Negron v. Turco et al

Filing 87

District Judge Timothy S. Hillman: ORDER entered. MEMORANDUM AND ORDER(PSSA, 5) (Main Document 87 replaced on 9/7/2017) .

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
)
JOSE L. NEGRON,
)
CIVIL ACTION
)
Plaintiff,
)
NO. 4:16-CV-40150-TSH
)
v.
)
)
THOMAS TURCO, III, ABBE NELLIGAN, )
COLETTE GOGUEN, LUIS MELENDEZ, )
)
and LORI CRESEY
)
)
)
Defendants.
______________________________________ )
MEMORANDUM AND ORDER
September 7, 2017
HILLMAN, D.J.
Before the Court are Plaintiff’s Motion to Amend Complaint (ECF No. 74), Plaintiff’s
Motion to Amend Complaint and Substitute Party (ECF No. 75), and Plaintiff’s Motion for
Preliminary Injunction. (ECF No. 76). Remaining defendants1 Thomas Turco, III, Abbe Nelligan,
Collette Goguen, and Luis Melendez have opposed the motions, along with proposed defendant
Lori Cresey. For the reasons stated below, plaintiff’s motions to amend are allowed in part and
denied in part, the Second Amended Complaint is dismissed except as to Counts III and Count IV,
and the motion for a preliminary injunction is denied.

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Of the original defendants, only four remain. Defendants Thomas Dickhaut, Kelly Ryan, and
Lois Russo, who did not file an answer or motion to dismiss, were voluntarily dismissed by the
plaintiff on April 28, 2017. See Plaintiff Stipulation to dismiss the Following Defendant named
in the Original and Amended Civil Complaint. ECF No. 66; Fed. R. Civ P. 41(a)(2)(i).

Background
On October 17, 2016, pro se prisoner plaintiff Jose Negron filed a voluminous complaint
against defendants Thomas Turco, III, Commissioner of the Department of Corrections, Thomas
Dickhaut, Deputy Commissioner Department of Corrections, Kelly Ryan, Superintendent of MCI
Shirley, Lois Russo, Superintendent of MCI Concord, Colette Goguen, Superintendent of MCI
Gardner, Abbe Nelligan, Deputy of Classification, and Luis Mendez, Internal Perimeter
Commander. Along with his complaint, plaintiff filed a motion to proceed in forma pauperis, a
motion for preliminary injunction, and a motion for appointment of counsel.
On November 4, 2016, plaintiff filed a motion to amend his complaint. On November 16,
2016, the Court allowed the motion to proceed in forma pauperis, assessed an initial filing fee,
denied the motion for appointment of counsel without prejudice, and allowed the motion to amend
the complaint.
On February 8, 2017, defendants Turco, Nelligan, Goguen, and Melendez filed a joint
motion to dismiss the complaint. On February 21, 2017, plaintiff opposed the motion to dismiss.
On April 14, 2017, with leave of court, defendants Turco, Nelligan, Goguen, and Melendez
responded to the motion for preliminary injunction. On April 28, 2017, plaintiff filed a “stipulation
of dismissal” of defendants Thomas Dickhaut, Kelly Ryan, and Lois Russo, substantially
narrowing the scope of this action. All claims against these defendants will be dismissed without
prejudice.
On May 11, 2017, plaintiff filed a motion for leave to file a supplemental amended
complaint and for joinder. The remaining defendants opposed the motions.
On May 26, 2017, the court issued a Memorandum and Order providing the plaintiff with
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a final opportunity to amend and supplement his complaint to conform to the basic rules of civil
procedure.

Plaintiff filed two motions to amend the complaint, a Notice of Clarification

concerning the exhibits to the complaint, and a motion for a preliminary injunction. All of these
motions are timely opposed.
The following allegations are taken from the Second Amended Complaint, and documents
referred to therein, and are accepted as true only for purposes of the Court’s screening of the
Second Amended Complaint.
Plaintiff’s Reclassification from SBCC to MCI - Concord
Plaintiff is currently an inmate at Souza-Baranowski Correctional Center, a maximum
security prison in Shirley, Massachusetts. Second Amended Compl. ¶ 3. In February 2015, plaintiff
sought a reclassification from SBCC. During this process, plaintiff alleges that he renewed his
safety and security concerns about his disassociation and bad standing with Security Threat Group
(“STG”) Latin Kings (the “STG Concerns”). Second Amended Compl. ¶10.
On April 15, 2015, plaintiff wrote a letter to prison administrators expressing his STG
Concerns relating to his proposed new placement. Second Amended Compl. ¶ 11. The letter is not
attached to the complaint.
On April 22, 2015, plaintiff was notified by prison administration that his STG Concerns
would be forwarded to defendant Lori Cresey, Director of Central Classification. Second Amended
Compl. ¶ 12.
On May 5, 2015, defendant Abbe E. Nelligan, Deputy Classification Director, reviewed
the appeal and modified the placement. Second Amended Compl. ¶13. Nelligan sustained the reclassification to medium security but modified the location to MCI-Concord. Second Amended
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Compl. ¶13. Plaintiff alleges that Nelligan knew of, and disregarded, plaintiff’s STG Concerns.
Second Amended Compl. ¶¶ 9-11.
Plaintiff Allegedly Given the Option of Protective Segregation or General
Population at MCI – Concord
On May 12, 2015, plaintiff was transferred to MCI - Concord. Second Amended Compl.
¶14. Plaintiff was met by non-defendant, Inner Perimeter Security (“IPS”) Officer Juan Ayala, a
“subordinate” of defendant Luis Melendez who “reconfronted about old wounds.” Second
Amended Compl. ¶15. MCI-Concord personnel were apparently aware of the plaintiff’s STG
Concerns because at some point in May, plaintiff was “confronted” by non-defendant, IPS
Sergeant Kahn and was provided two options: “spend the summer in the hole” or sign a waiver to
be released to general population. Second Amended Complaint, ¶ 16. According to the plaintiff,
he chose to sign the waiver under “duress/coerced” and was released to general population. Second
Amended Compl. ¶16.
Plaintiff Allegedly Assaulted at MCI – Concord Because of His Disassociation
Hearing and Activities At MCI – Concord
On August 18, 2015, plaintiff filed a “request and complaint” to Inner Perimeter Security
claiming that he was no longer affiliated with the Latin Kings and that his STG status should be
changed. Second Amended Compl. ¶17, Exhibit C(1). On August 27, 2015, plaintiff attended an
STG Renouncement interview. Second Amended Compl. ¶ 18. Plaintiff claims that in September
2015 he was confronted by an STG member about the IPS meeting and renouncement. Second
Amended Compl. ¶19. Plaintiff claims the renouncement process was allegedly exposed to STG
members at MCI – Concord by unnamed prison personnel. Second Amended Compl. ¶20. Plaintiff
confronted IPS Officer Ayala about the purported leak of information. Second Amended Compl.
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¶ 21. According to plaintiff, IPS Officer Ayala is a family member of defendant Melendez. Second
Amended Compl. ¶23. IPS Officer Ayala warned plaintiff and told him to mind his own business.
Second Amended Compl. ¶22-23.
On September 16, 2015, plaintiff was assaulted by STG members. Second Amended
Compl. ¶24. While at the MCI – Concord Health Service Unit, plaintiff was informed by Officer
Ayala that due to safety concerns he would not be being released from segregation. Second
Amended Compl. ¶25. Plaintiff claims he was placed in segregation for non-disciplinary reasons
due to conflict and was not provided an emergency re-classification hearing. Second Amend.
Compl. ¶26.
On September 29, 2015, plaintiff alleges that a “subordinate” frivolously filed a
disciplinary report against plaintiff. Second Amended Compl. ¶ 28.
Plaintiff initiated formal and informal complaints. Second Amended Compl. ¶27. During
the grievance process, plaintiff wrote a letter to Nelligan on September 20, 2015 (not attached to
the Second Amended complaint) concerning his placement at MCI-Concord. Second Amended
Compl. ¶ 29. In response, Nelligan declined to reclassify the plaintiff immediately, and sent a copy
of plaintiff’s letter to the Deputy Superintendent at MCI-Concord for further “appropriate” action,
writing:
I am in receipt of your letter dated September 20, 2015 regarding
your placement at MCI-Concord and request for alternate
placement. As you are aware, this office deemed you appropriate for
placement at MCI-Concord on May 5, 2015. Please be advised that
at that time, you did not have any identified conflicts at MCIConcord to exclude you from placement there. Any request or
alternate replacement will be considered via your next scheduled
board. Please contact staff at MCI-Concord to inquire about when
your next board will be scheduled. Lastly, a copy of your letter has
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been forwarded to the administration at MCI-Concord for any
appropriate action.
October 9, 2015 Letter from Abbe Nelligan to Jose Negron, ECF No. 75-3, Exhibit B(3), p. 4.
Plaintiff claims that an unnamed “subordinate” of the defendants filed an unnecessary disciplinary
report. Second Amended Compl. ¶ 28. Plaintiff alleges that he contacted Thomas Turco regarding
the staff misconduct but he declined to investigate. Second Amended Compl. ¶30. Plaintiff claims
that Defendant Turco’s subordinate denied plaintiff an emergency classification. Second Amended
Compl. ¶31.
Plaintiff Reclassified to MCI Shirley
On December 9, 2015, plaintiff attended a reclassification hearing at MCI –Concord.
Second Amended Compl. ¶32. Board members Jason Lapomardo, Dave Stack, and Kevin
McFadden recommended unanimously that he be transferred to MCI –Shirley. Second Amended
Compl. ¶32, ECF No. 75-3, Exhibit B(4), p.5. Plaintiff claims that his appeal was never filed
because a Corrections Officer (Dave Stack) forgot to submit the appeal. Second Amended Compl.
¶ 34. Plaintiff alleges that defendant Cresey knowing of the STG Concerns at Shirley did nothing
to prevent him from being placed there. Second Amended Compl. ¶35.
Plaintiff Transferred to MCI Shirley and placed in SMU for Protection
On December 23, 2015, plaintiff was transferred to MCI – Shirley. Second Amended
Compl. ¶36. On December 29, 2015, plaintiff was placed in segregation due to conflict with Latin
Kings. Second Amended Compl. ¶37. IPS received information that plaintiff would be assaulted
if placed back into general population. Second Amended Compl. ¶ 38. Plaintiff requested an
emergency re-classification which was denied. Second Amended Compl. ¶ 41. On April 4, 2016,

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after spending 97 days in segregation, defendant Lori Cresey modified plaintiff’s placement to
NCCI Gardner, with a statement to monitor plaintiff closely. Second Amended Compl. ¶ 42.
Three months later, on June 21, 2016, a “subordinate” of Melendez allegedly retaliated
against the plaintiff with a “frivolous” disciplinary report. Second Amended Compl. ¶44. Two and
one half months later, on September 7, 2016, a “subordinate” of defendant Melendez retaliated
against plaintiff with a “baseless ticket” and “false” criminal charge. Second Amended Compl.
¶45.
On October 17, 2016, plaintiff filed this lawsuit. On November 7, 2016, defendant
Melendez confronted plaintiff about the lawsuit. Second Amended Compl. ¶48. On November 14,
2016, defendant Melendez retaliated against plaintiff, apparently by defendant’s “subordinate”
denying plaintiff from participating in a disciplinary hearing and making false statements in the
summary finding. Second Amended Compl. ¶49.
On December 19, 2016, plaintiff was reclassified and voted to be moved to maximum
security at SBCC. Second Amended Compl. ¶50. On December 29, 2016, plaintiff appealed to
defendant Lori Cresey. Second Amended Compl. ¶51. On January 23, 2017, plaintiff was restricted
to the protective custody unit. Second Amended Compl. ¶52. On March 17, 2017, a “subordinate”
interviewed plaintiff about STG validation status. Second Amended Compl. ¶54. Plaintiff alleges
that the “subordinate” failed to provide procedural due process after learning of the lawsuit. Second
Amended Compl. ¶55. On May 18, 2017, the Board of Classification recommended releasing
plaintiff back to general population. Second Amended Compl. ¶56. The Board purportedly stated
that placement into protective custody was unreasonable. Second Amended Compl. ¶57.

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Discussion
A.

Motions to Amend the Complaint and Notice of Clarification

Plaintiff’s motions to amend the complaint are construed as motions for clarification of the
Court’s May 26, 2017 Memorandum and Order, and are ALLOWED in part and DENIED in part,
only to the extent that leave to file the Second Amended Complaint is allowed and Lori Cresey is
added as a defendant to this action. The Second Amended Complaint captioned Plaintiff’s
Amended Supplemental Complaint (ECF No. 75-2 and 75-3) is the operative complaint. This
complaint supersedes the prior complaints. All other and further relief in the motions to amend the
complaint are DENIED.
Plaintiff seeks to incorporate by reference all of the previously filed exhibits in his notice
of clarification and permission for leave to correct record. Defendants object to the destruction of
documents filed in this case. The Court agrees with defendants’ contention; however, the Court
does not interpret the plaintiff to be requesting the Court to impermissibly expunge the record.
Rather, it appears plaintiff is seeking to incorporate by reference documents already filed in this
action that are pertinent to his Second Amended Complaint. The Court reconsiders and clarifies
its May 26, 2017 Order, and the plaintiff’s request is ALLOWED but only to the extent that
documents are specifically referred to and identifiable in the Second Amended Complaint. All
other and further relief is DENIED.
B.

Screening of the Second Amended Complaint

Because plaintiff is proceeding in forma pauperis his Second Amended Complaint is
subject to screening pursuant to 28 U.S.C. §1915(e)(2)(B) and §1915A. Those statutes authorize
federal courts to dismiss complaints sua sponte if the claims are frivolous, malicious, fail to state
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a claim on which relief may be granted, or seek monetary relief against a defendant who is immune
from such relief. 28 U.S.C. § 1915(e)(2); 28 U.S.C. §1915A. In connection with this screening,
plaintiff's pro se complaint is construed generously. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines
v. Kerner, 404 U.S. 519, 520 (1972). The Court’s review is for adequacy of notice pleading and
not a determination of the merits of the claims. The Court must determine whether there are
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). “A claim has facial plausibility 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) (citation omitted). The Court accepts as true,
for purposes of this screening only, the well-pleaded factual allegations of the complaint, draws
all reasonable inferences in favor of the plaintiff. See Eldredge v. Town of Falmouth, 662 F.3d
100, 104 (1st Cir. 2011). As set forth in more detail below, the Second Amended Complaint is
DISMISSED, except as to Counts III and IV.
1.

Count I – Grievance System – All Defendants

Plaintiff’s claim in Count I is brought against defendants purportedly because:
…all have acted [with] bias and prejudice to plaintiff’s grievances
denying every complaint filed on the subject herein. The Grievance
system is rigged with prejudice (sic) behavior, the defendants are the
appeal authority in making their decision to their own violations a
serious conflict matter in the grievance system no corrective plan is
available with the violators having the power of law to promulgate
and correct the ongoing deprivation of liberty…”
Second Amended Compl. ¶60. Plaintiff’s indictment of the Department of Corrections grievance
system fails to state a claim upon which relief may be granted. Under the Prison Litigation Reform
Act, “[t]he failure of a State to adopt or adhere to an administrative grievance procedure shall not
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constitute the basis for an action under section 1997a or 1997c of this title.” 42 U.S.C.A. §
1997e(b). Moreover, a prisoner has no liberty interest in a grievance system or failure to investigate
a prisoner’s claims. See Leavitt v. Allen, 46 F.3d. 1114 (1st Cir. 1995)(unpublished decision);
George v. Smith, 507 F.3d 605, 609–10 (7th Cir.2007) (“Ruling against a prisoner on an
administrative complaint does not cause or contribute to the violation. A guard who stands and
watches while another guard beats a prisoner violates the Constitution; a guard who rejects an
administrative complaint about a completed act of misconduct does not.”). Accordingly, Count I
is dismissed against Turco, Goguen, Melendez, Nelligan and Cresey, pursuant to 28 U.S.C.
§1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted.
2.

Count II – 42 U.S.C. §1983 - Defendants Nelligan, Cresey, and Turco
a.

Violations of State Regulations Not Cognizable under §1983.

Plaintiff’s claims against defendants Nelligan, Cresey and Turco for violations of state
regulations are not cognizable under 42 U.S.C. §1983. Even if defendants violated certain internal
prison policies, they do not state federal constitutional claims and cannot, alone, form the basis for
a federal claim under 42 U.S.C. §1983. Martinez v. Colon, 54 F.3d 980, 989 (1st Cir. 1995)(holding
“it is established beyond peradventure that a state actor’s failure to observe a duty imposed by state
law, standing alone, is not a sufficient foundation on which to erect a §1983 claim.”). See
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106 (1984); Quintero de Quintero v.
Aponte-Roque, 974 F.2d 226, 230 (1st Cir. 1992); Coyne v. City of Somerville, 972 F.2d 440, 444
(1st Cir. 1992) (“It is bedrock law in this circuit, . . . that violations of state law -- even where
arbitrary, capricious, or undertaken in bad faith -- do not, without more, give rise to a denial of
substantive due process under the U.S. Constitution.”). Only violations of the United States
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Constitution provide the source for liability in a civil rights suit based under 42 U.S.C. § 1983.
Sobitan v. Glud, 589 F.3d 379, 389 (7th Cir. 2009) (“By definition, federal law, not state law,
provides the source of liability for a claim alleging the deprivation of a federal constitutional
right.”) (internal citation omitted). See Morales v. Saba, No. CV 15-10732-RGS, 2016 WL
593493, at *14 (D. Mass. Feb. 12, 2016), appeal dismissed (Sept. 9, 2016). Plaintiff’s stringing
together of a list of violations of prison regulations does not provide an independent avenue of
liability under 42 U.S.C. §1983.
b.

Plaintiff fails to state a Due Process Claim under the Fourteenth
Amendment against Nelligan and Cresey

An inmate is entitled to due process protections only when an existing liberty or property
interest is at stake. Sandin v. Conner, 515 U.S. 472, 484 (1995). A liberty interest is infringed only
if the punishment inflicted upon the inmate imposes “atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.” Id. at 484. “It is well established that
the Constitution does not guarantee that a ‘prisoner will be placed in any particular prison.’”
Schofield v. Clarke, 769 F. Supp. 2d 42, 49 (D. Mass. 2011)(quoting Gonzalez–Fuentes v. Molina,
607 F.3d 864, 887 (1st Cir.2010)). “Moreover, an inmate does not possess a protected liberty
interest in preventing a transfer to a more restrictive form of confinement.” Id. (citing Sandin, 515
U.S. at 484; Dominique v. Weld, 73 F.3d 1156, 1160–61 (1st Cir.1996)). Because plaintiff has no
liberty interest in defendant Nelligan’s and Cresey’s classification decisions, all of plaintiff’s Due
Process claims relating to classification and designation fail.2 See Forbes v. Wall, No. CA 14-322-

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The same is true for claims concerning plaintiff’s Security Threat Group designation. The
Massachusetts Appeals Court has recently held that “[t]he decision to designate the plaintiff as a
member of an STG does not… implicate a liberty interest arising from the due process clause.”
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ML, 2014 WL 4997289, at *3 (D.R.I. Oct. 7, 2014)(dismissing complaint sua sponte against
classification board and classification director where no liberty interest invoked by classification).
c.

Duplicative Eighth Amendment Claim against Nelligan and Cresey

To the extent that there are Eighth Amendment claims brought against Cresey and Nelligan
in this Count, such claims are brought in Count III and combined with that Count. Accordingly, as
to these defendants, this Count is dismissed.
d.

Claims Against Turco are Conclusory and Made in
Supervisory Capacity

Plaintiff’s claim against Turco appears to be based on his supervisory position for alleged
violation of his civil rights under 42 U.S.C. § 1983. Such claims fail because the legal theory of
respondeat superior is not applicable to civil rights claims under 42 U.S.C. § 1983. “It is wellestablished that ‘only those individuals who participated in the conduct that deprived the plaintiff
of his rights can be held liable’” under § 1983. Velez-Rivera v. Agosto-Alicea, 437 F.3d 145, 156
(1st Cir. 2006) (quoting Cepero-Rivera v. Fagundo, 414 F.3d 124, 129 (1st Cir. 2005)). In the
absence of personal involvement, a supervisor is liable for the acts of a subordinate only if (1) the
subordinate’s behavior results in a constitutional violation, and (2) the supervisor’s action was
“affirmatively linked” to the behavior only in the sense that it could be characterized as supervisory
encouragement, condonation, or acquiescence or gross negligence amounting to deliberate
indifference. Hegarty v. Somerset County, 53 F.3d 1367, 1379-1380 (1st Cir. 1995). As to
defendant Turco, there are no well-pleaded, non-conclusory factual allegations that Turco was

Rosado v. Comm'r of Correction, 91 Mass. App. Ct. 547 (2017)(dismissing claim brought
pursuant to 42 U.S.C. §1983 because no liberty interest in STG designation).
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personally involved in, aware of, or deliberately indifferent to, any of the actions complained of in
the amended complaint. Accordingly, any claims against Turco under Count II are dismissed
pursuant to 28 U.S.C. §1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted.
3.

Count III – Retaliation – Defendant Melendez

“It is well-settled that ‘retaliation against a prisoner's exercise of constitutional rights is
actionable’ under Section 1983.” Morales v. Saba, No. CV 15-10732-RGS, 2016 WL 593493, at
*11 (D. Mass. Feb. 12, 2016), appeal dismissed (Sept. 9, 2016)(citing Hannon v. Beard, 645 F.3d
45, 48 (1st Cir. 2011)). To state a claim of retaliation in violation of the First Amendment to the
United States Constitution, a prisoner-plaintiff must allege “1) he engaged in constitutionally
protected conduct, 2) prison officials took adverse action against him, 3) with the intent to retaliate
against him for engaging in the constitutionally protected conduct and 4) he would not have
suffered the adverse action “but for” the prison officials' retaliatory motive.” Hudson v.
MacEachern, 94 F. Supp. 3d 59, 68 (D. Mass. 2015). In his Second Amended Complaint, plaintiff
states:
The defendant Luis Melendez IP Commander is well known in the
IP Department among all DOC facilities, he share a good
relationship with all subordinates in the IP Department. The
defendant subordinates have launch an offensive attack against the
plaintiff for challenging the security threat group custom practice
overseen by the IPS department. Since the initial complaints…at
least two different IPS officers have filed seven disciplinary tickets
the plaintiff impeding the investigation and stacking the deck
coerced of frivolous information within the D-report. The
defendant is responsible for requesting permission to validate the
plaintiff STG. The defendant has not provided a periodic review to
determine whether plaintiff remains a security threat…It has
become a personal vendetta knowing whats(sic) at stake defendant
and subordinates illegal behavior and practices the defendant
subordinates have shown their force, intimidation, and constent(sic)
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threats of filing tickets to cover up for their illegal practice in
violation of …inmate management due process/equal protection
violation.
Second Amend. Compl. ¶62. The claim survives screening and states a claim upon which relief
may be granted. However, whether such claim survives summary judgment is an entirely
different matter, and plaintiff will face a difficult burden. “Because prisoner retaliation claims
are easily fabricated and pose a substantial risk of unwarranted judicial intrusion into matters of
general prison administration, courts must insist that such claims are bound up in facts, not in the
gossamer strands of speculation and surmise.” Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011).
“Thus, in order to survive summary judgment on a retaliation claim, a prisoner must make out a
prima facie case by adducing facts sufficient to show that he engaged in a protected activity, that
the state took an adverse action against him, and that there is a causal link between the former
and the latter.” Id. Accordingly, Count III states a claim upon which relief may be granted.
4.

Count IV – Failure to Protect – Defendants Nelligan and Cresey

“Under the Eighth Amendment, ‘prison officials have a duty to protect prisoners from
violence at the hands of other prisoners.’” Lakin v. Barnhart, 758 F.3d 66, 70 (1st Cir. 2014) (citing
Farmer v. Brennan, 511 U.S. 825, 833 (1994)). “Not every injury suffered by one prisoner at the
hands of another, however, translates into constitutional liability.” Id. (citation and quotations
omitted). “Instead, a prison official violates an inmate's Eighth Amendment right against cruel and
unusual punishment based on a failure to prevent harm to the inmate only under two circumstances:
the inmate must show that he is incarcerated under conditions posing a substantial risk of serious
harm, and the prison official must have acted, or failed to act, with deliberate indifference to inmate
health or safety. Id. (citation and quotations omitted). A “substantial” risk is one that is “objectively
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intolerable,” Farmer, 511 U.S. at 846. “Deliberate indifference” is more than mere negligence and
akin to “criminal recklessness.” Burrell v. Hampshire Cty, 307 F.3d 1,8 (1st Cir. 2002). Here, the
plaintiff’s allegations are sufficient to place defendants Cresey and Nelligan on notice of plaintiff’s
claim that they were deliberately indifferent to the alleged risk that the Latin Kings posed to
plaintiff when defendants were involved in the classification and placement processes. See
Hentschel v. Doe, No. 16-CV-426-JL, 2017 WL 1956999, at *1 (D.N.H. Apr. 4,
2017)(unpublished opinion), report and recommendation adopted sub nom. Hentschel v. Doe #1,
No. 16-CV-426-JL, 2017 WL 1956928 (D.N.H. May 10, 2017)(Pro se prisoner complaint stated
Eighth Amendment claim for screening purposes where classification officer placed inmate in
facility where particular gang posed threat to physical safety). Accordingly, Count IV states a
claim upon which relief may be granted.
5.

Count V – State Procedural and Regulation Violations - All Defendants

Plaintiff’s claims for violations of state procedural and regulation violations are not
cognizable as a violation of 42 U.S.C. § 1983 as set forth in Section (B)(2)(a). Accordingly, such
claims are dismissed for the same reasons. Moreover, to the extent plaintiff attempts to make
claims against Goguen and Turco based upon the length of his confinement in segregation, these
appear to be conclusory, and based upon respondeat superior liability, not available under 28
U.S.C. §1983. Accordingly, Count V is dismissed against Turco, Goguen, Melendez, Nelligan and
Cresey, pursuant to 28 U.S.C. §1915(e)(2)(B)(ii), for failure to state a claim on which relief may
be granted.

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C.

Motion for Preliminary Injunction

When considering a motion for a preliminary injunction, this Court weighs four factors:
“(1) the plaintiff's likelihood of success on the merits; (2) the potential for irreparable harm in the
absence of an injunction; (3) whether issuing an injunction will burden the defendants less than
denying an injunction would burden the plaintiffs; and (4) the effect, if any, on the public interest.”
Jean v. Massachusetts State Police, 492 F.3d 24, 26–27 (1st Cir.2007) (citation omitted).
The Supreme Court has held that “[p]rison administrators…should be accorded wideranging deference in the adoption and execution of policies and practices that in their judgment
are needed to preserve internal order and discipline and to maintain institutional security.” Bell v.
Wolfish, 441 U.S. 520, 547 (1979). Congress has also mandated that, with respect to prisoners
seeking injunctive relief, the Court “give substantial weight to any adverse impact on public safety
or the operation of a criminal justice system caused by the preliminary relief…” 18 U.S.C. §
3626(a)(2). The Court is mindful that the Department of Correction is in the best position to
determine the day-to-day operations of the prison.
Here, plaintiff is requesting to be released into general population where he believes he
will be safe and that the Court issue an order relating to his STG status. As to his request to be
released to general population, that request was ultimately granted by the Department of
Correction, and therefore that request is now moot. See ECF No. 85, Def. Memorandum pp. 4-5;
ECF No. 86, Plaintiff’s Reply Brief p.1 . While plaintiff claims that his STG status in the future
might have some impact on his housing, the current concern is moot as he is in general population.
Apparently, the parties are in agreement that his current housing situation is acceptable.
Accordingly, plaintiff’s Motion for Preliminary Injunction (ECF No. 76) is DENIED.
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Conclusion and Order
Based on the foregoing, it is hereby Ordered that:
1.

Plaintiff’s motions to supplement and amend the complaint (ECF Nos. 74 and 75)
are construed as requests for clarification of the Court’s May 26, 2017
Memorandum and Order, and are each hereby ALLOWED in part and DENIED in
part. The motions are ALLOWED only to the extent to permit the filing of the
Second Amended Complaint and add Lori Cresey as a defendant. Summons shall
issue. The Second Amended Complaint is the only operative complaint. All other
and further relief in the motions to amend is DENIED.

2.

Plaintiff’s Clarification of Exhibits and Permission for Leave to Correct Record
(ECF No. 78) is construed as a motion for clarification of the Court’s May 26, 2017
Memorandum and Order is hereby ALLOWED in part and DENIED in part.
Plaintiff may refer to, and incorporate by reference, exhibits previously filed in this
action as part of his Second Amended Complaint as set forth in that document. All
other and further relief is DENIED.

3.

Counts I, II, and V of the Second Amended Complaint are hereby DISMISSED
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state claim upon which relief
may be granted. Accordingly, defendants Thomas Turco, III, and Colette Goguen
are DISMISSED from this action.

4.

Defendants Nelligan and Melendez shall respond to Counts III and IV of the Second
Amended Complaint by October 6, 2017. Defendant Cresey shall respond within
30 days after service of the Second Amended Complaint.
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5.

Plaintiff’s motion for Preliminary Injunction (ECF No. 76) is DENIED.

SO ORDERED.

/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
DISTRICT JUDGE

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