Smith v. Warden, NH State Prison 05-CV-374-JD 01/31/08 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Dennis A. Smith

v. Civil No. 05-CV-374-JD Opinion No.

Warden. New Hampshire State Prison

O R D E R

Dennis A. Smith, proceeding pro se, brings claims pursuant

to

against New Hampshire State Prison Warden,

Bruce Cattell, New Hampshire Department of Corrections

Commissioner, Stephen J. Curry, and New Hampshire State Prison

staff members Christopher Shaw and Paul Carroll. He alleges that

he was transferred to a prison in Texas in retaliation for

litigation he brought against another prison staff member, in

violation of the First Amendment, and that he is treated

differently than other New Hampshire inmates, in violation of the

Fourteenth Amendment. Smith and the defendants have moved for

summary judgment. The defendants object to several statements in

Smith's declaration filed in support of his motion. Smith moves

to strike any inference that might be drawn from his housing

classification and moves for a hearing to obtain the testimony of

a former prison official. I. Defendants' Objections to Smith's Declaration and Amended

Declaration, Plaintiff's Motion for a Hearing, and Plaintiff's

Motion to Strike

The defendants objected to parts of seven paragraphs in

Smith's declaration submitted in support of his motion for

summary judgment.1 In response. Smith moved to amend and

supplement his declaration, which was allowed. The defendants

also object to parts of two paragraphs in Smith's supplemental

declaration, claiming that they are inadmissible hearsay or lack

necessary foundation. Smith moves for a hearing and to strike a

negative inference that might arise from his housing

classification.

A. Declaration

The defendants object to statements in paragraphs 12, 13,

16, 22, 26, 27, 31, and 37 in Smith's declaration. Paragraph 12

is stricken to the extent it purports to give an unnamed

officer's intent. Paragraph 13 is allowed only to the extent it

is based on personal knowledge that the commissioner came to

Smith's cell. Paragraph 16 is allowed only to the extent that it

1Because Smith's declaration complies with the requirements of

, the defendants' objection that it is unsworn is unfounded.

2 establishes that the warden came to Smith's cell. Paragraph 22

appears to be hearsay but will be allowed. Paragraph 26 is

allowed only to the extent it is based on Smith's personal

knowledge that staff were resentful or hostile toward him and is

otherwise stricken. Paragraph 27 is hearsay except for Smith's

knowledge that Warden Coplan was accompanied by Major Dan Shaw

when she met with Smith. Paragraph 31 also contains hearsay and

statements that do not indicate the basis for Smith's knowledge,

which are stricken, leaving his statements that staff refused to

sharpen his pencils, "attacked" his legal files, put a letter of

his in the toilet, and damaged his fan and his Walkman.

Paragraph 37 pertains to statements made by Matt Moyer, the

manager of the Special Housing Unit ("SHU"), during part of the

time that Smith was housed in SHU. Although those statements are

hearsay, as explained in section C below, the statements will be

considered for purposes of summary judgment.

B. Amended Declaration.

The statements in Smith's amended declaration to which the

defendants object are also about Moyer. Smith contends Warden

Coplan communicated to Moyer that Smith could remain at the New

Hampshire State Prison as long as he remained of "acceptable

behavior," meaning that Smith would not incur disciplinary write­

3 ups, would participate in "programming," and would work his way

to a reduced custody classification. Smith alleges that Moyer

then told him that Moyer would not recommend reduced custody

classification until Smith participated in anger management

programming. Smith also alleges that Moyer said he did not know

when an anger management program would be available in SHU but

would let Smith know when that happened. Again, those statements

are hearsay and are addressed in the next section.

C. Motion for a Hearing and Motion to Strike

In response to the defendants' objections. Smith moves for a

hearing to obtain Moyer's testimony about the matters he asserts

in his declarations. He also moves to strike any negative

inference, that he was noncompliant with prison rules and

regulations, based on his housing classification in SHU. The

defendants object to Smith's motion to strike but filed no

response to his motion for a hearing.

Smith represents that his mother contacted Moyer by sending

him a letter asking him to corroborate the statements attributed

to him, and after receiving no response, called Moyer at the

Laconia Police Department where he worked. Smith states that his

mother learned that Moyer could not respond because he was

precluded from having contact with Smith for three years. See

4 Motion to Strike, doc. no. 94. 5 13. Smith argues that a hearing

is necessary to obtain Moyer's testimony and that no negative

inference should be taken from his continued SHU classification

because he could not meet the program requirement.

If a party needs additional time to acquire and present

evidence in opposition to summary judgment, relief is available

under Federal Rule of Civil Procedure 56(f). Rule 56(f) applies,

however, only if the party submits an affidavit showing good

cause for the lack of evidence, a plausible basis for his belief

that the needed evidence can be presented with more time, and an

explanation of why additional facts are material to his

opposition. Rivera-Torres v. Rev-Hernandez.

, 10 (1st

Cir. 2007). A litigant's pro se status does not absolve him from

complying with the federal rules. FDIC v. Anchor Props..

(1st Cir. 1994) .

Smith did not provide an affidavit in support of his request

for a hearing. For purposes of the pending summary judgment

motions, nevertheless, the court will take the statements in

Smith's declaration, paragraph 37, and amended declaration,

paragraphs 3 and 4, about Moyer's statements to him as true and

will not draw a negative inference from Smith's housing

classification in SHU. Therefore, Smith's motion for a hearing

is denied, and his motion to strike is granted.

5 II. Summary Judgment

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). When parties file cross-motions for summary judgment, the

court must consider the motions separately to determine whether

summary judgment may be entered under the Rule 56 standard. Pac.

Ins. Co.. Ltd. v. Eaton Vance Mqmt..

(1st Cir.

2004); Bienkowski v. Northeastern Univ..

(1st

Cir. 2002).

An evidentiary hearing was held before the magistrate judge

by video conference on September 26, 2006, on Smith's motion for

a preliminary injunction. Smith, former New Hampshire State

Prison Warden Jane Coplan, and Administrator of Classifications

Kim LaCasse testified. The magistrate judge issued a report and

recommendation that Smith's motion should be denied. After an

initial remand and a further report and recommendation, the court

approved the report and recommendation and denied Smith's motion

for a preliminary injunction on January 30, 2007.

6 Background

Smith is a New Hampshire inmate being housed in a Texas

prison. In 1997, New Hampshire State Prison officials discovered

that Smith was involved in a relationship with a prison staff

member who smuggled contraband into the prison. As a result.

Smith was moved to SHU in June of 1997 and was transferred to a

prison in Connecticut in November of 1997. Connecticut

authorities returned Smith to New Hampshire in August of 1999.

In December of 1999, Smith assaulted a corrections officer at the

New Hampshire State Prison and was transferred on April 12, 2000,

to a federal prison in Lewisburg, Pennsylvania.

The federal prison returned Smith to New Hampshire in March

of 2003. New Hampshire State Prison officials attempted to

transfer Smith to a prison in Oregon. Smith wrote a letter to

the Oregon prison officials, stating that he would make their

lives miserable, and they decided not to accept his transfer.

Warden Coplan testified at the September 26, 2006, hearing that

it was difficult to arrange transfers for an inmate like Smith

who had a disciplinary background and a history of negative

interactions with prison staff.

On July 23, 2003, Warden Coplan and Major Shaw met with

Smith. Coplan told Smith that he would not be transferred from

New Hampshire as long as he maintained "acceptable behavior."

7 Coplan explained that her expectations for acceptable behavior

were that Smith would remain discipline free, that he would do

the programs he needed to do, and that he would maintain a

positive relationship with the prison staff. Coplan told Moyer

that she would not transfer Smith away from New Hampshire as long

as he met her requirements for acceptable behavior.

Coplan testified that Smith told her he would never leave

SHU because he could not get along with other inmates and it

would put him at risk to be in the general prison population.

Smith contends that Moyer told him that he (Moyer) would not

recommend Smith for reduced custody status until Smith completed

an anger management program which was not then available in SHU.

Smith did not leave SHU until he was transferred to a prison in

Texas at the end of 2004.

Smith brought suit against Moyer and Coplan in October of

2003, alleging unsanitary conditions in food preparation for the

inmates in SHU. See Smith v. Warden. 03-cv-466-SM (filed Oct.

24, 2003). That case was terminated in June of 2005 after the

defendants addressed Smith's complaints and Smith withdrew his

complaint. In May of 2004, Coplan was appointed warden of the

Lakes Region facility in Laconia and was replaced by Warden

Cattrell. Moyer retired soon after Coplan left the Concord

facility.

8 On July 25, 2004, Corrections Officer Carroll reported Smith

for threatening an officer. Smith was found guilty of that

charge after a hearing. On August 9, Carroll reported that Smith

had a razor blade and personal information (the home address)

about a corrections officer hidden in his cell. Smith admitted

having the razor blade. Four days later. Unit Manager Moquin

made a disciplinary report that Smith threatened him, saying that

he would get Moquin's address too, and Smith was found guilty

after a hearing. On August 19, Corrections Officer Shaw filed a

disciplinary report charging Smith with lying about the razor

blade, and Smith was found guilty on that charge.

In late September of 2004, prison staff began the process of

finding a receiving facility to allow them to transfer Smith out

of New Hampshire. At the same time, Texas was seeking placement

of a Texas prisoner in New Hampshire, and, therefore, the prison

asked Texas to take Smith in exchange. In early November, 2004,

Texas officials informed officials at the New Hampshire State

Prison that Texas would take Smith. He was transferred to Texas

on December 16, 2004.2

2In the meantime. Smith incurred additional disciplinary reports. Smith threatened to mix his blood with human feces and to throw the mixture at the prison staff. He received a disciplinary report for that threat on October 26, 2004, and then received disciplinary reports on November 1, November 18, and December 8, before he was transferred to Texas.

9 A. Smith's Motions to Supplement and to Preserve

On January 25, 2008, Smith moved to amend and supplement his

motion for summary judgment to add five large envelopes of

documents each containing undifferentiated piles of hundreds of

pages. Smith states that he received the documents on January 6,

2008, from the defendants' present counsel. He also states that

a former counsel for the defendants had previously refused to

provide those documents in discovery. He also moves to preserve

the documents as his discovery materials.

Smith contends, in conclusory terms and without citation to

any of the documents specifically, that the documents show that

other inmates had serious disciplinary histories and were not

transferred to prisons outside of New Hampshire. He argues that

the evidence supports his theory that he was transferred to Texas

in retaliation for filing suit in this court. Smith provides no

analysis of the documents he has submitted.

Despite Smith's pro se status, he is required to present his

arguments and evidence in compliance with the federal rules. See

FDIC v. Anchor Props..

(1st Cir. 1994). A general

reference to hundreds of pages of documents is not a sufficiently

developed argument nor a proper means for submitting evidence for

purposes of either supporting or opposing summary judgment. Fed.

R. Civ. P. 56; LR 7.2(b). Therefore the motion is denied.

10 Because the court does not serve as a repository for

discovery materials, the motion asking the court to preserve the

submitted documents is also denied. The materials will be

returned to Smith or will be sent to a person of his choosing who

has agreed to accept them.

B. Smith's Motion for Summary Judgment

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). When the

party moving for summary judgment also bears the burden of proof

at trial, summary judgment will not be granted unless, based on

the record taken in the light most favorable to the nonmoving

party, no reasonable jury could find for the nonmoving party.

See E.E.O.C. v. Union Independiente de la Autoridad de Acueductos

v Alcantarillados de P.R.,

(1st Cir. 2002);

Winnacunnet v. National Union.

(1st Cir. 1996). 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) .

Smith's claims under § 1983 against the warden, the

commissioner, and prison officers Shaw and Carroll are that he

11 was transferred to a prison in Texas in retaliation for the suit

he filed against Coplan and Moyer. Smith contends that the

transfer violated his First Amendment rights and that in Texas he

is treated differently than the Texas inmates in violation of the

Fourteenth Amendment. The defendants object to Smith's motion.

1. Retaliatory Transfer

To succeed on a claim of retaliatory transfer in violation

of the First Amendment, a prisoner must prove that (1) he engaged

in conduct protected by the First Amendment, (2) adverse action

was taken against him that was sufficient to chill his exercise

of protected conduct, and (3) there is a causal connection

between his protected conduct and the adverse action. Thaddeus-X

v. Blatter.

(6th Cir. 1999); see also Rhodes v.

Robinson.

(9th Cir. 2005). The adverse

action must also be inconsistent with legitimate penological

purposes.

. Transfer of a prisoner to another

facility in retaliation for exercising his First Amendment right

is actionable under § 1983. McDonald v. Hall.

(1st Cir. 1979); see also Toolasprashad v. Bur, of Prisons.

(D.C. Cir. 2002); Gomez v. Vernon.

(9th Cir. 2001); Allah v. Seiverlinq.

, 225-26

12 (3d Cir. 2000); Babcock v. White.

(7th Cir.

1996) .

In this case, the only disputed issue is whether a causal

connection exists between Smith's protected conduct, his suit

filed in October of 2003 against Coplan and Moyer, and the

prison's decision to transfer him to Texas the next year. The

defendants assert, based on Smith's disciplinary record and

LaCasse's testimony, that the decision to transfer Smith was made

because he did not maintain a clear disciplinary record or

participate in required programming. Smith contends that the

disciplinary problems he encountered during the summer and fall

of 2004 were the result of being housed in SHU and were

instigated by prison staff. He also contends that he could not

participate in an anger management program, which would have

allowed him to work to a less restrictive classification, because

that program was not available in SHU.

The record amply supports the disciplinary basis for Smith's

transfer. Despite the prison's initial efforts to transfer Smith

when he returned to New Hampshire in the spring of 2003, he was

not transferred until a year and a half later, after he incurred

a series of disciplinary reports. His allegations that the

disciplinary reports were unfounded are not supported by the

13 record.3 Assuming that Moyer required Smith to participate in an

anger management program before he could progress out of SHU, as

Smith alleges. Smith does not explain why was unable to move out

of SHU after Moyer retired in the spring of 2004 and a new unit

manager was appointed. Instead, the record shows that after

Coplan and Moyer left. Smith had a series of serious disciplinary

infractions which led to the decision to transfer him out of the

New Hampshire State Prison.

To succeed on his motion. Smith would have to provide

conclusive evidence that he was transferred to Texas in

retaliation for filing suit against Coplan and Moyer. See Union

Independiente.

. Smith has fallen far short of

that requirement. Therefore, his motion for summary judgment on

the retaliation claim is denied.

2. Equal Protection

Smith asserts that his incarceration in Texas violates his

right to equal protection under the Fourteenth Amendment because

he is not treated the same as Texas inmates in the prison where

3Although Smith contends that his disciplinary infractions were the result of harassment and retaliation by prison staff, he has provided no persuasive evidence to support his allegations.

14 he is currently housed.4 More specifically. Smith contends that

Texas inmates are compensated for their prison work with good

time credit against their sentences but he is not because New

Hampshire law does not allow credit against his New Hampshire

sentence.5 Smith argues that his transfer to Texas violates his

right to equal protection and that he must be returned to the New

Hampshire State Prison.

Because Smith is not a member of a suspect class and has not

premised his equal protection claim on the deprivation of a

fundamental right, any difference in treatment is subject to a

deferential analysis.6 Beauchamp v. Murphy.

, 707

4In his motion. Smith also argues that his transfer to a prison in Texas violates due process under the Fourteenth Amendment. No such claim was allowed on preliminary review of Smith's complaint. In addition, transfer of a prisoner from one state to another "does not deprive an inmate of any liberty interest protected by the Due Process Clause." Olim v. Wakinekona.

(1983).

5In addition. Smith argues that the Interstate Corrections Compact, RSA 622-B:2, and the agreement between Texas and New Hampshire for transferring inmates require that he be treated the same as Texas inmates. That claim was not allowed on initial review. Any violations of the ICC and the transfer agreement are not violations of federal law and are not actionable under § 1983. Smith v. Cummings.

(10th Cir. 2006).

6Smith states that he is a member of a suspect class of inmates who have been transferred to an out-of-state prison pursuant to the Interstate Corrections Compact. Transferred inmates in comparison to other inmates, however, are not a specially protected class. See, e.g.. Truiillo, 465 F.3d at 1228

15 (1st Cir. 1994). Such claims are reviewed to determine whether a

rational relationship exists between disparate treatment and a

legitimate government purpose. Toldeo v. Sanchez.

(1st Cir. 2006); see also Trujillo v. Williams.

(10th Cir. 2006) (holding that inmate can show equal

protection violation under rational basis standard only by

showing that he was subjected to different treatment that was not

reasonably related to a legitimate penological purpose). As a

class of one. Smith must prove that the defendants are

intentionally treating him differently from other similarly

situated inmates and that they lack a legitimate reason for doing

so. Buchanan v. Maine.

, 178 (1st Cir. 2006).

Smith is a New Hampshire prisoner, serving a sentence

imposed under New Hampshire law, while he is housed in a prison

in Texas. It is undisputed for purposes of the present motions

that inmates in the Texas prison where Smith is housed, who are

serving sentences imposed under Texas law, are given "good time

credit" against their sentences as compensation for their work in

(transferred prisoner not member of suspect class based on transfer); Jeneski v. City of Worcester.

(1st Cir. 2007) (discussing suspect classification); Mills v. State of M e .,

(1st Cir. 1997) (defining suspect class as "'a class of persons characterized by some unpopular trait or affiliation . . . [that would] reflect any special likelihood of bias [against them] on the part of the ruling majority1" quoting N.Y. City Transit Auth. v. Beazer.

(1979)).

16 the prison. Smith does not receive good time credit against his

New Hampshire sentence.

Under New Hampshire law, at the time of sentencing a

disciplinary period of 150 days is added to each year of a

minimum sentence that is longer than one year. RSA 651:2, Il-e.

"This additional disciplinary period may be reduced for good

conduct as provided in RSA 651-A:22."

The commissioner of

corrections reviews the conduct of prisoners on a monthly basis

to determine whether the prisoner has exhibited good conduct.

RSA 651-A:22. If so, the commissioner may reduce the

disciplinary period for up to twelve and one half days at each

monthly review.

Therefore, the Texas system of awarding

good time credits to reduce a prisoner's sentence for work done

while in prison is contrary to New Hampshire law.

The parties assume that Smith is similarly situated to the

Texas prisoners with whom he is incarcerated. An obvious

material distinction, however, is that Smith is serving a

sentence imposed under New Hampshire law while the Texas

prisoners are serving sentences imposed under Texas law.

Although Smith is housed in a Texas prison and is subject to the

rules and procedures of that facility, his sentence is governed

by different laws. Therefore, Smith has not shown that he is

17 similarly situated to Texas prisoners for purposes of calculating

his sentence, which is the issue for his equal protection claim.

The defendants argue that the policy of transferring

prisoners to prisons outside of New Hampshire, despite

differences in the rules and procedures in the prison systems of

other states, serves a legitimate penological purpose. They

represent that the Interstate Corrections Compact and New

Hampshire's agreement with Texas for transferring prisoners

provide that transferred prisoners will be subject to the rules

and regulations of the receiving state for housing, discipline,

programs, and classification.7 They argue that the agreement

serves a legitimate penological purpose of allowing New Hampshire

and Texas to move inmates "who pose particular safety risks or

who have enemies within the state prison system" to out-of-state

facilities, which provides flexibility in dealing with

problematic inmates. The defendants assert that the policy of

applying the receiving state's rules and procedures to a

7The defendants did not file a copy of New Hampshire's transfer agreement with Texas in support of their objection to Smith's motion or in support of their own motion for summary judgment. They also did not provide a record citation for the agreement. Smith filed a copy of an agreement between Texas and New Hampshire as an addendum to his complaint and another copy of the same agreement in support of his motion for summary judgment. That agreement, however, states that it expired on December 31, 2000, four years before Smith was transferred to Texas. Smith does not dispute the content of the agreement.

18 transferred inmate avoids the burdens and complications of

applying a variety of different rules and procedures in the

receiving facility.

Smith has not provided conclusive evidence, or any evidence,

that the transfer policy does not serve a legitimate penological

purpose. As noted above. Smith also has not shown that he is

similarly situated, for purposes of calculating his sentence,

with Texas inmates. Therefore, his motion for summary judgment

on his equal protection claim is denied.

C. Defendants' Motion for Summary Judgment

The party seeking summary judgment must first demonstrate

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

See Celotex.

. 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.

. All reasonable inferences and all

credibility issues are resolved in favor of the nonmoving party.

See

.

1. Retaliatory Transfer

The defendants move for summary judgment on the ground that

Smith cannot prove any causal connection between the suit he

19 filed in October of 2003 and the decision to transfer him to

Texas a year later. They contend that the evidence shows that

Smith was transferred because of his bad behavior. Smith argues

that the disciplinary problems he experienced between July and

December of 2004 were either false accusations or were the result

of harassment and antagonizing actions by the prison staff.

Taking the record in the light most favorable to Smith, the

timing of his disciplinary problems suggests a connection to

Coplan and Moyer leaving the prison. Smith argues that prison

staff did not like the attention and bad publicity his suit was

bringing and retaliated against him for that. He also contends

that Coplan and Moyer did not allow retaliation against him while

they were working at the prison but that the new officials were

not aware of the sentiment against Smith.

Smith provides no evidence, however, to support his

retaliation theories. Within a month, between July 25 and August

19, 2004, Smith received four disciplinary reports, two for

threatening an officer, one for possessing a razor blade and the

home address of a staff member, and one for lying about the razor

blade. He received hearings on the charges and was found guilty.

Even if his allegations were taken as true that harassment by

prison staff caused his behavior. Smith lacks any evidence that

20 the officers involved were motivated by retaliation against him

because of his suit against Coplan and Moyer.

Further, Smith had been transferred to prisons outside of

New Hampshire previously because of his behavior. He returned to

New Hampshire only when those facilities would no longer allow

him to stay. The record shows that the prison moved Smith to a

facility outside of New Hampshire whenever his behavior warranted

that action.

Based on the undisputed facts. Smith cannot prove that he

was transferred to Texas in retaliation for his suit against

Coplan and Moyer. The defendants are entitled to summary

judgment on the retaliation claim.

2. Equal Protection

Smith's equal protection claim does not raise a factual

issue. As is discussed above in the context of Smith's motion

for summary judgment. Smith was not similarly situated to Texas

inmates with respect to the calculation of his sentence. In

addition, the defendants explain the purpose for transferring

prisoners outside of New Hampshire, despite differences in the

receiving states' rules and procedures, which Smith has not

refuted. The defendants defend the application of the receiving

state's rules and procedures as being necessary to avoid the

21 burdens and complications of applying the rules and procedures of

a variety of states in a single facility. Smith has not shown a

material factual dispute about whether the prisonfs transfer

policy serves a legitimate penological purpose. Therefore^ the

defendants are entitled to summary judgment on this claim.

Conclusion

For the foregoing reasons, the plaintifffs motion for a

hearing (document no. 98) is denied. The plaintifffs motion to

strike (document no. 94) is granted. The plaintifffs motions to

supplement (document no. 112) and to preserve discovery materials

(document no. 113) are denied, and the materials submitted will

be returned to the plaintiff unless he provides the name and

address of a person who has agreed to accept them by February 15,

2008. The plaintifffs motion for summary judgment (document no.

85) is denied. The defendants* motion for summary judgment

(document no. 73) is granted.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

Joseph A. DrClerico, J]V. United States District Judge

January 31, 2008

cc: Andrew B. Livernois, Esquire Danielle Leah Pacik, Esquire Dennis A. Smith, pro se

22