CONDON v. BOUFFARD et al

Filing 17

REPORT AND RECOMMENDED DECISION re 6 MOTION to Dismiss for Failure to State a Claim filed by RODNEY BOUFFARD, JODY L BRETON, TROY ROSS. Objections to R&R due by 3/3/2017. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JOHN JAY CONDON,
Plaintiff
v.
RODNEY BOUFFARD, et al.,
Defendants

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1:16-cv-00372-JAW

RECOMMENDED DECISION ON DEFENDANTS’ MOTION TO DISMISS
In this action, Plaintiff John Jay Condon alleges Defendants Rodney Bouffard, Troy
Ross, and Jody Breton violated his constitutional rights under the Fourteenth Amendment
Due Process Clause, the Fourteenth Amendment Equal Protection Clause, the Eighth
Amendment Cruel and Unusual Punishments Clause, and the First Amendment Petition
Clause. Plaintiff alleges the violations occurred when Defendants subjected him to prolonged
confinement in segregation at the Maine State Prison and, after he petitioned for review of
administrative action in state court, transferred him to the Zephyrhills Correctional Institution
in Florida.
The matter is before the Court on Defendants’ motion to dismiss. (ECF No. 6.)
Through their motion, Defendants contend Plaintiff has failed to state an actionable due
process claim because the segregation was the product of an administrative procedure that
complied with procedural due process and because the segregation and out-of-state transfer
did not involve atypical and significant hardships. Defendants also argue Plaintiff has not
asserted any other actionable constitutional claim.

Following a review of the relevant pleadings, I recommend the Court grant in part
Defendants’ motion to dismiss.
BACKGROUND FACTS
The facts set forth herein are derived from Plaintiff’s verified complaint. (ECF No. 12.) The factual allegations of the complaint are deemed true when evaluating the motion to
dismiss. Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 16 (1st Cir. 1998).
On March 5, 2014, Plaintiff was removed from the general population of the Maine
State Prison and placed in the segregated Special Management Unit (SMU) of the Prison’s
“supermax” building.1 (Compl. ¶ 9; Pl.’s Opposition to Motion at 4, ECF No. 10.) Five days
later, Plaintiff’s placement was the subject of an administrative segregation review (ASR), at
which time he was informed that another inmate reported that he posed a threat to a member
of the prison staff.2 (Compl. ¶ 10.) According to Plaintiff, the reviews are conducted by the
ASR board based on investigations conducted by inner perimeter security (IPS). (Id. ¶ 11.)
On March 20, 2014, Plaintiff received a second review, during which he learned he
would remain in segregation in the SMU pending the outcome of the IPS investigation. (Id.
¶ 13.) At each review, Plaintiff stated that he had no intention of hurting anyone. (Id. ¶ 14.)
On March 27, 2014, the ASR board convened and decided to return Plaintiff to general
population. (Id. ¶ 15.) Plaintiff asserts, however, that Defendant Troy Ross, the Deputy

1

Plaintiff was 68 when he filed his complaint. Plaintiff is serving a sentence imposed thirty-five years ago on
three counts of murder, one count of arson, and two counts of theft by unauthorized taking. State v. Condon,
468 A.2d 1348, 1349 (Me. 1983). Plaintiff alleges a “long standing history of manic depressive illness,”
(Complaint ¶ 52), which illness was a subject in his appeal from the conviction. Id. at 1351.
2

According to Plaintiff, a conviction on a charge of threatening has a maximum sanction of 20 days in
segregation. (Compl. ¶ 45.)
2

Warden, overruled the board’s decision. (Id. ¶¶ 16 – 17; see also ASR Minutes of March 27,
2014, ECF No. 10-10.) Plaintiff had no ability to present his case to Defendant Ross, nor to
appeal from Defendant Ross’s decision. (Compl. ¶ 18.) Plaintiff contends the lack of an
appeal is a constitutional flaw in the ASR process. (Id. ¶¶ 19 – 20.)
In April 2014, Plaintiff received four more reviews without a change in his segregation
status. During one of the reviews, Plaintiff learned that a new unit was being formed for
certain inmates and that he would eventually be moved to the new unit. (Id. ¶¶ 21 – 23, 29.)
On April 15, in response to Plaintiff’s inquiry as to when the investigation would conclude,
the chief of the investigatory team informed Plaintiff there was no pending investigation
regarding Plaintiff. (Id. ¶ 26.) Defendant Ross denied Plaintiff’s appeals from the results of
the reviews. (Id. ¶ 29.)
Plaintiff also filed a grievance regarding the lack of an investigation. On April 28,
2014, the grievance was dismissed, and he was informed the process to address Plaintiff’s
complaint was the ASR. (Id. ¶ 28.) Plaintiff subsequently filed a grievance claiming the
process was flawed, but his grievance was dismissed. (Id. ¶¶ 30 – 31.)
Plaintiff’s segregation status was maintained following his May 2, 2014, ASR. (Id. ¶
32.) Defendant Ross denied his appeal. (Id. ¶ 33.) At Plaintiff’s next ASR, on June 24, 2014,
his placement was not changed. (Id. ¶ 34.) His appeal was again denied by Defendant Ross.
(Id.)
On July 20, 2014, Plaintiff filed a petition for judicial review of administrative action
in state court. (Id. ¶ 35.) Plaintiff’s ASR reviews in July and August did not result in a release
from segregation. (Id. ¶¶ 36 – 37.)
3

In September 2014, Defendant Jody Breton, the Deputy Commissioner, conducted a
six-month review of Plaintiff’s placement. Plaintiff was not permitted to attend the review or
address Defendant Breton in connection with the review.

Defendant Breton approved

Plaintiff’s continued segregation pending the conclusion of the IPS investigation. (Id. ¶ 38.)
When Plaintiff wrote to Defendant Breton to complain that he had not been heard, Defendant
Breton responded that she relied on the recommendation of the warden (Defendant Rodney
Bouffard). (Id. ¶¶ 39 – 40.)
Plaintiff filed a grievance on September 29, 2014, to complain that the warden,
contrary to a policy statement that the warden would visit the SMU weekly, had not visited
the SMU during the period of Plaintiff’s segregation. (Id. ¶ 43.) The grievance was
dismissed. (Id. ¶ 44.)
Plaintiff’s stay in the Maine State Prison’s SMU ended on October 28, 2014, at which
time he was transferred to the custody of the Florida Department of Corrections. (Id. ¶ 46.)
Defendants withdrew $156.76 from Plaintiff’s inmate account to cover the cost of forwarding
Plaintiff’s property to Florida. (Id. ¶ 50.) According to Plaintiff, the letter of introduction to
the Florida Department of Corrections falsely stated that he made threats to staff and another
inmate, and that his assaultive behavior made him a management problem. (Id. ¶¶ 47, 48.)
Based on the representation, the Florida Department of Corrections placed Plaintiff in a oneyear “close monitoring” program. (Id.) Plaintiff claims Defendants arranged for the transfer
in retaliation for the state court lawsuit he filed in April 2014. (Id. ¶ 49.)
While in segregation at the Maine State Prison, Plaintiff was continuously confined in
various cells of roughly 60 square feet for over 23 hours daily. Between Maine and Florida,
4

Plaintiff was in segregation for 673 days. (Id. at pp. 10 – 11.) In addition to the loss of
association with other inmates, Plaintiff lost the ability to work; to attend educational,
vocational, religious, and special musical programs; to listen to his radio; to recreate outdoors
and exercise in a congregate setting; to attend group meals; to access the library; to attend
club functions; and to sit in a chair. (Id.)
DISCUSSION
A.

Standard of Review
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may seek dismissal of “a

claim for relief in any pleading” if that party believes that the pleading fails “to state a claim
upon which relief can be granted.” In its assessment of the motion, a court must “assume the
truth of all well-plead facts and give the plaintiff[] the benefit of all reasonable inferences
therefrom.” Blanco v. Bath Iron Works Corp., 802 F. Supp. 2d 215, 221 (D. Me. 2011)
(quoting Genzyme Corp. v. Fed. Ins. Co., 622 F.3d 62, 68 (1st Cir. 2010)). To overcome the
motion, therefore, the plaintiff must establish that his allegations raise a plausible basis for a
fact finder to conclude that the defendant is legally responsible for the claim(s) at issue. Id.3
B.

Analysis
Defendants argue dismissal is warranted because Plaintiff’s alleged conditions of

confinement do not constitute an atypical and significant hardship; Plaintiff’s ability to
present his case to the ASR board satisfies the procedural due process requirement; due
process does not require a hearing on an administrative appeal; and Plaintiff has not alleged

Because Plaintiff is a pro se litigant, his complaint is subject to “less stringent standards than formal pleadings
drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).
3

5

facts that would support a plausible causal connection between protected activity and his
transfer to the Florida Department of Corrections. (Motion at 3 – 7.)
1.

Due process

The Due Process Clause of the Fourteenth Amendment prohibits a state from depriving
a person of “life, liberty, or property, without due process of law.” U.S. Const. amend. XIV,
§ 1. The analysis of a due process claim includes two issues. A court first considers “whether
there exists a liberty or property interest of which a person has been deprived,” and if so, it
then considers “whether the procedures followed by the State were constitutionally
sufficient.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011). “[T]he processes required by the
Clause with respect to the termination of a protected interest will vary depending upon the
importance attached to the interest and the particular circumstances under which the
deprivation may occur.” Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 320
(1985).
“[W]hile persons imprisoned for crime enjoy many protections of the Constitution, it
is also clear that imprisonment carries with it the circumscription or loss of many significant
rights.” Hudson v. Palmer, 468 U.S. 517, 524 (1984). With respect to the Due Process
Clause, “[a]s long as the conditions or degree of confinement to which the prisoner is
subjected is within the sentence imposed upon him and is not otherwise violative of the
Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison
authorities to judicial oversight.” Montanye v. Haymes, 427 U.S. 236, 242 (1976).
A convicted prisoner thus does not have a constitutional right to a particular security
classification or to confinement in a particular facility. Wilkinson v. Austin, 545 U.S. 209,
6

221 – 22 (2005) (“[T]he Constitution itself does not give rise to a liberty interest in avoiding
transfer to more adverse conditions of confinement”); Hewitt v. Helms, 459 U.S. 460, 468
(1983) (“[T]he transfer of an inmate to less amendable and more restrictive quarters for
nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a
prison sentence” (concerning administrative segregation)); Haymes, 427 U.S. at 242 (“The
Clause does not require hearings in connection with transfers whether or not they are the result
of the inmate’s misbehavior or may be labeled as disciplinary or punitive.”); Meachum v.
Fano, 427 U.S. 215, 225 (1976) (no liberty interest arising from Due Process Clause itself in
transfer from low– to maximum–security prison because “[c]onfinement in any of the State’s
institutions is within the normal limits or range of custody which the conviction has authorized
the State to impose”). See also Williams v. Lindamood, 526 F. App’x. 559, 563 (6th Cir.
2013) (“[A] prisoner has no constitutional right to be incarcerated in a particular prison or to
be held in a specific security classification.” (quoting Harbin-Bey v. Rutter, 420 F.3d 571,
577 (6th Cir. 2005)); Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007).
Under the relevant authority, therefore, as the result of his conviction, Plaintiff “has
been constitutionally deprived of his liberty to the extent that the State may confine him and
subject him to the rules of its prison system so long as the conditions of confinement do not
otherwise violate the Constitution.” Meachum, 427 U.S. at 224. Plaintiff nevertheless alleges
Defendants’ decision to place him in segregation in the SMU for a prolonged period, and to

7

transfer him to Florida at the conclusion of his “administrative” segregation,4 without the
benefit of a meaningful hearing, violated his constitutional protections.
In Hewitt v. Helms, 459 U.S. 460 (1983), the Supreme Court held that the “narrow
range of protected liberty interests” prisoners maintain upon lawful incarceration does not
include an interest of confinement in the general population of a prison. Id. at 467. The Court
wrote, “administrative segregation is the sort of confinement that inmates should reasonably
anticipate receiving at some point in their incarceration.” Id. at 468. In addition, a prison
policy or regulation does not implicate a liberty interest unless the conditions of confinement
involve an “atypical and significant hardship.” Sandin v. Conner, 515 U.S. 472, 483 – 84
(1995).5 In such a case, due process is satisfied with “an informal, nonadversary review of
the information supporting … administrative confinement, including whatever statement [the
inmate] wished to submit, within a reasonable time after confining him to administrative
segregation.” Id. at 472. See also id. at 476 (“An inmate must merely receive some notice of
the charges against him and an opportunity to present his views to the prison official charged
with deciding whether to transfer him to administrative segregation.”).

4

Plaintiff alleges detention in segregation within the SMU, which he asserts is contained in the Maine State
Prison’s “supermax” building. He does not explain how segregation in the Maine State Prison’s SMU involves
conditions more restrictive than administrative segregation in another Maine State Prison facility.
In Sandin, the Supreme Court abrogated its ruling in Hewitt that a state’s violation of a mandatory policy or
procedure could implicate a constitutionally-protected liberty interest. Wilkinson v. Austin, 545 U.S. 209, 222
– 23 (2005). The Court did not otherwise disturb the Hewitt reasoning. Id. at 228 – 29 (citing Hewitt in support
of the adequacy of “informal, nonadversary procedures”).
5

8

Defendants argue that Plaintiff’s allegations demonstrate he received the informal
review described in Hewitt v. Helms. (Motion at 3.) Concerning the periodic review, the
Supreme Court articulated the following standard:
Prison officials must engage in some sort of periodic review of the confinement
of such inmates. This review will not necessarily require that prison officials
permit the submission of any additional evidence or statements. The decision
whether a prisoner remains a security risk will be based on facts relating to a
particular prisoner – which will have been ascertained when determining to
confine the inmate to administrative segregation – and on the officials’ general
knowledge of prison conditions and tensions, which are singularly unsuited for
“proof” in any highly structured manner. Likewise, the decision to continue
confinement of an inmate pending investigation of misconduct charges depends
upon circumstances that prison officials will be well aware of – most typically,
the progress of the investigation. In both situations, the ongoing task of
operating the institution will require the prison officials to consider a wide range
of administrative considerations ….
Hewitt, 459 U.S. at 477 n.9. Because the review in Hewitt occurred “less than a month after
the initial decision to confine Helms to administrative segregation,” the Court found the
record “sufficient to dispel any notions that the confinement was a pretext.” Id.
Here, according to Plaintiff, Defendants conducted periodic reviews. The adequacy of
the review process, however, is not the sole inquiry. In Hewitt, the Supreme Court recognized
an institution can lawfully maintain an inmate in administrative segregation only pending the
completion of an investigation. Although the Court acknowledged administrative segregation
could be long enough to require “some sort of periodic review,” the Court specifically
cautioned that “administrative segregation may not be used as a pretext for indefinite
confinement of an inmate.” Id. at 477 n.9. The questions, therefore, are whether the extended
duration of Plaintiff’s confinement in segregation required further process, and whether
Defendants’ transfer of Plaintiff to an out-of-state facility, which transfer also included a
9

charge against the funds maintained in his prison account, constitutes a constitutional
deprivation.
a.

Duration and conditions of segregated confinement

Plaintiff’s entitlement to more process than the periodic review outlined in Hewitt is
limited to conditions of confinement that impose an “atypical and significant hardship … in
relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484. A reasonable period
of confinement in segregation, without more, is not an atypical and significant hardship. Id.
at 486 (holding that prisoner placed in segregation for 30 days did not experience “a major
disruption in his environment”). The issue is whether Plaintiff’s alleged experience imposed
an atypical and significant hardship.
In Wilkinson v. Austin, the Supreme Court explained:
After Sandin, it is clear that the touchstone of the inquiry into the existence of
a protected, state-created liberty interest in avoiding restrictive conditions of
confinement is not the language of regulations regarding those conditions but
the nature of those conditions themselves “in relation to the ordinary incidents
of prison life.” Id., at 484, 115 S. Ct. 2293.
Applying this refined inquiry, Sandin found no liberty interest protecting
against a 30-day assignment to segregated confinement because it did not
“present a dramatic departure from the basic conditions of [the inmate’s]
sentence.” Id., at 485, 115 S. Ct. 2293. We noted, for example, that inmates in
the general population experienced “significant amounts of ‘lockdown time’”
and that the degree of confinement in disciplinary segregation was not
excessive. Id., at 486, 115 S. Ct. 2293. We did not find, moreover, the short
duration of segregation to work a major disruption in the inmate’s environment.
Ibid.
545 U.S. at 223.
In Wilkinson, the Court reviewed whether Ohio prisoners have a liberty interest in
avoiding placement in the Ohio State Penitentiary (OSP), described as a supermax facility
10

imposing “a highly restrictive form of solitary confinement,” where “almost every aspect of
an inmate’s life is controlled and monitored.” Id. at 214. The conditions at OSP were
described as follows:
Inmates must remain in their cells, which measure 7 by 14 feet, for 23 hours per
day. A light remains on in the cell at all times, though it is sometimes dimmed,
and an inmate who attempts to shield the light to sleep is subject to further
discipline. During the one hour per day that an inmate may leave his cell, access
is limited to one of two indoor recreation cells. Incarceration at OSP is
synonymous with extreme isolation. In contrast to any other Ohio prison,
including any segregation unit, OSP cells have solid metal doors with metal
strips along their sides and bottoms which prevent conversation or
communication with other inmates. All meals are taken alone in the inmate’s
cell instead of in a common eating area. Opportunities for visitation are rare
and in all events are conducted through glass walls. It is fair to say OSP inmates
are deprived of almost any environmental or sensory stimuli and of almost all
human contact.
Aside from the severity of the conditions, placement at OSP is for an indefinite
period of time, limited only by an inmate’s sentence. For an inmate serving a
life sentence, there is no indication how long he may be incarcerated at OSP
once assigned there.
Id. at 214 – 15.
Observing that the Courts of Appeals “have not reached consistent conclusions for
identifying the baseline from which to measure what is atypical and significant in any
particular prison system,” the Supreme Court did not resolve the issue, but instead held that
the conditions of confinement at OSP “impose[d] an atypical and significant hardship under
any plausible baseline.” Id. at 223. Significant to the Court’s conclusion, after an initial 30day review, placement would be reviewed only annually, and placement in OSP disqualified
inmates for parole. Id. at 224.

11

Having identified a liberty interest, the Court considered the adequacy of Ohio
procedures. On this issue, the Court “declined to establish rigid rules and instead embraced
a framework to evaluate the sufficiency of particular procedures,” id., which framework
consists of three factors:
First, the private interest that will be affected by the official action; second, the
risk of an erroneous deprivation of such interest through the procedures used,
and the probable value, if any, of additional or substitute procedural safeguards;
and finally, the Government’s interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute procedural
requirement would entail.
Id. at 224 – 25 (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). Of the three factors,
the State’s interest in ensuring safety and security “is a dominant consideration.” Id. at 227.
The Court found the Ohio procedures were adequate where they provided “informal,
nonadversary procedures comparable to those [the Court] upheld in Greenholtz and Hewitt,”
and held that “no further procedural modifications are necessary in order to satisfy due process
under the Mathews test.”6 Id. at 229. In particular, the Court found no need for a procedure
that permits a prisoner to call witnesses. Id. at 228.
The Court viewed favorably the Ohio procedure that provided the OSP placement
process would terminate, and placement would not be authorized or continue, “if one reviewer
declines to recommend OSP placement,” thereby avoiding a situation in which “a later
reviewer could overturn [a prisoner favorable] recommendation without explanation.” Id. at
226. While the Court did not prohibit a procedure that authorized a subsequent reviewer to
6

In Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1 (1979), the Court considered
the adequacy of state parole proceedings and upheld Nebraska parole procedure because it “affords an
opportunity to be heard, and when parole is denied it informs the inmate in what respects he falls short of
qualifying for parole.” Id. at 16.
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reverse a finding favorable to an inmate, the Court noted the Ohio procedure “could be the
subject of an appropriate future challenge” if an inmate could demonstrate the procedure “did
not in practice operate in this fashion, resulting in cognizable injury.” Id. at 230.
b.

Transfer to an out-of-state facility

The Supreme Court and the First Circuit Court of Appeals have held that interstate
transfers of prisoners do not require a different analysis than intrastate transfers based simply
on the fact that the prisoner is transferred to another state. Olim v. Wakinekona, 461 U.S. 238,
245 – 46 (1983) (involving transfer from Hawaii to California); Sisbarro v. Warden, Mass.
State Penitentiary, 592 F.2d 1, 3 (1st Cir. 1979) (involving transfers from Massachusetts to
Connecticut, then to Pennsylvania, then to Kansas). Simply stated, “[c]onfinement in another
State, unlike confinement in a mental institution, is ‘within the normal limits or range of
custody which the conviction has authorized the State to impose.’” Olim, 461 U.S. at 247
(quoting Meachum, 427 U.S. at 225). Accordingly, the issue is whether the transfer to the
destination prison entails an atypical and significant hardship and, if so, the sufficiency of the
process provided the prisoner. Because Plaintiff alleges segregated confinement and asserts
that the Zephyrhills Correctional Institution is a maximum security facility,7 his procedural

Plaintiff’s opposition to the motion to dismiss includes the assertion that Zephyrhills is a maximum security
institution. (ECF No. 10 at 1 – 2.) Additionally, he alleges that his segregation in Florida involved sharing a
cell with “aggressively psychotic” and “predatory” inmates. (Id. at 2.) This Court has construed complaints
filed by pro se litigants in light of supplemental factual representations contained in responses to motions
to dismiss. E.g., Wall v. Dion, 257 F. Supp. 2d 316, 318 (D. Me. 2003) (citing Gray v. Poole, 275 F.3d 1113,
1115 (D.C. Cir. 2002)); Bridges v. Ouellette, No. 2:13–CV–00082–NT, 2013 WL 5755588, at *4 (D. Me. Oct.
23, 2013). See also Smith v. Dart, 803 F.3d 304, 311 (7th Cir. 2015) (finding that the district court should have
considered letters filed by pro se party, which contained additional factual representations, when ruling on a
motion to dismiss).
7

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challenge to the transfer warrants a similar consideration to his challenge to placement in the
Maine State Prison SMU.
c.

Deprivation of property

Plaintiff complains Defendants withdrew $156.76 from his inmate account to satisfy
the cost of forwarding his property to Florida. Of relevance, the First Circuit determined that
a prison disciplinary sanction that deprives a prisoner of $75 without adequate process states
a constitutional claim for deprivation of property. Coombs v. Welch, No. 15-1776 (1st Cir.
May 9, 2016) (citing Reynolds v. Wagner, 128 F.3d 166, 179 (3d Cir. 1997)).
d.

Analysis

As explained above, Supreme Court precedent establishes that a prolonged
confinement in segregation could potentially generate a liberty interest protected by the Due
Process Clause. Given Plaintiff’s assertions regarding the length of time he was in segregation
and the process by which he remained in segregation, Plaintiff has alleged sufficient facts to
state an actionable claim.8 Whether the ASR afforded sufficient process depends on a multifactor analysis that ordinarily requires an evidentiary record.9 The record at this stage of the

Plaintiff’s emphasis on the duration of his confinement in segregation is not necessarily dispositive of the
liberty issue. See, e.g., Jones v. Baker, 155 F.3d 810 (6th Cir. 1998) (affirming entry of summary judgment
where prisoner spent two and one-half years in administrative segregation, based on the nature of the
underlying charges that required administrative confinement). Moreover, restrictive conditions are not
necessarily atypical. See, e.g., Rezaq v. Nalley, 677 F.3d 1001, 1011 (10th Cir. 2012) (discussing alternative
approaches taken by the circuit courts “to identify the appropriate baseline for assessing what constitutes an
‘atypical and significant hardship’ on inmates” and outlining four factors in use in the Tenth Circuit).
8

9

It does not appear that the ASR process has ever been assessed in the context of a procedural due process
claim based on prolonged confinement in the Maine State Prison SMU. Other district courts appear to have
relied on evidentiary records rather than legal conclusions to resolve similar claims. See, e.g., Payne v. Friel,
919 F. Supp. 2d 1185, 1187 (D. Utah 2013); Standley v. Ryan, No. 2:10-CV-01867, 2012 WL 3288728, 2012
U.S. Dist. Lexis 113246 (D. Ariz. Aug. 13, 2012); Toevs v. Reid, No. 1:06-CV-01620, 2010 WL 4388191,
2010 U.S. Dist. Lexis 23036 (D. Colo. Oct. 28, 2010), aff'd on other grounds, 646 F.3d 752 (10th Cir. 2011),
14

proceedings is lacking. For example, the record presently does not include the administrative
policy or regulation, nor the complete administrative record associated with the reviews of
Plaintiff’s confinement in segregation. Plaintiff’s due process claim, therefore, cannot be
resolved on Defendants’ motion to dismiss.10
2.

Deliberate indifference / cruel and unusual punishment

Plaintiff alleges his confinement in segregation exacerbated underlying mental and
physical conditions and that Defendants acted with deliberate indifference to his well-being
while he was in segregation. Defendants argue the conditions described in Plaintiff’s
complaint do not “rise to the level of [cruel and unusual] punishment.” In support of their
argument, Defendants offer as a comparison the conditions addressed by the Supreme Court
in Hutto v. Finney, 437 U.S. 678 (1978) (describing background facts involving filth and
vandalism, rampant violence, overcrowding, risk of disease, and an inadequate diet).
The Eighth Amendment’s ban on inflicting cruel and unusual punishments,
made applicable to the States by the Fourteenth Amendment, “proscribe[s] more
than physically barbarous punishments.” Estelle v. Gamble, 429 U.S. 97, 102,
97 S.Ct. 285, 290, 50 L.Ed.2d 251. It prohibits penalties that are grossly
disproportionate to the offense, Weems v. United States, 217 U.S. 349, 367, 30
S.Ct. 544, 549, 54 L.Ed. 793, as well as those that transgress today’s “‘broad
and idealistic concepts of dignity, civilized standards, humanity, and decency.’”
Estelle v. Gamble, supra, at 102, 97 S.Ct., at 290, quoting Jackson v. Bishop,
404 F.2d 571, 579 (CA8 1968).

amended and superseded on reh'g, 685 F.3d 903 (10th Cir. 2012), and aff'd on other grounds, 685 F.3d 903
(10th Cir. 2012); Malloy v. Rowley, No. 1:08-CV-02303, 2010 WL 4226146, 2010 U.S. Dist. Lexis 113154
(D. Md. Oct. 25, 2010); El-Tabech v. Clarke, No. 4:04-CV-03231, 2007 WL 1487148, 2007 U.S. Dist. Lexis
36719 (D. Neb. May 18, 2007). Moreover, development of a record will in any event be necessary to address
Plaintiff’s equal protection and retaliation claims.
Defendants did not offer a separate argument to support their request for the dismissal of Plaintiff’s property
deprivation claim.
10

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Hutto v. Finney, 437 U.S. 678, 685 (1978).
To establish a constitutional violation based on the conditions of confinement, a
prisoner must meet both objective and subjective criteria; i.e., he must “establish that from an
objective standpoint, the conditions of his confinement deny him the minimal measure of
necessities required for civilized living” and “that, from a subjective standpoint, the defendant
was deliberately indifferent to inmate health or safety.” Surprenant v. Rivas, 424 F.3d 5, 18
– 19 (1st Cir. 2005). The objective component is “contextual and responsive to ‘contemporary
standards of decency,” but viable claims require “extreme deprivations.”

Hudson v.

McMillian, 503 U.S. 1, 8 – 9 (1992).
The alleged conditions are not objectively inconsistent with the conditions discussed
by the Supreme Court in Wilkinson. In that case, the Supreme Court concluded that indefinite
segregated confinement of extended duration that involved restrictions similar to Plaintiff’s
was constitutional provided the prison administrators complied with procedural due process.
In other words, the conditions alone do not violate the Cruel and Unusual Punishments Clause.
Plaintiff also alleges Defendants are responsible for events that transpired in Florida.
Assuming, arguendo, that conditions at the Zephyrhills Correctional Institution were
materially worse than the conditions in the Maine State Prison SMU, such that they would
satisfy the objective component of the claim,11 Plaintiff’s allegations do not support a claim
of deliberate indifference toward cruel and unusual conditions of confinement. That is,
Plaintiff has not alleged facts to suggest Defendants knew Plaintiff would be exposed to any
11

Plaintiff states that he spent his first 438 days in Florida in maximum security and was placed in a cell with
dangerous individuals. He also asserts he was assaulted and has "brutal facial pictures” of his injuries. (ECF
No. 10 at 2.)
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special harm in Florida based on the conditions of confinement he would experience in
Florida.
Plaintiff’s attempt to assert a claim based on Defendants’ alleged deliberate
indifference to the way in which segregated confinement in the SMU negatively impacted his
health also fails. To sustain such a claim, a plaintiff must allege facts that describe “a
sufficiently substantial ‘risk of serious damage to [the inmate’s] future health.’” Farmer v.
Brennan, 511 U.S. 825, 843 (1994) (quoting Helling v. McKinney, 509 U.S. 25, 35 (1993)).
A medical need is “serious” if it has been diagnosed by a physician as mandating treatment,
or is so obvious that even a lay person would recognize a need for medical
intervention. Leavitt v. Corr. Med. Servs., 645 F.3d 484, 497 (1st Cir. 2011); Gaudreault v.
Mun. of Salem, 923 F.2d 203, 208 (1st Cir. 1990), cert. denied, 500 U.S. 956 (1991). The
subjective standard concerns the individual culpability of the defendant. A plaintiff must
present evidence that the defendant possessed a culpable state of mind amounting to
“deliberate indifference to an inmate’s health or safety.” Farmer, 511 U.S. at 834 (internal
quotation marks omitted). Deliberate indifference is akin to criminal recklessness, “requiring
actual knowledge of impending harm, easily preventable.” Feeney v. Corr. Med. Servs., Inc.,
464 F.3d at 162 (quoting Watson v. Caton, 984 F.2d 537, 540 (1st Cir. 1993)). The focus of
the deliberate indifference analysis “is on what the [defendants] knew and what they did in
response.” Burrell v. Hampshire Cnty., 307 F.3d 1, 8 (1st Cir. 2002). “[T]he Constitution
requires that care be not so inadequate as to shock the conscience.” Perry v. Roy, 782 F.3d
73, 78 (1st Cir. 2015) (quotation marks omitted).

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Plaintiff alleges his longstanding mental health condition and restless leg syndrome
intensified due to his prolonged confinement in segregation. Plaintiff, however, has not
asserted facts from which one could plausibly conclude Defendants knew of a condition or
combination of conditions that produced a risk of serious damage to Plaintiff’s future health,
which condition Maine State Prison medical personnel failed to treat. Similarly, Plaintiff has
not asserted an actionable medical-related claim based on his incarceration in Florida.
3.

Equal protection / retaliation

“The Fourteenth Amendment’s Equal Protection Clause prohibits a state from treating
similarly situated persons differently because of their classification in a particular
group.” Mulero-Carrillo v. Roman-Hernandez, 790 F.3d 99, 105 – 106 (1st Cir. 2015), cert.
denied, 136 S. Ct. 808 (2016). Generally, to state an equal protection claim, a plaintiff must
allege facts that support a plausible inference that “compared with others similarly situated,
the plaintiff was selectively treated based on impermissible considerations such as race,
religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad
faith intent to injure a person.” Id. at 106 (quoting Barrington Cove Ltd. P’ship v. R.I. Hous.
& Mortg. Fin. Corp., 246 F.3d 1, 7 (1st Cir. 2001)). Absent such facts, decisions related to a
person’s rights, privileges, and benefits under state law require only a rational basis. Id.12
Plaintiff alleges his transfer to the Zephyrhills Correctional Institution was arranged to
retaliate against him for seeking judicial review in state court of his prolonged confinement
Additionally, the Supreme Court has recognized that in some circumstances a person can be a “class of one”
where the evidence demonstrates that the plaintiff was “intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528
U.S. 562, 564 (2000) (per curiam).
12

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in the SMU. Plaintiff further argues that many prisoners are charged with threatening, and
are not placed in segregation for such a long period and are not transferred to an out-of-state
facility. (ECF No. 10 at 14 – 15.) Plaintiff thus asserts he was “selectively treated based on
impermissible considerations such … [an] intent to inhibit or punish the exercise of
constitutional rights.” Id.13
Because Plaintiff’s equal protection theory relies on a retaliatory purpose, logically the
claim should be assessed in the context of the elements of his retaliation claim. To establish
a claim of retaliation, an inmate must allege (1) that the inmate engaged in conduct that is
protected by the First Amendment; (2) that a defendant took adverse action against the inmate
because of the inmate’s protected conduct; and (3) that the adverse action would deter an
inmate of ordinary firmness from exercising his or her First Amendment rights. Hannon v.
Beard, 645 F.3d 45, 48 (1st Cir. 2011); Davis v. Goord, 320 F.3d 346, 352 (2d Cir.
2003); Thaddeus–X v. Blatter, 175 F.3d 378, 398 (6th Cir. 1999).
Plaintiff contends Defendants transferred him to Florida because he commenced a state
court proceeding against Defendants in accordance with Maine’s Administrative Procedures
Act. (Complaint ¶¶ 57-63). Plaintiff’s state court filing, which evidently challenged his
ongoing confinement in the SMU and the procedure used to maintain him in segregation,
qualifies as protected activity. Additionally, a transfer to an out-of-state prison could be

See also Sandin, 515 U.S. at 487 n. 11, (“Prisoners ... retain other protection from arbitrary state action even
within the expected conditions of confinement. They may invoke the First and Eighth Amendments and
the Equal Protection Clause of the Fourteenth Amendment where appropriate ….”); Rouse v. Benson, 193 F.3d
936, 940 (8th Cir. 1999) (“Prison authorities have a great deal of discretion in running their institutions, and
such discretion normally outweighs any interest that any individual prisoner may have in remaining housed in
a particular prison. Nevertheless, a prisoner cannot be transferred in retaliation for his exercise of
constitutionally protected rights ….” (citation omitted)).
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considered by a reasonable factfinder to be sufficiently adverse to deter an inmate of ordinary
firmness from exercising First Amendment rights.
The issue is whether Plaintiff’s somewhat conclusory allegation of retaliatory purpose
is sufficient to state a claim. The First Circuit has noted “a retaliatory state of mind typically
is not susceptible to proof by direct evidence that can be averred in a complaint.” Ferranti v.
Moran, 618 F.2d 888, 892 (1st Cir. 1980).

Plaintiff evidently relies on the temporal

relationship between the filing of the state court action and his transfer as evidence of a
retaliatory purpose. Plaintiff filed in state court on July 20, 2014, and his Florida transfer
occurred on October 28, 2014. Under certain circumstances, the three-month period could
conceivably be sufficient to support a prima facie causation argument. See id. (“[A]n
inference of retaliation is warranted from the chronology of events recited, and from the
allegation that appellant’s first suit complains of prison conditions and is directed at prison
officials.” (citing McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979)); see also Sanchez–
Rodriguez v. AT & T Mobility P.R., Inc., 673 F.3d 1, 15 (1st Cir. 2012) (holding in
employment context that approximately three-month period between protected activity and
adverse action was “close enough to suggest causation” for purposes of a prima facie claim);
but see King v. Town of Hanover, 116 F.3d 965, 968 (1st Cir. 1997) (holding that
approximately five-month period between protected activity and adverse action did not
support an inference of causation for purposes of a prima facie claim without some additional
evidence of retaliatory purpose). Because Plaintiff’s approximate three-month period, under
certain circumstances, could be sufficient to sustain a retaliation claim, Plaintiff has at this

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stage of the proceedings asserted facts to support his allegation of retaliation. He has,
therefore, asserted an actionable claim for denial of equal protection and retaliation.
CONCLUSION
Based on the foregoing analysis, I recommend the Court grant in part Defendants’
motion to dismiss. (ECF No. 6.) In particular, I recommend the Court dismiss Plaintiff’s
Eighth Amendment claims. I further recommend the Court deny the motion as to Plaintiff’s
Fourteenth Amendment Due Process claim, Fourteenth Amendment Equal Protection claim,
and First Amendment retaliation claim.
NOTICE
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered pursuant
to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district court is
sought, together with a supporting memorandum, within fourteen (14) days of
being served with a copy thereof. A responsive memorandum shall be filed
within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right to
de novo review by the district court and to appeal the district court’s order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 17th day of February, 2017.

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