Beers v. NH Governor et al

Filing 102

///ORDER granting 86 Sgt. Keith Forcier's Motion to Dismiss. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Timothy Beers
v.

Case No. 15-cv-454-SM
Opinion No. 2018 DNH 045

Jon Fouts et al.

O R D E R
Before the court is defendant New Hampshire State Prison
(“NHSP”) Sgt. Keith Forcier’s motion to dismiss (Doc. No. 86),
in which Forcier asserts entitlement to qualified immunity in
this matter.

Plaintiff Timothy Beers has filed an objection

(Doc. No. 87).

Background
I.

December 2014 Strip Search
The facts underlying Beers’s claim against Forcier have

been previously set forth in this case in detail, most recently
in the magistrate judge’s June 12, 2017 Report and
Recommendation (Doc. No. 82), 2017 WL 4048283, 2017 U.S. Dist.
LEXIS 147378 (D.N.H. June 12, 2017) (“June 12 R&R”), R&R
approved by Sept. 12, 2017 Order (Doc. No. 92), 2017 WL 4041316,
2017 U.S. Dist. LEXIS 147077 (D.N.H. Sept. 12, 2017) (“September
12 Order”).

Those facts need not be repeated here.

It is

sufficient, for purposes of this Order, to note that this action

arises out of a December 18, 2014 group strip search (“December
2014 search”), conducted at the NHSP after an event attended by
inmates, including Beers, and members of the inmates’ families.
During the December 2014 search, officers, some or all of whom
were subordinates of Forcier, conducted “visual body cavity”
searches of inmates in the presence of other inmates, a video
surveillance camera, and corrections officers, including a
female officer.
Beers has alleged that Forcier was present at the December
2014 search in his capacity as a supervisory officer.

Beers

claims that Forcier, based on his training, knew that the
December 2014 search violated NHSP administrative rules and
policies, as well as unspecified state and federal laws.

Beers

asserts that Forcier had the ability and authority to prevent or
stop the December 2014 search, as evidenced by the fact that
Forcier did in fact allow one inmate to be searched privately
upon request, but Forcier did not prevent or stop the other
inmates from being subjected to the group search.
In this case, the court has recognized the following claim
against Forcier:
Sgt. Keith Forcier violated Beers’s Fourth Amendment
rights, in that Beers was subjected to an unreasonable
group strip search after the December 18, 2014 Holiday
Event, although Forcier, who had personal knowledge of
the circumstances under which the strip search
occurred, as well as the authority to stop that
search, failed to issue orders to cause the search to

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stop, and was deliberately indifferent to the
violation of Beers’s Fourth Amendment rights caused by
that search.
See Mar. 8, 2017 Order (Doc. No. 60), at 6.

This claim arises

under Forcier’s supervisory liability, as Beers has asserted
that Forcier was directly involved in and/or deliberately
indifferent to the “rights-violating conduct” of his
subordinates.

II.

Procedural History
A.

Previous Grant of Summary Judgment

This court previously granted summary judgment in this case
in favor of the other defendants named in this action, in regard
to Beers’s claims that the conduct of those defendants during
the December 2014 search violated Beers’s Fourth Amendment
rights.

See September 12 Order (approving June 12 R&R).

In

granting summary judgment in the defendants’ favor, the court
found that the defendants were entitled to qualified immunity,
in that, at the time of the pertinent group strip search, it was
not clearly established “that it was unlawful to subject a
prisoner to a ‘visual body cavity search’ in a group setting;
without privacy screens, in view of other inmates and staff,
including a corrections officer of the opposite sex, and a
prison surveillance camera, following an event involving contact
between inmates and visitors.”

June 12 R&R, at 5-6.

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B.

Motion to Dismiss

At the time the magistrate judge recommended that the
defendants’ motion for summary judgment be granted in this case,
Forcier had not yet been served.

Once served, see Doc. No. 84,

Forcier filed the instant motion to dismiss (Doc. No. 86),
arguing that the Fourth Amendment claim against him should be
dismissed as he, like the other defendants in this action, is
entitled to qualified immunity.

Beers objects to dismissing the

claim against Forcier, contending that Forcier, at the time of
the December 2014 search, due to his training, knew that his
conduct in regard to that search violated prison policies and
rules, and other unspecified legal obligations.

Beers argues

that, as a result of his training and knowledge, the court
should find that Forcier is not entitled to qualified immunity
in this matter.

Discussion
I.

Standard
Under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, the court accepts the factual allegations concerning
Forcier in Beers’s pleadings as true, construes reasonable
inferences in Beers’s favor, and, disregarding legal
conclusions, determines whether plaintiff’s factual allegations
state a claim upon which relief may be granted.

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See Labor

Relations Div. of Constr. Indus. of Mass., Inc. v. Healey, 844
F.3d 318, 326-27 (1st Cir. 2016).

Because Beers is proceeding

pro se, his pleadings are construed liberally.

See Foley v.

Wells Fargo Bank, N.A., 772 F.3d 63, 75 (1st Cir. 2014).
“Qualified immunity protects public officials from § 1983
suits for damages if their actions ‘d[id] not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.’”

Ciolino v. Gikas, 861

F.3d 296, 302 (1st Cir. 2017) (quoting White v. Pauly, 137 S.
Ct. 548, 551 (2017)).

Where the plaintiff has asserted

sufficient facts to state a claim for a violation of a
constitutional right, the plaintiff must demonstrate that the
right in question was “‘clearly established’ at the time of
defendant’s alleged misconduct.”

McKenney v. Mangino, 873 F.3d

75, 81 (1st Cir. 2017) (citation omitted), petition for cert.
filed, No. 17-1147 (U.S. Feb. 13, 2018).

To do so,

the plaintiff must point to controlling authority or a
consensus of cases of persuasive authority that
broadcasts a clear signal to a reasonable official
that certain conduct falls short of the constitutional
norm. Then, the court must evaluate whether an
objectively reasonable official in the defendant’s
position would have known that his conduct violated
that rule of law.
Id. (internal quotation marks and citations omitted).

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“‘[C]learly established law’ should not be defined ‘at a
high level of generality.’ . . . [T]he clearly established law
must be ‘particularized’ to the facts of the case.”
S. Ct. at 552 (citation omitted).

White, 137

“These inquiries are carried

out with the understanding that qualified immunity is meant to
shield ‘all but the plainly incompetent or those who knowingly
violate the law.’”

McKenney, 873 F.3d at 81 (quoting White, 137

S. Ct. at 551).
“Qualified immunity is an affirmative defense to personal
liability that can be asserted on a pretrial motion to dismiss
under Rule 12(b)(6) for failure to state a claim.”

Ledea v.

Metro-Dade Cty. Police Dep’t, 681 F. App'x 728, 729 (11th Cir.
2017).

“At the motion to dismiss stage in the litigation, the

qualified immunity inquiry and the Rule 12(b)(6) standard become
intertwined.”
omitted).

Id. (internal quotation marks and citation

“‘[A]sserting a qualified immunity defense via a Rule

12(b)(6) motion . . . subjects the defendant to a more
challenging standard of review than would apply on summary
judgment. . . . [T]he defendant’s conduct as alleged in the
complaint is scrutinized for objective legal reasonableness.’”
McAllister v. Kellogg, 637 F. App’x 518, 519 (10th Cir. 2016)
(citations omitted) (emphasis in original).

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B.

Analysis

In this case,
[t]he “clearly established” inquiry . . . is the
following: Would it have been clear to a reasonable
officer in December 2014 that it was unlawful to
subject a prisoner to a “visual body cavity search” in
a group setting; without privacy screens, in view of
other inmates and staff, including a corrections
officer of the opposite sex, and a prison surveillance
camera, following an event involving contact between
inmates and visitors?
June 12 R&R, at 5-6, approved by Sept. 12 Order.

In Baptiste v.

Foster, No. 16-cv-439-JD, 2017 DNH 098, 2017 WL 2303975, 2017
U.S. Dist. LEXIS 80241 (D.N.H. May 25, 2017) (“Baptiste I”),
another case filed in this court in which the NHSP inmate
plaintiff asserted that the December 2014 search violated his
Fourth Amendment rights, the court granted a motion to dismiss
on grounds of qualified immunity.
Baptiste.1

Forcier was a defendant in

See id., 2017 WL 2303975, at *1, 2017 U.S. Dist.

LEXIS 80241, at *1.

Following Baptiste, this court has

previously found, in this case, that
[the] “First Circuit has not held . . . that strip
searches of inmates conducted as part of a group
violate their constitutional rights. . . . The court
in Baptiste concluded that dismissal on the grounds of
qualified immunity was appropriate with respect to the
circumstances alleged as to the December 2014 strip
search, as the law was not clearly established that
1The

May 25, 2017 Order in Baptiste identifies defendant
Forcier’s last name as “Foncier.” See Baptiste I, 2017 WL
2303975, at *1, 2017 U.S. Dist. LEXIS 80241, at *1. The record
of the instant case makes clear that “Foncier” is the same
person as defendant Forcier here.
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the manner in which that search was conducted violated
the inmate’s Fourth Amendment rights.”
June 12 R&R, at 7 (quoting Baptiste I, 2017 WL 2303975, at *3,
2017 U.S. Dist. LEXIS 80241, at *6-*7 (citations omitted)),
approved by Sept. 12 Order.

This court then found that, as the

claims in this case and in Baptiste are essentially the same, as
are the material facts, “[t]here is no principled reason for
avoiding the same result here.”

June 12 R&R, at 9, approved by

Sept. 12 Order.
Beers’s allegation that Forcier knowingly acted in
violation of his training, NHSP administrative rules and
policies, and other unspecified laws, during the December 2014
search, taken as true, fails to demonstrate that Forcier’s
conduct violated Beers’s clearly established constitutional
rights.

See Baptiste v. MacDonald, No. 16-cv-429-JD, 2017 DNH

140, 2017 WL 3034254, at *2, 2017 U.S. Dist. LEXIS 110172, at *5
(D.N.H. July 17, 2017) (“Baptiste II”) (citing Ziglar v. Abbasi,
127 S. Ct. 1843, 1866–67 (2017)).

As discussed herein, and in

the June 12, 2017 R&R, “there was no clearly established law in
2014 that strip searches without privacy screens would violate
inmates’ Fourth Amendment rights,” and Forcier is thus entitled
to qualified immunity from liability.

Baptiste II, 2017 WL

3034254, at *2, 2017 U.S. Dist. LEXIS 110172, at *5.

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Conclusion
For the foregoing reasons, defendant Sgt. Keith Forcier’s
motion to dismiss (Doc. No. 86) is GRANTED.

As there are no

other defendants or claims remaining in this action, the clerk’s
office is directed to enter judgment in this matter and close
the case.
SO ORDERED.

_______________
______________
Steven J. McAuliffe
United States District Judge
March 7, 2018
cc:

Timothy Beers, pro se
Francis Charles Fredericks, Esq.
Lynmarie C. Cusack, Esq.
Seth Michael Zoracki, Esq.

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