throbber
Case 1:08-cv-00431-PB Document 12 Filed 02/13/09 Page 1 of 67
`
`UNITED STATES DISTRICT COURT FOR THE
`DISTRICT OF NEW HAMPSHIRE
`
`David R. Proverb
`
`v.
`
`Civil No. 08—cv—43l—PB
`
`James O'Mara, Superintendent,
`Hillsborough County Department
`of Corrections, et al.1
`
`REPORT AND RECOMENDATION
`
`Before the Court is David Proverb’s complaint
`
`(document nos.
`
`l, 6,
`
`7 & ll)2, filed pursuant to 42 U.S.C.
`
`§ 1983, alleging that
`
`1In addition to O'Mara, Proverb names the following
`employees of the Hillsborough County Department of Corrections as
`defendants to this action: Capt. William Scurry, Sgt. J. Duclose,
`Capt. Mark Cusson, Capt. Bonnie Ives, Capt. Gilfford Hisco, Lt.
`Riley (first name unknown (“FNU”)), Sgt. FNU Pinciaro, Bill
`Raymond, Christine (last name unknown (“LNU”)), FNU Barber, Dr.
`FNU Harris, Sgt. FNU Gordon, Corrections Officer (“C.O.") FNU
`Adams, C.O. FNU Lucas, C.O. FNU Revis, C.O. FNU Rosado, C.O. FNU
`Archenbault, C.O. FNU Ellis, C.O. FNU Marinowski, C.O. FNU
`
`Rodriguez, C.O. FNU Moloney, Jan LNU, Field Training Officer
`(“FTO”) FNU Antillis, FTO FNU Granville, Sgt. FNU Barnes, Sgt.
`FNU Potter, C.O. FNU Rodgers, C.O. FNU Gosslin, C.O. FNU Thomas,
`C.O. FNU Sloane, C.O. FNU Utzilano, Sgt. FNU Brown, C.O. FNU
`Bowers, C.O. FNU Goldmann, C.O. FNU Bass, and several John Doe
`C.O.s.
`
`(document no. 1) on
`2Proverb initially filed a complaint
`October 20, 2008.
`He filed attachments to that complaint on
`October 30, 2008.
`On January 9, 2009, Proverb filed two motions
`to amend his complaint
`(document nos.
`6 & 7) and an addendum to
`his complaint
`(document no. ll).
`I grant the motions to amend
`
`

`
`Case 1:08-cv-00431-PB Document 12 Filed 02/13/09 Page 2 of 67
`
`the defendants have violated his rights under the United States
`
`Constitution during his incarceration at the Hillsborough County
`
`Department of Corrections (“HCDOC”).
`
`The matter is before me for
`
`preliminary review to determine, among other things, whether the
`
`complaint states any claim upon which relief might be granted.
`
`_eg 28 U S.C.
`
`§
`
`l9l5A(a); United States District Court District
`
`of New Hampshire Local Rule (“LR”) 4.3(d)(2).
`
`Proverb has also filed several motions for discovery,
`
`seeking recordings of phone calls made from the HCDOC, HCDOC
`
`surveillance videos, and investigative documents and reports in
`
`the possession of the HCDOC or the Manchester, New Hampshire
`
`Police Department
`
`(document nos. 8—lO). Because I find that
`
`these motions are premature,
`
`they are denied without prejudice to
`
`being renewed during discovery in this case,
`
`if necessary.
`
`Standard of Review
`
`Under this Court's local rules, when an incarcerated
`
`plaintiff commences an action pro se and in forma pauperis,
`
`the
`
`magistrate judge is directed to conduct a preliminary review.
`
`LR
`
`4.3(d)(2).
`
`In conducting the preliminary review,
`
`the Court
`
`construes pro se pleadings liberally, however inartfully pleaded.
`
`and will consider all of the documents,
`constitute the complaint in this action.
`
`in the aggregate,
`
`to
`
`2
`
`

`
`Case 1:08-cv-00431-PB Document 12 Filed 02/13/09 Page 3 of 67
`
`_ee Erickson v. Pardus, 551 U.S. 89, ___, 127 S. Ct. 2197, 2200
`
`(2007)
`
`(following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and
`
`Haines v. Kerner, 404 U.S. 519, 520-21 (1972)
`
`to construe pro se
`
`pleadings liberally in favor of the pro se party).
`
`“The policy
`
`behind affording pro se plaintiffs liberal interpretation is that
`
`if they present sufficient facts,
`
`the court may intuit the
`
`correct cause of action, even if it was imperfectly pled.”
`
`gee
`
`Castro v. United States, 540 U.S. 375, 381 (2003)
`
`(noting that
`
`courts may construe pro se pleadings so as to avoid
`
`inappropriately stringent rules and unnecessary dismissals of
`
`claims); Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997).
`
`All of the factual assertions made by a pro se plaintiff and
`
`inferences reasonably drawn therefrom must be accepted as true.
`
`gee id. This review ensures that pro se pleadings are given fair
`
`and meaningful consideration.
`
`Background
`
`Facts Regarding Conditions of Confinement
`
`David Proverb is a pretrial detainee who has been
`
`incarcerated at the HCDOC since January of 2007.
`
`Proverb has, at
`
`least since February of 2007, consistently been classified as a
`
`protective custody (“P.C.”)
`
`inmate, meaning that he is separated
`
`

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`Case 1:08-cv-00431-PB Document 12 Filed 02/13/09 Page 4 of 67
`
`
`
`from the general population of inmates and housed with other P.C.
`
`inmates for his own safety.3
`
`Proverb alleges that he was housed, with another inmate,
`
`in
`
`an eight foot by twelve foot cell for twenty—two hours a day,
`
`seven days a week. Also in this space was a double bunk, a desk,
`
`shelving, and a toilet/sink unit.
`
`Proverb claims that the size
`
`of the cell cannot adequately accommodate two inmates.
`
`Further, Proverb states that at one point his cell had a
`
`broken cold water valve stem.
`
`As a result,
`
`for eight days, water
`
`constantly streamed from the sink onto his cell floor, during
`
`which the broken valve stem was not fixed, despite the officers
`
`on the unit claiming they had submitted a repair request to fix
`
`it.
`
`Proverb claims to have suffered severe sleep deprivation
`
`from the noise of the streaming water, causing depression and
`
`nausea. After eight days, Proverb was moved to a different cell,
`
`after he had sent a letter complaining about
`
`the condition of his
`
`cell to HCDOC Superintendent James O’Mara.
`
`Proverb further complains that he was subjected to sleep
`
`deprivation while housed in Unit
`
`lC because the lights and
`
`3Although Proverb does not directly state why he was
`classified as a P.C.
`inmate, it appears that it was because his
`charges involve the sexual assault of a minor, a fact which,
`if
`known to other inmates, places him at risk of harm.
`
`4
`
`

`
`Case 1:08-cv-00431-PB Document 12 Filed 02/13/09 Page 5 of 67
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`television stayed on in the dayroom until 4:00 a.m.
`
`Additionally, doors were slammed at all hours, and the volume on
`
`the officers’ radios was kept all the way up throughout
`
`the
`
`night.
`
`As a result, Proverb complains he received only one to
`
`two hours of sleep per night, and another three to four hours
`
`during the day. Although Proverb complained to C.O.s Rodgers,
`
`Gosslin, Thomas, Sloane, Utzilino, Sgt. Barnes, Sgt. Brown,
`
`O’Mara, and others,
`
`the HCDOC officials were not responsive to
`
`his concerns.
`
`Proverb states that while he was housed on a multi-
`
`classification unit,
`
`the P.C.
`
`inmates on that unit were locked
`
`down twenty—two hours a day, as the officers had to accommodate
`
`out—of—cell
`
`time for a number of different classifications of
`
`inmates who could not share out—of—cell
`
`time with the P.C.
`
`inmates for the safety of the P.C.
`
`inmates. Due to excessive
`
`lockdown time, Proverb asserts broadly that P.C.
`
`inmates on the
`
`unit were denied reasonable access to telephone calls,
`
`educational programs, recreation, exercise, religious services,
`
`hygiene, medical care, mental health treatment, and visitors by
`
`Bill Raymond, Capt. Bonnie Ives, O’Mara, Capt. William Scurry,
`
`Capt. Mark Cusson, and Capt. Gilfford Hisco.
`
`Proverb asserts
`
`

`
`Case 1:08-cv-00431-PB Document 12 Filed 02/13/09 Page 6 of 67
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`that P.C.
`
`inmates should be kept in an entirely separate housing
`
`area from other classifications of inmates, preferably in a
`
`separate building.
`
`In that way, P.C. pretrial detainees would
`
`not have to be subjected to restrictive and punitive conditions
`
`of confinement in order to protect their safety.
`
`Proverb asserts
`
`that although he did not, as a P.C.
`
`inmate, pose a security risk,
`
`he was denied the rights and privileges afforded to pretrial
`
`inmates in general population as a result of his housing
`
`assignment and classification.
`
`Proverb claims that his out—of—cell
`
`time often had to double
`
`as his time for religious services, visits,
`
`law library,
`
`educational programming, and hygiene maintenance, which deprived
`
`him of access to telephones, and sometimes forced him to choose
`
`between bible study,
`
`time in the law library, or a shower.
`
`Proverb further asserts that his two daily one—hour out—of—cell
`
`times were frequently interrupted or cut short by events at the
`
`prison, such as lockdown drills, fire drills, p©d meetings,
`
`laundry, and mail call.
`
`Proverb complains that he was not given adequate access to
`
`opportunities to exercise. His cell, he claims,
`
`is too small
`
`to
`
`do any meaningful exercise there. Further, Proverb states that
`
`

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`Case 1:08-cv-00431-PB Document 12 Filed 02/13/09 Page 7 of 67
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`he was afforded time in the gym no more than once weekly, and
`
`that then it was to play basketball, which he doesn't play,
`
`so he
`
`did not attend.
`
`The recreation yard, which provides an
`
`opportunity to exercise outdoors,
`
`is closed from October 15 to
`
`April 15 every year.
`
`Proverb complains that he is denied access to any natural
`
`light. Although his cell has a window, it faces a nearby brick
`
`wall, which entirely blocks natural light from his cell.
`
`The
`
`closure of the recreation yard for six months a year, Proverb
`
`claims, entirely deprives him of natural light and fresh air
`
`during those months.
`
`Excessive Force, Verbal Abuse, Free Speech and Denial of Access
`to Grievance Procedures Claims
`
`On January 9, 2007, Proverb was placed on “suicide watch” on
`
`Unit
`
`lC by the HCDOC intake nurse who interviewed him upon his
`
`admission to the HCDOC.
`
`Proverb was escorted to his cell by Sgt.
`
`Pinciaro and C.O. Ellis. C.O.s Rodriguez and Adams, and three
`
`unnamed C O.s, were waiting by his cell.
`
`Proverb was then strip
`
`searched inside the cell by Pinciaro, accompanied by three or
`
`four other C O.s.
`
`Proverb claims that, during the strip search,
`
`he was verbally abused, berated, yelled at, and humiliated by
`
`several C.O.s. Once naked, Proverb was told to face the wall and
`
`

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`Case 1:08-cv-00431-PB Document 12 Filed 02/13/09 Page 8 of 67
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`to keep his eyes straight ahead. When he did,
`
`the onslaught of
`
`verbal abuse intensified.
`
`One C.O. grabbed the back of Proverb's
`
`head and said “You think you've got muscles? You think you're
`
`big? I'll show you f———ing muscles.
`
`I'll hold you down you piece
`
`of s———."
`
`The C.O. holding his neck then slammed his head into
`
`the concrete wall six to twelve times, causing bruising,
`
`swelling, and lasting migraine headaches.
`
`The strip search continued.
`
`Proverb was instructed to lift
`
`his genitalia. When he did, he was again verbally abused. C.O.
`
`Ellis told Proverb to face the wall again and lift his feet, one
`
`at a time, which he did.
`
`He was then ordered to squat, while
`
`facing the wall, and to cough. While trying to comply with this
`
`order, Proverb lost his balance and fell into the wall.
`
`As he
`
`did so, he turned his head to the side,
`
`to avoid hitting the
`
`front of his face. Because Proverb had turned to the side, a
`
`C.O. behind him said “I guess he doesn't know how to do what he's
`
`told to do."
`
`The other C.O.s started yelling things like “Teach
`
`the piece of s——— how we do things here," “Block the door," and
`
`“Let's welcome him to our world." Pinciaro then said “Give him a
`
`taste of what he's in for.
`
`Just don't f———ing leave any damn
`
`marks. We can't have any more accidents." Proverb was then
`
`

`
`
`
`Case 1:08-cv-00431-PB Document 12 Filed 02/13/09 Page 9 of 67
`
`
`
`cell.
`
`Proverb further alleges that during his time on Unit
`
`lC,
`
`C.O. Archenbault
`
`twice stood by his cell door with two other
`
`.O.s calling to Proverb and taunting him. Archenbault told
`
`grabbed again, pulled up,
`
`slammed into the corner of the cell,
`
`and held there while he was punched several
`
`times in the back of
`
`the head, and kicked on the ankles in order to spread his legs
`
`apart. During these assaults, Proverb could hear the C.O s
`
`standing in the background laughing.
`
`Proverb states that by this
`
`time he was sobbing and begging the officers to leave him alone.
`
`Proverb then was kicked in the back of the knee and fell to his
`
`knees.
`
`The officers picked Proverb up off the floor. Ellis
`
`punched Proverb in the kidneys,
`
`forcing Proverb to again drop to
`
`his knees.
`
`The C.O s again pulled Proverb to his feet, while
`
`continually telling him to keep his nose on the wall and to face
`
`the wall.
`
`If his head moved, Proverb was punched in the head.
`
`The C.O s also yelled at him for failing to follow directions
`
`when he fell to his knees without having been instructed to do
`
`so.
`
`Proverb was naked during this entire incident, and was only
`
`allowed to put on a safety smock after the officers had left his
`
`

`
`Case 1:08-cv-00431-PB Document 12 Filed 02/13/09 Page 10 of 67
`
`
`
`Proverb that he would make sure that Proverb didn't live long
`
`enough to make it to trial.
`
`During his second week of incarceration at the HCDOC, after
`
`approximately ten days on suicide watch, Proverb states that Bill
`
`Raymond,
`
`the HCDOC director of classification, ordered that
`
`Proverb be housed in the maximum security Unit 2B. C.O. Rosado
`
`escorted Proverb to Unit 2B, holding Proverb's handcuffed wrists
`
`behind his back and, while doing so, pushed them up the center of
`
`Proverb's back, causing pain in his wrists and arms.
`
`Proverb
`
`politely asked Rosado to ease up on his arms, and Rosado told
`
`Proverb to “shut
`
`the f——— up” and pushed the handcuffs up harder
`
`
`
`so that Proverb had to walk on his tiptoes.
`
`Proverb states that during the first week of September of
`
`2007, pe was again placed on suicide watch. During that week,
`
`Sgt. Gordon, FTO Granville, and FTO Antillis conducted a strip
`
`search of Proverb. During the strip search, Antillis, who is
`
`African-American, became infuriated when he noticed a confederate
`
`flag tattoo on Proverb's arm. While Proverb was naked, Antillis
`
`forcefully pushed Proverb's face into the cement cell wall and
`
`held it there for ten minutes, asking Proverb repeatedly if he
`
`as a racist, or if he hated African—American people.
`
`Proverb
`
`lO
`
`

`
`Case 1:08-cv-00431-PB Document 12 Filed 02/13/09 Page 11 of 67
`
`answered Antillis, stating that he did not hate African—Americans
`
`and was not a racist. Antillis then told Proverb to say “I love
`
`black people.” Proverb refused,
`
`telling Antillis that forcing
`
`him to voice that opinion violated his First Amendment free
`
`speech right. Antillis punched Proverb in the kidneys and
`
`continued to tell Proverb to say that he loved black people.
`
`Proverb continued to refuse and Antillis slammed his head into
`
`the wall. Gordon then told Proverb to say it in order to stop
`
`the beating, or else he would be taken to “the hole” where he
`
`would “pray to God [he] wished [he] said it” (sic). After ten
`
`minutes, Proverb relented and said that he loved black people.
`
`Antillis then forced him to repeat it several
`
`times,
`
`louder each
`
`time, until the entire unit could hear him.
`
`The following day, Antillis and Sgt. Riley came onto
`
`Proverb’s unit,
`
`taunted him, and left. That evening, Barnes,
`
`Riley, and FTO Potter went
`
`to Proverb’s cell to answer Proverb’s
`
`request for a form so that he could file a grievance about
`
`the
`
`previous day's incident. After a ten minute discussion, Riley
`
`grabbed Proverb’s mouth,
`
`told him to “shut
`
`the f——— up," and told
`
`him that it would be in his best interest to write on his
`
`grievance form that he was recanting his allegations regarding
`
`ll
`
`

`
`Case 1:08-cv-00431-PB Document 12 Filed 02/13/09 Page 12 of 67
`
`the incident. Riley advised Proverb that life at the HCDOC would
`
`worsen for him if he failed to recant his complaint.
`
`As a result
`
`of this threat, Proverb agreed to recant his grievance. One
`
`month later, however, Proverb requested a grievance form and
`
`renewed his grievance.
`
`Bible Study
`
`In the second week of February of 2007, after leaving Unit
`
`2B, Proverb was assigned to Unit 2A4
`
`at the HCDOC,
`
`the P.C.
`
`unit. At that time, he was afforded the opportunity to attend
`
`Christian bible study on Monday mornings, Tuesday evenings, and
`
`Thursday evenings.
`
`In September of 2007, however, Proverb’s
`
`family was threatened by another inmate housed on Unit 2A,
`
`Ishmael Malave.
`
`As a result, Proverb submitted an “enemy slip”
`
`to HCDOC administration, naming Malave as an enemy,
`
`indicating
`
`that the two should be separated. During the first or second
`
`week of March 2008, Raymond moved Proverb to Unit 1C, a multi-
`
`classification unit including medical, administrative
`
`segregation, and P.C.
`
`inmates who require housing away from the
`
`other P.C.
`
`inmates.
`
`For
`4Proverb states that the regular P.C. unit is now 1A.
`clarity, however,
`I will continue to refer to it as Unit 2A, as
`it is unclear when the location was changed.
`
`12
`
`

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`Case 1:08-cv-00431-PB Document 12 Filed 02/13/09 Page 13 of 67
`Case 1:08-CV-00431-PB Document 12 Filed O2/13/O9 Pae 13 Of 67
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`Until he was moved to Unit
`
`lC, Proverb was able to attend
`
`three weekly bible study sessions. Once transferred, Proverb
`
`requested to be allowed to again attend three weekly bible study
`
`sessions, but was not allowed to do so.
`
`Proverb states that for
`
`approximately six months, he made numerous requests for his
`
`previous bible study schedule, but he received no response.
`
`Finally, Proverb filed a grievance.
`
`Scurry responded to Proverb
`
`and advised him that he would have to choose one bible study
`
`class to attend in order for the HCDOC administration to keep him
`
`separated from Malave.
`
`Proverb chose to attend Tuesday evening
`
`bible study, as he preferred the method of teaching employed by
`
`the Tuesday evening teacher over that of those who taught the
`
`other classes.
`
`Scurry approved this arrangement.
`
`On July 22, 2008, a Tuesday evening, Proverb and two other
`
`P.C.
`
`inmates housed on Unit
`
`lC attended bible study.
`
`The
`
`following Tuesday, however, Proverb was denied bible study class
`
`because Scurry had failed to inform the staff on duty of his
`
`agreement with Proverb. When Proverb grieved being denied bible
`
`study class that day, Sgt. J. Duclose intervened to attempt an
`
`informal resolution of the situation. Duclose agreed that P.C.
`
`inmates in Unit
`
`lC could attend bible study on Tuesday nights.
`
`

`
`Case 1:08-cv-00431-PB Document 12 Filed 02/13/09 Page 14 of 67
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`On August l9, 2008, Proverb was able to attend bible study.
`
`After that, Proverb was advised that Scurry had changed his mind,
`
`and would only allow the Unit
`
`lC P.C.
`
`inmates to attend bible
`
`study on Thursday nights.
`
`Proverb grieved the alteration in
`
`schedule, but his grievance was determined to be unfounded.
`
`Proverb states that as of October l2, 2008, P.C.
`
`inmates on
`
`Unit
`
`lC are able to attend one bible study class a week, but that
`
`P.C.
`
`inmates on Unit 2A are still able to attend bible study
`
`classes three times a week. Further, Proverb states that if
`
`Malave chooses to attend a particular bible study class,
`
`that he
`
`is given preference, and Proverb is then not able to attend that
`
`class.
`
`Proverb asserts that he is essentially being punished
`
`with the denial of access to bible study classes for reporting
`
`the bad actions of Malave in order to protect himself, while
`
`Malave is free to attend frequent bible study.
`
`Unsanitary Conditions
`
`On January 9, 2007, while Proverb was being assaulted by the
`
`officers, Pinciaro directed one of the C.O.s present to remove
`
`all of the toilet paper from Proverb's cell.
`
`Proverb was not
`
`provided with any toilet paper for a period of four days.
`
`Proverb states that during this time he was forced to clean
`
`

`
`Case 1:08-cv-00431-PB Document 12 Filed 02/13/09 Page 15 of 67
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`himself with his hand, and by squatting over the sink in his
`
`cell, which was his only water source for both washing and
`
`drinking.
`
`Proverb was not given any soap to use, and claims that
`
`he had to eat with fecal matter under his fingernails.
`
`Proverb
`
`also claims that while on suicide watch, he was not given a
`
`pillow or blanket, and was provided only with a “urine—spoiled”
`
`mattress.
`
`Proverb states that while he was housed in Unit 1C on
`
`suicide watch, officers allowed inmates to put urine—soaked wads
`
`of toilet paper under his cell door.
`
`Later,
`
`in 2008, Proverb was housed on 1C, but not on suicide
`
`watch.
`
`Proverb states that, as Unit 1C is a multi—classification
`
`unit,
`
`the P.C.
`
`inmates there are locked down twenty—two hours a
`
`day.
`
`As a result,
`
`they are fed in their cells. Their meals
`
`trays are slid under the door, often by the foot of the officer
`
`or inmate delivering the meal.
`
`In addition, milk cartons are
`
`slid across the floor and often have to be washed before they are
`
`clean enough to drink from.
`
`Proverb claims that during his confinement at the HCDOC,
`
`the
`
`laundry services were inadequate to provide him with clothing
`
`that was clean enough to be considered hygienic.
`
`Proverb states
`
`that he was regularly not provided with a change of clothing or
`
`

`
`Case 1:08-cv-00431-PB Document 12 Filed 02/13/09 Page 16 of 67
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`underwear for four to six weeks.
`
`Proverb was also provided with
`
`stained underwear, and was told he would have to either wear that
`
`underwear or none at all.
`
`Proverb claims that the soles of his
`
`shoes had almost entirely fallen off before he was provided with
`
`new shoes.
`
`Proverb states that during the more than forty days
`
`he spent in an observation cell, first on Unit 1C and then on
`
`Unit 2A, he only received two safety smocks for the entire
`
`period. When Proverb grieved the laundry problem, he was given
`
`clean clothing only after agreeing to recant his grievance.
`
`Later, Proverb complained directly to O’Mara by letter.
`
`Proverb asserts that in July of 2007, when he was on suicide
`
`watch, he went without a toothbrush for up to a week at a time.
`
`Further, he states that he was denied access to a towel or soap
`
`to enable him to shower for several days at a time by C.O.s
`
`Bowers and Goldmann.
`
`Endangerment and Harassment by Inmates
`
`On January 10, 2007, C.O. Adams
`
`took Proverb’s legal mail
`
`and read it aloud,
`
`including the nature of Proverb’s charges,
`
`within earshot of general population inmates. Further,
`
`in
`
`addition to being allowed to place urine—soaked wads of toilet
`
`paper under Proverb’s cell door, as described above, officers
`
`

`
`Case 1:08-cv-00431-PB Document 12 Filed 02/13/09 Page 17 of 67
`
`allowed inmates to further harass Proverb by kicking and banging
`
`on his cell door.
`
`Proverb asserts that in August of 2007, while he was still
`
`housed on Unit 2A,
`
`some of his legal and personal paperwork had
`
`been stored in the unit's locked storeroom by one of the
`
`officers.
`
`On one occasion, however, C.O. Bass unlocked the
`
`unit's storeroom and inadvertently left the room unsecured and
`
`unattended.
`
`As a result,
`
`inmate Malave and another inmate gained
`
`access to the storeroom, went
`
`through Proverb’s paperwork, and
`
`obtained Proverb’s family contact information as well as a
`
`witness list from his case. Malave proceeded to write letters to
`
`Proverb’s wife threatening to rape and kill her and her eleven
`
`year old daughter, and to the defense witnesses in Proverb’s
`
`case,
`
`threatening them so that they would not testify on
`
`Proverb's behalf. While Proverb concedes that Boss did not
`
`intentionally endanger Proverb by leaving the storeroom unlocked
`
`and unattended, he does assert that Boss’ actions endangered his
`
`safety.5
`
`5Proverb asserts a claim that Boss’ actions, by affecting
`the witnesses in his criminal case, deprived him of his right to
`a fair trial,
`to present a defense,
`to due process, and to
`confront
`the witnesses against him. This Court will abstain from
`hearing this claim at this time under the Younger abstention
`principle.
`gee Younger v. Harris, 401 U.S. 37, 43-44 (1971)
`
`17
`
`

`
`Case 1:08-cv-00431-PB Document 12 Filed 02/13/09 Page 18 of 67
`
`While he was housed in Unit 2B, after leaving his first
`
`suicide watch and before being assigned to Unit 2A, Proverb had
`
`to leave his cell to get his own meal tray at meal
`
`times.
`
`Proverb states that when he and the other P.C.
`
`inmates on Unit 2B
`
`were released from their cells to get their meals, C.O.s
`
`Archenbault, Revis, Rosado, Ellis, Antillis and others would
`
`announce,
`
`to the entire unit, “Skinners' Meal Time," “Rippers’
`
`Breakfast,” or “Pampers Poachers’ Lunch.”5 These officers also
`
`allowed other inmates on the unit to yell out of their cells to
`
`torment and harass the P.C.
`
`inmates.
`
`Proverb names C O.s Adams
`
`and Marinowski as individuals who have pointed out his charges to
`
`inmates from other classifications, and subjected them to
`
`harassment and threats of violence from other inmates.
`
`Proverb
`
`(providing that federal courts should abstain from entertaining
`cases involving issues that are the subject of currently pending
`state judicial proceedings where (1)
`there is an ongoing state
`proceeding which is judicial in nature;
`(2)
`important state
`interests are involved; and (3)
`the plaintiff will have an
`adequate opportunity in the state proceeding to raise the
`constitutional challenges presented by the federal
`law suit).
`I find that all of these factors are present here, abstention
`under Younger is the appropriate approach to take with this
`claim. Accordingly,
`I
`recommend dismissal of any claims alleging
`the prospective violation of Proverb’s rights at his yet—to—be—
`held criminal trial.
`
`As
`
`6“Skinner," “Ripper,” and “Pampers Poacher” are all prison
`slang terms for sexual offenders who victimize children.
`
`18
`
`

`
`Case 1:08-cv-00431-PB Document 12 Filed 02/13/09 Page 19 of 67
`
`also names C.O.s Moloney and Lucas as individuals who allowed
`
`harassment of Proverb and other P.C.
`
`inmates by the other inmates
`
`on Unit 2B when Proverb was again placed temporarily on that unit
`
`in February of 2008.
`
`Proverb also alleges, without reference to
`
`any specific incidents,
`
`that when he was on Unit 1C, he
`
`experienced harassment and assault by inmates and that unnamed
`
`C.O.s on that unit failed to act to protect him.
`
`Mental Health Care
`
`Proverb was placed on suicide watch twice during his
`
`incarceration.
`
`As previously noted,
`
`the nurse who conducted the
`
`intake interview of Proverb placed Proverb on a suicide watch in
`
`January of 2007.
`
`In the spring of 2007, Proverb reports that he
`
`was depressed, and planning to kill himself on July 6, 2007, his
`
`wedding anniversary.
`
`On July 5, 2007, he was in the library
`
`researching wills when two officers, Sgt. Boyer and C.O. Small
`
`approached him and escorted him to Unit 1C to again be placed on
`
`suicide watch in that unit.
`
`Proverb was strip—searched and given
`
`a safety smock to wear.
`
`Proverb remained on suicide watch for
`
`more than thirty days. During this time, Proverb reports he was
`
`seen by a mental health worker once or twice a week for
`
`approximately fifteen minutes at a time.
`
`Proverb says he
`
`

`
`Case 1:08-cv-00431-PB Document 12 Filed 02/13/09 Page 20 of 67
`
`requested to see mental health workers more than that, but was
`
`usually ignored.
`
`Proverb states that after two weeks, Mrs.
`
`Barber, a mental health worker,
`
`told him he no longer needed to
`
`be on suicide watch, and that keeping him on suicide watch after
`
`the need subsided, with constant observation and restricted
`
`privileges, was actually punitive, and not therapeutic.
`
`Proverb
`
`says that the officers would not remove him from suicide watch or
`
`the observation cell.
`
`Instead, at the convenience of the
`
`officers,
`
`they would move him out of the observation cell and
`
`into a regular cell when they needed the observation cell for
`
`someone else, and that he would be moved back into it when no one
`
`else needed it.
`
`Proverb asserts that during his time on suicide watch,
`
`including the time that he was legitimately on such a watch and
`
`the time he remained on suicide watch after the need had abated,
`
`he was treated differently than other inmates who were a greater
`
`threat to themselves,
`
`in that they had actually attempted
`
`suicide, rather than just thought about it. Other inmates,
`
`Proverb claims, were seen by mental health workers more
`
`frequently than he was, and not left in an observation cell as
`
`long as Proverb.
`
`

`
`Case 1:08-cv-00431-PB Document 12 Filed 02/13/09 Page 21 of 67
`
`Barber told Proverb that she thought he had bipolar disorder
`
`and agreed with the borderline personality disorder diagnosis he
`
`had received in l990. when Proverb saw Dr. Harris, however, he
`
`told Proverb “There's nothing wrong with you.
`
`It's all in your
`
`head.”7
`
`Proverb states that in September of 2007, he requested many
`
`times to speak with someone from the mental health department in
`
`regard to the incident that occurred with Antillis and the other
`
`officers regarding Proverb’s racial sentiments.
`
`Proverb was not
`
`seen by Dr. Harris until at least mid—October. when Proverb did
`
`finally see Dr. Harris and explain what had occurred, and his
`
`feelings about it, Dr. Harris told Proverb that he was
`
`overreacting. At that point, Proverb determined that seeking
`
`mental health care at the HCDOC was a waste of time, and he ended
`
`his efforts to obtain mental health counseling.
`
`Denial of Access to the Courts
`
`Proverb complains that for some period of time, he was
`
`denied out—of—cell
`
`time during business hours.
`
`As a result, he
`
`was unable to call his attorney during that period of time.
`
`Grievance forms Proverb submitted with his complaint indicate
`
`7The irony of this comment coming from a mental health
`professional has not escaped the Court.
`
`2l
`
`

`
`Case 1:08-cv-00431-PB Document 12 Filed 02/13/09 Page 22 of 67
`
`that, at least on some occasions, he was afforded out—of—cell
`
`time between 8:00 a.m. and l0:00 a m., which enabled him to call
`
`his attorney, although Proverb alleges that this schedule was not
`
`consistently provided to him.
`
`Proverb states that when he
`
`complained about not being able to call his attorney, he was
`
`told
`
`to communicate with his attorney by letter.
`
`Proverb states that educational programs were taught
`
`in the
`
`law library during the same four hours per week that P.C.
`
`inmates
`
`were permitted access to the library for legal research.
`
`As a
`
`result,
`
`inmates were not able to discuss their legal work with
`
`other inmates because a class was going on at the time, and the
`
`noise and activity of the class hindered legal research efforts.
`
`Further, Proverb asserts,
`
`the law librarian at the HCDOC was
`
`hired as a teacher and has no particular education or knowledge
`
`of the law.
`
`Proverb concedes, however,
`
`that the law librarian
`
`can and does help inmates with legal research when she is not
`
`teaching.
`
`Strip Searches
`
`Proverb alleges that in 2007, he spent approximately forty
`
`days in an observation cell, on suicide watch. During that time,
`
`he states that he was subjected to well over 120 strip searches.
`
`22
`
`

`
`Case 1:08-cv-00431-PB Document 12 Filed 02/13/09 Page 23 of 67
`
`He states that he was strip searched every time he had been out
`
`of his cell, whether it was to speak with mental health workers,
`
`to change cells, or to have out—of—cell
`
`time.
`
`The strip searches
`
`occurred regardless of the fact that while on suicide watch,
`
`Proverb was kept entirely separate from other inmates, was housed
`
`in an observation cell, and, during time out of his cell, he was
`
`never out of the proximity or sight of HCDOC officers. During
`
`his out—of—cell
`
`time, he was permitted only to sit at a table
`
`close to an officer and within sight of an officer at all times.
`
`Disciplinary Reports and Actions
`
`Proverb alleges that C.O. Moloney falsified a disciplinary
`
`report against Proverb with the intention of having him
`
`transferred to Unit 2B’s punitive Restricted Housing Unit.
`
`Proverb states that on December 11, 2008, Moloney, having
`
`previously made threats to have him transferred to Unit 2B, and
`
`in order to cause him physical and mental harm, filed a
`
`disciplinary report that wrongly alleged that Proverb had incited
`
`a riot, demonstration or work stoppage, used profanity in making
`
`a derogatory remark at a female staffperson, and disobeyed a
`
`staff member. At
`
`the disciplinary hearing held on January 4,
`
`2009, Proverb admitted that he had called Moloney a vulgar name,
`
`23
`
`

`
`Case 1:08-cv-00431-PB Document 12 Filed 02/13/09 Page 24 of 67
`
`not the female staffperson present, and pleaded guilty to being
`
`disrespectful to an officer.
`
`As a sanction, Proverb lost two
`
`hours of out—of—cell
`
`time.
`
`Proverb was, on one occasion, denied the opportunity to sign
`
`up for bible study class by C.O. Marinowski.
`
`Proverb states that
`
`when Marinowski refused to immediately call a superior officer to
`
`the unit to resolve the issue, Proverb yelled at him.
`
`Proverb
`
`alleges that Marinowski
`
`then locked him down without first filing
`
`appropriate paperwork or seeking disciplinary charges against
`
`him, causing him to miss forty—five minutes of his out—of—cell
`
`time.
`
`Proverb also complains that On October 16, 2008, Sgt.
`
`Duclose became annoyed

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