Palo v. Hillsborough County Department of Corrections, Superintendent
ORDER: Plaintiff to amend his complaint as outlined within 30 days. Amended Pleadings due by 5/22/2013. So Ordered by Magistrate Judge Landya B. McCafferty.(dae)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jacob E. Palo
Civil No. 12-cv-407-JD
David Dionne, Superintendent,
Hillsborough County Department
O R D E R
Before the court is Jacob Palo’s complaint (doc. no. 1) and
addenda thereto (doc. nos. 4 and 7),1 asserting that defendant
David Dionne, the Superintendent of the Hillsborough County
Department of Corrections (“HCDC”), has violated Palo’s
constitutional rights during Palo’s incarceration at the HCDC.
The matter is before the court for preliminary review to
determine, among other things, whether the complaint states any
claim upon which relief might be granted.
See 28 U.S.C.
§ 1915A(a); United States District Court District of New
Hampshire Local Rule (“LR”) 4.3(d)(2).
For reasons explained
Palo filed a motion for injunctive relief (doc. no. 4) and
an amended motion for injunctive relief (doc. no. 7) that have
been denied. See Order (doc. no. 14). Because those motions
asserted facts relevant to the court’s consideration of the
underlying claims in the complaint, along with new claims for
relief, the court will consider the factual allegations in those
motions to be part of the complaint in this matter for all
herein, the court grants Palo leave to amend one of the claims
in his complaint.
The court intends to complete its preliminary
review of the complaint either after Palo files an amended
complaint in this action, or after the time allowed for him to
do so elapses.
Preliminary Review Standard
Pursuant to LR 4.3(d)(2) and 28 U.S.C. § 1915A(a), the
magistrate judge conducts a preliminary review of pro se in
forma pauperis complaints before defendants have an opportunity
to respond to the claims.
The magistrate judge may direct
service of the complaint, or, as appropriate, recommend to the
district judge that one or more claims be dismissed if: the
court lacks subject matter jurisdiction, a defendant is immune
from the relief sought, the complaint fails to state a claim
upon which relief may be granted, the allegation of poverty is
untrue, or the action is frivolous or malicious.
See 28 U.S.C.
§ 1915A(b); LR 4.3(d)(2).
In determining whether a pro se complaint states a claim,
the court must construe the complaint liberally.
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
preliminary review, the complaint must contain “sufficient
factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’”
See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)); Sepúlveda-Villarini v. Dep’t of Educ.,
628 F.3d 25, 29 (1st Cir. 2010).
To determine plausibility, the
court treats as true all well-pleaded factual allegations, and
construes all reasonable inferences drawn therefrom in the
See Ocasio-Hernández v. Fortuño-Burset, 640
F.3d 1, 12 (1st Cir. 2011).
Palo asserts in his complaint (doc. nos. 1, 4 & 7), that he
was subjected to unconstitutional strip searches at the HCDC, in
violation of his Fourth Amendment rights.2
To evaluate a Fourth
Amendment claim based on improper strip searches, the court
reviews the facts alleged in light of four factors relevant to
its consideration: 1) the scope of the intrusion; 2) the manner
in which the search was conducted; 3) the justification for the
search; and 4) where the search was conducted.
See Bell v.
Wolfish, 441 U.S. 520, 559 (1979).
In his complaint (doc. nos. 1, 4 & 7), Palo has asserted a
number of other claims in this matter that are not relevant to
the strip search claim discussed in this order, and will thus
not be addressed at this time.
Palo alleges that while he was housed at the HCDC, he was
strip-searched up to four times daily, and that the searches
humiliated him in an unspecified manner.
As to the first Bell
factor, Palo does not describe the scope of the search except to
call it a “strip” search.
As to the second factor, Palo does
not describe the specific manner in which the searches were
conducted that caused him to be humiliated.
As to the third and
fourth factors, Palo does not state facts to indicate whether
there was any particularized justification for any of the strip
searches, or where the searches were conducted.
Palo’s assertion that he was strip-searched up to four
times a day in a manner that humiliated him is not sufficient to
assert a plausible claim that Palo was subjected to unreasonable
searches under the Fourth Amendment.
In addition to his failure
to describe any specific facts about the searches, Palo has not
identified any individual officer or officers who actually
conducted the strip searches, and precisely what each officer
did that violated Palo’s rights.
The court finds, however, that the allegations Palo has
asserted to date do not rule out the possibility that Palo
could, by asserting additional facts describing the specifics of
the strip searches, state a Fourth Amendment claim upon which
relief might be granted.
Accordingly, the court grants Palo
leave to file an amended complaint that asserts facts to
demonstrate that he can assert a plausible Fourth Amendment
claim for relief.
Finally, the court notes that Superintendent Dionne is the
only defendant named in the complaint.
Palo has neither
identified any individual officer who actually conducted the
search nor stated what that officer did or failed to do that
violated Palo’s rights under the Fourth Amendment.
Palo has not stated any specific act or omission on the part of
Dionne that has violated Palo’s rights.
Palo will thus be given
the opportunity to identify the defendants he intends to sue in
this matter, and to state, with specificity, how that individual
violated Palo’s Fourth Amendment rights.
Palo is granted leave to file an amended complaint in this
matter, within thirty days of the date of this order, as
Palo must identify the officers who conducted the
allegedly improper strip searches of Palo;
As to each named defendant, Palo must state, with
specificity, what actions the defendant took that violated
Palo’s rights, including, for example: the scope of the
searches; the manner and frequency with which the searches
were conducted; the circumstances under which the searches
took place, where the searches were done, and who was
present during the searches.
Upon receipt of Palo’s amended complaint, or upon expiration of
his time to file an amended complaint, the court will complete
the preliminary review in this matter.
United States Magistrate Judge
April 22, 2013
Jacob E. Palo, pro se