United States District Court, D. Maine
MICHAEL L. FORTIN, Plaintiff
KEVIN COX, Defendant
MICHAEL L FORTIN, Plaintiff, Pro se, WARREN, ME.
For KEVIN COX, Sergeant at Maine State Prison, Defendant: DIANE SLEEK, LEAD ATTORNEY, ASSISTANT ATTORNEY GENERAL, AUGUSTA, ME.
John C. Nivison, United States Magistrate Judge.
In this action, Plaintiff Michael L. Fortin, an inmate at the Maine State Prison, alleges that Defendant Kevin Cox, a sergeant at the Prison, violated his rights by engaging in acts of verbal harassment. The matter is before the Court on Defendant's Motion to Dismiss. (Motion, ECF No. 14.)
Following a review of the pleadings, and after consideration of the parties' arguments, as explained below, the recommendation is that the Court grant in part and defer in part Defendant's Motion to Dismiss.
The facts set forth herein are derived from Plaintiff's Complaint, which facts are deemed true when evaluating the Motion to Dismiss. Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 16 (1st Cir. 1998).
In his complaint, Plaintiff alleges that on April 19, 2014, in Plaintiff's presence, Defendant stated that he had a fetish, and would take home the shoes of inmates and perform sexual acts with the shoes. Plaintiff suffers from post-traumatic stress disorder as a result of childhood sexual abuse, and felt vulnerable as a result of Defendant's statement. For relief, Plaintiff requests an award of $100, 000 and that Defendant be terminated from his employment. (Complaint at 2.)
On August 14, 2014, Plaintiff filed a signed statement and an affidavit in support of his claim. (ECF Nos. 12-1, 12-2.) In his statement, Plaintiff asserted that Defendant's conduct violated the Prison's code of ethics and sexual misconduct policy, which code and policy are designed to enforce the Prison Rape Elimination Act of 2003, 42 U.S.C. § 15601. Additionally, Plaintiff alleged that he was a victim of sexual harassment, and that following the investigation of his complaint of Defendant's conduct, he was subjected to retaliation. According to Plaintiff, Defendant " apparently condoned" the retaliation, which an assault of Plaintiff through the use of a sally port sliding door. (ECF No. 12-1.)
Standard of Review
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may seek dismissal of " a claim for relief in any pleading" if that party believes that the pleading fails " to state a claim upon which relief can be granted." In its assessment of the motion, a court must " assume the truth of all well-plead facts and give the plaintiff the benefit of all reasonable inferences therefrom." Blanco v. Bath Iron Works Corp., 802 F.Supp.2d 215, 221 (D. Me. 2011) (quoting Genzyme Corp. v. Fed. Ins. Co., 622 F.3d 62, 68 (1st Cir. 2010)). To overcome the motion, a plaintiff must establish that the allegations raise a plausible basis for a fact finder to conclude that the defendant is legally responsible for the claim at issue. Id.
Defendant argues that Plaintiff's complaint is not actionable because Defendant's alleged statement does not and cannot constitute a constitutional violation. Defendant also contends that Plaintiff cannot recover damages for his emotional injury in the absence of a physical injury, and that the Court cannot grant Plaintiff the ...