Giordano v . Powell CV-94-180-JD 09/24/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Vincent Giordano

v. Civil N o . 94-180-JD

Ronald Powell, et a l .

O R D E R

The plaintiff, Vincent Giordano, brought this action against

the defendants, correctional officers and officials at the New

Hampshire State Prison and the New Hampshire Department of

Corrections, seeking declaratory and monetary relief under

. Before the court is the defendants' motion for

summary judgment (document n o . 3 1 ) .

Background1

On March 2 1 , 1991, the plaintiff, an inmate at the New

Hampshire State Prison, submitted an inmate request slip requesting a job change. The request form stated:

I am requesting a job change to the UST B as a clerk or outside worker. I have had hepatitis and have tested positive for [HIV]. I do not believe I should be working in the kitchen.

Affidavit of Marilyn Ford, Ex. A , at 1 . Although the plaintiff

had indeed tested positive for HIV in 1987, subsequent tests,

1 The facts relevant to the instant case are either not in dispute or have been alleged by the plaintiff. including one performed on January 1 3 , 1989, revealed that the

1987 test had produced a false positive. Similarly, although the

plaintiff claims to have had hepatitis in 1972, he has

acknowledged that he did not have hepatitis at the time he

submitted the request slip.2

After receiving the request slip and ascertaining that the

plaintiff's "medical record did not substantiate his alleged

medical condition," Ford Affidavit, Ex. B , at 3 , Andrea Goldberg,

a prison administrator, filed a disciplinary report against the

plaintiff, charging him with providing false and misleading

information to staff and feigning illness to avoid work. On

April 3 , 1991, the plaintiff received notice that a disciplinary

hearing on these charges had been scheduled for April 8 , 1991.

See

Ex. B , at 5 . On April 8 , 1991, hearing officer Roy

Holland granted the plaintiff a continuance to obtain the medical

records concerning his 1972 affliction with hepatitis, stating, Your continuance is granted: I will give you enough time to obtain needed paperwork. Consider this a notice for a new date of April 2 2 , 1991 0800 hrs for your Hearing.

Ex. C . The plaintiff acknowledged receiving this document.

See

On April 1 1 , 1991, the plaintiff made a request for an

2 On April 2 2 , 1988, and April 2 5 , 1988, the plaintiff completed "medical intake screening" forms at the prison and answered "no" to the question, "Do you have or have you had hepatitis?" Affidavit of Joyce Veon, Ex. 2 , at 1 , 3 .

2 additional continuance until May 1 3 , 1991, but the request was denied by officer Holland. The plaintiff appealed this decision to defendant Michael Cunningham, the prison warden, but the appeal was denied. See

Ex. E , at 1 , 2 . The hearing was conducted on April 2 2 , 1991, and was presided over by defendant hearing officer Michael Sokolow. At the hearing, Sokolow denied the plaintiff's renewed request for a continuance, stating that the evidence concerning the plaintiff's 1972 bout with hepatitis, which the plaintiff still had not procured, was irrelevant in light of the plaintiff's more recent medical records. Transcript of Disciplinary Hearing at 1 7 . Peter Rossa, the prison's chief of quality assurance, testified that the plaintiff's medical records indicated that he never had informed prison officials that he had hepatitis in 1972 or that he had received a false positive test for HIV in 1987. Andrea Goldberg testified that she immediately reassigned the plaintiff away from his job in the kitchen after receiving his inmate request slip.

After the hearing, Officer Sokolow found the plaintiff

guilty on both of the charges against him. Sokolow noted in the

disciplinary report in the space marked "evidence relied on for

guilty findings" that the plaintiff

indicated that he had tested positive for Hep[atitis] and HIV in 1972. However, [he] did not mention in his

3 request dated 3-8-91 that more recent tests cleared him of this[;] clearly trying to get out of work and misrepresenting the current facts. Ford Affidavit, Ex. B , at 4 . The plaintiff was sentenced to 175

days loss of good time and 15 days of punitive segregation. In

an additional space in the report in which Sokolow was required

to explain the reason for imposing a loss of good time, Sokolow

noted that

[the] hearing resulted in numerous staff members being removed from their work for long periods of time making this a serious and expensive matter for the state.

The plaintiff appealed the decision to Cunningham and

defendant Ronald Powell, the commissioner of the New Hampshire

Department of Correction. Although both appeals were denied,

Powell reduced the good-time loss to seventy-five days.

In June 1992, the plaintiff brought an action in Merrimack

Superior Court against the prison dentist, alleging that the

dentist had been deliberately indifferent to the plaintiff's medical needs. On December 7 , 1992, after the plaintiff complained that he was unable to chew solid foods, the dentist

prescribed a soft diet for him. After the plaintiff began his

diet, defendant Jonathan Topham, a corrections officer working in

the prison cafeteria, informed the plaintiff on several occasions

that he was not allowed to take food from the cafeteria's

"regular" diet line unless he executed a waiver.

4 The plaintiff attests that [o]n January 7 , 1993, [he] went through the diet line and informed defendant Topham that [he] did not want to continue with the diet line and demanded a waiver to be signed. [Topham] informed [the plaintiff] that he had none. [The plaintiff] left the diet mess hall and went to the regular mess hall and defendant Topham wrote a disciplinary report on [him]. 3

Plaintiff's Affidavit ¶ 2 0 . He also attests that on that date

"Officer Topham told [him] that [he] had to eat in the diet line

until [he] signed a waiver and further stated `This is what you

get for bringing a lawsuit.'"

¶ 2 1 .

On January 1 0 , 1993, the plaintiff sent an inmate request

slip to warden Cunningham, stating:

Topham is continuing to harass me for my litigation by refusing me my food (ice cream) and eating it on the diet line. He also wrote me up . . . and refuses to feed me on the main line because I didn't sign a waiver.

Ex. 1.4

On January 2 0 , 1993, Topham spotted the plaintiff on the

regular food line and again informed him that, absent a waiver,

he could only take food from the diet line. The plaintiff

3 Topham has attested that, to his knowledge, he did not file a disciplinary report against the plaintiff on January 7 , 1996. Affidavit of Jonathan Topham ¶ 6. 4 Topham attests that in January 1993 he had no knowledge of any lawsuits that the plaintiff had filed. He also attests that he never was made aware of the grievance that the plaintiff filed to Cunningham. Topham Affidavit ¶ 7 .

5 requested a waiver, which Topham said he could not provide, and took food from the regular line. Following this incident, Topham filed a disciplinary report against the plaintiff, charging him with refusing to obey an order and with being out of place. Following another disciplinary hearing over which defendant hearing officer Steve Comeau presided, the plaintiff was sentenced to five days of punitive segregation and an additional ten days of punitive segregation from a previously suspended sentence. The plaintiff's appeal was denied by defendant Viola Lunderville.

The plaintiff filed the instant action on April 8 , 1994. The court understands his complaint to allege (1) that the plaintiff was deprived of a liberty interest without due process of law when, following the 1991 hearing, he was sentenced to punitive segregation and a loss of good time solely on the basis of perjured testimony, without being granted the continuance that he requested, and without a sufficient explanation for the sentence;5 (2) that the plaintiff was denied a liberty interest

5 In his affidavit in opposition to the defendants' motion for summary judgment, the plaintiff makes several additional claims related to the process he received. Although the court has endeavored to construe the plaintiff's pro se pleadings liberally, the court will not accept these additional allegations, which were not included in his original complaint and were filed more than two years thereafter, as an amendment to his complaint.

6 without due process of law when, following the 1993 hearing,

Comeau sentenced him to punitive segregation without competent

evidence, without giving the plaintiff an opportunity to call

witnesses, and without providing a sufficient explanation for his

decision; (3) that the plaintiff was deprived of his First

Amendment right of access to the courts when officer Topham

retaliated against him for filing a lawsuit against the prison

dentist; and (4) that defendants Powell, Cunningham, and

Lunderville are responsible in their supervisory capacities for

permitting the underlying constitutional violations to occur.

Discussion

The role of summary judgment is "to pierce the boilerplate

of the pleadings and assay the parties' proof in order to

determine whether trial is actually required." Snow v .

Harnischfeger Corp.,

(1st Cir. 1993) (quoting

Wynne v . Tufts Univ. Sch. of Medicine,

9 1 , 794 (1st Cir. 1992), cert. denied, 113 S . C t . 1845 (1993)), cert. denied,

115 S . C t . 56 (1994). The court may only grant a motion for

summary judgment where the "pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

7 as a matter of law." Fed. R. Civ. P. 56(c). The party seeking

summary judgment bears the initial burden of establishing the

lack of a genuine issue of material fact. Celotex Corp. v .

Catrett,

1 7 , 323 (1986); Quintero de Quintero v .

Aponte-Roque,

(1st Cir. 1992). The court

must view the entire record in the light most favorable to the

plaintiff, "`indulging all reasonable inferences in that party's

favor.'" Mesnick v . General Elec. Co.,

(1st

Cir. 1991) (quoting Griggs-Ryan v . Smith,

1 2 , 115 (1st

Cir. 1990)), cert. denied,

(1992). However, once

the defendants have submitted a properly supported motion for

summary judgment, the plaintiff "may not rest upon mere

allegation or denials of his pleading, but must set forth

specific facts showing that there is a genuine issue for trial."

Anderson v . Liberty Lobby, Inc.,

4 2 , 256 (1986) (citing

Fed. R. Civ. P. 56(e)).

I. The 1991 Disciplinary Action

The defendants contend that summary judgment is warranted on

the plaintiff's due process claims pertaining to the 1991 hearing

because, inter alia, the hearing with which he was provided

comported with due process. The plaintiff claims that the

hearing officer's reliance on perjured testimony, his refusal to

8 grant a continuance, and his justification for sanctioning him

with a loss of good time constituted a violation of due process.

Where a prison disciplinary hearing may result in the loss

of good time credits, due process requires that an inmate receive (1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action.

Superintendent v . Hill,

(1985) (citing Wolff v .

McDonnell,

(1974)); see also McGuinness v .

Dubois,

9 4 , 798 n.3 (1st Cir. 1996) (liberty interest

implicated by revocation of statutorily created good-time credits

resulting in a shortened prison sentence). "Some evidentiary

basis" is required to support a guilty finding that results in a

decision to revoke good-time credits. See Hill,

.

After reviewing the record, the court finds that the

plaintiff's hearing comported with due process. As to the plaintiff's claim concerning hearing officer Sokolow's reliance

on the allegedly perjured testimony of Peter Rossa, the court

finds that Sokolow was entitled to rely on this testimony.

Rossa's testimony is supported by the medical records submitted

to the court and indicates that the plaintiff never disclosed any

prior history of HIV or hepatitis to the prison medical staff and

was not afflicted with hepatitis in 1991. Concerning the

9 plaintiff's claims relating to the denial of his request for a continuance, the court notes that the evidence the plaintiff sought additional time to collect was of limited probative value in light of the charges against him. Regardless of whether the plaintiff actually had suffered from hepatitis in the past, the allusions in his request slip to testing positive for HIV and to a prior bout with hepatitis, made without mention of his freedom from these afflictions at the time, were, at the very least, misleading. Finally, the plaintiff's argument concerning the stated reasons for the disciplinary action are without merit. Although the disciplinary report states that the plaintiff's good time was revoked because the disciplinary hearing turned out to be "a serious and expensive matter for the state," the report, when read as a whole, reveals that Sokolow relied on the entire record before him in concluding that the plaintiff was "trying to get out of work and misrepresenting current facts" and in sentencing the plaintiff to a loss of good time.

The court grants summary judgment to the defendants on the plaintiff's claims relating to his 1991 disciplinary hearing.

II. The 1993 Disciplinary Action

The defendants seek summary judgment on the plaintiff's due

process claims stemming from the 1993 disciplinary action on the

10 ground that the plaintiff's placement in punitive segregation did

not constitute the deprivation of a liberty interest. In Sandin

v . Conner, 115 S . C t . 2293 (1995), the Supreme Court held that an

inmate suffers no deprivation of a liberty interest, and thus has

no constitutional right to due process under Wolff v . McDonnell,

(1974), unless the restraint to which he is

subjected "imposes atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life."

Sandin, 115 S . C t . at 2300; see also Dominique v . Weld,

(1st Cir. 1996). The Sandin Court found that an

inmate who had been removed from the general population of a

Hawaii prison and placed in disciplinary segregation was not

exposed to "atypical and significant hardship" where he spent all

but fifty minutes of his day inside his cell and, when allowed

outside his cell, remained isolated and constrained by leg irons

and wrist chains. See Sandin, 115 S . C t . at 2305 (Breyer, J.

dissenting).

As Judge McAuliffe recently held, placement in punitive

segregation in the New Hampshire State Prison does not impose an

"atypical and significant hardship" on an inmate. Hall v .

Wilson, N o . 94-405-M (D.N.H. March 2 7 , 1996); c f . Raineri v .

Hillsborough County, N o . 93-118-JD (D.N.H. Aug. 2 8 , 1996) (inmate

sentenced to ten days in county prison's restrictive housing unit

11 days not deprived of liberty interest). The court finds that the

plaintiff's placement in punitive segregation did not deprive him

of a liberty interest and, as such, did not violate his right to

due process.

The court grants summary judgment to the defendants on the

plaintiff's due process claims relating to the 1993 disciplinary

action.

III. Retaliation

The defendants argue that summary judgment is warranted on

the plaintiff's retaliation claim against Topham because, inter

alia, Topham had a legitimate basis for bringing disciplinary

charges against the plaintiff. "While a prisoner can state a

claim of retaliation by alleging that disciplinary actions were

based on false allegations, no claim can be stated when the

alleged retaliation arose from discipline imparted for acts that

a prisoner was not entitled to perform." Goff v . Burton,

(8th Cir. 1993) (quotation marks omitted), cert. denied,

114 S . C t . 2684 (1994).

Here, both occasions on which the plaintiff claims to have

been disciplined came as a result of his having disobeyed an

order from Topham. The plaintiff acknowledges that on both

January 7 , 1993, and January 2 0 , 1993, he attempted to eat from

12 the main food line after Topham informed him that he could not do

so without first having executed a waiver form. See Plaintiff's

Affidavit ¶¶ 20-21; 2 4 . As the plaintiff has acknowledged that

neither disciplinary action was based on fabricated charges, his

retaliation claim fails.

The court grants summary judgement to the defendants on the

plaintiff's retaliation claim.

IV. Supervisory Liability

The plaintiff bases his supervisory liability claims against

defendants Powell, Cunningham, and Lunderville on his allegation

that these defendants were responsible for the constitutional

violations of their codefendants. However, supervisory liability

cannot attach unless the supervisor's actions "le[a]d inexorably

to [a] constitutional violation." Hegarty v . Somerset County,

(1st Cir.) (citing Febus-Rodriguez v . Betancourt-

Lebron,

7 , 92 (1st Cir. 1994)), cert. denied, 116 S . C t . 675 (1995). As the plaintiff has failed to establish an

underlying constitutional violation, his supervisory liability

claim fails.

The court grants summary judgment to the defendants on the

plaintiff's supervisory liability claims.

13 Conclusion

The defendants' motion for summary judgment (document n o .

31) is granted. Costs are awarded to the defendants. The clerk

is ordered to close the case.

The court notes that this is the eighth civil action that

the plaintiff has filed in this court since 1988. See Giordano

v . Corrections Comm'r, N o . 95-CV-70 (dismissed for failure to

file amended complaint as ordered); Giordano v . Eltgroth, N o . 94-

CV-121 (dismissed as untimely); Giordano v . Cann, N o . 92-CV-526

(dismissed in part; remainder consolidated with 92-CV-522);

Giordano v . Corrections Comm'r, N o . 92-CV-522 (dismissed for

filing false in forma pauperis application); Giordano v . Prison

Warden, N o . 91-CV-695 (habeas corpus petition dismissed without

prejudice for failure to exhaust state remedies); Giordano v .

Caron, N o . 91-CV-137 (dismissed in part for failure to state a

claim; remainder voluntarily withdrawn); Giordano v . Courtney,

N o . 88-CV-102 (settled). The plaintiff is placed on notice that

in the event he files any complaint in the future that is

frivolous, malicious, or without merit, or that fails to state a

claim, the court will review his litigation history to determine

if he qualifies as a vexatious litigant who should be required to

obtain leave of the court before filing any complaint. See Cok

14 v . Family Court of Rhode Island,

(1st Cir. 1993) (per

curiam).

SO ORDERED.

Joseph A . DiClerico, J r . Chief Judge September 2 4 , 1996

cc: Vincent Giordano, pro se Jennifer B . Gavilondo, Esquire

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