Baptiste v. NH Attorney General et al
///ORDER denying 18 Motion for Reconsideration Re: 15 Order on Motion to Dismiss. The complaint was properly dismissed, judgment has been entered, and the case remains closed. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Civil No. 16-cv-439-JD
Opinion No. 2017 DNH 140
Gordon MacDonald,1 New Hampshire
Attorney General, et al.
O R D E R
Stephen C. Baptiste, who is an inmate at the New Hampshire
State Prison for men and is proceeding pro se, brought suit
against the New Hampshire Attorney General and officials and
employees of the New Hampshire Department of Corrections,
alleging claims under 42 U.S.C. § 1983, that arose from a group
strip search at the prison.
The defendants moved to dismiss
Baptiste’s claims, and Baptiste did not file a response.
court granted the defendants’ motion to dismiss, and judgment
was entered on May 26, 2017.
Baptiste moves for reconsideration on the grounds that he
mailed a response to the motion to dismiss seven days after
receiving the motion to dismiss.
Because the court did not
receive Baptiste’s response, he was granted an opportunity to
Gordon MacDonald, the current Attorney General, is
automatically substituted for Joseph Foster. Fed. R. Civ. P.
file the response in support of his motion for reconsideration,
which he has done.
The defendants object to reconsideration.
Standard of Review
Reconsideration of a judgment is deemed to be a motion to
amend or alter judgment under Federal Rule of Civil Procedure
Young v. Gordon, 330 F.3d 76, 80 (1st Cir. 2003).
Relief from a judgment under Rule 59(e) is “an extraordinary
remedy which should be used sparingly.”
Palmer v. Champion
Mortg., 465 F.3d 24, 30 (1st Cir. 2006) (internal quotation
To support a motion to alter or amend a
judgment, the moving party must show “manifest errors of law or
fact, newly discovered or previously unavailable evidence,
manifest injustice, [or] an intervening change in controlling
Marie v. Allied Home Mortg. Corp.¸ 402 F.3d 1, 7, n.2
(1st Cir. 2005) (paraphrasing 11 C. Wright, et al., Federal
Practice & Procedure § 2819.1 (2d ed. 1995)).
Given Baptiste’s representation that he attempted to file a
response to the defendants’ motion to dismiss, in the interests
of justice the court will consider the objection he has filed to
determine whether the motion to dismiss was properly granted.
The court provided the following background information, taken
from Baptiste’s complaint, in the prior order.
The prison hosts a holiday event for inmates and their
families in December each year.
The event is held in the prison
gymnasium with each prison unit assigned a day for the party.
Inmates apply to attend the party and must meet certain criteria
to be allowed to attend.
Baptiste’s unit was scheduled to attend the holiday event
on December 18, 2014.
until 8:45 p.m.
The event began at 6:30 p.m. and lasted
When the visitors were escorted out of the gym
after the event, the inmates remained.
The corrections officers announced that there would be a
strip search of the inmates before they were allowed to leave
The inmates were called to tables in groups of eight
for corrections officers to conduct the strip searches,
including visual body cavity searches.
The strip searches were
done in the open in the gym, without privacy screens, and in the
view of a female corrections officer, Kelly Jardine, who was
standing on the stairs in the gym.
There was also a video
surveillance camera operating during the searches.
In early January of 2015, Baptiste complained to Major
Fouts about the strip search and about a female officer being
Major Fouts denied that a female officer had been
On January 22, Baptiste went to mental health sick
call to report the circumstances of the strip search and to seek
treatment for the trauma he experienced during the search.
Baptiste met with Jean Carrol to discuss the strip search and to
provide a statement.
Baptiste wrote to the New Hampshire Attorney General Joseph
Foster about the strip search.
Foster replied that he had
turned the investigation over to Colon Forbes in the department
of professional standards.
On January 29, 2015, Baptiste sent a
grievance form to Warden Gerry about the strip search, which was
denied as untimely.
In February of 2015, Baptiste sent a
grievance to Commissioner William Wrenn who responded that no
female corrections officer was present during the strip search
and that the strip search procedure would be reviewed and
changed for the next year.
Based on the facts alleged in the complaint and the
defendants’ motion to dismiss, the court concluded that the
defendants were entitled to qualified immunity because there was
no case that established before 2014 that strip searches
conducted in the manner used by the defendants, without privacy
screens, would violate an inmate’s constitutional rights.
support of reconsideration, Baptiste contends that the
defendants are not entitled to qualified immunity because they
violated the New Hampshire Department of Corrections Policy and
Procedure Directive, Statement Number 5.19 (“P.P.D. 5.19”).2
also asserts that the defendants did not follow their training.
P.P.D. 5.19 is titled “Prison Rape Elimination Act
The policies and procedures pertain to rape and
sexual assault, which did not occur in this case.
not cite any part of P.P.D. 5.19 that addresses the proper
procedures for conducting strip searches in the context of what
occurred in this case.4
Although Baptiste asserts that the defendants should lose
qualified immunity because they did not follow their training in
the way they conducted the strip search, he provides no evidence
of what training was not followed.
More importantly, in the
context of qualified immunity from liability for an alleged
constitutional violation, corrections officers are protected
unless they violated an inmate’s clearly established
Baptiste mistakenly believes that P.P.D. 5.19 was imposed on
the prison by the President of the United States.
Although Baptiste did not file a copy of P.P.D. 5.19, the
court was able to obtain a copy that was filed in another case.
For example, part V addresses the procedures to be used
following a complaint or report of sexual assault and requires
at subpart A.3.h. that strip searches conducted on a victim
before transport for medical treatment should be conducted with
“utmost sensitivity” and “the lowest level of intrusion.”
Ziglar v. Abbasi, 127 S. Ct. 1843, 1866-
As the court explained in the prior order, there was
no clearly established law in 2014 that strip searches without
privacy screens would violate inmates’ Fourth Amendment rights.
The court has considered Baptiste’s objection to the
defendants’ motion to dismiss.
The defendants’ are entitled to
qualified immunity from liability and, therefore, Baptiste’s
claim that the defendants violated his Fourth Amendment right
against unreasonable searches was properly dismissed.
For the foregoing reasons, the plaintiff’s motion for
reconsideration (document no. 18) is denied.
Therefore, Baptiste’s complaint was properly dismissed,
judgment has been entered, and the case remains closed.
Joseph DiClerico, Jr.
United States District Judge
July 17, 2017
Stephen C. Baptiste, pro se
Francis Charles Fredericks, Esq.
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