UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jose Miguel Hilario

v. Civil No. 14-cv-193-JL Opinion No.

Esker L. Tatum, Jr.1

O R D E R

Before the Court is Defendant’s Motion (doc. no. 11) to

rescind this Court’s May 7, 2014 Order (doc. no. 4). The Order

directed Defendants not to place the Plaintiff, Jose Miguel

Hilario, into “general population” at the Federal Correctional

Institute, Berlin, New Hampshire (“FCI Berlin”), where Hilario

is presently incarcerated, and to house Hilario, to the extent

practicable, in a manner that will keep him safe from harm. The

Court held an evidentiary hearing on August 11, 2014, on the

Motion to rescind and on Hilario’s request that the Court

maintain the May 7 Order. Also before the Court are a number of

motions filed by Hilario (doc. nos. 22, 24, 32, and 41) and

Defendants’ Motion to Dismiss (doc. no. 37).

1The defendants in this action, who are all sued in their official capacities, are Federal Correctional Institution, Berlin, New Hampshire employees Warden Esker Tatum, Lt. Jeremy Hess, and Lt. Howard Andy. BACKGROUND2

I. Plaintiff’s Evidence

A. April 3 and 4, 2014

At the August 11 hearing, Hilario testified that he arrived

at the FCI Berlin on April 3, 2014. Hilario testified that, at

the time of his arrival, he believed that the inmates with whom

he had been transported to FCI Berlin, and who were subsequently

housed with Hilario at the FCI Berlin, were circulating rumors

about Hilario being a sex offender.3 Upon his arrival at FCI

Berlin, Hilario expressed concern to FCI Berlin staff that he be

housed where it would be safe for him as a sex offender.

Shortly thereafter, at about 8:45 p.m., Hilario was placed on

“C-1 Unit,” in general population.

Hilario’s cellmate on C-1 Unit on April 3, 2014 (“Cellmate

1”), immediately asked Hilario about his incarcerating offense.

Hilario eventually told Cellmate 1 that he was a sex offender.

Cellmate 1 told Hilario that he could not stay on the unit

unless he could produce court papers to demonstrate that he was

2For purposes of resolving the Plaintiff’s request for an injunction, and the Defendants’ Motion to Rescind (doc. no. 11), the Court considers the testimony, argument, and exhibits presented at the August 11, 2014, hearing in this matter. 3Hilario is incarcerated pursuant to his convictions for possession and distributing child pornography. See United States v. Hilario, 1:08CR00079-01ML (D.R.I.); see also Defs’ Ex. 1.

2 not a sex offender within a month. The following morning,

Hilario reported Cellmate 1’s statement, which Hilario

understood to be a threat, to the C-1 Unit officer. Hilario was

immediately transferred to the Special Housing Unit (“SHU”)

while the threat was investigated.

On April 9, 2014, FCI Berlin authorities met with Hilario

and informed him that they could not verify a threat to Hilario

on C-1 Unit. Warden Esker Tatum directed that Hilario be

returned to C-1 Unit. On April 13, 2014, the eve of Hilario’s

return to C-1 Unit, Hilario filed an “Inmate Request to Staff”

form, directed to Tatum, stating that he had actually been

assaulted by Cellmate 1 on April 3, 2014, but had not previously

reported the assault because he was afraid for his safety in the

institution if he was identified as a “snitch.”

B. April 14, 2014

Hilario was returned to C-1 Unit on April 14, 2014.

Hilario states that in his C-1 Unit cell, his cellmate, a

different individual than his cellmate on April 3, 2014

(“Cellmate 2”), stated that Hilario could not stay in that cell,

and punched Hilario on the left side of his face. Hilario said

that he was in his cell for a short time, approximately three to

five minutes.

3 When Hilario left his cell, he went to the C-1 Unit office

and told the corrections officer there that he wanted to see a

lieutenant. Hilario was sent to Lt. Jeremy Hess’s office.

Hilario told Lt. Hess that he needed protective custody, and

began to explain what had just occurred in his cell, but Lt.

Hess told Hilario instead to fill out a “Protective Custody”

form. Lt. Hess placed Hilario in the “tank” to fill out the

form, but two to three minutes later, before Hilario had a

chance to complete the form, and before he had written down that

he was assaulted, Lt. Hess snatched the form out of Hilario’s

hands and told Hilario that he was not going to send him to

protective custody.

A corrections officer then directed Hilario to return to

his cell on C-1 Unit. Hilario refused, stating that he feared

his life was in jeopardy on that unit. Accordingly, Hilario was

transferred to SHU and issued a disciplinary incident report for

the refusal. Hilario testified that later, upon Hilario’s

report that he had been assaulted by Cellmate 2, he was seen and

medically assessed by FCI Berlin Nurse Christine Larin, who

determined that Hilario had an injury on the left side of his

face.

FCI Berlin officials determined again that the alleged

April 14, 2014, threat and assault were not verified, and that

4 Hilario should be returned to a general population unit.

Hilario has remained at SHU, however, since April 14, 2014,

during the investigation of the asserted threat, and, since May

7, 2014, pursuant to the May 7 Order.4

II. Defendants’ Evidence

A. April 3 and 4, 2014

On April 3, 2014, Hilario arrived at the FCI Berlin.

During an intake interview with Special Investigative Services

(“SIS”) Technician Glen Brown, Hilario stated that he did not

have any known enemies or threats to him at the FCI Berlin.

Hilario was then placed on C-1 Unit in general population. On

April 4, 2013, Hilario saw Lt. Hess and requested protective

custody status on the basis that, as a sex offender, he was not

safe in general population, and that inmates had been requesting

to see his court papers to determine whether he was a sex

offender and therefore should get himself removed from C-1 Unit.

Hilario was immediately removed to SHU during an

investigation of the threat alleged. Brown interviewed Hilario

at SHU. Hilario reported to Brown that, because he was

4TheCourt did not intend for the May 7 Order to serve as a specific directive to the Defendants to house Hilario in SHU. At the August 11, 2014, hearing, the Defendants represented to the Court that SHU is the only alternative to general population housing at FCI Berlin.

5 incarcerated on a sex offense, he had been asked to produce his

court papers and harassed, both by Cellmate 1 and by Hilario’s

fellow Dominican inmates on C-1 Unit.

On April 6, 2014, Brown interviewed both Cellmate 1 and a

Dominican inmate in connection with Hilario’s allegations. Both

inmates told Brown that they were not involved with checking

court papers, that they had no issues with Hilario, and that

Hilario could return to C-1 Unit. Unable to confirm that there

was any threat to Hilario’s safety, Brown recommended that the

alleged threat be deemed unverified, and that Hilario be

returned to general population. After a meeting on April 9,

2014, attended by Hilario, Brown, Warden Tatum, and other FCI

Berlin officials, Esker told Hilario that he would be returned

to general population. Hilario was released to C-1 Unit on

April 14, 2014.

B. April 14, 2014

Hilario arrived on the C-1 Unit at 1:35 p.m. on April 14,

2014. At approximately 2:45 p.m., Hilario went to the C-1 Unit

lieutenant’s office and reported to Lt. Hess that he had been

threatened and that his life was in danger in general

population, and requested protective custody status. Lt. Hess

testifed that he spoke with Hilario for 15 - 30 minutes, during

which time Hilario gave at least three different accounts of who

6 had threatened him, first stating it was someone on his unit,

then that it was Cellmate 2, who Hilario described as Hispanic,

and then that it was four to seven of Cellmate 2’s friends on

the unit. When Lt. Hess said that he could watch the video feed

on the unit to help determine who had made the reported threat,

Hilario stated that it was the same person who had assaulted him

on April 3. Lt. Hess testified that he asked Hilario a number

of times if he had been assaulted on April 14, 2014, and Hilario

never said that he was hit.

Lt. Hess then gave Hilario a form on which to request

protective custody status, placed Hilario in the holding cell in

his office, and told him to fill out the form. At that time,

among other inconsistencies in Hilario’s statements, Lt. Hess

determined that Cellmate 2 was African-American, not Hispanic.

Hess also spoke with the C-1 Unit officer, who had not noticed

anything unusual on the unit.5 Hess contacted the SHU and was

5Although it does not bear on the decision in this Order, the Court finds it concerning that when FCI Berlin Lt. Derek Myers testified that the C-1 Unit officer did not notice anyone threatening or harming Hilario, Lt. Myers added that, as the FCI Berlin units are large, the officer probably wouldn’t have noticed such behavior anyway. Under certain circumstances, not present here, inadequate staffing on a prison housing unit, such that threat or harm might come to an inmate without being noticed, and FCI Berlin officials’ awareness of that inadequacy, could constitute evidence of deliberate indifference to a serious risk to inmate safety.

7 told that there had been no problems with Hilario’s release from

SHU to C-1 Unit earlier that day.

Lt. Hess testified that because there was “not a whole lot”

of credible information provided by Hilario, he chose not to

pursue Hilario’s request for protective custody. Lt. Hess

testified that he then snatched the Protective Custody form out

of Hilario’s hands.6 Hess told Hilario that he would not send

him to SHU based on his request for protective custody, and

further advised Hilario that the only way he could get to SHU at

that point was to refuse a direct order to return to general

population. Lt. Hess also told Hilario that such a refusal

would result in immediate placement in SHU, and the issuance of

a disciplinary report to Hilario for refusing a direct order.

Lt. Hess then told another officer to give Hilario a direct

order to return to his housing unit. The officer twice directed

Hilario to return to general population. Hilario refused the

order and was taken to SHU and later issued a disciplinary

report.

6Lt. Hess testified that the form was ultimately shredded, but would have been made part of Hilario’s file if the threat alleged had ultimately been verified. As the Court noted at the hearing, the destruction of a written request for protective custody is not a good investigative or administrative practice, and could be deemed under certain circumstances, although not in this case, as evidence of deliberate indifference to a serious risk to an inmate’s safety.

8 At 3:30 p.m., while Hilario was still in the lieutenant’s

office on C-1 Unit awaiting transport to SHU, Lt. Derek Myers

came on duty and relieved Lt. Hess at the end of his shift. Lt.

Hess told Lt. Myers that Hilario had requested protective

custody status, alleging that he had been threatened, and that

Hilario was scared to stay in general population. Lt. Hess also

told Lt. Myers that Hilario had refused to return to C-1 Unit

and was thus going to be placed at SHU. Lt. Myers decided to

conduct his own investigation of the threat incident, and

questioned Hilario briefly before having Hilario escorted to SHU

at approximately 3:50 p.m. Hilario told Lt. Myers that he had

been threatened, but did not report being assaulted. Once

Hilario was in SHU, another officer advised Lt. Myers that

Hilario had reported being assaulted on C-1 Unit that day. Lt.

Myers then directed that Hilario be medically assessed. An SIS

investigation was initiated. Lt. Myers reviewed the C-1 Unit

video feed from 1:30 p.m. to 2:45 p.m. on April 14, 2014, and

saw no evidence of an assault on Hilario. Lt. Myers stated that

the video did not reach into Hilario’s cell, but did show

Hilario going into his cell twice, for no more than six seconds

each time. Further, Lt. Myers testified that Hilario’s demeanor

on the unit was calm, and that Hilario had a conversation with

Cellmate 2 outside of his cell after leaving his cell for the

9 second time, and then lingered in the common area for

approximately twenty minutes before going to the unit office to

request protective custody status.

Lt. Myers and Lt. Hess both testified that in their

dealings with Hilario between 1:35 p.m. and approximately 7:00

p.m., they saw nothing in Hilario’s appearance to suggest that

he had been assaulted. A medical assessment was conducted by

FCI Berlin Nurse Christine Larin during the evening of April 14,

2014. Nurse Larin’s report indicates that Hilario reported

being punched in the left cheek, that Hilario had “slight

redness to [his] left upper cheek” and “some tenderness on

palpation,” but no “raccoon eyes, laceration(s), abrasion(s),

[or] swelling.”

On April 24, 2014, Brown interviewed Hilario concerning his

second protective custody request. Brown also interviewed other

inmates, including Cellmate 2, who stated that they had not

assaulted or threatened Hilario, and had no issue with him.

Brown also viewed the C-1 Unit video feed from approximately

1:50 to 3:50 p.m., and did not see any evidence of an assault on

the tape. Brown conceded that he did not view the video for the

first fifteen minutes Hilario spent in C-1 Unit on April 14,

2014, and that the video feed did not provide a view inside

Hilario’s cell. Based on his investigation, and the fact that

10 Hilario had stated he would be willing to be housed in a general

population unit if no one there presented any threat to him,

Brown recommended that Hilario be released from SHU and returned

to general population.

C. Sex Offenders at FCI Berlin

Brown testified that, as of the date of the August 11

hearing, there were 86 sex offenders at FCI Berlin. In addition

to Hilario, five other sex offenders were in SHU based on

allegations that they had been pressured while in general

population to produce their court paperwork. Eighty sex

offenders were living safely in general population units.

Defendants represented at the hearing that no sex offender

presently at FCI Berlin, other than Hilario, has reported being

assaulted there. At the hearing, evidence was also presented

that there are 12 general population units at FCI Berlin, and

that if returned to general population, Hilario would not

necessarily be returned to C-1 Unit.

DISCUSSION

I. Preliminary Injunction Standard

“A plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that he is

likely to suffer irreparable harm in the absence of preliminary

11 relief, that the balance of equities tips in his favor, and that

an injunction is in the public interest.” Winter v. Natural

Res. Def. Council, Inc.,

(2008); see also Peoples

Fed. Sav. Bank v. People’s United Bank,

(1st Cir.

2012). The party seeking the injunction bears the burden of

proof. See González-Droz v. González-Colon,

(1st Cir. 2009).

II. Likelihood of Success on the Merits

Demonstrating a likelihood of success on the merits of the

underlying claims in the lawsuit is a prerequisite to obtaining

preliminary injunctive relief. See Esso Standard Oil Co. v.

Monroig-Zayas,

(1st Cir. 2006) (“if the moving

party cannot demonstrate that he is likely to succeed in his

quest,” preliminary injunctive relief is properly denied without

further analysis). Hilario’s underlying claim is that the

Defendants violated his Eighth Amendment rights by failing to

protect him from a substantial risk of serious harm when they

assigned him to a general population unit at the FCI Berlin on

April 3, 2014, and again on April 14, 2014. To show that he is

likely to succeed on the merits of that claim, Hilario must

demonstrate that the Defendants acted with “deliberate

indifference” to a “substantial risk” that Hilario would be

12 subject to “serious harm” in general population. Farmer v.

Brennan,

(1994) (citation omitted). To

demonstrate deliberate indifference, Hilario must show that the

Defendants were aware of and disregarded an excessive risk to

his safety. See

. A prison official does not

violate the Eighth Amendment if he “respond[s] reasonably to the

risk, even if the harm ultimately was not averted.”

.

In this instance, the testimony from both parties

demonstrated that both times Hilario was placed in general

population and reported a threat to his safety, he was placed in

SHU pending investigation of his allegations. Although the

testimony at the hearing suggested that the investigations were

not as thorough, objective, or effective as they could have

been, the investigations were sufficient to allow the Court to

find that the Defendants responded reasonably to Hilario’s

allegations under the circumstances presented to them. Even if

the findings of the investigations were incorrect, or the

investigations were conducted in a negligent fashion, the

evidence at the hearing showed that neither Hilario’s

allegations of threats, nor the potential risk of harm to

Hilario in general population, were disregarded by the

Defendants. Hilario thus failed to meet his burden to

demonstrate that Defendants acted with deliberate indifference.

13 Accordingly, Hilario did not demonstrate that he is likely to

succeed on the merits of the underlying claims in this action.

III. Irreparable Harm

Even if Hilario were able to demonstrate that he was likely

to succeed on the merits of his underlying claims, he has failed

to demonstrate that he will be subject to irreparable harm

absent an injunction. Demonstration of irreparable harm in the

absence of an injunction is required to obtain preliminary

injunctive relief. See Voice of the Arab World, Inc. v. MDTV

Med. News Now, Inc.,

(1st Cir. 2011) (citing 11A

Charles Alan Wright, Arthur Miller & Mary Kay Kane, Federal

Practice and Procedure § 2948 (2d ed. 1995) (“Perhaps the single

most important prerequisite for the issuance of a preliminary

injunction is a demonstration that if it is not granted the

applicant is likely to suffer irreparable harm before a decision

on the merits can be rendered.” (internal quotation marks and

citation omitted))). To demonstrate irreparable harm, the

plaintiff must state facts to show more than speculation that he

might suffer harm in the future if the court fails to issue the

requested injunction. See Narragansett Indian Tribe v.

Guilbert,

, 6–7 (1st Cir. 1991) (“‘[s]peculative

injury does not constitute a showing of irreparable harm’”

(citation omitted)).

14 Hilario contends that, as a sex offender, and as someone

who, since reporting the threats that form the basis of this

action, is likely to be labelled a “snitch,” his life will be in

danger if he is returned to general population. In support of

this assertion, Hilario claims that during each of his two brief

stays in C-1 Unit in April 2014, he was threatened and assaulted

by other inmates because he is a sex offender. The Defendants

counter that the investigations found no verifiable threat to

Hilario’s safety.

The burden to demonstrate that irreparable harm does exist,

however, is Hilario’s, and he failed to meet it. As the Court

stated on the record at the August 11 hearing, Hilario has

convinced the Court that he is sincerely afraid for his safety

in a prison setting if he is not placed into protective custody.

However, Hilario failed to present credible evidence at the

hearing that he would, in fact, be in imminent danger of

irreparable harm if the May 7 Order were rescinded. Hilario’s

accounts of threats and assaults, both at the hearing and at FCI

Berlin, have been inconsistent, at best. The only other

evidence of assault was a red mark on Hilario’s face, without

swelling, that a nurse saw on the evening of April 14, 2014, but

that neither Lt. Myers nor Lt. Hess, who each spoke at some

length with Hilario that afternoon, received a report of an

15 assault, or saw any mark on Hilario’s face, at that time.

Without more, the evidence of redness on Hilario’s face is

insufficient to lend sufficient credence to Hilario’s account of

events to allow the Court to find that irreparable harm to

Hilario will result if the Court rescinds the May 7 Order.

Even if the Court were to accept, for the sake of argument,

that Hilario was threatened and assaulted on April 3 and April

14, 2014, however, Hilario cannot demonstrate that, absent the

Court’s maintaining the May 7 Order, he would be subject to

irreparable harm. The evidence at the hearing showed, and

Hilario did not deny, that Hilario need never return to general

population at FCI Berlin if he does not feel safe there,

regardless of the findings of any threat investigation. Hilario

has the right to refuse to be housed in general population, and

to stay in SHU. Although refusing general population placement

would result in disciplinary action and sanctions against

Hilario, no nonspeculative evidence was presented at the hearing

indicating that those sanctions would be so severe as to

constitute irreparable harm.

Although Hilario testified that while housed at SHU he was

threatened and assaulted by his cellmate there, he also

testified that FCI Berlin officials, upon Hilario’s report of

that incident, immediately conducted a medical assessment, and

16 protected his safety by moving him to another cell. Further,

the evidence at the hearing demonstrated, first, that of the 86

sex offenders housed at FCI Berlin as of the date of the

hearing, 80 were being housed safely in general population.

Accordingly, Hilario has failed to meet his burden to

demonstrate that he will suffer irreparable harm if the Court

rescinds the May 7 Order.7

IV. Other Preliminary Injunction Factors

The Court need not make any finding concerning the balance

of hardships or whether an injunction here would further public

7TheDefendants largely found Hilario’s allegations to be unverified because Hilario’s statements concerning who had threatened him, and whether he had been assaulted, were inconsistent. To determine whether Hilario’s allegations could be verified, Lt. Myers and Brown watched video feed for April 14, 2014, that did not show the inside of Hilario’s cell, where Hilario alleged the assault occurred, and, in Brown’s case, did not include 15 minutes of video feed during which an assault could have occurred. Further, Brown’s primary investigative tool appears to have been asking the inmates Hilario had accused whether they had threatened or assaulted Hilario, and whether they had any reason to believe Hilario would not be safe in general population. Brown, for purposes of his investigation, accepted those inmates’ denials of wrongdoing and assurances that they had no problem with Hilario. Brown relied on those statements, despite the fact that he believes inmates tell him the truth less than ten percent of the time when he asks them about their alleged wrongdoing, in recommending Hilario be returned to general population. The Court notes that, while Plaintiff failed to carry his burden in this instance, the efforts of the Defendants to determine the validity of an alleged threat or assault on an inmate, at least as presented at the August 11 hearing, appear to lack objectivity, thoroughness, effectiveness, or the delicacy that may be required to get to the truth in such circumstances.

17 interest, as Hilario has demonstrated neither likelihood of

success on the merits of his complaint nor irreparable harm.

V. Other Motions

At the August 11, 2014, hearing, the Court announced, on

the record, how it was inclined to rule on a number of motions

pending in this case, including Plaintiff’s: “Motion to Order

the Defendants to Stop Giving Code Violations” (doc. no. 22);

“Motion to Request Summary Judgment at the Conclusion of this

Bivens Claim” (doc. no. 24); “Motion to Request that the Court

Order AUSA to Give Answers to Plaintiff’s Constitutional

Questions” (doc. no. 32); “Motion for Protective Custody Status”

(doc. no. 41); and Defendants’ “Motion to Dismiss” (doc. no.

37). The Court’s statements concerning these motions were

docketed as oral orders. The Court’s intention was not to issue

final orders on those matters but, as the Court stated

specifically with regard to the Motion to Rescind (doc. no. 11),

the Court intended to take those matters under advisement, and

to review the evidence prior to issuing its Order. Accordingly,

the Court now directs that the “Oral Orders” docketed on August

11, 2014, denying the motions docketed at numbers 22, 24, 32,

37, 41, and 42, be vacated. The Court’s rulings on those

motions are contained in this Order.

18 VI. Rulings on Other Motions

A. Plaintiff’s “Motion to Request that this Court Order the Defendants to Stop Giving ‘Code Violations’. . .” (Doc. No. 22)

Hilario has asserted that on two occasions in June 2014,

FCI Berlin officials who had not been made aware of the Court’s

May 7 Order, directed Hilario to return to general population,

and then initiated disciplinary action against Hilario when he

refused to do so. At the August 11 hearing, Defendants admitted

that the May 7 Order had not been effectively communicated to

all relevant FCI Berlin officials. However, the evidence at the

hearing demonstrated that once approproate officials were made

aware of the May 7 Order, the disciplinary actions and sanctions

imposed thereon were rescinded and/or expunged, and thus did not

impact Hilario. Further, the Court finds that the failure to

communicate its Order, while less than commendable, did not

constitute willful disregard of a Court order sufficient to

warrant a contempt finding, as requested in Plaintiff’s motion.

In his Motion, Hilario also requested an order directing

that he be transferred to a different facility that is safer for

sex offenders. For the reasons explained above, the Court finds

that no such Order is warranted. Accordingly, Hilario’s motion

(doc. no. 22) is denied.

19 B. Hilario’s “Motion to Request Summary Judgment, at the Conclusion of this Bivens Claim Herein” (Doc. No. 24)

While titled as a motion for summary judgment, Hilario’s

Motion (doc. no. 24) largely reiterates Hilario’s request for

injunctive relief, and also adds a request for compensatory and

punitive damages. To the extent the Motion reiterates Hilario’s

claim for injunctive relief, it is denied for the reasons stated

in this Order. If Hilario seeks to add claims for damages to

this action, he must do so by properly filing a motion to amend

his complaint seeking such relief against appropriate

defendants. Accordingly, the Motion (doc. no. 24) is denied

without prejudice to Hilario filing a motion for summary

judgment or a motion to amend his complaint.

C. Hilario’s “Motion to Request that this Court Orders . . . [an] “Answer” to Plaintiff’s Constitutional Question(s) Herein” (Doc. No. 32)

The Court cannot find any cognizable request for relief in

Hilario’s Motion. Further, nothing in the Motion appears

relevant to any issue in this case. Accordingly, the Motion

(doc. no. 32) is denied.

D. Hilario’s “Motion to Request that this Court Order the Defendants to Give the Plaintiff Protective Custody Status . . .” (Doc. No. 41)

Hilario asserts that when he submitted an administrative

grievance requesting protective custody status, FCI Berlin

20 officials informally resolved the grievance. Hilario believed

the informal resolution included Defendants’ promise to give

Plaintiff protective custody status. Hilario seeks an Order

directing that the promise be enforced. The Court finds that no

such promise existed, and thus there is nothing to enforce.

Further, for the reasons explained in this Order and during the

August 11 hearing, the Court finds that directing the Defendants

to place Hilario in protective custody is inappropriate.

Accordingly, the Motion (doc. no. 41) is denied.

E. Defendants’ “Motion to Dismiss” ((Doc. No 37)

Defendants have filed a motion to dismiss asserting that

Hilario has failed to exhaust his administrative remedies in

this matter. Because the motion requires consideration of

evidence outside of the pleadings, it is not properly considered

as a motion to dismiss, but instead, as a motion for summary

judgment. Accordingly, the Motion (doc. no. 37) is denied

without prejudice to Defendants’ refiling the motion as one for

summary judgment.

VII. Notice of Interlocutory Appeal

On August 15, 2014, Hilario filed a document in this matter

entitled “Notice of Appeal” (Docket No. 45-1). In general, the

District Court loses jurisdiction in a case once a party files a

21 notice of appeal, as such a filing ordinarily transfers

jurisdiction over the case, or at least of matters in the case

related to the appeal, to the appellate court. However, certain

exceptions to that rule exist.

A district court can proceed, notwithstanding the filing of an appeal, if the notice of appeal is defective in some substantial and easily discernible way (if, for example, it is based on an unappealable order) or if it otherwise constitutes a transparently frivolous attempt to impede the progress of the case.

United States v. Brooks,

(1st Cir. 1998).

“Where the order in question is manifestly unappealable, the

court of appeals never gains jurisdiction of it and,

consequently, the district court never loses jurisdiction of

it.” United States v. Ferris,

(1st Cir. 1984)

(citing 9 Moore's Federal Practice ¶ 203.11, 3-51-52). “In such

a case, the district court may ignore the appeal and proceed

with the case, ‘[o]therwise, a litigant could temporarily

deprive a court of jurisdiction at any and every critical

juncture.’”

(internal citation omitted).

Here, it appears that Hilario seeks to appeal the “Oral

Orders” which, as the Court now clarifies, this Court did not

intend to issue as final Orders. Because the Court has vacated

the “Oral Orders” as clerical docketing errors, Hilario’s

“Notice of Appeal” does not pertain to an appealable Order in

this matter. Accordingly, this Court finds that it maintains

22 jurisdiction over the issues before the Court related to

Hilario’s custody, security status, and housing placement.

CONCLUSION

For the foregoing reasons, and for the reasons stated on

the record at the August 11, 2014, hearing in this matter:

1. Defendants’ “Motion to Rescind” (doc. no. 11) the Court’ May 7, 2011, Order (doc. no. 4) granting certain injunctive relief is GRANTED and the order is vacated to the extent it directed Defendants not to place Hilario in general population and to house him, to the extent practicable, where he will not be likely to suffer harm.

2. Plaintiff’s “Motion to Request that this Court Order the Defendants to Stop Giving ‘Code Violations’ . . .” (doc. no. 22) is DENIED.

3. Plaintiff’s “Motion to Request Summary Judgment, at the Conclusion of this Bivens Claim Herein” (doc. no. 24) is DENIED.

4. Plaintiff’s “Motion to Request that this Court Orders . . . [an] ‘Answer’ to Plaintiff’s Constitutional Questions Herein” (doc. no. 32) is DENIED.

5. Defendants’ “Motion to Dismiss” (doc. no. 37) is DENIED without prejudice to Defendants’ refiling the motion as one for summary judgment.

6. Plaintiff’s “Motion to Request that this Court Order the Defendants to Give the Plaintiff Protective Custody Status . . .” (doc. no. 41) is DENIED.

7. The Clerk’s Office is directed to correct the docket in this matter to indicate that the Oral Orders docketed on August 11, 2014, were docketed in error, and to clarify

23 that those Orders were in fact taken under advisement on that date.

SO ORDERED.

______________________________ Joseph N. Laplante United States District Judge

September 3, 2014

cc: Jose Miguel Hilario, pro se T. David Plourde, Esq.

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