AYOTTE v. BARNHART et al

Filing 79

ORDER adopting 67 Report and Recommended Decision for 50 Motion for Summary Judgment filed by CURTIS DOYLE, DWIGHT FOWLES, PATRICIA BARNHART, MARTIN MAGNUSSON, DAVID CUTLER; granting in part and denying in part 50 Motion for Summary Judgment. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
KEITH AYOTTE,
Plaintiff,
v.
PATRICIA BARNHART, et al.,
Defendants.

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1:11-cv-00331-JAW

ORDER AFFIRMING THE RECOMMENDED DECISION OF
THE MAGISTRATE JUDGE
Keith Ayotte, an inmate at the Maine State Prison (Prison) in Warren, filed a
lawsuit against Patricia Barnhart, Dwight Fowles, Martin Magnusson, David
Cutler, and Curtis Doyle in their individual capacities as prison officials for the
Maine State Prison system. Mr. Ayotte claims the Defendants failed to protect him
from a substantial risk of harm–an assault with a padlock―in the Prison and that
two of the Defendants retaliated against him for filing complaints about Prison
conditions. He alleges violations of the First and Eighth Amendments of the United
States Constitution pursuant to 42 U.S.C. § 1983 (§ 1983), the federal Civil Rights
Act, and pursuant to 5 M.R.S. § 4682, the Maine Civil Rights Act (MCRA). The
Defendants moved for summary judgment on all counts. On March 11, 2013, the
Magistrate Judge recommended that the Court grant the motion on Mr. Ayotte’s
padlock policy claim but deny summary judgment on his retaliation claim against
David Cutler and Curtis Doyle.

After conducting a de novo review, the Court

affirms the Magistrate Judge’s recommendations, granting in part and denying in
part the Defendants’ Motion for Summary Judgment.
I.

BACKGROUND
A.

Factual Overview

The Court adopts the Magistrate Judge’s recitation of the facts and includes a
brief factual summary here to give immediate context.1 See Recommended Decision
at 2-6 (ECF No. 67) (Rec. Dec.). On October 28, 2010, Mr. Ayotte was assaulted by
fellow inmate, Mark Harris, at the Prison. Id. at 2. Mr. Harris struck Mr. Ayotte in
the head and face from behind, knocking him unconscious and causing him head
and facial injuries. Id. The assault occurred in a Prison living unit where inmates
had dangerous criminal backgrounds. Id.
The Defendants dispute whether Mr. Harris used a padlock during the
assault but recognize that inmates sometimes use padlocks as weapons. Id. at 3.
The officer who witnessed the assault did not have a direct view of the attack at
first, but once she could see the two inmates, she stated she only saw Mr. Harris
punching Mr. Ayotte with his fists. Id. Mr. Ayotte asserts that Mr. Harris struck

Mr. Ayotte did not object to the Magistrate Judge’s recitation of the facts regarding the
number of padlock attacks in the prison but objected to her application of the facts to the relevant
law. See Pl.’s Partial Obj. to Magistrate’s Recommended Decision at 3-4, 10-11, 14 (ECF No. 68) (Pl.’s
Obj.) (“Again, these facts were specifically accepted by the Magistrate in her consideration of
Defendants’ deliberate indifference, but she erroneously found them not to rise to the level of such
indifference”). Similarly, Mr. Doyle accepted the Magistrate’s version of the facts for the purposes of
summary judgment. See Obj. to Report and Recommended Decision (ECF No. 72).
Mr. Ayotte challenges one of the Magistrate Judge’s factual findings related to the
Defendants’ knowledge of a risk of padlock assaults in the Prison; however, because the Court
concludes there is no genuine dispute of material fact on the first element of Mr. Ayotte’s Eighth
Amendment claim, it does not reach this factual dispute. Pl.’s Obj. at 3.
1

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him with a padlock and cites a certified medical record, which states that the
assailant “apparently took a padlock in a sock and swung it at [Ayotte’s] head.” Id.
In two related padlock cases brought by inmates at the Prison, David Lakin
alleges that he was assaulted with a padlock by an inmate on September 10, 2010
and Gerard Landry alleges he was assaulted with a padlock on September 6, 2011.2
Id. at 4-5. Including numbers from Mr. Lakin’s and Mr. Landry’s padlock cases, the
Magistrate Judge concluded that from January 2004 until June 2012, there were
370 reported inmate-on-inmate assaults at the Prison of which 17 assaults involved
padlocks.

Id. at 5-6.

With respect to total reported inmate-on-inmate assault

incidents at the Prison per year, there were at least 25 in 2007, 28 in 2008, 50 in
2009, 48 in 2010, 51 in 2011, and 86 in the first nine months of 2012. Id. at 6. In
2009, an inmate died from one incident of inmate-on-inmate violence, which does
not appear to have involved a padlock. Id. at 7.
In the months preceding Mr. Ayotte’s assault, there had been an increase in
the number of padlock assaults at the Prison. Id. at 6. Prison records indicate that
there were no padlock assaults in 2007, two in 2008, two in 2009, six in 2010
(including the assault on Mr. Ayotte), one in 2011, and one in 2012. See id. Mr.
Ayotte’s assault was the fourth padlock assault in 2010 out of a total of six. Id.
The Prison has a practice of issuing padlocks to all inmates, except those in
segregation, as a means of securing their personal belongings. Id. at 7. Prison
authorities are required under Maine law to provide inmates with some means to
Throughout her decision, the Magistrate Judge referenced the two companion padlock
assault cases, Lakin v. Barnhart, 1:11-cv-00332-JAW, and Landry v. Barnhart, 1:12-cv-00016-JAW.
Id. at 4-6.
2

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secure their belongings. Id. Mr. Ayotte disputes that padlocks are necessary in his
housing pod because the inmates live in individual cells with doors that lock. Id.
Warden Barnhart testified that inmates who assaulted other inmates did not have
their padlocks confiscated because “they would still need to secure their property”
and because “they’re in prison where if they want to find a weapon, they will find a
weapon.” Id. at 8. The Prison has a number of policies designed to deter inmate-oninmate violence, including classification procedures, specific housing placement,
segregation, individual management plans, identification of high risk inmates,
write-ups and other disciplinary measures; however, Mr. Ayotte questions their
effectiveness. Id.
After the assault, Mr. Ayotte wrote Prison officials complaining about their
treatment of him, including being kept in administrative segregation for a long
period, and he requested a transfer to a prison in New Hampshire. Id. On March
15, 2011, Curtis Doyle and David Cutler, correction officers at the Prison, entered
Mr. Ayotte’s cell, threw him against the wall, and cuffed him. Id. Officers Doyle
and Cutler took Mr. Ayotte to the unit manager’s office where they yelled at him,
verbally abused him, threatened him, and made him strip twice. Id. During their
encounter, the Officers referred to the letters that Mr. Ayotte had written to
advocates, and they told him to shut his mouth about what went on in the Prison,
saying they would “bury” him. Id. at 8-9. Mr. Ayotte was upset and frightened by
this incident but not physically injured. Id. at 9. After the incident, Mr. Ayotte

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continued to write to Prison and Department officials complaining about the
conditions of his confinement and to request transfers. Id.
B.

Procedural History

Mr. Ayotte filed a complaint on August 30, 2011, alleging that Patricia
Barnhart, the Prison Warden, Dwight Fowles, the Prison Unit Manager, Martin
Magnusson, the Commissioner for the Maine Department of Corrections, and David
Cutler, Joshua Cutler, Anthony Cartlidge, Curtis Doyle, and Nova Hirsch—all
officers or guards at the Warren Prison—violated his Eighth Amendment rights
under § 1983 and the MCRA by deliberately disregarding a known risk of padlock
assaults in the Prison.3 Compl. (ECF No. 1). Mr. Ayotte also claims that the Prison
officers retaliated against him on March 15, 2012 and violated his First Amendment
rights. Id. at ¶¶ 22-25, 29.
1.

Motion for Summary Judgment

The Defendants moved for summary judgment on November 2, 2012,
asserting qualified immunity and arguing that they did not act with deliberate
indifference to a known, serious risk of harm because padlock assaults at the Prison
were infrequent and the Prison had reasonable policies in place to control inmateon-inmate violence. Defs.’ Mot. for Summ. J. at 8-11 (ECF No. 50) (Defs.’ Mot.). The
Defendants also argued that Mr. Ayotte’s claims and compensatory damages
request arising out of the retaliation claim are barred by the Prison Litigation
Reform Act (PLRA) because he did not sustain a physical injury. Id. at 2, 12-15. On

On October 9, 2012, the parties dismissed Defendants Joshua Cutler, Anthony Cartlidge, and
Nova Hirsch by stipulation. Joint Stipulation of Dismissal (ECF No. 49).
3

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November 2, 2012, the Defendants filed a statement of facts in support of their
motion. Defs.’ Statement of Material Facts (ECF No. 51).
On November 23, 2012, Mr. Ayotte filed a response in opposition to the
Defendants’ motion. Pl.’s Resp. to Defs.’ Mot. for Summ. J. (ECF No. 53) (Pl.’s
Opp’n). In his response, Mr. Ayotte argued that the record raised genuine disputes
of material fact concerning whether the Defendants deliberately ignored the safety
risk that padlocks presented to inmates and insisted that the Defendants are not
eligible for qualified immunity because they violated clearly established law by
refusing to address the increase in padlock assaults in 2010. Id. at 4-17. He also
asserted that he does not need to show he was physically injured to sustain his
retaliation claim since the Defendants admit they retaliated against him. Id. at 1718.

On November 23, 2012, Mr. Ayotte filed a response to the Defendants’

statement of facts and his own statement of material facts. Pl.’s Opposing and
Additional Statement of Material Facts (ECF No. 54) (PRDSMF).
On December 5, 2012, the Defendants filed a reply to Mr. Ayotte’s opposition,
which included a numerical chart tracking the number of padlock attacks from 2004
to 2012 to show that “over [a] seven year period the number of assaults with
padlocks has continued to be only a small fraction of overall assaults.” Reply to
Resp. to Defs.’ Mot. for Summ. J. at 3-4 (ECF No. 60) (Defs.’ Reply). The Defendants
also disputed that Mr. Ayotte was assaulted with a padlock and argued that
“merely negligent conduct on the part of the defendants cannot form the basis of §
1983 liability for failure to protect an inmate from an assault.” Id. at 5-7. Further,

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they point out that Officers Doyle and Cutler never actually admitted that they
retaliated against Mr. Ayotte.

Id. at 7-8.

The Defendants also replied to Mr.

Ayotte’s statement of material facts and filed additional statements of fact on
December 5, 2012. Reply to Additional Statement of Fact; And Defs.’ Additional
Statement of Material Facts (ECF No. 62).
2.

The Magistrate Judge’s Recommended Decision

The Magistrate Judge recommended that the Court grant the Defendants’
motion for summary judgment on Mr. Ayotte’s padlock claim on one of two grounds:
(1) the record fails to generate a genuine dispute of material fact regarding whether
the prison’s padlock policy created a substantial or pervasive risk of harm to
inmates; or (2) the Defendants are entitled to qualified immunity. Rec. Dec. at 1215. The Magistrate Judge also recommended, however, that the Court deny the
Defendants’ motion as it relates to Mr. Ayotte’s retaliation claim against Officers
Doyle and Cutler because his retaliation claim is cognizable under § 1983. Rec. Dec.
at 18-20.
With respect to Mr. Ayotte’s § 1983 claim for violation of his Eighth
Amendment rights, the Magistrate Judge concluded that similar to Beaton v.
Tennis, 460 Fed. App’x 111 (3d Cir. 2012), the record would not permit a reasonable
juror to conclude that the Defendants consciously disregarded a substantial risk of
serious harm to Mr. Ayotte. Id. at 14-17. Specifically, she observed that compared
to other cases involving frequent inmate-on-inmate violence, “[h]ere, in contrast, the
summary judgment record does not demonstrate a long-standing history of frequent

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padlock assaults.” Id. at 16. Instead, “with the exception of a period of several
months during 2010, incidents of padlock assaults have been infrequent.” Id.
The Magistrate Judge also pointed out that “padlocks have a legitimate
purpose [because] prison authorities are required by Maine statute to provide
inmates with a ‘reasonably secure area’ for their personal belongings.” Id. at 16-17.
Although she recognized that Prison policy did not relieve the Defendants of their
Eighth Amendment obligations to Mr. Ayotte and other inmates, she also noted that
because Prison officials must balance inmates’ competing needs, “federal courts may
accord deference [to prison officials] where appropriate.” Id. at 17.
Furthermore, the Magistrate Judge concluded that the combination of the
verbal abuse and repeated strip searches by Officers Doyle and Cutler “is sufficient
to propel [Mr. Ayotte] to trial on the retaliation claim.” Id. at 20. She emphasized
that Mr. Ayotte was strip-searched twice while the officers “made it abundantly
clear that they were retaliating for his complaints about prison conditions.” Id.
Viewed objectively and in the light most favorable to Mr. Ayotte, the Magistrate
Judge found that the facts were enough to “‘chill or silence a person of ordinary
firmness from future First Amendment activities’” and that Mr. Ayotte had made
out a “cognizable” § 1983 retaliation claim. Id. (quoting Pope v. Bernard, No. 101443, 2011 WL 478055, at *2 (1st Cir. Feb. 10, 2011)). Also, following the First
Circuit’s guidance in Kuperman v. Wrenn, 645 F.3d 69 (1st Cir. 2011), the
Magistrate Judge concluded that the Court does not need to decide whether the

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PLRA bars Mr. Ayotte’s request for compensatory damages because his retaliation
claim survives summary judgment. Id. at 18.
Next, the Magistrate Judge concluded that even if the Court decides that the
Defendants’ conduct violated Mr. Ayotte’s Eighth Amendment rights, the
Defendants are entitled to qualified immunity because “although the number of
padlock assaults in 2010 increased and is cause for serious concern, ‘officers of
reasonable’ competence could nevertheless disagree on the lawfulness of continuing
with the padlock policy.”

Id. at 21-23.

However, reasonable officers could not

disagree whether “requiring a prisoner to strip naked in retaliation for a prisoner’s
exercise of his constitutional rights violates those rights” was lawful; therefore the
Magistrate Judge recommended denying qualified immunity for Mr. Doyle and Mr.
Cutler. Id. at 23-24.
Finally, the Magistrate Judge recommended the Court grant summary
judgment on Count II—Mr. Ayotte’s MCRA claim—only insofar as it relates to Mr.
Ayotte’s padlock policy claim, because “‘[t]he disposition of a 42 U.S.C. § 1983 claim
also controls a claim under the MCRA.’” Id. at 24 (quoting Berube v. Conley, 506
F.3d 79, 85 (1st Cir. 2007)). The Magistrate Judge recommended that the Court
exercise supplemental jurisdiction over the remaining § 1983 and MCRA retaliation
claims against Officers Doyle and Cutler. Id.
II.

THE PARTIES’ POSITIONS
A.

Mr. Ayotte’s Objection

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On March 20, 2013, Mr. Ayotte filed a partial objection to the Magistrate
Judge’s Recommended Decision. Pl.’s Partial Obj. to Magistrate’s Recommended
Decision on Defs.’ Mot. for Summ. J. (ECF No. 68) (Pl.’s Obj.). Mr. Ayotte’s main
objection is that the Magistrate Judge “incorrectly concluded [he] was required to
establish that the risk of harm at issue was longstanding and pervasive,” arguing
that “a Plaintiff may survive summary judgment upon a showing that the risk of
harm was well documented or expressly noted by Defendants.” Id. at 2-4, 6-7, 11
(citing Farmer v. Brennan, 511 U.S. 825, 828 (1994)). Mr. Ayotte insists the facts
show that the risk of padlock assaults was both well-documented and expressly
noted by the Defendants, and therefore the Magistrate Judge should not have
recommended granting summary judgment. Id. at 3. More specifically, he claims
that the Defendants were put on notice of increasing padlock violence in the Prison
because: (1) there was a marked increase in padlock assaults and inmate-on-inmate
assaults for two years leading up to his assault; and (2) Warden Barnhart addressed
the inmates at the Prison and threatened them with consequences if padlock
assaults continued. Id. at 6-7.
In addition, Mr. Ayotte asserts that the Magistrate Judge incorrectly relied
on Beaton. Id. at 10-11. He argues that, unlike in Beaton, here there is a genuine
dispute of material fact regarding whether there was a longstanding and pervasive
risk of padlock assaults in the Prison because (1) there was an increase in overall
inmate-on-inmate violence in the Prison for a twenty-two month period leading up
to Mr. Ayotte’s assault, (2) there was a similar increase in padlock assaults before

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his assault, and (3) Warden Barnhart periodically received and reviewed reports on
the number of assaults occurring at the Prison. Id. at 10-13.
Next, Mr. Ayotte contends that the Prison’s policy on padlocks establishes
that “the Defendants deliberately chose and continue to choose not to address the
known risk [of harm] presented by the padlocks.” Id. at 14-15. He argues that the
Prison’s policy disregards potential harm to inmates because the Prison does not
consider a prisoner’s background before issuing a padlock and inmates who have
been involved in padlock assaults do not get their padlocks taken away. Id. Mr.
Ayotte also insists that the Defendants’ deliberate indifference may be inferred from
the fact that the Prison still has not changed its padlock policies and a Prison
employee testified that only half of the inmates use padlocks because theft is not a
problem. Id. at 16-17.
Finally, Mr. Ayotte objects to the Magistrate Judge’s ruling on the
Defendants’ qualified immunity argument because the Defendants were clearly
aware that inmates have the right to be free from assaults with weapons in Prison.
Id. at 18-19.
B.

The Defendants’ Response

On April 2, 2013, the Defendants responded to Mr. Ayotte’s objection to the
Recommended Decision.

Defs.’ Resp. to Objection to Report and Recommended

Decision (ECF No. 74) (Defs.’ Resp.). First, the Defendants note that Mr. Ayotte
“raises substantially the same points he argued in his Response to Defendant’s
Motion for Summary Judgment.”

Id. at 1.

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The Defendants also counter Mr.

Ayotte’s criticisms of its policy decisions by pointing out that “the policy decisions of
prison officials are entitled to deference from a court unless there is substantial
evidence in the record to demonstrate that the decisions are unreasonable or an
exaggerated response to a specific problem.” Id. at 2. Next, the Defendants argue
that an increase from year to year in the number of padlock assaults is not
statistically significant because padlock assaults have been and continue to
constitute a small fraction of overall Prison assaults. Id. at 2-3. Further, “[i]n an
attempt to shore up his argument as to the prevalence of padlock assaults, [Mr.
Ayotte] conflates the number of padlock assaults with the overall incidence of
assaults in the prison.” Id. at 3. Finally, the Defendants argue that Mr. Ayotte’s
approach to his Eighth Amendment claim “would render [them] strictly liable for
any assault any time there is an increase in the number of assaults, no matter what
reason” and that standard is much higher than the actual culpability standard
applicable to Prison officials. Id.
C.

Mr. Doyle’s Objection

Mr. Doyle objects to the Magistrate Judge’s decision to deny his motion on
Mr. Ayotte’s retaliation claim and to defer ruling on the applicability of the PLRA to
Mr. Ayotte’s compensatory damages request.

Obj. to Report and Recommended

Decision (ECF No. 72) (Def.’s Obj.). Mr. Doyle contends that the Magistrate Judge
erred in relying on Swain v. Spinney, 117 F.3d 1 (1st Cir. 1997), and Mays v.
Springborn, 575 F.2d 643 (7th Cir. 2009), arguing these decisions are factually
distinguishable and Swain involves a Fourth Amendment analysis. Id. at 2-4. He

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also asserts “that the fact that [Mr.] Ayotte was undeterred in the exercise of his
rights should have been considered in assessing his retaliation claim” because
courts in other jurisdictions have considered that fact in assessing plaintiffs’
retaliation claims.

Id.

Finally, Mr. Doyle urges the Court to rule on the

compensatory damages issue because a ruling now “may have a significant effect on
the preparation required for trial and may also affect the posture of parties going
forward.” Id. at 5.
D.

Mr. Ayotte’s Response

Mr. Ayotte argues that based on the facts surrounding the incident on March
15, 2011 and because “[t]here is no requirement of physical injury for a plaintiff to
establish a claim of retaliation since Defendants have admitted to retaliating
against Ayotte, they are not entitled to summary judgment on that claim.” Pl.’s
Resp. to Def. Cutler’s Obj. to Magistrate’s Recommended Decision Regarding Mot. for
Summ. J. (ECF No. 78) (Pl.’s Resp.).
III.

DISCUSSION
A.

Standard of Review

The Magistrate Judge issued her Recommended Decision pursuant to 28
U.S.C. § 636(b)(1)(B). Upon timely objection to the Recommended Decision, this
Court is required to make “a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1)(C); see Gioiosa v. United States, 684 F.2d 176, 178 (1st Cir. 1982).
Further, in the context of a motion for summary judgment, the Court should grant

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the motion “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a). A fact is “material” if it “has the potential to change the outcome of the suit”
and a dispute is “genuine” if “a reasonable jury could resolve the point in favor of
the nonmoving party.” Tropigas de P.R., Inc. v. Certain Underwriters at Lloyd’s of
London, 637 F.3d 53, 56 (1st Cir. 2011) (quoting McCarthy v. Nw. Airlines, Inc., 56
F.3d 313, 315 (1st Cir. 1995)).
“The party moving for summary judgment must demonstrate an absence of
evidence to support the nonmoving party’s case.” Phair v. New Page Corp., 708 F.
Supp. 2d 57, 61 (D. Me. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986)).

“In determining whether this burden is met, the Court must view the

record in the light most favorable to the nonmoving party and give that party the
benefit of all reasonable inferences in its favor.” Id. (citing Santoni v. Potter, 369
F.3d 594, 598 (1st Cir. 2004)). However, the Court “afford[s] no evidentiary weight
to ‘conclusory allegations, empty rhetoric, unsupported speculation, or evidence
which, in the aggregate, is less than significantly probative.’” Tropigas, 637 F.3d at
56 (quoting Rogan v. City of Boston, 267 F.3d 24, 27 (1st Cir. 2001)).
B.

Count I: § 1983 Claims

Section 1983 allows people within the jurisdiction of the United States to
bring civil lawsuits against those who, under color of law, deprive them “of any
rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. §
1983.

Here, Mr. Ayotte asserts that the Defendants violated his constitutional

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Eighth Amendment rights against cruel and unusual punishment and his First
Amendment rights of free speech. See U.S. CONST. amend. I, VIII.
1.

Qualified Immunity

Public officials are entitled to “qualified immunity from personal liability
arising out of actions taken in the exercise of discretionary functions.”

Glik v.

Cunniffe, 655 F.3d 78, 81 (1st Cir. 2011). In determining questions of qualified
immunity, courts must apply the following two prong analysis: “(1) whether the
facts alleged or shown by the plaintiff make out a violation of a constitutional right;
and (2) if so, whether the right was ‘clearly established’ at the time of the
defendant’s alleged violation.” Rocket Learning, Inc. v. Rivera-Sanchez, 715 F.3d 1,
9 (1st Cir. 2013) (quoting Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009)).
These prongs may be resolved in any order, giving courts discretion to “determine
the order of decisionmaking that will best facilitate the fair and efficient disposition
of each case.” Pearson v. Callahan, 555 U.S. 223, 236-42 (2009); accord RiveraSanchez, 715 F.3d at 9.
The “clearly established” analysis itself divides into two parts. RiveraSanchez, 715 F.3d at 9.

For a plaintiff to overcome qualified immunity, “the

contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Id. (internal quotations and
citations omitted). Next, considering the specific facts of the case at bar, it must
have been “clear to a reasonable [official] that his conduct was unlawful in the
situation he confronted.” Id. (alteration in original). Under the discretion afforded

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by Pearson v. Callahan, the Court first addresses the first prong of the qualified
immunity test—whether there was an underlying constitutional violation—with
respect to both of Mr. Ayotte’s constitutional claims.
2.

Eighth Amendment Claim

“The treatment a prisoner receives in prison and the conditions under which
he is confined are subject to scrutiny under the Eighth Amendment.” Giroux v.
Somerset County, 178 F.3d 28, 31 (1st Cir. 1999) (quoting Farmer, 511 U.S. at 832
(1994)).

This scrutiny includes a duty on prison officials to provide “humane

conditions of confinement,” which encompasses “a duty . . . to protect prisoners from
violence at the hands of other prisoners.”

Farmer, 511 U.S. at 832-33 (quoting

Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)).
In Farmer, the Supreme Court set out the standard to apply in Eighth
Amendment prisoner injury cases. The Court noted that not “every injury suffered
by one prisoner at the hands of another . . . translates into constitutional liability
for prison officials responsible for the victim’s safety,” and then held that only “a
prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an
inmate violates the Eighth Amendment.” Id. at 828. A prisoner must meet two
requirements to establish liability under this standard. Id.; accord Calderon-Ortiz
v. LaBoy-Alvarado, 300 F.3d 60, 64 (1st Cir. 2002) (“[p]rison officials violate the
constitutional conditions of confinement only when two requirements are met”).
First, the inmate must show, by an objective standard, “that he is incarcerated
under conditions posing a substantial risk of serious harm.” Id. Second, he or she

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must demonstrate that the prison official had a “‘sufficiently culpable state of
mind’” for liability—a subjective standard—which in prison-condition cases is
described as “deliberate indifference” to an inmate’s health or safety. Id. (quoting
Wilson v. Seiter, 501 U.S. 294, 297 (1991)).
Therefore, for Mr. Ayotte to survive summary judgment on his § 1983 Eighth
Amendment claim, there must be sufficient evidence to raise a genuine dispute of
material fact regarding (1) whether he was subjected to conditions posing a
substantial risk of serious harm and (2) whether the Defendants acted with
deliberate indifference such that they consciously disregarded a substantial risk of
serious harm to inmates at the Warren Prison. See id. at 834, 837; Beaton, 460 F.
App’x at 114; Marrero v. Rose, No. 1:10-cv-00509-LJO-GSA-PC, 2013 WL 2991295,
at *5 (E.D. Cal. June 14, 2013); Price v. Armstrong, No. 3:03CV1156(DJS), 2006 WL
980581, at *6 (D. Conn. Apr. 11, 2006).
Even viewing the record in the light most favorable to Mr. Ayotte, the Court
agrees with the Magistrate Judge that Mr. Ayotte has not generated a genuine
dispute of material fact concerning the objective prong of his § 1983 Eighth
Amendment claim—that providing inmates with padlocks subjected Mr. Ayotte to
conditions posing a substantial risk of serious harm.
a.

Substantial Risk of Serious Harm

In prisoner injury cases, the deprivation alleged by an inmate must be
“sufficiently serious,” which means that the “prison official’s act or omission must
result in the denial of the minimal civilized measure of life’s necessities.” Farmer,

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511 U.S. at 834 (internal quotations and citations omitted). Under this standard,
“for a claim based on a failure to prevent harm, the inmate must show that he is
incarcerated under conditions posing a substantial risk of serious harm.”

Id.;

accord Burrell v. Hampshire County, 307 F.3d 1, 8 (1st Cir. 2002). The Supreme
Court in Farmer also described this standard as an “objectively intolerable risk of
harm.” Id. at 846. Mr. Ayotte contests the Magistrate Judge’s interpretation of the
“substantial risk of serious harm” standard. Pl.’s Obj. at 6-14.
The Magistrate Judge focused her Eighth Amendment analysis on whether or
not there was a “longstanding and pervasive risk of harm.” Rec. Dec. at 14-16. The
“pervasive” language follows the majority of federal courts that based a decision on
the “substantial risk of serious harm” prong, and in particular adopts the Third
Circuit’s reasoning in Beaton. See 460 F. App’x at 114 (“[Plaintiff] has not raised a
genuine issue of fact that the prison’s padlock policy creates a substantial or
pervasive risk of harm to its inmates”); see also Shrader v. White, 761 F.2d 925, 978
(4th Cir. 1985) (“a pervasive risk of harm may not ordinarily be shown by pointing
to . . . isolated incidents, but it may be established by much less than proof of a
reign of violence and terror”). “Pervasive” derives from the verb “pervade” which
means “to become diffused throughout every part of” something.

WEBSTER’S

COLLEGIATE DICTIONARY 925 (11th ed. 2003). In Beaton, the Third Circuit affirmed
the

conclusion

that

the

evidence

regarding

padlock

assaults—occurring

approximately one to two times per year in the prison at issue—was not sufficiently

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“pervasive” to establish a cognizable claim on summary judgment.4 460 F. App'x at
114 (3d Cir. 2012).
Similarly, the district court in Price v. Armstrong explained that “[t]he
possibility of harm is not equivalent to the substantial risk of harm.” 2006 WL
980581, at *6. Accordingly, the court granted summary judgment, reasoning that
“although there is evidence to suggest that inmates have used locks to harm other
inmates, such as Price, who sustained a gruesome injury, there is no evidence to
suggest that this type of assault was pervasive or even common.”

Id. (citing

Shrader, 761 F.2d at 978). In contrast to Beaton and Price, the district court in
Marrero v. Rose concluded that the plaintiff-prisoner’s allegations of padlock attacks
were sufficiently pervasive to satisfy the “substantial risk of harm” standard,
because plaintiff and “thousands of other prisoners [had] been assaulted by other
prisoners with prison-sold combination locks.” Marrero, 2013 WL 2991295, at *5
(emphasis added).
In this case, the total number of padlock assaults at the Prison has remained
relatively infrequent, and does not permit an inference that the padlocks posed “a
substantial risk of serious harm.” In Eighth Amendment cases involving padlock
assaults, courts look directly at the number of padlock assaults in the prison to
decide whether the risk of harm is substantial. See Beaton, 460 F. App’x at 114;
Marrero, 2013 WL 2991295, at *5; Price, 2006 WL 980581, at *6. As in Beaton, the

The magistrate judge in that case noted that inmate assaults utilizing bars of soap occurred
much more commonly than similar assaults utilizing padlocks. Beaton v. Tennis, 4:07-CV-1526,
2010 WL 2696857, at *6 (M.D. Pa. May 10, 2010), report and recommendation adopted, 4:07-CV01526, 2010 WL 2696853 (M.D. Pa. July 7, 2010), aff'd, 460 F. App'x 111 (3d Cir. 2012).
4

19

record here shows that between 2007 and 2012, there were generally between one
and two padlock assaults per year, the sole exception being 2010. See Rec. Dec. at 6.
There were no padlock assaults in 2007, two in 2008, two in 2009, and although
there were six in 2010, the number fell back to one in 2011 and 2012. Id.

The

increase in padlock assaults in 2010 is a concern, but a one-year spike does not
allow an inference that “a substantial risk of serious harm exists,” especially when
the data suggest that the 2010 spike may have been an anomaly, not an upward
trend. Furthermore, when the assault on Mr. Ayotte occurred in 2010—ten months
into the year—there had been three padlock assaults to date that year. Id. Here,
when the specific incidents of harm at issue—padlock assaults—are compared to
“thousands of prisoners [who] have been assaulted by other prisoners with
combination locks” in Marrero, 2013 WL 2991295, at *5, the level of padlock
assaults at the Warren Prison does not approach the magnitude in Marrero. See
Rec. Dec. at 6. Even viewing the facts in the light most favorable to Mr. Ayotte, the
facts here are distinct from Marrero, where summary judgment was in part denied,
and similar to Beaton and Price, where it was granted.
Finally, even if the Magistrate Judge correctly analyzed the pervasiveness of
padlock assaults, Mr. Ayotte strenuously insists that the Magistrate Judge failed to
address two other Farmer factors: whether the risk of padlock assaults was welldocumented or expressly noted by prison officials. Pl.’s Obj. at 2-17. To support his
argument, Mr. Ayotte points to his assertion that before the assault, he asked to be
moved from C Pod because he feared that he would be assaulted. Id. at 3 (citing

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PRDSMF ¶ 29).

Mr. Ayotte’s argument, however, is misplaced because he

addresses the wrong part of the Farmer test; “well documented, or expressly noted”
goes to the subjective prong—deliberate indifference.5 See Farmer, 511 U.S. at 84283. There, the Court was addressing a hypothetical situation in which the objective
prong—“substantial risk of serious harm”—had already been satisfied; “welldocumented, or expressly noted” refer to factors that could allow a court to conclude
that the defendants were deliberately indifferent to such a “substantial risk.” Id.
Legal arguments addressing deliberate indifference—the subjective prong—do not
bear on whether the padlock policy posed a substantial risk of serious harm.6
The Court acknowledges that one padlock assault by an inmate against
another inmate is one too many, particularly for the inmate assaulted.
Nevertheless, as the First Circuit has written, “not every injury suffered by a
prisoner at the hands of a fellow inmate gives rise to an Eighth Amendment claim.”
Giroux, 178 F.3d at 32.

Based on a de novo assessment of the record and the

relevant caselaw, the Court agrees with the Magistrate Judge that there is no
The relevant passage in Farmer is:
Whether a prison official had the requisite knowledge of a substantial risk is a
question of fact subject to demonstration in the usual ways [ ]. For example, if an
Eighth Amendment plaintiff presents evidence showing that a substantial risk of
inmate attacks was longstanding, pervasive, well-documented, or expressly noted by
prison officials in the past, and the circumstances suggest that the defendant-official
being sued had been exposed to information concerning the risk and thus ‘must have
known about it, then such evidence could be sufficient to permit a trier of fact to find
that the defendant-official had actual knowledge of the risk.
Farmer, 511 U.S. at 842-43 (emphasis added) (internal quotations omitted).
6
The Court acknowledges that the language in footnote 5 overlaps with the “pervasive”
language that is used in addressing the “substantial risk of serious harm” prong. While post-Farmer
cases may have borrowed language from Farmer that addresses the deliberate indifference prong in
crafting the substantial risk standard, this does not mean all of the language in footnote 5 can be
used for this purpose. “Well-documented” and “expressly noted” in particular are terms that, by
their plain meaning, do not relate to the magnitude of the risk: an extremely small risk can be welldocumented and expressly noted.
5

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genuine dispute of material fact on Mr. Ayotte’s padlock policy claim because there
was no substantial risk of padlock attacks in the Prison.

Accordingly, the

Defendants are entitled to qualified immunity based upon Mr. Ayotte’s failure to
articulate an Eighth Amendment violation. See Rivera-Sanchez, 715 F.3d at 8-9.
3.

Retaliation Claim

To state a viable constitutional retaliation claim against Mr. Doyle, Mr.
Ayotte must show (1) he engaged in a protected activity, (2) Mr. Doyle took an
adverse action against him, and (3) there is a causal link between the protected
activity and the adverse action. Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011).
Mr. Ayotte must also establish that Mr. Doyle’s adverse act was objectively more
than de minimis. Pope, 2011 WL 478055, at *2; Thaddeaus-X v. Blatter, 175 F.3d
378, 398 (6th Cir. 1999). “‘An . . . act is not de minimis if it would chill or silence a
person of ordinary firmness from future First Amendment activities.’” Id. (quoting
Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006)) (internal quotations omitted).
In his objection to the Magistrate Judge’s Recommended Decision, Mr. Doyle
first argues that the Magistrate Judge incorrectly relied on Swain and Mays to
support her finding that the adverse action―verbal abuse, threats, and two stripsearches―was objectively more than de minimus. Def.’s Obj. at 2-3. The Court
disagrees. Although Swain deals with a Fourth Amendment violation and a bodycavity search and although Mays addressed more severe action as the inmate was
kept under observation in a “too-short hospital gown” until he defecated, these cases
support Mr. Ayotte’s position that he was subject to “non-routine and humiliating”

22

treatment by prison officials, raising a triable fact issue. The Magistrate Judge
correctly relied on those cases to conclude that Mr. Ayotte’s two strip-searches were
serious enough to raise Officers Doyle and Cutler’s adverse action from de minimis
to something more significant and trial-worthy.

See Mays, 575 F.3d at 645-46;

Swain, 117 F.3d at 4-5, 10.
Although the Court agrees with Mr. Doyle that Mr. Ayotte’s continued
complaints about prison conditions after the March 15, 2011 incident are relevant to
whether the Officers’ actions constituted adverse action, the Magistrate Judge
properly found that, viewing the facts in Mr. Ayotte’s favor, his decision to press his
grievances does not negate countervailing evidence sufficient to generate a triable
question as to whether Officers Doyle and Cutler engaged in adverse action. See
Rec. Dec. at 20. Accordingly, Mr. Ayotte satisfied all three elements of his prima
facie § 1983 retaliation claim, thereby satisfying the first part of the qualified
immunity test—the facts make out a violation of a constitutional right. See RiveraSanchez, 715 F.3d at 9.
The Court turns to whether an inmate’s rights against retaliatory action by
prison officials were “clearly established” at the time of the alleged retaliatory acts
committed against Mr. Ayotte. Id. The Court concludes that the law against such
acts is both clear and well-established.

The First Circuit recently noted that

“retaliation against a prisoner’s exercise of constitutional actions is actionable,”
relying on cases going back more than a decade. Hannon, 645 F.3d at 48 (citing
Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009); Allah v. Seiverling, 229 F.3d

23

220, 224–25 (3d Cir. 2000); Thaddeus–X v. Blatter, 175 F.3d 378, 386 (6th Cir. 1999)
(en banc)). Although Hannon was decided just after the alleged retaliatory acts
against Mr. Ayotte, “an affirmative finding on these inquiries does not require a
case directly on point, but existing precedent must have placed the . . .
constitutional question beyond debate.” Glik, 655 F.3d at 81 (citing Ashcroft v. alKidd, 131 S. Ct. 2074, 2083 (2011)). The Supreme Court provided guidance as far
back as 1984, stating that “intentional harassment of even the most hardened
criminals cannot be tolerated in a civilized society,” Hudson v. Palmer, 468 U.S.
517, 528 (1984), language recently quoted and reiterated in Florence v. Board of
Chosen Freeholders of County of Burlington. 132 S. Ct. 1510, 1523 (2012).

The

Court agrees with the Magistrate Judge: “[A] reasonable official would have known,
based on longstanding legal precedent, that requiring a prisoner to strip naked in
retaliation for a prisoner’s exercise of his constitutional rights violates those rights.”
Rec. Dec. at 24 (citing Hudson, 468 U.S. at 528).
Based on the record before the Court, the Defendants are not entitled to
qualified immunity from Mr. Ayotte’s retaliation claim.

The Magistrate Judge

correctly concluded that the retaliation claim should go forward. See id.
Finally, the Court agrees with the Magistrate Judge that in accordance with
the First Circuit’s guidance in Kuperman v. Wrenn, 645 F.3d 69 (1st Cir. 2011), it
will defer deciding whether the PLRA bars compensatory damages for Mr. Ayotte’s
retaliation claim “because his requests for . . . punitive damages are enough to keep
his claims alive.” Id. at 73 n.5; Rec Dec. at 18.

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C.

Count II: Maine Civil Rights Act Claims

As the Magistrate Judge pointed out, “[t]he disposition of a 42 U.S.C. § 1983
claim also controls a claim under the MCRA.”

Berube, 506 F.3d at 85 (citing

Dimmitt v. Ockenfels, 220 F.R.D. 116, 123 (D. Me. 2004)). On that basis, because
Mr. Ayotte failed to generate a genuine dispute of material fact for the jury on his §
1983 Eighth Amendment claim, the Court also grants summary judgment on his
related MCRA claim.

Id. at 86.

However, the Court exercises supplemental

jurisdiction over the remaining MCRA retaliation claim against Officers Doyle and
Cutler as Mr. Ayotte has set forth a cognizable § 1983 retaliation claim.
IV.

CONCLUSION
1. The Court ORDERS that the Recommended Decision of the Magistrate
Judge (ECF No. 67) be and it hereby is AFFIRMED.
2. The Court further ORDERS that the Defendants’ Motion for Summary
Judgment (ECF No. 50) be and hereby is GRANTED in part and
DENIED in part.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE

Dated this 24th day of September, 2013

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