Beers v. NH Governor et al

Filing 114

ORDER denying 104 Motion to Address First Amendment Rights; and denying 105 Motion to Add Evidence. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Timothy Beers
v.

Civil No. 15-cv-454-SM
Opinion No. 2018 DNH 144

Jon Fouts et al.

O R D E R
Before the court are two post-judgment motions filed by
plaintiff, Timothy Beers (Doc. Nos. 104, 105).

Construed

liberally, both motions seek relief from the final judgment,
Doc. No. 103, pursuant to Fed. R. Civ. P. 59(e).
object.

Defendants

See Doc. No. 111.

Procedural History
The claims in this action arose out of a December 18, 2014
group strip search of New Hampshire State Prison (“NHSP”)
inmates, including Beers, conducted in the NHSP gymnasium after
a contact-visit holiday event attended by inmates and their
families.

After the families left the event, NHSP corrections

officers strip-searched the inmates in the presence of other
inmates, a video surveillance camera, and other corrections
officers, including a female officer.
Beers filed this case to challenge the validity of the
group strip search.

Beers’s claims asserted under the Prison

Rape Elimination Act (“PREA”) claims, the Fourteenth Amendment’s
Equal Protection Clause, and claims alleging Eighth Amendment
violations for humiliation and endangerment were dismissed for
failure to state a claim upon which relief could be granted.
See Feb. 2, 2016 Order (Doc. No. 13) (approving Dec. 14, 2015
Report and Recommendation (“R&R”) (Doc. No. 7)).

The court

allowed Beers to proceed on a claim asserting that the group
strip search was unreasonable, in violation of the Fourth
Amendment.

See id.

The defendants to that claim were the NHSP

officers who Beers claimed had ordered or authorized the group
strip search at issue.

See id.

Defendants filed motions asserting that they were entitled
to qualified immunity as to the Fourth Amendment claim.

See

Defs. Fouts’s, Greenwood’s, Jardine’s, and Orlando’s Mot. for
Summ. J. (Doc. No. 44); Def. Forcier’s Mot. to Dismiss (Doc. No.
86).

The court granted those motions, finding that the

defendants were entitled to qualified immunity as to the Fourth
Amendment claim, and the clerk entered judgment for defendants
in this case.

See Sept. 12, 2017 Order (Doc. No. 92), 2017 WL

4041316, 2017 U.S. Dist. LEXIS 147077 (D.N.H. Sept. 12, 2017)
(granting motion for summary judgment); Mar. 7, 2018 Order (Doc.
No. 102) (granting motion to dismiss); Mar. 12, 2018 Judgment
(Doc. No. 103).

Beers then filed two motions seeking to reopen

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the judgment, to allow for more discovery, and to schedule a
jury trial.

See Doc. Nos. 104, 105.

Rule 59(e) Standard
Beers’s motions seek relief under Rule 59(e) of the Federal
Rules of Civil Procedure, as they were filed less than twentyeight days after judgment was entered in this case.

See Alicea

v. Machete Music, 744 F.3d 773, 781 (1st Cir. 2014); Aybar v.
Crispin-Reyes, 118 F.3d 10, 17 n.3 (1st Cir. 1997).

Although

courts have “considerable discretion” in deciding whether to
grant or deny a motion to alter or amend a judgment under Rule
59(e), Venegas-Hernandez v. Sonolux Records, 370 F.3d 183, 190
(1st Cir. 2005), such relief is “‘an extraordinary remedy which
should be used sparingly.’”

Palmer v. Champion Mortg., 465 F.3d

24, 30 (1st Cir. 2006) (citation omitted).

This court may grant

a Rule 59(e) motion based on an intervening change in the law, a
manifest error of law or fact underlying the judgment, or newlydiscovered evidence that could not have been produced before
judgment entered.

Deka Int’l S.A. v. Genzyme Corp. (In re

Genzyme Corp. Sec. Litig.), 754 F.3d 31, 46 (1st Cir. 2014);
Markel Am. Ins. Co. v. Díaz-Santiago, 674 F.3d 21, 32 (1st Cir.
2012); Glob. NAPs, Inc. v. Verizon New England, Inc., 489 F.3d
13, 25 (1st Cir. 2007).

When a motion for relief from a

judgment is coupled with a motion to amend the complaint, the

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motions may be properly denied if the proposed amendment is
futile.

Feliciano-Hernández v. Pereira-Castillo, 663 F.3d 527,

538 (1st Cir. 2011).

Motion to Re-open and Expand the Record (Doc. No. 105)
In Document No. 105, Beers asks the court to add a document
to the record, Doc. No. 105-1, entitled, “PREA Audit Report,”
concerning PREA reports at the Northern New Hampshire
Correctional Facility (“NCF”), as well as unspecified New
Hampshire Department of Corrections (“DOC”) training records,
which Beers asserts would show that all DOC employees have
received training concerning sexual abuse, “voyeurism,” and/or
sexual harassment.

Beers states the document he seeks to add to

the record contains information contrary to what defendants
represented and disclosed in discovery in this case.
Even if the PREA Audit Report and training records were
deemed to be new evidence that Beers could not have produced
before entry of judgment, the existence of those records would
not change the result in this case.

In granting defendant

Forcier’s motion to dismiss and the remaining defendants’ motion
for summary judgment on grounds of qualified immunity, this
court determined that the law was not clearly established in
December 2014 in the First Circuit that the group strip search
at issue would violate the Fourth Amendment.

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The existence of

records showing that corrections officers had been trained in
the recognition and prevention of sexual assault, voyeurism, and
sexual abuse would not have altered that legal conclusion.
Accordingly, the relief sought in Document No. 105 is denied.

Motion to Litigate First Amendment Claim (Doc. No. 104)
I.

Background
The March 7, 2018 Order (Doc. No. 102) granting defendant

Forcier’s motion to dismiss stated, in pertinent part, that all
claims in the case had been resolved, and for that reason, the
court directed the clerk to enter judgment.

In Document No.

104, Beers argues that this court erred in not addressing his
First Amendment religious freedom claim.

Neither Beers’s

original complaint (Doc. No. 1), nor Beers’s sole motion to
amend the complaint (Doc. No. 49), referred to plaintiff’s
religious beliefs or alleged facts stating a First Amendment
claim.
The court has reviewed its docket to ascertain whether
Beers pleaded a First Amendment free exercise claim or any
related, potentially viable claim in this case, and, if so, what
facts he alleged as to those claims.

The court’s review of the

record shows that the religious freedom claim Beers now claims
to have asserted in this action began to take shape in December
2016, when Beers filed an affidavit written by inmate Javier

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Santana (Doc. No. 33-1) as an attachment to a discovery motion.
In that affidavit, Santana stated that Santana told a
supervising officer that stripping out in front of other inmates
would violate Santana’s religious rights.

Santana avers that

the officer, whom Beers later identified as defendant Forcier,
allowed Santana’s strip search to occur in a locker room, away
from the other inmates, after saying “[w]e would not want to
violate any rights.”

Doc. No. 33-1, at 2.

In Beers’s objection to defendants’ motion for summary
judgment (Doc. No. 65), filed in March 2017, Beers asserted
facts for the first time in the case regarding his own religious
beliefs, which he alleged prohibited him from appearing naked in
front of others unknown to him, for their entertainment, at the
time of the group strip search.
at 16, 30.

See Doc. No. 65 at ¶¶ 41, 95,

Beers alleged similar facts in Document No. 88, in

objecting to and seeking reconsideration of the June 12, 2017
R&R.

In addition, in Document Nos. 87 and 88, Beers asserted

that Forcier’s order that Santana be strip-searched in a locker
room gave rise to a Fourteenth Amendment equal protection claim
based on the defendants’ allegedly preferential treatment of
Santana. 1

See Doc. No. 87, at 2; Doc. No. 88, at 15.

1Beers

The court

had asserted an equal protection claim in the
original complaint, which the court dismissed for failure to
state a claim. See Feb. 2, 2016 Order (Doc. No. 13). Beers’s
later filings (Doc. Nos. 33-1, 87, 88) added the new allegations
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concludes that, when it ruled on the dispositive motions in this
case, it failed to recognize that Beers was attempting to assert
a First Amendment claim in Document Nos. 33-1, 65, 87, and 88.
In ruling on Document No. 104, this court now considers
whether this case may be reopened to allow Beers to litigate a
First Amendment free exercise claim or a Fourteenth Amendment
equal protection claim against defendants, based on the facts
asserted in the Santana affidavit (Doc. No. 33-1), Beers’s
pleadings (Doc. No. 1, 78), exhibits (Doc. Nos. 45-1, 45-2), and
Document Nos. 65, 87, and 88.

II.

Discussion
A.

First Amendment Free Exercise Claim
1.

Standard

The government may not “prohibit” the free exercise of
religion.

U.S. Const. amend. I.

The First Amendment Free

Exercise Clause “requires government respect for, and
noninterference with, the religious beliefs and practices of our
Nation’s people.”
(2005).

Cutter v. Wilkinson, 544 U.S. 709, 719

While “[i]nmates clearly retain protections afforded by

the First Amendment, including its directive that no law shall
prohibit the free exercise of religion,” the Supreme Court has

relating to Sgt. Forcier’s handling of Santana.

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noted that “lawful incarceration brings about the necessary
withdrawal or limitation of many privileges and rights,” and
such “limitations on the exercise of constitutional rights arise
both from the fact of incarceration and from valid penological
objectives -- including deterrence of crime, rehabilitation of
prisoners, and institutional security.”

O’Lone v. Estate of

Shabazz, 482 U.S. 342, 348 (1987) (citations and internal
quotation marks omitted).
A restriction placed on an inmate’s ability to practice his
religion implicates the First Amendment.

See LeBaron v.

Spencer, 527 F. App’x 25, 31 (1st Cir. 2013).

Such an

impingement violates the Constitution, unless it was imposed
pursuant to a prison policy that was “reasonably related to
legitimate penological interests, and [was] not an exaggerated
response to such objectives.”

Beard v. Banks, 548 U.S. 521, 528

(2006) (internal quotation marks and citations omitted); see
also Turner v. Safley, 482 U.S. 78, 89-91 (1987).
Four factors are relevant in making this
determination: “(1) whether there is a valid, rational
connection between the regulation and the legitimate
government interest put forward to justify it; (2)
whether alternative means to exercise the right exist;
(3) the impact that accommodating the right will have
on prison resources; and (4) the absence of
alternatives to the prison regulation.”
Lebaron v. Spencer, 527 F. App’x 25, 31-32 (1st Cir. 2013)
(quoting Kuperman v. Wrenn, 645 F.3d 69, 74 (1st Cir. 2011)).

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In examining a restriction under the Turner factors, substantial
deference must be given to prison administrators’ judgment.
Overton v. Bazzetta, 539 U.S. 126, 132 (2003).

See

The burden “is

not on the State to prove the validity of prison regulations but
on the prisoner to disprove it.”

Id.

Here, plaintiff asserts that the group strip search
contravened his religious beliefs because it exposed his body to
individuals unknown to him, who lacked a proper reason to view
his body. 2

The sworn statement of defendant NHSP Maj. Jon Fouts,

however, explains the safety and security objectives served by
the group strip search.

Def. Jon Fouts’s Answer to Pl.’s

Interrog. No. 11, Doc. No. 44-4, at 10.

Cf. Bell v. Wolfish,

441 U.S. 520, 558-59 (1979) (visual strip searches after contact
visits with person from outside facility is reasonable in light
of “serious security dangers” in detention facility, together
with common occurrence of smuggling of contraband).

Fouts avers

that the group format of the search reduced the risk that
contraband would enter the prison.

The procedures employed

following the event minimized the amount of time between the
departure of guests and the search of inmates, which gave the
inmates less time to hide or disseminate contraband.

2Beers

Id.

asserts that his religion prohibited displaying his
body to others unknown to him for their entertainment. The
assertion that the procedure at issue was entertaining to any
officer or other defendant is purely speculative.
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Fouts’s statement regarding the legitimate purposes served by
the search at issue is undisputed.

This court defers to the

professional expertise and judgment of corrections officials,
such as Fouts, as to issues of institutional safety, security,
and order.

See O’Lone, 482 U.S. at 349; Pell v. Procunier, 417

U.S. 817, 827 (1974).
Beers has not pleaded facts regarding the nature of his
religion and religious practices, other than his assertion that
his religion forbids him from exposing his body to others
unknown to him for their entertainment.

Nothing before the

court suggests that Beers lacked alternative means of exercising
his religious rights.

While Beers points to several

alternative, more private search procedures that could have been
used in lieu of the group strip search, Fouts’s statement
provides grounds for concluding that employing a different
method of searching inmates at the event would have imposed
additional burdens on prison safety and security resources.

The

record before the court does not show that the alternatives
proposed by Beers were feasible at the time of the group strip
search, or that the same procedures used at other facilities or
at subsequent NHSP events could have been deployed in December
2014.

In any event, Beers has not shown that the search was an

exaggerated response to a legitimate safety and security
concern.

Therefore, assuming, without deciding, that the search

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burdened Beers’s religious practices, Beers would not be
entitled to relief if a First Amendment free exercise claim were
added to this case, as the group search at issue appears to have
been reasonably related to a legitimate penological objective,
and was not an exaggerated response to that concern.

Cf. Israel

v. City of N.Y., No. 11 CIV. 7726 JMF, 2012 WL 4762082, at *3,
2012 U.S. Dist. LEXIS 144712, at *8-*9 (S.D.N.Y. Oct. 5, 2012)
(dismissing Fourth Amendment claim upon concluding that strip
searching prisoners entering and leaving facility serves
legitimate interest of preventing smuggling of contraband, and
“[t]he presence of other inmates and officers, males and
females, does not alter this determination”).

2.

Qualified Immunity

Further, this court previously concluded that defendants
are shielded by qualified immunity from plaintiff’s Fourth
Amendment challenge to the group strip search.

See Mar. 7, 2018

Order (Doc. No. 102); Sept. 12, 2017 Order (Doc. No. 92)
(approving June 12, 2017 R&R (Doc. No. 82)).

The court applies

the law on qualified immunity set forth in the pertinent
recommendations and rulings relating to the Fourth Amendment
claims (Doc. Nos. 82, 102) to Beers’s asserted First Amendment
claim.

The relevant inquiry for purposes of evaluating a

qualified immunity defense in this context would be whether it

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would have been clear to a reasonable NHSP officer in December
2014 that a group strip search under the circumstances would
violate the First Amendment free exercise right of an inmate
whose religion prohibited him from exposing his naked body to
other inmates and officers.
Neither the Supreme Court nor the First Circuit has
addressed that Free Exercise Clause claim.

Appellate court

decisions from other jurisdictions considering similar claims in
analogous circumstances indicate that the right under the Free
Exercise Clause was not clearly established at the relevant
time.

See, e.g., Harvey v. Segura, 646 F. App’x 650, 651 (10th

Cir. 2016) (Gorsuch, J.) (qualified immunity applied to First
Amendment free exercise claim of inmate who in January 2013 had
been strip searched by guard of opposite sex); Canedy v.
Boardman, 91 F.3d 30, 34 (7th Cir. 1996) (qualified immunity
applied to cross-gender strip search free exercise claim,
because “it was not at all clear” in 1992 that plaintiff’s
“interest in observing Islam’s nudity taboos” decisively
outweighed prison’s “very strong interest in having its guards
observe prisoners at all times and in all situations, and . . .
[its] interest in providing equal employment opportunity to
women”).
While there are some district court decisions declining to
dismiss First Amendment free exercise claims challenging strip

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searches, including Valerio v. Wrenn, No. 15-cv-248-LM, 2017 WL
5956668, at *8, 2017 U.S. Dist. LEXIS 196999, at *20 (D.N.H.
Oct. 23, 2017) (deferring consideration of qualified immunity
defense until later stage of case), R&R approved, 2017 WL
5905514, 2017 U.S. Dist. LEXIS 196632 (D.N.H. Nov. 29, 2017),
there are a number of lower court decisions from other
jurisdictions dismissing such claims pretrial, see, e.g.,
Bradford v. Kramer, No. 15-cv-1405-JPG-SCW, 2017 U.S. Dist.
LEXIS 45706, at *14-*22 (S.D. Ill. Jan. 27, 2017) (use of
security cameras to continuously monitor cell of inmate whose
religion prevented him from being seen naked by anyone other
than his spouse, was not an exaggerated response to defendants’
legitimate safety and security interests), R&R approved, 2017
U.S. Dist. LEXIS 45700 (S.D. Ill. Mar. 28, 2017); George v. City
of N.Y., No. 12 CIV. 6365 PKC JLC, 2013 WL 5943206, at *9 n.3,
2013 U.S. Dist. LEXIS 159434, at *24-*25 n.3 (S.D.N.Y. Nov. 6,
2013) (S.D.N.Y. Nov. 6, 2013) (dictum) (lack of controlling
precedent would likely entitle defendants to prevail on
qualified immunity defense to First Amendment free exercise
claim challenging group strip search).
This court cannot find “controlling authority or a robust
consensus of cases of persuasive authority,” Plumhoff v.
Rickard, 134 S. Ct. 2012, 2023 (2014) (citation and internal
quotation marks omitted), establishing that, under the

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circumstances described by Beers, an inmate had a First
Amendment free exercise right to avoid being subjected to a
group strip search.

As it would not have been clear to a

reasonable officer that the group strip search violated the Free
Exercise Clause, qualified immunity shields each defendant from
liability for damages on that claim.

Accordingly, the Rule

59(e) motion (Doc. No. 104) seeking leave to allow Beers to
litigate his Free Exercise claim against defendants is denied as
futile.

B.

Equal Protection

In addition to his First Amendment claim, Beers has alleged
in his objections to defendants’ dispositive motions that the
strip search violated his Fourteenth Amendment right to equal
protection.

Specifically Beers alleged that Sgt. Forcier

treated Santana preferentially by allowing him to be stripsearched in a locker room, while officers caused Beers to
undergo the strip search along with the others in the gym.

“The

Fourteenth Amendment’s Equal Protection Clause prohibits a state
from treating similarly situated persons differently because of
their classification in a particular group.”

Mulero-Carrillo v.

Román-Hernández, 790 F.3d 99, 105-06 (1st Cir. 2015).
To establish an equal protection claim, a plaintiff needs
to allege facts showing that “‘(1) the [plaintiff], compared

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with others similarly situated, was selectively treated; and (2)
that such selective treatment was based on impermissible
considerations such as race, religion, intent to inhibit or
punish the exercise of constitutional rights, or malicious or
bad faith intent to injure’” the plaintiff.

Davis v. Coakley,

802 F.3d 128, 132-33 (1st Cir. 2015) (citations omitted).

To

meet the “‘threshold requirement’” of differential treatment, a
plaintiff must “‘identify and relate specific instances where
persons situated similarly in all relevant aspects were treated
differently,’” to show that he was “‘singled out for unlawful
oppression.’”

Ayala–Sepúlveda v. Munic. of San Germán, 671 F.3d

24, 32 (1st Cir. 2012) (emphasis in original) (citation
omitted).
A showing that someone similarly situated was treated
differently is missing here.

While Santana and Beers were both

ordered to strip after the holiday event, Santana, unlike Beers,
specifically complained that the group strip search violated his
religious beliefs.

Beers has neither pleaded nor shown that he

told any guard that the strip search violated his religious
beliefs, or that any officer was aware of that religious
conviction.

Beers’s silence during the event distinguishes his

circumstance from Santana’s, and precludes this court from
finding that Beers’s equal protection claim is viable.

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Conclusion
For the foregoing reasons, plaintiff’s postjudgment motions
(Doc. Nos. 104, 105) are DENIED.
SO ORDERED.
_______________
______________
Steven J. McAuliffe
United States District Judge
July 10, 2018
cc:

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

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