LaFauci v. NHDOC CV-99-597-PB 02/23/05

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Anthony LaFauci

v. Civil No. 99-597-PB

New Hampshire Department of Corrections et a l .

MEMORANDUM AND ORDER

Plaintiff Anthony LaFauci, proceeding pro se, has sued 47

officials working for, or at the behest o f , the New Hampshire

State Prison (“NHSP”). He charges that defendants violated his

rights under the First, Eighth, and Fourteenth Amendments to the

United States Constitution. See

. In his multi-

count complaint, LaFauci, who is currently incarcerated at the

Osborn Correctional Institution in Somers, Connecticut, seeks

injunctive relief ordering Warden Michael Cunningham1 to provide

copies of all of LaFauci’s records at the state’s expense,

1 The current Warden of the New Hampshire State Prison is Bruce Cattell. expunge “trumped up” disciplinary convictions from his prison

record, and release him from prison. LaFauci also seeks monetary

damages.

Defendants have moved for summary judgment on each of

LaFauci’s claims. They make the preliminary argument that

LaFauci’s claims should be dismissed based on his alleged failure

to comply with the administrative exhaustion requirement of the

Prison Litigation Reform Act (“PLRA”). See 42 U.S.C. § 1997e(a).

Defendants contend that LaFauci failed to exhaust all available

administrative remedies by pursuing his claims through the proper

chain of command, as detailed in NHSP’s “Administrative Grievance

Scheme.” See LaFauci v . New Hampshire Dep’t of Corrections, N o .

99-253-M,

, at *3 (D.N.H. Oct. 3 1 , 2001)

(unpublished order)(outlining the three-tiered “administrative

scheme through which inmates may seek to have various complaints

addressed and resolved”). Alternatively, defendants argue that

there are no genuine issues of material fact as to any claim and,

therefore, that they are entitled to judgment as a matter of law.

See Fed. R. Civ. P. 56(c). For reasons set forth more fully

below, I grant defendants’ motion for summary judgment in part,

and deny it in part.

-2- I. PROCEDURAL HISTORY

The procedural history of this case is long and convoluted.

It has been unduly, and indeed unnecessarily, complicated both by

LaFauci’s efforts to inundate the court with a deluge of

pleadings and by the defendants’ inability to promptly and

effectively respond to these pleadings. Furthermore, an ongoing

series of discovery disputes have needlessly prolonged the

litigation.

LaFauci filed his original complaint on December 2 1 , 1999,

and the case was referred to Magistrate Judge Muirhead for

initial review. See 28 U.S.C. § 1915A(a); U.S. District Court

District of New Hampshire Local Rule 4.3(d)(2). On May 1 6 , 2000,

Magistrate Judge Muirhead issued his explanatory Order, (Doc. N o .

5 ) , and Report and Recommendation, (Doc. N o . 6 ) , and ordered the

complaint served on the defendants. I approved this Report and

Recommendation on June 7 , 2000. (Doc. N o . 8 ) . After first

moving for an enlargement of time, defendants answered the

original complaint on July 1 7 , 2000. (Doc. N o . 2 0 ) . Then, on

August 1 5 , 2000, LaFauci moved for the first of three preliminary

injunctions and temporary restraining orders (“TRO”) (the second

-3- motion for a preliminary injunction and TRO was filed on

September 1 , 2000). Six days later, on August 2 1 , 2000, he moved

for leave to file an amended complaint. The court granted his

motion on September 7 , 2000.

Throughout the fall of 2000 and into 2001, LaFauci and the

defendants engaged in the first of several discovery disputes,

punctuated by several motions to compel production of documents,

and LaFauci’s motion to have defendants return his legal work.

On November 2 0 , 2000, the Magistrate recommended denial of

LaFauci’s first and second motions for a preliminary injunction

and TRO. I approved the Magistrate’s recommendation on January

2 9 , 2001. In response, LaFauci appealed the decision to the

First Circuit on March 2 8 , 2001. 2

Several months later, on July 1 6 , 2001, LaFauci filed a

motion for contempt, charging that defendants failed to comply

with a court order. The Magistrate denied this motion on August

1 7 , 2001. Another round of discovery disputes, including more

motions to compel, extended the case through 2001 and into 2002.

2 The First Circuit affirmed this court’s judgment on June 1 0 , 2002.

-4- On October 9, 2002, defendants filed an answer to LaFauci’s

amended complaint. (Doc. N o . 8 9 ) . LaFauci then filed yet

another amended complaint on April 3 , 2003. (Doc. N o . 9 8 ) . The

defendants moved to dismiss the amended complaint on September 2 ,

2003, (Doc. N o . 1 0 1 ) , and then, on November 1 0 , 2003, moved to

stay discovery pending a ruling on the motion to dismiss. Ten

days later, on November 2 0 , 2003, I issued an order granting in

part and denying in part defendants’ motion to dismiss.

Specifically, I concluded that only Incidents 4 , 5 , 7 , 8 , 9, 1 0 ,

and 11 remained viable.3 I also ordered defendants to file a

motion for summary judgment on or before January 1 5 , 2004.

Like the previous three years, 2003 and the first six months

of 2004 were characterized by yet another round of discovery

disputes, including another series of motions to compel. In

addition, LaFauci filed his third motion for a preliminary

injunction on December 2 9 , 2003. On January 2 3 , 2004, the

Magistrate recommended that this motion be denied. After twice

3 In his May 1 6 , 2000 Report and Recommendation (Doc. N o . 6 ) , Magistrate Judge Muirhead referred to the counts in LaFauci’s complaint, as LaFauci had, as “Incidents.” In the interest of consistency, I will continue to identify the claims as Incidents, rather than as Counts.

-5- moving to enlarge the time to file, defendants moved for summary

judgment on March 1 0 , 2004. (Doc. N o . 1 2 3 ) . Then, in April

2004, LaFauci moved to enlarge the time to object to defendants’

motion for summary judgment.

On July 2 7 , 2004, I held what was originally scheduled as

the final pretrial conference. At that hearing, I removed the

case from the trial list pending a ruling on the defendants’

motion for summary judgment, and clarified that Incident 3 had

not been dismissed in full, and thus remained a viable claim. I

also ordered LaFauci to file his objection to defendants’ motion

for summary judgment no later than September 2 7 , 2004, and

ordered defendants to file their reply no later than October 2 7 ,

2004. On October 1 8 , 2004, LaFauci filed his objection to

defendants’ motion for summary judgment. (Doc. Nos. 263 & 2 6 4 ) .

Finally, on December 5 , 2004, defendants’ filed their reply to

LaFauci’s objection. (Doc. N o . 2 7 0 ) . This Memorandum and Order

addresses the issues raised in these motions.4

4 Three other motions are also ripe for review. LaFauci’s Motion Requesting for Copies of Any Kinds of Documentation of Any Internal Investigations That Involved Named Defendants in This Complaint With Other Inmates (Doc. N o . 265) is denied. The remaining motions, defendants’ Motion for Clarification and Enlargement of Time (Doc. N o . 267) and Motion for Enlargement of

-6- II. BACKGROUND5

The events giving rise to the Incidents in LaFauci’s

complaint occurred on several occasions between May 1 6 , 1997 and

January 1 6 , 1998. At the heart of LaFauci’s complaint is his

allegation that while he was incarcerated at the New Hampshire

State Prison in Concord, prison officials engaged in a concerted

effort to harass, abuse, and on several occasions, assault him.

LaFauci complains that defendants’ actions denied him access to

the courts, in violation of the First and Fourteenth Amendments,

based on the alleged retaliatory actions described in Incidents

3 , 4 , 5 , and 7 through 1 1 . He also charges that the conduct of

prison officials and other inmates described in Incidents 4 , 5 ,

and 10 violates the Eighth Amendment’s prohibition against cruel

and unusual punishment.

A. Incident 3 : Retaliation Claim

In Incident 3 , LaFauci alleges that on May 1 6 , 1997,

Time from November 1 7 , 2004 to December 3 , 2004 (Doc. N o . 269) are moot. 5 The facts are described in the light most favorable to LaFauci, the non-movant. See Navarro v . Pfizer Corp.,

0 , 93-4 (1st. Cir. 2001)(explaining the operation of Fed. R. Civ. P. 56)(citation omitted).

-7- Corrections Officer (“C.O.”) John Eichhorn denied him access to

the law library and issued him a disciplinary report for

violation of Rule 14B (insubordination to a staff member) and

Rule 56B (lying or providing false or misleading information to a

staff member). LaFauci charges that the disciplinary reports

were unwarranted and, in support of this charge, points out that

he was later found not guilty of these violations. LaFauci also

complains that on June 2 2 , 1997, Eichhorn verbally harassed him,

and, later the same day, told him that he would receive a

disciplinary ticket for violating Rule 31B (failing to stand for

count, interfering with the taking of count, or being out of

place for count). According to LaFauci, these actions were taken

to “punish” him for filing a lawsuit, LaFauci v . Brodeur, 97-47-

J D , against several prison officials.

B. Incident 4 : Retaliation and Eighth Amendment Claim

LaFauci alleges in Incident 4 that he was assaulted in

violation of the Eighth Amendment’s prohibition on cruel and

unusual punishment, and that defendants retaliated against him

for filing suit against them. He charges that on June 2 7 , 1997,

defendants moved him from the South Unit to the H-Building, where

he was attacked and beaten by four other inmates. In particular,

-8- he states that when he placed his belongings in his new room, a

black inmate approached him and said, “This is a black man’s

room.” After LaFauci explained that he was newly assigned to the

room, four black inmates jumped him and physically assaulted him,

resulting in a fractured right hand. His injuries were

photographed by Corporal William Wilson, and he was sent to

Concord Hospital for treatment. On June 3 0 , 1997, LaFauci was

examined by an orthopedic surgeon, D r . James Forbes, M.D., who

fitted him with a cast. LaFauci suggests that Lieutenant Daniel

Torres knew that he would be assaulted upon his arrival at the

new room in the H-Building.

LaFauci next claims that on July 3 , 1997, C.O. Ken Gorski

and C.O. Lee Morrison called him names and threatened to hang him

with bedsheets, and that Morrison threw some of LaFauci’s legal

work in the toilet. According to LaFauci, the following day,

July 4 , 1997, C.O. Arthur Locke called him a “nigger lover” and

made comments “of a sexual nature” about him. He also complains

that on July 7 , 1997, Eichhorn taunted him while he was in the

shower, shouting “”HA! HA! HA! HA! I got you moved out of the

South Unit!,” and banging on the shower window. Four days later,

Eichhorn came to LaFauci’s Special Housing Unit (“SHU”) and

-9- yelled that he was going to “harass and abuse” him. One week

later, on July 1 4 , 1997, C.O. Charles Boyajian and C.O. Neil

Smith asked LaFauci if he wanted to go to the law library, but

then denied him access to his legal work. LaFauci later received

a disciplinary ticket for violating Rule 43B (conduct which

disrupts or interferes with the security or orderly operation of

the institution), but was not permitted to call witnesses to the

July 2 3 , 1997 disciplinary hearing on this matter. Two days

later, on July 1 6 , 1997, Locke “mentally assaulted” LaFauci,

denied him a shower, and would not let him leave his cell. These

actions, LaFauci claims, were retaliation against him for filing

LaFauci v . Brodeur.

C. Incident 5 : Retaliation and Eighth Amendment Claims

In Incident 5 , LaFauci alleges both retaliation and an

Eighth Amendment violation. Here, LaFauci maintains that on July

2 8 , 1997, C.O. Shawn O’Neil and C.O. Smith asked LaFauci if he

was going to the law library. When LaFauci said yes, O’Neil took

LaFauci’s legal work from him because he [O’Neil] wanted to

review i t . When LaFauci entered the law library, O’Neil and

Smith slammed the door behind him, locked the door, and took his

legal work before going back down the stairs. A short time later

-10- C.O. Lee Morrison came to the window of the library, and while

LaFauci watched, took some of his legal documents, tore them u p ,

and laughed while doing s o . LaFauci called for Unit Manager

Walter Davies to explain Morrison’s conduct, but C.O. Christopher

Walters arrived first and told LaFauci to shut u p . Soon

thereafter, Davies arrived and as LaFauci was explaining his

mistreatment, six correctional officers, including C.O. Eric

Denis, O’Neil, Smith, Lee Morrison, and C.O. Shelton Fitton,

joined Davies at the library.6 They slammed the door, turned off

the surveillance camera, and verbally harassed him. When LaFauci

protested, O’Neil told him to turn around and kneel on the floor,

and as he did s o , O’Neil hit him across the back of his head,

neck, and shoulders. The other officers then jumped on his back,

knocking him into a small table and then to the floor, causing

his nose and mouth to bleed. LaFauci was then hog tied and taken

back to his cell and left, face down, for about 25 minutes.

While he was still hog tied in his cell, Smith jumped on his

back, choked him, and forced his fingers into LaFauci’s ears.

6 C.O. Fitton was not named as a defendant in the original complaint. LaFauci seeks to add him as a defendant in the amended complaint (Doc. N o . 9 8 ) . See Am. Compl. ¶ 101.

-11- Smith then left LaFauci on the floor of his cell, handcuffed and

bleeding from the nose and mouth. A short time later Nurse Brad

Bowen entered LaFauci’s cell and removed the handcuffs, but

failed to provide any medical treatment for the bruises,

scratches, red blotches, and dizziness that resulted from the

assault.

Then, very early in the morning of July 3 1 , 1997, C.O. Brett

Morrison kicked the glass window on the day room and shouted,

which woke him up and “inflicted unreasonable noise physically

abusing and mentally harassing” him.

D. Incident 7 : Retaliation Claim

In Incident 7 , LaFauci charges that on September 1 2 , 1997,

C.O. Jay Hislop issued him disciplinary tickets for violating

rules 14B (insubordination to a staff member) and 40B (failing to

perform work or other assignment as ordered by a staff member).

The incident occurred in the kitchen where Hislop ordered LaFauci

to shuck ten bags of corn. LaFauci completed one bag, and was

starting the second, when Hislop told him that he could not sit

down while shucking corn. At this point, C.O. Thomas Casey made

a sarcastic comment and jokingly told Hislop that they should

take LaFauci out back and “kick his ass.” Hislop then ordered

-12- LaFauci to lift a 150-pound pan and LaFauci refused, explaining

that back and neck problems prevented him from doing s o . Hislop

then said he was going to make sure LaFauci got 50 extra hours of

work and verbally abused him by calling him names. LaFauci

approached Major Joseph Guimond and tried to explain that Hislop

was harassing him. Guimond ordered LaFauci to leave the kitchen

and return to his unit immediately. LaFauci claims that the

disciplinary tickets resulting from this incident were issued in

retaliation for his refusal to lift the pan and complete the corn

shucking task. He also complains that at the disciplinary

hearing for this matter, held on September 2 3 , 1997, he was not

permitted to call Major Guimond as a witness, another act of

retaliation.

E. Incident 8 : Retaliation Claim

On November 1 8 , 1997, when LaFauci was walking into the

dining hall, C.O. Anthony Dragon shouted at him to pin his

identification badge to his coat, where it would be visible,

rather than to his shirt. LaFauci first claims that his

identification badge was pinned to his shirt rather than his coat

because earlier in the day he was walking outside without a coat

and, second, claims that the badge was in fact visible to Dragon.

-13- In response to Dragon’s order, LaFauci stated, “it’s right here,

open your eyes,” or words to that effect, and then walked away

muttering, “I’m not in the army.” Dragon then issued him

disciplinary tickets for violating rules 14B (insubordination to

a staff member) and 39B (failing to obey . . . [an] order of a

staff member). LaFauci claims Dragon’s actions were retaliatory.

LaFauci also claims that at the December 1 , 1997 hearing on

this matter, the Hearing Officer, Lester Eldridge, “changed the

face value of the ticket” and refused to record or videotape the

disciplinary hearing. He further claims that Unit Manager John

Martin improperly placed a letter describing this incident in

LaFauci’s offender folder without providing him with a copy of

the letter. LaFauci maintains that Martin and Eldridge intended

their actions to punish him for filing the lawsuit LaFauci v .

Brodeur.

F. Incident 9: Retaliation Claim

On December 3 , 1997, C.O. Charles Boyajian verbally harassed

LaFauci and put him in the J-tier day room on a precautionary

watch, where he was deprived of water, clothing, and use of the

bathroom. The day room smelled of urine, the floors were

bloodstained, and the window frames had human feces in their

-14- cracks. LaFauci contends that Boyajian was retaliating against

him for filing the lawsuit, LaFauci v . Brodeur.

Likewise, on either December 6 or December 8 , 1997, C.O. Ken

Gorski and C.O. A.J. Williams entered LaFauci’s cell and took his

legal work, approximately 100 pages of “white copies” of inmate

request slips, telling him they were the state’s property.7

Gorski and Williams also called him degrading names, including

“skinner,” behind his back to other inmates.

Then on December 1 0 , 1997, LaFauci received a disciplinary

ticket for violating Rule 56B (lying or providing false or

misleading information to a staff member). Walter Davies

“interviewed” this ticket and refused to allow LaFauci to call

another inmate as a witness at the hearing held on December 1 7 ,

1997, and also refused to videotape or record the proceedings.

These actions, LaFauci alleges, were also retaliatory.

G. Incident 1 0 : Retaliation and Eighth Amendment Claims

The events of Incident 1 0 , in which LaFauci claims abuse and

harassment in violation of the Eighth Amendment, as well as

retaliation, commenced on December 1 6 , 1997. On that date

7 The white copies of inmate request slips and grievance forms are the copies retained by the inmate.

-15- LaFauci was moved out of D-Pod and into C-Pod. Immediately after

the move, C.O. Jay Hislop, C.O. Joel Robinson, and C.O. Arthur

Locke forced him to walk across the prison yard on the way to see

Dr. Forbes, whose office is located outside the prison facility.

LaFauci claims this walking caused pain and swelling in his knee.

The following day, after LaFauci asked to be removed from his pod

because he feared being brutally assaulted, C.O. Thomas Casey

escorted him out of his cell, but forced him climb stairs and

walk without crutches, resulting in additional pain and swelling

in his knee.

On December 2 1 , 1997, when LaFauci returned to his cell from

the shower, he discovered that inmate Thomas McQueen had put

water in the plastic bag containing LaFauci’s legal work. Prison

officials, particularly C.O. Michael Poulicakos to whom LaFauci

reported the incident, took no action. Later that day, after

LaFauci dried off his papers, inmate McQueen threw a bucket of

water into LaFauci’s cell, soaking his bedding and his legal

work. In response, LaFauci said it was a good thing he [LaFauci]

was behind bars, because he would have “beat the shit out of

. . . Thomas McQueen and someone should.” LaFauci was later

informed that McQueen had been removed from the tier and received

-16- a disciplinary ticket for his actions.

H. Incident 1 1 : Retaliation Claim

Finally, in Incident 1 1 , LaFauci again alleges that several

prison officials abused, harassed, and assaulted him in

retaliation for filing LaFauci v . Brodeur. He claims that on

December 2 2 , 1997, C.O. Mark Pistone and Corporal Kevin Keegan

pushed the steel door of his cell into him, resulting in bruises

to his body. A short time later, C.O.s Brett Morrison, Lee

Morrison, Pistone, and Cpl. Keegan removed LaFauci from his cell

and forced him to walk without his crutches, down three flights

of stairs, and across the yard to the Special Housing Unit. The

next day, when LaFauci asked that the telephones be turned on in

the day room, Brett Morrison harassed him and later issued him a

disciplinary ticket because LaFauci said that someone should beat

up inmate McQueen.8 LaFauci claims that in actuality, Morrison

took this action because LaFauci named him as a defendant in

LaFauci v . Brodeur. At the December 3 0 , 1997 disciplinary

hearing on this matter, Keegan admitted pushing LaFauci but the

Hearing Officer, Raymond Guimond “covered up” Keegan’s statement

8 The factual allegations in Incident 10 appear to overlap the allegations in Incident 1 1 .

-17- and imposed on LaFauci an improper punishment. Defendants also

refused to videotape or record this proceeding.

III. STANDARD OF REVIEW

Summary judgment is appropriate 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 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.,

4 2 , 250 (1986). A material fact is one that affects the

outcome of the 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, 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 demonstrate the absence of a genuine issue of

-18- material fact.” Celotex Corp. v . Catrett,

1 7 , 323

(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 burden

of proof, 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)(citing Celotex,

; Anderson,

). Neither conclusory allegations, improbable inferences, or

unsupported speculation are sufficient to defeat summary

judgment. See Carroll v . Xerox Corp.,

3 1 , 236-37 (1st

Cir. 2002).

IV. ANALYSIS

Following my ruling on the defendants’ motion to dismiss

(Doc. N o . 101) and the pretrial hearing held on July 2 7 , 2004,

eight of LaFauci’s claims remained viable: Incidents 3 , 4 , 5 , 7 ,

8 , 9, 1 0 , and 1 1 . Defendants now argue that each of these

remaining claims must be rejected. First, defendants urge,

LaFauci has failed to exhaust all available administrative

remedies as is required by the PLRA, and his claims must

-19- therefore be dismissed.9 Alternatively, they submit that: (a)

the defendants are entitled to qualified immunity with respect to

all of the remaining claims; (b) LaFauci has not alleged

sufficient facts to support his claims that the defendants took

adverse actions against him to punish him for filing the lawsuit

LaFauci v . Brodeur; (c) LaFauci cannot prove his Eighth Amendment

claims; and (d) LaFauci is not entitled to recover mental or

emotional damages without a showing of physical injury or with

merely a showing of de minimis injury.

Even assuming, without deciding, that LaFauci properly

complied with NHSP’s Administrative Grievance procedures and

therefore exhausted all available administrative remedies as

required by the PLRA, defendants are nevertheless entitled to

summary judgment as to the Eighth Amendment and retaliation

claims in Incidents 3 , 4 , 7 , 8 , 9, 1 0 , and 1 1 . LaFauci has

9 Defendants actually make two separate, though related arguments. First, they contend that LaFauci’s claims should be dismissed with prejudice because, by failing to comply with the NHSP grievance procedure set forth in PPD 1.16 (eff. Oct. 1 , 2002), he failed to exhaust his administrative remedies within 30 days. Alternatively, defendants argue that LaFauci’s claims should be dismissed without prejudice because he has not demonstrated that he has yet to exhaust his administrative remedies and therefore has not properly complied with the version of PPD 1.16 that was in effect in 1997 and 1998.

-20- failed to demonstrate the existence of any genuine issue of

material fact with respect to these claims. LaFauci has,

however, demonstrated that genuine issues of material fact exist

as to the Eighth Amendment claim described in Incident 5 .

A. The Retaliation Claims: Incidents 3, 5, and 7-11

To prevail on his retaliation claims, LaFauci must show

that: (1) he had a First Amendment right; (2) the defendants took

adverse action against him; (3) with the intent to retaliate

against him for executing his First Amendment rights; and (4) the

retaliatory acts caused the injury for which he is seeking

compensation. See McDonald v . Steward,

(5th

Cir. 1998); Reid v . Brodeur,

, *6 (unpublished

order)(D.N.H. Feb. 1 4 , 2001).

In the typical case, direct evidence of a retaliatory state

of mind is not available to the plaintiff. Ferranti v . Moran,

8 8 , 892 (1st Cir. 1980); McDonald v . Hall,

6 ,

18 (1st Cir. 1979). Nevertheless, in some instances, an

inference of retaliation may be warranted from the chronology of

events recited in the complaint.

Such evidence may include

temporal proximity between a lawsuit filed against prison

officials and allegations of destruction of the inmate’s legal

-21- work and unprovoked physical abuse by prison employees. See

Colon v . Coughlin,

(2d Cir. 1995) (noting that

temporal proximity between inmate’s lawsuit and disciplinary

action may serve as circumstantial evidence of retaliation);

Shabazz v . Cole,

7 7 , 197 (D. Mass.

1999)(describing evidence sufficient to infer retaliatory

intent). At the summary judgment stage, however, a bare

allegation of temporal proximity ordinarily will not be

sufficient by itself to prove improper motivation if the

defendant has provided a legitimate explanation for the

challenged action. See Layne v . Vinzant,

6 8 , 476 (1st

Cir. 1981)(“[t]he mere chronology alleged in the complaint, while

sufficient to withstand a motion to dismiss, cannot get plaintiff

to the jury once defendants have produced evidence of a

legitimate reason” for their conduct); McDonald,

-

19.

LaFauci has alleged two classes of retaliatory claims, one

based on alleged procedural deficiencies, the other based on

substantive violations. As to each class of claims, defendants

contend that they have offered a legitimate, non-retaliatory

explanation for the alleged retaliatory acts. They further argue

-22- that LaFauci has failed to produce sufficient evidence to support

his claim that defendants acted with a retaliatory motive. As I

explain with respect to each class of claims, I agree.

1. Retaliation Claims Based Upon Disciplinary Charges and Hearing Procedures

LaFauci outlines four categories of procedural defects and

charges that these defects were in fact retaliatory actions by

prison officials. In particular he alleges that: (1) on three

occasions, in Incidents 4 , 7 , and 9, he was not permitted to call

witnesses to disciplinary hearings; (2) on three other occasions,

in Incidents 8 , 9, and 1 1 , his disciplinary hearings were not

recorded or videotaped; (3) once, in Incident 7 , a Hearing

Officer changed LaFauci’s words; and (4) once, in Incident 8 , the

Hearing Officer “changed the face value of the ticket.”

Defendants argue that they are entitled to summary judgment

on these retaliation claims because LaFauci has failed to rebut

their legitimate, non-retaliatory explanations for their

decisions not to allow LaFauci to call witnesses to disciplinary

hearings or to have minor disciplinary hearings videotaped or

recorded.

-23- It is well-settled that “[p]rison disciplinary proceedings

are not part of a criminal prosecution, and the full panoply of

rights due a defendant in such proceedings does not apply.”

Wolff v . McDonnell,

(1974). Wolff established

the standards for adequacy of prison disciplinary procedures.

Under Wolff, “a prisoner facing a disciplinary hearing that may

result in the loss of a liberty interest must 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; (3) a written statement by the fact

finder of the evidence relied on and the reasons for the

disciplinary action.’” Smith v . Mass. Dep’t of Corr.,

(1st Cir. 1991)(quoting Superintendent Mass. Corr.

Inst. v . Hill,

(1985)). The Court later

clarified its holding in Wolff, explaining that prison officials

bear the burden of justifying the denial of a witness request by

offering an explanation, either at the hearing or in connection

with subsequent litigation. See Ponte v . Real,

9 1 ,

497-99 (1985). An inmate’s right to call witnesses to a

disciplinary hearing is therefore qualified, not absolute, as is

-24- an inmate’s right to cross-examine witnesses. See Wolff,

.

In the New Hampshire state prison system, disciplinary

hearings are governed by Policy and Procedure Directive (“PPD”)

5.25. See Ex. K , IV. D. to Def.’s Motion for Summ. J. (“Ex.”).

According to PPD 5.25, inmates who want to call witnesses must

provide the Hearing Officer with a list of the witnesses’ names

at least twenty-four hours before the hearing.

The Hearing

Officer is not required, however, to hear testimony or accept

evidence that is “irrelevant, unnecessary, cumulative, or

untimely.”

Furthermore, “witnesses may also be excluded for

institutional safety or correctional goals.”

The Hearing

Officer is permitted, however, to accept offers of proof as

evidence.

If witnesses are excluded, the reasons for the

exclusion must be in writing and on the record.

Finally,

under PPD 5.25, only disciplinary hearings involving major

offenses (“A” level) are recorded, and the tapes are retained for

6 months.

Minor disciplinary hearings (“B” and “C” levels)

are not recorded.

a. Requests to Call Witnesses to Hearings

LaFauci asserts that on three occasions he sought to call

-25- witnesses at disciplinary hearings. In Incident 4 , however,

LaFauci failed to submit a written request with the witnesses’

names, in violation of the hearing procedure outlined in PPD

5.25. See Ex. B . In Incident 7 , LaFauci properly submitted a

request to call Major Guimond as a witness. However, as the

record reflects, the Hearing Officer denied his request because

Guimond did not witness the incident between LaFauci and officers

Hislop and Casey. Because LaFauci did not explain why he

requested Major Guimond’s testimony, the denial of his request to

call Guimond as a witness was not improper. See Ex. C & D.

Finally, in Incident 9, LaFauci asked to have inmate Sinhedeth

called as a witness. This request was denied because, as Unit

Manager Walter Davies explained, Sinhedeth did not speak English

well. Instead, Davies interviewed Sinhedeth and took his

statement; in this offer of proof Sinhedeth explained that he did

not observe any officers verbally harassing LaFauci. See Ex. E .

As with Guimond’s testimony, Sinhedeth’s testimony would not have

been relevant and was therefore properly excluded. Thus, because

in each instance defendants presented a legitimate, uncontested

explanation for their actions and LaFauci has failed to produce

any countervailing evidence of retaliatory motive, defendants are

-26- entitled to summary judgment on LaFauci’s claims that they

retaliated against him by refusing his requests to call witnesses

at disciplinary hearings.

b. Request to Videotape or Record Hearing

Likewise, LaFauci has not demonstrated that defendants’

denial of his request to have minor disciplinary hearings

recorded or videotaped was improperly motivated. See

Superintendent Mass. Corr. Inst.,

; Ex. K , PPD

5.25 IV., D., 8 . Incidents 8 , 9, and 11 each involved hearings

for minor offenses. See Ex. E , F, H . Accordingly, defendants’

refusal to videotape or record these hearings was in compliance

with the procedures set forth in PPD 5.25. Without evidence that

defendants elected not to record or videotape the hearings in

order to punish LaFauci for filing suit against them, these

decisions cannot form the basis of a retaliation claim. I

therefore grant defendants’ motion for summary judgment as to the

retaliation claims based on a failure to record the minor

disciplinary hearings in Incidents 8 , 9, and 1 1 .

c. Remaining Procedural Defects

LaFauci’s remaining procedural claims are equally

groundless. He charges in Incident 7 that at the disciplinary

-27- hearing, the Hearing Officer “changed [LaFauci’s] words.”

LaFauci has not, however, offered any evidence to indicate what

he originally said, what alteration the Hearing Officer

purportedly made, or what impact this alteration had on the

outcome of the hearing. Similarly, in Incident 8 LaFauci claims

that the Hearing Officer “changed the face value of the ticket.”

He appears to claim that he never admitted sarcastically asking

C.O. Dragon if he was blind when Dragon ordered him to display

his identification badge on his jacket. Again, though, LaFauci

has not presented any evidence that the outcome of the hearing,

including the guilty finding, would have been different but for

this alleged change. I therefore conclude that defendants are

entitled to summary judgment on these retaliation claims as well.

2. Substantive Retaliation Claims

In addition to the retaliation claims based on alleged

defects in the disciplinary hearing procedures, LaFauci also

claims in Incidents 3 , 5 , and 7 through 11 that he was harassed,

beaten, and abused by a number of prison officials in retaliation

for filing the lawsuit, LaFauci v . Brodeur. The defendants do

not challenge LaFauci’s assertion that he has a First Amendment

right to access the courts. Rather, they contend that he cannot

-28- demonstrate either that adverse actions were taken against him

with the intent to retaliate, or that these alleged retaliatory

acts caused the injuries for which he now seeks compensation.

See McDonald,

. Defendants are correct.

Even construing LaFauci’s pro se complaint and other filings

liberally, as I must, see Estelle v . Gamble,

7 , 106

(1976), he has not recited a chronology of events sufficient to

warrant an inference that the conduct of prison officials was

motivated by a desire to punish him for filing a lawsuit against

them. LaFauci’s complaint merely states that the adverse actions

taken against him occurred “within days” after he filed his

complaint in LaFauci v . Brodeur. The amended complaint in

LaFauci v . Brodeur was filed on May 1 3 , 1997, and served on

defendants on June 2 4 , 1997 with the Magistrate’s report. Yet,

only two of the 12 allegedly false and retaliatory disciplinary

reports identified in LaFauci’s complaint were issued within two

weeks of defendants being served with the complaint; the other 10

were issued between two and six months after the complaint was

served. This chronology of events thus does not establish a

close temporal proximity between the filing of the lawsuit and

the adverse actions taken by defendants. See Ferranti, 618 F.2d

-29- at 892; McDonald,

8 .

More damaging to LaFauci’s claims, though, is his failure to

offer any additional evidence that defendants took adverse

disciplinary actions with an intent to retaliate. Defendants

have submitted evidence that each of the alleged retaliatory

disciplinary charges were based on actionable infractions. See

Graham v . Henderson,

5 , 79 (2d Cir. 1996)(summary

judgment appropriate if defendants show disciplinary action would

have been taken even in the absence of inmate’s protected

conduct); Shabazz,

(same). That LaFauci

does not believe he was guilty of these infractions is

insufficient evidence of retaliation where, as here, credible

evidence supports the Hearing Officers’ conclusions.

Because there is no genuine issue of material fact as to

these claims, I grant summary judgment with respect to LaFauci’s

retaliation claims as detailed in Incidents 3 , 5 , and 7 through

11.

B. The Eighth Amendment Claims: Incidents 4 , 5, and 10

The crux of LaFauci’s allegations in Incidents 4 , 5 , and 10

is that he was subjected to a nearly constant pattern of

unprovoked harassment, abuse, and mistreatment by virtually every

-30- corrections official he encountered. He specifically complains

in Incident 5 and 1 0 , that prison officials intentionally

assaulted him and, in Incident 4 , put him in a situation where

other prisoners could assault him, and that these actions

violated the Cruel and Unusual Punishment Clause of the Eighth

Amendment. Defendants counter that LaFauci’s allegations of

Eighth Amendment violations are no more than “bare allegations,”

insufficient to survive a motion for summary judgment. They

charge that LaFauci has adduced no evidence to support these

claims.

An Eighth Amendment violation in the prison context requires

circumstances that are objectively serious, so as to deprive an

inmate of the “minimal civilized measures of life’s necessities,”

Rhodes v . Chapman,

3 7 , 347 (1981), and a showing that

the prison official who caused the deprivation had a sufficiently

culpable state of mind.” Wilson v . Seiter,

9 4 , 297

(1991).

1. Incident 4 - Failure to Protect Claim

LaFauci charges that in Incident 4 , prison officials placed

him in a housing unit knowing he would immediately be beaten by

other inmates.

-31- “The Eighth Amendment imposes ‘a duty . . . to protect

prisoners from violence at the hands of other prisoners.’”

Skinner v . Cunningham,

, *5 (D.N.H. Aug. 2 0 ,

2003)(quoting Farmer v . Brennan,

(1994))(unpublished opinion). That duty requires that prison

officials not be “deliberately indifferent to the risk to

prisoners of violence at the hands of other prisoners.” Burrell

v . Hampshire County,

, 7 (1st Cir. 2002)(citing to

Farmer,

3 3 ) . However, not every injury suffered by

a prisoner at the hands of a fellow inmate gives rise to an

Eighth Amendment claim. Giroux v . Somerset County,

8 ,

32 (1st Cir. 1999). Two requirements must be met in order for a

prison conditions complaint to state a violation of the Eighth

Amendment.

First, the alleged deprivation of adequate

conditions must be objectively serious. “[T]he inmate must show

that he is incarcerated under conditions posing a substantial

risk of serious harm.” Farmer,

. Second, the

prison official involved must have had “a sufficiently culpable

state of mind,” Wilson, 501 U.S. at 299, usually described as

deliberate indifference to the inmate’s health or safety.

Farmer,

. A prison official manifests

-32- “deliberate indifference” if he or she knew o f , and disregarded

an excessive risk to the inmate’s health or safety.

.

LaFauci thus must first establish that defendants knew that when

they moved him to the H-Building, they were subjecting him to a

substantial risk to his health or safety. See

;

Giroux, 178 F.3d at 3 2 . He then must also establish that, in

moving him to the H-Building, defendants failed to respond

reasonably to those risks. See Farmer,

; Burrell,

.

LaFauci’s failure to protect claim fails under this test

because he is unable to produce sufficient evidence to support

his contention that defendants acted with a culpable mental

state. The only evidence LaFauci has presented on this point is

his unsubstantiated assertion that prior to being moved from the

South Unit to the H-Building, he asked L t . Torres why he was

being moved, and Torres responded that he would “find out” when

he arrived at the H-Building. From this, LaFauci appears to

infer that Torres knew LaFauci would be assaulted upon his

arrival. He has not produced any evidence, however, that Torres,

or any other defendant for that matter, was aware of facts from

which they could determine that a serious risk of harm existed

-33- for LaFauci. Because LaFauci has not demonstrated that any

defendant was deliberately indifferent to his health or safety,

his claim fails under the second requirement of the Farmer test.

I thus grant defendants’ motion for summary judgment as to this

Eighth Amendment claim.

2. Incident 10 - Cruel and Unusual Punishment Claim

In Incident 1 0 , LaFauci alleges that several corrections

officers roughly handcuffed him and forced him to walk across the

prison yard, causing pain and swelling to his knee, and that the

following day C.O. Casey forced him to climb several flights of

stairs and walk without his crutches, resulting in additional

pain and swelling in his knee. He asserts that these actions,

done with malicious intent, were in violation of the Eighth

Amendment’s prohibition on cruel and unusual punishment.

Where, as here, prison officials stand accused of using

excessive physical force in violation of the Eighth Amendment’s

prohibition on cruel and unusual punishment, the core inquiry is

“whether force was applied in a good-faith effort to maintain or

restore discipline, or maliciously and sadistically to cause

harm.” Hudson v . McMillian,

, 6-7 (1992)(extending

Whitley v . Albers,

(1986)). To prevail, an inmate

-34- need not demonstrate “significant injury.”

However, not

every “malevolent touch by a prison guard gives rise to a federal

cause of action,” and one de minimis use of physical force is

shielded from constitutional scrutiny unless the use of force is

not “repugnant to the conscience of mankind.” Hudson,

(internal citations omitted).

Again, LaFauci has failed to present evidence sufficient to

warrant the conclusion that prison officials, including C.O.

Casey applied force “maliciously or sadistically,” so as to cause

harm, rather than “in a good faith effort to maintain or restore

discipline.” Hudson,

. In fact, in response to

LaFauci’s allegations, defendants have presented evidence that

LaFauci did not have a medical pass that would permit him to use

crutches or excuse him from walking. See Ex. O (Affidavit of

Thomas Casey). Moreover, C.O. Casey recalled that because

LaFauci complained of pain in his knees, he and C.O. Jordan

allowed LaFauci to stop when he needed to and made no attempt to

hurry him.

Casey explained that they let LaFauci take all

the time he needed.

The record is thus completely devoid of

any evidence that any force used by Casey and Jordan was applied

maliciously, sadistically, or was “repugnant to the conscience of

-35- mankind.” Hudson,

. I therefore grant summary

judgment on this claim.

3. Incident 5 - Cruel and Unusual Punishment Claim

Unlike Incident 1 0 , the allegations in Incident 5 require

closer scrutiny. Here, LaFauci alleges that several corrections

officers took him to the prison’s law library, turned off the

surveillance camera and savagely beat him, without provocation,

both behind the locked doors of the library and later in his

cell. As with his other Eighth Amendment claims, defendants

argue that they are entitled to summary judgment on Incident 5

because LaFauci failed to present sufficient evidence to

demonstrate that he exhausted all available administrative

remedies as required by the PLRA. Defendants also argue that

LaFauci cannot prove his claim and, in any event, they argue that

they are entitled to qualified immunity. I disagree.

a. Exhaustion of Available Administrative Remedies

As noted above, defendants first move for summary judgment

by arguing that LaFauci failed to exhaust administrative remedies

available to him through the NHSP grievance system. The PLRA

provides in relevant part that “[n]o action shall be brought with

-36- respect to prison conditions under section 1983 . . . by a

prisoner confined in any jail, prison, or other correctional

facility until such administrative remedies as are available are

exhausted.” 42 U.S.C. § 1997e(a)(Supp. 2002). In Porter v .

Nussle, the United States Supreme Court held that “the PLRA

exhaustion requirement applies to all inmate suits about prison

life, whether they involve general circumstances or particular

episodes, and whether they allege excessive force or some other

wrong.”

(2002); see Medina-Claudio v .

Rodriguez-Mateo,

1 , 34 (1st Cir. 2002).

The NHSP provides administrative remedies for inmate claims

related to prison conditions. The prison’s remedial scheme

requires inmates to first present any complaint that cannot be

resolved orally by filing an “inmate request slip.” See LaFauci,

N o . 99-253-M,

, at * 3 . An inmate must then appeal

an adverse ruling with respect to an inmate request slip by

filing a grievance with the Warden. See

If the inmate is

not satisfied with the Warden’s response, a final appeal may be

filed with the Commissioner. See

Typically, an inmate’s

complaint is not administratively exhausted until this process,

following the “chain of command,” has been completed. There is

-37- an exception to the “chain of command” rule when the inmate

believes that he is subject to imminent injury or harm. Under

those circumstances, “the inmate may directly address the Warden

or the Commissioner, even if the inmate has not previously filed

an inmate request slip.”10

at *3 n.1 (citing Inmate Manual,

section D(3)).

Here, LaFauci filed a grievance form with the Commissioner

on July 2 8 , 1997, taking advantage of the emergency procedure.11

Pl.’s Ex. N-24. It was reasonable for LaFauci to address his

initial grievance directly to the Commissioner rather than Unit

Manager Davies, who witnessed and participated in the assault, as

LaFauci could reasonably have believed that addressing an inmate

request slip to Davies would have subjected him to additional

injury or harm. In response, the Commissioner’s Office directed

LaFauci to write to the Warden. Pl.’s Ex. N-24. On September 3 ,

1997, LaFauci sent an inmate request slip to Warden Cunningham,

noting the Commissioner’s instruction. Pl.’s Ex. N-26. In this

10 It is not clear from the record if a special form must be used to file an emergency grievance. 11 The following day, LaFauci sent a letter to the Commissioner’s Office, providing additional details of the incident in the law library. See Pl.’s Ex. N-26.

-38- request slip, LaFauci indicated that he had contacted the

Warden’s office on several occasions, but had never received an

answer.

The Warden apparently investigated LaFauci’s

allegations and on October 6, 1997, informed LaFauci that he was

satisfied that his staff had “acted appropriately.”

Finally, on October 2 2 , 1997, in an effort to properly comply

with the administrative grievance procedure, LaFauci sent an

inmate request slip to the Unit Supervisor, Sgt. O’Brien. Pl.’s

Ex. N-27. In the request slip, LaFauci explained his efforts to

comply with the grievance procedure and noted that he had

previously contacted O’Brien’s office about the incident but had

received no reply.

Two days later, O’Brien responded by

asking LaFauci if he had complied with the grievance system but

did not indicate that he had conducted any investigation into the

incident.

The record thus demonstrates that LaFauci properly complied

with the NHSP grievance system as to this claim, as is required

by the PLRA. After being assaulted by the corrections officers

on his Unit, he took advantage of the emergency exception and

reasonably addressed his grievance to the Commissioner’s Office.

Then, in compliance with the Commissioner’s clear and unambiguous

-39- direction, LaFauci sent an inmate request slip to the Warden, who

apparently investigated the allegations and found them

groundless. Finally, in an effort to be sure he properly

complied with the system, LaFauci returned to the Unit Supervisor

and filed an inmate request slip. While proper compliance with

the grievance system makes sound administrative sense, the

procedures themselves, and the directions given to inmates

seeking to follow those procedures, should not be traps designed

to hamstring legitimate grievances. I therefore find LaFauci

exhausted all available administrative remedies, and proceed to

evaluate the merits of his claim.

b. Merits of LaFauci’s Cruel and Unusual Punishment Claim

As with Incident 1 0 , LaFauci must demonstrate that force was

applied by the corrections officers “maliciously and sadistically

for the very purpose of causing harm,” rather than “in a good

faith effort to maintain or restore discipline.” Hudson,

. In making this determination, the U.S. Supreme

Court has instructed trial courts to evaluate “the need for

application of force, the relationship between that need and the

amount of force used, the threat reasonably perceived by the

-40- responsible officials . . . and any efforts made to temper the

severity of a forceful response.”

at 7 (quoting Whitley,

)(internal quotation marks omitted).

LaFauci claims that when C.O. O’Neil and C.O. Smith took him

to the library on July 2 8 , 1997, they confiscated his legal work,

and locked him in the library, after which C.O. Morrison tore up

some of his legal work while LaFauci watched. At this point,

LaFauci claims, he began to call for Unit Manager Davies to come

to the library, but C.O. Walters responded first and joined

Morrison. Davies was the next to reach the library, and as

LaFauci tried to explain Morrison’s actions, several other

corrections officers arrived, entered the library, and brutally

assaulted him. According to the incident reports from the

corrections officers, LaFauci was being disruptive in the library

and they needed to use force to subdue him. Not surprisingly,

none of their reports include an account of C.O. Morrison’s

actions. The incident reports also indicate that LaFauci refused

several orders to turn around and kneel down. LaFauci denies

refusing the order and instead alleges that as he was kneeling

down, C.O. O’Neil rushed at him and knocked him to the floor.

-41- There exists, then, a genuine dispute as to the following

material facts: the cause of the disturbance in the library; the

threat reasonably perceived by the officers; the need for six

corrections officers to apply force; and any efforts made to

temper the severity of the forceful response. See Whitley,

. LaFauci has thus presented sufficient evidence to

permit a trial on his claim that the corrections officers acted

“maliciously or sadistically for the very purpose of causing

harm.” Hudson,

. I therefore deny defendants’

motion for summary judgment on this claim.

V. CONCLUSION

For the foregoing reasons, I grant defendants’ motion for

summary judgment (Doc. N o . 123) as to all claims in Incidents 3 ,

4 , 7 , 8 , 9, 1 0 , and 1 1 , and deny it as to Incident 5 . The only

remaining defendants therefore are those involved in Incident 5 :

Eric Denis, Neil Smith, Shawn O’Neil, Christopher Walters, Walter

Davies, Shelton Fitton, and Lee Morrison.

I also deny LaFauci’s motion for internal investigation

reports (Doc. N o . 265) and his motion to strike defendants’

motion for summary judgment (Doc. N o . 2 6 4 ) .

-42- This Memorandum and Order renders moot defendants’ motion

for clarification and enlargement of time (Doc. N o . 267) as well

as their motion for enlargement of time from November 1 7 , 2004 to

December 3 , 2004 (Doc. N o . 2 6 8 ) . The clerk shall enter judgment

accordingly.

SO ORDERED.

Paul Barbadoro United States District Judge

February 2 3 , 2005

cc: Anthony LaFauci, pro se Mary E . Schwarzer, Esq.

-43-