Peters v. NH Department of Corrections, Commissioner

Filing 110

ORDER denying 85 Motion for Summary Judgment; approving 102 Report and Recommendation. The Report and Recommendation having been approved, the clerk's office shall schedule a case management conference to, among other things, set new trial dates. So Ordered by Judge Landya B. McCafferty.(de)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Matthew W. Peters
v.

Civil No. 15-cv-025-LM

NH Department of Corrections,
Commissioner

O R D E R
No objection having been filed, the court herewith approves
the Report and Recommendation of Magistrate Judge Andrea K.
Johnstone dated August 4, 2017, for the reasons set forth
therein.

See Sch. Union No. 37 v. United Nat’l Ins. Co., 617

F.3d 554, 564 (1st Cir. 2010) ("[O]nly those issues fairly
raised by the objections to the magistrate's report are subject
to review in the district court and those not preserved by such
objection are precluded on appeal." (quoting Keating v. Sec'y of
Health & Human Servs., 848 F.2d 271, 275 (1st Cir. 1988)).
Nevertheless, the court will briefly discuss one issue that
was not highlighted in the Report and Recommendation: the fact
that prison officials offered plaintiff protective custody when
he informed them that he feared for his safety.
102 at 5.

See doc. no.

As a general matter, "prison officials who actually

knew of a substantial risk to inmate health or safety may be
found free from liability [for a deliberate-indifference claim

under the Eighth Amendment] if they responded reasonably to the
risk, even if the harm ultimately was not averted."
Brennan, 511 U.S. 825, 845 (1994).

Farmer v.

In determining whether

prison officials responded reasonably to a risk to an inmate's
health or safety, courts have considered the fact that officials
offered protective custody to the inmate.

See, e.g., Walls v.

Tadman, 762 F.3d 778, 783 (8th Cir. 2014); Dale v. Poston, 548
F.3d 563, 570 (7th Cir. 2008); Nolen v. Goord, 218 F. App'x 41,
43 (2d Cir. 2007).
In moving for summary judgment, however, defendant did not
expressly argue that this fact negated plaintiff's claim of
deliberate indifference, nor did he submit evidence to show that
protective custody was a reasonable response to the risk of harm
that plaintiff faced.

Nor did defendant argue that he was

entitled to qualified immunity.

Rather, defendant mentioned

qualified immunity, almost as an after-thought, in his reply
brief.

See doc. no. 94 at 4.

On the question of whether

defendant’s offering protective custody to plaintiff (and
plaintiff’s refusal to accept the offer) constitutes deliberate
indifference, only plaintiff presented evidence.

Specifically,

plaintiff submitted affidavits that tend to show that protective
custody would have been inadequate to protect his safety.
doc. no. 93 at 12-14.

See

Given the state of the record, the nature
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of the parties' arguments on summary judgment, and the absence
of any objection to the Report and Recommendation, the court
declines to consider the issue, and takes no position as to the
issue's bearing, if any, on the merits of plaintiff's claim.
See Sch. Union No. 37, 617 F.3d at 564.
Accordingly, the Report and Recommendation having been
approved, the clerk’s office shall schedule a case management
conference to, among other things, set new trial dates.

See

doc. no. 102 at 19.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
September 14, 2017
cc:

Lynmarie C. Cusack, Esq.
Francis Charles Fredericks, Esq.
Seth J. Hipple, Esq.
Elizabeth A. Lahey, Esq.
Stephen T. Martin,Esq.

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