Beaulieu v. NH Department of Corrections, Commissioner et al
ORDER Re: 6 Report and Recommendation, 19 Motion to Amend, 20 Motion, 18 Motion to Amend. So Ordered by Chief Judge Landya B. McCafferty.(de)
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Civil No. 20-cv-823-LM
Opinion No. 2021 DNH 141 P
New Hampshire Department of Corrections,
Commissioner et al.1
Pro se plaintiff Christopher (Krystal) Beaulieu sues the Commissioner of the
New Hampshire Department of Corrections and various officers of the New
Hampshire State Prison for Men (“NHSP”) concerning incidents that occurred while
she was incarcerated.2 Before the court are a Report and Recommendation (“R&R”)
from Magistrate Judge Andrea K. Johnstone (doc. no. 6), Beaulieu’s motions to
amend her complaint (doc. nos. 18, 19), and Beaulieu’s motion seeking various
forms of relief (doc. no. 20). For the following reasons, the court approves the R&R
except for the recommendation regarding Claim 1(f), allows Beaulieu’s motions to
The defendants are New Hampshire Department of Corrections
Commissioner Helen Hanks; New Hampshire State Prison Warden Michelle
Edmark; Maj. Jon H. Fouts; Deputy Warden Sarah Provencher; Capt. Daniel
Boynton; (former) Lt. Troy Fontaine; Cpl. A. Hilson; Lt. C. Dupris; Corrections
Officer (“CO”) E. Bazile; (former) Sgt. Robert K. Parent; Cpl. Joshua Ellis; CO Glenn
Nimoriski; Sgt. FNU Batakis; Hearing Officer Linda Paulsen; Nurse FNU Gamblin;
and unnamed COs designated by plaintiff as “John Does” 1-6 and “hearing officers”
2 Plaintiff is a transgender woman presently in federal custody in West
Virginia at FCI-Hazelton. Plaintiff prefers that female pronouns be used in
referring to her.
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amend and subjects the new claims to preliminary review, and grants her motion
for various forms of relief regarding the R&R but otherwise denies that motion. The
court addresses each separately below.
Beaulieu filed her complaint in August 2020 and filed a motion to amend her
complaint later that month. Judge Johnstone granted the motion to amend in part
and issued an R&R in February 2021 recommending that the court dismiss certain
claims and defendants. The court approved the R&R in March. However, in April,
Beaulieu asked for more time to respond to the R&R. Accordingly, and in part due
to her filing difficulties during the ongoing the COVID-19 pandemic, the court
vacated the order granting the R&R to give Beaulieu an extended response
deadline. Beaulieu has since filed a motion requesting various forms of relief and
two motions to amend her complaint.
In her original filings, Beaulieu alleges that defendants placed her in a cell
with a violent prisoner and failed to protect her from threats and assault and acted
with deliberate indifference to her needs. Beaulieu brought claims alleging failure
to protect, supervisory liability, and negligence. The R&R summarized the claims
as Claims 1(a)-(f) (Eighth Amendment deliberate indifference) and Claims 2(a)-(e)
(supervisory liability). See doc. no. 6 at 5-6. The R&R recommended dismissal of
Claims 1(a), 1(f), and 2(a)-(e); dismissal of all defendants except for Sgt. Robert K.
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Parent, Cpl. Joshua Ellis, CO Glenn Nimoriski, Cpl. A. Hilson, Lt. C. Dupris, CO E.
Bazille, and Lt. Troy Fontaine; and dismissal of all Beaulieu’s claims for damages
asserted against any party in his or her official capacity.
Having carefully considered the R&R and all of Beaulieu’s subsequent
filings,3 the court adopts the R&R except for its recommendation with respect to
Claim 1(f). The court includes facts below only as necessary to address Claim 1(f).
Claim 1(f): Medical Care after the Assault
A complaint from an incarcerated plaintiff suing a government agent must go
through preliminary review. See LR 4.3(d)(1); see also 28 U.S.C. § 1915A. During
preliminary review, the court determines whether the complaint contains “sufficient
factual matter, accepted as true, to ‘state a claim to relief’” upon which relief can be
granted. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
As summarized in the R&R, Beaulieu alleges that on December 5, 2018, she
was violently assaulted by her former cellmate, James L. Merchant. She claims
that Merchant punched her and kicked her multiple times in the face, causing her
to drop to the floor, black out, and cry for help. In her original and amended
complaints, she claims that the assault lasted several minutes and in direct view of
the CCU control room, where CO Bazile appeared to be on the telephone. In Claim
1(f), Beaulieu alleges that CCU officers took too much time to respond to the
In so doing, the court construes Beaulieu’s pleadings liberally and will
collectively consider her complaint and three amendments (doc. nos. 1, 4, 18, 19).
See Foss v. Marvic Inc., 994 F.3d 57, 63 n.7 (1st Cir. 2021).
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assault. She also claims that officers, including Sgt. Batakis, did not bring her to
the Health Services Center afterwards even though she was “dripping blood all over
the place.” See doc. no. 1, at 11; doc. no. 19 at 2. She alleges that she walked across
the yard while “still bleeding” and that Nurse Gamblin cleaned off the blood but did
not send her to a local hospital. See doc. no. 19 at 2.
Considering Beaulieu’s allegations in a light most favorable to her, Claim 1(f)
is sufficient to survive preliminary review. See Lakin v. Barnhart, 758 F.3d 66, 70
(1st Cir. 2014) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)); Estelle v.
Gamble, 429 U.S. 97, 106 (1976) (“In order to state a cognizable [Eighth
Amendment] claim, a prisoner must allege acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs.”). The court directs
service of Claim 1(f) on Sgt. Batakis and requires him to answer that claim, as he
was allegedly present after the assault and failed to take her to the Health Services
Center even though she was “dripping blood all over the place.” The court dismisses
the claim as to Nurse Gamblin because she provided medical care to Beaulieu and
Beaulieu has not alleged any other facts sufficient to state a claim of deliberate
indifference against her. See Watson v. Caton, 984 F.2d 537, 540 (1st Cir. 1993)
(“The courts have consistently refused to create constitutional claims out of
disagreements between prisoners and doctors about the proper course of a
prisoner’s medical treatment, or to conclude that simple medical malpractice rises
to the level of cruel and unusual punishment.”).
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Claims 3(a)-(b): New claims in Motions to Amend
Unrelated to her Eighth Amendment claims, Beaulieu asserts new claims
regarding alleged disciplinary retaliation for her litigation against the prison. She
claims that Sgt. Robert K. Parent charged her with “misuse of phone” and other
disciplinary infraction (which Beaulieu refers to as “tickets”) for “every little thing,”
and that Sgt. Parent stated: “Beaulieu doesn’t get shit because he wants to always
fuck us and sue us.” See doc. no. 18, at 5. Beaulieu also alleges that Hearings
Officer Linda Paulsen denied Beaulieu the opportunity to present evidence and
witnesses during disciplinary hearings between December 1, 2018 and September
30, 2019. Beaulieu claims that Officer Paulsen found her guilty based on staff
testimony, staff written reports, and written affidavits from other prisoners. She
claims that Officer Paulsen credited the testimony of prison staff but not Beaulieu’s
testimony, and that Officer Paulsen always “issued the maximum sentences and
has been doing so since becoming employed at N.H. DOC.” See doc. no. 18, at 4.
She alleges that the continued tickets prevented her from a downgrade in custody,
prohibited her participation in programming, and created fear of an upgrade to
The court labels the retaliatory First Amendment claim against Sgt. Parent
as Claim 3(a) and the due process allegation against Officer Paulsen as Claim 3(b).
With respect to Claim 3(a), a prisoner alleging retaliatory discipline must
“show that the disciplined conduct was constitutionally protected [and that] the
protected conduct was a substantial or motivating factor in the prison officials’
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decision to discipline the plaintiff.” Shabazz v. Cole, 69 F. Supp. 2d 177, 197 (D.
Mass. 1999) (citation and quotation omitted). Prisoners have a First Amendment
right “to petition the government for the redress of grievances, and prison officials
may not retaliate against prisoners for the exercise of that right.” Id. (quoting
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995)). “On a motion to dismiss for
failure to state a claim, it is appropriate to infer a retaliatory state of mind from
circumstantial evidence.” Shabazz, 69 F. Supp. 2d at 197.
Beaulieu alleges facts stating a claim that her litigation was “a substantial or
motivating factor” in Sgt. Parent’s decision to discipline her, and thus her
allegations are sufficient to survive preliminary review. See id. The court directs
service of Claim 3(a) on Sgt. Parent and requires him to respond to that claim.
With respect to Claim 3(b), concerning Officer Paulsen’s alleged treatment of
Beaulieu during disciplinary hearings, due process entitles a prisoner facing a
disciplinary hearing to “a qualified right to call witnesses and present documentary
evidence in his defense when permitting him to do so will not be unduly hazardous
to institutional safety or correctional goals.” McGuinness v. Dubois, 75 F.3d 794,
797-98 (1st Cir. 1996) (citing Wolff v. McDonnell, 418 U.S. 539, 566 (1974)).
However, a prisoner’s due process rights are not violated if their request was for
general population prisoners to testify in a segregation wing. Dubois, 75 F.3d at
Here, Beaulieu alleges that Officer Linda Paulsen denied her the opportunity
to present evidence and witnesses in her defense during a prison disciplinary
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proceeding. The allegations are sufficient to survive preliminary review. The court
directs service of Claim 3(b) on Officer Paulsen and requires her to respond to that
claim, as she was the officer allegedly presiding over the disciplinary hearings.
Motion for Various Forms of Relief
Beaulieu’s motion for various forms of relief (doc. no. 20) asks the court to
approve the R&R, requests copies of future pleadings, requests permission to
“amend her complaint at a later date,” and asks the court to “place holds” on five
filing fees until one is paid.
First, Beaulieu’s request to approve the R&R is granted. As noted above, the
court approves Judge Johnstone’s R&R dated February 17, 2021 except for the
recommendation regarding Claim 1(f).4
Second, Beaulieu’s request to be provided copies of future pleadings is denied.
She previously made a similar request in this case, which Judge Johnstone granted
as a “one-time courtesy” before notifying Beaulieu that she “may obtain additional
documents from the docket in this case if she prepays the clerk’s per page copy fee.”
Beaulieu first moved to amend Claim 1(f) (doc. no. 19). Seventeen days
later, she moved to request approval of the R&R (doc. no. 20). Construed in her
favor, the court interprets these filings as a request to approve the R&R except for
the R&R’s recommendation to dismiss Claim 1(f). “[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.” School Union
No. 37 v. United Nat’l Ins. Co., 617 F.3d 554, 564 (1st Cir. 2010) (quoting Keating v.
Secretary of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.1988)); see also
United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986) (holding that, after
proper notice, failure to file a specific objection to magistrate’s report will waive the
right to appeal).
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Doc. no. 7. Beaulieu now must pay that copy fee if she wishes to obtain additional
Third, Beaulieu’s request for permission to “amend her complaint at a later
date” is denied without prejudice. The court cannot preemptively grant Beaulieu
leave to amend her complaint. Moreover, the court has already allowed three
motions to amend. Going forward, no further amendment will be allowed absent
unusual circumstances. See Fed. R. Civ. P. 15(a) (outlining filing deadlines); LR
15.1 (stating requirements for filing a motion to amend).
Fourth, Beaulieu’s request for the court to “place holds” on five filing fees
until one is paid is denied. Pro se filing fees in civil actions must be paid
simultaneously. 28 U.S.C. § 1915(b); Bruce v. Samuels, 577 U.S. 82, 87 (2016)
(holding that “§ 1915(b)(2) calls for simultaneous, not sequential, recoupment of
multiple filing fees”).
Claims Remaining After Preliminary Review5
Following preliminary review of the new claims and review and adoption of
the R&R except for Claim 1(f), the following claims survive preliminary review and
shall be served:
1. Defendants violated Beaulieu’s Eighth Amendment rights, giving rise to
liability under 42 U.S.C. § 1983, in that, with knowledge of the factors
making Beaulieu especially vulnerable to assault, and the CCU’s history of
To be consistent, the claim numbering here is consistent with that used in
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b. Cpl. Joshua Ellis assigned Beaulieu to a CCU C-Tier cell with known
BOWW member James Merchant on November 9, 2018, with
knowledge of Beaulieu’s vulnerability to assault.
c. Sgt. Robert K. Parent; Cpl. Joshua Ellis; CO Glenn Nimoriski; Cpl. A.
Hilson; Lt. C. Dupris; CO E. Bazile; and Lt. Troy Fontaine heard
Merchant threaten to hit Beaulieu in November 2018, but none of
those officers took steps to protect her, and each of them made remarks
that provoked him to act on his threats.
d. On December 5, 2018, while CO Bazile was on the phone and not
monitoring inmates, Merchant had the opportunity to encounter and
assault Beaulieu for several minutes.
e. CCU officers failed to respond for several minutes to what they could
see or hear about the assault on December 5, 2018, delaying its end.
f. Sgt. Batakis and other COs who responded to the assault did not
provide emergency medical care or bring Beaulieu to the Health
Services Center after the assault, although it was apparent she was
3. Defendants retaliated against Beaulieu for her litigation in violation of the
First Amendment and denied Beaulieu her due process rights in violation of
the Fifth Amendment, creating liability under 42 U.S.C. § 1983, in that:
a. Sgt. Robert K. Parent retaliated against Beaulieu’s litigation by
issuing her multiple tickets.
b. Hearing Officer Linda Paulsen denied Beaulieu the opportunity to
present evidence and witnesses during disciplinary hearings and
instead relied on the testimony of correctional officers.
For the foregoing reasons, the court holds as follows:
1. Beaulieu’s four pleadings in this case (doc. nos. 1, 4, 18, 19) are construed as
2. For the reasons stated in the R&R, Claims 1(a) and 2(a)-(e) are dismissed for
failure to state a claim upon which relief can be granted.
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3. Beaulieu’s remaining claims are Claims 1(b)-(f) regarding her cell placement
and subsequent assault and Claims 3(a)-(b) addressing alleged retaliation for
litigation and due process violations during disciplinary hearings.
4. For the reasons stated in the R&R as well as in this Order, all defendants
except Sgt. Robert K. Parent, Cpl. Joshua Ellis, CO Glenn Nimoriski, Cpl. A.
Hilson, Lt. C. Dupris, CO E. Bazile, Lt. Troy Fontaine, Sgt. Batakis, and
Hearings Officer Linda Paulson, are dismissed from this action.
5. For the reasons stated in the R&R, Beaulieu’s claims for damages asserted
against any party in their official capacity are dismissed.
6. Beaulieu’s motion for various forms of relief (doc. no. 20) is granted regarding
approval of the R&R and is otherwise denied.
United States District Judge
September 7, 2021
cc: Christopher Beaulieu, pro se
Counsel of Record.
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