Roy v. Stanley CV-02-555-JD 09/20/05 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Steven J. Roy

v. Civil No. 02-cv-555-JD Opinion No.

Phil Stanley, et a l .

O R D E R

Steven J. Roy, who is incarcerated at the New Hampshire

State Prison, brings civil rights claims under

against Phil Stanley, (former) Commissioner, New Hampshire

Department of Corrections; Jane Coplan, (former) Warden, New

Hampshire State Prison; Greg Crompton, Deputy Warden; and David

O'Brien and Neal Smith, New Hampshire State Prison Investigations

Department. Following preliminary review and approval of the

magistrate judge's report and recommendation, Roy maintains

claims of retaliation in violation of due process against

Crompton, denial of telephone access in violation of due process

against Crompton, Smith, and O'Brien, and a claim of supervisory

liability against Coplan and Stanley. The defendants move for

summary judgment, and Roy objects.

Standard of Review

Summary judgment is appropriate when "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). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record.

See Celotex Corp. v. Catrett,

(1986). A party

opposing a properly supported motion for summary judgment must

present competent evidence of record that shows a genuine issue

for trial. See Anderson v. Liberty Lobby, Inc.,

(1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See i d . at 255.

Background

Before his incarceration, which began in 1993, Roy owned and

operated a company that developed and sold software for debt

collection agencies. After he was incarcerated, the company was

reorganized through bankruptcy proceedings and is being operated

and held in trust for Roy by Attorney Paul Heller. The company,

now known as Premier Software Systems, continues to operate, and

Roy holds a beneficial interest in the company.

The New Hampshire State Prison prohibits an inmate from

running a business during his incarceration. Deputy Warden

Crompton states that while inmates are not permitted to work for

2 compensation related to a business they acquired before their

incarceration, inmates are permitted to communicate with third

parties outside of the prison to the extent necessary to protect

the inmate's property or funds related to a legitimate business

or property interest. Roy states that after he was incarcerated

he "communicated heavily" with his company by telephone until

late in 1994 when the prison discovered his business activity and

began to interfere with his communications.

In 1995, in the course of investigating Roy for possession

of gambling materials, the prison seized some of Roy's business-

related papers, including computer printouts. The computer

printouts seized were actually debt collection software that the

prison mistakenly thought were related to gambling activities.

Roy brought suit in this court, alleging that prison officials

had violated his constitutional rights by seizing his papers.

While the case was pending, the prison imposed a restriction on

Roy that banned him from access to the prison's computers. In

response, Roy added a retaliation claim to his lawsuit. The

parties reached a settlement during trial. As part of the

settlement, the prison returned the computer printouts that had

been seized from Roy's cell and promised not to interfere with

Roy's communications with his company. The ban on Roy's use of

computers remained in place.

3 Warden Coplan reconsidered the computer ban in August of

2000 and decided to lift it. Roy then took several computer

courses in the prison. In September of 2001, Roy was given a job

in the prison law library helping other inmates use computers for

legal research. A few months later, in December of 2001, Roy was

terminated from that work without explanation. He was later told

he was dismissed for security reasons.

Roy filed a grievance in April of 2002 asking "to be removed

from the security blacklist that has prevented me from getting

any meaningful job in the prison." PI. Ex. 1. Deputy Warden

Crompton replied that Roy was restricted from computers. Roy

explained that he had taken computer classes and worked in the

library computer job without incident since the computer ban had

been lifted. Crompton replied: "Based on prosecutor statements

and incidents that you have engaged in in the past, you are

restricted from computers." Def. Ex. 10. The statements and

incidents Crompton refers to were the prison's mistaken belief

in 1995, before the settlement of Roy's first lawsuit, that

computer printouts in Roy's possession were related to gambling.

Roy continued to press the issue of his use of computers. On

October 17, 2002, Crompton responded that all of the issues were

resolved and that "[a]ny previous restrictions are lifted." Def.

Ex. 11. Roy immediately applied for a programming job in the

4 prison.

On October 28, 2002, a contractor conducting random

monitoring of inmates' telephone conversations heard Roy talking

with a customer of his former company about compensating Roy for

his work.1 She believed the conversation showed a violation of

the prohibition against running a business. She disconnected the

call and referred the matter to the prison Investigations

Department. An investigation of Roy's activities was begun. On

October 30, 2002, Supervisor O'Brien requested that the prison

suspend Roy's telephone privileges while the investigation was

pending. Crompton approved O'Brien's request and added a note:

"further, no access to Education or computers." Def. Ex. 12.

Roy filed this suit in December of 2002, alleging, among other

things, that he had been blacklisted from prison employment and

that his telephone use was unconstitutionally restricted.

In April of 2003, the prison concluded, based on the results

of the investigation, that Roy had violated the prohibition

against conducting a business. A formal charge was brought

against him, but because of procedural errors in processing the

disciplinary report, he was found not guilty. The prison

1Although Roy insists that the client's offer was merely charity unrelated to the business services Roy was providing, the court finds his interpretation of the conversation unpersuasive.

5 reinstated Roy's telephone privileges on a limited basis,

allowing communication with his family and his lawyer. He was

allowed to access the computers in the law library but his

computer access was otherwise restricted. Neil Smith testified

that the computer access restriction was maintained because

prison officials thought that Roy would use prison computers to

test his programming ideas for purposes of running his software

business.

Also in April of 2003, Roy applied and was hired for a

computer job in the prison's print shop. The next day, however,

the foreman of the print shop, Steven Carleton, wrote: "I was

just informed today that I cannot employ you." Pi. Ex. 13.

Several days later, Richard Davis, Print Shop Manager, wrote:

"According to what we have been told you have had problems in

other places you've worked doing illegal things on computers. We

simply cannot take a risk and also we've been told that you are

not to have any job connected to working on computers, by

administration." Pi. Ex. 17. Dennis Race, Director of the

Industries Program, responded to Roy's inquiry about the reasons

for the computer restrictions by stating that he had decided to

offer the job to someone else based on listed criteria and that

he had not considered any other reasons in denying Roy the job.

In June of 2003, the prison restored Roy's access to "stand

6 alone" computers. Crompton states that Roy was hired for a job

in the furniture shop in the North Yard but was then fired when

he was found to have brought contraband to the North Yard.

Crompton provides no dates or other evidence of that incident.

Roy explains that the incident occurred in May of 2005 and

characterizes his firing as an exaggerated response to a minor

infraction.

Roy states that he applied for vocational education in

computer assisted design in late 2003. The computer class was

held in the North Yard, and the instructor told him he could

attend the class. When he arrived for class on January 6, 2004,

he was refused entry to the North Yard. A job change form,

required to change assignment to the vocational educational

class, dated January 8, 2004, indicates that Roy's request was

denied because of "computer issues in the past." PI. Ex. 29. He

then attended classes outside of the North Yard. Roy states that

on January 15, 2004, an officer mistakenly thought he was

attending classes in the North Yard in violation of restrictions

imposed on him, and, as a result, he was "lugged" to the Special

Housing Unit. The writeup of the incident stated that Roy had

had computer issues in the past that were a security threat.

Following a disciplinary hearing on January 28, 2004, the

hearings officer dismissed the writeup. Shortly thereafter, Roy

7 was approved to attend classes in the North Yard, which he did,

beginning on February 11, 2004.

Roy states in his objection to summary judgment that he

learned in July of 2004 that his ongoing problems with access to

the North Yard and in gaining and maintaining employment or

education there were due to the anger of the administration and

Dennis Race about this lawsuit.2 He contends that the Furniture

Shop manager hired him in July of 2004 without being aware of the

"blacklist" against him. He further contends that the difficulty

he encountered in trying to get to the North Yard on his first

day of work and his subsequent termination were due to the

effects of the "blacklist." He also states that prison staff

continue to believe that he cannot be given computer access

because of some past illegal activities on computers. Roy

describes continued problems with access to the North Yard and in

maintaining employment there.

In the meantime, Roy's lawsuit proceeded in this court. He

sought a preliminary injunction to require the prison to lift the

telephone and computer restrictions on him, challenging the

prison's determination that he was running a business in

violation of prison rules. The magistrate judge held a hearing

2Roy has not alleged a claim of retaliation against him for exercising his First Amendment right of access to the courts. on January 10, 2003, with testimony from Roy and defendants

Crompton and Smith. The magistrate recommended that injunctive

relief be denied because Roy had not shown that he was likely to

succeed on the merits of his claims as telephone recordings cast

doubt on Roy's claim that he was not seeking payment for his

services. The court approved the magistrate judge's

recommendation.

Roy filed an amended complaint on May 1, 2003, and then

filed a motion for injunctive relief, contending new evidence

existed to support his claims. The magistrate judge again found

a lack of evidence to support Roy's claim that the telephone

restrictions burdened his constitutionally-protected activities.

With respect to the computer access ban, however, the magistrate

found that evidence existed to support Roy's retaliation claim.

In particular, the magistrate concluded that Richard Davis's

testimony that Dennis Race told the shop supervisors not to hire

Roy because of prior problems with computers was credible, while

Race's testimony to the contrary was not credible. The

magistrate also found that Crompton's testimony was not entirely

candid.3

3After reviewing the testimony of those witnesses, the court agrees with and adopts the magistrate's assessment of the testimony of Dennis Race and Gregory Crompton.

9 After hearing all of the testimony, the magistrate concluded

that, despite Crompton's testimony to the contrary, prison

officials had banned Roy from using computers. The magistrate

judge also concluded, however, that the defendants had stated

legitimate, non-retaliatory reasons for denying Roy access to

computers. He recommended that injunctive relief be denied, and

the court approved that recommendation. Roy's computer access

continues to be limited to "stand alone" computers that lack

Internet connection, and his telephone use is restricted to

communication with his family and his lawyer.

Discussion

Following the magistrate judge's review of Roy's amended

complaint and the court's approval of the recommendation that

only certain claims be served on the defendants, Roy brings three

claims against the defendants. In his first claim, he alleges

that Deputy Warden Crompton retaliated against him in violation

of due process by banning him from computer and telephone access

based on his possession of debt collection software, which the

prison had agreed he was entitled to have as part of the

settlement of his first lawsuit. Second, Roy alleges that

Crompton and Officers O'Brien and Smith are violating his right

to protect his business interests by restricting him from

10 telephone access to his former company. Third, he alleges that

Coplan and Stanley are liable for the constitutional violations

of the other defendants because of their actions or inaction as

supervisors. The defendants dispute Roy's claims and assert

qualified immunity.

A. Retaliation

Crompton contends that he did not retaliate against Roy by

restricting his access to prison computers and limiting his

telephone communications. "A prisoner alleging retaliation must

show (1) constitutionally protected conduct, (2) an adverse

action by prison officials sufficient to deter a person of

ordinary firmness from exercising his constitutional rights, and

(3) a causal link between the exercise of his constitutional

rights and the adverse action taken against him." Mitchell v.

Horn,

(3d Cir. 2003). If the prisoner proves

the three elements of retaliation, the defendants may avoid

liability by showing that they would have taken the same action

even in the absence of the prisoner's protected conduct. Centro

Medico del Turabo, Inc. v. Feliciano de Melecio,

(1st Cir. 2005); Bennett v. Goord,

(2d Cir.

2003) .

11 1. Computer ban.

Roy's constitutionally protected conduct was his possession

of computer printouts, which were copies of debt collection

software related to Roy's business. In the settlement of Roy's

1995 suit, the prison agreed that Roy was constitutionally

entitled to have the printouts in his possession. Since December

of 2001, Crompton has banned Roy from using computers or being in

the vicinity of computers based on the prison's original

disciplinary report, which mistakenly concluded that the

printouts were related to gambling activities.

Crompton did not know of the settlement of Roy's 1995

lawsuit in which the prison agreed that the printouts were not

contraband and agreed that Roy was entitled to have the

printouts. Instead, Crompton based his actions on the result of

the disciplinary proceeding that mistakenly found the printouts

were related to gambling. Because Crompton's decision to ban Roy

from computers was based on a mistake, there is no causal link

between Crompton's adverse action and Roy's protected conduct.

Alternatively, even if the record supported Roy's

retaliation claim, Crompton would be entitled to qualified

immunity. "Qualified immunity 'protects public officials from

civil liability insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

12 reasonable person would have known.'" Surprenant v. Rivas,

(1st Cir. Sept. 9, 2005) (quoting Cox v .

Hainev,

(1st Cir. 2004)). The First Circuit

evaluates qualified immunity in three stages. Torres-Rivera v.

Calderon-Serra,

(1st Cir. 2005). First, for

purposes of summary judgment, the court must determine whether

the facts as alleged and taken in the light most favorable to the

plaintiff "show the officer's conduct violated a constitutional

right." Torres-Rivera v. 0 'Neill-Cancel,

(1st

Cir. 2005). If so, the court next considers whether the

constitutional right asserted was clearly established at the time

of the alleged violation "such that a reasonable officer would be

on notice that his conduct was unlawful." I d . at 54 (internal

quotation marks omitted). If the asserted constitutional right

was clearly established, the court then decides "whether a

reasonable officer, similarly situated, would understand that the

challenged conduct violated the clearly established right at

issue."4 I d . (internal quotation marks omitted).

Based on the magistrate's preliminary review in this case,

Roy alleged a claim of unconstitutional retaliation. The

4The second and third stages are sometimes considered together. See Saucier v. Katz.

, 205 (2001); Burke v. Town of Walpole,

, 77 n.12 (1st Cir. 2005).

13 constitutional right Roy asserts, the right not to be subjected

to adverse action in retaliation for constitutionally protected

conduct, in that general sense, was clearly established in 2001

when Crompton first imposed the computer ban. See, e.g., Collins

v. Nuzzo,

(1st Cir. 2001). In a more

particular sense, however, a prisoner's right not to be subjected

to retaliation for possession of property that the prison has

agreed under a settlement of a prior lawsuit he is constitu­

tionally entitled to have, is, at best, an obscure legal concept.

Even the law governing a prisoner's right to protect legitimate

property interests was far from clearly established at that time.

See King v. Fed. Bur, of Prisons,

(7th Cir.

2005); Rauso v. Vaughn,

, at *14 (E.D. Pa. June 26,

2000) .

At the third stage, the analysis turns from "abstract

principles to the specific facts of a given case." Burke v. Town

of Walpole,

(1st Cir. 2005). The court examines

the defendant's conduct in light of the circumstances that

confronted him to determine "whether it would be clear to a

reasonable [prison official] that his conduct was unlawful in the

situation he confronted." Groh v. Ramirez,

(2004) (internal quotation marks omitted). "[T]he doctrine of

qualified immunity provides a safe harbor for a wide range of

14 mistaken judgments." Hatch v. Dep't for Children, Youth & Their

Families,

(1st Cir. 2001). "An officer is

entitled to qualified immunity when his conduct is objectively

reasonable based on the information available at the time and in

light of clearly established law." Pena-Borrero v. Estremeda,

365 F .3d 7, 14 (1st Cir. 2004).

Crompton's imposition of the computer ban was based on his

mistaken belief that Roy had engaged in illegal computer

activities in the past, demonstrated by his possession of the

computer printouts that the prison mistakenly thought were

related to gambling. For reasons that remain unexplained,

Crompton did not know that the 1995 lawsuit had exonerated Roy of

illegal computer activities and that prison officials had agreed

that Roy was entitled to possess the printouts. Crompton's

conduct in imposing the ban based on his mistaken belief is

objectively reasonable. It would not be objectively reasonable,

however, for Crompton or anyone else at the prison to continue to

ban Roy's use of computers based on that mistaken belief.

2. Telephone use.

Roy's telephone use has been restricted to communications

with his family and his lawyer since October of 2002 when

monitoring revealed that he was conducting his business for

15 profit over the telephone. Inmates have no constitutional right

to conduct business in prison. French v. Butterworth,

(1st Cir. 1980). The New Hampshire State Prison

prohibits inmates from engaging in business activities. The

telephone restriction was imposed on Roy based on a perceived

violation of that rule. Therefore, Crompton did not impose that

limitation in retaliation for any constitutionally protected

conduct.

B. Violation of Right to Protect Business Interests

Roy contends that Crompton, O'Brien, and Smith, by

preventing his telephone communication with his company, are

depriving him of his right to preserve his beneficial interests

of the due process clause of the Fourteenth Amendment. Prisoners

do not have a constitutional right to use the telephone. United

States v. Footman,

(1st Cir. 2000). As noted

above, inmates have no constitutional right to operate or

maintain a business from prison. French,

.

Inmates, however, may retain protected property interests in

assets that were legitimately acquired prior to their

incarceration. See King,

. States also may

create certain liberty interests for inmates that are protected

by the due process clause, "[b]ut these interests will be

16 generally limited to freedom from restraint which . . . imposes

atypical and significant hardship on the inmate in relation to

the ordinary incidents of prison life." Sandin v. Conner,

(1995) .

To the extent Roy argues that he has a protected property

right in his business, he has not shown that the telephone

restriction has deprived him of that property. He has not shown

that the prison has prevented all communication with his

company.5 C f . King,

(noting complaint alleged

prison denied plaintiff's right to contact his broker). Further,

given Roy's appointment of an attorney to run his company through

a constructive trust, he has not shown that the restriction on

his telephone use has harmed his company to the extent of causing

a deprivation of property. See i d . at 637-38. Further, the

security issues pertaining to Roy's business activities,

identified by the defendants, justify the restrictions imposed on

his telephone use. See i d . at 638.

5Although he states in his affidavit that his mailed communications to the company have not been answered and that his certified mail "has vanished," he has not shown that the prison has imposed any restrictions on his mail. He surmises that the prison has discarded his mail to his company. Because the prison prohibits inmates from running businesses, Roy's mail may have run afoul of that regulation. Should problems with mail continue, Roy would be well advised to address the problem through the prison grievance process to ascertain whether his mail to his company has been intercepted and, if so, why.

17 Roy contends that the state created a liberty interest by

allowing him to communicate freely with his company and clients

over eight years and by promising not to interfere in his

communications with his company as part of the settlement of the

1995 lawsuit. Roy would be entitled to due process protection,

based on the asserted liberty interest in unfettered telephone

communication with his company, only if the current telephone

restriction "imposes atypical and significant hardship on [him]

in relation to the ordinary incidents of prison life." Sandin,

.

Prisons legitimately impose a variety of restrictions on

inmates' use of telephones. See, e.g.. United States v. Lewis,

(1st Cir. 2005); Gildav v. Dubois,

(1st Cir. 1997); Spurlock v. Simmons,

(D. Kan. 2000). The New Hampshire State Prison also

prohibits all inmates from running businesses. Nothing in the

record suggests that a triable issue remains as to whether the

restriction on Roy's telephone use is so atypical that it

violates due process.

18 C. Supervisory Liability6

Supervisors are liable under § 1983 for the unconstitutional

conduct of their subordinates when their "action or inaction is

affirmatively linked to that behavior in the sense that it could

be characterized as supervisory encouragement, condonation or

acquiescence or gross negligence amounting to deliberate

indifference." Wilson v. Town of Mendon,

(1st Cir.

2002) (internal quotation marks omitted). "To demonstrate

deliberate indifference a plaintiff must show (1) a grave risk of

harm, (2) the defendant's actual or constructive knowledge of

that risk, and (3) his failure to take easily available measures

to address the risk." Figueroa-Torres v. Toledo-Davila,

(1st Cir. 2000). Further, the plaintiff must show that

the supervisor's deliberate indifference was causally related to

the resulting harm. Camilo-Robles v. Zapata,

(1st Cir. 1999). A supervisor can be liable only if the

subordinate violated the plaintiff's constitutional right.

Wilson,

.

The court has concluded that the record does not support a

6In his objection, Roy also asserts an official capacity claim against Defendants Stanley and Coplan. That claim was not alleged in the amended complaint, although he identified those parties as being sued in their individual and official capacities, and was not allowed in the magistrate's report and recommendation. Therefore, it is not considered here.

19 triable issue as to whether the subordinate defendants, Crompton,

O'Brien, and Smith, violated Roy's constitutional rights as he

alleges. In the absence of constitutional violations, there is

no basis for supervisory liability. Further, even if either of

the alleged violations had occurred, Roy has not shown the

necessary connection between Coplan or Stanley and the

subordinate's alleged violations.7

Despite the lack of a basis for supervisory liability, the

court is concerned about the shoddy prison supervision and

management this case has revealed. Two prison employees provided

testimony in this case that was not candid or credible,

apparently without being held accountable by their supervisors.

Further, the entire issue of the computer ban arises from a

mistake that could easily have been prevented if prison

supervisors had communicated with their successors and

subordinates about the settlement of Roy's first lawsuit. Prison

management and discipline should not be based on mistaken

assumptions, unfounded rumors, and gossip. To avoid continued

problems arising from the circumstances of this case, the prison

is put on notice that it must correct the disciplinary report on

Roy pertaining to his possession of computer printouts that were

7Although Roy documents that he sent grievances to Coplan and Stanley, the responses he received were from Crompton, rather than Coplan or Stanley.

20 mistaken for gambling activity and inform all prison staff of

that correction and the prison's obligations under the settlement

of Roy's first lawsuit.

Conclusion

For the foregoing reasons, the defendants' motion for

summary judgment (document no. 97) is granted. The defendants'

motion for leave to file corrections (document no. 110) is

granted. The plaintiff's motion for sanctions (document no. 112)

is denied. The defendants' motion to strike (document no. 115)

is terminated. The plaintiff's motion for leave (document no.

120) is granted. A copy of this order shall be sent to Stephen

J. Curry, Commissioner, New Hampshire Department of Corrections,

P.O. Box 1806, Concord, N.H. 03302-1806, and Bruce W. Cattell,

Warden, New Hampshire State Prison for Men, P.O. Box 14, Concord,

N.H. 03301-0014.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. United States District Judge

September 20, 2005 cc: Steven J. Roy, pro se Mary E. Maloney, Esquire Stephen J. Curry, Commissioner, NH DOC Bruce W. Cattell, Warden, NHSP

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