Oropallo v. Parrish CV-93-309-B 09/08/95

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Charles J. Oropallo

v. Civil No. 93-309-B

Richard L. Parrish, et al

O R D E R

Charles J. Oropallo seeks damages as well as injunctive and

declaratory relief against defendant prison officials and inmates

for allegedly violating his civil rights.1 Specifically, he

alleges that defendants retaliated against him for filing

grievances in violation of his rights under the First Amendment.

He also asserts several other claims based on the New Hampshire

Constitution. Defendants have moved to dismiss alleging inter

alia that the complaint fails to state a claim. For the

1 The following prison officials and inmates are named as defendants: Richard L. Parrish, prison official, John Doe #1, inmate, John Doe #2, inmate, Loran Ackerman, prison official, Michael J. Cunningham, Warden, Ronald L. Powell, Commissioner of the New Hampshire Department of Corrections, Viola J. Lunderville, Administrator of Security, Donald G. Robb, prison employee, George R. Sasser, prison employee, and Ronald Patrick, staff member in the Recreation Department. following reasons, I grant defendants' motion.

I. BACKGROUND

A. Factual Background2

Since March 1985, Oropallo has been incarcerated in the New

Hampshire State Prison. For approximately three years, he worked

in the prison's recreation department, but in February 1991 he

was terminated from his position. Just prior to his termination,

Oropallo filed two complaints against the prison with the

Department of Corrections (hereinafter "prison complaints"). The

complaints related to missing wood in the hobbycraft shop and

damage to Oropallo's lamp in the shop.3 Lunderville, the

Administrator of Security, investigated both complaints and

recommended dismissal. In June 1991, the prison claims were

2 When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), I must "accept the factual averments of the complaint as true, and construe these facts in the light most favorable to the plaintiff's case." PFZ Properties, Inc. v. Rodriquez,

(1st Cir. 1991) (citing Scheuer v. Rhodes,

(1974)), cert, dismissed,

(1992). I recount the facts with this standard in mind.

3 Claim # 91-31-DOC sought damages in the amount of $42.65 for wood that disappeared from his hobbycraft locker. Claim # 91-32-DOC sought compensation in the amount of $29.00 for damage to his lamp in the prison store.

2 heard before the claims officer. Oropallo was successful on one

claim, but not the other.

Shortly after Oropallo filed the prison complaints, Parrish

initiated a major disciplinary hearing against Oropallo charging

him with possession of state owned property in his hobbycraft

locker.4 The same day, Parrish instituted a ban barring Oropallo

from the North Yard. The effect of the ban was to preclude

Oropallo from using any of the recreational facilities in the

North Yard including the gymnasium, the hobbycraft shop, and the

ball field.

After investigating the disciplinary report, the head of the

New Hampshire State Prison's Investigation Department dropped the

allegations. However, Lunderville later ordered the hobbycraft

shop foreman to write another disciplinary report based on the

same allegations. Oropallo received a hearing on this second

report and was found guilty. This finding was upheld by Michael

Cunningham, the prison Warden, and Ronald Powell, the

Commissioner of the New Hampshire Department of Corrections.

In April and May of 1992, Oropallo was prevented from

4 The report stated that Oropallo placed a state owned screwdriver in his hobbycraft locker.

3 attending a jazz concert and a power lifting event, both taking

place in the North Yard. In addition, he attempted to access the

print shop to staple his legal papers and was denied access to

the yard where the print shop is located.5 Oropallo attempted to

determine why he had been barred from the yard and guestioned the

inmates' attorney, the warden, and Powell. While Powell

disavowed any knowledge of a ban, Ackerman indicated that

Cunningham had ordered Oropallo barred from the North Yard.

Oropallo alleges that these actions were taken against him in

retaliation for filing the prison complaints.

B. Oropallo's Cases Before this Court

On August 7, 1991, Oropallo filed suit to challenge the

conditions of his confinement. He filed an amended complaint on

January 30, 1992. See Oropallo v. Powell et al.. No. 91-339-M

(D.N.H. March 31, 1994) (hereinafter Oropallo I) .6 The complaint

alleged violations of the First, Fourth, Fifth, Sixth, Eighth,

5 At the end of May 1992, Oropallo's legal materials were confiscated. That action by the prison is the subject of a separate action filed by Oropallo on April 19, 1993. Oropallo II, 1st Compl. 5 28; Appendix at 19.

6 Oropallo originally filed this action pro se, but at the time of the court's consideration of the complaint and the motion to dismiss, Oropallo was represented by counsel. Oropallo I, slip op. at 1.

4 and Fourteenth Amendments to the United States Constitution, as

well as various state law claims, arising from events beginning

in 1985 through the time of filing the amended complaint in 1992.

Id. Among the matters that formed the basis for the complaint

was Oropallo's claim that he had been wrongly prevented from

participating in recreational activities in the prison's North

Yard. The court dismissed the amended complaint for failure to

state a claim on March 31, 1994. Id. Oropallo subseguently

appealed the dismissal to the First Circuit Court of Appeals.

On June 8, 1993, Oropallo, acting pro se, filed his first

complaint in the present action, alleging various state and

federal constitutional violations. Subseguently, I adopted the

report and recommendation of the magistrate judge and ordered

that the complaint be dismissed for failure to state a claim.

See Oropallo v. Parrish et al.. No. 93-309-B (D.N.H. Aug. 9,

1993) (hereinafter Oropallo II) . Oropallo appealed that

dismissal and the First Circuit reversed my order in part.

Specifically, the First Circuit found that Oropallo might be able

to claim that he had been subjected to unlawful retaliation for

filing certain lawsuits. Accordingly, it remanded the case with

instructions to allow Oropallo to file a second amended complaint

5 alleging unlawful retaliation. See Oropallo v. Parrish et al..

No. 93-1953, slip op. at 10-11 (1st Cir. May 5, 1994).7 Pursuant

to the First Circuit's opinion, Oropallo filed a second amended

complaint on July 20, 1994. Defendants' motion to dismiss that

complaint is now before me.

II. DISCUSSION

Defendants' motion states a myriad of arguments in favor of

dismissal.8 I conclude that: (1) Oropallo's claims against

defendants Parrish, Cunningham, Powell, Lunderville, and Patrick

should be dismissed because they are barred by res judicata; and

(2) Oropallo's claims against the remaining defendants should be

dismissed because they fail to state viable retaliation claims.

7 The First Circuit affirmed dismissal of Oropallo's procedural due process claim. Eighth Amendment claim, and egual protection claim. In addition, the court noted that Oropallo did not challenge the dismissal of his § 1985 claim and, therefore, deemed that claim waived. Thus, although Oropallo reasserts the § 1985 statute as a basis for his present complaint, I do not address it.

8 Defendants argue that (1) Oropallo failed to amend his complaint in conformity with the First Circuit directives; (2) Oropallo's amended complaint fails to state a cause of action for retaliation; (3) Oropallo's claims are barred by res judicata and collateral estoppel; (4) the defendants have sovereign immunity under the Eleventh Amendment; and (5) the defendants are entitled to gualified immunity.

6 In light of these rulings, I need not address the parties' other

arguments.9

A. Standard of Review

In considering a motion to dismiss for failure to state a

claim, I apply the following standard of review: "a complaint

should not be dismissed for failure to state a claim unless it

appears beyond doubt that the plaintiff can prove no set of facts

in support of his claim which would entitle him to relief."

Conley v. Gibson,

(1957); accord Berniqer v.

Meadow Green-Wildcat Corp.,

(1st Cir. 1991) . In

making this determination, I accept the truth of the facts

alleged in the complaint and give the plaintiff the benefit of

"every reasonable inference helpful to the plaintiff's cause."

Garita Hotel, Ltd. Partnership v. Ponce Fed. Bank, F.S.B., 95

(1st Cir. 1992). Although I ordinarily will confine

my review to the facts alleged in the complaint, I am also free

to consider matters in the court record where necessary to

9 I also dismiss the complaint as far as it alleges retaliation by John Doe #1 and John Doe #2 because Oropallo fails to allege any facts which demonstrate that these defendants acted "under color of state law" in depriving him of his First Amendment rights. See

(West 1994).

7 evaluate a res judicata claim. See Day v. Moscow,

(2d Cir.), cert, denied, 113 S. C t . 71 (1992).

B. The Doctrine of Res Judicata10

Under the doctrine of res judicata, or claim preclusion, "a

final judgment on the merits of an action precludes the parties

or their privies from relitigating issues that were or could have

been raised in that action." Allen v. McCurry,

(1980); Gonzalez, 27 F.3d at 755. The essential elements of

claim preclusion are: (1) a final judgment on the merits in an

earlier action; (2) an identity of parties or privies in the two

suits; and (3) an identity of the cause of action in both the

earlier and later suits. Kale v. Combined Ins. Co.,

(1st Cir.), cert, denied,

(1991). I

address each element in turn.

1. Final Judgment on the Merits

"[DJismissal for failure to state a claim under Federal Rule

of Civil Procedure 12(b)(6) is a 'judgment on the merits,'" thus

barring a subseguent suit on the same claim. Federated Pep't

10 Because the preclusive effect of a prior federal action is at issue, I apply federal principles of res judicata. Gonzalez v. Banco Central Corp.,

(1st Cir. 1994) . Stores, Inc. v. Moitie,

, 400 n.3 (1981) (citing

Angel v. Bullinqton,

(1947); Bell v. Hood,

(1946)). Notwithstanding the general rule, Oropallo

claims that Oropallo I is not a final judgment because it has

been appealed. The federal rule, however, is that the pendency

of an appeal does not alter the res judicata effect of an

otherwise final judgment on the merits. In re Ewing,

(8th Cir. 1988); accord IB James Wm. Moore et al.,

Moore's Federal Practice, 5 0.416[3.-2] (2d ed. 1995) (citing

Huron Holding Corp. v. Lincoln Mine Operating Co.,

(1941); Commodities Export Co. v. United Customs Serv.,

(6th Cir. 1992); United States v. International Bd.

of Teamsters,

, 621 (2d Cir. 1990)). Thus,

plaintiff's appeal of Oropallo I does not affect its status as a

final judgment.

2. Identity of the Parties

Defendants Parrish, Cunningham, Powell, Lunderville, and

Patrick were named as parties in both Oropallo I and the present

action. Therefore, with respect to these defendants, there is

clearly an identity between the parties in the two suits. Kale,

924 F .2d at 1165-66.

9 Defendants assert without explanation or proof that the

other defendants, Ackerman, Sasser, and Robb, are in privity with

the defendants named in the prior action. I conclude that this

assertion is insufficient to meet their burden at the summary

judgment stage since they bear the burden of proof at trial for

this affirmative defense. See Fed. R. Civ. P. 56.

3. Identity of the Causes of Action

"To determine whether sufficient subject matter identity

exists between an earlier and a later suit, federal courts employ

a transactional approach." Gonzalez,

(citations

omitted); accord Manego v. Orleans Bd. of Trade,

(1st Cir. 1985), cert. denied.,

(1986). Thus,

under this approach, a valid and final judgment in a prior action

extinguishes any subseguent claims based on "any part of the

[same] transaction, or series of connected transactions."

Gonzalez,

(guoting Manego,

); accord

Restatement (Second) of Judgments § 24 (1982). A single

transaction or series of transactions often gives rise to many

claims. Gonzalez,

. "It follows that the omission

of a particular statement of claim from the original suit is of

no great conseguence; if the transaction is the same and the

other components of the test are satisfied, principles of res

10 judicata will bar all claims that either were or could have been

asserted in the initial action." Gonzalez,

.

Whether related facts constitute a single "transaction"

is determined pragmatically, giving weight to such considerations

as whether the underlying facts were the same or substantially

similar. Kale,

; Manego,

; and

whether the suits seek redress for "essentially the same alleged

wrong," Aunyx Corp. v. Canon U.S.A., Inc.,

(1st

Cir. 1992), cert, denied, 113 S. C t . 1416 (1993). Additionally,

weight should be given to relevant factors such as closeness in

"time, space, origin, or motivation, whether [the suits] form a

convenient trial unit, and whether their treatment as a unit

conforms to the parties' expectations." Restatement (Second) of

Judgments § 24.

Based on this criteria, I conclude that the two actions are

sufficiently identical to satisfy the res judicata standard. The

prior complaint details the same events as the complaint in the

present action. In both cases, Oropallo sets forth the following

facts as examples of the retaliation he suffered. First, he

alleges that his position in the recreation department was

threatened. Compare Second Amended Complaint, 55 5-8, with

Exhibit C, 5 61. Second, Oropallo alleges that his physical

11 well-being was threatened. Compare Second Amended Complaint, 5

6, with Exhibit C, 5 59m. Third, he alleges he was wrongfully

found guilty of concealing contraband in his locker. Compare

Second Amended Complaint, 55 9-12, 15-16, 18, with Exhibit C, 55

69a-70a, 72-78. Finally, Oropallo claims he was banned from

participating in recreational activities. Compare Second Amended

Complaint, 55 13-14, 17, 19-26, with Exhibit E, page 67. Because

all of these events occurred before or during Oropallo I, he

could have brought his retaliation and state constitutional

claims in the prior action. Further, because Oropallo was

represented by counsel in the prior action, it is not

unreasonable to foreclose Oropallo from litigating his present

claims which could have been raised by his attorney in the prior

suit either initially or through amendment prior to dismissal.11

C. Failure to State a Claim Against the Remaining Defendants

Although a prison inmate does not have a constitutional

right to participate in recreational activities of his choice,

"[i]t is well established that conduct which is not otherwise

11 Oropallo's claim that many retaliatory acts occurred after final judgment in Oropallo I is without merit. Final judgment in Oropallo I was entered in April 1994. Oropallo cites no actions by the defendants which occurred after that date.

12 constitutionally deficient is actionable under

if done in retaliation for the exercise of constitutionally

protected First Amendment freedoms." Oropallo v. Parrish, No.

93-1953, slip op. at 9 (citing Ferranti v. Moran,

,

892 n.4 (1st Cir. 1980); McDonald v. Hall,

(1st

Cir. 1979)); accord Beauchamp v. Murphy,

(1st

Cir. 1994) (Bownes, J., dissenting), cert, denied, 115 S. C t .

1365 (1995). Oropallo has a right under the First Amendment to

"petition the government for a redress of grievances" and he

exercised that right when he filed two complaints with the

department of corrections. If, as he claims, he has been

subjected to retaliation for the exercise of that right, he is

entitled to the relief he seeks. Burgess v. Moore,

(8th Cir. 1994) ("a threat of retaliation is sufficient

injury if made in retaliation for an inmate's use of prison

grievance procedures"); Franco v. Kelly,

(2d

Cir. 1988). However, while the standard for stating a cause of

action for retaliation is very liberal, McDonald,

,

particularly for pro se litigants, see Estelle v. Gamble,

(1976), a plaintiff must, nevertheless, aver a

"chronology of events" which warrants an inference of

retaliation. Ferranti,

; see also McDonald, 610

13 F.2d at 18. The inference must be that the action taken was done

for the purpose of retaliating against the prisoner and would not

have occurred but for that purpose. McDonald,

.

In addition, "a plaintiff must establish defendant's personal

responsibility for the claimed deprivation of a constitutional

right." Smith v. Rowe,

(7th Cir. 1985)

(internal guotations and citations omitted).

1. Defendants Robb and Sasser

Oropallo alleges that on May 22, 1992, Robb prohibited him

from entering the North Yard for the purpose of stapling his

legal materials during the morning count and directed him to

return after the count was completed. 2d Am. Compl. 5 21. When

Oropallo returned after the count, Sasser informed him that he

could not enter the North Yard because the investigations

department had banned him from that area.

There are no allegations or facts supporting an inference

that Robb was doing anything more than enforcing a prison

administrative rule. There is nothing to indicate that he was

personally involved in the ban or that he prevented Oropallo from

entering the yard for that reason.

In addition, the brief statement concerning Sasser's actions

does not provide any basis to infer that he was retaliating

14 against Oropallo for the prison complaints. According to the

complaint, Sasser informed Oropallo that the investigations

department had issued the ban. Sasser followed that department's

directive in prohibiting Oropallo's access to the yard.

There is not a sufficient nexus between these actions and the

complaints Oropallo filed to support a conclusion that Sasser

entertained a retaliatory motive. Therefore, I grant defendants'

motion to dismiss for failure to state a claim with respect to

defendants Ackerman, Robb, and Sasser.

2. Defendant Ackerman

Oropallo states in his original complaint in this action

that shortly after he guestioned prison officials concerning his

ban from the North Yard, Ackerman confiscated his legal

materials. Compl. at 5 28. He also states that this act by

Ackerman is the subject of another suit in this court. Id.; see

Oropallo v. Ackerman, Civil No. 93-cv-209-SD (claiming violation

of his right to access to the courts). Although these actions by

Ackerman may be in retaliation for Oropallo's inguiries about the

North Yard ban, whether these allegations support a cause of

action is most appropriately addressed in that other litigation

dealing with this transaction. Accordingly, this claim is

dismissed without prejudice.

15 3. The State Constitutional Claims

I dismiss the remaining state claims against Robb, Sasser

and Ackerman without prejudice because I decline to exercise my

discretion to retain supplemental jurisdiction over those claims

after dismissing the federal cause of action. See

(West 1993) .

III. CONCLUSION

For the foregoing reasons, I grant defendants' motion to

dismiss and/or for summary judgment (document no. 29).

SO ORDERED.

Paul Barbadoro United States District Judge

September 8, 1995

cc: Charles J. Oropallo, pro se Lucy C. Hodder, Esg.

16