Beaulieu v. NH Department of Corrections, Commissioner et al

Filing 110

ORDER approving 87 Report and Recommendation. So Ordered by Judge Joseph A. DiClerico, Jr.(ko)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Christopher Beaulieu,
a/k/a Crystal Beaulieu
v.

Civil No. 15-cv-012-JD
Opinion No. 2017 DNH 008

Craig Orlando, et al.
O R D E R
Christopher Beaulieu, who is proceeding pro se and in forma
pauperis, is an inmate at the New Hampshire State Prison.1

As

allowed following preliminary review, Beaulieu brings claims
against employees of the Department of Corrections (“DOC”)
arising out of incidents that occurred on March 7, 2012, and
April 18 and 30, 2014.

Beaulieu moves to amend to add claims

against new defendants.
The magistrate judge issued a report on Beaulieu’s motion
to amend that recommends granting the motion as to Claims 5, 6,
and 7, brought against the defendants in their individual
capacities, and recommends denying the remaining proposed new

Beaulieu filed the complaint as Christopher Robert Beaulieu.
In the complaint, Beaulieu alleged that he was trying to be
diagnosed with “G.D. and start my treatment to be a female.”
The magistrate judge noted in the order issued on May 12, 2016,
that Beaulieu was then identifying as female, was using the
first name “Crystal”, and had asked to be referred to as female.
For that reason, the magistrate judge refers to Beaulieu as
“she” in the report and recommendation, and the undersigned
judge will do the same.
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claims, Claims 8 through 15.
recommendation.

Beaulieu objects to the report and

The DOC defendants object to the report to the

extent it recommends allowing Claims 5 and 6.
Standard of Review
When an objection to a report and recommendation is filed,
the court “shall make a de novo determination of those portions
of the report or specified proposed findings or recommendations
to which objection is made.”

28 U.S.C. § 636(b)(1).

The court

“may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”

Id.

Background
Beaulieu alleges that she was raped by another inmate in
December of 2011 and that she reported the rape in January of
2012.

The perpetrator was allowed to have continuing access to

Beaulieu, during which he harassed Beaulieu while prison
officers laughed.

Because of threats from the perpetrator,

Beaulieu recanted the rape charge.
Beaulieu alleges that while she was being escorted from her
cell for a disciplinary report on March 7, 2012, officers Craig
Orlando and Christopher Ziemba brought her to the floor.

As a

result, she was injured and did not receive adequate treatment.
She also alleges that she was wrongfully accused of assaulting
one of the escorting officers.
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Beaulieu alleges that two years later, in February of 2014,
she was raped by another inmate, Matthew Rodier.

Beaulieu

alleges that she was not properly protected when the rape
occurred.

Beaulieu also alleges that while she was housed in

the Secure Psychiatric Unit of the prison, the officers failed
to properly protect her.

As a result, Rodier was allowed access

to her on April 18, 2014, which caused Beaulieu to recant her
prior rape accusation.

Beaulieu further alleges that Rodier

raped her again on April 30, 2014.

She contends that the prison

officers did not adequately investigate her allegations or
protect her.
In July of 2014, Beaulieu states that she was assigned to
the Residential Treatment Unit of the prison.

Another inmate in

that unit asked to speak to Beaulieu, pressed Beaulieu to engage
in sexual acts with him, and when Beaulieu refused he forcibly
raped Beaulieu.

Beaulieu did not report the rape because she

did not trust the prison officers to respond appropriately and
to protect her.
Beaulieu previously has been allowed to amend her complaint
on July 16, 2015, November 30, 2015, and May 12, 2016.

When the

current motion to amend was filed, the defendants in the case
were DOC employees Craig Orlando, Christopher Ziemba, Michael
Shaw, Ernest Orlando, Barbara Slayton, Kevin Stevenson, and Paul
Cascio.

The claims against them were the following:
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1. NHSP officers Craig Orlando and Christopher Ziemba used
excessive force against Beaulieu on March 7, 2012, in
violation of Beaulieu’s Eighth Amendment right not to be
subject to cruel and unusual punishment.
2. NHSP officers Craig Orlando and Christopher Ziemba are
liable to Beaulieu for the state law tort of assault and
battery for the use of force they exerted against Beaulieu
on March 7, 2012.
3. NHSP officers Ernest Orlando and Michael Shaw are liable
to Beaulieu for the state law tort of negligent
supervision, for their failure to adequately supervise
defendants Craig Orlando and Christopher Ziemba on March 7,
2012, resulting in those defendants’ commission of the tort
of assault and battery on Beaulieu.
4. NHSP officials Barbara Slayton, Paul Casco, and Kevin
Stevenson, were deliberately indifferent to a significant
risk of serious harm to Beaulieu on April 18 and 30, 2014,
when, knowing that Beaulieu had been sexually assaulted by
another inmate, Matthew Rodier, those individuals failed to
separate Beaulieu from Rodier, resulting in Rodier
threatening Beaulieu, forcing Beaulieu to recant her
allegation of sexual assault, and further resulting in
Rodier sexually assaulting Beaulieu again.
In her current motion to amend, as construed by the
magistrate judge, Beaulieu seeks to add new defendants and the
following claims:
5. NHSP Cpl. Paige Kimball acted with deliberate
indifference to a significant risk of serious harm to
Beaulieu, in violation of Beaulieu’s Eighth Amendment
rights, on April 18, 2014, when Kimball, who was the
individual responsible for the direct supervision of the
inmates/patients on F-Ward in SPU, failed to separate
Beaulieu and Rodier, allowing Rodier sufficient access to
Beaulieu to enable Rodier to threaten Beaulieu and coerce
Beaulieu to recant her allegation that Rodier had sexually
assaulted her.
6. Former NHSP Corrections Officer (“C.O.”) Douglas Bishop
acted with deliberately indifferent to a significant risk
of serious harm to Beaulieu, in violation of Beaulieu’s
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Eighth Amendment rights, on April 30, 2014, when Bishop,
who was the individual responsible for the direct
supervision of the inmates/patients on F-Ward in SPU,
failed to separate Beaulieu and Rodier, allowing Rodier
sufficient access to Beaulieu to enable Rodier to sexually
assault Beaulieu.
7. NHSP inmate Matthew Rodier committed the intentional
torts of assault and battery under New Hampshire law when
he sexually assaulted Beaulieu on one occasion prior to
April 18, 2014, and again on April 30, 2014.
8. NHSP Sgt. Eric Barbaro is liable to Beaulieu for the
state law tort of negligent supervision of NHSP officers
Kimball and Bishop on April 18 and 30, 2014, in that, while
under Barbaro’s direct supervision, Kimball and Bishop
breached their duty to protect Beaulieu from harm.
9. Former DOC Director of Medical and Forensic Services
Helen Hanks violated Beaulieu’s rights by failing to
adequately supervise Barbaro, Kimball, and Bishop on April
18 and 30, 2014.
10. DOC Commissioner William Wrenn violated Beaulieu’s
rights by failing to adequately supervise and/or train
Hanks, Barbaro, Kimball, and Bishop on April 18 and 30,
2014.
11. New Hampshire Governor Margaret Hassan violated
Beaulieu’s rights by failing to adequately supervise Wrenn
or the DOC on April 18 and 30, 2014.
12. DOC Social Worker Barbara Slayton failed to provide
Beaulieu with any mental health care or treatment after
Beaulieu was sexually assaulted on April 18 and 30, 2014,
thereby acting with deliberate indifference to Beaulieu’s
serious medical need for mental health treatment, in
violation of Beaulieu’s Eighth Amendment rights.
13. DOC Investigations Unit Sgt. Joel A. Dinsmoor, the main
investigator assigned to investigate Beaulieu’s April 18,
2014, accusation of sexual assault against Rodier, failed
to adequately investigate the allegations, in violation of
the Prison Rape Elimination Act (“PREA”) and DOC policy.

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14. DOC PREA Victim Advocate Jean E. Carroll acted
callously in regard to Beaulieu’s April 2014 accusations of
sexual assault, in violation of DOC policy and PREA.
15. DOC Investigations Unit Director Colon K. Forbes failed
to adequately supervise or train Dinsmoor, in violation of
DOC policy, resulting in Dinsmoor’s inadequate
investigation of Beaulieu’s April 2014 accusations of
sexual assault.
The magistrate judge found that Claims 5, 6, and 7 were
adequately stated and recommended that they be allowed to
proceed, but that Claims 8 through 15 were insufficient, and
recommended that those claims not be allowed.
Discussion
Beaulieu and the DOC defendants both object to the
magistrate judge’s report and recommendation.

Beaulieu contends

that Claims 13, 14, and 15 should be allowed.

The DOC

defendants argue in their objection that Claims 5 and 6 should
not be allowed.

The DOC defendants also filed a response to

Beaulieu’s objection in which they argued that the magistrate
judge properly recommended that Claims 13, 14, and 15 not be
allowed.
A.

Beaulieu’s Objection

In her objection to the magistrate’s report and
recommendation, Beaulieu states that all of her claims are
brought against the defendants in their individual capacities,
that she properly stated a claim against Dinsmoor, and that she
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properly stated supervisory liability claims against Forbes and
Carroll.

The issue of individual and official capacity arose as

to Beaulieu’s proposed claims against Kimball and Bishop.

The

proposed claims against Kimball and Bishop were denied to the
extent they were brought against the defendants in their
official capacities but were allowed as claims brought against
the defendants in their individual capacities.
1.

Dinsmoor

Beaulieu objects to the magistrate’s recommendation that
her proposed claim against Dinsmoor, Claim 13, be denied.

In

Claim 13, Beaulieu alleges that Dinsmoor failed to adequately
investigate Beaulieu’s allegations of rape against Rodier in
violation of the PREA and DOC policy.

Beaulieu argues again in

her objection that Dinsmoor failed to investigate the rape
charge in violation of DOC policy and that Dinsmoor acted with
neglect and negligence in the investigation.
The magistrate judge recommended that the claim be denied
because no private cause of action exists under the PREA and
violations of DOC policy are not violations of constitutional
rights.
the PREA.

Beaulieu does not object to the ruling with respect to
Instead, she contends that Dinsmoor failed to

investigate her charge of rape to his full ability.

She also

states that Dinsmoor “acted with total disregard by failing to

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enforce the laws in that Sgt. Dinsmoor allowed a individual who
has no legal authority to investigate a criminal act and a
person who is not acting as a employee of the investigations
unit.”
Beaulieu has not shown in her objection that Dinsmoor’s
alleged negligence in investigating her allegations of rape, in
violation of DOC policy or procedure, was a violation of her
constitutional rights that would support a claim under 42 U.S.C.
§ 1983.

See Sandin v. Conner, 515 U.S. 472, 484 (1995); McFaul

v. Valenzuela, 684 F.3d 564, 579 (5th Cir. 2012); see also
Oliver v. Whitehead, 2017 WL 26860, at *8-*9 (M.D. Fl. Jan. 3,
2017); Solek v. Naqvi, 2016 WL 7427213, at *3 (D. Conn. Dec. 23,
2016); Cross v. Ziolkowski, 2016 WL 6705890, at *4 (S.D. Ill.
Nov. 15, 2016).
To the extent Beaulieu intended to allege a state law
negligence claim against Dinsmoor, for negligently investigating
Beaulieu’s charge of rape, her allegations do not support that
claim.

Under New Hampshire law, no common law tort exists for

negligent investigation by law enforcement officers.
Farrington, 166 N.H. 146, 150 (2014).

Lahm v.

Further, generally a

public officer does not owe a duty to an alleged victim to
investigate or prosecute a crime.

Matthews v. Craige, 2016 WL

3522320, at *4 (E.D. Mich. June 28, 2016) (“[A] private citizen
has no constitutional, statutory, or common law right to require
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a public official to investigate or prosecute a crime.”); White
v. Greene County Sheriff’s Dep’t, 2014 WL 3058393, at *9 (E.D.
Tenn. July 7, 2014); Barkey v. Reinke, 2010 WL 3893897, at *13
(D. Idaho Sept. 30, 2010).

Beaulieu’s allegations do not

support a negligence claim.
Beaulieu’s objection suggests a supervisory liability
theory against Dinsmoor that is not alleged in her motion to
amend the complaint.

If Beaulieu intended to suggest respondeat

superior liability against Dinsmoor based on the negligence of
another officer in investigating Beaulieu’s rape charge, the
allegations are insufficient to show that any negligence
occurred.

With respect to a claim under § 1983, an officer

cannot be held vicariously liable based on a respondeat superior
theory.

Monell v. Dep’t of Social Servs., 436 U.S. 658, 691

(1978).
To establish supervisory liability under § 1983, a
plaintiff first must allege facts that show the subordinate of
the supervisor violated the plaintiff’s constitutional rights.
Guadalupe-Baez v. Pesquera, 819 F.3d 509, 514 (1st Cir. 2016).
The plaintiff also must allege facts to show that the
supervisor’s “action or inaction was affirmatively linked to
that behavior in the sense that it could be characterized as
supervisory encouragement, condonation, or acquiescence or gross
negligence amounting to deliberate indifference.”
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Id. at 515

(internal quotation marks omitted).

Deliberate indifference

does not state a claim without the causal link between the
supervisor’s conduct and the constitutional violation.

Id.

Beaulieu has not alleged facts to satisfy that standard
with respect to Dinsmoor.
2.

Carroll and Forbes

In her proposed claims, Beaulieu alleges that Carroll, as
the DOC PREA Victim Advocate, violated DOC policy and the PREA
in the way she responded to Beaulieu’s allegations of sexual
assault.

The magistrate judge found that Beaulieu’s claim

against Carroll was inadequate because there is no private cause
of action under the PREA and because no right of action exists
for a claim that a prison officer failed to follow DOC policies
or procedures.

In her objection, Beaulieu states that Carroll

breached her duties by failing to protect Beaulieu as a victim
of a crime.
As is explained above, Beaulieu has not stated a viable
claim based on allegations that her allegations of sexual
assault were not adequately investigated.

To the extent

Beaulieu suggests a different claim against Carroll, such as
failure to protect, she has not alleged facts to support that
claim.

See, e.g. Farmer v. Brennan, 511 U.S. 825, 834 (1994);

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Calderon-Ortiz v. LaBoy-Alvarado, 300 F.3d 60, 64 (1st Cir.
2002).

Therefore, no viable claim is alleged against Carroll.

Beaulieu alleges that Forbes, as the DOC Investigations
Unit Director, failed to adequately supervise or train Dinsmoor
and that the lack of supervision and training caused Dinsmoor’s
inadequate investigation of Beaulieu’s allegations of sexual
assault.

The magistrate judge found that Beaulieu had not

alleged facts to support supervisory liability under § 1983.2
In her objection, Beaulieu argues that Forbes did not
comply with the statutory requirements of his job, that he
breached his “legal obligations” by ignoring Dinsmoor’s failure
to investigate Beaulieu’s claims of sexual assault, and that he
should be liable for the years of negligence in handling
Beaulieu’s charges of sexual assault.

As such, Beaulieu

provides conclusory statements about Forbes’s liability but does
not provide facts to show what Forbes did or did not do that
caused Beaulieu harm or that would state a claim for supervisory
liability.

For that reason, the claim against Forbes is not

viable.

A claim of failure to train also requires factual
allegations to show that the lack of training caused a
constitutional violation. Jones v. City of Boston, 752 F.3d 38,
59 (1st Cir. 2014); DiRico v. City of Quincy, 404 F.3d 464, 468
(1st Cir. 2005).
2

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B.

The Defendants’ Objection
The DOC defendants object to the magistrate judge’s report

and recommendation to the extent that the magistrate allowed
Claims 5 and 6.

The defendants contend that Beaulieu should not

be allowed to amend her complaint, again, because she has not
shown diligence in pursing her claims.

They also contend that

Claims 5 and 6 are not actionable.
1.

Diligence

Under Federal Rule of Civil Procedure 15(a), leave to amend
is to be freely given when justice so requires.

The defendants

contend that Beaulieu has not properly supported her motion
because she did not show why her new claims brought against new
parties were not included in her previously amended complaints.
See LR 15.1.

The defendants also contend that Beaulieu’s

repeated amendments have prejudiced them by requiring additional
responses.
Courts are not permitted to deny motions to amend simply
because of delay.
Cir. 2015).

Klunder v. Brown Univ., 778 F.3d 24, 34 (1st

Instead, to avoid amendment based on delay, the

opposing party must show prejudice caused by the delay such as
“prolonged discovery and a postponement of trial.”

Id. at 35.

The defendants have not made a compelling showing of prejudice.

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In addition, Beaulieu is proceeding pro se and is
incarcerated.

She also claims limited access to a law library.

For those reasons, she is afforded more lenience in pleading.
The deadline for amending pleadings has now passed,
however.

Beaulieu is put on notice that no further motions to

amend will be considered unless she can show good cause, as is
required under Federal Rule of Civil Procedure 16(a)(4).
2.

Claims 5 and 6

Futility of a proposed claim in a motion to amend is a
ground to deny the motion.
(1962).

Foman v. Davis, 371 U.S. 178, 182

A claim is futile if, as amended, it “would fail to

state a claim upon which relief could be granted.”

D’Agostino

v. ev3, Inc., --- F.3d ---, 2016 WL 7422943, at *4 (1st Cir.
Dec. 23, 2016) (internal quotation marks omitted).

In assessing

whether the allegations would state a claim, the court views the
allegations under the standard used for Federal Rule of Civil
Procedure 12(b)(6), accepting the allegations as true and taking
all reasonable inferences in the plaintiff’s favor.

Morgan v.

Town of Lexington, 823 F.3d 737, 742 (1st Cir. 2016).
As construed by the magistrate judge, proposed Claims 5 and
6 allege that Kimball and Bishop acted with deliberate
indifference to a significant risk of serious harm to Beaulieu

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in violation of her Eighth Amendment rights.3

The magistrate

judge recommends that Claim 5 and Claim 6 be allowed to proceed
against Kimball and Bishop in their individual capacities.

The

defendants contend that Beaulieu has not alleged facts to show
that Kimball and Bishop were deliberately indifferently to a
significant risk of harm to Beaulieu.
To state a claim that a prison officer failed to protect an
inmate in violation of the Eighth Amendment, the inmate must
allege facts showing that the officer was deliberately
indifferent to his safety.

Farmer, 511 U.S. at 834.

A prison

official or officer is not deliberately indifferent to an
inmate’s safety “unless the official knows of and disregards an
excessive risk to inmate health or safety; the 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 835.

Beaulieu alleges that Kimball was responsible for
supervising inmates in the Secure Psychiatric Unit on April 18,
2014, when both Beaulieu and Rodier were held in that unit.
Beaulieu had accused Rodier of raping her.

Beaulieu further

alleges that Kimball failed to supervise inmates when they were

To the extent Beaulieu alleged that Kimball and Bishop
violated her Eighth Amendment rights by failing to follow prison
rules or regulations, that claim is not allowed.
3

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out of their cells which allowed Rodier to have access to
Beaulieu.

During that access, Rodier threatened Beaulieu, which

caused Beaulieu to recant her accusations of rape against
Rodier.
Bishop was the ward officer for the Secure Psychiatric Unit
on April 30, 2014.

Beaulieu alleges that Bishop failed to

supervise Beaulieu and Rodier on that day, which resulted in
Rodier raping Beaulieu.
Beaulieu does not allege what Kimball and Bishop each knew
about the circumstances involving Beaulieu and Rodier.
information would be required to prove the claims.

That

Taking the

facts in the light most favorable to Beaulieu, however, the
claims state enough to proceed at this stage of the case.
Conclusion
For the foregoing reasons, the magistrate judge’s report
and recommendation (document no. 87) is approved and adopted.
SO ORDERED.

__________________________
Joseph DiClerico, Jr.
United States District Judge
January 12, 2017
cc:

Christopher R. Beaulieu, pro se
Laura E.B. Lombardi, Esq.
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