Morrissey v. Grafton County Department of Corrections, Superintendent

Filing 4

ORDER: Plaintiff to amend his 1 Complaint within 30 days of the date of this Order. ( Amended Pleadings due by 1/22/2013.) So Ordered by Magistrate Judge Landya B. McCafferty.(jab)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Christopher C. Morrissey1
v.

Civil No. 12-cv-335-SM

Glenn Libby, Superintendent,
Grafton County Department of
Corrections

O R D E R
Christopher Morrissey has filed a complaint (doc. no. 1),
pursuant to 42 U.S.C. § 1983, alleging that his constitutional
rights were violated by strip searches to which he was subject
while he was detained pretrial at the Grafton County Department
of Corrections (“GCDC”).

The matter is before the court for

preliminary review to determine, among other things, whether
Morrissey has stated any claim upon which relief might be

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The caption of the case identifies Christopher M. Palermo
as a second plaintiff in this action, but Palermo has not signed
the complaint. It appears Morrissey wants to consolidate this
case with a case Palermo filed in this court, Palermo v. Libby,
No. 11-cv-557-JL, which has been closed. Similarly, Morrissey
has indicated his intention to litigate this matter as a class
action. A pro se plaintiff cannot represent the interest of any
individual or class, other than himself or herself, in this
court. See 28 U.S.C. § 1654; United States District Court
District of New Hampshire Local Rule (“LR”) 83.2(d).
Accordingly, the court construes this matter as brought only by
Morrissey, on behalf of himself.

granted.

See 28 U.S.C. § 1915A(a); United States District Court

District of New Hampshire Local Rule (“LR”) 4.3(d)(2).
Standard for Preliminary Review
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 filed by inmates 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).

See Erickson
To survive

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
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court treats as true all well-pleaded factual allegations, and
construes all reasonable inferences drawn therefrom in the
plaintiff’s favor.

See Ocasio-Hernández v. Fortuño-Burset, 640

F.3d 1, 12 (1st Cir. 2011).
Discussion
Morrissey alleges that while incarcerated in the punitive
segregation unit at the GCDC as a pretrial detainee, he was
subjected to three or four strip searches daily.

Morrissey

states that the strip searches were conducted without any cause,
and were intended to cause harm, and to be sadistic, malicious,
threatening, and harassing.
Although Morrissey asserts that his Fourteenth Amendment
due process rights were violated by the strip searches, his
right not to be subjected to unconstitutional strip searches
arises under the Fourth Amendment’s protection against
unreasonable searches and seizures, as applied to the states
through the Due Process Clause of the Fourteenth Amendment.

See

Roberts v. Rhode Island, 239 F.3d 107, 109 (1st Cir. 2001).

To

determine the constitutionality of a strip search under the
Fourth Amendment, the court considers four factors: 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
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(1979).

This test is applied in light of precedent requiring

courts to defer to the expert judgment of correctional
officials, and the principle that a regulation impinging on an
inmate’s constitutional rights must be upheld “if it is
reasonably related to legitimate penological interests.”

Turner

v. Safley, 482 U.S. 78, 89 (1987)); cf. Florence v. Bd. of
Chosen Freeholders, 132 S. Ct. 1510, 1518 & 1523 (2012)
(“principles announced in Turner and Bell” provide basis for
Court’s decision upholding policy of subjecting all new
detainees to invasive searches prior to their admission to
general prison population, even where prison officials lacked
reasonable, individualized suspicion as to new detainees
arrested for minor offenses).
As to the first Bell factor, Morrissey does not describe
the scope of the search except to call it a “strip search.”

The

court will presume, therefore, that Morrissey was required to
entirely undress for visual inspection by one or more GCDC staff
members.

As to the second and fourth factors, Morrissey does

not describe the specific manner or place in which the search
was conducted, only that it occurred three to four times a day.
Morrissey does not describe where he was searched, who was
present during the search, or how the actual searches were
conducted.

As to the third factor, Morrissey states, in a

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conclusory manner, that the searches were conducted for “no good
reason or just cause,” but again, is not specific about the
circumstances surrounding the searches.

Further, Morrissey does

not name any defendant to this action except the GCDC
Superintendent Glenn Libby, and does not state the nature or
degree of Libby’s involvement in the strip search.
Morrissey’s general assertion of being strip searched three
to four times a day as a detainee, without more, is insufficient
to state a violation of his rights.

The court will, however,

grant Morrissey leave to amend his complaint, to assert
additional facts describing, with specificity, what he alleges
actually occurred, and what facts and circumstances rendered the
searches unconstitutionally intrusive.

Morrissey must also

identify specific defendants to this action, and must state what
each defendant to this action did or failed to do that violated
Morrissey’s rights.
Conclusion
Morrissey is directed to amend his complaint, within thirty
days of the date of this order, as follows:
1.

Morrissey must identify individual defendants to this

action.
2.

Morrissey must state, with specificity, what each

defendant did or failed to do that violated Morrissey’s rights.
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3.

Morrissey must describe the nature of the searches as

well as the facts and circumstances under which the searches
occurred, as discussed above.
If Morrissey fails to amend his complaint as directed, the
court may recommend that the action be dismissed for failing to
state a claim.
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
December 20, 2012
cc:

Christopher C. Morrissey

LBM:jba

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