dep't of Soc . Servs . ,

436 U .S . 658, 692 (1978) ; Soto v . Flores , 103 F .3d 1056, 1061-62

(1st Cir . 1997) . The premise of Bernard's Section 1983 claim is

that defendants, acting under color of state law, subjected him

to excessive force and resulting injury, in violation of his

Eighth Amendment right to be free from cruel and unusual

punishment .

A . Eiahth Amendment

In a prison setting, the use of excessive force against a

prisoner is analyzed under the Eighth Amendment prohibition

against cruel and unusual punishment . See Whitley v . Albers , 475

U .S . 312, 319-20 (1986) . See also See Davis v . Rennie , 264 F .3d

86, 98 n .9 (1st Cir . 2001) (citing Hudson v . McMillian , 503 U .S .

1, 4(1992)( 11 A convicted prisoner may bring a claim for use of

excessive force under the Eighth Amendment .") To state an Eighth

Amendment claim for the use of excessive force by prison guards,

an inmate must demonstrate "unnecessary and wanton infliction o f

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pain ." Whitley, 475 U .S . at 319-20 . "[T]he core judicia l

inquiry is . . . whether force was applied in a good-faith effort

to maintain or restore discipline, or maliciously and

sadistically to cause harm ." see Hudson , 503 U .S . at 7 (citing

Whitley, 475 U .S . at 320-21) . To prevail on an excessive force

claim, a plaintiff must show that the alleged use of force is

"objectively sufficiently serious or harmful enough" to be

actionable . Hudson , 503 U .S . at 8 ; accord United States v .

Walsh , 194 F .3d 37, 50 (2d Cir . 1999) . An excessive force claim

may be established even if the plaintiff does not suffer serious

or significant injury, if he can demonstrate that the amount of

force used is more than de minimis , or otherwise involves force

"repugnant to the conscience of mankind ." Hudson , 503 U .S . at 9-

10 .

Here, Bernard alleges that on at least four occasions during

April 2005 through October 2005, corrections officers in the

control room intentionally caused him to be crushed by the

electronic metal doors in the SHU .1 The incidents allegedly

occurred when Bernard was "exiting for his shower/dayroom time . "

-Bernard has alleged similar excessive force claims in

Vaillancourt v . Campbell , Civil No . 06-cv-438-JD, 2007 WL

1964148, slip op . (D .N .H . May 3, 2007), however, those claims

were dismissed without prejudice .

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Although he has not identified his injuries, Bernard claims that

he was crushed by the metal doors, that he sustained physical

injuries and that the officers involved acted with deliberate

indifference to his safety . He appears to further allege that

Moquin, Shaw and Ash were the corrections officers in the control

room and were responsible for his injuries . Bernard allegedly

reported the deprivations and resulting injuries to Cattell and

Wrenn, however, they failed to remedy the problem or take any

corrective action . Nothing in the record suggests that Bernard

provoked the incident or otherwise posed an immediate threat to

the safety of the corrections officers or the security of the

prison . Nor is there any indication that the excessive force was

used by the officers in a good-faith effort to maintain or

restore discipline . For purposes of preliminary review, I find

that Bernard has alleged Eighth Amendment excessive force claims

against Moquin, Shaw, Ash, Cattell and Wrenn .

In addition to the above defendants against whom claims have

been stated, Bernard also has named the following individuals as

defendants to this action : Kelly A . Ayotte, New Hampshire

Attorney General ; Gregg Crompton, Deputy Warden of the NHSP ; Ross

Cunningham, NHSP corrections officer ; and Officer O'Brien, New

Hampshire State Police employee . I find that Bernard has no t

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stated any claims against these individuals upon which relief may

be granted and, therefore, recommend dismissal of the excessive

force claims against them .

IT . ADA Claims

Construed liberally, the complaint alleges that defendants

failed to accommodate Bernard's disability andtor provide him

with reasonable modifications in violation of Title IT of th e

ADA .

A . Title II

Title IT of the ADA prohibits discrimination on the basis of

disability . See Buchanan v . Maine , 469 F .3d 158, 170-71 (lst

Cir . 2006) . Title IS provides that "no qualified individual with

a disability shall, by reason of such disability, be excluded

from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to

discrimination by any such entity ." 42 U .S .C . § 12132 . A

"`qualified individual with a disability' is defined as `an

individual with a disability who, with or without reasonable

modifications to rules, policies, or practices, the removal of

architectural, communication, or transportation barriers, or the

provision of auxiliary aids and services, meets the essential

requirements for the receipt of services of the participation i n

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programs or activities provided by a public entity .'" United

States v . Georgia, 546 U .S . 151, 126 S . Ct . 877, 879 (2006)

(quoting 42 U .S .C . § 12131(1)) . A "public entity" is defined as

"any State or local government" and "any department, agency, . .

. or other instrumentality of a State, § 12131(1) ." Id . This

term includes state prisons . Id . (citing Pennsvlvania Deb't of

Corrections v . Yeskey, 524 U .S . 206, 10 (1998)(holding that

"prisons provide inmates with many recreational `activities,'

medical `services,' and educational and vocational `programs,'

all of which at least theoretically `benefit' the prisoners (and

any of which disabled prisoners could be 'excluded from

participation in . "' ) ) .

The First Circuit has held that a plaintiff seeking relief

under Title II must establish :

(1) that he is a qualified individual with a

disability ; (2) that he was either excluded from

participation in or denied the benefits of some public

entity's services, programs, or activities or was

otherwise discriminated against ; and (3) that such

exclusion, denial of benefits, or discrimination was by

reason of the plaintiff's disability .

Parker v . Universidad de P .R . , 225 F .3d 1, 5 (1st Cir . 2000) .

Here, Bernard broadly alleges that he is handicapped without

identifying any disability . Even assuming that Bernard is a

qualified individual with a disability, I find that he has not

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alleged any actions by the defendants that violate his right to

receive reasonable accommodations and modifications for a

disability . I further find that he has not alleged any actions

by the defendants that stem from discriminatory intent related to

a disability . Construing the complaint liberally and accepting

Bernard's allegations as true, I conclude that he has failed to

allege sufficient facts to state a cognizable claim under Title

II of the ADA . Accordingly, I recommend dismissal of this claim

in its entirety .

III . Official Capacit v

Construed liberally, the complaint seeks injunctive and

monetary relief for wrongs committed by the defendants as state

actors in their official capacities . It is well-settled that the

Eleventh Amendment bars suits against state entities and state

agents working in their official capacities unless the state has

expressly waived immunity, which has not been done by New

Hampshire for actions brought under Section 1983 . See Puerto

Rico Aaueduct & Sewer Auth . v . Metcalf & Eddy, Inc . , 506 U .S .

139, 144 (1993) (absent waiver, neither a State nor agencies

acting under its control may be subject to suit in federal

court) ; will v . Michigan Dep't of State Police , 491 U .S . 58, 71

(1989)(holding that neither a state nor its officials acting in

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their official capacities are "persons" under Section 1983) .

Official capacity suits against officers of an agency are simply

"another way of pleading an action against an entity of which an

officer is an agent ." Monell , 436 U .S . at 690 n .55 . To the

extent Bernard brings official capacity claims for monetary

relief against the state defendants, who are officials of the

NHDOC andlor NHSP, I recommend that those claims be dismissed .

On the other hand, official capacity actions against state

actors for prospective injunctive relief are not treated as

actions against the state and may be considered under Section

1983 . See Will , 491 U .S . at 71 n .10 . Thus, Bernard is not

barred from bringing claims for prospective injunctive relief

against the defendants in their official capacities .

Conclusion

For the reasons stated above, I find that Bernard has

alleged Eighth Amendment claims, premised upon the use of

excessive force, against Moquin, Shaw, Ash, Cattell and Wrenn .

I recommend dismissal of all remaining claims . Accordingly, by

separate order issued simultaneously with this report and

recommendation, I authorize the above viable claims to proceed .

if this recommendation is approved, the claims as identified

in this report and recommendation, will be considered for al l

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purposes to be the claims raised in the complaint . If the

plaintiff disagrees with the identification of the claims herein,

he must do so by objection filed within ten (10) days of receipt

of this report and recommendation, or he must properly move to

amend the complaint .

Any further objection to this report and recommendation must

be filed within ten (10) days of receipt of this notice . Failure

to file objections within the specified time waives the right to

appeal the district court's order . See 28 U .S .C . § 636(b)(1) ;

see also Unauthorized Practice of Law Committee v . Gordon , 979

F .2d 11, 13-14 (lst Cir . 1992) ; United States v . Valencia-Copete,

792 F .2d 4, 6 (1st Cir . 1986) .

Date : February 2 (o , 200 8

cc : Bryan Bernard, pro se

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