Cole v. Fluery et al
Filing
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ORDER Directing Clerk to Make Service upon the New Hampshire Office of the Attorney General, as provided in the Agreement on Acceptance of Service, electronic copies of: this order, the complaint (doc. no. 1), and the motion for expedited ruling (doc. no. 3); denying without prejudice 3 motion for expedited ruling. So Ordered by Magistrate Judge Landya B. McCafferty.(jab)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Christopher P. Cole
v.
Civil No. 13-cv-274-SM
Corporal FNU Fluery and
Corporal FNU Dube
O R D E R
Christopher P. Cole, an inmate at the New Hampshire State
Prison (“NHSP”) has filed a complaint (doc. no. 1) asserting
that defendants violated his Eighth Amendment rights by using
excessive force against him.
The matter is before the court for
preliminary review to determine, among other things, whether the
complaint states any claim upon which relief might be granted.
See 28 U.S.C. § 1915A(a); LR 4.3(d)(2).
Also before the court
is a motion for expedited ruling (doc. no. 3).
I.
Preliminary Review
A.
Standard
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 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) (citation omitted).
To determine
plausibility, the 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).
B.
Factual Background
Cole is an NHSP inmate who, during May 18-19, 2013, was
housed at the prison’s Secure Psychiatric Unit (“SPU”).
Cole’s
housing status on SPU required that his food be delivered
through a slot in his door and that any trash in his cell be
passed out of the same slot.
Cole alleges that on May 19, 2013,
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NHSP Corporal Fluery and Corrections Officer Dube were
delivering food trays to SPU inmates.
When Fluery and Dube
opened Cole’s slot to hand him his tray, Cole indicated that he
did not want any food, but had trash to pass out of the slot.
Cole states that when he started to push the trash bag
through the slot, Fluery and Dube slammed the slot door down on
his hands.
Cole tried to pull his hands and arms out, but could
not, because the officers were holding, twisting, and pulling
his fingers while holding the door slot down on them.
Fluery
then stomped on the slot door right where Cole’s hand was
located.
Cole states that as a result, he suffered severe bruising
to his forearm, cuts on his hand, swelling, numbness, and
persistent pain.
Cole saw a nurse for his injuries shortly
after the incident, and a doctor four days later, who told Cole
that he had nerve damage in his thumb and forearm.
Another
nurse referred Cole for physical therapy.
Cole claims that the assault on him was taken in
retaliation for a “flooding” incident that had occurred in
Cole’s unit the day before, when other inmates in the unit had
flooded their toilets, causing water to flood the entire unit.
As further evidence of defendants’ malice, Cole claims that on
the morning after the flooding, while the cells were still full
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of water, Fleury was throwing the paper bags containing the
inmates’ breakfasts into the water on their cell floors.
Cole
also states that the day after the flooding, in addition to the
excessive force complained of here, he, like the rest of the
inmates on his housing unit, was exposed to the following prison
conditions in retaliation for the flooding: the water on the
whole unit was shut off for most of the day following the flood;
he was unable to flush his toilet and thus had to smell his
waste all day; he was made to clean up toilet water in his cell
without gloves, shoes, or cleaning supplies.
C.
Legal Analysis
Cole asserts that Fleury and Dube used excessive force
against him on May 19, 2013, by pulling, twisting, and stomping
on his fingers, hands, and arms, in violation of the Eighth
Amendment.
In considering whether plaintiff has stated an
Eighth Amendment claim for excessive force, the court determines
whether the facts demonstrate that the force described “was
applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.”
Hudson v. McMillian, 503 U.S. 1, 7 (1992).
The relevant factors
for the court to consider in evaluating an excessive force claim
are: the need for force; the relationship between that need and
the amount of force applied; the extent of any injury inflicted;
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the “threat ‘reasonably perceived by the responsible
officials’”; and the “‘efforts made to temper the severity of a
forceful response.’”
312, 321 (1986)).
Id. (quoting Whitley v. Albers, 475 U.S.
Applying the relevant factors, the court
concludes that Cole has stated a plausible claim of excessive
force in violation of the Eighth and Fourteenth Amendments, upon
which relief might be granted against Fluery and Dube.
Accordingly, the court directs service of this action on those
defendants in this order.
II.
Motion for Expedited Ruling (Doc. No. 3)
Cole asserts that there is video footage of the May 19,
2013, episode of the alleged excessive force, and he moves for
an order directing defendants to preserve the video.
Cole
states that he sent three request slips to the NHSP
Investigations Department asking that the video be “saved and
secured.”
His first request, sent the day of the incident, was
answered by Capt. Cascio, who stated, “I’ll review it.”
Cole’s
other requests were not answered.
A litigant has a duty to preserve relevant evidence.
This obligation predates the filing of the complaint
and arises once litigation is reasonably anticipated.
The duty to preserve material evidence arises not only
during litigation but also extends to that period
before the litigation when a party reasonably should
know that the evidence may be relevant to anticipated
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litigation. If a party cannot fulfill this duty to
preserve because he does not own or control the
evidence, he still has an obligation to give the
opposing party notice of the possible destruction of
the evidence if the party anticipates litigation
involving that evidence.
EEOC v. Ventura Corp., No. 11-1700 (PG), 2013 WL 550550, at *3
(D.P.R. Feb. 12, 2013) (internal quotation marks and alterations
omitted) (quoting Velez v. Marriott PR Mgmt., Inc., 590 F. Supp.
2d 235, 258 (D.P.R. 2008)).
There is nothing in the record suggesting that the
videotape is likely to be imminently destroyed.
Once the
complaint is served on defendants, pursuant to this order,
defendants will be on notice of their duty to preserve the
videotape and/or to notify Cole of the possibility of its
destruction.
Cole has failed to demonstrate any need for the
requested protective order at this time, and the motion is
therefore denied, without prejudice to renewal should Cole be
able to demonstrate that the evidence will not likely be
preserved absent a court order.
Conclusion
The motion for an expedited ruling (doc. no. 3) seeking
preservation of the videotape of the May 19, 2013, incident is
DENIED without prejudice.
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Cole has stated sufficient facts to assert an excessive
force claim against defendants Fluery and Dube, in their
individual capacities, upon which relief might be granted.
Accordingly, the clerk’s office is directed to serve the New
Hampshire Office of the Attorney General (“AG”), as provided in
the Agreement on Acceptance of Service, electronic copies of:
this order; the complaint (doc. no. 1); and the motion for
expedited ruling (doc. no. 3).
Within thirty days from receipt of these materials, the AG
will submit an Acceptance of Service notice to the court
specifying whether all of the defendants have authorized the AG
to receive service on their behalf.
When the AG files the
Acceptance of Service, service will be deemed made on the last
day of the thirty-day period for all defendants who accept AG
representation.
If defendants do not authorize the AG to receive service on
their behalf, or the AG declines to represent any or all of the
defendants, the AG shall, within thirty days from receipt of the
aforementioned materials, provide to the court the last known
address of those defendants.
In that event, the clerk’s office
is instructed to complete and issue a summons for each of those
defendants, using the last known address provided, and forward
the summonses, along with the above-listed documents, to the
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United States Marshal for the District of New Hampshire, to
complete service on those defendants in accordance with this
order and Fed. R. Civ. P. 4(c)(3) and 4(e).
Defendants are instructed to answer or otherwise plead
within twenty-one days of service.
See Fed. R. Civ. P.
12(a)(1)(A).
Plaintiff is instructed that all future pleadings, written
motions, notices, or similar papers shall be served directly on
the defendants by delivering or mailing the materials to the
defendants or their attorney(s), pursuant to Fed. R. Civ. P.
5(b).
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
October 25, 2013
cc:
Christopher P. Cole, pro se
LM:jba
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