Beaulieu v. NH Department of Corrections, Commissioner et al
///ORDER granting 127 Motion for Summary Judgment; terminating as moot 164 Motion to Extend Deadline. Claims 1 through 6 are dismissed without prejudice. The court declines to exercise supplemental jurisdiction over the remaining state law claims brought against Matthew Rodier in Claim 7, which is dismissed without prejudice. Clerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Civil No. 15-cv-12-JD
Opinion No. 2018 DNH 051
Craig Orlando, et al.
O R D E R
Crystal Beaulieu, who is proceeding pro se, brings claims
against employees of the New Hampshire Department of Corrections
(“DOC”) and another inmate, Matthew Rodier, arising out of
incidents that occurred at the New Hampshire State Prison for
men in March of 2012 and April of 2014.
The state defendants
move for summary judgment on the claims against them.
receiving extensions of time over the past ten months, Beaulieu
failed to respond to the motion.
Standard of Review
Summary judgment is appropriate when the moving party
“shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
“A genuine dispute is one that a
reasonable fact-finder could resolve in favor of either party
The complaint was filed by Christopher Robert Beaulieu.
Since filing, Beaulieu has decided to identify as female, using
the name “Crystal,” and prefers to be referred to with female
and a material fact is one that could affect the outcome of the
Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir.
The facts and reasonable inferences are taken in the
light most favorable to the nonmoving party.
of Quincy, 835 F.3d 192, 202 (1st Cir. 2016).
McGunigle v. City
“On issues where
the movant does not have the burden of proof at trial, the
movant can succeed on summary judgment by showing ‘that there is
an absence of evidence to support the nonmoving party’s case.’”
OneBeacon Am. Ins. Co. v. Commercial Union Assurance Co. of
Canada, 684 F.3d 237, 241 (1st Cir. 2012) (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 325 (1986)).
Under the local rules in this district, a party moving for
summary judgment must include “a short and concise statement of
material facts, supported by appropriate record citations, as to
which the moving party contends there is no genuine issue to be
A party opposing the motion must also
include a statement of material facts with appropriate record
citations to show that a genuine factual dispute exists.
“All properly supported material facts set forth in
the moving party’s factual statement may be deemed admitted
unless properly opposed by the adverse party.”
In this case, the defendants filed their motion for summary
judgment on April 6, 2017.
Beaulieu was granted six extensions
of time to file a response to the motion.
The last deadline was
February 16, 2018, when Beaulieu was notified that no further
extensions would be granted.
After the deadline had passed,
Beaulieu again asked for an extension for an unspecified amount
That request was denied.
Therefore, the properly
supported factual statement in the defendants’ memorandum in
support of summary judgment is deemed admitted.
Beaulieu was an inmate at the New Hampshire State Prison in
March of 2012 and April of 2014, when the incidents at issue in
this case occurred.
The state defendants, who are Craig
Orlando, Christopher Ziemba, Ernest Orlando, Michael Shaw,
Barbara Slayton, Paul Casco, Kevin Stevenson, Page Kimball, and
Douglas Bishop, were prison officers and officials during the
time of those incidents.
Beaulieu also brings claims against
Matthew C. Rodier, another inmate.
In March of 2012, Beaulieu was housed in the maximum
security Special Housing Unit (“SHU”) at the prison.
Beaulieu had threatened to spit on prison staff, Lieutenant
Michaud had ordered staff to put a “spit hood” on Beaulieu
whenever she was moved from her cell.
In April of 2014,
Beaulieu was housed in the Secure Psychiatric Unit (“SPU”).
March 7, 2012, Incident
On March 7, 2012, Shaw asked Ziemba and Orlando to move
Beaulieu from her cell on J tier in SHU to the Officer in Charge
in SHU for a disciplinary report hearing.2
Once Beaulieu was
handcuffed, Orlando put the spit hood over her head.
Ziemba and Orlando were escorting Beaulieu down the tier
corridor, Beaulieu kicked a deodorant stick that was on the
floor and then turned her head toward Orlando and spat at him.
Despite the spit hood, particles of spit covered the right
side of Orlando’s face.
Orlando took Beaulieu to the floor, and
Ziemba helped to restrain her.
During their efforts to restrain
Beaulieu, she was injured, which caused bleeding over her eye.3
When the officers had control of Beaulieu, they brought her to
her feet and took her to the SHU Officer in Charge, as planned.
Both Orlando and Ziemba state that they used only the amount of
The disciplinary report for the incident states that
Corrections Officer Thimba also participated in escorting
Beaulieu, but the defendants do not mention Thimba in their
statement of facts, and Thimba is not a defendant in this case.
In his own report of the incident, Thimba states that he had
been passing out toilet paper from a cart on J tier and was just
about to leave when the spitting incident occurred. Thimba
confirmed that Beaulieu spat at Orlando. The video of the
incident, which was recorded by a security camera, confirms that
Thimba was present but did not participate in the incident.
As mentioned above, the incident was recorded by a security
camera, and the court has reviewed the video.
force necessary to control Beaulieu and that they had no
malicious or sadistic intent.
Because of the injury, Beaulieu was taken to a dayroom for
Nurse Pat Keon examined and treated
Beaulieu had a scrape with some swelling on her head.
Although Beaulieu also complained of right arm pain, she was
found to have a good range of motion.
Keon gave Beaulieu
Ibuprofen for the scrape and cleared her to return to her cell.
Orlando went to a bathroom to wash the spit off of his
Other officers took Beaulieu back to her cell where she
was agitated and demanded that pictures be taken of her injury.
Shaw notified the shift commanders that the incident had
Later, when Orlando was doing rounds, Beaulieu
apologized for spitting on him.
Beaulieu was charged with a major disciplinary infraction
for striking an officer.
During the disciplinary proceeding,
Beaulieu did not deny spitting on Orlando.
Following a hearing,
Beaulieu was given fifteen days of punitive segregation and lost
privileges for one hundred days.
Orlando did not bring assault charges against Beaulieu.
“Use of Force Review” was done for the incident by the prison,
which determined that Beaulieu must wear a spit hood whenever
she was out of her cell and that all of her movements would be
videotaped to document her behavior.
In order to provide video
surveillance, Beaulieu was moved to a different cell.
Incidents in April of 2014
On the morning of April 18, 2014, Beaulieu was in a
therapeutic group in the Secure Psychiatric Unit (“SPU”) when
she asked to be excused.
Out in the hallway, Beaulieu told her
social worker, Barbara Slayton, that she could not focus and
that if things did not change she might have to go to the
When they moved to another room, Beaulieu wrote
on a piece of paper that she gave to Slayton:
“I can’t say no A
was pressured into sexually acts he has Hep C and it is
Beaulieu identified Matthew Rodier as the inmate who was
pressuring her for sex.
She also said that Rodier threatened
her so that she was afraid to report the behavior.
concerns for her health related to sexual activity with Rodier.
Slayton called SPU Captain, Paul Cascio, who joined her meeting
Cascio told Beaulieu that she would be locked in
her cell on Acute Care Status (“ATC”), pending an investigation
of her charges.4
The defendants abbreviate “Acute Care Status” as “ATC”.
Cascio put Beaulieu on ATC for her safety and notified the
Prison Rape Elimination Act (“PREA”) investigator of Beaulieu’s
Cascio also called the investigation unit and was told
an investigation would be done.
Beaulieu underwent a mental
health assessment and was determined not to be a suicide risk.
At 2:00 in the afternoon the same day, SPU staff notified
Cascio that Beaulieu did not want to continue on ATC.
sent an inmate request slip in which she said that she did not
want to be on ATC and that “if your staff don’t talk about it
then my safety will not be at risk.”
She further asked that
they not put her on ATC for the weekend.
Cascio met with Beaulieu at 4:00 p.m., and Beaulieu
recanted her accusations against Rodier.
Cascio called the
investigations unit and was told to get a statement in writing
The investigator said that he would not conduct
an investigation if the allegations of sexual contact by Rodier
Cascio got a written statement from Beaulieu in which she
stated the following:
I am hereby writing this to inform the DOC that I
have no concern for my safety or worries that Inmate
Matthew Clayton Rodier nor any one for that fact will
sexually assault me in anyway. I have made
Allegations against Mr. Rodier but there is no
concerns there and I feel safe being SC on F-ward-SPU
and be allowed the same as them do to the fact that I
have no concerns for my safety. Nor Feel Concerned
that I will be pressured in any way to do any sexual
Therefore wish that this be disregarded
Allegations of Sexual Contact against I/M Matthew
Doc. no. 127-11.
The statement is dated April 18, 2014, at “16”
and states that the statement was given by Christopher Beaulieu
to “Captin” Paul S. Cascio.
Cascio then removed Beaulieu from
Slayton met with Beaulieu on April 21, 2014, with security
present, to address reports that Beaulieu had been making sexual
remarks and touching other inmates.
Beaulieu admitted sexual
relations with Rodier and denied any coercion to engage in that
Beaulieu also said that a statement she made in a
previous inmate request slip, accusing Slayton of pressuring her
to make allegations against Rodier, was not true and explained
that she made the statement against Slayton because she felt
like blaming someone.
On May 4, 2014, Beaulieu wrote an inmate request slip in
which she alleged that Rodier had sexually assaulted her on
April 30, 2014.
Beaulieu’s treatment team received the slip the
Kevin Stevenson, SPU Administrator, sent the slip to
the PREA investigator and the victim advocate.
By that time,
Rodier had been released from the prison on parole.
Beaulieu wrote two inmate request slips on June 22, 2014,
one to Cascio and one to Stevenson, stating that a medical
assessment was not done on April 18 when she alleged sexual
contact from Rodier and that while she was placed on ATC, Rodier
was not restricted.
Beaulieu believed that the staff had not
followed Policy and Procedure Directive (“PPD”) 5.19, which
addresses PREA procedures, on April 18.
In August, Beaulieu
sent an inmate request slip to the investigations unit, again
stating that the policy was not followed.
The defendants do not
provide any information about the outcome of Beaulieu’s request
In December of 2014, Beaulieu appealed the prison’s
response to the April 18 events to the Director of Medical and
Beaulieu stated that PPD 5.19 required
separation of inmates who were subject to sexual assault
allegations and that she and Rodier were both housed in F ward.
In addition, Beaulieu argued that Rodier should have been put on
ATC, and instead Rodier was allowed out of his cell, while
Beaulieu remained on lock down until she wrote the statement
recanting her accusations about sexual contact with Rodier.
In this case, Beaulieu brings the following claims, as have
been allowed on preliminary review and by amendment:
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,5 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.
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
6. Former NHSP Corrections Officer (“C.O.”) Douglas Bishop
acted with deliberate indifference to a significant risk of
serious harm to Beaulieu, in violation of Beaulieu’s Eighth
Amendment rights, on April 30, 2014, when Bishop, who was
In their motion for summary judgment, the defendants spell
the name Cascio.
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.
The state defendants move for summary judgment on the
ground that Beaulieu cannot prove her claims.6
the state defendants contend that they are not liable based on
qualified immunity for the claims based on Beaulieu’s
allegations arising from incidents in April of 2014.
defendants also ask the court to decline to exercise
supplemental jurisdiction over the state law claims if the
federal claims are dismissed.
March 7 Incident
Beaulieu alleges that Orlando and Ziemba used excessive
force when they subdued her after she spat on Orlando.
contends that the force used violated her Eighth Amendment right
to be free of cruel and unusual punishment and also constitutes
assault and battery under state law.
In addition, Beaulieu
Rodier, who is proceeding pro se, did not move for summary
alleges that Ernest Orlando and Michael Shaw are liable under
state law for negligent supervision, because they failed to
adequately supervise Orlando and Ziemba.
Eighth Amendment Claim
Prison officers violate the Eighth Amendment if the
physical force used was excessive in light of the need to
maintain or restore discipline and order.
503 U.S. 1, 6 (1992).
Hudson v. McMillian,
Force is excessive if applied
“maliciously and sadistically to cause harm” rather than “in a
good faith effort to maintain or restore discipline.”
Id. at 7.
Factors that are relevant to whether the use of force was
(1) “the extent of injury suffered by [the]
inmate”; (2) “the need for application of force”; (3) “the
relationship between that need and the amount of force used”;
(4) “the threat reasonably perceived” by the officer; and (5)
“any efforts made to temper the severity of a forceful
At the time of the incident on March 7, 2012, Beaulieu was
being escorted from her cell to a disciplinary report hearing.
She was wearing a spit hood over her head because of her prior
threats to spit on staff.
During the escort, Beaulieu kicked a
deodorant stick and then spit at Orlando with such force that
particles of spit covered the right side of Orlando’s face
despite the spit hood.
Orlando took Beaulieu to the floor, and
Ziemba helped to restrain her.
over her eye.
Beaulieu sustained an injury
She was treated by a nurse at the prison for a
scrape and some swelling.
The officers reasonably attempted to avoid being spat upon
by using the spit hood on Beaulieu.
When Beaulieu was able to
spit through the hood, the officers needed to restore order by
restraining Beaulieu to stop her from spitting.
The amount of
force necessary to take Beaulieu to the floor where she could be
restrained was proportional to the threat of continued spitting.
The injury she sustained was relatively minor.
The circumstances that resulted in Beaulieu’s injury
support a conclusion that Orlando and Ziemba used reasonable
force in response to Beaulieu’s actions rather than reacting
maliciously or sadistically.
See, e.g., Hardwick v. Packer, 546
F. App’x 73, 76 (3d Cir. 2013) Reyes v. Chinnici, 54 F. App’x
44, 47-48 (3d Cir. 2002); Wheeler v. Fritz, 2015 WL 4485436, at
*12 (D. Md. July 20, 2015); Chestnut v. Singleton, 2015 WL
2345266, at *3 (D.S.C. May 14, 2015); Jordan v. Sheehy, 2013 WL
943764, at *3 (D. Conn. Mar. 11, 2013).
Amendment violation occurred.
Therefore, no Eighth
Assault and Battery Claim
A successful assault claim requires evidence that the
defendant “intended to cause harmful or offensive contact” with
the plaintiff and that the plaintiff was “put in imminent
apprehension of such contact.”
King v. Friends of Kelly Ayotte,
860 F. Supp.2d 118, 129–30 (D.N.H. 2012) (quoting Yale v. Town
of Allenstown, 969 F. Supp. 798, 801 (D.N.H. 1997) (citing
Restatement (Second) of Torts § 21(1) (1965))).
A defendant may
be held liable for battery if “(a) he acts intending to cause a
harmful or offensive contact with the person of the other or a
third person, or imminent apprehension of such a contact, and
(b) a harmful contact with the person of the other directly or
Hudson v. Dr. Michael J. O'Connell's Pain
Care Ctr., Inc., 822 F.Supp.2d 84, 94 (D.N.H.2011) (quoting
United Nat'l Ins. Co. v. Penuche's, Inc., 128 F.3d 28, 32 (1st
Cir. 1997) (citing Restatement (Second) of Torts § 13 (1977)));
Rand v. Town of Exeter, 976 F. Supp. 2d 65, 75–76 (D.N.H. 2013).
As is discussed in the context of the Eighth Amendment
claims, the officers acted reasonably to control Beaulieu.
that reason, the record does not support Beaulieu’s assault or
Negligent Supervision Claim
Beaulieu contends that Michael Shaw and Ernest Orlando were
negligent in supervising Craig Orlando and Christopher Ziemba
which resulted in Beaulieu being the victim of assault and
Because Beaulieu has not shown a triable issue in
support of her assault and battery claim, the negligent
supervision claim also fails.
April of 2014 Incidents
As construed on preliminary review, Beaulieu claims that
prison officers Paige Kimball, Douglas Bishop, Barbara Slayton,
Paul Cascio, and Kevin Stevenson were deliberately indifferent
to a significant risk of serious harm to Beaulieu on April 18
and 30, 2014, in violation of the Eighth Amendment when they
allowed Rodier access to Beaulieu.
As a result, she alleges,
Rodier threatened Beaulieu on April 18, forcing Beaulieu to
recant her allegation of sexual assault.
Then, with continued
access, Rodier sexually assaulted Beaulieu again on April 30.
The defendants contend that Beaulieu cannot prove that
there was a substantial risk of harm before Rodier was allowed
access to her because Beaulieu had recanted her allegations of
being assaulted by Rodier and asked to be taken off ATC
They also contend that they are entitled to
The Eighth Amendment imposes a duty on prison officials and
officers “to protect prisoners from violence at the hands of
Farmer v. Brennan, 511 U.S. 825, 833 (1994)
(internal quotation marks omitted).
A violation of Eighth
Amendment rights occurs when the conditions of incarceration
present “a substantial risk of serious harm” and the official or
officer was deliberately indifferent to the inmate’s health or
Id. at 834.
Therefore, “a prison official cannot be
found liable under the Eighth Amendment for denying an inmate
humane conditions of confinement 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 839.
Circumstances in this Case
On April 18, 2014, it is undisputed that the defendants
knew that Beaulieu was a transgender person housed in the SPU in
a prison for men.
Rodier of rape.
They also knew that Beaulieu had accused
In response, they put Beaulieu on ATC, which
meant that she was locked in her cell in SPU for her safety, and
notified the PREA investigator about Beaulieu’s accusations.
Despite those precautions, Beaulieu contends that Rodier was
allowed sufficient access to her to force her to recant her
accusations of rape against Rodier, which resulted in
terminating her ATC protection and a subsequent rape by Rodier.
The record, however, shows different events, which Beaulieu
is deemed to have admitted.
As soon as Beaulieu accused Rodier
of rape, she was put in ATC protection.
There is no evidence
that Rodier had access to Beaulieu while she was on ATC
protection or that SPU staff knew of any contact between Rodier
Instead, Beaulieu complained to SPU staff about
being locked in her cell.
When her complaints did not result in releasing ATC
protection, Beaulieu submitted an inmate request slip in which
she stated that she had no concern about sexual assault by
Rodier or anyone else and that she would be safe if released
from ATC protection as long as the staff did not talk about her
accusations against Rodier.
Based on her request and her
representations, Beaulieu was released from ATC protection.
Under those circumstances, the record does not show a
material factual dispute as to whether the defendants were
deliberately indifferent to a substantial risk of harm to
Rather than being indifferent, the defendants
immediately reacted and protected Beaulieu when she accused
Rodier of rape.
They had no information that the ATC protection
they provided was insufficient.
Beaulieu was released from ATC
protection only because she asked to be and because she
represented that her safety was not an issue.
In addition, a few days later, Officer Slayton met with
Beaulieu to address reports from other inmates that Beaulieu had
been making sexual remarks and touching other inmates.
the meeting, Beaulieu admitted sexual relations with Rodier and
denied any coercion to engage in that conduct.
told Slayton that she had falsely accused Slayton of pressuring
her to make allegations against Rodier.
Beaulieu did not make her next allegations against Rodier
until May 4, when she accused Rodier of raping her on April 30.
Beaulieu points to no evidence to show that the defendants were
put on notice, after she recanted her accusations against Rodier
on April 18 and met with Slayton on April 21, that Rodier
presented a substantial risk of serious harm to Beaulieu.
result, the record does not show that the defendants were
deliberately indifferent to a substantial risk of harm to
Because Beaulieu’s claim fails on the merits, it is
not necessary to consider qualified immunity.
All of the constitutional claims, which are brought against
the state defendants, are resolved on summary judgment against
As a result, the claims that were the basis for
subject matter jurisdiction in this case, along with related
state law claims against the state defendants, have been
The only remaining claim is a separate state law
claim against a separate defendant, Matthew C. Rodier.
The state law claim against Rodier involve different issues
and evidence than have been considered for purposes of the state
defendants’ motion for summary judgment.
The court declines to
exercise supplemental jurisdiction over the state law claims
against Rodier (Claim 7).
28 U.S.C. §§ 1367(a) & (c)(3).
For the foregoing reasons, the state defendants’ motion for
summary judgment (document no. 127) is granted.
Claims 1 through 6 are dismissed with prejudice.
The court declines to exercise supplemental jurisdiction
over the remaining state law claims brought against Matthew
Rodier in Claim 7, which is dismissed without prejudice.
Document no. 164 is terminated as moot.
The clerk of court shall enter judgment accordingly and
close the case.
Joseph DiClerico, Jr.
United States District Judge
March 12, 2018
Christopher R. Beaulieu, pro se
Laura E.B. Lombardi, Esq.
Matthew Rodier, pro se
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