CONDON v. BOUFFARD et al

Filing 96

MEMORANDUM OF DECISION granting 70 Defendants' Motion for Summary Judgment. By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS)

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-JCN

MEMORANDUM OF DECISION ON
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
In this action, Plaintiff, a former inmate at the Maine State Prison (the prison), 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, and the First Amendment Petition Clause. Plaintiff alleges Defendants,
officials at the prison, subjected him to prolonged confinement in segregation 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 for Summary Judgment. (ECF
No. 70.) Following review and consideration of the parties’ summary judgment filings and
the record, the Court grants Defendants’ Motion for Summary Judgment.1

1

The parties consented to the undersigned to conduct any and all proceedings, to enter final orders and
judgment, and, if necessary, to conduct a trial. (Consent to a Magistrate Judge, ECF No. 78.)

I. Background
In response to Plaintiff’s verified complaint (Complaint, ECF Nos. 1, 1-1, 1-2),
Defendants filed a motion to dismiss (Motion, ECF No. 6), which the Court granted in part.
(ECF Nos. 17, 37.)

The Court dismissed Plaintiff’s Eighth Amendment claim, but denied

the motion with respect to Plaintiff’s due process, equal protection, and retaliation claims.
Defendants contend the summary judgment record establishes that the conditions of
confinement experienced by Plaintiff in the Special Management Unit (SMU), the prison’s
segregation unit, did not constitute an atypical and significant hardship; that the process
regarding Plaintiff’s administrative segregation complied with due process; that the law
permitted Defendants to transfer Plaintiff to an out-of-state facility without providing notice
or a hearing; that the funds taken from Plaintiff to pay the cost of shipping his property to
Florida have been restored, mooting the property claim; and that Defendant Bouffard, the
warden of the prison, made the decision to transfer Plaintiff to Florida before Plaintiff filed
his request for judicial review of administrative action in state court, and thus Plaintiff cannot
demonstrate a retaliatory motive for the transfer to Florida.
II. Material Facts 2

The facts are derived from Defendants’ statement of material facts (DSMF, ECF No. 71), affidavits and
exhibits cited in support of the statement (ECF Nos. 71-1 – 71-7), Plaintiff’s declaration in opposition of
Defendants’ motion (ECF No. 89), Plaintiff’s response to Defendants’ statement (PRSMF, ECF No. 90) and
statement of additional material facts (PSAMF, ECF No. 90-1), declarations, interrogatory responses, and other
exhibits cited in support thereof (ECF Nos. 90-2 through 90-7), Plaintiff’s complaint signed under penalty of
perjury (Compl., ECF Nos. 1, 1-2), and Defendants’ Reply to Plaintiff’s Statement of Additional Material Facts
(ECF No. 93).
2

2

Plaintiff is serving a life sentence, imposed by the State of Maine, following his
conviction in 1982 on three counts of murder. For most of the past thirty years, Plaintiff
served his sentence in federal prison facilities. On April 20, 2012, at the request of the Maine
Department of Corrections, Plaintiff was transferred to the Maine State Prison. (DSMF ¶¶ 1
– 3.) In letters written to administrators at the prison, Plaintiff admitted that he killed another
prisoner in 1993 while incarcerated in a federal corrections facility.3 (Id. ¶ 4.) Upon his
arrival at the prison, Plaintiff was advised that his behavior would be monitored closely and
that, if there were problems with his return to Maine, officials would seek another placement
for him. (Id. ¶ 5.)
On March 4, 2014, a prisoner told Antonio Mendez, Unit Manager of the Close Unit
to which Plaintiff was assigned, that Plaintiff expressed an intention to kill Holly Harris,
another Unit Manager of the Close Unit. (Id. ¶ 6.) Plaintiff denies threatening to kill or
otherwise harm Ms. Harris or anyone else. (PRSMF ¶ 6.)
Due to Plaintiff’s history of violent behavior, prison officials immediately placed
Plaintiff on emergency observation status (EOS) in the SMU. (DSMF ¶ 7.) Shortly thereafter,

Plaintiff states that the prisoner he killed threatened him, and that after killing the prisoner, he “used that
murder as a ‘wedge’ to maintain single cell status in the various federal penitentiaries [he] was housed in for
the next 20 years.” (Plaintiff’s Summary Judgment Declaration ¶ 12, ECF No. 89.) He “continued to use that
same ‘wedge’ … after [his] transfer back to Maine, mentioning it somewhat off-hand or as a kind of a ‘footnote’
in several letters to Maine officials, again to maintain a single-cell status. (Id. ¶ 13.) As for the report that he
threatened a member of staff, Plaintiff states that he “was ‘big cheese’ at the MSP in 2012 when he returned
given that he had just done 30 years in the ‘big time’ feds,” and that he “was a prime candidate to have a kite
‘dropped on’ because the bigger & badder the reputation, the more likely the note will be believed.”
Additionally, “weak or spiteful prisoners can and will drop notes on another prisoner for various reasons,”
including “just [to get] that prisoner out of the way.” Plaintiff states that “the kite in question here is blown
way out of proportion to the facts of what [Plaintiff] actually said.” (Plaintiff’s Opposition to Defendants’
Motion to Amend Discovery Order at 5 – 6, ECF No. 72.)
3

3

Plaintiff’s status was changed to “administrative segregation,” and he remained in the SMU
until he was transferred to Florida on October 28, 2014. (Id. ¶¶ 8, 22.)
Under Maine prison policy in effect at the Maine State Prison, the placement of a
prisoner in EOS and administrative segregation is not dependent on whether a prisoner is
charged with or found guilty of a disciplinary infraction. A prisoner can be placed and
maintained in segregation if the prisoner presents an immediate danger to staff or other
prisoners even if the prisoner is not charged with a disciplinary offense. (DSMF ¶ 9.)
Conditions of confinement in the SMU
According to Defendants, the living conditions in the SMU are approximately the same
as in the general population: cells in the SMU and in the close and medium custody, general
population units are approximately the same size; cells in all three custody levels have exterior
windows and are equipped with tray slots in the doors, although the tray slots in SMU have
an additional plastic covering for security; prisoners in all custody levels may turn off their
cell lights, but a low light level is always on to allow security staff to observe prisoners during
counts; and cells in all custody levels are furnished similarly. (Id. ¶ 10.) Prisoners in the
SMU are allowed to speak with each other and with staff, although the opportunity for
physical interaction between prisoners in SMU is more restricted than in general population
units. (Id. ¶ 11.)
Prisoners in administrative segregation are allowed out of their cells a minimum of one
hour each day, five days per week, for exercise, including outdoor exercise in fenced areas.
(Id. ¶ 12.) When Plaintiff was assigned to the SMU, an increasing number of programs were
introduced, and prisoners were allowed to participate in many of the programs. Depending
4

on the number of programs in which a prisoner might participate, a prisoner on administrative
segregation status could be out of his or her cell an additional six and a half hours each week.
(Id.) Prisoners in administrative segregation were allowed one telephone call and one noncontact visit each week, were allowed to send and receive mail, and were permitted to possess
written legal materials, stationery, religious materials and leisure reading materials. Unlike
general population prisoners, they were not permitted to possess electronic devices such as
radios, televisions and electronic games. Prisoners in the SMU were allowed access to a
special “thin client” computer terminal to perform legal research and could also use computers
installed in some SMU cells for specific programs. (Id. ¶ 13.)
Contrary to Defendants’ characterization, Plaintiff contends prisoners remain in their
cells for 23 hours each day, if not longer, and that the only outside recreation is a fenced in
“dog run” measuring approximately five by fifteen yards. (Plaintiff’s Summary Judgment
Declaration ¶¶ 14 – 15, ECF No. 89.) Communication with other prisoners in the SMU occurs
through each prisoner’s steel cell door, which requires prisoners to “scream” to communicate.
(Id. ¶ 15.) Canteen food purchases are not permitted. (Id. ¶ 19.) Plaintiff was provided a pen
with which to write, but it was a “child’s safety pen,” and he did not have access to a chair or
a desk at which to write or eat. (Id. ¶ 20.) Plaintiff asserts that his experience was exacerbated
by the fact that he was not told he could be transferred, and that he worried he “would live
out the remainder of [his] life in some obscure SMU cell.” (Id. ¶ 26.)
Plaintiff asserts a prisoner in the general population has much greater liberty, including
an open cell door for approximately 12 – 14 hours each day, the ability to leave the cell to
obtain canteen items and access a microwave oven, socialize and play games with other
5

prisoners at a card table, take a shower, make a phone call, leave the unit to access outdoor
recreational yards measured in acres, toss footballs or play softball, access a gym, visit a
“well-stocked leisure library,” use a word processor, get a haircut, attend club functions,
attend religious activities, attend classes, attend musical functions, work in the green house,
and eat alongside other prisoners. (Id. ¶¶ 15 – 18.)
Administrative segregation review
Plaintiff was in administrative segregation in the SMU for approximately eight months.
Pursuant to the Department of Corrections’ policy, a management team reviewed Plaintiff’s
placement in administrative segregation on twelve occasions in 2014: March 10, March 20,
March 27, April 1, April 14, April 17, April 23, May 23, June 11, June 24, July 30, and August
29. (DSMF ¶ 14.) Plaintiff was present for and could participate in most of the reviews. (Id.)
He was not allowed to attend on May 23 and June 24. (Plaintiff’s Summary Judgment
Declaration (PSJD) ¶ 23, ECF No. 89.) Defendant Breton, the Associate Commissioner,
acting as the Commissioner’s designee, conducted a six month review on September 5.
(DSMF ¶ 14.)
At an early stage of Plaintiff’s assignment to the SMU, the prison’s management,
including Defendant Bouffard, Deputy Warden Tausek and Defendant Ross, discussed
Plaintiff’s situation. The officials were concerned about the danger Plaintiff presented to
prison staff, and the impact of an extended period in segregation. (Id. ¶ 15.) Plaintiff
repeatedly expressed his dissatisfaction with the prison and, after a period of time in
administrative segregation, he expressed a preference for a transfer out of state in federal
custody. (Id. ¶ 16; PSJD ¶ 25.)
6

Transfer to Florida
In mid-May 2014, Defendant Bouffard, with Defendant Ross’ agreement, decided to
request that Plaintiff be transferred out of state. (DSMF ¶ 18.) On May 16, 2014, Defendant
Bouffard wrote to Scott McCaffery, the Department’s Director of Classification, requesting
the transfer. (DSMF ¶ 19.) According to Plaintiff, he was never informed that Defendants
were pursuing the transfer and only learned of it on the date he was transported out of the
prison. (PSJD ¶ 26.) He asserts it would have “eased [his] mind considerably” if he had been
informed. (Id.)
The Department of Corrections transfers prisoners to other states on a one-for-one
exchange basis, and it often takes some time to find a state interested in such an exchange.
(Id. ¶ 20.) When a state places a prisoner in the federal system, the state must pay the federal
government to incarcerate the prisoner; when a state exchanges a prisoner for a prisoner in
another state under the Interstate Compact, the state does not incur an additional cost. For
this reason, the Department of Corrections attempts to avoid transferring a prisoner to the
federal system whenever possible. (Id. ¶ 21.) Eventually, Mr. McCaffery arranged for
Plaintiff’s transfer to the Florida Department of Corrections. Plaintiff left the Maine State
Prison on October 28, 2014. (Id. ¶ 22.)
Plaintiff asserts that he was subjected to more severe conditions for more than a year
following his transfer to Florida. Plaintiff states that he has “no argument with the conditions
of … SMU confinement,” but the conditions in Florida “matched toe-to-toe with the
conditions at the Ohio State Penitentiary mentioned in Wilkinson v. Austin.” (PSJD ¶¶ 28,
30.) Plaintiff maintains Defendants are responsible for the difficulties he experienced in
7

Florida because he believes that statements Defendants made about his conduct caused the
administrators of the Florida facility to place him under especially difficult conditions when
he arrived. (Id. ¶¶ 31 – 32.) Defendants represent that they did “not have any say” as to where
administrators in Florida placed Plaintiff. (DSMF ¶ 23.)
Retaliation Claim
Defendants assert Defendant Bouffard was not aware that Plaintiff had filed a petition
for judicial review in state court in July 2014 regarding his confinement in the SMU; that
Defendant Bouffard asked Mr. McCaffery to arrange for Plaintiff’s transfer out of state two
months before Plaintiff filed the petition; and that Plaintiff’s petition for judicial review was
not a factor in Defendant Bouffard’s decision to request that Condon be transferred. (Id. ¶
24.)
Shipping expenses
On December 15, 2014, the Department of Corrections debited Plaintiff’s trust account
$156.76 to pay the cost of shipping his personal property to the Florida facility. (Id. ¶ 25.)
On October 27, 2017, the Department sent Plaintiff a check in the amount of $156.76 to
reimburse him for the amount previously taken from his account. (Id. ¶ 26.)
III. Discussion
A. Retaliation
Plaintiff claims Defendants transferred him to Florida because Plaintiff engaged in the
protected activity of filing a petition for judicial review of administrative action in Maine state
court. (Complaint ¶¶ 57 – 63.)

8

To establish a claim of First Amendment retaliation, an inmate must show (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).
While the summary judgment record establishes that Plaintiff engaged in protected
conduct, Plaintiff has failed to present any evidence that would contravene the record
evidence that the person who made the transfer decision, Defendant Bouffard, was unaware
at the time the decision was made, that Plaintiff had filed the petition in state court. Plaintiff,
therefore, cannot demonstrate that the transfer occurred because of a protected activity and
thus cannot prevail on his retaliation claim.
B. Equal Protection
Plaintiff claims Defendants treated him “radically different from other MSP inmates
similarly charged or situated” given the duration of his stay in the SMU and the fact that he
never was adjudicated guilty of the threatening charge, which charge carried a maximum
sanction of 20 days segregated confinement. (Complaint ¶¶ 54 – 55.)
“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
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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.; Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
The summary judgment record would not support a finding that Defendants selectively
treated Plaintiff in any way based on his membership in a protected class, or that Defendants
lacked a rational basis to transfer Plaintiff to another state, or to keep him in the SMU pending
the transfer. To the contrary, the record lacks any evidence to suggest Defendants’ conduct
was unreasonable or the product of any impermissible motive. Plaintiff is serving a life
sentence for a triple murder, spent nearly 30 years in federal penitentiaries, killed a fellow
inmate, used the killing as leverage to obtain a single cell assignment after arriving at the
Maine State Prison, and reportedly made a threat to kill a member of the staff at the Maine
State Prison.
C. Due Process
Plaintiff claims Defendants failed “to provide the opportunity for Plaintiff to ‘hear and
be heard’ … on his status during all the ASR [Administrative Segregation Review] processes,
inclusive of the Commissioner’s Six Month[] Review,” and thereby deprived Plaintiff of due
process. (Complaint ¶ 51.)
In support of his claim, Plaintiff also alleged:

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 On 3/27/14, a third ASR was held and this time the board decided to
release Plaintiff back into the MSP general population.
 However, at the very bottom of the ASR status review minutes (MDOC
form A-15.1-C-E, Sect. VI), there is a space where the Chief
Administrative Officer or his designee has his own private review which
can overrule the ASR Board’s decision without comment.
 On 3/25/14, Defendant Designee Ross used this Sect. VI power to
overrule the ASR Board’s decision to release Plaintiff.
 There is no appeal to the Designee’s decision and no opportunity for the
Plaintiff to “hear and be heard” by Defendant Designee Ross.
(Complaint ¶¶ 15 – 18.)
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 requires a court to consider “whether
there exists a liberty or property interest of which a person has been deprived,” and if so,
“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).
1. Whether Plaintiff Has Demonstrated a Liberty Interest
a. Liberty interest related to SMU confinement
“[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

11

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).
As an inmate, Plaintiff’s liberty interest is limited to avoiding conditions of
confinement that impose an “atypical and significant hardship … in relation to the ordinary
incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). Where the deprivation
of liberty does not rise to that level, Defendants failure to provide procedural protections does
not give rise to a constitutional violation. Id.
Defendants argue the record establishes that the conditions of confinement that
Plaintiff experienced within the SMU do not constitute an atypical and significant hardship.
In particular, they note Plaintiff could converse with staff and other prisoners and that he was
not strictly confined to his cell for 23 hours per day. They observe the available programs
permit SMU inmates to be outside their cells for an additional six and a half hours per week.
(Motion at 9; see also Administrative Segregation Status Policy, Procedure E.2.o, ECF No.
71-2.) The record lacks any evidence that the programs were not available to Plaintiff.
Plaintiff maintains the conditions in the SMU constitute an atypical and significant
hardship because he was denied communal dining and recreation, could not access an open
unit with a television, canteen, and microwave oven, and could not enjoy various other
amenities available to general population inmates. The denial of certain privileges available
to the general population, however, does not constitute an atypical and significant hardship.
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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. Consistent with the
Supreme Court’s ruling, several courts have concluded that lengthy periods in segregation are
not atypical and significant hardships where a legitimate disciplinary or security concern is
implicated. E.g., Pona v. Weeden, No. 1:16-cv-612, 2017 WL 3279012, at *5 (D.R.I. June
29, 2017), rec. dec. adopted, 2017 WL 3278874 (D.R.I. Aug. 1, 2017) (dismissing complaint
involving 43 days pending investigation, followed by seven and a half months disciplinary
sanction, and collecting cases).
Here, Plaintiff’s conditions of confinement cannot reasonably be characterized as an
atypical and significant hardship. That is, Plaintiff’s time in segregation, for the reasons and
under the conditions of segregation established on the record, does not and could not
constitute an atypical and significant hardship.4
b. Liberty interest in avoiding out of state transfer
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

4

Although the Court need not reach the issue given its finding that the conditions do not constitute an atypical
and significant hardship, Defendants arguably are entitled to summary judgment on the issue based on qualified
immunity. See Perry v. Spencer, No. 1:12-cv-12070, 2016 WL 5746346, at *16 (D. Mass. Sept. 30, 2016),
aff’d, No. 16-2444, 2018 WL 4182452 (1st Cir. Aug. 29, 2018) (concluding it would not have been clear to
prison officials at the time of the plaintiff’s 15-month period in segregation (2010-2012) that the period of
incarceration would have violated his constitutional rights).

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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 … 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 Haymes, 427 U.S. at 225). See also
Haymes, 427 U.S. at 242 (“The [Due Process] 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.”). To the extent, therefore, that Plaintiff contends the transfer to
Florida deprived him of a constitutional right, Plaintiff’s claim fails.5
2. Whether Procedures Were Sufficient
The process due a prisoner prior to the deprivation of a liberty interest related to his
conditions of confinement is not determined by application of “rigid rules,” but rather by a
“framework to evaluate the sufficiency of particular procedures.” Wilkinson, 545 U.S. 209,
224 (2005). The framework involves three factors: (1) the private interest affected by
segregated confinement; (2) the risk that the process will result in an erroneous deprivation,
and the probable value, if any, of a supplemental or alternative process; and (3) the
government interest and the burdens associated with a supplemental or alternative process.
Id. at 224 – 25 (citing Matthews v. Eldridge, 424 U.S. 319, 335 (1976)).

5

Plaintiff also failed to present any facts to support his contention that Florida subjected him to atypical and
significant conditions based on information provided by Defendants.
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a. Plaintiff’s private interest
Plaintiff’s liberty interest in not being placed in segregation, “while more than
minimal, must be evaluated … within the context of the prison system and its attendant
curtailment of liberties.” Id. at 225. The record reveals that the realities of prison and the
prison system necessitated the “curtailment” of Plaintiff’s interest. Plaintiff’s violent history,
as reflected by his life sentence on three counts of murder and by the fact he killed another
inmate, his acknowledgement that he “was a prime candidate to have a kite dropped on him”
because he was “bigger and badder” than the local inmates, and his reported threat to harm a
member of the prison staff, are compelling factors in the evaluation of Plaintiff’s interest.
b. Process employed
The record establishes that Plaintiff was provided with notice of the reason he was
placed in the SMU, that he had the opportunity to provide his position on the matter, and that
the decision to keep him in the SMU was based on legitimate concerns about the safety of
other inmates and prison staff. Notice of the factual basis for the SMU placement and the
opportunity for rebuttal “are among the most important procedural mechanisms for purposes
of avoiding erroneous deprivations.” Wilkinson, 545 U.S. at 226.
In addition, after Plaintiff entered the SMU on March 4, 2014, a management team
reviewed his placement on March 10, March 20, March 27, April 1, April 14, April 17, April
23, May 23, June 11, June 24, July 30, and August 29. (DSMF ¶ 14.) Plaintiff was present
at most of these reviews, and he was allowed to state his position regarding the reason for his
placement. (Id.) Plaintiff’s absence from two of the reviews (May 23 and June 24) does not
compromise the validity or sufficiency of the process. (PSJD ¶ 23.)
15

Through the process at the prison, Plaintiff was afforded “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.” Hewitt, 459 U.S. 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.”).
Plaintiff argues the process was deficient because the Chief Administrative Officer
could and did overrule a favorable recommendation from the Administrative Segregation
Review Committee. While the process permits the Chief Administrative Officer to overrule
the Committee, the Officer’s authority is not unlimited or unchecked. The policy requires a
six-month review by the Commissioner, at which review the Chief Administrative Officer
must articulate the justification for continued administrative segregation. (Id., Procedure
C.14.) The record demonstrates that the review occurred.
In sum, the record establishes that the process provided notice, an opportunity to be
heard, and regular reviews of Plaintiff’s status. The process was sufficient to minimize the
risk of an erroneous deprivation of Plaintiff’s liberty interest.
c. The State’s interest
The significance of Defendants’ interest in maintaining order in the prison and in
protecting the safety of inmates and staff cannot be seriously disputed. Similarly, the need to
separate certain inmates from the general population to maintain that order and safety is also
well-recognized. The process employed, which included notice, an opportunity to be heard,
16

and regular reviews (12 in 8 months), was reasonable and logically related to the state’s
interest in safety and maintaining order in the prison.
d. Summary of evaluation of factors
None of the relevant factors supports Plaintiff’s due process claim. The State’s
interest generally in maintaining the safety of inmates and prison staff is legitimate. In this
case, the State’s interest was particularly significant given Plaintiff’s violent history,
including in prison. Plaintiff posed a legitimate safety risk to the prison population and prison
staff. Plaintiff’s interest, while also significant, was appropriately addressed through the
administrative process. The process by which Defendants decided to place Plaintiff in the
SMU and the process by which Defendants decided to maintain him in segregation for eight
months before his transfer were reasonable and consistent with the governing legal standard.
As explained above, the process was sufficient to minimize the risk of an erroneous
deprivation of Plaintiff’s liberty interest. Given the risk posed and the process employed,
Plaintiff cannot prevail on his due process claim. A contrary conclusion would be inconsistent
with the “wide-ranging deference” to prison administrators “in the adoption and execution of
policies and practices that in their judgment are needed to ... maintain institutional security.”
Whitley v. Albers, 475 U.S. 312, 321–22 (1986) (quoting Bell v. Wolfish, 441 U.S. 520, 547
(1979)) (internal quotation marks omitted).
3. Plaintiff’s Property Interest
Plaintiff complains Defendants withdrew $156.76 from his inmate account to satisfy
the cost of forwarding his property to Florida. (ECF No. 1-2, ¶ 50.) He specifically requests,
in his plea for relief, that any award include “the $156.76 Defendant took out of Plaintiff’s
17

inmate account as a ‘charge to send his property to him’.” (Id. at 12.) The deprivation of
money without adequate process can support a constitutional claim. See Coombs v. Welch,
No. 15-1776 (1st Cir. May 9, 2016) (citing Reynolds v. Wagner, 128 F.3d 166, 179 (3d Cir.
1997)).
Insofar as Plaintiff seeks money damages for the temporary deprivation of his funds,
he has not introduced any evidence to support a personal capacity claim against any of the
defendants. Consequently, his claim is deemed an official capacity claim, presumably against
Defendant Breton. An official capacity claim is effectively a claim against the State. Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Because a state is not a “person” within
the meaning of § 1983 and because § 1983 does not expressly abrogate the immunity provided
to states under the Eleventh Amendment of the U.S. Constitution, section 1983 does not
authorize a claim against the states. Id. at 64; see also Nieves–Marquez v. Puerto Rico, 353
F.3d 108, 124 (1st Cir. 2003) (“No cause of action for damages is stated under 42 U.S.C. §
1983 against a state, its agency, or its officials acting in an official capacity.”). To the extent,
therefore that Plaintiff seeks to recover damages based on the temporary deprivation of his
funds, a damages remedy is, in any event, not available in an official capacity claim.
Finally, insofar as an official capacity claim could support prospective6 equitable or
injunctive relief consisting of the return of Plaintiff’s money, because the Maine Department

6

Only prospective injunctive relief is permissible with an official capacity claim. Greenless v. Almond, 277
F.3d 601, 607 (1st Cir. 2002).
In Ex Parte Young, however, the Supreme Court carved out an exception to Eleventh Amendment state
immunity that allows federal courts to “enjoin state officials to conform their future conduct to the
requirements of federal law,” Quern v. Jordan, 440 U.S. 332, 337 (1979). See also Green v. Mansour,
474 U.S. 64, 68 (1985); Edelman v. Jordan, 415 U.S. 651, 664 (1974). The Court has described the
18

of Corrections refunded the money to Plaintiff, Plaintiff’s claim for the return of his property
is moot.
IV.

Conclusion
Based on the foregoing analysis, the Court grants Defendants’ Motion for Summary

Judgment. (ECF No. 70.) Judgment shall be entered for Defendants on all counts.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 21st day of September, 2018.

difference between permissible and impermissible relief as “the difference between prospective relief
on one hand and retrospective relief on the other.” Quern, 440 U.S. at 337.
Whalen v. Massachusetts Trial Court, 397 F.3d 19, 28 – 29 (1st Cir. 2005).

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