DIXON v. JOHN DOE

Filing 46

REPORT AND RECOMMENDED DECISION re 32 MOTION for Summary Judgment filed by DALTON GROEGER. Objections to R&R due by 8/16/2017. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
RICHARD ALLEN DIXON, JR.,
Plaintiff
v.
DALTON GROEGER,
Defendant

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2:16-cv-00178-NT

RECOMMENDED DECISION ON DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
In this action, Plaintiff Richard Allen Dixon, Jr., alleges that Defendant Dalton
Groeger violated his constitutional rights while Plaintiff was detained at the York County
Jail. Specifically, Plaintiff alleges that he was subjected to cruel and unusual punishment
in violation of the Eighth Amendment when he was assaulted by another inmate, and that
when he initiated grievance proceedings, Defendant retaliated against him in violation of
the First Amendment. (Am. Compl. ¶ 1, ECF No. 4.)
The matter is before the Court on Defendant’s Motion for Summary Judgment.
(ECF No. 32.) Following a review of the record and the parties’ summary judgment filings,
I recommend the Court grant in part and deny in part the motion.
FACTS
Plaintiff, presently confined at the Maine Correctional Center, was detained at York
County Jail from July 25, 2015, to September 19, 2015. (Defendant’s Statement of
Material Facts (“DSMF”) ¶ 1, ECF No. 33; Plaintiff’s Statement of Material Facts

(“PSMF”) ¶ 1, ECF No. 43.) Defendant was a correctional officer at the York County Jail
at all times relevant to this action. (DSMF ¶ 2; PSMF ¶ 2.)
On August 30, 2015, Defendant was assigned to work in the unit of the Jail to which
Plaintiff was confined.

(DSMF ¶ 3; PSMF ¶ 3.)

Throughout that day, Defendant

participated with certain inmates in throwing around paper balls. (PSMF ¶ 5.) Plaintiff
eventually told Defendant that he needed to start acting like an officer. (Id. ¶ 6.) Defendant
responded with an expletive. (Id. ¶ 7.) Later that night as Plaintiff was going to his cell,
he took a blue glove from Defendant’s desk; Defendant told Plaintiff to put it back and to
grow up. (Id. ¶ 9.)
Defendant was the only officer on duty in the unit that evening. (PSMF ¶ 4.)
Plaintiff went to bed around 10:30 p.m. (Id. ¶ 10.) According to Plaintiff, without warning,
he felt his face stinging - Plaintiff states it felt like he had been slapped awake - and an
inmate was holding a pencil to his neck. (Id. ¶¶ 11 – 12; DSMF ¶¶ 4, 5.) The inmate
informed Plaintiff that if he did not stop “running his mouth,” the inmate would harm
Plaintiff. (PSMF ¶ 12.)
Plaintiff did not see Defendant unlock his cell door, nor hear Defendant unlock the
cell door. (DSMF ¶¶ 6 – 7.) Plaintiff, however, saw Defendant standing at the door to the
cell, approximately ten feet away, holding the cell door open and watching. (PSMF ¶ 13.)
The incident involving the other inmate lasted only seconds. (DSMF ¶¶ 8, 12.) The
pencil did not penetrate Plaintiff’s skin. (Id. ¶ 10.) Plaintiff was not physically injured
during the incident and did not seek medical attention. (Id. ¶ 11.) Defendant did not enter
Plaintiff’s cell or speak to Plaintiff. (Id. ¶ 13.) Plaintiff did not know the other inmate
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prior to the incident. (Id. ¶ 14.) Plaintiff has no direct evidence that Defendant “recruited”
the inmate to assault Plaintiff. (Id. ¶ 15.)1
On September 1, 2015, Plaintiff filed a grievance regarding the incident. (PSMF ¶
15.) On September 8, Defendant entered Plaintiff’s cell and confronted him about the
grievance. (Id. ¶ 16.) Plaintiff told Defendant to leave the cell three time before Defendant
left. (Id. ¶ 17.) Defendant did not physically harm Plaintiff in any way when he asked him
about the grievance on September 8. (DSMF ¶ 20.) 2
Because Defendant had confronted Plaintiff about the grievance, on September 11,
2015, Plaintiff filed a second grievance against Defendant. (Id. ¶ 21.) Following the filing
of the grievances, the jail continued to assign Defendant to escort Plaintiff on daily trips to
medical, and during one or more of the trips, Defendant called Plaintiff a rat and said he
would not be able to “tell his way out of this one.” (Id. ¶ 19.)
Plaintiff asserts that Defendant also told him he would “get what [he] deserved” and
would “get what was coming to [him].” (Dixon Aff. ¶ 7, ECF No. 43-1.) Plaintiff also
asserts that Defendant “continued to make intimidating comments to me.” (PSMF ¶ 19.)
Defendant objects to some of Plaintiff’s statements because they are new and/or contradict
Plaintiff’s deposition testimony. (Def.’s Reply Statement ¶ 19, ECF No. 45.) Plaintiff

According to Defendant, he did not unlock Plaintiff’s cell door to allow an inmate to enter. (DSMF ¶ 22.)
He also did not direct any inmate to harm or threaten Plaintiff, nor did he see or hear an inmate assault or
threaten Plaintiff on August 30, 2015. (Id. ¶¶ 23 – 24.) Defendant states he had no knowledge of the inmate
exhibiting any aggressive or threatening behavior toward other inmates. (Id. ¶ 26.)
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Defendant acknowledges asking Plaintiff on September 8, 2015, why Plaintiff filed a grievance against
him, but states he did not take any action toward Plaintiff in order to deter him from filing further grievances
against him. (Id. ¶ 27.)
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contends that he “took a full revocation and probation to get out of York County Jail”
because he was afraid of what Defendant might do.3 (DSMF ¶ 20.)
SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment 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). “After the moving party has presented evidence in support
of its motion for summary judgment, ‘the burden shifts to the nonmoving party, with
respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact
reasonably could find in his favor.’” Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st
Cir. 2013) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 158 (1st Cir. 1998)).
A court reviews the factual record in the light most favorable to the non-moving
party, resolving evidentiary conflicts and drawing reasonable inferences in the nonmovant’s favor. Perry v. Roy, 782 F.3d 73, 77 (1st Cir. 2015). If a court’s review of the
record reveals evidence sufficient to support findings in favor of the non-moving party on
one or more of his claims, a trial-worthy controversy exists and summary judgment must
be denied as to any supported claim. Id. (“The district court’s role is limited to assessing
whether there exists evidence such that a reasonable jury could return a verdict for the
nonmoving party.” (internal quotation marks omitted)). Unsupported claims are properly
dismissed. Celotex Corp. v. Catrett, 477 U.S. 317, 323 – 24 (1986) (“One of the principal

Defendant’s motion reveals that Plaintiff was detained on a probation violation charge at the time in
question. Evidently, Plaintiff maintains that he admitted to the probation violation in part because he
understood he would not be held in York County Jail following the judgment revoking his probation.

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purposes of the summary judgment rule is to isolate and dispose of factually unsupported
claims or defenses.”).
DISCUSSION
Defendant argues that Plaintiff’s failure to comply fully with Local Rule 56 justifies
entry of summary judgment in favor of Defendant; that Plaintiff’s mistaken assertion of an
Eighth Amendment claim rather than a Fourteenth Amendment claim requires dismissal of
the action; that Defendant is entitled to summary judgment on the merits of the forcerelated/punishment claim because the facts do not support an inference that Defendant
directed or permitted an inmate to enter Plaintiff’s cell to assault or threaten Plaintiff; that
Defendant is entitled to summary judgment on the merits of the First Amendment
retaliation claim because the record lacks evidence of retaliation; and that Defendant is
protected on all claims by the doctrine of qualified immunity.
A.

Non-compliance with Local Rule 56

Local Rule 56 sets forth a procedure for presenting and challenging factual
assertions in support of or in opposition to a motion for summary judgment. For example,
Local Rule 56 provides that a party who opposes a motion for summary judgment must file
an opposing statement of material facts that admits, denies, or qualifies the statements
offered by the moving party. D. Me. Loc. R. 56(c). In this case, Plaintiff filed a competing
statement of material facts in which he presented his own version of the facts, but he did
not admit, deny, or qualify each of the statements offered in Defendant’s statement of
material facts. Plaintiff’s statement includes citations to record evidence.

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A party’s pro se status does not relieve the party of the obligation to comply with
the court’s procedural rules. Ruiz Rivera v. Riley, 209 F.3d 24, 27 – 28 & n. 2 (1st Cir.
2000); Marcello v. Maine, 489 F. Supp. 2d 70, 77 (D. Me. 2007). In the context of
summary judgment, however, this Court has observed that an inmate’s nonconforming
summary judgment submission should be reviewed by the Court and that the facts set forth
in a verified complaint or inmate affidavit should be considered. Clarke v. Blais, 473 F.
Supp. 2d 124, 128 (D. Me. 2007). Plaintiff’s partial compliance with Local Rule 56,
including his statement of facts supported by citations to the record, reflects substantial
compliance in accordance with the reasoning of Clarke. I am satisfied that Plaintiff’s
partial compliance and the relatively limited record allow the Court to assess fairly the
merits of the parties’ substantive summary judgment arguments.
B.

Cruel and Unusual Punishment Claim

As alleged, at the time of the assault by the inmate, Defendant was a state actor.
Plaintiff’s federal claim regarding the assault, therefore, arises under 42 U.S.C. § 1983 and
the Fourteenth Amendment. “The rights enforceable under [42 U.S.C.] § 1983 emanate
through the Fourteenth Amendment and they include substantive and procedural due
process, the equal protection of the laws, and those rights in the Bill of Rights incorporated
by the Due Process Clause, including rights protected by the First, Second, Fourth, and
Eighth Amendments.” Harpswell Coastal Acad. v. Maine Sch. Admin. Dist. No 75
(Topsham), No. 2:15-cv-00454-JAW, 2015 WL 7194934, at *4 (D. Me. Nov. 16, 2015).

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Because Plaintiff was awaiting a hearing on a probation revocation charge,
Defendant concedes that Plaintiff should be considered a pretrial detainee.4 (Motion at 5.)
As a pretrial detainee, Plaintiff was protected by the Due Process Clause “from the use of
excessive force that amounts to punishment.” Kingsley v. Hendrickson, 135 S. Ct. 2466,
2473 (2015) (quoting Graham v. Conner, 490 U.S. 386, 395 n.10 (1989)). The use of force
can be considered “punishment” if it was not “rationally related to a legitimate nonpunitive
governmental purpose” or was “excessive in relation to that purpose.” Id. at 2473 – 74
(quoting Bell v. Wolfish, 490 U.S. 520, 561 (1979)).
Considerations such as the following may bear on the reasonableness or
unreasonableness of the force used: the relationship between the need for the
use of force and the amount of force used; the extent of the plaintiff’s injury;
any effort made by the officer to temper or to limit the amount of force; the
severity of the security problem at issue; the threat reasonably perceived by
the officer; and whether the plaintiff was actively resisting.
Id. at 2473 (explaining that the identified considerations are not exclusive). Although the
record establishes that Defendant did not personally use force against Plaintiff, the claim
against Defendant would be actionable if the evidence could support a finding that
Defendant was in part responsible for the use of force. More specifically, because the use
of force could be viewed as objectively unreasonable and thus punishment, Plaintiff’s claim
would proceed beyond summary judgment if a fact finder could reasonably conclude that
the force was applied at the direction of Defendant or with Defendant’s involvement.5

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See also Smith v. Harris Cty., 198 F.3d 241 (5th Cir. 1999).

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Defendant also argues that if the claim was considered a conditions of confinement case, Plaintiff would
be required to produce, but has not produced, evidence of a subjective state of mind that meets the deliberate
indifference standard. (Motion at 7.) I do not construe Plaintiff’s claim as a conditions of confinement
claim. Plaintiff instead contends that Defendant purposefully and knowingly allowed the other inmate into
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In this case, when viewed most favorably to Plaintiff, a fact finder could find the
following facts based on the direct record evidence: that on the day of the assault, the
communications between Plaintiff and Defendant were to some degree confrontational;
that through his comments to Defendant, Plaintiff had been disrespectful to Defendant; that
Defendant had access to Plaintiff’s cell; that another inmate entered Plaintiff’s cell late at
night and assaulted Plaintiff; that the inmate also threatened Plaintiff that he would be
harmed if Plaintiff did not stop “running his mouth;” and that at the time of the assault,
Defendant was just outside the cell, holding the door open to the cell, observing the
inmate’s conduct. Given the evidence that at the time Defendant was holding open the cell
door, a fact finder could also reasonably infer that Defendant was aware of and permitted,
if not facilitated, the inmate’s conduct. Defendant’s argument, therefore, that the record
lacks evidence to support a finding that Defendant violated Plaintiff’s Fourteenth
Amendment rights, is unavailing.
Defendant’s request for summary judgment based on qualified immunity is also not
convincing. Government officers are entitled to qualified immunity unless they violate a
constitutional right that was “clearly established” when they engaged in the conduct at
issue. Hunt v. Massi, 773 F.3d 361, 367 (1st Cir. 2014). “Qualified immunity shields an
officer from suit when she makes a decision that, even if constitutionally deficient,
reasonably misapprehends the law governing the circumstances she confronted.” Brosseau
Plaintiff’s cell after Plaintiff had gone to bed. As Defendant observes, “where the conduct in question is
‘purposefully or knowingly’ applied, satisfaction of an objective standard is sufficient to establish liability.”
(Id. at 7 – 8 (quoting McKenney v. Joyce, No. 2:16-cv-00412-NT, 2016 WL 6304678, at *4 n.4, 2016 U.S.
Dist. LEXIS 148759, at *11 n.4 (D. Me. Oct. 27, 2016) (Report and Recommended Decision))).
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v. Haugen, 543 U.S. 194, 198 (2004) (citing Saucier v. Katz, 533 U.S. 194, 206 (2001)).
“This strain of immunity aspires to ‘balance [the] desire to compensate those whose rights
are infringed by state actors with an equally compelling desire to shield public servants
from undue interference with the performance of their duties and from threats of liability
which, though unfounded, may nevertheless be unbearably disruptive.’” Cox v. Hainey,
391 F.3d 25, 29 (1st Cir. 2004) (quoting Buenrostro v. Collazo, 973 F.2d 39, 42 (1st Cir.
1992)).
As explained above, the record, when viewed most favorably to Plaintiff, could
support the determination that Defendant permitted, and possibly facilitated, the assault of
Plaintiff by another inmate. Under the clearly established law at the time, such conduct by
a corrections officer, if proven, would constitute a constitutional deprivation. Defendant,
therefore, is not entitled to summary judgment based on qualified immunity.
C.

Retaliation Claim

To prevail on a claim of first amendment retaliation, an inmate must demonstrate
(1) that the inmate engaged in conduct protected by the First Amendment; (2) that the
defendant took adverse action against the inmate because of the protected conduct; and (3)
that the adverse action was more than de minimis, i.e., was sufficient to 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); ThaddeusX v. Blatter, 175 F.3d 378, 398 (6th Cir. 1999).
In this Circuit, the filing of a prison grievance is considered protected conduct.
Hannon, 645 F.3d at 48 (“The plaintiff, in filing his own grievances and legal actions,
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plainly engaged in protected activity.”); Hightower v. Vose, 95 F.3d 1146 (Table), No. 952296, 1996 WL 516123, *1 (1st Cir. Sept. 12, 1996). The issue is whether Defendant’s
comments following Plaintiff’s grievance activity were more than de minimis, i.e., whether
they were sufficiently serious to deter an inmate of ordinary firmness from exercising his
right to petition for redress of grievance. “[T]his objective test applies even where a
particular plaintiff was not himself subjectively deterred; that is, where he continued to file
grievances and lawsuits.” Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004); see also
Ayotte v. Barnhart, 973 F. Supp. 2d 70, 82 (D. Me. 2013).
Several circuit courts of appeals have held that harassment and threats can constitute
the necessary adverse action. Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009);
Thaddeus-X, 175 F.3d at 398; Burgess v. Moore, 39 F.3d 216, 218 (8th Cir. 1994); Ford v.
Palmer, 539 Fed. App’x 5, 7 (2d Cir. 2013). Harassment, however, is not always
actionable. Brown v. Lewis, 865 F. Supp. 2d 642, 648 (E.D. Pa. 2011). For example, a
verbal insult alone does not constitute adverse action. Vincent v. Sitnewski, 117 F. Supp.
3d 329, 340 (S.D.N.Y. 2015) (citing inter alia Mateo v. Fischer, 682 F. Supp. 2d 423, 434
(S.D.N.Y. 2010) (collecting S.D.N.Y. cases concerning verbal threats)); Briggs v. Wall,
No. 1:09-cv-00456, 2009 WL 4884529, at *5 (D.R.I. Dec. 16, 2009) (“The alleged vague
threat of future unspecified discipline … does not constitute ‘adverse action’”). On the
other hand, death threats and threats of serious physical harm generally suffice. Evenstad
v. Herberg, 994 F. Supp. 2d 995, 1001 (D. Minn. 2014) (concluding that the statement,
“We’ll be ramping things up,” was too vague to state a claim, where the complaint provided

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no context to give the statement chilling effect, such as a “history of abuse or a pattern of
threats” or an accompanying “menacing gesture”).
Here, Defendant’s reference to Plaintiff as a “rat” and Plaintiff’s assertion that
Defendant in essence told him he would not be able to talk is way out of the situation are
the only facts of record that could support a retaliation claim. Plaintiff also asserts that
Defendant said Plaintiff would “get what [he] deserved” and would “get what was coming
to [him]” (Dixon Aff. ¶ 7, ECF No. 43-1), and that Defendant “continued to make
intimidating comments to me.”

(PSMF ¶ 19.)

Plaintiff’s statements, however, are

inconsistent with and contrary to his deposition testimony. During his deposition, when
asked whether Defendant made any threats to him when Defendant appeared at Plaintiff’s
cell to discuss the grievance, Plaintiff replied, “no.” (Dixon Dep. at 35, ECF No. 34.) In
addition, when asked about any alleged intimidation while Defendant escorted Plaintiff on
his daily trips to medical, Plaintiff testified: “He just called me a rat, you know, like, oh,
you can’t tell your way out of this one, just stuff like that, just ignorant statements.” (Dixon
Dep. at 39.) Despite being asked for any other specific statements made by Defendant,
Plaintiff provided none. (Id.)
“When an interested witness has given clear answers to unambiguous questions, he
cannot create a conflict and resist summary judgment with an affidavit that is clearly
contradictory, but does not give a satisfactory explanation of why the testimony is
changed.” Colantuoni v. Alfred Calcagni & Sons, 44 F.3d 1, 4 (1st Cir. 1994). Plaintiff’s
affidavit includes statements that were not only not included in his deposition testimony,
but were plainly designed to address Defendant’s contention that Defendant did not
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threaten Plaintiff.

Under Colantuoni, Plaintiff’s affidavit statements are properly

disregarded. Defendant’s statements, as recounted by Plaintiff during his deposition, do
not constitute adverse action that would deter an inmate of ordinary firmness from
exercising the inmate’s First Amendment rights. Plaintiff thus cannot sustain a First
Amendment retaliation claim.
Even if the Court were to conclude that the statements were potentially actionable,
the statements did not violate a clearly established constitutional standard separating nonactionable harassment from actionable threats. Defendant, therefore, would entitled to
qualified immunity on Plaintiff’s retaliation claim.
CONCLUSION
Based on the foregoing analysis, I recommend the Court grant in part and deny in
part Defendant’s Motion for Summary Judgment. (ECF No. 32.) I recommend the Court
enter judgment in Defendant’s favor on Plaintiff’s retaliation claim, and deny the motion
as to Plaintiff’s claim under the Fourteenth Amendment.
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
and 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 2nd day of August, 2017.
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