Graham v . Corrections CV-02-377-PB 1/12/05

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Melvin Graham

v. Civil N o . CV-02-377-PB Opinion N o .

Bruce Cattell, et a l .

MEMORANDUM AND ORDER

Melvin Graham is currently incarcerated at the Northern New

Hampshire Correctional Facility (“NCF”) in Berlin, New Hampshire.

He brings this lawsuit against the facility’s librarian, Angela

Rouleau Poulin,1 as well as her supervisors: Warden Bruce Cattell

and former New Hampshire Department of Corrections Commissioner

Phil Stanley. Graham seeks relief under

for two

separate First Amendment violations. First, he claims that

library regulations, policies and practices2 developed by Poulin

1 Poulin married after Graham filed his claim and has since changed her name. At the time of filing, her name was Angela Rouleau. For the purposes of this order, I shall refer to defendant as “Poulin.” 2 For the purposes of this order, a “regulation” is a formally enacted rule memorialized in a policy and procedure directive (“PPD”). A “policy” is also a rule, yet unlike a violate his First Amendment right to access the courts. Second,

he claims that defendants implemented some of the policies and

practices to retaliate against him for exercising his First

Amendment rights. I conclude that no reasonable jury could

agree with either of Graham’s arguments. I therefore grant

defendants’ summary judgment motion on both claims.

I. BACKGROUND

Graham resides in the prison complex at NCF. This case

initially arose from an incident that occurred there in December

2001. Over the course of a weekend, Graham suffered serious

physical symptoms after he was bitten by a spider. In August

2002, he filed suit against certain state officials claiming that

their deliberate indifference to his condition caused his

injuries to worsen in violation of his Eighth Amendment right

against cruel and unusual punishment.3 In the same complaint,

regulation, is not memorialized in a PPD. A “practice” is either an official action or series of actions, as distinct from a rule, that may affect the prison population generally. 3 Graham’s Eighth Amendment claim was dismissed without prejudice for failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). (Doc. N o . 5 8 ) . His motion to reconsider was denied. (Doc. N o . 6 2 ) .

-2- Graham also raised grievances about the following five

regulations, policies and practices affecting his use of NCF’s

library facilities: (1) the prison’s library scheduling

regulations and policies; (2) the quality of its research

materials; (3) the “no talking” policy; (4) the quality of

library furniture; and (5) its photocopying policy. Poulin

implemented these regulations, policies and practices as part of

her responsibilities as NCF’s librarian. I discuss each of

Graham’s claims in detail below.

II. 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 judgment as a matter of law.” Fed. R. Civ. P.

56(c). A trial is only necessary if there is a genuine factual

issue “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.,

4 2 , 250

(1986). A material fact is one that affects the outcome of the

-3- suit. See id. at 248.

In ruling on a motion for summary judgment, I must construe

the evidence in the light most favorable to the non-movant. See

Navarro v . Pfizer Corp.,

0 , 94 (1st Cir. 2001). The

party moving for summary judgment “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 demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v . Catrett,

1 7 , 323

(1986). Once the moving party has properly supported its motion,

the burden shifts to the non-moving party to “produce evidence on

which a reasonable finder of fact, under the appropriate proof

burden, could base a verdict for i t ; if that party cannot produce

such evidence, the motion must be granted.” Ayala-Gerena v .

Bristol Myers-Squibb Co.,

6 , 94 (1st Cir. 1996)

(citation omitted). Neither conclusory allegations, improbable

inferences, nor unsupported speculation are sufficient to defeat

summary judgment. See Carroll v . Xerox Corp.,

3 1 , 236-

37 (1st Cir. 2002).

-4- III. DISCUSSION

A. First Amendment Right of Access to the Court

Graham argues that each of the challenged regulations,

policies and practices impede his access to the courts. He

correctly asserts that it is “undisputed that inmates have a

fundamental constitutional right of access to the courts.”

Carter v . Fair,

(1st Cir. 1986) (citing Bounds

v . Smith,

1 7 , 828 (1977)). This right of access,

however, requires only that prison authorities “assist inmates in

the preparation and filing of meaningful legal papers by

providing prisoners with adequate law libraries or adequate

assistance from persons trained in the law.” Bounds, 430 U.S. at

828. To make a claim that access to the courts has been denied,

then, an inmate must show “that the alleged shortcomings in the

library or legal assistance program hindered his efforts to

pursue a legal claim.” Lewis v . Casey,

(1996).

It is important to note that because the touchstone is

meaningful access to the courts, “prison law libraries and legal

assistance programs are not ends in themselves, but only the

means for ensuring ‘a reasonably adequate opportunity to present

-5- claimed violations of fundamental constitutional rights to the

courts.’” Lewis,

(quoting Bounds, 430 U.S. at

825). “Because Bounds did not create an abstract, freestanding

right to a law library or legal assistance, an inmate cannot

establish relevant actual injury simply by establishing that his

prison’s law library or legal assistance program is subpar in

some theoretical sense.” Id. Therefore, in order for Graham to

assert a violation, he must “demonstrate that a nonfrivolous

legal claim ha[s] been frustrated or was being impeded” by the

policies and practices of the prison authorities. Lewis

; see also Christopher v . Harbury,

(2002) (holding that the right of access is “ancillary to the

underlying claim, without which a plaintiff cannot have suffered

injury by being shut out of court”).

Even if a prison regulation, policy or practice hinders a

prisoner’s ability to access the courts, it may be upheld if what

is challenged bears a rational relationship to legitimate

penological interests. See Overton v . Bazzetta,

(2003); Lewis,

; Savard v . Rhode Island,

3 , 30-31 (1st Cir. 2003). Four factors are relevant to

this analysis: (1) “whether the regulation has a ‘valid rational

-6- connection’ to a governmental interest”; (2) “whether alternative

means are open to inmates to exercise the asserted right”; (3)

“what impact an accommodation of the right would have on guards

and inmates and prison resources”; and (4) “whether there are

‘ready alternatives’ to the regulation.” Overton,

, quoting Turner v . Safety,

8 , 89-91 (1987).

1. Library Scheduling

Graham’s first grievance is that prison regulations and

policies do not provide him with sufficient time to conduct

research. Under NCF regulations, prisoners are allotted a total

of four hours of library time per week, but may apply for

extended time if he can present Poulin with proof that he is

engaged in active litigation. See Plaintiff’s Exhibit B , N.H.

Department of Corrections Policy and Procedure Directive, 7.20

(IV) (A) (3-4) (effective date: 11/01/03) (“Exhibit B ” ) .

Prison policy further limits access to the law library to

two separate time blocks: from 6:45am to 10:45am and from 10:45am

to 2:30pm. Poulin Aff. at 2 . This policy, and the regulations

regarding weekly allocation of library time, have been in effect

throughout Poulin’s tenure at NCF. See Plaintiff’s Exhibit A ,

-7- Affidavit of Angela Rouleau Poulin at 2 (“Poulin Aff.”). 4

Graham claims that additional policies were adopted after he

filed an action in Coos County Superior Court challenging the

time limitations placed on library use at NCF. See Am. Compl.

(Doc. N o . 12) at 3.5 When prison officials agreed to allow

Graham eight hours of access to the law library per week, the

court dismissed the writ as moot. Id.

Under the new policies, if a prisoner signs up for time in

the law library, he must report to the library and sign i n . See

4 Graham observes that these and other policies became effective on 11/01/03. See Plaintiff’s Objection to Defendant’s Motion for Summary Judgment (Doc. N o . 72) at 4 . He then notes that NCF has been operational since April 2000. Id. Graham believes that this implies that the policies at issue must have changed. However, without access to the policies they replaced, there is no way to know whether this is true or not. The only facts presented on this issue are statements made by Poulin. Those statements, uncontradicted by evidence to the contrary, proclaim that the rules at issue have remained unchanged. 5 Graham claims that he has filed three separate habeas petitions in the New Hampshire Superior Court, one in the New Hampshire Supreme Court, and one here in U.S. District Court. See Plaintiff’s Objections to Summary Judgment (Doc. N o . 72) at 7 . Graham has not produced any additional information about these actions. Id. He claims only that the petitions were denied on procedural grounds and that a different result might have occurred were library conditions as he claims they should b e . Id. Without more information, I have no way to evaluate these claims.

-8- Am. Compl. at 4 . If he signs up for a morning slot, he must

arrive on time, and he may leave for breakfast only after signing

in. See Poulin Aff. at 3 . If a prisoner is late or fails to

keep his appointment, the prisoner may be subject to disciplinary

action. This may effect his parole status. Graham has not

alleged that he has been disciplined in any way for his failure

to comply. He does argue, however, that he suffers from hearing

loss and therefore must rely on prison officials to wake him up

in the morning. See Am. Comp. at 4 . If they fail to do so and

he is late, he may be punished. Id. This, he claims, makes it

highly likely that he will be disciplined in the future.

In evaluating the reasonableness of the scheduling policy,

it is important to note that “the Constitution does not guarantee

a prisoner unlimited access to a law library. Prison officials

of necessity must regulate the time, manner, and place in which

library facilities are used.” Lindquist v . Idaho State Bd. of

Corr.,

5 1 , 858 (9th Cir. 1985). Here, Poulin has done

exactly that.

A policy limiting inmates to four hours of law library-use

per week, but providing for the possibility that this time may be

extended, is clearly permissible as a regulation reasonably

-9- related to the stated, and in my view, legitimate, penological

interest of maintaining prison order. Poulin Aff. at 3 . So too

is the requirement that prisoners arrive on time to sign i n .

Without these polices, it could prove difficult to keep track of

a prisoner’s whereabouts and to ensure that all prisoners are

given comparable access to library resources. Supported

rationally by reasonable policy concerns, then, these regulations

do not violate Graham’s First Amendment right of access to the

courts.

2. Research Materials

Graham’s second grievance is that the prison’s newly

established computer research system impedes his ability to

effectively research his claims. Among other resources, the NCF

law library has acquired several LOIS-law computer research

terminals. Poulin Aff. at 3 . These terminals replaced the

library’s book-based research system, which the New Hampshire

Department of Corrections decided was too costly to maintain.

The new system provides access to a wide range of materials,

including case law and statutes.6

Prisoners who do not know

6 The LOIS-law databases include the New Hampshire Rules of Evidence, Practice, and Procedure, New Hampshire statutes,

-10- how to use NCF’s computers may learn to do so by reading

instruction books, or by referencing a help application within

the LOIS program. Outdated case reporters and treatises are

maintained in the recreation library for those who are unable or

unwilling to learn how to use the computers. See Am. Compl. at

4. If an inmate is unable to find what he needs, he may fill out

a request form which Poulin can then pass on to the main prison

library, the prison’s in-house counsel, or even the New Hampshire

Supreme court library, to be answered.

When evaluating whether these resources meet constitutional

standards, it is important to recognize that “the Prison need not

provide its inmates with a library that results in the best

possible access to the courts.” Lindquist,

.

Given the library resources available to Graham, it is thus

difficult to see how he can credibly claim that he is denied at

least adequate access. According to Lewis, “the Constitution

does not require that prisoners (literate or illiterate) be able

to conduct generalized research, but only that they be able to

federal circuit court opinions, U.S. Supreme Court opinions, Federal Rules of Civil and Appellate Procedure, and local rules of procedure.

-11- present their grievances to the courts -- a more limited

capability that can be produced by a much more limited degree of

legal assistance.”

. Graham’s ability to bring

this suit and pursue it to the summary judgment stage is

evidence, in and of itself of his ability to gain meaningful

access to the courts. I thus hold that NCF’s research facilities

do not violate Graham’s First Amendment right of access to the

courts.

3. The “No Talking Policy”

Graham’s third grievance is that NCF has adopted a strict

“no-talking” policy between inmates while in the law library. He

views this limitation as an additional impediment to his right of

access.

Under prison regulations, only individual research is

permitted. See Exhibit B , (IV) (C) (2) ( a ) . The purpose of this

rule is to ensure that library time is used effectively by

attending prisoners and to maintain order and discipline. Poulin

Aff. at 3 . Poulin has interpreted this regulation to restrict

any talk in the library, whatsoever.

at 2 . Like the other

policies Graham criticizes, the “no talking” policy has been in

effect throughout Poulin’s tenure.

-12- Graham argues that the deficiency in library resources could

be overcome were prisoners allowed to confer. For this reason he

asks me to strike the policy down. I refuse to do s o . As noted,

prison officials may reasonably regulate the manner in which

library facilities are used. Lindquist,

. The

“no talking” policy is a reasonable “manner restriction.” Its

penological purpose is to maintain order and discipline in the

library. Poulin Aff. at 3 . Without these rules, it would be

more difficult for Poulin and others to ensure that library time

is being used properly. Graham does not present any evidence to

suggest that such an approach is otherwise unreasonable. Without

such evidence, I must rule in defendant’s favor. See Ayala-

Gerena,

(requiring the party opposing a motion for

summary judgment to come forward with some evidence to prove the

existence of a material fact after its existence has been called

into question by the moving party). I hold that the policy of

requiring prisoners to conduct legal research on their own does

not violate Graham’s First Amendment right of access to the

courts.

4. Uncomfortable Chairs

Graham’s fourth grievance is that the law library chairs

-13- make it physically uncomfortable for him to do research there.

The prison replaced more comfortable chairs with the current

chairs only after Graham filed his initial complaint. This

occurred when it was discovered that the older chairs were housed

in the law library as the result of an administrative error. See

Poulin Aff. at 4 . When the error was discovered, the chairs were

promptly returned to the state.

They were replaced by

chairs no different from those used throughout the NCF facility.

Again, Graham’s claim that replacing the comfortable chairs

violates his access rights is contradicted by the very fact that

Graham has brought this case to the summary judgment stage of

litigation. To obtain relief against the state for impeding

access to the court, one must show that a claim has been

frustrated as a result of the alleged impediment. See Lewis,

. Nowhere has Graham alleged that prison chairs have

resulted in injury to this or any case that he has filed. They

thus do not inhibit his ability to access the courts.

5. Photocopy Policy

Graham’s final complaint is that prison policy requires

Poulin to make copies of court material used by litigating

-14- prisoners.7 This policy, Graham asserts, allows Poulin to

impermissibly read and review the legal documents submitted by

prisoners for photocopying. He seems to base his claim first on

an assertion of certain privacy rights and second on the fact

that invading these rights may deter future filings. Poulin

states that, as a practice, she only examines the contents of

these materials i f , on their face, they contain information that

threatens prison security.8 See Poulin Aff. at 4 . Otherwise,

she examines prisoner documents in a cursory fashion and only in

order to remove staples or crumpled paper prior to making copies.

Stapled or crumpled paper, she states, damage the library’s

copier.

I reject Graham’s challenge to the photocopying policy for

two reasons. First, his claim fails because he has not offered

7 Regulations regarding photocopying services are enumerated in a PPD. See Defendant’s Exhibit D, N.H. Department of Corrections Policy and Procedure Directive, 7.42 (“Exhibit D ” ) . Exhibit D does not contain any explicit language requiring the librarian to make photocopies. Nor does Exhibit D govern the care a librarian must take to examine, o r , for that matter, not examine, documents while copies are made. I therefore treat what is challenged as a prison policy. 8 This would occur i f , for instance, materials detailed a concerted plan designed by prisoners to attempt an escape.

-15- evidence that the policy compromised his ability to litigate a

specific claim. As I have explained, such evidence is required

to establish an access to the courts claim. See e.g., Lewis v .

Casey,

(1966). Second, because the policy is

rationally related to legitimate penological interests, Graham’s

challenge fails even if he could prove that the policy hindered

his ability to litigate a specific claim. Defendants have a

legitimate interest in ensuring that documents that are submitted

for photocopying do not contain staples, crumpled pages, tape or

other defects that could damage the photocopier. They also have

a strong interest in ensuring that the photocopier is not misused

in ways that could compromise prison security or adversely impact

public safety. Further, the cursory review of submitted

documents that the policy ordinarily permits Poulin to make is

among the least intrusive alternatives open to defendants. Thus,

because none of the other factors identified in Overton favor

Graham’s position, his challenge to the policy would fail even if

he could demonstrate that he was adversely affected by the policy

in a specific case.

B. First Amendment Right Against Retaliation

Graham next argues that Poulin has attempted to retaliate

-16- against him for exercising his right to redress grievances

through litigation. Graham cites three separate prison actions

in support of this argument. The first is the modification to

the library scheduling policy, which now requires inmates to

arrive at the law library on time to sign i n . The second is

Poulin’s decision to remove those chairs from the law library

that Graham considered “comfortable” and to replace those chairs

with less comfortable chairs. The third is Poulin’s decision to

more strictly enforce the prison’s “no talking” policy.9

To prove that Poulin violated his right against retalation,

Graham must show: (1) that he had a First Amendment right; (2)

that Poulin took an adverse action against him; (3) with the

intent to retaliate against him for exercising that right; and

(4) that the retaliatory act caused the injury for which he is

seeking compensation. See McDonald v . Steward,

(5th Cir. 1998).

Graham has met the first element of the test. The First

Circuit Court of Appeals recognizes an inmate’s First Amendment

9 Graham registers particular concern over a warning issued to all prisoners in September 2003 not to engage in conversation while in the law library. See Plaintiff’s Exhibit A , Verbatim Copy of Notice on Law Clerks Desk at NCF Law Library.

-17- right of access to the courts and will redress any actions by

prison officials that punish an inmate for exercising this right.

See Ferranti v . Moran,

8 8 , 891-92 (1st Cir. 1980).

Graham has failed, however, to meet the second element.

Each action cited by Graham is a shift in prison operations that

affects the prison population generally. No cited action targets

Graham alone. Without some proof, beyond pure allegation, that

these actions were taken by Poulin in an effort to punish Graham,

he fails to meet the requirements of the second element.

Graham, has also failed to offer any proof that the cited

actions were taken with retaliatory intent. With respect to the

sign-in and “no talking” policies, he is unable to contradict

Poulin’s assertion that they were enacted to maintain a greater

measure of order among prisoners who use the law library. With

respect to the change in prison furniture, Graham is unable to

contradict Poulin’s assertion that comfortable chairs were

removed because they were placed at NCF as a result of

administrative error and needed to be returned. If these reasons

are purely pretext, Graham has failed to provide proof as to why

or how. Instead, he relies on conclusory assertions that they

were animated by retaliatory motives alone. Especially when

-18- challenging actions that affect the prison population generally,

more is required to survive summary judgment. Defendant’s motion

with respect to these claims is therefore granted.10

IV. CONCLUSION

Defendants’ motion for summary judgment (Doc. N o . 65) is

granted in its entirety. The clerk is instructed to enter

judgment accordingly.

SO ORDERED.

Paul Barbadoro United States District Judge

January 1 2 , 2005

cc: Melvin Graham Daniel Mullen, Esq.

10 Graham’s supervisory liability claims fail because he cannot establish that any of the supervisees violated his constitutional rights. See Febus-Rodriguez v . Betancourt-Lebron,

7 , 92 (1st Cir. 1994)

-19-