DIXON v. JOHN DOE

Filing 20

REPORT AND RECOMMENDED DECISION re 10 MOTION to Dismiss for Failure to State a Claim filed by JOHN DOE. Objections to R&R due by 9/15/2016. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
RICHARD ALLEN DIXON, JR.,
Plaintiff
v.
DALTON GROEGER,
Defendant

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2:16-cv-00178-NT

MEMORANDUM OF DECISION ON PLAINTIFF’S MOTION TO AMEND AND
RECOMMENDED DECISION ON DEFENDANT’S MOTION TO DISMISS
In this action, Plaintiff Richard Allen Dixon, Jr., alleges that Defendant Dalton Groeger1
violated his constitutional rights while Plaintiff was detained in protective custody at the York
County Jail. Specifically, Plaintiff alleges cruel and unusual punishment in violation of the Eighth
Amendment and retaliation in violation of the First Amendment. (Am. Compl. ¶ 1, ECF No. 4.)
The matter is before the Court on Defendant’s Motion to Dismiss (ECF No. 8) and Plaintiff’s
Motion to Amend his complaint. (ECF No. 15.)
Following a review of the pleadings, and after consideration of the parties’ submissions, I
grant Plaintiff’s Motion to Amend, and I recommend the Court deny Defendant’s Motion to
Dismiss.

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Plaintiff’s first amended complaint (ECF No. 4) identifies the Defendant as “John Doe,” but states that the officer in
question is “believed to be Officer Greger.” (Id. at 2, ¶ 4.) Defendant’s counsel executed a waiver of service form
that identifies the Defendant as “Officer John Doe believed to be Officer Greger.” (ECF No. 8 at 2.) Subsequently,
Defendant filed a motion to dismiss and identified Dalton Groeger as the defendant. The caption of the case shall be
modified accordingly.

BACKGROUND FACTS
In his first amended complaint,2 Plaintiff alleges that on August 30, 2015, Defendant
unlocked Plaintiff’s cell door to admit another prisoner, and then watched as the prisoner struck
Plaintiff to awaken him, held a sharpened pencil to Plaintiff’s throat, and threatened Plaintiff that
he must be silent or he would be hurt. (Am. Compl. ¶¶ 6 – 12.)
Plaintiff filed a grievance against Defendant on September 1, 2015. (Id. ¶ 14.) According
to Plaintiff, on September 8, 2015, Defendant entered Plaintiff’s cell and confronted Plaintiff about
the grievance. (Id. ¶ 15.) On September 11, Plaintiff filed a grievance against Defendant regarding
the September 8 confrontation. (Id. ¶ 18.)
DISCUSSION
A. Plaintiff’s Motion to Amend
When a party seeks to amend a complaint more than 21 days after the filing of a responsive
pleading, the other party’s consent or leave of court is required in order to amend the complaint.
Fed. R. Civ. P. 15(a)(2). In such a case, the court is to grant leave to amend “freely” when “justice
so requires.” Id.; see also Foman v. Davis, 371 U.S. 178, 182 (1962) (“In the absence of any
apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice
to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.—the
leave sought should, as the rules require, be ‘freely given.’”). Here, Plaintiff filed his motion soon
after the filing of and in response to the motion to dismiss. Given that Plaintiff filed the motion
before the Court issued a scheduling order, Plaintiff was not dilatory in filing the motion, and the
2

On April 13, 2016, Plaintiff filed an amended complaint. (ECF No. 4.) In the cover letter that accompanied the
amended complaint, Plaintiff asserted that he intended for the amended complaint to replace rather than supplement
his original complaint. (ECF No. 4-1.)

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record lacks any evidence of undue prejudice to Defendant. Plaintiff’s motion, therefore, is
granted.
B.

Defendant’s Motion to Dismiss
Defendant contends Plaintiff has not asserted an actionable claim. When considering

whether a complaint states a claim for which relief may be granted, a court must assume the truth
of all well-plead facts and give the plaintiff the benefit of all reasonable inferences therefrom.
Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). A complaint fails to state a
claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief
that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “The
relevant question ... in assessing plausibility is not whether the complaint makes any particular
factual allegations but, rather, whether ‘the complaint warrant[s] dismissal because it failed in toto
to render plaintiffs’ entitlement to relief plausible.’” Rodríguez–Reyes v. Molina–Rodríguez, 711
F.3d 49, 55 (1st Cir. 2013) (quoting Twombly, 550 U.S. at 569 n. 14). Although a pro se plaintiff’s
complaint is subject to “less stringent standards than formal pleadings drafted by lawyers,” Haines
v. Kerner, 404 U.S. 519, 520 (1972), the complaint may not consist entirely of “conclusory
allegations that merely parrot the relevant legal standard,” Young v. Wells Fargo, N.A., 717 F.3d
224, 231 (1st Cir. 2013).
Defendant’s motion to dismiss is evaluated in the context of the facts Plaintiff alleged in
support of his motion to amend his complaint. (ECF No. 15.) Defendant first argues that the facts
alleged regarding the incident with another prisoner do not describe conduct by the prisoner that
is sufficiently serious to support a constitutional claim and that, regardless of the seriousness of
the prisoner’s conduct, the alleged facts do not suggest that Defendant knew the prisoner would
threaten harm to Plaintiff. (Mot. to Dismiss at 5 – 6.) Defendant contends that Plaintiff’s First

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Amendment retaliation claim fails because, as a matter of law, the alleged confrontation with
Defendant following the filing of Plaintiff’s grievance was not materially adverse to Plaintiff. (Id.
at 7.)
In his supplemental pleading, Plaintiff asserts that on August 30, 2015, Plaintiff was in a
room with Defendant and “several young inmates.” Plaintiff describes Defendant as “goofing
around” with the other inmates. When he observed Defendant’s behavior, Plaintiff suggested to
Defendant that he should stop acting like the inmates because he was in charge. Defendant was
offended and exchanged words with Plaintiff. That night, after lockdown, Defendant brought a
prisoner to Plaintiff’s cell. Defendant then “stood there, doing nothing while he watched [the
prisoner harm or threaten Plaintiff].” (ECF No. 15 at 1 – 2, ¶¶ 4 – 6.)
Plaintiff also alleges that after he filed a grievance based on Defendant’s conduct,
Defendant not only appeared in Plaintiff’s cell to confront him, but also escorted Plaintiff
whenever he went anywhere, including on his daily trips to medical. Plaintiff maintains that when
Defendant accompanied him, Defendant tried to intimidate him. (Id. ¶¶ 13.)
1. Plaintiff’s use of force claim
Because Defendant was a state actor, Plaintiff’s claim arises under 42 U.S.C. § 1983 and
the Fourteenth Amendment. “The rights enforceable under [42 U.S.C.] § 1983 emanate through
the Fourteenth Amendment and they include substantive and procedural due process, the equal
protection of the laws, and those rights in the Bill of Rights incorporated by the Due Process
Clause, including rights protected by the First, Second, Fourth, and Eighth Amendments.”
Harpswell Coastal Acad. v. Maine Sch. Admin. Dist. No 75 (Topsham), No. 2:15-cv-00454-JAW,
2015 WL 7194934, at *4 (D. Me. Nov. 16, 2015).

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The standard that governs Plaintiff’s assault-based use of force claim is informed by his
status at the time. That is, whether an Eighth Amendment standard or a Fourth Amendment
standard applies depends on whether at the time Plaintiff was serving a sentence following
conviction or whether he was detained pending the disposition of a criminal charge. Kingsley v.
Hendrickson, 135 S. Ct. 2466, 2473 (2015). Plaintiff’s pleadings do not reflect whether he was
held as a pretrial detainee or was in execution of a sentence.
If Plaintiff was a pretrial detainee, “the Due Process Clause protects a pretrial detainee
from the use of excessive force that amounts to punishment.” Id. (quoting Graham v. Conner, 490
U.S. 386, 395 n.10 (1989)). The use of force can be considered “punishment” if it was not
“rationally related to a legitimate nonpunitive governmental purpose” or was “excessive in relation
to that purpose.” Id. at 2473 – 74 (quoting Bell v. Wolfish, 490 U.S. 520, 561 (1979)).
If Plaintiff was serving a sentence, the Eighth Amendment standard governs, and to be
actionable the conduct must involve “unnecessary and wanton infliction of pain.” Whitley v.
Albers, 475 U.S. 312, 319 (1986). The standard requires “more than ordinary lack of due care for
the prisoner’s interests or safety.” Id. In the application of this standard, courts typically consider
“whether force was applied … maliciously and sadistically for the very purpose of causing harm.”
Id. at 320 – 21 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). The “maliciously
and sadistically” terminology was specifically formulated by the Supreme Court to address
situations in which officers apply force “to resolve a disturbance.” Id. at 320. In the case of a
prison disturbance, a court must balance the application of force against the important state interest
of maintaining institutional security. Hope v. Pelzer, 536 U.S. 730, 738 (2002); Whitley, 475 U.S.
at 321 – 22; Skinner v. Cunningham, 430 F.3d 483, 488 (1st Cir. 2005). 3

Defendant asserts that Plaintiff’s claim is also subject to a “deliberate indifference” standard. (Mot. to Dismiss at
4.) Assuming this is correct, purposeful infliction of pain in the absence of any penological justification meets the

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Although Plaintiff has not alleged whether he was a pretrial detainee, he has alleged facts
sufficient to state a claim under either standard. A rational factfinder could reasonably conclude
that an officer who arranges a prisoner-on-prisoner assault or threat has both (1) engaged in an
objectively unreasonable application of force and (2) demonstrated more than ordinary lack of care
and a purpose to cause harm.4
2. Plaintiff’s retaliation claim
To state a claim of first amendment retaliation, an inmate must allege (1) that the inmate
engaged in conduct protected by the First Amendment; (2) that the defendant took adverse action
against the inmate because of the protected conduct; and (3) that the adverse action was more than
de minimis, i.e., was sufficient to deter an inmate of ordinary firmness from exercising his or her
first amendment rights. Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011); Davis v. Goord, 320
F.3d 346, 352 (2d Cir. 2003); Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th Cir. 1999).
In this Circuit, the filing of a prison grievance is considered protected conduct. Hannon,
645 F.3d at 48 (“The plaintiff, in filing his own grievances and legal actions, plainly engaged in
protected activity.”); Hightower v. Vose, 95 F.3d 1146 (Table), No. 95-2296, 1996 WL 516123,
*1 (1st Cir. Sept. 12, 1996). The issue is whether Defendant’s conduct after Plaintiff’s grievance

deliberate indifference standard. Hope, 536 U.S. at 738. Additionally, a factfinder can “infer the existence of this
subjective state of mind from the fact that the risk of harm is obvious.” Id.
As for Defendant’s argument that the risk of harm, viewed objectively, was not sufficiently serious to support a
constitutional claim, threatening conduct involving the use of weapons and physical contact could generate an
objectively serious risk of harm. Daniels v. Pitkins, No. 3:14-cv-02383, 2015 WL 4985127, at *5 (M.D. Pa. Aug. 19,
2015) (collecting cases). Using a prisoner to administer an assault only enhances the risk. The fact that serious injury
was not inflicted is not dispositive. Wilkins v. Gaddy, 559 U.S. 34, 34, 37 (2010) (per curiam) (citing Hudson v.
McMillian, 503 U.S. 1, 4, 9 (1992)). While Plaintiff does not allege any lasting pain or harm, and while “not ‘every
malevolent touch by a prison guard gives rise to a federal cause of action,’” even de minimis harm can suffice where
the force used is “repugnant to the conscience of mankind” and violates “contemporary standards of decency.” Id.
(quoting Hudson, 503 U.S. at 9). “Otherwise, the Eighth Amendment would permit any physical punishment, no
matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury.” Hudson, 503 U.S. at 9.
Assuming the alleged conduct occurred, a factfinder should be permitted to assess whether a prison guard who not
only uses a prisoner to deliver a threat with a deadly weapon, but also does so in the absence of any institutional
purpose, violates contemporary standards of decency.
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activity was adverse action that would deter an inmate of ordinary firmness from exercising his
right to petition for redress of grievance. “[T]his objective test applies even where a particular
plaintiff was not himself subjectively deterred; that is, where he continued to file grievances and
lawsuits.” Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004); see also Ayotte v. Barnhart, 973
F. Supp. 2d 70, 82 (D. Me. 2013).
Several circuit courts of appeals have held that harassment and threats can constitute the
necessary adverse action. Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009); Thaddeus-X,
175 F.3d at 398; Burgess v. Moore, 39 F.3d 216, 218 (8th Cir. 1994); Ford v. Palmer, 539 Fed.
App’x 5, 7 (2d Cir. 2013). Harassment, however, is not always actionable. Brown v. Lewis, 865
F. Supp. 2d 642, 648 (E.D. Pa. 2011). For example, a verbal insult alone does not constitute
adverse action. Vincent v. Sitnewski, 117 F. Supp. 3d 329, 340 (S.D.N.Y. 2015) (citing inter alia
Mateo v. Fischer, 682 F. Supp. 2d 423, 434 (S.D.N.Y. 2010) (collecting S.D.N.Y. cases concerning
verbal threats)); Briggs v. Wall, No. 1:09-cv-00456, 2009 WL 4884529, at *5 (D.R.I. Dec. 16,
2009) (“The alleged vague threat of future unspecified discipline … does not constitute ‘adverse
action’”).5 On the other hand, death threats and threats of serious physical harm generally suffice.
Evenstad v. Herberg, 994 F. Supp. 2d 995, 1001 (D. Minn. 2014) (concluding that the statement,
“We’ll be ramping things up,” was too vague to state a claim, where the complaint provided no
context to give the statement chilling effect, such as a “history of abuse or a pattern of threats” or
an accompanying “menacing gesture”).

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The First Circuit Court of Appeals has not had many occasions to review adverse action found by a district court to
be de minimis in the context of a prisoner retaliation claim. In Starr v. Dube, the Court held that an allegedly retaliatory
disciplinary charge was not an adverse action where the record established that the prisoner received a hearing before
discipline would be imposed and was successful in overcoming the charge. 334 Fed. App’x 341 (1st Cir. 2009) (per
curiam).
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Here, Plaintiff alleges that Defendant appeared in his cell one night and “confronted”
Plaintiff about his grievance (after already having let an inmate into Plaintiff’s cell to assault him).
Subsequently, according to Plaintiff, Defendant regularly “intimidated” Plaintiff during escorts to
Plaintiff’s daily appointments in the prison infirmary.

Although Plaintiff’s allegations are

somewhat general, a factfinder plausibly could conclude, particularly after Defendant allegedly
arranged for an inmate to assault and threaten Plaintiff, that Defendant’s alleged confrontation and
intimidation were sufficient to deter an inmate of ordinary firmness from exercising the inmate’s
constitutional rights. Plaintiff, therefore, has stated an actionable retaliation claim.
CONCLUSION
Based on the foregoing analysis, Plaintiff’s Motion to Amend (ECF No. 15) is granted. In
addition, I recommend the Court deny Defendant’s Motion to Dismiss (ECF No. 8).
NOTICE
Any objection to this Memorandum of Decision and Recommended Decision shall
be filed in accordance with Fed. R. Civ. P. 72. With respect to the order on
Plaintiff’s Motion to Amend, a party may serve and file objections within fourteen
(14) days after being served with a copy. Fed. R. Civ. P. 72(a).
With respect to the recommendations made herein, a party may file objections to
those specified portions of a magistrate judge’s report or proposed findings or
recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for which de
novo review by the district court is sought, together with a supporting
memorandum, within fourteen (14) days of being served with a copy. A responsive
memorandum shall be filed within fourteen (14) days after the filing of the
objection. Fed. R. Civ. P. 72(b)(2). Failure to file a timely objection shall constitute
a waiver of the right to de novo review by the district court and to appeal the district
court’s order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 29th day of August, 2016.

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