SCHOFF v. FITZPATRICK et al
REPORT AND RECOMMENDED DECISION re 26 MOTION for Summary Judgment filed by HARVEY BAILEY, DAVID VERRIER, LUKE MONAHAN, GLEAN BROWN, SCOTT LANDRY, PENNY BAILEY. Objections to R&R due by 3/21/2018. By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
STEVEN R. SCHOFF, JR.,
JOSEPH FITZPATRICK, et al.,
RECOMMENDED DECISION ON DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT AND ORDER ON PLAINTIFF’S REQUEST FOR Rule 56(d)
RELIEF AND MOTION TO STRIKE
In this action, Plaintiff Steven Schoff, Jr., an inmate in the custody of the Maine
Department of Corrections, alleges Defendants illegally seized, opened, and reviewed his
“privileged legal mail,” deprived him access to the courts, and retaliated against him based
on the information contained in his mail.
The matter is before the Court on Defendants’ Motion for Summary Judgment (ECF
No. 26), Plaintiff’s request for relief under Federal Rule of Civil Procedure 56(d) (ECF No.
39), and Plaintiff’s Motion to Strike the Affidavit of Jennifer Ackerman (ECF No. 42).
Through the summary judgment motion, certain defendants seek judgment on all claims,
and some defendants ask the Court to enter judgment in their favor on all claims except
Plaintiff’s claim regarding the unlawful seizure and review of his outgoing legal mail.
Plaintiff requests that the Court deny the motion in part based on the unavailability
of facts needed to overcome the motion. Plaintiff also asks the Court to strike an affidavit
filed by Defendants.1
Following a review of the parties’ submissions and the record, I deny Plaintiff’s
motion to strike and Plaintiff’s request for Rule 56(d) relief, and recommend the Court
grant in part and deny in part Defendant’s motion for summary judgment.
The facts are derived from Defendants’ statement of material facts (DSMF, ECF
No. 27), affidavits cited in support of the statement (ECF Nos. 28, 49-2), Plaintiff’s
statement of disputed factual issues (PSDF, ECF No. 40), Plaintiff’s affidavit in opposition
to the summary judgment motion (Schoff Aff., ECF No. 40), and Plaintiff’s complaint
signed under penalty of perjury (Compl., ECF No. 1). 2
Defendants omitted the affidavit of Jennifer Ackerman when they filed their motion, but filed the affidavit
with their reply.
In support of their motion for summary judgment, Defendants filed a statement of material facts setting
forth the background facts upon which their motion is based. Local Rule 56 requires that factual assertions
in support of or in opposition to a motion for summary judgment be set forth in a separate statement of
material facts. D. Me. Loc. R. 56(a), (b), (f). Defendants have complied with the Rule. Plaintiff has not
filed an opposing statement of material facts as required under Local Rule 56(c), but has filed his own
statement of facts. Because Plaintiff has not filed an opposing statement, and because Defendants’
statements are supported by record citations, the factual assertions set forth in Defendants’ statement are
deemed admitted. See D. Me. Loc. R. 56(f). However, a court “may not automatically grant a motion for
summary judgment simply because the opposing party failed to comply with a local rule requiring a
response within a certain number of days.” NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 7 – 8 (1st Cir.
2002). Instead, a court must assess whether the movant has shown “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). In the
context of summary judgment, this Court has observed that a prisoner’s nonconforming summary judgment
submission should be reviewed by the Court and that the facts set forth in a verified complaint or prisoner
affidavit should be considered. Clarke v. Blais, 473 F. Supp. 2d 124, 128 (D. Me. 2007). In this case,
therefore, the summary judgment record consists of the Local Rule 56 record and Plaintiff’s sworn
On February 2, 2016, Plaintiff, a prisoner at the Maine Correctional Center (MCC),
was assaulted by another prisoner, Dale Gardner. (DSMF ¶ 1.) Defendant David Verrier,
MCC’s criminal investigator, conducted an investigation into the incident. (Id. ¶ 2.) As
part of his investigation, Defendant Verrier reviewed recordings of Plaintiff’s phone calls
and learned that Plaintiff had obtained a news article from a person outside the facility
regarding a criminal act committed by a person Plaintiff believed might be Mr. Gardner.
(Id. ¶¶ 3 – 5.) On February 8, 2016, Defendant Verrier interviewed the person who sent
the article to Plaintiff. (Id. ¶ 5.)
On the same day, Defendant Verrier, accompanied by Defendant Penny Bailey, Unit
Manager, met with Plaintiff to question him about the assault. (Id. ¶ 8.) Because Plaintiff
was reluctant to discuss the events leading up to the assault with Defendant P. Bailey
present, Defendant Verrier asked Plaintiff for a written statement regarding his history of
conflict with Mr. Gardner. According to Defendant Verrier, he did not ask Plaintiff to send
a statement to the district attorney, but rather asked Plaintiff to give him the statement. (Id.
¶ 9.) According to Plaintiff, Defendant Verrier told him to send his statement to the district
attorney. (PSDF ¶¶ 1, 2.)3
As a result of his interviews on February 8, Defendant Verrier directed MCC’s Inner
Perimeter Security (IPS) team to conduct surveillance of Plaintiff’s mail. (DSMF ¶ 11.)
On February 17, the IPS team intercepted a letter from Plaintiff to District Attorney
statements of record. Notably, although Plaintiff filed an amended complaint (ECF No. 9), unlike with
Plaintiff’s complaint, Plaintiff’s amended complaint was not signed under penalty of perjury.
Plaintiff asserts that there should be an audiotape of the meeting and that there is an outstanding discovery
request for a copy of the recording. (PSDF ¶ 4.)
Stephanie Anderson.4 The letter contained the statement Defendant Verrier asked Plaintiff
to prepare. (Id. ¶ 12.) Defendant Verrier reviewed the letter and evidently maintained
custody of the letter until he met with the Deputy District Attorney Jennifer Ackerman
approximately one month later.
In the letter, Plaintiff described the circumstances under which he met Marc Miville,
an individual he believed shared responsibility for the assault by Mr. Gardner. The letter
included information of Plaintiff’s involvement with Mr. Miville in the trafficking of drugs
at the MCC in 2013. (DSMF ¶ 14.) Defendant Verrier gave a copy of the letter to
Defendant Glean Brown, Deputy Warden of MCC. (DSMF ¶ 14.)
On February 19, 2016, Defendant Luke Monahan, Unit Manager, was asked to
attend a meeting with Defendants Brown and Verrier. At the meeting, Defendant Monahan
learned of Plaintiff’s letter to the district attorney regarding the drug trafficking activity,
and was told the letter had been intercepted by the IPS team. (Id. ¶ 21.) Defendant Brown
suggested that based on the letter, Plaintiff should receive a disciplinary write-up for
trafficking. (Id. ¶ 22.) Defendant Monahan expressed concern as to whether they could
use the information in the letter because it was included in Plaintiff’s outgoing letter to the
district attorney. (Id.) Defendants consulted an assistant attorney general, and were advised
they could use the information in the letter for a disciplinary write-up for trafficking. (Id.)
According to the allegations in Plaintiff’s verified complaint, Plaintiff sent two letters to the District
Attorney marked “LEGAL MAIL,” one on February 13, 2016, and another on February 17, 2016. (Compl.
¶¶ 23, 26, 27, 29.)
Defendant Brown then directed Defendant Monahan to prepare the disciplinary incident
On February 19, 2016, while Defendant Harvey Bailey was filling in as the shift
supervisor at MCC, Defendant Monahan submitted to him for review and approval a
disciplinary incident report regarding Plaintiff. (Id. ¶ 23.) Under the relevant discipline
policy, the staff person who prepares the disciplinary report must submit it to a supervisor
within 72 hours of the incident; the shift supervisor must review the report to determine if
the report clearly sets forth the incident and the disciplinary charge; and the shift supervisor
must approve the report if the supervisor determines that a formal resolution of the charge
is necessary. (Id. ¶ 24.) Defendant H. Bailey reviewed Defendant Monahan’s report and
approved the charge. (Id. ¶ 25.)
In March 2016, Defendant Verrier met with Deputy District Attorney Ackerman,
who eventually became the prosecuting attorney on the assault charge against Mr. Gardner.
(Id. ¶ 15.) At the meeting, Defendant Verrier provided the letter that Plaintiff had
attempted to mail to the district attorney. (Id. ¶¶ 16 – 17.) Following the meeting, the
District Attorney’s Office opened a file on Mr. Gardner. (Id. ¶ 18.)6 According to Deputy
District Attorney Ackerman, if her office had received the letter before a member of the
Plaintiff asserts that he “has never admitted that he participated in drug trafficking at MCC, or at any
time.” (DSDF ¶ 12.) According to his affidavit, Plaintiff agreed, under duress, to send other prisoners to
Mr. Miville, but never actually did so. (Schoff Aff. ¶ 8.) Plaintiff also asserts that, if the content of his
letter was enough to find him guilty of a disciplinary infraction, the letter should have supported a similar
infraction against Mr. Miville, yet prison administrators never charged Mr. Miville. (Id. ¶ 9.)
Defendants assert that Defendant Verrier and Deputy District Attorney Ackerman met on March 24, 2016,
and that Deputy District Attorney Ackerman did not open the file until “several days later,” on March 28,
2016. (DSMF ¶¶ 16, 18.) In her affidavit, Deputy District Attorney Ackerman states that she met with
Defendant Verrier and opened the file on March 28, 2016. (Ackerman Aff. ¶ 3.)
office met with Defendant Verrier, because the office did not have an open file on Mr.
Gardner at that time, the office would have forwarded the letter to Defendant Verrier for
his investigative file. (Id. ¶ 18; Ackerman Aff. ¶ 5.) After investigating the matter, the
District Attorney’s Office determined there was insufficient evidence to charge Mr. Miville
with assault; Deputy District Attorney Ackerman explained the decision to Plaintiff.
(DSMF ¶ 19; Ackerman Aff. ¶ 6.) According to Deputy District Attorney Ackerman,
Plaintiff’s letter did not make a significant difference in the decision to prosecute Mr.
Gardner because the District Attorney’s Office obtained statements from two witnesses,
and a copy of a video recording that showed Mr. Gardner striking Plaintiff with a hammer.
(DSMF ¶ 20; Ackerman Aff. ¶ 7.)7
Plaintiff’s Motion to Strike
Plaintiff contends the Court must strike Deputy District Attorney Ackerman’s
affidavit because he believes her assertion that she would have sent his letter to Defendant
Verrier is not credible given that Plaintiff wrote in the letter that Defendant Verrier was
“botching” the investigation. (Motion to Strike ¶ 3.) Plaintiff otherwise maintains that
Plaintiff states that Defendants failed to respond timely to requests for admissions he served on
Defendants, and he asserts that the facts he asked Defendants to admit should be deemed admitted. (Matters
Deemed Admitted, ECF No. 41.) Defendants contend that Defendants Landry and Brown were the only
defendants who received requests for admissions, and that Defendants Landry and Brown responded.
Plaintiff has the burden to introduce the record necessary to overcome a properly filed and supported motion
for summary judgment. Lawton v. State Mut. Life Assur. Co. of Am., 101 F.3d 218, 223 (1st Cir. 1996)
(“[W]here, as here, a Rule 56 motion targets an issue on which the nonmoving party must carry the devoir
of persuasion[,] … the nonmovant must ‘produce specific facts, in suitable evidentiary form,’ sufficient to
limn a trialworthy issue.” (quoting Morris v. Gov’t Dev. Bank of P.R., 27 F.3d 746, 748 (1st Cir. 1994)).
For purposes of the summary judgment record, the Court will not deem the requests admitted because
Plaintiff has not provided the Court with a copy of the requests for admissions, and the record is otherwise
insufficient to establish that Defendants failed to respond to requests for admissions served upon them.
Deputy District Attorney Ackerman’s assertions regarding what would have happened if
the District Attorney’s Office would have received the letter when Plaintiff mailed it are
Federal Rule of Civil Procedure 12(f) authorizes a court to strike “from a pleading
an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
Motions to strike, however, are “disfavored in practice, and not calculated readily to invoke
the court’s discretion.” Boreri v. Fiat S.p.A., 763 F.2d 17, 23 (1st Cir. 1985). In the
summary judgment context, in particular, a separate motion to strike a statement of fact is
not allowed. See D. Me. Loc. R. 56(e).
In this case, the challenged affidavit is not redundant, impertinent, or scandalous.
Plaintiff has had the opportunity to respond to the factual assertions contained in the
affidavit. The Court can assess the materiality of the affidavit and any other alleged
deficiencies with the affidavit in its analysis of the motion for summary judgment.
Accordingly, Plaintiff’s motion to strike is denied.
Plaintiff’s Request for Rule 56(d) Relief
As part of his response to Defendants’ motion for summary judgment, Plaintiff
asserts in conclusory fashion that “facts essential to justify opposition are unavailable.”
(Response at 1, ECF No. 39.)
When the nonmoving party at summary judgment believes the party has not had
access to facts to respond to a motion for summary judgment, the party may ask the court
to defer ruling on, or deny, the summary judgment motion until the nonmoving party
obtains further discovery. Fed. R. Civ. P. 56(d). To obtain the relief provided by the Rule,
the nonmoving party must show “by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition.” Id. The First Circuit has described
the necessary showing, or proffer, and the standard of review, as follows:
[T]he proffer should be authoritative; it should be advanced in a timely
manner; and it should explain why the party is unable currently to adduce the
facts essential to opposing summary judgment.” If the reason the party
cannot “adduce the facts essential to opposing summary judgment” is
incomplete discovery, the party's explanation (i.e., the third requirement)
should: (i) “show good cause for the failure to have discovered the facts
sooner”; (ii) “set forth a plausible basis for believing that specific facts ...
probably exist”; and (iii) “indicate how the emergent facts ... will influence
the outcome of the pending summary judgment motion.” Thus, in a case
involving incomplete discovery, the Rule 56(d) proffer requirements can be
categorized as: “authoritativeness, timeliness, good cause, utility, and
materiality.” “[T]hese requirements are not inflexible and .... one or more of
the requirements may be relaxed, or even excused, to address the exigencies
of a given case.” When all the requirements are satisfied, “a strong
presumption arises in favor of relief.
In re PHC, Inc. S’holder Litig., 762 F.3d 138, 143 – 44 (1st Cir. 2014) (citations omitted)
(quoting Resolution Trust Corp. v. N. Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir.
The discovery period closed on December 22, 2017. While Defendants filed their
motion for summary judgment on September 26, 2017, three months before the close of
the discovery, the Court granted two extensions to Plaintiff to respond to the motion, such
that his response to the motion was due on December 29, 2017, after the close of the
discovery period. (Orders, ECF Nos. 32, 35.) Plaintiff did not cite the inability to obtain
discovery necessary to respond to the motion for summary judgment in either of his
requests for more time to respond. (Motions, ECF Nos. 31, 33.) Instead, Plaintiff was
concerned about his limited access to MCC’s law library. (ECF No. 33.)
Plaintiff has had more than sufficient time to conduct discovery in this matter. The
Court is not persuaded that additional discovery is necessary for Plaintiff to respond to the
summary judgment motions.
In fact, Plaintiff argued in opposition to Defendants’
substantive arguments (Response, ECF No. 39), and filed statement of disputed factual
issues, with a supporting affidavit. (ECF No. 40.) Furthermore, Plaintiff has not identified
the nature of the discovery he believes is necessary and how the discovery would influence
the result of the motion for summary judgment. Plaintiff’s request for Rule 56(d) relief,
therefore, is denied.
Defendants’ Motion for Summary Judgment
After reviewing Plaintiff’s initial complaint in accordance with 28 U.S.C. § 1915
and § 1915A, during which process Plaintiff filed an amended complaint, the Court
determined that Plaintiff had asserted four actionable claims:
(1) A “legal mail claim” against Defendant Landry;
(2) A claim of wrongful seizure of mail against one or more Doe Defendant(s);
(3) A retaliation claim against Defendants Monahan and Harvey Bailey; and
(4) A claim for deprivation of the right of access to the courts against
Defendants Verrier, Penny Bailey, Brown, and one or more Doe
(Order Granting Motion for Leave to Amend Complaint and Affirming In Part
Recommended Decision of the Magistrate Judge, ECF No. 11, at 6.)
The Court dismissed Plaintiff’s due process claim because the claim challenged the revocation of accrued
good time credits and, therefore, Plaintiff is required to pursue the claim first in a habeas petition. Wilkinson
v. Dotson, 544 U.S. 74, 78, 82 (2005) (discussing the holding of Edwards v. Balisok, 520 U.S. 641, 646
Through their motion for summary judgment, Defendants argue that the record will
not support Plaintiff’s claim for deprivation of the right to access the courts (Motion at 6 –
8); that Defendants P. Bailey, Landry, and Brown are entitled to summary judgment on the
legal mail claim because they did not direct or otherwise participate in the seizure of
Plaintiff’s legal mail (Motion at 8); that Defendants Monahan and H. Bailey are entitled to
summary judgment on the retaliation claim because the record does not demonstrate
retaliation by either defendant (Motion at 8 – 10); and that Plaintiff cannot recover
compensatory damages for emotional distress on any remaining claim because he did not
suffer physical injury (Motion at 10).
Right of Access to the Courts
Defendants argue the record will not support a claim for deprivation of Plaintiff’s
right to access the courts because there is no evidence that Plaintiff suffered harm to any
underlying constitutional claim or any other cognizable claim. (Motion at 6 – 8.) In his
amended complaint, Plaintiff asserted that his letter to the district attorney was his attempt
“to convey incriminating information against an unindicted co-conspirator in the attempted
murder, named Marc Miville,” and that because Plaintiff was charged with trafficking
based on the content of the correspondence, he was “prevented … from communicating
fully and frankly with the district attorney regarding the attempted murder.” (Am. Compl.
¶¶ 4, 7, ECF No. 9.)
In Lewis v. Casey, 518 U.S. 343 (1996), the Supreme Court, when considering an
access to courts claim based on the alleged inadequacy of the prison law library and legal
assistance services, held that a constitutional claim based on a prisoner’s right to access the
courts requires a showing of actual injury to that right.
Id. at 351. See also Oliver v.
Fauver, 118 F.3d 175, 178 (3d Cir. 1997) (holding that prisoner suffered no actual injury
based on alleged interference with his outgoing legal mail to the court, where his mail
arrived at the court and the court adjudicated his claim). Citing Lewis, the First Circuit
The right of access to the courts, in the context of prisoners, is addressed only
to a prisoner’s right to attack his conviction and his right to challenge the
conditions of his confinement. “Impairment of any other litigating capacity
is simply one of the incidental (and perfectly constitutional) consequences of
conviction and incarceration.”
Riva v. Brasseur, No. 15-2554, 2016 WL 9650983, at *1 (1st Cir. Sep. 12, 2016) (quoting
Lewis, 518 U.S. at 355 (emphasis in original)).
Plaintiff’s contention that he was deprived of a criminal prosecution of Mr. Miville
does not constitute the harm necessary to sustain an access to courts claim. Plaintiff does
not have a constitutional right to the institution of a criminal prosecution in a state or federal
court, and thus Plaintiff’s claim is not, ultimately, a claim about the denial of access to the
courts. United States v. Nixon, 418 U.S. 683, 693 (1974) (“the Executive Branch has
exclusive authority and absolute discretion to decide whether to prosecute a case”); Linda
R.S. v. Richard D., 410 U.S. 614, 619 (1973) (private citizens lack a judicially cognizable
interest in the criminal prosecution of another); Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir.
1989); Briand v. Lavigne, 223 F. Supp. 2d 241, 251 (D. Me. 2002).9
In Nolan v. Scafati, 430 F.2d 548 (1st Cir. 1970), the First Circuit held that a prisoner stated a claim where
he alleged prison administrators diverted his outgoing legal mail to the Massachusetts Civil Liberties Union,
effectively preventing him from seeking legal assistance. Unlike here, however, in Nolan the prisoner
sought to assert a constitutional claim. Id. at 549. In Muhammad v. Pitcher, 35 F.3d 1081 (6th Cir. 1994),
the Sixth Circuit held that a policy that denied “legal mail” status to correspondence with the state attorney
general was unconstitutional because of the chilling effect it would have on inmates’ access to justice
Legal mail and Defendants Penny Bailey, Brown, and Landry
The First Amendment protects a prisoner’s ability to correspond on a broad range
of topics, including the vindication of a prisoner’s rights, and it protects legal mail from
unlawful interception and censorship.10 Defendants do not dispute the scope of the First
Amendment’s protections, but argue that the record will not support a claim against
Defendants P. Bailey, Brown, and Landry.
through the attorney general’s office. Id. at 1084. The Sixth Circuit described the policy as “a roadblock
upon an otherwise legitimate avenue for the redress of an inmate’s legal problems or grievances.” Id. The
court then considered whether the policy could be upheld under the Turner v. Safley framework. Id. at 1084
– 85. The significance of Muhammad v. Pitcher in relation to this case is that it reinforces that Plaintiff’s
mail claim exists independent of any denial of access claim. Thus, although the facts related to Plaintiff’s
legal mail do not support a denial of access claim, Plaintiff can proceed with an independent legal mail
“[A] prisoner’s right to the free flow of incoming and outgoing mail is protected by the First
Amendment.” Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). However, “[l]awful incarceration brings
about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the
considerations underlying our penal system.” Price v. Johnston, 334 U.S. 266, 285 (1948). “The limitations
on the exercise of constitutional rights arise both from the fact of incarceration and from valid penological
objectives – including deterrence of crime, rehabilitation of prisoners, and institutional security.” O’Lone
v. Estate of Shabazz, 482 U.S. 342, 348 (1987). Courts have held that correspondence with attorneys
general and prosecutors will often implicate the right of prisoners to access the courts or otherwise petition
the government for redress of grievances, and have appropriately expressed concern that opening and
reviewing the content of such mail could “chill” access to justice. See Muhammad v. Pitcher, 35 F.3d 1081,
1083 (6th Cir. 1994) (collecting cases). The First Circuit’s assessment of claims arising out of the right to
send mail has been governed by the Supreme Court’s decision in Procunier v. Martinez, 416 U.S. 396, 412
– 13 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989). See Stow v.
Grimaldi, 993 F.2d 1002 (1st Cir. 1993) (considering a policy calling for inspection/censorship of outgoing
mail, but not involving outgoing legal mail). In Martinez, the Supreme Court held that outgoing prisoner
mail may be censored if it furthers “an important or substantial governmental interest unrelated to the
suppression of expression” and the burden imposed is “no greater than is necessary or essential to the
protection of the particular governmental interest involved.” 416 U.S. at 412 – 13. The Court explained in
Thornburgh that the language in Martinez imposing a higher standard for censorship of outgoing mail was
the product the Court’s “recognition that the regulated activity centrally at issue in that case-outgoing
personal correspondence from prisoners-did not, by its very nature, pose a serious threat to prison order and
security.” Thornburgh, 490 U.S. at 411. In other words, Martinez reflected that prison administrators
generally do not have an institutional interest in the consequence of outgoing speech activity, and, therefore,
censorship of outgoing communications is less likely to be sustained. Id. at 409 – 10. However, where an
interest in internal prison administration is evident, prison regulation that burdens a constitutional right
need only be “generally necessary” to a legitimate penological interest. Id. at 409 – 412 (reconciling
Martinez with Turner v. Safley, 482 U.S. 78, 89 (1987)).
To the extent Plaintiff asserts a § 1983 claim against an individual defendant,
Plaintiff’s allegations must support a finding that the individual, through his or her
individual actions, violated Plaintiff’s constitutional rights. Ashcroft v. Iqbal, 556 U.S.
662, 676 – 77 (2009). In other words, each defendant is entitled to an individualized
assessment as to whether Plaintiff has asserted an actionable claim against that defendant.11
Defendants Landry, Brown, and P. Bailey assert by affidavit that they were not
involved in the interception of Plaintiff’s mail. They maintain they were unaware of
Defendant Verrier’s action until after it occurred. (Id. ¶ 13.) Plaintiff contends, however,
that each defendant “was contemporaneously aware of, and was materially involved in the
seizure, opening, reading, and dissemination of [his] privileged communication to DA
Anderson.” (PSDF ¶¶ 13 – 15.) In support of his statement, Plaintiff cites the same
affidavits as Defendants. In his summary judgment affidavit, Plaintiff states that Captain
Shawn Welch informed him at his disciplinary proceeding that “everybody from Penny
[Bailey] and Harvey [Bailey] to Luke [Monahan] and Deputy Warden Brown have [sic]
weighed in on your write-up.” (Schoff Aff. ¶ 12.)
Defendant Penny Bailey
Defendant Penny Bailey asserts she “had no knowledge of or involvement in the
interception of the letter.” (Affidavit of Penny Bailey ¶ 3, ECF No. 28-7.) While Plaintiff
attempts to generate a disputed factual issue through his assertion that Captain Welch told
Although Defendants P. Bailey and Brown were not identified during the screening process as defendants
who were necessarily implicated in the legal mail claim, and although Defendant Landry was not identified
as a defendant on the wrongful seizure claim, because the pleadings of pro se litigants receive a liberal
construction in federal court, and because the Rules allow for amendment of pleadings and joinder of claims
that are in the interest of justice, Fed. R. Civ. P. 1, 15(b), it is appropriate to interpret the pleadings as
asserting a legal mail claim against the defendants.
him that Defendant P. Bailey was aware of the letter and its significance to the drug
trafficking disciplinary charge, even if the statement of Captain Welch were considered
admissible evidence in accordance with Rule 56(c)(4), Defendant’s mere knowledge of the
letter’s existence would not support a claim against her. The record lacks any evidence to
suggest that Defendant P. Bailey was involved in the confiscation or retention of Plaintiff’s
legal mail. Defendant P. Bailey, therefore, is entitled to summary judgment on the legal
Defendant Glean Brown
Defendant Brown asserts he was not aware of and did not authorize the interception
of the “letter,” and learned of the interception “after the fact.” (Affidavit of Scott Landry
¶ 6, ECF No. 28-4; Affidavit of Glean Brown ¶ 6, ECF No. 28-5.) Defendant Brown’s
potential liability, however, is not limited to his direct involvement in the interception or
retention of the mail. Under the federal civil rights act, 42 U.S.C. § 1983, a supervisory
official may be legally responsible for the conduct of a subordinate if the conduct of the
subordinate results in a constitutional violation and the supervisory official’s action or
inaction was affirmatively linked to the conduct. Estate of Bennett v. Wainwright, 548 F.3d
155, 176 – 77 (1st Cir. 2008). An affirmative link can be shown through supervisory
encouragement, condonation or acquiescence, or by gross negligence amounting to
deliberate indifference. Id. The applicable standard “contemplates proof that the
supervisor’s conduct led inexorably to the constitutional violation.” Pineda v. Toomey,
533 F.3d 50, 54 (1st Cir. 2008) (quoting Hegarty v. Somerset Cnty., 53 F.3d 1367, 1380
(1st Cir. 1995)).
Although the summary judgment record establishes that Defendant Brown did not
authorize the interception of the correspondence in advance, given his participation in the
February 19, 2016, conference with Defendant Verrier, and given his status as the Deputy
Warden of MCC, the record generates a question as to whether Defendant Brown, in his
supervisory capacity, condoned the interception of Plaintiff’s mail. Defendant Brown is
thus not entitled to summary judgment.
Defendant Landry asserts he was not aware of and did not authorize the interception
of the “letter,” and learned of the interception “after the fact.” (Affidavit of Scott Landry
¶ 6, ECF No. 28-4; Affidavit of Glean Brown ¶ 6, ECF No. 28-5.) The record also lacks
any evidence that connects Defendant Landry to the interception and retention of Plaintiff’s
correspondence, either as a direct participant or as a supervisor who condoned the
interception and retention. Defendant Landry, therefore, is entitled to summary judgment.
To establish a claim of First Amendment 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 that he was charged with a drug trafficking violation by
Defendants in retaliation for the content of his communication with the district attorney
and earlier First Amendment activity. (Schoff Aff. ¶¶ 5 – 6.) In support of his claim,
Plaintiff asserts that Defendant P. Bailey has a history of improperly placing him in the
punitive level system when he was experiencing mental health difficulties. (Id. ¶ 7.)
Plaintiff also argues that his letter to the district attorney did not support the disciplinary
charge, and the fact he was the only person charged with drug trafficking constitutes
evidence of a retaliatory bias. (Id. ¶ 9.) Defendants contend they are entitled to summary
judgment because the record would not support a finding that they instituted the drug
trafficking disciplinary charge for retaliatory purposes. (Motion at 9 – 10.)
First, given the information Plaintiff included in the letter, Plaintiff’s argument that
the charge was retaliatory because the charge was baseless is not persuasive. Plaintiff’s
letter can fairly be characterized as an admission to participating in drug trafficking
activity. Although the letter can be deemed an admission by Plaintiff, it is not conclusive
evidence of Mr. Miville’s involvement. The mere fact that Mr. Miville was not charged is
thus insufficient to establish retaliation. The record establishes a legitimate basis for the
disciplinary charge against Plaintiff, and lacks sufficient evidence to support a retaliation
claim. Defendants, therefore, are entitled to summary judgment.
Plaintiff requests compensatory damages “for the irreparable injury [he] suffered as
a result of the First Amendment violations.” (Compl. at 16, ¶ C.1, C.6.) Citing 42 U.S.C.
§ 1997e(e), Defendants argue Plaintiff cannot recover compensatory damages based on an
emotional injury. (Motion at 10.)
Under the Prison Litigation Reform Act, Congress has limited the relief available to
prisoners in civil actions. Specifically: “No Federal civil action may be brought by a
prisoner confined in a jail, prison, or other correctional facility, for mental or emotional
injury suffered while in custody without a prior showing of physical injury or the
commission of a sexual act.” 42 U.S.C.A. § 1997e(e).
Whether § 1997e(e) precludes an award of compensatory damages on a claim for
deprivation of a First Amendment right or any other constitutional right has not been
directly decided by the First Circuit. Williams v. Cutler, No. 1:14-cv-00539-NT, 2016 WL
1314630, at *7 (D. Me. Mar. 11, 2016). However, persuasive authority suggests that
Plaintiff cannot recover monetary relief based on Plaintiff’s mental or emotional distress.
Mattei v. Dunbar, 217 F. Supp. 3d 367, 380 (D. Mass. 2016) (collecting opinions from the
Second, Third, Fifth, Seventh, Eighth, Tenth, and D.C. Circuits).
Nevertheless, Plaintiff could conceivably recover compensatory damages for actual
injury. See, e.g., Wilcox v. Brown, 877 F.3d 161, 170 (4th Cir. 2017); King v. Zamiara,
788 F.3d 207, 212 (6th Cir. 2015) (collecting cases); Shaheed-Muhammad v. Dipaolo, 138
F. Supp. 2d 99, 107 (D. Mass. 2001) (Gertner, J.). For example, in King, the Sixth Circuit
noted that courts have permitted a prisoner to “recover presumed damages for actual
injuries caused by constitutional violations that are likely to have occurred but difficult to
measure, even when the injury claimed is neither physical harm nor mental or emotional
distress.” 788 F.3d at 214 (internal quotation marks omitted). Defendants have not
addressed whether Plaintiff’s claim involves an “actual” injury under such an analysis. See
id. (discussing the need for a showing of “specific compensable, non-abstract harm”
(quoting City of Watseka v. Illinois Public Action Council, 796 F.2d 1547 (7th Cir.1986),
aff’d, 479 U.S. 1048 (1987))).12
This Court has on other occasions reserved judgment on the question whether
§ 1997e(e) applies to constitutional claims, where the procedural posture of the case
permitted the Court to address the matter at a later time. See Ayotte v. Barnhart, 973 F.
Supp. 2d 70, 83 (D. Me. 2013); Williams v. Cutler, No. 1:14-cv-00539-NT, 2016 WL
1314630, at *7 (D. Me. Mar. 11, 2016). A similar approach is appropriate in this case.
Based on the foregoing analysis, I deny Plaintiff’s Motion to Strike (ECF No. 42)
and Plaintiff’s Request for Rule 56(d) Relief (ECF No. 39). Additionally, I recommend
the Court grant in part Defendants’ Motion for Summary Judgment (ECF No. 26).
Specifically, I recommend the Court:
(1) grant summary judgment to all Defendants on Plaintiff’s claim of denial
of access to the courts;
(2) grant summary judgment to Defendants Penny Bailey and Scott Landry
on Plaintiff’s legal mail claim, but deny the motion as to Defendant Glean
(3) grant summary judgment on Plaintiff’s retaliation claim; and
(4) preclude any award of compensatory damages for emotional distress, but
reserve judgment on whether Plaintiff may be able to establish an actual
Because the law in this Circuit does not foreclose the award of nominal and punitive damages on a
constitutional claim that does not involve physical injury, and because Plaintiff also requests declaratory
relief, Plaintiff’s legal mail claim remains viable even if the Court concludes that Plaintiff cannot recover
any form of compensatory damages. Kuperman, 645 F.3d at 69 n.5; Williams, 2016 WL 1314630, at *7.
injury to a constitutional right that would otherwise support Plaintiff’s
request for compensatory damages.
If the Court accepts the recommendation, the remaining claims would be Plaintiff’s First
Amendment legal mail claim and Fourth Amendment unreasonable seizure claim,13 on
which claims Plaintiff would proceed against Defendants Verrier and Brown.14
Any objection to this Recommended Decision and Order shall be filed in
accordance with Fed. R. Civ. P. 72.
With respect to the order on non-dispositive matters, a party may serve and
file objections within fourteen (14) days after being served with a copy. Fed.
R. Civ. P. 72(a).
With respect to the recommendations made herein, 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.
Section 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. A responsive memorandum shall be filed within fourteen
(14) days after the filing of the objection. Fed. R. Civ. P. 72(b)(2). 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 7th day of March, 2018.
In its Order Granting Motion for Leave to Amend Complaint and Affirming In Part Recommended
Decision of the Magistrate Judge, the Court concluded that proof of a legal mail violation under Martinez
might also demonstrate that the seizure of Plaintiff’s outgoing mail was unreasonable for purposes of the
Fourth Amendment. (ECF No. 11 at 3.)
During the screening process, the Court interpreted the legal mail claim as a claim against Defendant
Landry and the unreasonable seizure claim to be a claim against Doe Defendants. As a consequence of the
summary judgment review, both claims should proceed against Defendants Verrier and Brown, based on
their involvement in the interception and/or retention of Plaintiff’s correspondence.
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