Mattei v. Dunbar et al
Filing
62
Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER. Dunbar's motion for summary judgment is GRANTED as to Count 8 and DENIED as to Counts 3 and 12. (Copy mailed to plaintiff on this date) (Maynard, Timothy)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_____________________________________
)
ALEXANDER MATTEI,
)
)
Plaintiff,
)
)
v.
)
)
BENJAMIN DUNBAR, et al.,
)
)
Defendants.
)
_____________________________________)
Civil Action No.
13-12195-FDS
MEMORANDUM AND ORDER ON DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
SAYLOR, J.
This action arises out of alleged retaliation by a prison employee against an inmate at the
Massachusetts Correctional Institution at Norfolk (“MCI-Norfolk”). Plaintiff Alexander Mattei,
an inmate, worked in the prison metal shop, where he was supervised by defendant Benjamin
Dunbar. After Mattei was passed over for a promotion, he filed a series of grievances against
Dunbar. He was subsequently terminated from the metal shop. Months later, another inmate
came forward alleging that Dunbar had asked him what he would want in return for “taking care”
of Mattei.
Mattei, who is proceeding pro se, contends that Dunbar retaliated against him for filing
grievances in violation of the First Amendment. Specifically, he alleges that Dunbar denied him
good-time credit, terminated him from his position in the industrial shop, and attempted to recruit
another inmate to cause him physical harm, all in retaliation for filing grievances.
Dunbar has moved for summary judgment as to all claims. For the reasons set forth
below, the motion will be granted in part and denied in part.
I.
Background
A.
Factual Background
The following facts are either undisputed or taken in the light most favorable to Mattei as
the non-moving party.
Alexander Mattei has been an inmate at MCI-Norfolk since August 2009. (Def. SMF ¶
1). MCI-Norfolk has a metal shop that employs inmates. (Def. SMF. ¶ 4). It is divided into two
units: Metal Shop I and Metal Shop II. (Def. SMF ¶ 5). Inmates are assigned to work in only
one shop, but they can work in the other shop if there is a need and a supervisor reassigns them.
(Def. SMF. ¶ 19).
Defendant Dunbar is the Shop Manager of Metal Shop I and is in charge of supervising
and training the inmates who work there. (Def. SMF (Id. ¶ 4). Mattei began working in Metal
Shop I in October 2010. (Def. SMF ¶ 44).
Mattei contends that he submitted the first of four grievances against Dunbar on April
19, 2012. (Mattei Dep. at 60–61). His first grievance alleged that despite being the most senior
person in the metal shop eligible for a pay raise, he was unfairly passed over when the raise
when to another inmate. (Mattei Dep. at 62). He stated that it was the second time his seniority
had been ignored and he was passed over for a promotion. (Id.). Although MCI-Norfolk has a
procedure for keeping track of inmate grievances, the prison has no record of the first grievance.
(Def. SMF ¶¶ 98–100). Mattei, however, has produced a handwritten copy of his grievance.
(Mattei Dep. at 61).
Dunbar denies having any knowledge of the grievance. (Def. SMF ¶ 102). Mattei
contends that Dunbar was aware of the grievance, and that he said he would “do something” for
him so that he would be eligible for the next promotion. (Mattei Dep. at 69). Mattei further
2
contends that Dunbar then assigned him to work with another inmate so that he could receive
additional training and thus become eligible for a raise. (Mattei Dep. at 71–72). Mattei worked
with that other inmate for approximately two weeks before he was transferred to Metal Shop II,
where he worked from mid-May 2012 until October 2012. (Mattei Dep. at 70–72; Def. SMF ¶
110).
Supervisors and industrial instructors at MCI-Norfolk rate the monthly performance of
inmates in vocational and other programs as “satisfactory,” “unsatisfactory,” or “incomplete.”
(Def. SMF ¶ 40). Inmates may be awarded Earned Good Time credit on a monthly basis for
“satisfactory performance” in an employment, educational, or training program. (Def. SMF ¶
38–39). Inmates are also paid for “good and satisfactory work.” (Def. SMF ¶ 42).
Between the end of September and beginning of October 2012, Mattei learned that he had
received an unsatisfactory rating on his performance evaluation for his Metal Shop I job in April
2012 and, therefore, did not earn good-time credit for that month. (Def. SMF ¶¶ 111–12). He
contends that he was denied good-time credit for April 2012 in retaliation for the grievance he
filed against Dunbar. (Pl. SMF ¶¶ 80–82). He received good-time credit for every other month
in which he worked in the Metal Shop. (Def. Ex. 3, Dep. Ex. 6).
On October 10, 2012, Mattei filed a second grievance, contending that he was denied
good-time credit in April 2012 in retaliation for filing the previous grievance. (Def. SMF ¶ 115).
On October 15, 2012, Mattei completed his temporary assignment to Metal Shop II and
returned to Metal Shop I. (Def. SMF ¶¶ 110, 127). Two days later, on October 17, Dunbar saw
him removing a back brace. (Def. SMF ¶ 128). Metal Shop I did not have a back brace. (Def.
SMF ¶ 131). Dunbar asked Mattei where the brace came from. (Def. SMF ¶ 128). Mattei
responded that he had received the brace from another inmate in Metal Shop II. (Def. SMF ¶¶
3
128, 133). Mattei contends that he had been wearing the back brace, over his clothes where it
was easily visible, for several days before Dunbar confronted him about it. (Pl. SMF ¶ 128).
Dunbar called the supervisor of Metal Shop II, who told him that a back brace was missing and
that he had not given Mattei permission to take it. (Def. SMF ¶ 132). Mattei was aware of the
institutional rules and regulations prohibiting inmates from getting property from another inmate
without permission. (Mattei Dep. at 97). Noncompliance with any shop or institutional rule can
be grounds for termination. (Def. SMF ¶ 17).
On October 17, after Dunbar confronted Mattei about the back brace, the DOC’s
grievance coordinator interviewed Dunbar regarding the second grievance. (Def. SMF ¶ 118).
Mattei was fired from his job in the Metal Shop two days later, on October 19. (Pl. SMF
¶ 136). He was told that he was fired because he had taken the back brace without permission.
(Def. SMF ¶¶ 136–37).
Mattei contends that Dunbar fired him after the October 17 interview and in retaliation
for filing grievances. (Pl. SMF ¶¶ 117, 136). In January 2013, the grievance coordinator denied
Mattei’s second grievance. (Def. SMF ¶ 125). His request for good-time credit was also denied
because of his unsatisfactory rating for April 2012. (Id.). His appeal of that denial was denied in
February 2013. (Def. SMF ¶ 126).
In November 2012, Mattei filed a third grievance, contending that he was fired in
retaliation for filing grievances. (Def. SMF ¶ 138). Following another investigation, the
grievance coordinator denied that grievance as well, stating that “the termination appeared
appropriate” because he admitted using the back brace, which was a tool from another shop.
(Def. SMF ¶ 141). He appealed, and that appeal was denied in January 2013. (DMF ¶ 142).
On April 18, 2013, Jeff White, another inmate who worked in the Metal Shop,
4
approached the Director of Security at MCI-Norfolk and reported that Dunbar had offered him
Dunkin’ Donuts to beat up Mattei. (Def. SMF ¶ 179). According to White, he told Dunbar that
he would not beat up Mattei. (Def. SMF ¶ 181). An investigation ensued. Dunbar denied the
encounter with White. (Def. SMF ¶ 184). In May 2013, the investigation concluded and
White’s claim was found unsubstantiated. (Def. SMF ¶ 186).
Mattei learned about White’s allegations against Dunbar from another inmate, who in
May 2013 gave him an affidavit drafted by White. (Def. SMF ¶¶ 195-96). White’s affidavit was
dated April 29, 2013. (Def. SMF ¶ 195). Mattei filed a fourth grievance against Dunbar on June
9, 2013, contending that Dunbar “tried to hire an inmate to assault him” in retaliation for filing
grievances. (Def. SMF ¶ 196). On June 20, 2013, the grievance coordinator denied the
grievance based on the prior investigation into White’s allegations. (Def. SMF. ¶ 197).
B.
Procedural Background
On September 9, 2013, Mattei filed this action against Dunbar and four other named
prison officers. The complaint alleged that all defendants had, in varying ways, either retaliated
against Mattei for protected speech or assisted in or refused to prevent that retaliation. On June
13, 2014, defendants filed a motion to dismiss the complaint for a failure to state a claim upon
which relief can be granted. On March 23, 2015, that motion was granted as to all claims but
three. The remaining claims concern only defendant Dunbar, and allege that he retaliated against
plaintiff for filing grievances by (1) denying him good time for the month of April 2012; (2)
firing him from the metal shop; and (3) soliciting another inmate to cause him physical harm.
Dunbar has now moved for summary judgment on those three remaining claims.
II.
Legal Standard
The role of summary judgment is to “pierce the pleadings and to assess the proof in order
5
to see whether there is a genuine need for trial.” Mesnick v. General Elec. Co., 950 F.2d 816,
822 (1st Cir. 1991) (internal quotation marks omitted). Summary judgment is appropriate when
the moving party 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). “Essentially, Rule 56[ ]
mandates the entry of summary judgment ‘against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.’” Coll v. PB Diagnostic Sys., 50 F.3d 1115, 1121 (1st Cir.
1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In making that
determination, the court must view “the record in the light most favorable to the nonmovant,
drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir.
2009). When “a properly supported motion for summary judgment is made, the adverse party
must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotations omitted). The non-moving party may
not simply “rest upon mere allegation or denials of his pleading,” but instead must “present
affirmative evidence.” Id. at 256-57.
III.
Analysis
A.
First Amendment Retaliation
The First Amendment guarantees not only freedom from government censorship, but also
freedom from official retaliation on the basis of protected speech. Hartman v. Moore, 547 U.S.
250, 256 (2006) (“[T]he law is settled that as a general matter the First Amendment prohibits
government officials from subjecting an individual to retaliatory actions . . . for speaking out.”).
“Official reprisal for protected speech ‘offends the Constitution [because] it threatens to inhibit
exercise of the protected right.’” Id. (quoting Crawford-El v. Britton, 523 U.S. 547, 588 n.10
6
(1998)) (alternation in original). Thus, even conduct that “fall[s] short of a direct prohibition
against the exercise of First Amendment rights” can be actionable if it has a “deterrent, or
‘chilling,’ effect.” Board. of Cnty. Comm’rs, Wabaunsee Cnty., Kan. v. Umbehr, 518 U.S. 668,
674 (1996) (quoting Laird v. Tatum, 408 U.S. 1, 11 (1972)).
While many rights and freedoms are necessarily curtailed during incarceration, “a
prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime.”
Wolff v. McDonnell, 418 U.S. 539, 555 (1974). Thus, despite the general deference owed to the
managerial decisions of prison officials, “retaliation against a prisoner’s exercise of
constitutional rights is actionable.” Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011).
However, “to survive summary judgment on a retaliation claim, a prisoner must make out a
prima facie case by adducing facts sufficient to show that he engaged in a protected activity, that
the state took an adverse action against him, and that there is a causal link between the former
and the latter.” Hannon, 645 F.3d at 48. Furthermore, as to causation, “a prisoner must prove
that the [adverse] action would not have been taken ‘but for’ the alleged improper reason.”
L’Heureux v. Whitman, 1997 WL 639324 at *1 (1st Cir. 1997) (unpublished opinion).
1.
Denial of Good-Time Credit
Count 3 alleges that Dunbar denied Mattei good time for the month of April 2012 in
retaliation for filing an informal grievance. Filing grievances is a protected activity. Hannon,
645 F.3d at 48. However, there is a factual dispute as to whether Mattei actually filed an
informal grievance. (Pl. SMF ¶ 89). Dunbar contends that all properly submitted informal
grievances are logged by the Director of Security’s Office, and that no record of Mattei’s April
2012 grievance exists. (Def. SMF ¶¶ 99–100). From that, he infers that Mattei did not file an
informal grievance. (Def. Mem. at 9). Mattei contends that he did file an informal grievance,
7
pointing to a handwritten copy of the complaint dated April 19, 2012. (Pl. SMF ¶ 98; Def. Ex.
11 at 6). Viewing that evidence in the light most favorable to Mattei as the non-moving party,
this Court will assume for the purposes of summary judgment that Mattei did at least attempt to
file an informal grievance in April 2012. Thus, he engaged in a protected activity.
Next, Mattei must establish that Dunbar took an adverse action against him. The adverse
action need not itself be an independent constitutional violation. See L’Heureux, 1997 WL
639324 at *1 (stating that “[c]onduct not otherwise constitutionally deficient may be actionable
under § 1983 if it was done in retaliation for the exercise of a constitutionally protected right”).
Rather, the act need only be “of a kind that would deter persons of ‘ordinary firmness’ from
exercising their constitutional rights in the future.” Starr v. Dube, 334 Fed.Appx. 341, 342 (1st
Cir. 2009) (unpublished opinion). For a prisoner, the threat of being denied good-time credit
would surely act as a significant deterrent. See Brown v. Crowley, 312 F.3d 782, 789 (6th Cir.
2002) (stating that loss of good-time credit could deter person of ordinary firmness from
engaging in protected activity). Thus, being denied good-time credit constitutes an adverse
action.
Finally, Mattei must establish that there is a causal connection between his filing an
informal grievance and being denied good time. There is a factual dispute as to whether Dunbar
was even aware of Mattei’s April 2012 grievance. Dunbar contends that he was not. (Def. SMF
¶ 103). Mattei contends that Dunbar spoke to him about the grievance and promised to “do
something” for him so that he would be eligible for the next available raise. (Pl. SMF ¶ 103;
Mattei Dep. at 69). He further contends that Dunbar then assigned him to work with another
inmate to get training on a particular machine so that he could be considered for a raise. (Def.
Ex. at 70). For the purposes of summary judgment, this Court will assume that Dunbar was
8
aware of the grievance.
Knowledge of the grievance, however, is insufficient to establish causation. Mattei must
show that he was denied good-time credit because of the grievance. Dunbar contends that Mattei
was denied good-time credit for a legitimate, non-retaliatory reason: an unsatisfactory
performance evaluation in April 2012. (Def. SMF ¶ 87). While Mattei does not offer any direct
evidence to contradict that contention, circumstantial evidence can be sufficient. Hannon, 645
F.3d at 49, 50–51.
There is some circumstantial evidence that contradicts, or at least casts doubt on,
Dunbar’s stated reason. It is true that Mattei received an unsatisfactory rating for the month of
April. (Def. Ex. 3 at 52). However, there are inconsistencies between his monthly ratings
(which are used to determine good time) and his quarterly performance evaluations. He received
identical performance evaluations in January (second quarter) and April (third quarter) 2012.
For each of those quarters, he was marked as “Needs Improvement” for the categories “Discuss
Attitude,” “Skill Development,” and “Overall Rating.” (Def. Ex. 3 at 45). However, he received
satisfactory monthly ratings for every month except April. (Def. Ex. 3. at 52). Dunbar has not
offered an explanation for that inconsistency. A reasonable juror could conclude that Mattei’s
unsatisfactory rating in April was pretextual or the result of retaliation. There is a genuine issue
as to whether Mattei would have been denied good time but for the alleged retaliatory motive,
and summary judgment is therefore inappropriate on that claim.
2.
Termination
The complaint also alleges that Dunbar fired Mattei in retaliation for filing his second
grievance. It is uncontested that Mattei engaged in the protected activity of filing a grievance.
(Def. SMF ¶ 117). Furthermore, termination—even from a prison job—is an adverse act that
9
would deter a person of “ordinary firmness” from engaging in protected activity. See Mack v.
Yost, 427 Fed.Appx. 70, 72–73 (3d Cir. 2011) (unpublished opinion) (holding that loss of prison
employment constitutes adverse action).
However, Mattei has failed to produce evidence sufficient to show that he would not have
been fired but for the alleged retaliatory motive. It is uncontested that on October 17, 2012,
Dunbar saw Mattei remove a back brace that he had received from another inmate in Metal Shop
II. (Def. SMF ¶¶ 128, 133; Pl. SMF ¶¶ 128, 133). It is also uncontested that Mattei was aware
of the rule that inmates were not supposed to receive property from other inmates without
permission, and that he did not ask any staff member if he could take the back brace. (Def. SMF
¶¶ 133, 135). Noncompliance with any institutional rule can be grounds for termination. (Def.
SMF ¶ 17).
Mattei contends that he had been wearing the back brace every day since his return to
Metal Shop I on October 15. (Pl. SMF ¶ 128). He further contends that he was not actually fired
until after Dunbar learned of his second grievance. (Pl. SMF ¶ 136). Even if that is true,
however, he still cannot establish that he would not have been terminated but for an
impermissible retaliatory motive. Whether Dunbar saw the back brace on October 15 or 16 is
irrelevant. It is uncontested that Mattei was in fact wearing the back brace and that doing so was
a violation of institutional rules for which he could legitimately be fired. He has not shown that,
absent any retaliation, he would not have been fired on the basis of the back brace alone.
Because there was a legitimate reason for his termination, he cannot establish that it amounted to
a constitutional violation. See Harman, 547 U.S. at 260 (“[A]ction colored by some degree of
bad motive does not amount to a constitutional tort if that action would have been taken
anyway.”). Therefore, summary judgment will be granted as to Count 8.
10
3.
Attempt to Cause Physical Harm
The third and final remaining count, Count 12, alleges that Dunbar attempted to induce
another inmate to physically harm Mattei in retaliation for filing grievances. Here again, it is
uncontested that Mattei engaged in a protected activity by filing a grievance in October 2012.
(Def. SMF ¶ 117).1
Attempting to induce an inmate to physically harm another inmate is clearly an adverse
act. Dunbar seeks to avoid this conclusion by contending that “the best that Mattei could hope to
prove is that Dunbar attempted to violate his First Amendment rights” and that, to be actionable
under § 1983, “[t]here must have actually been a deprivation of a federally protected right.”
(Def. Mem. at 16). But in the context of a retaliation claim, attempting to have someone
physically harmed itself violates that person’s First Amendment rights. See Hill v. Lappin, 630
F.3d 468, 473 (6th Cir. 2010) (“In a First Amendment retaliation claim, ‘retaliation for the
exercise of constitutional rights is itself a violation of the Constitution.”) (quoting Thaddeus-X v.
Blatter, 175 F.3d 378, 394 (6th Cir. 1999)). 2 The relevant inquiry is not whether the defendant
was successful in completing the retaliatory act as intended, or whether the act was successful in
preventing the plaintiff from engaging in further speech; rather, it is whether the act as actually
completed “would likely deter a person of ordinary firmness from the exercise of First
Amendment rights.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474,
Dunbar contends that Mattei’s October 2012 grievance could not have formed the basis for retaliation
because White’s testimony—if believed—suggests that Dunbar attempted to solicit him to harm Mattei before
October 2012. For the reasons discussed below, White’s testimony could reasonably be interpreted to suggest that
Dunbar attempted to solicit him shortly after Mattei filed his second grievance in early October 2012.
1
2
Dunbar cites to inapposite case law for the proposition that “a mere attempt to deprive a person of his
First Amendment rights is not actionable under § 1983.” (Def. Mem. at 17). The primary case cited, Berard v.
Town of Millville, 113 F. Supp. 2d 197 (D. Mass. 2000), was not a retaliation case. See id. at 203. Similarly,
Aldrich v. City of Cambridge, 2013 WL 5533196 (D. Mass. 2013), concerned an attempt to interfere with future
speech, not retaliation for prior protected speech. Id. at *3. Finally, Rodriguez v. Leeman, 2001 WL 1328597 (D.
Me. 2001), which is a retaliation case, incorrectly cites to Berard for support. See id. at *3.
11
500 (4th Cir. 2005) (internal quotation marks omitted); see also Gomez v. Vernon, 255 F.3d
1118, 1127 (9th Cir. 2001) (“[A] retaliation claim may assert an injury no more tangible than a
chilling effect on First Amendment rights.”).
“[T]hreats alone can constitute an adverse action if the threat is capable of deterring a
person of ordinary firmness from engaging in protected conduct.” Hill, 630 F.3d at 474. Even
an unsuccessful attempt to have someone physically harmed in retaliation for protected speech
would likely have a substantial chilling effect. See Santiago v. Blair, 707 F.3d 984, 992 (8th Cir.
2013) (holding that reasonable jury could find that correctional officer’s threats of physical harm
would deter prisoner of ordinary firmness from filing grievances); Van Deelen v. Johnson, 497
F.3d 1151, 1157 (10th Cir. 2007) (holding that threat of physical harm “would surely suffice . . .
to chill a person of ordinary firmness”).
Of course, to be chilled, one must be aware of the threat. This case is unusual in that
Dunbar attempted to solicit another individual to cause Mattei physical harm, but did not himself
directly threaten him. Mattei, in fact, did not know about the attempt until sometime later when
another inmate gave him an affidavit written by White regarding the incident. (Def. Ex. 3 at
110–11). However, the test—whether the adverse act would chill or deter persons of “ordinary
firmness”—is an objective one. See Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004). Thus,
whether and when Mattei had knowledge of the threat and whether it actually deterred him from
engaging in protected activity is immaterial. Furthermore, word of the incident did reach other
inmates. (Def. Ex. 3 at 110–11).
Mattei offers no direct evidence showing that Dunbar attempted to cause him harm
because of his grievances. Again, however, circumstantial evidence can be sufficient. See
Hartman, 547 U.S. at 260 (noting that retaliation cases “have simply taken the evidence of the
12
motive and the discharge as sufficient for a circumstantial demonstration that the one caused the
other” and citing cases). Furthermore, temporal proximity between the protected activity and the
allegedly retaliatory act can itself be sufficient circumstantial evidence of causation. See Watson
v. Rozum, 2016 WL 4435624 *4 (3d Cir. 2016) (stating that plaintiff can establish causation with
evidence of “an unusually suggestive temporal proximity between the protected activity and the
allegedly retaliatory action”); Nagle v. Marron, 663 F.3d 100, 111 (2d Cir. 2011) (holding that
plaintiff’s “showing of temporal proximity suffices to make out a prima facie claim of retaliation
under the First Amendment”).
There is evidence suggesting that the alleged retaliatory act occurred in temporal
proximity to the filing of the second grievance. In an affidavit, White stated that his
conversation with Dunbar, in which Dunbar allegedly asked him to “take care of plaintiff,” took
place in September or October 2012. (White Aff. ¶¶ 4–15). In a later deposition, White testified
that that conversation occurred six to eight weeks before he was fired from the metal shop, which
happened in October 2012. That places the incident in August or September of 2012. (White
Dep. at 41; Def. Ex. 14 at 41). He further testified that the incident occurred shortly after Mattei
moved from Metal Shop 2 back to Metal Shop 1, which would place it in mid-October 2012.
(White Dep. at 37; Def. SMF ¶ 127).
While White is unable to provide specific dates, when viewing the record in the light
most favorable to Mattei, a reasonable juror could conclude that White’s conversation with
Dunbar occurred in October 2012. Furthermore, because Mattei filed his second grievance on
October 10, a reasonable juror could conclude that the temporal proximity between the two
establishes a prima facie showing of causation. See Watson, 2016 WL 4435624 at *4 (holding
that causation can be inferred from “unusually suggestive” timing); Nagle, 663 F.3d at 111
13
(holding that plaintiff satisfied causation element of prima facie claim of First Amendment
retaliation based on showing that adverse action occurred six weeks after protected conduct).
Dunbar contends that because of the time inconsistencies in White’s story, no reasonable jury
could find that the incident actually occurred. But that is a question of credibility that cannot be
resolved on summary judgment.
In short, there is a genuine issue as to a material fact, and summary judgment is
inappropriate as to Count 12.
B.
Qualified Immunity
Qualified immunity protects government officials from liability for money damages only
if the conduct at issue “does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The qualified immunity inquiry is a two-part test: a court must decide, first, whether the facts
alleged show that the officer violated a right and, second, whether the right was “clearly
established” at the time of the alleged violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009);
accord Maldonado v. Fontanes, 568 F.3d 263, 268–69 (1st Cir. 2009).3
At the summary judgment stage, the first step should be decided based on the record as
viewed in the light most favorable to the non-moving party. Morelli v. Webster, 552 F.3d 12,
18–19 (1st Cir. 2009) (holding that courts should first “identify[] the version of events that best
comports with the summary judgment standard and then ask[] whether, given that set of facts, a
reasonable officer should have known that his actions were unlawful”). It has already been
determined that the facts so viewed could support a finding that Dunbar violated Mattei’s
constitutional rights by denying good-time credit and soliciting another inmate to cause him
In Pearson, the Court held that the two-step inquiry, while “often beneficial,” is not mandatory. 555 U.S.
at 236. Depending on the circumstances of the case, the first step may not be necessary. Id. at 239.
3
14
physical harm in retaliation for engaging in protected activity.
The only remaining inquiry is thus whether those rights were clearly established at the
time. “A right is ‘clearly established’ if the contours of the right are sufficiently clear such that
‘a reasonable official would understand that what he is doing violates that right.’” Costa-Urena
v. Segarra, 590 F.3d 18, 29 (1st Cir. 2009) (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987). The right must be defined with specificity, not at a high level of generality based on
abstract principles. See Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). In other words, it must
be clearly established that the particular conduct at issue violates the right. See id. There need
not be a prior case directly on point, “but existing precedent must have placed the statutory or
constitutional question beyond debate.” Id. at 741. Absent controlling authority, there must be
“a robust ‘consensus of cases of persuasive authority.’” Id. at 741 (quoting Wilson v. Layne, 526
U.S. 603, 617 (1999)).
It is well-established that retaliating against an inmate for filing grievances violates that
inmate’s First Amendment rights. See Mack v. Warden Loretto FCI, 2016 WL 5899173 at *8
(3d Cir. 2016) (holding that “[a] reasonable official in the prison officers’ position should . . .
have known that retaliating against [inmate] for exercising his right to petition . . . was unlawful”
and therefore officials not entitled to qualified immunity). Furthermore, that right was clearly
established in the First Circuit well prior to Dunbar’s alleged retaliatory conduct. See McDonald
v. Hall, 610 F.2d 16, 18 (1st Cir. 1979) (holding that prisoner who alleged he was transferred in
retaliation for filing legal actions against prison officials made out a claim under § 1983 for the
violation of First Amendment rights).
Furthermore, while there is not First Circuit law on point, other circuits have recognized
that the denial of good-time credits can form the basis of a retaliation claim under § 1983 when
15
done in retaliation for the exercise of constitutional rights. See Brown, 312 F.3d at 789; Hanna
v. Maxwell, 415 Fed.Appx. 533, 535–36 (5th Cir. 2011); see also Starr, 334 Fed.Appx at 343
(recognizing that case law supports conclusion that loss of good-time credits can form basis of
First Amendment retaliation claim).
Finally, prior to the alleged retaliatory act, it was also well-established that mere threats
of retaliation can violate First Amendment rights. In 1972, the Supreme Court recognized that a
“threat of specific future harm” is an adequate basis for a claim of First Amendment retaliation.
Laird v. Tatum, 408 U.S. 1, 13–14 (1972) (“Allegations of a subjective ‘chill’ are not an
adequate substitute for a claim of specific present objective harm or a threat of specific future
harm.”). Furthermore, while the First Circuit has not addressed the specific issue, numerous
circuits have held that threats of physical harm can constitute First Amendment retaliation. See
Santiago v. Blair, 707 F.3d 984, 992 (8th Cir. 2013); Hill, 630 F.3d at 474; Brodheim v. Cry, 584
F.3d 1261, 1270 (9th Cir. 2009); Van Deelen v. Johnson, 497 F.3d 1151, 1157 (10th Cir. 2007);
Pittman v. Tucker, 213 Fed.Appx. 867, 871 (11th Cir. 2007) (unpublished opinion); Jeffes v.
Barnes, 208 F.3d 49, 62 (2d Cir. 2000). Thus, a reasonable official would have understood that
soliciting another inmate to physically harm Mattei in retaliation for filing grievances violated
his First Amendment rights even though no actual physical harm resulted.
C.
Availability of Remedies Sought
The complaint seeks relief in the form of: (1) good-time credit for the month of April
2013; (2) compensatory damages in the form of lost wages; (3) “compensatory” damages for
“violations of civil rights” in the amount of $10,000 and for “the attempt to commit assault” in
the amount of $25,000; and (4) reinstatement.4 Because Mattei has failed to prove that he was
The complaint also includes a catch-all request for “any other relief as this Honorable Court deems just
and equitable.” That phrase may be liberally construed to included a request for nominal damages. See Aref v.
4
16
terminated from his prison job in retaliation for engaging in protected speech, whether he is
legally entitled to either lost wages or reinstatement is moot. As to his remaining claims, Dunbar
contends that he is not legally entitled to either good-time credit or compensatory damages. For
the reasons stated below, Mattei may still be entitled to at least nominal damages and therefore
may proceed on his remaining claims.
1.
Good-Time Credit
Mattei cannot receive an award of good-time credit in a § 1983 action. In Preiser v.
Rodriguez, 411 U.S. 475 (1973), the Supreme Court held that because a request for the
restoration of good-time credits challenges “the very fact or duration” of imprisonment, it can
only be sought in a writ of habeas corpus. Id. at 482, 500. Because Mattei in effect contends
that he should be released five days sooner than he otherwise would be, his sole federal remedy
is a writ of habeas corpus. Id. at 500.
2.
Damages
The issue of damages is more complicated. The Prison Litigation Reform Act of 1996
provides that “[n]o 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.” 42 U.S.C. § 1997e(e). Dunbar contends that § 1997e(e) bars
Mattei’s claim for compensatory damages.
The First Circuit has not yet directly addressed the question whether § 1997e(e) precludes
compensatory damages in § 1983 actions raising constitutional claims. See Kuperman v. Wrenn,
Lynch, 833 F.3d 242, 266–67 (D.C. Cir. 2016) (holding that complaint that included catch-all prayer for relief but
did not specifically request nominal damages nonetheless made out a claim for nominal damages); see also Fed. R.
Civ. P. 54 (“Every other final judgment [besides default judgment] should grant the relief to which each party is
entitled, even if the party has not demanded that relief in its pleadings.”).
17
645 F.3d 69, 73 n.5 (1st Cir. 2011) (noting that § 1997e(e) could preclude compensatory
damages in § 1983 action but declining to reach the issue). However, most circuits have held
that § 1997e(e) does apply to § 1983 actions alleging constitutional violations, so that Mattei
cannot recover damages for mental or emotional injuries resulting from constitutional violations
absent a showing of physical injury. See Thompson v. Carter, 284 F.3d 411, 417–18 (2d Cir.
2002); Allah v. Al-Hafeez, 226 F.3d 247, 250 (3d Cir. 2000); Herman v. Holiday, 238 F.3d 600,
665–66 (5th Cir. 2001); Cassidy v. Indiana Dep’t of Corr., 199 F.3d 374, 376 (7th Cir. 2000);
Davis v. D.C., 158 F.3d 1342, 1345–47 (D.C. Cir. 1998); Royal v. Kautzky, 375 F.3d 720, 723
(8th Cir. 2004); Searles v. Van Bebber, 251 F.3d 869, 876 (10th Cir. 2001). Because the
statutory language—“[n]o Federal civil action”—does not allow for exceptions, this Court
concludes that § 1997e(e) precludes compensatory damages for mental and emotional injuries
absent a showing of physical injury, regardless of whether the claims at issue are of a
constitutional nature or not. Mattei, therefore, cannot recover compensatory damages for mental
or emotional injuries suffered as a result of his alleged First Amendment violation.
That, however, does not end the inquiry. Section 1997e(e) does not preclude either
nominal damages or punitive damages. See, e.g., Thompson, 284 F.3d at 418; Allah, 226 F.3d at
252 (agreeing with position taken by Department of Justice as intervenor that § 1997e(e) does
not bar claims for nominal or punitive damages). But see Harris v. Garner, 190 F.3d 1279, 1290
(11th Cir. 1999) (holding that § 1997e(e) precludes claims for punitive damages absent physical
injury), vacated in part and reinstated in part, 216 F.3d 970 (11th Cir. 2000) (en banc). Nominal
damages are appropriate to vindicate certain constitutional rights absent any showing of actual
injury. See Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308 n.11 (“[N]ominal damages,
and not damages based on some undefinable ‘value’ of infringed rights, are the appropriate
18
means of ‘vindicating’ rights whose deprivation has not caused actual, provable injury.”). In
other words, nominal damages vindicate the deprivation of a constitutional right itself, not any
specific injury suffered as a result. Thus, nominal damages are not claims for mental or
emotional injury and are therefore not barred by § 1997e(e).
Punitive damages, too, are unrelated to claims for mental or emotional injury. “The
purpose of punitive damages is to punish the defendant for his willful or malicious conduct and
to deter others from similar behavior.” Stachura, 477 U.S. at 306 n.9. Claims for punitive
damages are premised on the nature of the constitutional violations itself rather than on the
nature of the injury inflicted. Such claims serve to punish and deter egregious constitutional
violations; they are not claims based on mental or emotional injury and are therefore no
precluded by § 1997e(e). See Allah, 226 F.3d at 252. Thus, to the extent Mattei’s pro se
complaint can be read to include requests for nominal and punitive damages, he may be legally
entitled to relief.
IV.
Conclusion
For the foregoing reasons, Dunbar’s motion for summary judgment is GRANTED as to
Count 8 and DENIED as to Counts 3 and 12.
So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: November 8, 2016
19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?