Rogers v. Rockingham County CV-96-560-SD 07/23/98 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Charles F . Rogers

v. Civil No. 96-560-SD

County of Rockingham; Rockingham County House of Corrections; Superintendent, Rockingham County House of Corrections; EMSA Correctional Care; Sandra Chapman, Senior Supervisor for EMSA Correctional Care; Heather Fleming; Joan Houghtaling

O R D E R

In this civil rights action, plaintiff claims his

constitutional rights were violated while he was detained in the

Rockingham County House of Corrections. Before the court is the

Rockingham County defendants' motion for summary judgment, to

which plaintiff objects, and plaintiff's motion for summary

judgment, to which defendants object.

In its order of April 30, 1998, this court denied the

Rockingham County defendants' motion for summary judgment, even

though plaintiff had not produced any evidence to support his

case. The court noted that "[a] party cannot rely on the

pleadings alone to oppose summary judgment, but must produce

properly supported evidence . . . to demonstrate a genuine

dispute for trial." Order of Apr. 30, 1998, at 2 (quoting Celotex Corp. v. Catrett,

(1986)).

Nonetheless, the court temporarily denied summary judgment so the

pro se plaintiff would have a grace period for producing evidence

supporting his claims. The court warned plaintiff that after the

grace period had expired, "summary judgment will be granted for

every claim that plaintiff does not support with enough evidence

to demonstrate a triable issue of fact." Id. at 3.

The grace period has now expired, and plaintiff has produced

only minimal evidence, most of which relates to claims that have

already been dismissed by previous order. See Order of Jan. 7,

1997, at 6-7. Plaintiff has submitted his sworn affidavit, which

pertains, in most part, to the dismissed diet-related complaints,

see Plaintiff's Affidavit 5 6, and to the dismissed law library

access complaint, see Plaintiff's Affidavit 5 7. Next, Rogers

points to an entry in the medical records kept during his

confinement which confirms that plaintiff was ordered to "D block

as a medical lock-in, due to on-going non-compliance and threats

to his health." Defendants' Motion for Summary Judgment, Exhibit

1, at 3 (page numbered "-7-"). Plaintiff alleges this evidence

supports his claim that he was disciplined without due process of

law for eating french fries. However, that claim has already

been dismissed. See Order of Jan. 7, 1997, at 7.

Plaintiff has only submitted two pieces of evidence that

pertain to viable claims. First, paragraph 5 of plaintiff's

2 affidavit claims he was denied any opportunity to exercise during

his confinement. In Laaman v . Helqemoe,

(D.N.H. 1977) , the court said:

I have previously held that failure to provide physical exercise for an unreasonable period of time constitutes a threat to the well-being of the prisoners. It also exhibits a calloused indifference to the health needs of a captive population. It is, therefore, cruel and unusual punishment. . . . [T]he right to reasonable opportunities for exercise is fundamental.

Defendants respond with the affidavit of Gene Charron, who

claims that Rogers was prevented from participating in the

facility's outdoor exercise program for reasons of health.

Charron Affidavit at 3, 5 7 (attached to Defendants' Memorandum).

Nonetheless, inmates like Rogers, who for health reasons could

not participate in outdoor exercise programs, are entitled to

alternate reasonable opportunities to exercise, although they

need not be elaborate, as "[t]he Constitution does not demand

sophisticated athletic equipment."

. Defendants have submitted no evidence of any exercise

opportunities provided to inmates like Rogers who for reasons of

health were prevented from participating in the regular outdoor

program. Thus there remains a disputed issue of fact whether

Rogers' right to reasonable opportunities for exercise was

violated.

Next, Rogers' affidavit claims that limitations were imposed

on his right to use the telephone. The Supreme Court has

recognized that " [p]rison walls do not form a barrier separating

prison inmates from the protections of the Constitution." Turner 3 v. Saflev,

(1987). Accordingly, courts have held

that prisoners have a First Amendment right to use the telephone.

Owens-El v. Robinson,

(W.D. Pa. 1978)

("Inmates have a constitutional right, protected by the First

Amendment, to communicate with friends, relatives, attorneys, and

public officials by means of . . . telephone calls."); Johnson v.

Galli,

(D. Nev. 1984). On the other hand,

"courts are ill equipped to deal with the increasingly urgent

problems of prison administration and reform." Procunier v.

Martinez,

(1974). Factoring in the policy of

judicial restraint, the Supreme Court formulated a deferential

standard of review under which restrictions on a prisoner's

constitutional rights are valid if reasonably related to

legitimate penological interests.

.

Thus "[t]he particular formula for regulating telephone use

should be left to the sound discretion of jail officials, subject

to review by the district court to guard against unreasonable

restrictions." Feelev v. Sampson,

(1st Cir.

1978); Washington v . Reno,

(6th Cir. 1994);

Wolfish v. Levi,

(2d Cir. 1978) ("Although

pretrial detainees enjoy a first amendment right to communicate

by telephone with persons outside the prison, that right has

never been construed to mandate a special level of telephone

services. Accordingly, to require the [prison] to return to

court whenever it seeks to make any change, however minor, in its

telephone service, would place great strains on overburdened

4 federal judges and would, in essence, preempt the role of prison

officials. Disputes . . . would best be handled by the inmate

grievance procedure provided by the Bureau of Prisons, rather

than federal courts." (Footnote omitted.)).

Defendants have not asserted any penological interest to

justify the restrictions on Rogers' use of the telephone. This

court will not speculate as to whether such a penological

interest is in fact present. Thus there remains a disputed issue

of fact whether Rogers' First Amendment right to use the

telephone was infringed.

Aside from the exercise and telephone claims, the rest of

Rogers' claims are entirely unsupported by evidence. Rogers does

attempt to support his medical malpractice claims in paragraphs 4

and 8 of his affidavit. However, those statements are far too

vague and general to oppose summary judgment. See Lujan v.

National Wildlife Fed'n,

(1990) ("The object of

[Rule 5 6 (e)] is not to replace conclusory allegations of the

complaint or answer with conclusory allegations of an

affidavit."). None of Rogers' claims except the exercise and

telephone claims are supported by competent evidence, and summary

judgment is therefore appropriate on all other claims, except the

exercise and telephone claims.

The municipal defendants seek summary judgment on grounds

that Rogers has failed to "identify a municipal 'policy' or

'custom' that caused the plaintiff's injury." Board of County

Comm'rs v . Brown, ___ U.S. ___ , ___ ,

, 1388

5 (1997). To identify a policy, the plaintiff must point to an

"act by a decisionmaker with final authority in the relevant

area."

With respect to plaintiff's lack of exercise claim,

he swears by affidavit that he "wrote the Superintendent by

internal mail asking that the institution provide [appropriate

exercise]." Rogers' Affidavit 5 5. The court finds that the

superintendent retains the requisite authority in the area of

inmate exercise, and thus Rogers has satisfied his burden at this

stage of the litigation of identifying a municipal policy. With

respect to plaintiff's First Amendment claim, Charron admits in

his affidavit that the telephone restrictions of which Rogers

complains were pursuant to Rockingham County policy. See Charron

Affidavit 5 8 (attached to defendant's memorandum). In short,

this is not a case where Rogers is seeking to hold Rockingham

County liable simply for employing a tortfeasor.

Defendant Charron seeks summary judgment on the ground of

qualified immunity under Harlow v. Fitzgerald,

(1982), which held that "government officials performing

discretionary functions generally are shielded from liability for

civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known." The Court elaborated

further in Anderson v. Creighton,

(1987):

The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it 6 is to say that in the light of pre-existing law the unlawfulness must be apparent.

(Citation omitted.) In light of this district's decision in

, a reasonable official would

understand that depriving Rogers of an opportunity to exercise

violated his clearly established constitutional rights.

Likewise, in light of the Court's opinion in

, the unlawfulness of unjustified restrictions on

Rogers' use of the telephone was apparent. In short, taking

plaintiff's allegations as true, Charron should have known that

his conduct violated Rogers' clearly established constitutional

rights. Qualified immunity is therefore inappropriate.

The court will now consider Rogers' motion for summary

judgment on his exercise claim in Count II. This is a close

call, because defendants have submitted practically no evidence

concerning the issue of reasonable exercise opportunities

provided to Rogers (except Charron's irrelevant claim that Rogers

was not denied exercise for punitive reasons). Nonetheless,

Rogers' evidence pertains to the denial of outdoor exercise, and

as long as inmates receive reasonable exercise opportunities, it

does not have to be outdoor exercise. Thus there remains a

disputed issue of fact whether Rogers was provided reasonable

exercise opportunities.

Conclusion

For the foregoing reasons, plaintiff's motion for summary

judgment (document 78) is denied. The Rockingham County 7 defendants' motion for summary judgment (document 49) is granted

as to Counts I, VII, VIII, IX, X, XI, XII, XIII, and is denied as

to Counts II and XIV.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

July 23, 1998

cc: Charles F . Rogers, pro se Dyana J. Crahan, Esq. Cynthia L. Fallon, Esq.

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