Cossette v. Poulin et a l . CV-06-347-JL 08/28/08 P

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Tom Cossette

v. Civil No. 06-CV-347-JL Opinion No.

Angela Poulin, Dennis Cox, and Greg Crompton

O R D E R

Plaintiff pro se Tom Cossette, an inmate at the Northern

Correctional Facility, claims that the defendants retaliated

against him for exercising his First Amendment rights. Cossette

alleges that he was removed from his job as a clerk in the prison

law library in retribution for giving a written statement to

another inmate in support of his planned lawsuit challenging an

action taken by the prison librarian, defendant Angela Poulin.

Poulin and her co-defendants, who are a major and the former

warden at the facility, have moved for summary judgment.

This court has jurisdiction over this matter under

(federal question), and heard oral argument on this

motion, in which Cossette participated by videophone, on August

26, 2008. Based on the parties' arguments there and in their

briefing, including the supplemental memoranda filed in response to this court's prior order, the court grants the defendants'

motion for summary judgment.

I. Applicable Legal Standard

Summary judgment is appropriate where the "pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to a judgment as a matter of law."

Fed. R. Civ. P. 56(c). In making this determination, the "court

must scrutinize the record in the light most flattering to the

party opposing the motion, indulging all reasonable inferences in

that party's favor." Mulvihill v. Top-Flite Golf Co.,

(1st Cir. 2003). The following background facts are set

forth in accordance with this standard.

II. Background

Beginning in June 2005, Cossette worked for Poulin as a

clerk in the prison law library, which, among other resources,

offers computers that inmates may use to perform legal research.

As an inmate law clerk, Cossette was responsible for assisting

other inmates with their research, but was not permitted to do

that research on their behalf. As compensation, he received

$1.50 in wages each weekday--sixty-five cents more than the

2 eighty-five cents in daily allowance given to inmates who do not

work--plus up to an additional one dollar bonus each day at

Poulin's discretion. During the first several months of

Cossette's employment, Poulin reprimanded him on multiple

occasions for socializing with or performing research for other

inmates while they were in the library, in violation of prison

policies. Cossette, however, says that in each instance he was

able to provide a satisfactory explanation for his behavior.

In early December 2005, Poulin spoke to Cossette and another

inmate, Allen Belton, several times for "talking too much" in the

library, though Cossette, again, says that he explained on each

occasion that he was simply answering Belton's research

questions. It was around this time, Poulin recalls, that she

sensed that a group of inmates, including Belton and, ultimately,

Cossette, were beginning to defy her authority openly.

Cossette attests that, in March 2006, he noticed that Poulin

had overcharged Belton for a "copy/printout request" by producing

more copies than he had asked for. Poulin, for her part, recalls

that Belton had instructed the legal research software on one of

the library computers to print some 268 pages of material in a

large font, and that Poulin had simply counted the pages and

charged Belton's inmate account accordingly.

3 In any event, Belton became angry about the charges,

claiming that "the computer had made a mistake." He also asked

Cossette to write a statement for Belton to use "as a basis for

[Cossette's] testimony in legal proceedings to recoup the

overcharged amount." So Cossette wrote the following:

I Thomas P. Cossette state that I was present when Allen Belton sent the document he was working on to print and to the best of my knowledge correctly followed all print procedures.

Cossette signed the statement and dated it March 6, 2006.

What happened next is a matter of considerable disagreement.

Poulin, who says the printing charge dispute actually did not

occur until March 23, says that during her discussion with Belton

on that day, Cossette "became increasingly confrontational and

argumentative" toward her, making her feel unsafe. Poulin adds

that, a few days later, she noticed Cossette talking to Belton

and another inmate who were upset that the library had opened

forty minutes later than usual. Because she perceived that

Cossette "was feeding into the complaints and anger some of these

inmates had toward the library" and herself, Poulin explains, she

warned Cossette "not to feed into other inmates' issues." Poulin

denies that this comment was intended to refer to the written

statement Cossette had given Belton.

4 Cossette, however, says that, in late March, Poulin came

upon the written statement in a packet of "legal material

concerning the overcharging" Belton had submitted for

photocopying. Cossette alleges that Poulin then called him into

her office, instructed him that "as a clerk [he] was not able to

write statements for other inmates about what happens during

[his] employment," and ordered him "to recant the statement."

Cossette says that when he refused, invoking his "right to submit

a statement," Poulin, who was "extremely upset," ordered him out

of her office. It was during this exchange, Cossette maintains,

that Poulin upbraided him for "adding fuel to the fire" of other

inmates' gripes about her and the library.

Cossette continued working in the library until April 10,

when Poulin informed him that he would be transferred to another

job within the prison. The parties also dispute what happened

during this exchange. Poulin says she explained to Cossette that

she "had to warn him too many times about chatting and doing

things for other inmates," characterizing the incident of March

23, "when Cossette became argumentative and confrontational," as

"the final straw." Cossette, however, says that Poulin told him,

"although there had been minor issues of chatting while in the

law library, the final straw was the statement" he had written

5 for Belton, which, according to Cossette, Poulin described as

"the deciding factor" in her choice to transfer him.

The parties agree that, to accomplish the transfer, Poulin

placed Cossette on "no job available" status, rather than

"reduced pay status," which the defendants describe as the

equivalent of a termination for cause within the prison

employment system: while an inmate on reduced pay status cannot

apply for another job for ninety days, an inmate on no job

available status can. Cossette, in fact, began another job

elsewhere in the prison on June 16, for a daily wage of one

dollar, and by November 1 was earning $1.50 per day, plus up to

one dollar each day in bonuses, just as he had working for

Poulin. And Cossette had continued earning his wages as a

library clerk until April 27, when his "no job available" status

became effective.

Nevertheless, Cossette immediately challenged the transfer

through the prison's inmate grievance process, where it was

affirmed by defendants Cox and Crompton. Having thus exhausted

his administrative remedies, see 42 U.S.C. § 1997e(a), Cossette

commenced the instant suit, alleging that Poulin transferred him

in retaliation for exercising his rights under the First

Amendment and that Cox and Crompton had condoned that action by

rejecting the grievances.

6 Ill. Analysis

Because "constitutional violations may arise from the

deterrent, or chilling, effect of governmental efforts that fall

short of a direct prohibition against the exercise of First

Amendment rights, . . . the government may not deny a benefit to

a person on a basis that infringes his constitutionally protected

freedom of speech even if he has no entitlement to that benefit."

Bd. of County Comm'rs v. Umbehr,

(internal

citations, quotation marks, and alterations omitted). So, even

though an inmate generally has no "constitutional right to

. . . a particular job assignment, prison officials must not

. . . deny him a job assignment in retaliation for the exercise

of a constitutionally protected activity." Beauchamp v. Murphy,

(1st Cir. 1994) (Bownes, J., dissenting); see

also, e.g., Dupont v. Saunders,

(1st Cir.

1986); Hoskins v. Lenear,

(7th Cir. 2005);

Viqnolo v. Miller,

, 1077-78 (9th Cir. 1997) .

To prevail on a retaliation claim, an inmate must establish

"(1) that the speech or conduct at issue was protected, (2) that

the defendant took adverse action against the plaintiff, and (3)

that there was a causal connection between the protected speech

7 and the adverse action."1 Davis v. Goord,

(2d

Cir. 2003) (internal quotation marks omitted); see also Smith v.

Mosley,

(11th Cir. 2008); Rauser v. Horn,

(3d Cir. 2001); Thaddeus-X v. Blatter,

(6th Cir. 1999) (en banc); Starr v. Dube,

. If the plaintiff succeeds in this showing, the burden

shifts to the defendant to prove, by a preponderance of the

evidence, that it would have taken the allegedly retaliatory

action even in the absence of the protected conduct. See

McDonald v. Hall,

(1st Cir. 1979) (citing M t .

Healthy City Sch. Dist. Bd. of Educ. v. Dovle,

(1977)); see also Starr,

.

In moving for summary judgment, the defendants argue, among

other things, that (1) Cossette did not engage in protected

speech by providing Belton with the written statement, because,

in doing so, Cossette was acting as a prison employee rather than

a private citizen, and, furthermore, he was not speaking on a

matter of public concern, (2) that Cossette's transfer from the

library job was not sufficiently adverse as a matter of law to

constitute retaliation, (3) that the transfer would have occurred

1These are the same basic elements a public employee must show to succeed on a claim arising out of retaliatory job action for exercising his First Amendment rights. See Gaqliardi v. Sullivan,

(1st Cir. 2008) . regardless of whether Cossette had given the statement to Belton,

given Poulin's ever-increasing concerns about Cossette's job

performance, and (4) the defendants are protected by qualified

immunity in any event. Because the court concludes that the

defendants are entitled to summary judgment on the first ground,

it does not reach their other arguments.

While " [a] state cannot condition public employment on a

basis that infringes the employee's constitutionally protected

interest in freedom of expression," that protection extends only

to expression "fairly considered as relating to any matter of

political, social, or other concern to the community." Connick

v. Myers,

(1983) . A public employee, then,

"has no First Amendment cause of action based on his or her

employer's reaction to the speech" unless "the employee spoke as

a citizen on a matter of public concern." Garcetti v. Ceballos,

(2006).2 Whether an employee's speech fits

2Poulin also argues that Cossette was not speaking "as a citizen" in composing the statement for Belton, because it "related to an incident involving his duties as a law library clerk." The fact that speech "concerned the subject matter of [the plaintiff's] employment," however, does not itself mean that the plaintiff was speaking as a public employee, rather than as a citizen. Garcetti,

. Instead, that distinction turns on whether the employee's "expressions were made pursuant to his duties."

There is no evidence here that Cossette's duties as a clerk included the reporting of goings-on in the library; in fact, Cossette alleges that Poulin told him he was prohibited from doing so.

9 this characterization presents a question a law for the court to

decide. See Connick,

n.7.

Applying these principles, a number of courts have refused

to recognize inmates' claims of retaliation for speech that was

not on a matter of public concern, at least where the retaliation

took the form of adverse action against the inmate's prison job.

See, e.g., Robinson v. Bovd, No. 06-15709,

, at *1

(11th Cir. Apr. 25, 2008) (unpublished disposition), petition for

cert, filed. No. 08-5424 (U.S. July 18, 2008); McElrov v. Lopac,

(7th Cir. 2005); Chambers v. Adams,

(table),

, at *l-*2 (6th Cir. 2000)

(unpublished disposition); Ruiz v. Cal. Dep't of Corrs., No. 07-

1775,

, at *3 (C.D. Cal. Apr. 22, 2008); Wesley v.

Hollis, No. 03-3130,

, at *5 (E.D. Pa. June 6,

2007); Oriakhi v. Wood, No. 05-53,

, at *5 (M.D.

Pa. Mar. 31, 2006). These courts have generally ruled that the

speech in question addressed simply "personal" matters and, as a

result, did not qualify for constitutional protection. See

McElrov,

(inmate's inquiries about whether he and

colleagues in prison sewing shop would receive "lay-in pay" upon

its closure); Chambers,

, at *2 (inmate's

suggestion that another inmate should be hired to work with him

10 as a prison law clerk); Ruiz,

, at *3 (inmate's

complaints about changes to work assignments in prison laundry).

Like the speech in these cases, Cossette's written statement

that Belton "followed all print procedures" when Poulin allegedly

overcharged him dealt with a "matter of purely individual

economic importance," rather than a matter of public concern.

McElrov,

(internal quotation marks omitted).

Cossette did not say, for example, that the alleged overcharging

was an example of Poulin's regular attempts to enrich herself by

defrauding the inmates, which could at least arguably "relate[]

to issues affecting [all] prisoners" and be "designed to effect a

change in prison policy." Pearson v. Welborn,

(7th Cir. 2006) (ruling that inmate's complaints about conditions

in particular prison unit, including lack of yard time and use of

shackles during group therapy, raised matter of public concern

capable of supporting retaliation claim); see also King v.

Litter,

(W.D. Wis. 2006) (ruling that

inmate's complaints that prison shop had imposed illegal work

schedule and engaged in racism were protected by the First

Amendment, but that his complaint about his own reduced pay was

not). In the absence of such broader significance, Cossette's

claim that Belton adhered to print procedures cannot be "fairly

11 considered as relating to any matter of political, social, or

other concern to the community." Connick,

.

Some courts have shied away from deciding whether the public

concern limitation on the free speech rights of public employees

applies to inmates at all, see, e.g., Thaddeus-X,

; Banks v. York,

(D.D.C. 2007);

Teahan v. Wilhelm, No. 06-15,

, at *10 (S.D. Cal.

Dec. 21, 2007), rept. & rec. adopted in part,

(S.D. Cal. Mar. 28, 2008), and at least one court has done so

only with reservations, see Watkins v. Kasper, No. 05-28,

, at *9-*13 (N.D. Ind. June 6, 2008) (following McElrov).

But none of these cases offers any good reason why inmate

employees should enjoy greater constitutional protection from

retaliatory actions than their nonincarcerated counterparts do,

and none is apparent to this court.

Watkins expressed doubt over "put[ting] prisoner employees

on similar legal footing to public employees" because "prisoner

employees and public employees are not similarly situated."3

3Watkins, attempting to reconcile what it perceived as conflicting Seventh Circuit precedent in this area, observed, "[i]t could be that the public concern requirement only applies when retaliation occurs in response to an inmate's speech during his prison employment."

. While some courts have applied the public concern limitation to inmates' retaliation claims unrelated to their prison jobs, see, e.g., Wesley,

, at *5, this court need not decide

12

. That is true, but principally in the

sense that the prison employment context necessitates--and

therefore tolerates--greater restraints on employees' First

Amendment rights than the public employment context does.

Indeed, as the Thaddeus-X court noted, " [p]risoners may be

required to tolerate more than public employees, who may be

required to tolerate more than average citizens," when it comes

to abridgement of First Amendment rights.

; see

also Turner v. Saflev,

(1987) (declining to

give prisoner speech same protections as non-prisoner speech).

In either case, though, the rationale for the public concern

limitation holds: "arriving 'at a balance between the interests

of the [employee], as a citizen, in commenting upon matters of

public concern and the interest of the State, as an employer, in

promoting the efficiency of the public services it performs

through its employees.'" Connick,

(quoting

Pickering v. Bd. of Educ.,

(1968) ) . Indeed, as

one court recently observed in summarizing the Supreme Court's

whether the limitation applies in that context because, here, the alleged retaliation occurred in the course of Cossette's employment. Thus, the Watkins court's concern that "[i]n the prison context, retaliation can take the form of greater restrictions on liberty," e.g., "false conduct reports, or harsher conditions of confinement"--necessitating, in that court's view, broadening the scope of protected activity,

, at *13--is not implicated here.

13 guidance in this area, the limitation applies "in situations

analogous to public employment, where free speech rights must be

balanced against the need to effectively manage a governmental

entity." Jenkins v. Rock Hill Local Sch. Dist.,

(6th Cir.), cert, denied, 128 S. C t . 2445 (2008). There can

be no doubt that prisons are among those government entities to

which effective management is vitally important. See, e.g..

Turner,

.

Thaddeus-X, the only other decision to discuss in detail

applying the public concern limitation in the prison context,

does so in the context of holding that the limitation does not

restrict inmate claims of retaliation for exercising their First

Amendment petition rights, viz., their right of access to the

courts, rather than their free speech rights; the court reasoned

that, because inmate lawsuits encompassed by the petition right

inevitably raise personal concerns, applying the public concern

limitation in that context would essentially give prison

authorities free rein to retaliate against inmates for

constitutionally protected court filings.

; see

also Friedl v. City of N.Y.,

, 87 (2d Cir. 2000) .

Whatever the legitimacy of that concern, it is not implicated

here, because Cossette alleges retaliation for exercising his

14 right to free speech, not his right of access to the courts.4

Belton, not Cossette, was the one preparing to take legal action.

The fact that Cossette spoke in an effort to assist Belton in

exercising his own asserted right of access does not transform

Cossette's speech claim into a petition claim.5 See Shaw v.

Murphy,

(2001) (holding that communications of

legal advice enjoy no greater First Amendment protection than

other speech between inmates). Moreover, Cossette acknowledged

4It is worth noting, though, that the First Circuit has held that the public concern limitation also applies to claims of retaliation for exercising the right to petition, at least in the case of public employees. Boyle v. Burke,

(1st Cir. 1991) ("absolute First Amendment protection is not accorded to any grievance a public employee files against an employer, without regard to content"); but see Rosado-Quihones v. Toledo,

(1st Cir. 2008) (Torruella, J., dissenting) (arguing that the public concern limitation should not restrict an employee's claim based on retaliation for the petition right).

5The First Circuit has held that one inmate has standing to assert a claim arising out of retaliation for helping another inmate exercise his right of access to the courts. McDonald,

(citing Johnson v. Avery,

(1969)). Putting aside the question of whether this holding survives the Supreme Court's subsequent decision in Lewis v. Casev,

(1996), which affirmed that an inmate "must show actual injury" to maintain a claim for denial of the right of access to the courts, the protected conduct at issue in McDonald was "legal assistance,"

, of the kind contemplated by the Supreme Court in Johnson,

(discussing inmates' need for legal counsel in preparing habeas petitions). Cossette, however, does not claim retaliation for providing legal assistance to Belton, but for offering testimony in support of "legal proceedings" that Belton intended to pursue solely through his own efforts.

15 at oral argument that he was claiming retaliation based solely on

the exercise of his right to speak.

Nor does the fact that Cossette spoke in anticipation of

testifying during Belton's planned "legal proceedings" against

Poulin automatically imbue the speech with First Amendment

protection in the way Cossette argues. See Pettus v. McGinnis,

(W.D.N.Y. 2008) (finding no authority

that "an inmate's testimony on behalf of another inmate . . . is

constitutionally protected") (emphasis omitted). Though the

First Circuit has yet to address the question, the majority of

the federal courts of appeals have declined to adopt a per se

rule that a public employee's testimony qualifies as protected

speech regardless of the topic, applying some "public concern"

limitation even in that context. See Kirbv v. Citv of Elizabeth

City,

, 446-47 (4th Cir. 2004); Alpha Energy Savers,

Inc. v. Hansen,

, 927 n.6 (9th Cir. 2004); Catletti

ex rel. Est. of Catletti v. Rampe,

(2d Cir.

2003); Worrell v. Henry,

(10th Cir. 2000);

Maqqio v. Sipple,

, 1352-54 (11th Cir. 2000);

Padilla v. S. Harrison R-II Sch. Dist.,

, 996-97 (8th

Cir. 1999); Wright v. 111. Dep't of Children & Family Servs.,

(7th Cir. 1994); but see Green v. Phila. Hous.

16 Auth.,

, 887 (3d Cir. 1997);6 Johnston v. Harris

County Flood Control Dist.,

(5th Cir. 1989) .

Furthermore, the circuit cases on which Cossette relies in

support of an absolute "right to testify" do not support that

view. While the Second Circuit, in Franco v. Kelly,

(2d Cir. 1988), recognized an inmate's claim of retaliation for

"cooperation with a state administrative investigation of alleged

incidents of inmate abuse at the prison," it held that this

activity "implicate[d] his broader right to petition government

for redress of grievances," rather than his right to speak,

at 589--which, as just discussed, is the right at issue here.7

6The court in Green rejected any distinction between testimony compelled by a subpoena and testimony given voluntarily for purposes of applying the public concern limitation, holding that it was satisfied in either case by the importance of the testimony to the integrity of the judicial process. 105 F.3d at 886. Because Cossette gave the statement to Belton voluntarily, this court need not consider whether such a distinction should be drawn; it is enough to reject Green's view that testimony is per se speech on a matter of public concern no matter what. Thus, Cossette's point at oral argument about retaliation against an inmate who testifies in response to a subpoena, while interesting, is merely hypothetical in this case.

7Insofar as Franco could be read as based on the plaintiff's right to free speech, it "involved grievances that were aired in connection with a New York State investigation into alleged incidents of inmate abuse by guards at the Attica Correctional Facility, clearly a matter of public concern." Sussman v. N.Y. Citv Health & H o s p s . Corp., No. 94-8461,

, at *8 n.4 (S.D.N.Y. June 16, 1999) (distinguishing Franco). So Franco does not fairly support the proposition that inmates are protected from retaliation for their speech, whatever the topic.

17 The Tenth Circuit's unpublished opinion in Zarska v.

Higgins,

(10th Cir. 2006), did reverse the

dismissal of an inmate's claim of retaliation for providing

another inmate with an affidavit supporting his claim of threats

by a guard,

, but did so without any discussion of

whether the affidavit constituted protected activity. This is

unsurprising because (1) the district court had dismissed the

claim on entirely different grounds and (2) the retaliation took

the form of a disciplinary charge, rather than any action adverse

to the plaintiff's employment, which makes the public concern

limitation inapplicable, at least in the case of non-prisoner

claims, see Campagna v. Mass. Dep't of Envtl. Prof.,

(1st Cir. 2003) (refusing to apply public concern

limitation where plaintiff, though a public employee, alleged

retaliation in the form of injury to his private business

interests, rather than action adverse to his public employment).

Zarska, like Franco, is inapposite.8

Eschewing any per se First Amendment protection for

testimony is in keeping with the First Circuit's traditional

8The other two Tenth Circuit cases on which Cossette relies are similarly unavailing; while, in both cases, the speech at issue included testimony, in each the court specifically ruled that the testimony was on a matter of public concern. Langley v. Adams County,

(10th Cir. 1993); Melton v. Citv of Okla. Citv,

, 713-14 (10th Cir. 1989) .

18 reluctance to treat particular types of speech as categorically

raising matters of public concern. See Daviqnon v. Hodgson,

, 101 (1st Cir. 2008) (declining to treat speech related

to union activity as on a "matter of 'inherent public concern'");

Fabiano v. Hopkins,

(1st Cir. 2003) (declining

to treat lawsuit involving zoning as "inherently a matter of

public concern"). This reluctance reflects a worry over creating

a jurisprudence that "would sweep nearly every public act under

First Amendment protection." Fabiano,

. So, with

a few, narrow exceptions, the First Circuit has engaged in "a

case-specific, fact-dependent inquiry" into "the content, form,

and context of a given statement as revealed by the whole record"

to discern whether it addresses a matter of public concern.

Daviqnon, 524 F.3d at 101.

This court concludes, in line with circuit precedent, that

this inquiry is necessary even when the speech is testimonial in

nature and that, as discussed supra, the content, form, and

context of Cossette's written statement to Belton show that it

did not deal with a matter of public concern, but was "personal

in nature and not related to [the prison's] broader policies."

Id. at 102 (citing Saulpauqh v. Monroe Cmtv. Hosp.,

,

143 (2d Cir. 2002)); see also Wallace v. Sch. Bd.,

(M.D. Fla. 1998) (ruling that employee had not

19 spoken on matter of public concern by giving written statements

to coworker in support of his suit against their employer).9

Because Cossette was not engaged in activity protected by

the First Amendment when he provided Belton with the written

statement attesting to his adherence to proper print procedures

in the prison library, his retaliation claim fails. The

defendants are entitled to summary judgment.10

9The court does not suggest that an inmate is never speaking on a matter of public concern when he offers testimony in support of another inmate's complaint, see, e.g., Catletti,

(ruling that, in testifying at trial in support of whistleblower action by prison nurses, prison administrator had spoken on a matter of public concern, "[t]he quality of mental health services provided in the County prison"), simply that such speech is not per se protected by the First Amendment regardless of the nature of the complaint or the testimony. Thus, this court agrees with Gav v. Shannon, No. 02-4693,

, at *8-*9 (E.D. Pa. Mar. 1, 2005), aff'd ,

(3d Cir. 2006) (unpublished disposition), insofar as it rejects the view that an inmate never can claim retaliation for testifying as a non-party witness. But that decision also does not stand for the equally categorical proposition that an inmate always can make that claim, regardless of the subject of the testimony; indeed, the Third Circuit noted in affirming the Gav decision that the defendant "did not dispute that [the inmate] engaged in protected activity" by testifying.

. This court also recognizes that there may be "'legitimate penological interests'" that support restrictions on an inmate's testimony, even when it does deal with a matter of public concern, Gav,

, at *9, but need not consider that issue here because the defendants have not raised it.

10Since Cossette has no constitutional claim against Poulin for transferring him, it follows that he also has no constitutional claim against Cox and Crompton for affirming that decision. See Rivera v. Rhode Island,

(1st Cir. 2005) .

20 IV. Conclusion

For the foregoing reasons, the defendants' motion for

summary judgment (document no. 13) is GRANTED. The clerk shall

enter judgment accordingly and close the case.

SO ORDERED.

Dated: August 28, 2008

cc: Tom Cossette, pro se Deborah B. Weissbard, Esq.

21