Trebian v. Merrimack County HOC CV-99-4380-B 07/31/01 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jerod Trebian

v. Civil No. 99-438-B Opinion No.

Merrimack County House of Corrections, et a l .

MEMORANDUM AND ORDER

Jerod Trebian, pro se, brings this action pursuant to

, seeking damages for alleged violations of his

Fourteenth Amendment due process rights that occurred during his

pretrial detention at the Merrimack County House of Corrections.

Trebian claims that, while he was a pretrial detainee, the

defendants1: (1) arbitrarily and capriciously determined his

classification status; (2) punished him excessively for minor

disciplinary violations without giving him an opportunity to

appeal; and (3) arbitrarily denied him the right to visit with

certain visitors. The defendants have moved for judgment on the

pleadings, or in the alternative, for summary judgment. For the

following reasons, I grant the defendants' motion for summary

1 The defendants are the Merrimack County House of Corrections, Superintendent Carole Anderson, and Captain Jeffrey Croft, a member of the Classification Board. judgment.2

I. STANDARD OF REVIEW

Summary judgment is appropriate only "if 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 as a matter of law." Fed. R. Civ. P.

56(c). A genuine issue is one "that properly can be resolved

only by a finder of fact because [it] ... may reasonably be

resolved in favor of either party." Anderson v. Liberty Lobby,

Inc.,

(1986). A material fact is one that

affects the outcome of the suit. See

.

In ruling on a motion for summary judgment, the court must

construe the evidence in the light most favorable to the

non-movant. See Oliver v. Digital Equip. Corp.,

(1st Cir. 1998). The party moving for summary judgment.

2 I analyze this motion as a motion for summary judgment because: (1) the defendants have submitted an affidavit and various other factual materials; (2) I rely on those materials in assessing Trebian's claims; and (3) Trebian treats the motion as a motion for summary judgment in his objection. See Fed. R. Civ. P. 12 (c) .

- 2 - however, "bears the initial responsibility of informing the

district court of the basis for its motion, and identifying those

portions of [the record] ... which it believes demonstrates the

absence of a genuine issue of material fact." Celotex Corp. v.

Catrett,

(1986). Once the moving party has

properly supported its motion, the burden shifts to the nonmoving

party to "produce evidence on which a reasonable finder of fact,

under the appropriate proof burden, could base a verdict for it;

if that party cannot produce such evidence, the motion must be

granted." Ayala-Gerena v. Bristol Myers-Scruibb Co.,

(1st Cir. 1996) (citing Celotex,

). I apply

this standard in resolving the defendants' motion for summary

judgment.

II. DISCUSSION

The due process clause prohibits a detainee from being

punished for the offense that resulted in his detention until his

guilt is determined at trial. See Bell v. Wolfish,

(1979). As the Supreme Court has recognized, however, "[n]ot

every disability imposed during pretrial detention amounts to

- 3 - ''punishment' in the constitutional sense."

.

Therefore, a court must distinguish between punitive restrictions

and permissible restrictions that are "reasonably related to a

legitimate governmental objective."

. Further, prison

officials may punish a pretrial detainee for violations of the

prison's disciplinary system without violating the due process

clause, so long as the detainee is accorded procedural due

process and the punishment imposed "is not excessive in light of

the seriousness of the violation." Collazo-Leon v. United States

Bureau of Prisons,

(1st Cir. 1995). Finally,

the Supreme Court has recognized that "[t]here is, of course, a

de minimus level of imposition with which the Constitution is not

concerned," regardless of whether the imposition is motivated by

an intention to punish. Bell,

n.21 (quoting

Ingraham v. Wright,

(1977)).

With these standards in mind, I turn to Trebian's claims

that defendants violated his right to due process by

reclassifying him, punishing him excessively for several minor

disciplinary infractions without giving him an opportunity to

appeal, and restricting his right to visit with certain

- 4 - visitors.3

A. Classification

Trebian argues that the Classification Board (the "Board")

violated his right to due process when it arbitrarily determined

his classification status. I disagree.

The Merrimack County House of Corrections (the "MCHOC")

classifies newly admitted inmates within three days of their

incarceration using an objective classification system. After an

inmate is admitted to the MCHOC, either the Assistant

Superintendent or the Coordinator of Rehabilitation Services

interviews the inmate to obtain information about both his

criminal history and his substance abuse history. The Board,

which consists of Captain Jeff Croft, the Assistant

Superintendent, and the MCHOC's Coordinator of Rehabilitation

Services, also performs a criminal background check and attempts

to discern whether the inmate has any enemies in the prison. The

3 Trebian bases his due process claim on his constitutional right not to be punished before trial for the offense that resulted in his detention. In certain circumstances, a pretrial detainee also may be able to base a due process claim on the deprivation of a liberty interest created by state law. See Sandin v. Conner,

(1995) . Because Trebian has not alleged any facts that would support such a claim, I need not consider this line of cases in my analysis.

- 5 - Board then uses a numeric grading system, which takes into

consideration the inmate's pending charges, criminal record,

educational background, and employment history, to determine

whether the inmate will be classified as Minimum, Medium or

Maximum Security. The Board meets weekly to review requests for

changes in classification status or cell assignment and reviews

each inmate's classification at least monthly and after each

"major incident." The superintendent hears all appeals relating

to classification matters.

In determining Trebian's initial classification status, the

Board took into consideration his criminal record, the criminal

charges for which he was being detained, his escape risk, his

education, and his employment history. See Supplemental Aff. of

Carole A. Anderson, Doc. No. 20, at Exh. D [hereinafter Supp.

Aff.]. Based on this information, the Board determined through

the numeric grading system that Trebian's classification scale

score was 18.4 See

Because inmates with a classification

4 The Board erred in initially determining that Trebian's classification was Minimum Security because it failed to consider his pending felony charge. If the Board had considered the pending felony charge, Trebian's classification scale score would have increased by 20 points. With a score of 38 Trebian would have been classified as Maximum Security. Inmates with a score

- 6 - scale score between 5 and 19 are classified as Minimum Security,

the Board classified Trebian as Minimum Security. See Defs.'

Mot. Summ. J., Doc. No. 13, at Exh. B, Inmate Classification

Assignments D-110.

The Board did not act arbitrarily when it later changed

Trebian's classification status to Medium Security. On April 15,

1999, after Trebian had pleaded guilty to a major disciplinary

charge, he requested that his classification be changed to Medium

Security and that he be placed in a different day room. See

Supp. Aff., Doc. No. 20, at Exh. E. The Board, therefore,

changed Trebian's classification to Medium Security based on his

"inability to adapt to [his] current dayroom assignment [and due

to] disciplinary concerns with his present [Minimum]

classification status."

at Exh. F.

Trebian argues that there is no evidence in the record of

any disciplinary action upon which his reclassification could be

based. This argument is a nonstarter because it was Trebian,

himself, who requested the change in classification.

Furthermore, the record shows that on April 10, 1999, Trebian

of greater than 30 are classified as Maximum Security and those with a score between 20 and 29 are classified as Medium Security.

- 7 - received a major disciplinary report for assaulting an inmate

that would have supported his reclassification to Medium Security

even if he had not himself requested reclassification. See

at Exh. E.

Finally, the Board did not arbitrarily reclassify Trebian as

Maximum Security on August 18, 1999. See id. at 10-13. The

Board reclassified Trebian because he had been charged with a

major disciplinary violation for possessing contraband on August

16, 1999, and because he posed a threat to internal security at

the MCHOC. See id. at Exhs. H, I, J. Multiple corrections

officers' reports indicated that Trebian threatened inmates and

attempted to take control of his day room. See id. at Exhs. H,

I.

The Board's actions, as described above, and the

classification system, in general, are reasonably related to the

legitimate government aims of preserving internal order,

discipline, and security at the MCHOC. See Bell,

; Collazo-Leon.

. The Board reclassified

Trebian because it reasonably concluded that he posed a threat to

the maintenance of internal order and security at the MCHOC.

Thus, I conclude that the Board's actions do not constitute impermissible punishment and, therefore, the defendants did not

violate Trebian's rights under the due process clause. See

Martucci v. Johnson,

(6th Cir. 1991)

(holding that the nonpunitive placement of a pretrial detainee in

segregated confinement does not implicate a liberty interest

protected by the due process clause). For the foregoing reasons,

the defendants are entitled to summary judgment as to this claim.

B. Minor Disciplinary Violations

Trebian claims that the defendants violated his substantive

and procedural due process rights when they punished him

excessively for minor disciplinary violations without giving him

an opportunity to appeal.

1. Substantive Due Process Rights

The defendants sanctioned Trebian for minor disciplinary

violations on three occasions. First, on April 20, 1999, Trebian

lost contact visit, store, gym, and outside recreation privileges

for 15 days after he was charged with possession of tobacco. See

Supp. Aff., Doc. No. 20, at Exh. R. Second, after disobeying a

corrections officer's order not to enter another inmate's cell,

Trebian lost contact visit, store, gym, and outside recreation

- 9 - privileges for 15 days on August 15, 1999. See

at Exh. T.

Lastly, on September 28, 1999, Trebian failed to stand for the

inmate count and lost store, gym, and outside recreation

privileges for 5 days. See

at Exh. W. Trebian has not

contested his guilt with respect to these charges.

Although the sanctions that defendants imposed on Trebian

for his minor disciplinary violations qualify as punishment, they

served the legitimate governmental objectives of maintaining

safety and internal order at the MCHOC. Further, the sanctions

were not excessive under the circumstances. Accordingly, the

defendants did not violate Trebian's right to substantive due

process when they administered the sanctions. See Collazo-Leon,

51 F .3d at 318.

2. Procedural Due Process Rights

Trebian also alleges that defendants violated his right to

procedural due process because, on each of the three occasions

described above, the same corrections officer issued his

disciplinary report, decided its accuracy, and determined his

punishment. He claims that these procedures violated his right

to procedural due process because he was not given an opportunity

to appeal.

- 10 - a. Background

The MCHOC classifies disciplinary violations as either

"major" or "minor." When a corrections officer issues a minor

violation report, he also recommends a penalty. Before issuing

the penalty, a supervisor must review and approve both the report

and the penalty.

Inmates may appeal both the grounds for a minor disciplinary

report and the penalty assessed by submitting a written grievance

to the superintendent. The superintendent must investigate the

inmate's grievance and provide the inmate with a written copy of

her findings and recommendations within five working days.

Inmates also may appeal adverse rulings by the superintendent to

the Merrimack County Board of Commissioners.

While the above-described procedure is outlined in the staff

manual, it is not described in the inmate handbook. Moreover,

Trebian asserts that defendants told him that he could not appeal

his minor disciplinary violations.

b. Trebian's Claims Against the Individual Defendants

The individual defendants argue that they are entitled to

qualified immunity with respect to Trebian's procedural due

- 11 - process claims. I agree.

"Qualified immunity shields state officials exercising

discretionary authority from civil damages 'insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

been aware." Souza v. Pina,

(1st Cir. 1995)

(quoting Harlow v. Fitzgerald,

(1982)). When a

court rules upon a claim of qualified immunity, it must consider

"this threshold question: Taken in the light most favorable to

the party asserting the injury, do the facts alleged show [that]

the [defendant's] conduct violated a constitutional right?"

Saucier v. Katz. 121 S. C t . 2151, 2156 (2001).

If the court determines that a defendant's conduct violated

a constitutional right, it must next decide whether that right

was clearly established. See

For a right to be clearly

established, "the law must have defined the right in a quite

specific manner, and the announcement of the rule establishing

the right must have been unambiguous and widespread," such that a

reasonable official would understand that what he is doing

violates the right. Brady v. Dill,

(1st Cir.

1999). In addition, a defendant does not lose the protection of

- 12 - qualified immunity if he acts mistakenly, as long as his mistake

was objectively reasonable, as qualified immunity is intended to

protect "all but the plainly incompetent or those who knowingly

violate the law." Veilleux v. Perschau,

(1st Cir.

1996) (quoting Mallev v. Briggs,

(1986) ) .

Trebian has failed to identify any case law that supports

his claim that the due process clause clearly entitles him to a

right to appeal a minor disciplinary report.5 In Wolff v.

McDonnell,

(1974), the United States Supreme Court

described an inmate's procedural rights when he is charged with a

disciplinary violation that could result in a loss of good-time

credits or a period of solitary confinement. See id.at 563-72.

The Court went on to state that, "[w]e do not suggest, however,

that the procedures required by today's decision for the

deprivation of good time would also be required for the

imposition of lesser penalties such as the loss of privileges."

5 While I ordinarily should attempt to determine whether Trebian has stated a viable due process claim before examining the issue of whether the right on which he bases his claim was clearly established when the violation occurred, see Gardner v. Vesjoia,

(1st Cir. 2001), I decline to express a view on this difficult question because the issue has not been well briefed by either side and I have been unable to identify any controlling precedent that suggests a definitive answer.

- 13 -

at 572 n.19; see also Fano v. Meacham,

(1st

Cir. 1975) (stating in dictum that a hearing may not be required

for a disciplinary report that results only in a temporary loss

of privileges), rev'd on other grounds,

(1976). No

subsequent Supreme Court decision has provided further guidance

on the question of what procedures are required for the

imposition of lesser penalties, and I could find no controlling

precedent that resolves this issue. Accordingly, the individual

defendants are entitled to qualified immunity with respect to

Trebian's procedural due process claims because the law on which

Trebian bases his claims was not clearly established when the

alleged violation occurred.

c. Trebian's Claim Against the MCHOC

Defendants argue that the MCHOC cannot be held liable for

damages for violating Trebian's rights to procedural due process

because Trebian has failed to demonstrate that the individual

defendants were acting pursuant to a custom or policy when they

told him he could not appeal his minor disciplinary reports. I

also agree with this contention.

An entity such as the MCHOC may not be held liable for

- 14 - damages based on § 1983 unless the employees who allegedly

violated the plaintiff's federal rights were acting pursuant to a

"policy" or a "custom." See Board of County Comm'rs v. Brown,

(1997). An action is considered to be the

result of a policy if either it was undertaken pursuant to a rule

enacted by the entity's legislative body, or it was committed or

authorized by a person with the final authority to establish

policy for the entity. See Silva v. Worden,

(1st

Cir. 1997). An action is deemed to be the result of a custom if

it is consistent with a practice that is so wide-spread that it

is deemed to have the force of law. See

Trebian has failed to establish that the individual

defendants were acting pursuant to either a policy or custom of

the MCHOC when they allegedly told him that he could not appeal

his minor disciplinary violations. The MCHOC's official policy

is to accord inmates who are sanctioned for minor disciplinary

violations a right to appeal such sanctions initially to the

superintendent and ultimately to the county commissioners.

Trebian has not produced any evidence which suggests that the

MCHOC had a secret policy that was contrary to its stated policy,

nor has he demonstrated that the MCHOC had a custom of denying

- 15 - inmates their right to appeal minor disciplinary violations.

Accordingly, he cannot maintain a claim for damages against the

MCHOC.6

C. Visitation

Trebian argues that the defendants violated his due process

rights by arbitrarily depriving him of visits with his

girlfriend, Veronica McDevitt, and his sister. Carmen Trebian.

He claims that the defendants removed both women from his visitor

list based on "unrelated incidents" and due to his complaints

about the officers' treatment of these visitors. To prevail on

this due process claim, Trebian must show that the restrictions

on his visiting privileges constituted punishment for the crimes

with which he was charged. See Bell,

; Collazo-

Leon ,

. In analyzing this claim, I accord

6 To the extent that Trebian is claiming that the due process clause requires that he be given notice of his right to appeal a minor disciplinary violation or that it entitles him to an adversary hearing on his minor disciplinary violations, I reject his arguments. I have found no case law that would support the proposition that an inmate must be notified of his appeal rights when he is subjected to sanctions for a minor disciplinary violation. Further, an inmate does not have a right to challenge a minor disciplinary violation in an adversary hearing if the violation results only in a temporary loss of privileges. See Boutchee v. Grossheim.

(8th Cir. 1993).

- 16 - substantial deference to the MCHOC administrators' execution of

procedures which are needed to maintain internal order,

discipline, and safety. See Bell,

.

There is no evidence in the record suggesting that the

defendants restricted Trebian's right to visit with either

McDevitt or Trebian to punish him for his pre-detention crimes.

Rather, the record shows that their visits were restricted

because of the need to maintain internal order and security at

the MCHOC. On multiple occasions, McDevitt ignored officers'

instructions to end visits and to refrain from hugging and

kissing Trebian and his brother during non-contact visits. See

Supp. Aff., Doc. No. 20, at Exhs. X, Y, BB, C C . For example, on

May 8, 1999 and July 3, 1999, McDevitt did not leave the visiting

area when asked to do so because her visit had come to an end.

In response to the latter incident, a corrections officer filed a

report in which he stated that McDevitt should be banned from

visiting indefinitely because she and Trebian cannot abide by the

rules as they "want things done their way."

at Exh. C C . On

at least one occasion. Carmen Trebian also refused to comply with

a correction officer's request that she leave the visiting area.

See

at Exh. Y.

- 17 - Because the restrictions on McDevitt and Trebian's visits

were instituted to ensure compliance with the visitation rules,

the restrictions were reasonably related to the legitimate

government interests of maintaining internal order, discipline,

and safety at the MCHOC. See Bell,

; Collazo-

Leon ,

. Accordingly, the defendants are

entitled to summary judgment as to this claim. See Bell,

; Collazo-Leon,

; Felch v.

Hillsborough County Dep't of Corr.,

(Feb. 8,

2000); c f . Kentucky Dep't of Corr. v. Thompson,

(1989) (holding that an inmate's interest in unfettered

visitation is not guaranteed by the due process clause).

Ill. CONCLUSION

Defendants' motion for summary judgment, (Doc. No. 13), is

granted. I direct that the Clerk enter judgment in accordance

with this order.

- 18 - SO ORDERED.

Paul Barbadoro Chief Judge

July 31, 2001

cc: Jerod Trebian, pro se John Curran, Esq.

- 19 -