Fox v. Strafford County Department of Corrections, Superintendent

Filing 19

ORDER: granting in part and denying in part 15 Motion to Amend 1 Complaint; denying 8 Motion to Appoint Counsel; denying 14 Motion to Appoint Counsel; and denying 16 Motion to Produce. Plaintiff is to file an amended complaint within 30 days from the date of this order. (Amended Pleadings due by 2/16/2012.) So Ordered by Magistrate Judge Landya B. McCafferty.(jab)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Duane Leroy Fox
v.

Civil No. 11-cv-295-SM

Superintendent, Strafford County
Department of Corrections1
O R D E R
Duane Leroy Fox has filed a complaint (doc. no. 1) seeking
damages against the superintendent of the Strafford County
Department of Corrections (“SCDC”) for alleged violations of
Fox’s constitutional rights during his incarceration at that
facility.

The matter is before the court for preliminary review

to determine whether the complaint states any claim upon which
relief might be granted.

See 28 U.S.C. § 1915A(a); United

States District Court for the District of New Hampshire Local
Rule (“LR”) 4.3(d)(2).
Fox has also filed several motions for the court’s
consideration.

Fox has filed two motions seeking court-

appointed counsel (doc. nos. 8 and 14), a motion for a temporary
restraining order (doc. no. 13), a motion to amend his complaint

1

Plaintiff names the “unknown superintendent of the
Strafford County Department of Corrections” as the sole
defendant to this action. The superintendent of that facility,
now and at the time this action was filed, is Warren Dowaliby.

(doc. no. 15), and a motion requesting the production of
documents (doc. no. 16).

The motions for court-appointed

counsel, to amend the complaint, and for discovery are addressed
herein.

The motion for a temporary restraining order will be

addressed in a separately issued report and recommendation.
Standard of Review
Under LR 4.3(d)(2), when an incarcerated plaintiff or
petitioner commences an action pro se, the magistrate judge
conducts a preliminary review.

The magistrate judge may issue a

report and recommendation after the initial review, recommending
that claims be dismissed if the court lacks subject matter
jurisdiction, the 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 id. (citing 28 U.S.C. § 1915A &

Fed. R. Civ. P. 12(b)(1)).

In conducting a preliminary review,

the magistrate judge construes pro se pleadings liberally, to
avoid inappropriately stringent rules and unnecessary
dismissals.

See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per

curiam) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976),
to construe pleadings liberally in favor of pro se party);
Castro v. United States, 540 U.S. 375, 381 (2003).

2

To determine if the complaint states any claim upon which
relief could be granted, the court applies a standard analogous
to that used in reviewing a motion to dismiss filed under Fed.
R. Civ. P. 12(b)(6).

The court decides whether the complaint

contains 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, ___, 129 S. Ct. 1937, 1949 (2009).
To make this determination, the court employs a two-pronged
approach.

See Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1,

12 (1st Cir. 2011).

The court first screens the complaint for

statements that “merely offer legal conclusions couched as fact
or threadbare recitals of the elements of a cause of action.”
Id. (citations, internal quotation marks and alterations
omitted).

A claim consisting of little more than “allegations

that merely parrot the elements of the cause of action” may be
dismissed.

Id.

The second part of the test requires the court

to credit as true all non-conclusory factual allegations and the
reasonable inferences drawn from those allegations, and then to
determine if the claim is plausible.

Id.

The plausibility

requirement “simply calls for enough fact to raise a reasonable
expectation that discovery will reveal evidence” of illegal
conduct.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).

The “make-or-break standard” is that those allegations and
inferences, taken as true, “must state a plausible, not a merely
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conceivable, case for relief.”

Sepúlveda-Villarini v. Dep’t of

Educ., 628 F.3d 25, 29 (1st Cir. 2010); see Twombly, 550 U.S. at
555-56 (“Factual allegations must be enough to raise a right to
relief above the speculative level, on the assumption that all
the allegations in the complaint are true (even if doubtful in
fact).” (internal citations and footnote omitted)).
Evaluating the plausibility of a claim is a “contextspecific task that requires the reviewing court to draw on its
judicial experience and common sense.”

Iqbal, 556 U.S. at ___,

129 S. Ct. at 1950 (citation omitted).

In doing so, the court

may not disregard properly pleaded factual allegations or
“attempt to forecast a plaintiff’s likelihood of success on the
merits.”

Ocasio-Hernández, 640 F.3d at 13.

“The relevant

inquiry focuses on the reasonableness of the inference of
liability that the plaintiff is asking the court to draw from
the facts alleged in the complaint.”

Id.

Background
On June 28, 2010, Duane Leroy Fox, a federal prisoner, was
housed at the SCDC awaiting an out-of-state transfer.

SCDC

staff placed Fox in E-Pod, a protective custody unit.

Because

E-Pod had no empty cells, Fox was placed in the dayroom.

There

was no restroom in the dayroom, and Fox therefore had to use the
restroom in another inmate’s cell.

4

An inmate who lived in cell 107 on E-Pod offered to leave
his cell door open so that Fox would have access to the restroom
in that inmate’s cell.
friendly.

Fox and the other inmate became

During conversations between the two, the other

inmate confided in Fox that he was in jail for having sex with
an underage male whom he had believed to be of age.

The other

inmate also told Fox that he was a martial artist and that he
had a black belt.
One day, the other inmate gave Fox a note stating: “go to
my cell, pull your pants down, or else!”

Fox was afraid of the

other inmate due to the inmate’s martial arts training, and
therefore complied with the directive in the note.

Fox went

into the other inmate’s cell where he was forced to perform oral
sex on the other inmate.

This occurred for six days in a row.

On one occasion, the other inmate tried to perform oral sex on
Fox, but Fox was unable to become aroused.
While these forced sexual acts were occurring, Fox stopped
eating.

Fox was sent to mental health because he was not

eating.

Fox informed a mental health worker of the other

inmate’s sexual assaults on him.

Fox was then removed from E-

Pod and placed into an isolation cell on suicide watch.

Fox was

interviewed by members of the Strafford County Sheriff’s
Department and the prosecutor’s office about what had occurred.
Fox was removed from the SCDC the following day.
5

Fox states that he is a homosexual, and has a history of
mental health issues and self-destructive tendencies.

Fox

states that the staff and mental health professionals at the
SCDC were aware of his mental health issues and his
homosexuality.

Fox states that SCDC officials should therefore

have placed him in an isolation cell immediately upon his entry
to the SCDC.
Discussion
I.

The Claim
A government official may be held personally liable under

42 U.S.C. § 1983 if, acting under color of state law, the
official caused the deprivation of a federal constitutional or
statutory right.

Section 1983 states, in relevant part:

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress
. . . .
Id.; see also Sanchez v. Pereira-Castillo, 590 F.3d 31, 40-41
(1st Cir. 2009) (“Section 1983 requires three elements for
liability: deprivation of a right, a causal connection between
the actor and the deprivation, and state action.”).

6

In his complaint, Fox asserts one claim, that his Eighth
Amendment right not to be subjected to cruel and unusual
punishment during his incarceration was violated when the
superintendent of the SCDC, with deliberate indifference to a
substantial risk to Fox’s health and safety, failed to
adequately protect him from harm, and as a result, Fox was
repeatedly forcibly raped by another inmate.2

Because the SCDC

superintendent is a person acting under color of state law when
he is alleged to have violated Fox’s constitutional rights,
Fox’s claim arises under § 1983.
II.

Failure to Protect
“[P]rison officials have a duty to protect prisoners from

violence at the hands of other prisoners.”

Farmer v. Brennan,

511 U.S. 825, 833 (1994) (alteration omitted).

Prison officials

are obliged by the Eighth Amendment to “take reasonable measures
to guarantee inmates’ safety from attacks by other inmates.”
Calderón-Ortiz v. Laboy-Alvarado, 300 F.3d 60, 64 (1st Cir.
2002).

“Having incarcerated persons with demonstrated

proclivities for antisocial criminal, and often violent,
conduct, having stripped them of virtually every means of self-

2

The claim, as identified herein, will be considered to be
the claim stated in the complaint for all purposes. If Fox
disagrees with the claim as identified, he must properly file a
motion to reconsider this Order, or a motion to amend his
complaint.
7

protection and foreclosed their access to outside aid, the
government and its officials are not free to let the state of
nature take its course.”

Farmer, 511 U.S. at 833 (internal

quotations, citations, and alterations omitted).
“[A] prison official’s deliberate indifference to a
substantial risk of serious harm to an inmate violates the
Eighth Amendment.”

Mosher v. Nelson, 589 F.3d 488, 493 (1st

Cir. 2009) (quoting Farmer, 511 U.S. at 828) (internal quotation
marks omitted).3

In order to state an Eighth Amendment claim

against a prison official for failing to protect him, Fox must
assert facts sufficient to demonstrate, first, that he has been
“incarcerated under conditions imposing a substantial risk of
serious harm.”

Burrell v.

Hampshire Cnty., 307 F.3d 1, 8 (1st

Cir. 2002) (citing Farmer, 511 U.S. at 834).

Second, Fox must

assert facts to demonstrate that the responsible prison official
or officials acted with deliberate indifference.
589 F.3d at 494.

See Mosher,

“Deliberate indifference” on the part of a

prison official may be shown only where: “(1) the defendant knew
3

The complaint does not specify whether, at the time the
incidents here are alleged to have occurred, Fox was a sentenced
inmate or a pretrial detainee. “‘Pretrial detainees are
protected under the Fourteenth Amendment Due Process Clause
rather than the Eighth Amendment; however, the standard to be
applied is the same as that used in Eighth Amendment cases.’”
See Mosher, 589 F.3d at 493 n.3 (quoting Burrell v. Hampshire
Cnty., 307 F.3d 1, 7 (1st Cir. 2002)); Surprenant v. Rivas, 424
F.3d 5, 15 (1st Cir. 2005). Because the court’s order is not
impacted by Fox’s incarcerative status, the question need not be
resolved at this time.
8

of (2) a substantial risk (3) of serious harm and (4)
disregarded that risk.”

Calderón-Ortiz, 300 F.3d at 64 (citing

Farmer, 511 U.S. at 837-40).

An allegation of deliberate

indifference may be defeated where officials responded
reasonably to a known risk of harm.

See Farmer, 511 U.S. at

844; Mosher, 589 F.3d at 494 (citing Burrell, 307 F.3d at 8).
The deliberate indifference standard “requires ‘something
less than acts or omissions for the very purpose of causing harm
or with knowledge that harm will result’ but ‘something more
than mere negligence.’”
Farmer, 511 U.S. at 835).

Mosher, 589 F.3d at 494 (quoting
“Whether a prison official had the

requisite knowledge of a substantial risk is a question of fact
subject to demonstration in the usual ways, including inference
from circumstantial evidence.”

Farmer, 511 U.S. at 842.

The

requisite knowledge for a deliberate indifference claim may be
inferred from the fact that the risk was obvious.

See id.

Where officials “did not know of the underlying facts indicating
a sufficiently substantial danger and [] they were therefore
unaware of a danger,” or if officials “knew the underlying facts
but believed (albeit unsoundly) that the risk to which the facts
gave rise was insubstantial or nonexistent,” a claim for
deliberate indifference will not stand.

9

See id. at 844.

A.

Substantial Risk of Serious Harm

Here, Fox alleges that he was housed under circumstances
that created a substantial risk of serious harm.

Specifically,

he alleges that the following factors contributed to the risk
that he would suffer serious harm:


Fox was housed in a protective custody unit.



Fox was housed in an area without a toilet, forcing
him to use toilets in other inmates’ cells, and in
particular, the toilet of an inmate with a history of
sexual assault.



Fox was housed in a manner that permitted an inmate
with a history of sexual assault, from whom Fox could
not physically defend himself, to have access to and
contact with Fox such that Fox could be in the other
inmate’s cell, outside the view of SCDC officers.



Fox is a homosexual.



Fox has a history of mental health problems.



Fox has a history of self-destructive tendencies.

Fox alleges that, in combination, the risk factors under which
Fox was held on E-Pod ultimately allowed for Fox to be forcibly
raped every day for six days.

Accordingly, Fox has alleged

sufficient facts to show that he was housed under conditions
imposing a substantial risk of serious harm.

10

B.

Deliberate Indifference

Fox asserts that officials at the SCDC were deliberately
indifferent to the substantial risk to his safety created by the
housing conditions on E-Pod that allowed another inmate to rape
him.

Fox also asserts that SCDC officials evinced deliberate

indifference to his safety because Fox’s personal
characteristics, of which the officials were aware, created a
risk of serious harm to Fox if he were housed anywhere except in
isolation on suicide watch.

These allegations will be

considered in turn.
1.

Risk of Specific Harm on E-Pod

Fox alleges that he was housed in a manner that allowed a
sexual predator to have access to him.

The complaint does not

assert that Fox reported any fear of or threats by the other
inmate prior to the assaults, or that the other inmate had ever
assaulted anyone else while incarcerated.

Even presuming,

although the record does not so state, that the SCDC officers
were aware of the sexual offense with which the other inmate had
been charged, the complaint does not assert facts that
demonstrate that the officers were aware of specific facts that
would alert them to a significant risk to Fox’s safety.

The

allegations in the complaint are insufficient to demonstrate

11

that any officer was aware of and disregarded a risk to Fox’s
safety.

Fox has not, therefore, stated an Eighth Amendment

claim upon which relief might be granted.
2.

General Risk to Fox’s Safety

Fox alleges that his known homosexuality, mental health
issues, and self-destructive tendencies put him at risk of harm
from other inmates when he was not immediately placed in
isolation and on suicide watch upon his admission to the SCDC.4
Fox states that SCDC officials were aware of those
characteristics.

No facts in the complaint, however,

demonstrate that any SCDC official actually drew the inference
that Fox’s homosexuality or mental health issues put him at any
risk of harm from other inmates.

Fox has not alleged that any

inmate was aware of Fox’s homosexuality, his mental health
issues, or of any other fact that would indicate that Fox might
be particularly vulnerable.

Fox has not alleged facts that

demonstrate that any SCDC official knew or could have known that
Fox’s personal characteristics created any risk of harm to Fox.
The facts alleged demonstrate neither that any SCDC
official had a subjective awareness of the risk, nor that any

4

Fox has not asserted that he was suicidal upon his
admission to the SCDC or that he had any mental health need that
was not addressed by the SCDC. Accordingly, the court has not
construed the complaint to contain a claim for failure to place
Fox on suicide watch prior to the alleged sexual assaults.
12

SCDC official disregarded a known risk.

Accordingly, the facts

alleged do not at this time support a claim that any SCDC
officer acted with deliberate indifference in failing to protect
Fox from harm.
C.

Leave to Amend
1.

Deliberate Indifference

Fox has failed to state sufficient facts to allow this
court to reasonably infer that any SCDC official was
subjectively aware of the significant risk of serious harm to
Fox, either arising out of Fox’s housing situation or Fox’s
personal characteristics.

Because, however, the facts in the

complaint do not preclude the possibility that Fox could allege
such facts, he will be granted leave to amend his complaint to
demonstrate that the responsible SCDC officials acted with
deliberate indifference in failing to protect him from harm.
2.

Defendants

Fox has named only the Superintendent of the SCDC as a
defendant to this action.

The complaint does not include any

allegations demonstrating that the SCDC Superintendent took any
act or is in any way responsible for the alleged failure to
protect Fox.

Supervisors may not be sued in a section 1983

action for the conduct of their employees; to hold a supervisor
liable under section 1983, the complaint must assert facts to
13

demonstrate that the “supervisor’s conduct led inexorably to the
constitutional violation” alleged.

See Maldonado v. Fontanes,

568 F.3d 263, 275 (1st Cir. 2009).
At this time, Fox has failed to state any facts which
indicate that the SCDC Superintendent engaged in any conduct
that led in any manner to the failure to protect Fox, and does
not name any other defendant who failed to protect Fox from
harm.

Fox will be granted leave to amend his complaint to name

specific individuals as defendants to the claims asserted here.
Fox will have to state, with specificity, what each defendant
did or failed to do to violate his rights.

If Fox intends to

assert that the SCDC Superintendent engaged in conduct that
caused him harm, he must assert specific facts to support that
assertion.
Motions
I.

Motions for Court-Appointed Counsel (doc. nos. 8 and 14)
There is no constitutional right to the appointment of

counsel in a civil case in this court.

See Maroni v. Pemi-Baker

Reg’l Sch. Dist., 346 F.3d 247, 257 (1st Cir. 2003).

While the

court has the discretion to appoint counsel in a particular
case, it should do so “only if ‘exceptional circumstances were
present such that a denial of counsel was likely to result in
fundamental unfairness impinging on [plaintiff’s] due process

14

rights.’”

King v. Greenblatt, 149 F.3d 9, 14 (1st Cir. 1998)

(quoting DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991));
To determine if “exceptional circumstances” warrant the
appointment of counsel, “a court must examine the total
situation, focusing, inter alia, on the merits of the case, the
complexity of the legal issues, and the litigant’s ability to
represent himself.”

DesRosiers, 949 F.2d at 24.

Fox seeks court-appointed counsel on the basis that he is
unable to afford to retain counsel, and because his
incarceration will significantly limit his ability to litigate
this matter.

Fox has not described the sort of exceptional

circumstances warranting the appointment of counsel; he has
described circumstances that exist in virtually every prisoner
civil rights action.

Accordingly, the motions for court-

appointed counsel are denied without prejudice to renewal should
circumstances so warrant.
II.

Motion to Amend Complaint (doc. no. 15)
Plaintiff’s motion to amend his complaint consists of two

pages of apparent interrogatories, followed by an “amended
statement of claim” which repeats the assertions in his original
complaint (doc. no. 1), except that it identifies the cell where
Fox alleges he was assaulted as Cell 107 instead of Cell 102, as
stated in the initial complaint.

15

The motion to amend is granted

to the extent it seeks to amend the cell number referenced in
the initial complaint.

To the extent that Fox seeks discovery,

the motion is denied; this action has not been served on any
defendant at this time, and, if and when service of the
complaint is ordered in the future, no motion would be necessary
for Fox to serve discovery requests directly upon the defendant.
See Fed. R. Civ. P. 5(d)(1) (discovery requests shall not be
filed unless they are used in proceeding or court orders
filing); Fed. R. Civ. P. 26(a)(1)(B)(iv) & 26(d)(1) (actions
brought pro se by inmates in state custody are exempt from Rule
26(f) “meet and confer” requirement).
III. Motion for Production of Documents (doc. no. 16)
For the same reason, the court denies Fox’s motion seeking
documents in discovery (doc. no. 16).

This action has not been

served on any defendant at this time, and no motion would be
necessary for Fox to serve discovery requests directly upon the
defendant if he were served.

See Fed. R. Civ. P. 5(d)(1),

26(a)(1)(B)(iv), and 26(d)(1) .
Conclusion
As stated herein, the motions for court-appointed counsel
(doc. nos. 8 and 14) are DENIED; the motion to amend complaint
(doc. no. 15) is GRANTED in part and DENIED in part; and the
motion for production of documents (doc. no. 16) is DENIED.
16

Fox is directed, within thirty days of the date of this
order, to amend his complaint as follows:
1.

Fox must identify the SCDC officials that he alleges

are responsible for failing to protect his safety.
2.

Fox must state, with specificity, what each defendant

did or failed to do that caused Fox’s rights to be violated.
3.

In his amended complaint, Fox must assert facts that

demonstrate that each defendant acted with deliberate
indifference, in that the defendant was actually aware of
specific facts from which he or she could infer the existence of
a significant risk to Fox’s safety, and how each defendant
failed to respond reasonably to that risk to protect Fox from
harm.
Failure to amend the complaint as directed will result in
this court’s recommendation that the complaint be dismissed.
SO ORDERED.

_______________________________
Landya McCafferty
United States Magistrate Judge
Date: January 17, 2012
cc:

Duane Leroy Fox, pro se

LBM:jba

17