Sullivan v. Warden Cunningham, NHSP CV-94-655-B 07/11/95

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John J. Sullivan

v. Civil No. 94-655-B

Michael J. Cunningham, Warden _____ New Hampshire State Prison

O R D E R

Pro se plaintiff, John Sullivan, brings a civil rights

action against the warden of the New Hampshire State Prison and

several prison staff members alleging violations of his First and

Fourteenth Amendment rights. Pending before me are Sullivan's

motions for a preliminary injunction to prevent prison officials

from retaliating against him for filing and pursuing his suit in

this court and related motions. For the following reasons, I

deny Sullivan's motions for injunctive relief and for criminal

contempt and sanctions.

__________________ I . BACKGROUND

Sullivan was serving a life sentence for murder1 at the New

Hampshire State Prison ("NHSP") when the following relevant

events occurred. After working as a janitor in the prison

See State v. Sullivan,

(1988) education center, Sullivan was employed as an inmate instructor

for the fall 1994 term. He became acquainted with several prison

staff members in the education center including defendant Gaye

Fedorchak, the assessment and guidance coordinator of the

department, and defendant William McGonagle, the director of the

program. The nature and extent of Sullivan's relationship with

Gaye Fedorchak is a disputed issue.

The parties agree that Sullivan gave Fedorchak, and another

staff member, copies of some of his writing including his

newspaper columns. Sullivan alleges that Fedorchak expressed an

interest in him and in his writing and that she attempted to

become sexually involved with him. Fedorchak denies any personal

involvement with Sullivan and states that during the summer of

1994, before Sullivan began his teaching job, she agreed to read

copies of his newspaper columns, which he left in her mailbox.

Fedorchak states that Sullivan's writing became increasingly

personal, and that on October 12, 1994, she told him that he

could no longer leave materials in her mailbox and could only

communicate with her in writing via an inmate request slip. She

sent a memo explaining her action to McGonagle on the same day.

Sullivan states that he told Fedorchak on October 12 that he

would no longer send her copies of his writing after telling her

2 on October 2 that she should see less of him. Sullivan also

states that he did not hear Fedorchak tell him to stop

communicating with her through her mailbox. He alleges that from

that point forward, Fedorchak and McGonagle conspired to restrict

his access to the main part of the education center office.

The parties agree that Sullivan put a note in Fedorchak's

mailbox that precipitated a disciplinary write-up by Fedorchak on

November 2, 1994. Fedorchak wrote a disciplinary report on

Sullivan for disobeying her order to communicate only through

inmate reguest slips. In response to Fedorchak's disciplinary

report, McGonagle initially suspended Sullivan from his work in

the education department on November 2, and then on November 16,

he dismissed Sullivan from his job. Sullivan refused to plead

guilty to Fedorchak's disciplinary report, claiming that he did

not receive her order. The report was processed as a minor

disciplinary, violation, and Sullivan was found guilty following

a hearing held on November 18 and 21. As punishment, he lost

privileges for fifteen days and received five days in punitive

segregation, suspended. Prior to Fedorchak's disciplinary

report, Sullivan states, and defendants do not dispute, that he

had not received a disciplinary report during the eight and one-

half years of his imprisonment.

3 On December 6, Sullivan wrote an inmate request slip to

McGonagle in response to a notification from McGonagle that

Sullivan would not be allowed to teach in the next quarter.

McGonagle answered that he would not employ Sullivan in the

education center for at least the next two quarters but suggested

that Sullivan contact him prior to the July 1995 term. Sullivan

sent McGonagle another slip on December 13, and attached a

onepage letter to him addressing the dispute between Sullivan and

Fedorchak and saying, "I guarantee no adverse publicity or court

action if we can straighten this out." Sullivan also wrote, "As

I said to a friend in Maine the other day, 'This is going to be

the end of the bullshit - one way or another.' So, I'll go to

court if I'm forced." McGonagle replied on December 14 that he

would no longer consider employing Sullivan at all. Sullivan's

letter and McGonagle's response proved to be the catalyst for

subsequent events culminating in Sullivan's transfer from the

prison.

In addition to permanently ending Sullivan's employment in

the education center, McGonagle wrote a disciplinary report based

on Sullivan's letter charging him with threatening, and extortion

and blackmail. McGonagle wrote, "The portions I have highlighted

are intimidative and threatening. I also believe he is using his

4 threats of court action and publicity in the press to extort a

positive decision from me in my administrative capacity.2

McGonagle wrote his report as a minor violation. A hearing was

held on McGonagle's disciplinary report on December 22 before

defendant Sergeant William Wilson.

Wilson states in his affidavit that Sullivan explained that

he believed he was the victim of sexual harassment in the

situation and mentioned the possibility of a lawsuit. He

acknowledges that he suggested that Sullivan pursue his complaint

through the prison grievance procedure instead. Wilson found

Sullivan not guilty of threatening but guilty of the extortion

and blackmail minor violation, and sentenced Sullivan to

twentyfive days loss of privileges, twenty-five hours of extra

duty, and five days of punitive segregation, suspended.

Nevertheless, later the same day, December 22, Sullivan was moved

from his

2 The copies of the letter provided to the court do not indicate what portions McGonagle highlighted. Testimony at the hearing indicated that the highlighted portions were as follows: "I'm filing a criminal appeal and I don't need the other garbage - neither do you and especially Gaye and her husband. "She failed to consider who she was dealing with in this situation. "She is an ambitious woman, but she has to pick less formidable adversaries." "As I said to a friend in Maine the other day." 'This is going to be the end of the bullshit - one way or another.'"

5 medium security housing into the Special Housing Unit ("SHU") for

highest risk inmates, and was placed on Pending Administrative

Review ("PAR") status.

Defendant Gregory Crompton, classification supervisor, held

a hearing on Sullivan's classification on December 30, 1994. The

classification board recommended that Sullivan be held as a C-3

status inmate in SHU pending his transfer to a prison in another

state. In the comments on the reclassification score sheet dated

December 30, 1994, the board noted that Sullivan was placed in

SHU after being found guilty of "extortion, blackmail of female

staff member." In his affidavit, Crompton explains that the

board recommended transfer to an out-of-state prison because they

believed that Sullivan posed a threat to Fedorchak.3 Sullivan

appealed the board's decision. As a result. Warden Cunningham

reviewed Sullivan's file including some of his communications

At the hearing, defense counsel represented that Sullivan was put in SHU based on the recommendation of an officer in the investigation unit after Fedorchak reported that an inmate told her that she was in physical danger from Sullivan. The warden testified that the investigation unit did not produce a report, however. The warden also testified that the decision to transfer Sullivan to SHU on December 22, 1994, was based on Fedorchak's report of an inmate's tip. Neither the defense objection to the preliminary injunction nor the warden's affidavit dated April 7, 1995, however, mentions a warning from an inmate informant and indicates that the decision to place Sullivan in SHU was based on the guilty finding at the hearing on December 22.

6 with Fedorchak and decided that Sullivan was a threat to

Fedorchak's safety. On January 27, the board decided to

reclassify Sullivan as a C-5 status inmate to be held in SHU

until he was transferred as a C-3 status inmate to another

institution. On March 24, 1995, Sullivan was transferred to the

Old Colony Correctional Center in Bridgewater, Massachusetts

("OCCC") .

Sullivan began his legal action in this court by filing a

writ of habeas corpus in November 1994. On December 18, he asked

that his civil complaint be substituted, and his complaint, dated

December 18, was filed with the court on December 23, 1994. On

the same day, Sullivan filed a motion for a temporary restraining

order or a preliminary injunction. On February 22, 1995,

Sullivan filed a supplemental complaint naming additional

defendants. After review of his pleadings by the court, and some

confusion about service, defendants were served on April 1, 1995,

and then responded to Sullivan's motion for injunctive relief.

II. DISCUSSION

In his motion for injunctive relief filed on December 23,

1994, Sullivan asserts that the defendants took disciplinary

action against him and were threatening to transfer him out of

7 NHSP in retaliation for filing his civil rights suit. He asks

the court to order the defendants "to immediately cease all

threats, harassment, moves about and out of the confines of the

New Hampshire State Prison and trumped up disciplinary write­

ups. " On December 28, Sullivan filed a supplemental motion for a

TRO asking that defendants be ordered to return him to his C-3

status and housing prior to being taken to SHU and to return his

property to him. In March, Sullivan was transferred from NHSP to

OCCC. At the hearing, Sullivan modified his reguest for

injunctive relief, in light of present circumstances, asking that

he remain at OCCC unless I order him returned to the same C-3

status cell and bunk that he occupied at NHSP before he was

transferred to SHU.

In response to the defendants' objection to his reguest for

injunctive relief, Sullivan filed motions for contempt and

sanctions against the defendants for intentionally misleading the

court and filing false affidavits. I first address Sullivan's

reguest for injunctive relief and then resolve the other pending

motions.

8 A. Preliminary Injunction

To be successful in his request for injunctive relief,

Sullivan must show:

(1) that [he] will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would infliction the defendant; (3) that [he] has exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the granting of the injunction.

Jackson v. Fair,

(1st Cir. 1988) (quoting

Planned Parenthood League of Massachusetts v. Bellotti,

(1st Cir. 1981). To facilitate the analysis, I move

to the third step, the substantive heart of the matter, to decide

whether Sullivan has demonstrated a sufficient likelihood of

success on the merits of his claim of retaliatory transfer.4

Sullivan does not have a Fourteenth Amendment liberty

interest in avoiding a transfer from New Hampshire to

Massachusetts. See Sandin v. Conner,

(June 19, 1995) (an inmate's Fourteenth Amendment liberty

interest in freedom from restraint is limited to restraints which

"impose[] atypical and significant hardship on the inmate in

4 Sullivan makes additional claims in his complaint. However, I need not address his likelihood of success on these claims since they do not pertain to his request for preliminary injunctive relief. relation to the ordinary incidents of prison life"); 01im v.

Wakinekona,

(1983) (due process clause does not

create a protectable liberty interest in avoiding interstate

prison transfers because such transfers are "neither unreasonable

nor unusual"). Nevertheless, he does have a First Amendment

right not to be transferred or subjected to other adverse actions

in retaliation for filing a lawsuit. McDonald v. Hall,

(1st Cir. 1979); see also, Beauchamp v. Murphy,

(1st Cir. 1994) (Bownes S.J., dissenting), cert, denied

(1995). In order to prove such a claim, however,

Sullivan will have to establish that retaliation was the

motivating factor in the transfer decision. McDonald,

. In other words, he must prove that he would not have been

transferred but for defendants, retaliatory notice.

see also

Goff v. Burton,

(8th Cir. 1993), cert, denied

114 S. C t . 2684 (1994).

Sullivan's preliminary injunction reguest hinges on

defendants, interpretation of Sullivan's December 13, 1994,

letter. Although Sullivan claims that the letter merely

threatens a lawsuit, defendants contend that they construed the

letter in light of other evidence as an implicit threat to harm

Fedorchak if Sullivan's demands were not met. Thus, they contend

10 that Sullivan was transferred for security reasons. Sullivan

cannot succeed with his preliminary injunction request unless he

demonstrates that he is likely to disprove this contention at

trial.

Although the question is a close one, I conclude that

Sullivan is unlikely to be successful at trial in proving that he

was transferred for exercising his First Amendment rights. The

warden approved Sullivan's reclassification and made the decision

to transfer. The warden states that he believed that Sullivan

presented a physical threat to Fedorchak based primarily on his

understanding of the letter Sullivan wrote to McGonagle

interpreted in light of the circumstances surrounding Sullivan's

crime.5 The warden claims that he read the letter to imply

threats of physical harm to Fedorchak in addition to the threats

of court action and publicity. In addition, the warden noted

that Fedorchak and McGonagle told him that an inmate had

5 Sullivan,

, provides the following facts about Sullivan's crime. He was convicted of second degree murder of a woman who lived next door to him and first degree murder of her father. Sullivan initially had a social relationship with the woman, which deteriorated into abusive and harassing incidents. Sullivan then told the woman and her family that he wanted to have an amicable relationship with them. After several uneventful months, Sullivan called the woman one evening, went to her home, refused to leave, and then shot her and subsequently shot her father as he tried to escape from Sullivan.

11 approached Fedorchak and warned her that she was at risk from

Sullivan. She interpreted the warning to mean that she was at

risk of physical harm. The warden testified that he accepted

Fedorchak's concern about her safety and decided that he had to

take action to prevent Sullivan from any further contact with

her. He testified that it was impractical to keep Sullivan as a

C-3 status inmate separated from Fedorchak because the prison

library and the education center were in the same building.

Based on what he knew about the situation between Fedorchak and

Sullivan and the practicalities imposed by prison facilities, the

warden claims that he decided that Sullivan had to be transferred

to a prison outside of New Hampshire and reclassified to maximum

security, C-5, until he was transferred, to prevent him from

having contact with Fedorchak.

I disagree with the warden's interpretation of Sullivan's

letter, which I construe as a threat to bring a lawsuit rather

than to harm Fedorchak. Nevertheless, I am persuaded that the

defendants, primary motivation in transferring Sullivan was to

protect Fedorchak from harm rather than to punish Sullivan for

threatening a lawsuit. Accordingly, Sullivan has not

demonstrated that he is likely to succeed in showing that he

would not have been transferred but for defendants, desire to

12 retaliate against him for threatening court action and publicity.

Therefore, I deny his reguest for a preliminary injunction to

return him to NHSP.

B. Motions for Sanctions and Contempt

_____ In his motion for criminal contempt, Sullivan alleges that

the defendants misled the court by asserting that the defendants

reclassified and transferred him for security reasons. I

disagree. As I have discussed above, the circumstances

surrounding Sullivan's reclassification and transfer include

grounds for a security concern. Sullivan also challenges the

defendants, use of the draft version of the classification

manual. The confusion about the classification manual was

appropriately pointed out by Sullivan and the mistake was

corrected at the hearing. I find no violation of the rules of

professional conduct in defense counsel's use of exhibits and

evidence in the defendants' objection to Sullivan's motion for a

preliminary injunction.

Sullivan alleges in his motions for criminal contempt and

for sanctions that all of the defendants were aware of his suit

long before April 3, and that they were served with the complaint

on February 15, 1995. He charges that statements in affidavits

13 submitted by the warden and defendant Crompton, in which each

states that he did not learn of Sullivan's suit until the week of

April 3, 1994, are perjury.

Although most, if not all, of the defendants knew that

Sullivan threatened to sue and some may have seen his pleadings

when they were mailed in December 1994, prison officials are

aware that pro se complaints are reviewed by the court before

service and that many fall by the wayside in the process. The

defendants were not served with Sullivan's pleadings until April

1, 1995, despite Sullivan's efforts to complete service during

February. Conseguently, the fair meaning of the warden's and

Crompton's statements in their affidavits is that they did not

have actual notice of the commencement of the suit until they

were served. In this context, I do not find that the defendants'

statements were false. Sullivan's motions for contempt and

sanctions are denied.

111. CONCLUSION

For the foregoing reasons plaintiff's motions for injunctive

relief (documents 2 and 3) are denied. Plaintiff's motions for

criminal contempt and sanctions (documents 34 and 44) are denied.

14 Previous motions filed by plaintiff (documents 19, 24, 35, 38,

40, 41, 42, and 45) are denied as moot pursuant to the hearing

held on May 8, 1995.

SO ORDERED.

Paul Barbadoro United States District Judge

July 11, 1995

cc: Martin Honigberg, Esg. John Sullivan, pro se

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