Crosby v. Strafford County Department of Corrections, Superintendent, et al

Filing 6

ORDER granting plaintiff leave to file an amended complaint within 30 days of the date of this order re 1 Complaint. (Amended Pleadings due by 3/6/2013.) So Ordered by Magistrate Judge Landya B. McCafferty.(jab)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Christopher Crosby
v.

Civil No. 12-cv-383-SM

Warren Dowaliby, Superintendent,
Strafford County Department of
Corrections, et al.1

O R D E R
Before this court is pro se plaintiff Christopher Crosby’s
complaint (doc. no. 1).

The matter is before the court for

preliminary review pursuant to 28 U.S.C. § 1915A(a) and United
States District Court District of New Hampshire Local Rule
(“LR”) 4.3(d)(2).
Background
Crosby has filed this action regarding an assault that he
alleges occurred while he was in pretrial detention at the
Strafford County Department of Corrections (“SCDOC”).
1

Crosby

Defendants named in the complaint are Strafford County
Department of Corrections (“SCDOC”) Superintendent Warren
Dowaliby, SCDOC inmate Jacob Braley, and the following SCDOC
officers: Lt. Roy, whose first name is unknown (“FNU”); Sgt.
FNU McGowen; Cpl. FNU Cormier; and Corrections Officers FNU
Nadeau, FNU Darko, and FNU Chapel. SCDOC Corrections Officer
Baggs is not identified as a defendant in the caption, but the
narrative in the complaint indicates that Crosby intended to
name Baggs as a defendant to this action.

asserts that in late September and/or early October 2011, an
SCDOC inmate, Jacob Braley, harassed and threatened him with
violence.

Crosby alleges that he reported the harassment and

threats to SCDOC corrections officers and asked for help and
protection from Braley, and that those officers told Crosby that
they could do nothing unless they witnessed an assault or the
harassment.
Crosby alleges that he sent an inmate request slip to the
SCDOC classifications office in which he reported the harassment
and threats, and requested that something be done.

In response,

Crosby asserts, Corrections Officer (“C.O.”) Baggs announced to
the whole unit that if the harassment and threats did not stop,
“there would be consequences.”

Crosby asserts that SCDOC staff

members took no other action in response to Crosby’s “constant
cries for help” at that time.
Crosby alleges that shortly after Baggs’s announcement, on
October 20, 2011, Braley “brutally” attacked Crosby, striking
his face, causing lacerations requiring sutures, and breaking
Crosby’s nose and cheek bone.

Crosby asserts that the assault

lasted for more than fifteen minutes before officers intervened
and brought Crosby to the infirmary.

C.O. Chapel, in the guard

tower at the time, was responsible for monitoring the unit where

2

the assault occurred.

Crosby states that on March 15, 2012, he

underwent nasal reconstructive surgery to treat conditions
resulting from the assault.
Crosby filed this action thereafter, asserting the
following federal civil rights claims, arising under 42 U.S.C.
§ 1983, against government agents, and state law tort claims
against each of the defendants named in the caption2:
1.
SCDOC Lt. Roy, Sgt. McGowen, Cpl. Cormier, and C.O.s
Nadeau, Darko, Chapel, and Baggs violated Crosby’s Eighth
and Fourteenth Amendment rights, in that, acting with
deliberate indifference, they failed to protect Crosby from
a substantial risk of serious harm, on or before October
20, 2011, the date Braley attacked Crosby.
2.
SCDOC Superintendent Dowaliby violated Crosby’s Eighth
and Fourteenth Amendment rights to protection from harm
during his incarceration, in that Dowaliby failed to
supervise Lt. Roy, Sgt. McGowen, Cpl. Cormier, and COs
Nadeau, Darko, Chapel, and Baggs, and that failure to
supervise resulted in those officers’ failure to protect
Crosby from an assault that occurred on October 20, 2011.
3.
Lt. Roy, Sgt. McGowen, Cpl. Cormier, and C.O.s Nadeau,
Darko, Chapel, and Baggs, are liable for negligence under
state law for breaching their duty to protect Crosby from
the risk of harm posed by Braley.

2

Crosby has asserted that he had a First Amendment right to
complain to SCDOC officers about harassment and threats, and an
Eighth and Fourteenth Amendment right not to be punished. As
Crosby has failed to allege that any SCDOC officer punished or
otherwise retaliated against him for his complaints, the court
has not construed the complaint (doc. no. 1) as intending to
assert a First Amendment retaliation claim against any SCDOC
officer.

3

4.
Braley is liable for the intentional torts of assault
and battery under state law, for attacking Crosby on
October 20, 2011, causing emotional harm and physical
injuries, including lacerations and fractures to his nose
and cheek, requiring reconstructive surgery.
5.
SCDOC Superintendent Dowaliby, in his official
capacity, is responsible under the doctrine of respondeat
superior: (a) for the tortious conduct of Lt. Roy, Sgt.
McGowen, Cpl. Cormier, and C.O.s Nadeau, Darko, Chapel, and
Baggs; and (b) for the tortious conduct of Braley.
6.
SCDOC Superintendent Dowaliby is liable for
negligently failing to supervise Lt. Roy, Sgt. McGowen,
Cpl. Cormier, and C.O.s Nadeau, Darko, Chapel, and Baggs,
resulting in those officers’ failure to protect Crosby from
the October 20, 2011, assault.
Discussion
I.

Failure to Protect (Claim 1)
As Crosby was a pretrial detainee at the SCDOC, his failure

to protect claim arises under the Fourteenth Amendment.

See

Ruiz-Rosa v. Rullán, 485 F.3d 150, 155 (1st Cir. 2007).

The

same standard that governs Eighth Amendment claims applies to a
pretrial detainee’s claims under the Fourteenth Amendment.
Mosher v. Nelson, 589 F.3d 488, 493 n. 3 (1st Cir. 2009)
(applying deliberate indifference standard to pretrial
detainee’s claim of failure to protect).
The key issue for the court is whether Crosby has
adequately alleged that defendants acted with deliberate
indifference when they failed to protect him from Braley.

4

See

Deliberate indifference requires a showing that a prison
official who was subjectively aware of a substantial risk of
serious harm to an inmate, acted, or failed to act, in disregard
of that awareness.
(1994).

Farmer v. Brennan, 511 U.S. 825, 828-29

“[T]he official must both be aware of facts from which

the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.”

Id. at 837.

Here, Crosby has shown that he complained to unidentified
SCDOC officers about Braley’s threats, that he filed an inmate
request slip with the classifications office requesting their
assistance and protection, and to be relocated.

He has also

alleged that C.O. Baggs responded to his inmate request slip by
announcing to the unit that there would be unspecified
consequences if the threats and harassment persisted.
Additionally, Crosby has alleged that although C.O. Chapel was
supposed to be monitoring the unit during the attack, help did
not come for more than fifteen minutes.

Nothing in the

complaint, including those factual allegations, shows that any
SCDOC officer named as a defendant acted with deliberate
indifference, as no facts support a plausible inference, at this
time, that any individual officer was aware of or had inferred
from the circumstances a risk of harm to Crosby, and acted or

5

failed to act in conscious disregard of that risk.

To maintain

a Fourteenth Amendment claim against the SCDOC officers, Crosby
must file an amended complaint identifying particular officers
by name, and stating, with specificity, the information known by
those officers, and how those officers were made aware of the
information, on or before October 20, 2011.

Further, Crosby

must state in his amended complaint what the officers did or
failed to do, with deliberate indifference, that violated
Crosby’s right to protection.
II.

Supervisory Liability under § 1983 (Claim 2)
Crosby has asserted that SCDOC Superintendent Dowaliby is

liable under 42 U.S.C. § 1983 for failing to supervise the
officers who, in turn, failed to protect Crosby.

With respect

to the claim asserted under 42 U.S.C. § 1983, the analysis
focuses on whether the supervisor’s actions displayed deliberate
indifference toward the rights of the plaintiff and had some
causal connection to the subsequent tort.

Sanchez v. Pereira-

Castillo, 590 F.3d 31, 49 (1st Cir. 2009) (citing Camilo-Robles
v. Zapata, 175 F.3d 41, 44 (1st Cir. 1999)).

Crosby must allege

facts to show that Dowaliby’s own acts or omissions constituted
“‘supervisory encouragement, condonation or acquiescence[,] or
gross negligence . . . amounting to deliberate indifference’” to

6

Crosby’s constitutional rights.

Grajales v. P.R. Ports Auth.,

682 F.3d 40, 47 (1st Cir. 2012) (citation omitted).

The facts

presently alleged in the complaint do not show gross negligence,
encouragement, condonation, or acquiescence amounting to
deliberate indifference, and therefore fail to state a claim of
supervisory liability under § 1983 at this time.
To maintain a § 1983 claim of supervisory liability, Crosby
must file an amended complaint stating, with specificity, the
information known by Dowaliby, and how Dowaliby was made aware
of the information, on or before October 20, 2011.

Further,

Crosby must state what Dowaliby did or failed to do, with
deliberate indifference, that violated Crosby’s right to
protection, with respect to Dowaliby’s own acts, and his
supervision of the SCDOC officers.
Conclusion
The court grants Crosby leave to file an amended complaint,
within thirty days of the date of this order, as follows:
1.
Crosby must identify with specificity, with
respect to each SCDOC defendant in this action, what each
defendant knew that caused that defendant to have a
subjective awareness of the risk Braley posed to
Crosby, and how each defendant was made aware of that
information;
2.
Crosby must identify with specificity, with
respect to each SCDOC defendant in this action, what each

7

defendant did or failed to do, with deliberate indifference
to the risk to Crosby, that renders that defendant liable
to Crosby in this action.
3.
With respect to Superintendent Dowaliby, Crosby
must demonstrate, with specificity, any action that
Dowaliby undertook or failed to undertake, and any
information known to Dowaliby, which demonstrates that
Dowaliby failed to properly supervise the named defendant
SCDOC officers to prevent the October 20, 2011, assault.
After receipt of an amended complaint, or the expiration of
the time granted Crosby to file an amendment, the court will
complete preliminary review of all claims in this action,
pursuant to 28 U.S.C. § 1915A and LR 4.3(d)(2).
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
February 4, 2013
cc:

Christopher Crosby, pro se

LBM:nmd

8