Knox v. Massachusetts Department of Correction et al

Filing 160

District Judge Leo T. Sorokin: ORDER ON REPORT AND RECOMMENDATION entered. After de novo review of the pending motions for summary judgment, 158 Judge Boal's Report and Recommendation and 159 Plaintiff's partial objection to the Repo rt and Recommendation, the Court ADOPTS the 158 Report and Recommendation. The Court ALLOWS the 118 122 Motions for Summary Judgment and DENIES 125 Plaintiff's Partial Motion for Summary Judgment. SO ORDERED. (Attachments: # 1 Report and Recommendation on Cross-Motions for Summary Judgment) (Montes, Mariliz)

Case 1:14-cv-12457-LTS Document 158 Filed 07/20/17 Page 1 of 39

UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MASSACHUSETTS
____________________________________
THOMAS KNOX,
)
)
Plaintiff,
)
)
v.
)
)
Civil Action No. 1:14-cv-12457-LTS
MASSACHUSETTS DEPARTMENT
)
OF CORRECTION, et. al.,
)
)
Defendants.
)

REPORT AND RECOMMENDATION ON
CROSS-MOTIONS FOR SUMMARY JUDGMENT
[Docket Nos. 118, 122, 125]
July 20, 2017
Boal, M.J.
Plaintiff Thomas Knox, a disabled inmate, asserts nine claims against the following
defendants: the Massachusetts Department of Correction (the “DOC”), Carol Higgins O’Brien
(“Higgins O’Brien”), Steven J. O’Brien (“O’Brien”), Michael Corsini, Abbe Nelligan and Tiana
Bennett (collectively, the “DOC Defendants”); Forensic Health Services/MHM, Inc. (“FHS”)
and Kimberly Julius (collectively, the “FHS Defendants”). All Defendants have moved for
summary judgment on all counts. Docket Nos. 118, 122. Knox has filed a motion for partial
summary judgment. Docket No. 125. For the following reasons, the Court recommends that the
District Judge assigned to this case 1 (1) grant the DOC Defendants’ motion, (2) grant the FHS
Defendants’ motion and (3) deny Knox’s partial motion.

1

On February 4, 2016, the District Court referred the case to the undersigned for full pretrial
proceedings. Docket No. 101.
1

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I.

PROCEDURAL BACKGROUND
On April 13, 2015, Knox filed an amended complaint seeking monetary damages and

injunctive relief largely as a result of his placement on the second floor of the Massachusetts
Treatment Center (“MTC”), a facility of the DOC. Docket No. 53. The DOC Defendants and
the FHS Defendants filed separate motions to dismiss. Docket Nos. 62, 63. On February 3,
2016, the District Judge denied the motions to dismiss in all respects without prejudice to
renewal on summary judgment with the following exceptions. Docket No. 100. First, he
dismissed all claims against the individual DOC Defendants in their official capacities for
monetary damages. Id. Second, he dismissed DOC as a named defendant for purposes of claims
under 42 U.S.C. § 1983. Id. Finally, he dismissed Count 5 (cruel and unusual punishment under
the Eighth Amendment) insofar as it alleged interference with a rehabilitative need. Id.
The FHS and DOC Defendants filed motions for summary judgment on February 24 and
February 27, 2017, respectively. Docket Nos. 118, 122. On February 27, 2017, Knox filed a
motion for partial summary judgment against Defendants DOC and FHS on Counts 1-4 only.
Docket No. 125. The DOC Defendants filed an opposition to Knox’s motion on March 24, 2017.
Docket No. 130. On March 27, 2017, FHS filed an opposition to Knox’s motion, Docket No.
132, and Knox filed oppositions to both motions for summary judgment. Docket Nos. 134, 137.
The parties filed replies on April 7, 2017 (Docket No. 140), April 10, 2017 (Docket Nos. 142,
143) and April 13, 2017 (Docket No. 144). The Court heard oral argument on June 7, 2017.
Shortly thereafter, the parties filed supplemental briefs. Docket Nos. 153-57.

2

Case 1:14-cv-12457-LTS Document 158 Filed 07/20/17 Page 3 of 39

II.

FACTS 2
A. The Parties
Knox, who was an inmate from 2003 to 2016, 3 is a wheelchair bound paraplegic. 4 The

DOC is a Department of the Commonwealth of Massachusetts. 5 Carol Higgins O’Brien served
as the Commissioner of the DOC from September 2014 to April 2016. 6 Michael Corsini was

2

Because this case is before the Court on cross-motions for summary judgment, the Court sets
out any disputed facts in the light most favorable to the non-moving party. See Ahern v.
Shinseki, 629 F.3d 49, 53-54 (1st Cir. 2010) (citing Cox v. Hainey, 391 F.3d 25, 29 (1st Cir.
2004)). The facts are taken from the parties’ Joint Statement of Material Facts and Responses
(Docket No. 139), which incorporates all parties’ statements of material facts and responses into
a single document and includes: Defendant Kim Julius and FHS’s Concise Statement of Material
Facts (“FHS SOMF”); Statement of Facts Submitted in Support of Department of Correction
Defendants’ Motion for Summary Judgment (“DOC SOMF”) and Plaintiff’s Statement of
Material Undisputed Facts (“Knox SOMF”).
3
At oral argument, given that Knox was released from custody on November 16, 2016, DOC
SOMF ¶ 2, Knox’s counsel stated that he was no longer seeking injunctive relief on behalf of
himself but continued to seek such relief on behalf of individuals still at the MTC. Knox’s
amended complaint does request that the Court order that the MTC be brought into full
compliance with the ADA. Amended Compl. Prayer for Relief ¶ 3; see also Docket No. 156 at 4
(“[t]he Court should order that the DOC make housing determinations for qualified individuals
with disabilities based not only on treatment recommendations but also on the individuals’
unique accessibility challenges.”). However, “[t]his court is restricted to deciding ‘actual
controversies by a judgment which can be carried into effect, and [is] not [permitted] to give
opinions upon moot questions or abstract propositions, or to declare principles or rules of law
which cannot affect the matter in issue in the case before it[.]’” Soto v. City of Cambridge, 193
F. Supp. 3d 61, 69 (D. Mass. 2016) (quoting Local No. 8-6, Oil, Chem. & Atomic Workers Int’l
Union v. Missouri, 361 U.S. 363, 367 (1960)). Moreover, the PLRA specifically provides that
“[p]rospective relief in any civil action with respect to prison conditions shall extend no further
than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.”
18 U.S.C. § 3626(a)(1)(A). Cases cited by Knox to the contrary are readily distinguishable. For
example, in Brown v. Plata, 563 U.S. 493 (2011), injunctive relief was found to be appropriate as
a result of class action allegations affecting a substantial number of prisoners. Here, any claim
for injunctive relieve for Knox himself is moot as he is no longer in DOC custody. He lacks
standing to seek relief on behalf of other inmates, his papers contain no evidence of other
similarly situated inmates, and in any event, his request for relief is not sufficiently tailored to
comply with the PLRA.
4
FHS SOMF ¶¶ 1, 10; Pl. Resp. ¶¶ 1, 10. DOC SOMF ¶ 3; Pl. Resp. ¶ 3.
5
DOC SOMF ¶ 1; Pl. Resp. ¶ 1.
6
FHS SOMF ¶ 4; Pl. Resp. ¶ 4.
3

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employed by the DOC as the MTC’s Superintendent from 2010 to June 2014. 7 Steven O’Brien
began his employment with the DOC in June 2014 and serves as the current Superintendent of
the MTC. 8 Abbe Nelligan was employed by the DOC as the MTC’s Deputy Superintendent of
Classification and Treatment from July 2013 to March 2015. 9 Tiana Bennett is the DOC’s
Director of Classification and Treatment at the MTC. 10
DOC contracts with FHS to provide the Sex Offender Treatment Program (“SOTP”). 11
Kim Julius (née Lyman), 12 is FHS’s Program Director of the SOTP. 13
B. The Massachusetts Treatment Center: Structure
Beginning in August 2013, Knox was incarcerated at the MTC, a facility that DOC has
designated as handicap-accessible. 14 The MTC comprises two separate facilities, the main
building and the modular building where Knox was housed. 15 There is an elevator between the
first and second floors of both the modular building and the main building. 16 Every unit also has
a “stair chair,” a fold-up device with wheels that can be used to carry an inmate between floors in
an emergency or a fire drill. 17 The chow hall is located on the first floor of the main building,

7

FHS SOMF ¶ 6; Pl. Resp. ¶ 6. DOC SOMF ¶ 8; Pl. Resp. ¶ 8.
DOC SOMF ¶ 5; Pl. Resp. ¶ 5.
9
FHS SOMF ¶ 7; Pl. Resp. ¶ 7.
10
FHS SOMF ¶ 9; Pl. Resp. ¶ 9.
11
FHS SOMF ¶ 3; Pl. Resp. ¶ 3.
12
Defendant Julius is also referred to as Lyman in the parties’ pleadings. The Court refers to her
as Julius herein.
13
FHS SOMF ¶ 2; Pl. Resp. ¶ 2.
14
DOC SOMF ¶ 2; Pl Resp. ¶ 2. FHS SOMF ¶ 31; Pl. Resp. ¶ 31. Though Knox disputes that the
MTC is in fact a handicap-accessible facility, labeling such contention a “legal question,” he does
not dispute that the DOC has designated the MTC as handicap-accessible.
15
DOC SOMF ¶ 12; Pl. Resp. ¶ 12.
16
Knox SOMF ¶ 11; DOC Resp. ¶ 11; FHS Resp. ¶ 11.
17
DOC SOMF ¶¶ 115-16; Pl. Resp. ¶¶ 115-16.
4
8

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which is separated from the modular building by an exterior walkway. 18 The law library and
learning center are both on the second floor of the main building. 19
The MTC is the DOC’s dedicated sex offender treatment facility. 20 Prisoners at the MTC
have access to mental health services, separate and apart from the SOTP. 21 The SOTP is a
rehabilitative program that aims to reduce the risk of sex offenders reoffending and increase a
sex offender’s ability to successfully reintegrate into society. 22
When an inmate first arrives at the MTC to participate in the SOTP, they are placed on
the South One (“S-1”) Unit (on the first floor of the south modular building) in the Assessment
and Treatment Preparation Unit (“ATPU”). 23 In the ATPU, an inmate undergoes a
comprehensive evaluation, which is an assessment of treatment needs. 24 The goal of the
comprehensive evaluation is to guide and direct treatment, including identification of treatment
intensity level and specific, individualized treatment needs. 25 FHS Policy Number 1.25 states
that comprehensive evaluations are to be completed “within 6 months of treatment
commencement at the MTC” 26 but also states that the “timeline of comprehensive evaluations
may be extended due to clinical or institutional reasons.” 27 Julius described inmate assessments
as an ongoing process. 28

18

Knox SOMF ¶ 9; DOC Resp. ¶ 9; FHS Resp. ¶ 9.
DOC SOMF ¶ 16; Pl. Resp. ¶ 16.
20
DOC SOMF ¶ 9; Pl. Resp. ¶ 9.
21
FHS SOMF ¶ 125; Pl. Resp. ¶ 125.
22
FHS SOMF ¶ 32; Pl. Resp. ¶ 32.
23
FHS SOMF ¶ 36; Pl. Resp. ¶ 36. Knox SOMF ¶ 4; DOC Resp. ¶ 4; FHS Resp. ¶ 4.
24
FHS SOMF ¶ 36; Pl. Resp. ¶ 36.
25
FHS SOMF ¶ 37; Pl. Resp. ¶ 37.
26
Knox SOMF ¶ 13; FHS Resp. ¶ 13 (citing Docket No. 120-5 at 12). The Court’s citation to
items in the record is to ECF page numbers rather than any internal pagination.
27
DOC SOMF ¶ 98; Pl. Resp. ¶ 98. FHS SOMF ¶ 40 (citing Docket No. 120-5 at 14).
28
DOC SOMF ¶ 98; Pl. Resp. ¶ 98.
5
19

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MTC housing is generally determined by demands of treatment needs. 29 An inmate is
recommended for transfer to a nonresidential treatment unit or a residential therapeutic
community upon completion of the comprehensive evaluation. 30 Nonresidential treatment
provides a moderate level of treatment and is located on the first floor (North 1). The residential
therapeutic communities provide a high intensity treatment level and are located in second floor
housing units (North 2 and South 2). 31 An inmate’s treatment track is rarely changed after the
completion of his or her comprehensive evaluation. 32 FHS may, however, determine an inmate’s
potential treatment intensity level and recommend the inmate for transfer to a residential
therapeutic community or a nonresidential treatment unit prior to the completion of the
comprehensive evaluation. 33
Although it may use FHS’s assessment as a guideline for inmate placement, the DOC
makes the ultimate decision on housing assignment. 34 If FHS makes a clinical determination
that an inmate should participate in a residential therapeutic community, the DOC typically
places that person in either the North 2 or South 2 housing unit depending on bed availability. 35
The MTC has always had the bed space to accommodate an inmate’s identification for a specific
treatment track. 36 If an inmate is placed in an alternative unit by the DOC, the inmate may then

29

Knox SOMF ¶ 12; DOC Resp. ¶ 12; FHS Resp. ¶ 12.
FHS SOMF ¶ 41; Pl. Resp. ¶ 41.
31
FHS SOMF ¶ 44; Pl. Resp. ¶ 44. Docket No. 125-5 at 18.
32
Knox SOMF ¶ 16; DOC Resp. ¶ 16; FHS Resp. ¶ 16.
33
FHS SOMF ¶ 42; Pl. Resp. ¶ 42.
34
FHS SOMF ¶ 47; Pl. Resp. ¶ 47. Docket No. 120-5 at 18.
35
FHS SOMF ¶ 45; Pl. Resp. ¶ 45.
36
Knox SOMF ¶ 8; DOC Resp. ¶ 8; FHS Resp. ¶ 8.
6
30

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“satellite” to their treatment program, or live in one unit and travel to another unit to receive
treatment. 37 Satelliting poses no burden to FHS although DOC does not encourage satelliting. 38
C. Knox’s Placement
Knox entered the SOTP for a variety of reasons, including that sex offender treatment
was included on his personal program plan 39 and was frequently a predicate for parole. 40 From
August 2013 to February 2014, Knox was housed in the South 1 unit of the modular building. 41
On August 13, 2013, Knox signed a DOC Treatment and Agreement Waiver. 42 On August 14,
2013, Knox signed an Informed Consent to Participate in Treatment form, which indicated that
information provided by Knox to the treatment team could be shared with other DOC personnel
as well as anyone else with legal authority to view the clinical file. 43 The confidentiality waiver
also states that a member of the SOTP staff explained the limits of confidentiality to Knox. 44
Knox signed additional confidentiality waivers on February 13, 2014, August 13, 2014 and June
2, 2015. 45 Knox disputes that he had the full information necessary to make an informed
decision before signing the confidentiality waivers. 46

37

FHS SOMF ¶ 50; Pl. Resp. ¶ 50.
Knox SOMF ¶ 19; DOC Resp. ¶ 19; FHS Resp. ¶ 19.
39
DOC SOMF ¶ 91; Pl. Resp. ¶ 91.
40
FHS SOMF Pl. Resp. ¶ 13.
41
DOC SOMF ¶ 21; Pl. Resp. ¶ 21.
42
FHS SOMF ¶ 116; Pl. Resp. ¶ 116.
43
FHS SOMF ¶ 117 (citing Docket No. 120-2 at 1); Pl. Resp. ¶ 117.
44
FHS SOMF ¶ 117 (citing Docket No. 120-2 at 1); Pl. Resp. ¶ 117.
45
FHS SOMF ¶¶ 118, 120-21; Pl. Resp. ¶¶ 118, 120-21.
46
FHS SOMF Pl. Resp. ¶¶ 116-18, 120-21.
7
38

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1.

Knox Is Placed On The Second Floor

On or about February 11, 2014, Knox was moved to a residential therapeutic
community47 on North 2. 48 Knox was assigned out of South 1 to North 2 because the DOC
requested “bed space.” 49
In late February 2014, Knox met with a member of the FHS treatment team (Janet
Cornell) regarding a Therapeutic Community Treatment Plan (“TCTP”). 50 The TCTP lays out
treatment targets, psychoeducation classes and behavioral treatment based on clinical assessment
at the time of the plan’s development. The TCTP states: “The treatment targets that have been
identified are subject to change as additional information becomes available.” 51 At the time the
TCTP was prepared, Knox was already housed in the same residential therapeutic community as
ultimately recommended by the February 2014 TCTP. 52 Knox reviewed and signed the TCTP,
indicating that he had (i) an opportunity to collaborate with his treatment team to complete the
plan; (ii) an opportunity to discuss and ask questions about his treatment program and (iii) an
opportunity to discuss his views concerning the plan. 53 He indicated that he did not have
alternative views with respect to portions of the plan. 54 Knox disputes that his signature suggests
that he had all of the information necessary to make an informed decision as to whether to agree
to the TCTP. 55

47

The parties use different names for the residential unit on the second floor of the MTC. For
clarity, the Court will refer to it as the residential therapeutic community.
48
DOC SOMF ¶ 23; Pl. Resp. ¶ 23.
49
Knox SOMF ¶ 23. Docket No. 123-2 at 17.
50
FHS SOMF ¶ 59; Pl. Resp. ¶ 59.
51
FHS SOMF ¶ 60; Pl. Resp. ¶ 60.
52
FHS SOMF ¶ 61; Pl. Resp. ¶ 61. Docket No. 120-2 at 21.
53
FHS SOMF ¶¶ 58-59, 62-63, 65; Pl. Resp. ¶¶ 58-59, 62-63, 65.
54
FHS SOMF ¶ 66; Pl. Resp. ¶ 66.
55
FHS SOMF Pl. Resp. ¶¶ 58-59.
8

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While housed on North 2, Knox accessed his SOTP psychoeducational classes, support
group and primary group in that unit without the use of an elevator. 56 Knox accessed DOC
services, including the American Veterans in Prison Program, church, meals, gym and medical
services by taking one elevator ride down to the first floor. 57 Knox required the use of one
elevator ride down and one elevator ride up in order to access the law library and learning
center. 58
Inmates may use the elevators only with assistance, and no officer is assigned to operate
the elevator. 59 In order to use the elevator, Knox communicated with a DOC corrections
officer. 60 That corrections officer would then contact another officer that held the elevator key
on that shift. 61 The corrections officer with the elevator key then activated the elevator for
Knox’s use. 62 At times, this process was lengthy. 63 On some occasions, the elevator was not
called and Knox was required to return to the officer’s desk to call the elevator again. 64 On
occasion, Knox would miss meals. 65 Knox stated that he would avoid going to the law library
and veterans’ meetings because getting there was a “logistical nightmare.” 66 Knox testified:
It’s the problem with being delayed and having to ask all the time, the logistical
complications that come with it. Like I mentioned, it seems on its face, it sounds like a
good idea, just use the elevator, but if you incorporated what I mentioned prior,
correctional officers not being there, movement is very short and tailored, being stranded
56

FHS SOMF ¶ 71; Pl. Resp. ¶ 71.
FHS SOMF ¶ 72; Pl. Resp. ¶ 72.
58
FHS SOMF ¶ 73; Pl. Resp. ¶ 73.
59
Knox SOMF ¶ 24; DOC Resp. ¶ 24; FHS Resp. ¶ 24.
60
FHS SOMF ¶ 74; Pl. Resp. ¶ 74.
61
FHS SOMF ¶ 74; Pl. Resp. ¶ 74.
62
FHS SOMF ¶ 74; Pl. Resp. ¶ 74.
63
FHS SOMF ¶ 74; Pl. Resp. ¶ 74.
64
Knox SOMF ¶ 24. FHS denies this fact as being unsupported by “objective” evidence other
than Knox’s own statements. See Knox SOMF FHS Resp. ¶ 24. However, Knox’s statements
under oath are appropriate for the Court’s consideration on summary judgment.
65
DOC SOMF ¶ 41; Pl. Resp. ¶ 41.
66
Docket No. 120-1 at 39.
9
57

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– and never mind movements but emergency situations, fire drills. . . . [I]t’s not so much
an elevator. It’s what comes along with it. 67
2.

Knox’s Reasonable Accommodation Request

On March 4, 2014, Knox filed a Request for Reasonable Accommodation of Special
Needs, which stated: “On February 11, 2014, I was moved to North 2 for treatment, however,
because of the stairs, I must constantly request the elevator. I miss movements, med calls, long
waits and bad feelings from C.O.’s. It has come to a point that I don’t want to go out because of a
burdensome [sic].” 68 Knox submitted this request to Nelligan, who denied it on March 12,
2014. 69 In so doing, Nelligan advised Knox that his “current housing in North 2 is appropriate in
terms of your treatment status. All accommodations with respect to your physical limitations
will be performed and are not inconvenient for staff.” 70 In addition, Nelligan stated in an email
to DOC staff, “[Knox] is not appropriate for N1, and it looks poor if we consider changing his
housing based on an inability to accommodate a medical disability. I suggest he be interviewed
and the situation closely monitored.” 71 Nelligan later testified:
[S]imply changing his housing would be an admission that we could not accommodate
anybody who had a mobility issue, and that was not the case. We had a reliable means of
egress and ingress to the housing units for all individuals who had mobility issues, not
just Mr. Knox.72
She also explained that DOC maintained Knox’s second floor housing assignment not because of
appearances but because DOC could accommodate his disability. 73

67

Knox SOMF ¶ 24; DOC Resp. ¶ 24; FHS Resp. ¶ 24.
DOC SOMF ¶ 28; Pl. Resp. ¶ 28. Docket No. 123-2.
69
FHS SOMF ¶ 78; Pl. Resp. ¶ 78. DOC SOMF ¶ 29; Pl. Resp. ¶ 29. The request was not
submitted to FHS. FHS SOMF ¶ 77; Pl. Resp. ¶ 77. Docket No. 123-2 at 39.
70
DOC SOMF ¶ 31; Pl. Resp. ¶ 31. Docket No. 123-2 at 39.
71
Knox SOMF ¶ 25; DOC Resp. ¶ 25; FHS Resp. ¶ 25.
72
Docket No. 127-4 at 6.
73
Id.
10
68

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3.

Knox’s Grievances

FHS maintains its own grievance process. 74 The formal FHS grievance process requires
inmates to first file an Inmate/Resident Complaint Form within ten business days of the
incident. 75 Inmates may then appeal the response by filing another form within ten business days
of the decision. 76
On March 5, 2014, Knox filed an Inmate/Resident Complaint Form objecting to his
placement on the second floor. 77 After receiving the grievance on April 7, 2014, 78 an FHS staff
member replied as follows: “Inmate Knox should address the aforementioned concerns with the
Department of Corrections.” 79
On March 21, 2014, Knox filed a DOC grievance, complaining of his continued
placement on North 2. 80 The MTC grievance coordinator responded by stating, “[a]t this
facility, you are housed according to your treatment status. Your current unit is appropriate in
that regard.” 81
4.

The Fire Drill

On April 9, 2014, DOC staff conducted a fire drill on North 2. 82 The drill began at 7
p.m. 83 DOC maintains that minutes into the fire drill, corrections officers brought Knox down in
the elevator to the area where the other inmates had gathered. 84 Knox maintains this occurred

74

FHS SOMF ¶¶ 19-20; Pl. Resp. ¶¶ 19-20. Docket No. 120-3 at 5.
FHS SOMF ¶ 19; Pl. Resp. ¶ 19.
76
FHS SOMF ¶ 20; Pl. Resp. ¶ 20.
77
FHS SOMF ¶ 21; Pl. Resp. ¶ 21.
78
FHS SOMF ¶ 22; Pl. Resp. ¶ 22.
79
FHS SOMF ¶ 23; Pl. Resp. ¶ 23.
80
DOC SOMF ¶¶ 36, 40; Pl. Resp. ¶¶ 36, 40. Docket No. 123-2 at 41.
81
DOC SOMF ¶ 37; Pl. Resp. ¶ 37. Docket No. 123-2 at 41.
82
DOC SOMF ¶ 100; Pl. Resp. ¶ 100.
83
DOC SOMF ¶ 103; Pl. Resp. ¶ 103.
84
Knox SOMF ¶ 33; DOC Resp. ¶ 33.
11
75

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“roughly 14 minutes after the fire drill started.” 85 All inmates and staff were accounted for at
7:14 p.m. 86
Knox claimed that after the fire drill, he suffered “anxiety,” 87 though he did not file a
grievance in connection with the fire drill. 88 In the incident report relating to the fire drill, a
corrections officer noted: “having an inmate in a wheelchair on the second floor of any unit
should be reevaluated.” 89 DOC Defendants O’Brien, Nelligan and Bennett disagreed. 90
Corrections Officer Holmes stated that while an elevator was used in the drill, in an actual fire,
Knox would have been carried down by two corrections officers in a stair chair. 91
5.

Knox Moved To First Floor

On May 7, 2014, FHS staff member Cornell, met with Knox because Knox had been
absent from group sessions and community meetings. 92 Knox informed Cornell that he no
longer wished to participate in treatment in hopes that his request to be moved to the first floor
would be granted. 93 FHS maintains that Knox “self-terminated” from the SOTP on May 8,
2014. 94 As a result of his “self-termination,” Knox was moved back to the South 1 orientation
unit on the first floor of the modular building. 95 Knox expressed that he felt “for loss of a better
term, normal” while on the first floor. 96

85

Knox SOMF ¶ 33; DOC Resp. ¶ 33.
DOC SOMF ¶ 103; Pl. Resp. ¶ 103.
87
DOC SOMF ¶ 118; Pl. Resp. ¶ 118.
88
DOC SOMF ¶ 106; Pl. Resp. ¶ 106.
89
Knox SOMF ¶ 34; DOC Resp. ¶ 34; FHS Resp. ¶ 34.
90
DOC SOMF ¶¶ 112-14; Pl. Resp. ¶¶ 112-14.
91
DOC SOMF ¶ 115; Pl. Resp. ¶ 115. Knox SOMF DOC Resp. ¶ 34. Docket No. 123-2 at 8081.
92
FHS SOMF ¶ 86; Pl. Resp. ¶ 86.
93
FHS SOMF ¶ 86; Pl. Resp. ¶ 86.
94
Knox SOMF ¶ 29; DOC Resp. ¶ 29; FHS Resp. ¶ 29
95
FHS SOMF ¶ 89; Pl. Resp. ¶ 89. DOC SOMF ¶ 128.
96
FHS SOMF ¶ 109; Pl. Resp. ¶ 109.
12
86

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On May 12, 2014, Prisoners’ Legal Services, on Knox’s behalf, wrote to Nelligan
regarding Knox’s concerns about second floor housing. 97 Nelligan responded to the concerns. 98
However, at the time Nelligan received the letter, Knox had already “self-terminated” from the
SOTP, the consequence of which was relocation to the first floor. 99
6.

Knox Reenters The SOTP And Refuses To Move To The Second Floor

Typically, when an inmate reenters treatment after a “self-termination,” he remains on the
orientation unit for a period of time to show commitment, then returns to his originally
designated treatment intensity level. 100 Knox sought to reenter treatment on or around August
13, 2014, beginning in the orientation unit on the first floor. 101
On February 23, 2015, a DOC corrections officer ordered Knox to move to the second
floor, 102 “to continue his treatment program.” 103 Knox refused the order, stating, “I just declined
while I was still on the ground floor, accepting the sanctions from the DOC and suspension from
FHS. That seemed a more likely route than dealing with the elevator.” 104 Per its policy, FHS
then suspended Knox from the SOTP for 90 days, labelling his refusal to move as a “treatment
refusal,” and making him eligible for reentry into the treatment program on May 24, 2015. 105

97

Knox SOMF ¶ 26; DOC SOMF ¶ 26; FHS SOMF ¶ 26.
Docket No. 127-21 at 2.
99
FHS SOMF ¶ 89; Pl. Resp. ¶ 89. DOC SOMF ¶ 128. The record does not include the exact
date that Knox was relocated to the first floor after his “self-termination” on May 8, 2014.
100
FHS SOMF ¶¶ 91, 93; Pl. Resp. ¶¶ 91, 93.
101
FHS SOMF ¶ 94; Pl. Resp. ¶ 94.
102
FHS SOMF ¶ 95; Pl. Resp. ¶ 95.
103
FHS SOMF ¶ 96. Docket No. 120-2 at 11.
104
FHS SOMF ¶ 95; Pl. Resp. ¶ 95. Knox SOMF ¶ 30; DOC SOMF ¶ 30; FHS SOMF ¶ 30.
105
FHS SOMF ¶¶ 97-98; Pl. Resp. ¶¶ 97-98.
13
98

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7.

Knox Files A Second Grievance With FHS

On March 4, 2015, Knox filed an Inmate/Resident Complaint Form regarding the
February 23, 2015 order, his refusal and his subsequent suspension from the program. 106 He
maintained that he was being discriminated against as a result of his disability. 107 Knox
described this grievance as an appeal of his previous March 5, 2014 grievance. 108 In her March
9, 2015 response, Julius stated: “Please contact DOC with any issues or questions related to
housing and HSU medical staff with any medical issues.” 109
On May 24, 2015, Knox wrote a letter expressing his desire to return to treatment, and
reentered treatment shortly thereafter. 110
8.

Knox’s Comprehensive Evaluation Is Completed

On August 4, 2015, prior to the completion of Knox’s comprehensive evaluation, he was
transferred from the ATPU to the nonresidential treatment unit on the first floor. 111 On
September 4, 2015, FHS completed Knox’s comprehensive evaluation, which concluded that he
was appropriately placed in the nonresidential treatment unit. 112 On October 17, 2015, FHS
completed Knox’s annual treatment plan, which recommended that Knox remain in the
nonresidential treatment unit. 113 In total, Knox spent approximately four months of his stay at

106

FHS SOMF ¶ 24; Pl. Resp. ¶ 24. Exhibit 120-2 at 13-15.
FHS SOMF ¶ 24; Pl. Resp. ¶ 24. Exhibit 120-2 at 13-15.
108
FHS SOMF ¶ 27; Pl. Resp. ¶ 27.
109
FHS SOMF ¶ 26; Pl. Resp. ¶ 26.
110
FHS SOMF ¶¶ 100-01; Pl. Resp. ¶¶ 100-01.
111
FHS SOMF ¶ 102; Pl. Resp. ¶ 102. Knox SOMF FHS Resp. ¶ 16.
112
Knox SOMF ¶ 31; DOC Resp. ¶ 31; FHS Resp. ¶ 31.
113
FHS SOMF ¶ 107; Pl. Resp. ¶ 107.
14
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the MTC on the second floor. 114 There were no other wheelchair-bound inmates on the second
floor of the MTC during times relevant to the instant dispute. 115
D. Alleged Retaliation Following Filing Of Grievances And This Case
1.

Denial Of Medical Supplies And Stamps

In April 2014, Knox filed a request to transfer $25.00 from his inmate savings account to
his inmate personal account for stamps and “personal hygiene” products. 116 Defendant Bennett
denied the April 2014 request as “not deemed compelling as [DOC] provides hygiene products
[and] permit[s] those indigent to mail 3 letters weekly.” 117
On July 30, 2014, Knox filed another formal grievance related to his requests for stamps
and cosmetics. 118 In that grievance, Knox complained about the indigent/not indigent
determination and his ability to transfer money from his savings account. 119 In response, on
August 1, 2014, Knox was told to resubmit his request for transfer of funds for stamps. 120
On August 1, 2014, Knox apparently filed an informal complaint regarding insufficient
hygiene supplies in his indigence kit. 121 On August 20, 2014, in response, Bennett wrote that
Knox had “not inquired about receiving additional indigence supplies.” 122 Bennett also
counseled Knox: “when needed, don’t hesitate to speak with your unit CPO [correctional
program officer] about receiving additional indigence supplies . . . I encourage you to meet and

114

FHS SOMF ¶ 108; Pl. Resp. ¶ 108.
FHS SOMF ¶ 111; Pl. Resp. ¶ 111.
116
DOC SOMF ¶¶ 147-48; Pl. Resp. ¶¶ 147-48. Docket No. 123-2 at 73.
117
DOC SOMF ¶ 149; Pl. Resp. ¶ 149. Docket No. 123-2 at 73.
118
Docket No. 123-2 at 59.
119
Id.
120
Id.
121
A copy of this document is not apparently in the record before the Court. However, the letter
responding to it is.
122
DOC SOMF ¶ 152; Pl. Resp. ¶ 152. Docket No. 123-2 at 96.
15
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speak with medical staff regarding any medical issues of concern so they may assess and address
your medical needs.” 123
On October 3, 2014, in response to Knox’s July 30th grievance, DOC asked him to
“resubmit your request for transfer of funds for stamps.” 124 Knox filed an inmate grievance
appeal form on October 17, 2014, in which he wrote: “[O]n [July] 7, 2014, I had requested to
transfer funds from my savings to personal account in order to purchase cosmetics/stamps for
mail and proper hygiene . . . This request was DENIED even though the Grievance was
‘APPROVED’ by DOC.” 125 On November 3, 2014, Defendant O’Brien partially approved “the
transfer of funds for stamps only.” 126
Knox made an appointment to see a nurse in the HSU to discuss “emollient” for a wound
on his leg and a sore on his buttock, because “DOC will not let me purchase any lotion.” 127 He
then refused to be seen for this issue. 128 Knox’s request for personal toiletries was approved in
November 2014. 129
2.

Reclassification

On May 22, 2015, Knox filed a motion for preliminary injunction and order directing the
Defendants to, inter alia, maintain his assignment to a ground floor housing unit at the MTC. 130
At that time, Defendants agreed not to move Knox from the first floor until the motion was
decided. 131 In particular, DOC agreed not to change Knox’s housing pending the disposition of

123

DOC SOMF ¶ 152; Pl. Resp. ¶ 152.
Knox SOMF ¶ 56; DOC Resp. ¶ 56. Docket No. 123-2 at 59.
125
Docket No. 123-2 at 75.
126
Id.
127
DOC SOMF ¶ 153; Pl. Resp. ¶ 153. Docket No. 123-2 at 75.
128
DOC SOMF ¶ 154. Docket No. 123-2 at 74.
129
Knox SOMF ¶ 56; DOC Resp. ¶ 56.
130
Docket No. 69.
131
Id. at 1 n.1.
16
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the motion. 132 On May 22, 2015, a DOC official sent an email to DOC and FHS staff stating that
Knox’s unit was not to be changed until further notice or approval: “If he becomes involved with
treatment, he will be a satellite. . .” 133
Knox’s suspension from treatment ended on May 24, 2015. 134 A reclassification hearing
was held for Knox on May 29, 2015 and he was reclassified to MCI Shirley, a different DOC
facility. 135 Shortly thereafter, Bennett emailed DOC officials, informing them of Knox’s
reclassification, but stating, “Nonetheless, I will have it modified for him to remain [at the MTC]
as long as he stays treatment compliant.” 136 Knox ultimately was not moved out of the MTC
until he left DOC custody on November 16, 2016. 137
III.

ANALYSIS
A. Standard of Review
Summary judgment is appropriate “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). “A dispute is ‘genuine’ if the evidence about the fact is such that a reasonable jury could
resolve the point in the favor of the non-moving party.” Sanchez v. Alvarado, 101 F.3d 223, 227
(1st Cir. 1996) (quotations and citations omitted). A material fact is one which has “the potential
to affect the outcome of the suit under the applicable law.” Id. (quotations and citations
omitted).
The Court “must scrutinize the evidence in the light most agreeable to the nonmovants,

132

Id.
Knox SOMF ¶ 46; DOC Resp. ¶ 46.
134
Docket No. 69 at 1 n.1.
135
Knox SOMF ¶ 47; DOC Resp. ¶ 47.
136
Docket No. 127-25 at 2.
137
DOC SOMF ¶ 2; Pl. Resp. ¶ 2. Knox SOMF ¶ 49; DOC Resp. ¶ 49.
17
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who are entitled to the benefit . . . of all reasonable inferences therefrom.” Ahern, 629 F.3d at
53-54 (citing Cox, 391 F.3d at 29). “A properly supported summary judgment motion cannot be
defeated by relying upon conclusory allegations, improbable inferences, acrimonious invective,
or rank speculation.” Id. (citations omitted).
“Cross motions for summary judgment neither alter the basic Rule 56 standard, nor
warrant the grant of summary judgment per se.” Wightman v. Springfield Terminal Ry. Co., 100
F.3d 228, 230 (1st Cir. 1996) (internal citations omitted). “Cross motions simply require us to
determine whether either of the parties deserves judgment as a matter of law on facts that are not
disputed.” Id. “Where, as here, a district court rules simultaneously on cross-motions for
summary judgment, it must view each motion, separately, through this prism.” Estate of Hevia
v. Portrio Corp., 602 F.3d 34, 40 (1st Cir. 2010) (citing Blackie v. Maine, 75 F.3d 716, 721 (1st
Cir. 1996) (“Barring special circumstances, the nisi prius court must consider each motion
separately, drawing inferences against each movant in turn.”)).
B. Disability Discrimination Claims (Counts 1-3)
Knox asserts that the DOC and FHS 138 violated the ADA and Article 114 of the
Massachusetts Constitution, and that DOC alone violated the Rehabilitation Act, by housing

138

At oral argument, Knox counsel clarified that he is not pursuing disability discrimination
claims against the individual defendants. Indeed, individuals are not subject to liability under
these statutes. See Mitchell v. Mass. Dept. of Corr., 190 F. Supp. 2d 204, 211 (D. Mass. 2002)
(collecting cases). Further, Knox clarified that he is not pursuing a Rehabilitation Act claim
against FHS. In any event, there is no record evidence that FHS receives federal funds for
purposes of establishing its liability under the Rehabilitation Act. See 29 U.S.C. § 794
(Rehabilitation Act applies to programs that receive “Federal financial assistance.”). At oral
argument, Knox also clarified that despite statements in the amended complaint to the contrary,
see Amended Compl. ¶ 88, he is not pursuing ADA Title III claims against FHS. Accordingly,
summary judgment should be granted to the individual defendants on Counts 1, 2, and 3 and
FHS on Count 3.
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Knox on the second floor, and subsequently, causing his exclusion from services, programs and
activities at the MTC. 139
Title II of the ADA prohibits disability discrimination by public entities. 42 U.S.C. §§
12131(1)(B), 12132. 140 Under Title II, a plaintiff must establish: “(1) that he is a qualified
individual with a disability; (2) that he was either excluded from participation in or denied the
benefits of some public entity’s services, programs, or activities or was otherwise discriminated
against; and (3) that such exclusion, denial of benefits, or discrimination was by reason of the
plaintiff’s disability.” Parker v. Universidad de P.R., 225 F.3d 1, 5 (1st Cir. 2000).
A plaintiff may press several different types of disability discrimination claims: (1)
disparate treatment on account of disability; (2) disparate impact; and (3) failure to
accommodate. Knox alleges only a failure to accommodate. See Docket No. 126 at 8-14.
Accordingly, he must prove that “a public entity has refused to affirmatively accommodate his . .
. disability where such accommodation was needed to provide meaningful access to a public
service.” Nunes v. Mass. Dep’t of Corr., 766 F.3d 136, 145 (1st Cir. 2014) (internal citations
omitted). A plaintiff pursuing such a claim “need not directly address and satisfy the elements or
methods for proving” the disparate impact and disparate treatment theories. Id.
The Defendants do not dispute that Knox is a qualified individual with a disability. See
Docket Nos. 119 at 5; 123 at 3. The parties disagree, however, whether the Defendants are even

139

Because Article 114, the Rehabilitation Act and the ADA are construed alike, see Guckenberger
v. Bos. Univ., 974 F. Supp. 106, 150 (D. Mass. 1997), the Court addresses these claims together.
140
To the extent Knox seeks punitive damages under Title II and the Rehabilitation Act, such
request should be denied. See Barnes v. Gorman, 536 U.S. 181, 190 (2002).
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subject to liability, 141 and if they are, whether Knox was (1) denied the benefits of MTC’s
services and whether (2) such denial was by reason of Knox’s disability.
1.

Denial Of Access To Services

To meet his burden, Knox must provide evidence that he was excluded from participation
in or denied the benefits of “the services, programs, or activities of a public entity.” 42 U.S.C. §
12132. Title II obligates DOC officials “to make ‘reasonable accommodations’ to allow [a]
disabled person access to [prison] services or participation in programs or activities” but it does
not require them “to employ any and all means to make services available to persons with
disabilities.” Bibbo v. Mass. Dep’t of Corr., No. 08-10746-RWZ, 2010 WL 2991668, at *1 (D.
Mass. July 26, 2010) (citation omitted). They need only provide “meaningful access to the
program or services sought.” Id. (citation omitted). The ADA entitles plaintiffs “to reasonable
accommodations, not to optimal ones finely tuned to [the plaintiff’s] preferences.” Nunes, 766
F.3d at 146. Further, “[i]nmates do not have a right to be housed at a specific facility or in a
specific type of housing.” Parks v. Blanchette, 144 F. Supp. 3d 282, 339 (D. Conn. 2015) (citing
Meachum v. Fano, 427 U.S. 215, 224-25 (1976)).
In the four months Knox was housed on the second floor of the MTC, 142 he was not
denied “meaningful access”. It is undisputed that Knox was able to access services, including
meals, gym, and medical services, on the ground floor of the modular building and in the main

141

FHS argues that it is not subject to liability because it is not a public entity and because Knox
has not exhausted FHS’ administrative remedies. Docket No. 119 at 2-4, 10-11. DOC argues that
it is not subject to ADA liability by virtue of the Eleventh Amendment. Docket No. 157. Because
this Court recommends summary judgment for the Defendants on the merits of Knox’s disability
discrimination claims, it does not address these arguments.
142
The Court notes that the focus of Knox’s disability discrimination claims is these four months.
See Docket No. 126 at 8 (“Knox . . . was excluded from the services, programs, and activities at
MTC while housed on the second floor . . .”). Knox is not claiming any disability discrimination,
other than potentially his retaliation claims, while he was housed on the first floor.
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building with the use of an elevator. 143 It is also undisputed that while on the second floor, he
accessed his SOTP psychoeducational classes, support group and primary group without the use
of an elevator. 144
The need for a corrections officer’s assistance to operate the elevator does not change
these facts. Instead, access to the MTC’s services was merely more inconvenient for Knox when
housed on the second floor. 145 At times, Knox would forego certain activities because he did not
want to have to ask for help with the elevator. 146 This was Knox’s choice, and as such, cannot be
grounds for an ADA violation on part of the DOC. See Polansky v. N.H. Dep’t of Corr., No. 12cv-105-PB, 2013 WL 1398582, at *12 (D.N.H. Mar. 25, 2013) (holding that prisoner’s
preference for one procedure did not render a second an unreasonable accommodation so long as
it granted prisoner access to services).
Knox also argues that he was denied meaningful access to emergency services. Docket
No. 126 at 19; Docket No. 134 at 8. Knox focuses on an April 9, 2014 fire drill, during which he
was initially left behind and then brought down from the second floor by elevator. 147 Construing
the facts in the light most favorable to Knox, the Court acknowledges that Knox found the fire
drill to be anxiety-provoking. 148 The Court also acknowledges that there was discussion among
DOC officials after the fire drill as to whether wheelchair-bound inmates should be housed on
the second floor. 149 However, this single incident is simply not enough to show a lack of

143

FHS SOMF ¶ 72; Pl. Resp. ¶ 72.
FHS SOMF ¶ 71; Pl. Resp. ¶ 71.
145
FHS SOMF ¶ 75; DOC SOMF ¶ 133.
146
See FHS SOMF ¶ 75.
147
DOC SOMF ¶¶ 100, 103; Pl. Resp. ¶¶ 100, 103. Knox SOMF ¶ 33; DOC Resp. ¶ 33.
148
DOC SOMF ¶ 118; Pl. Resp. ¶ 118. There is also evidence in the record that shows that
Knox also thought it was a funny moment. DOC SOMF ¶ 105; Pl. Resp. ¶ 105.
149
DOC SOMF ¶¶ 112-14; Pl. Resp. ¶¶ 112-14. Docket No. 123-2 at 76-78.
21
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meaningful access to emergency services. See, e.g., Holmes v. Godinez, 311 F.R.D. 177, 20607, 226-28, 235-36 (N.D. Ill. 2015) (denying defendant’s motion for summary judgment on
ADA claims where numerous inmates with disabilities were not evacuated during multiple fire
drills). In addition, there is no dispute that in an emergency inmates in wheelchairs may be taken
downstairs in a stair chair. 150 Docket No. 144 at ¶ 6. Knox has offered nothing other than his
own opinion and some musings by corrections officers that this method of evacuation is not
sufficient to meet DOC’s important obligations in this regard.
Accordingly, Knox was not denied meaningful access to the MTC’s programs, services
and activities.
2.

Denial Of Access To Services Because Of Disability

Knox’s ADA claims also fail because no reasonable fact-finder could conclude that his
placement on the second floor and subsequent refusal to grant his March 2014 request for
reasonable accommodation occurred because he is wheelchair bound. “While proof of disparate
impact is not required to state a reasonable modification claim, there must be something different
about the way plaintiff is treated by reason of his disability such that he does not have access to
benefits available to those without disabilities.” Parks, 144 F. Supp. 3d at 338-39.
If FHS makes a clinical determination that an inmate should participate in a residential
therapeutic community, the DOC typically places that person in a second floor housing unit
depending on bed availability. 151 The Defendants have produced evidence that Knox’s
placement on the second floor was based on Knox’s treatment needs. 152 Indeed, FHS made two

150

DOC SOMF ¶¶ 115-16; Pl. Resp. ¶¶ 115-16.
FHS SOMF ¶ 45; Pl. Resp. ¶ 45.
152
FHS SOMF ¶ 54; Pl. Resp. ¶ 54.
22
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clinical determinations (in February 2014 153 and February 2015 154) that Knox’s needs were best
served at those times on the second floor. Further, the denial of his request for reasonable
accommodation is supported by evidence of legitimate penological interests. 155 The denial
indicated that there was a medical order supporting his special need. 156 The denial further stated
that “your current housing in North 2 is appropriate in terms of your treatment status. All
accommodations with respect to your physical limitations will be performed and are not
inconvenient for staff.” 157
Knox disputes this evidence by stating that at the time he was placed on the second floor,
his comprehensive evaluation had not yet been completed, 158 and upon its completion, FHS
recommended him for placement on the first floor. 159 He also argues that this treatment during
the April 9, 2014 fire drill compelled the need for his transfer to the first floor. Docket No. 126
at 8-10. However, this evidence does not change the fact that Knox was placed on the second
floor after a clinical evaluation (albeit, not the comprehensive evaluation) recommended his
placement there. Further, the FHS policy in question explicitly includes the contingency that
comprehensive evaluations may be delayed for clinical or institutional reasons. 160 Knox has not
produced any evidence that the delay in completion of his comprehensive evaluation was the
product of discrimination. Nor has he disputed the bona fides of the February 2014 and February
2015 evaluations. Indeed, he has presented no evidence that his second floor placement was

153

See FHS SOMF ¶ 61. Docket No. 120-2 at 22.
See FHS SOMF ¶ 96. Docket No. 120-2 at 13.
155
For this reason, the Court does not address Knox’s argument that “satelliting” (living on the
first floor and receiving treatment on the second) was a reasonable accommodation.
156
Docket No. 127-16.
157
Id.
158
DOC SOMF ¶ 23; Pl. Resp. ¶ 23. FHS SOMF ¶ 103; Pl. Resp. ¶ 103.
159
Knox SOMF ¶ 31; DOC Resp. ¶ 31; FHS Resp. ¶ 31.
160
See FHS SOMF ¶ 40; Docket No. 120-5 at 4.
23
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because of his disability, nor has he provided evidence that the Defendants manufactured a
penological rationale for his placement on the second floor and the subsequent denial of his
reasonable accommodation request.
Accordingly, the Court recommends that the DOC and FHS Defendants be granted
summary judgment on Counts 1-3.
C. Retaliation Under The ADA (Count 4)
Knox alleges retaliation by the DOC 161 in violation of the ADA for the filing of this
lawsuit and the grievances that preceded it. For the reasons discussed below, the Court
recommends that summary judgment be granted for the DOC on Count 4.
Title V of the ADA provides that “[n]o person shall discriminate against any individual
because such individual has opposed any act or practice made unlawful by this chapter or
because such individual made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). “A plaintiff
may assert a claim for retaliation, even where the underlying claim for disability discrimination
fails.” Colon-Fontanez v. Municipality of San Juan, 671 F. Supp. 2d 300, 331 (D.P.R. 2009)
(citing Soileau v. Guilford of Me., Inc., 105 F.3d 12, 16 (1st Cir. 1997)).
“A retaliation claim under the ADA is analyzed under the familiar burden-shifting
framework drawn from cases arising under Title VII.” Kelley v. Corr. Med. Servs., Inc., 707
F.3d 108, 115 (1st Cir. 2013). To establish a prima facie case of retaliation under 42 U.S.C. §
12203(a), a plaintiff must show that (1) he engaged in protected conduct, (2) he was subjected to
an adverse action by the defendant, and (3) there was a causal connection between the protected

161

At oral argument, Knox clarified that he is only pursuing a retaliation claim against the DOC.
Accordingly, summary judgment on Count 4 should be granted for all individual defendants and
FHS on this basis alone.
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conduct and the adverse action. D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 41 (1st Cir.
2012) (citations omitted). “Once a plaintiff makes such a showing, the burden shifts to the
defendant to articulate a legitimate, non-retaliatory explanation for the adverse action.” Id. If
the defendant articulates such a reason, “the burden shifts back to the plaintiff to show that the
proffered legitimate explanation is pretextual, meaning that the defendant was motivated by a
retaliatory animus.” Id.
Inmates are of course not deprived of constitutional protections. Greater restrictions of
such rights, however, are allowed in prison than would be allowed elsewhere. See Turner v.
Safley, 482 U.S. 78, 84-85 (1987). Additionally, courts “must accord substantial deference to
the professional judgment of prison administrators, who bear a significant responsibility for
defining the legitimate goals of a correction system and for determining the most appropriate
means to accomplish them.” Overton v. Bazzetta, 539 U.S. 126, 132 (2003). “Courts properly
approach prisoner retaliation claims with skepticism and particular care because virtually any
adverse action taken against a prisoner by a prison official – even those otherwise not rising to
the level of a constitutional violation – can be characterized as a constitutionally proscribed
retaliatory act. Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (citations omitted).
The DOC does not appear to dispute that Knox engaged in protected conduct by filing
grievances and the instant lawsuit. Indeed, the case law makes clear that such conduct is
protected. See Brown v. Corsini, 657 F. Supp. 2d 296, 305 (D. Mass. 2009) (grievances);
Schofield v. Clarke, 769 F. Supp. 2d 42, 47 (D. Mass. 2011) (grievances and lawsuits). Rather,
the DOC argues that Knox is unable to satisfy his burden of proof that the subject events were
“adverse actions” or that the actions took place as a result of retaliatory intent.

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Knox focuses on two “adverse actions”: (1) the temporary denial of his request to
purchase stamps and toiletries from his personal account; and (2) his reclassification. Docket
No. 126 at 14-16.
An “adverse action is one that might well dissuade a reasonable person from making or
supporting a charge of discrimination.” Isaacs v. Dartmouth-Hitchcock Med. Ctr., No. 12-cv040-LM, 2014 WL 1572559, at *19 (D.N.H. Apr. 18, 2014). 162 Anti-retaliation provisions
protect an individual from conduct that causes injury or harm. See Carmona-Rivera v. Puerto
Rico, 464 F.3d 14, 20 (1st Cir. 2006) (analyzing ADA retaliation claim under Title VII
principles). For example, adverse actions in the prison context include a change in work
assignment that affects wages, benefits, and good time credits, Brown, 657 F. Supp. 2d at 305,
and transfer to a higher security prison, Partelow v. Massachusetts, 442 F. Supp. 2d 41, 51 (D.
Mass. 2006). See also Thaddeus-X v. Blatter, 175 F.3d 378, 396, 398 (6th Cir. 1999)
(segregation constitutes adverse action). In other words, any decision “causing a significant
change in benefits” may constitute an adverse action for the purposes of a retaliation claim.
Pierce v. District of Columbia, 128 F. Supp. 3d 250, 282 (D.D.C. 2015)(citations omitted).
An act must be more than de minimis to constitute an adverse action. For example, the
First Circuit has held that a delay in providing accommodations to a disabled person which
results in mere inconvenience rather than significant injury or harm does not amount to an
adverse action. See Carmona-Rivera, 464 F.3d at 20. Similarly, a mere delay or lack of
cooperation in providing inmates with writing implements did not support a claim for retaliation.

162

The Isaacs court analyzed a claim of retaliation under the Rehabilitation Act. However, the
“standard for retaliation claims under the Rehabilitation Act is the same as the standard under the
ADA.” Esposito, 675 F.3d at 41. Therefore, the Court relies on Rehabilitation Act and ADA
cases in its analysis.
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Partelow, 442 F. Supp. 2d at 51. See Thaddeus-X, 175 F.3d at 399 (cold meals and harassment
may not pose the requisite deterrent effect). Here, the Court finds that, even viewing the facts in
the light most favorable to Knox, a reasonable jury would not conclude that the cited conduct
here constituted adverse actions.
1.

Denial Of Request To Transfer Money

Knox contends that the DOC retaliated against him by denying his request to transfer
money from his savings account to his personal account for the purchase of stamps and toiletries.
Docket No. 126 at 15. Pursuant to Massachusetts law, and in order to ensure that inmates will
have a balance of funds when they leave DOC custody, money may be removed from an inmate
savings account only upon a showing of compelling need. 103 Mass. Code Regs. 405.07 (3).
Indeed, the form itself states that “[s]avings funds may only [be released] upon approval of the
Superintendent for compelling needs.” Docket No. 123-2 at 73. (emphasis in original). The
decision whether to allow an inmate to expend earned savings and/or personal funds is within the
discretion of the superintendent. M.G.L. c. 127, § 48A; 103 Mass. Code Regs. 405.07 (3).
However, the superintendent’s discretion to authorize money transfers is not absolute and he may
not act arbitrarily in denying such a request. See Nilsson v. Superintendent, N. Cent. Corr. Ins.,
No. 10-P-356, 2011 WL 722611, at *1 (Mass. App. Ct. Mar. 3, 2011).
In or about June 2014, 163 Knox submitted his request which was initially denied. 164 The
reason for the denial was as follows: “Not deemed compelling as the department provides
hygiene products/permit those indigent to mail 3 letters weekly.” Docket No. 123-2 at 73. Knox
and the DOC agree that his requests for stamps and toiletries ultimately were approved in

163

While both Knox and the DOC agree that the request was submitted in June 2014, Knox SOMF
¶ 56; DOC Resp. ¶ 56, the document itself is dated April 2014. Docket No. 123-2 at 73.
164
Knox SOMF ¶ 56; DOC Resp. ¶ 56.
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October 2014 and November 2014, respectively. 165 Based on the evidence before the Court, no
reasonable jury could conclude that the four to five month delay in approving Knox’s request for
transfer of money is an adverse action. He received stamps for three letters a week and has not
described any harm resulting from DOC not promptly authorizing money for more stamps. In
addition, he has not provided any evidence that delay in approving his funds for cosmetics
resulted in any harm to him. In August, in addition to his month’s worth of hygiene products,
Knox was told to inquire with his unit about the possibility of receiving additional indigence
supplies. Docket No. 123-2 at 73. In October, in response to a medical request for cream
because he could not purchase lotion, he was given an appointment but refused to be seen.
Docket No. 123-2 at 74. While the non-approval of creams in certain circumstances could
support a finding of adverse action, Knox simply has not made that case here. Indeed, he has not
alleged any concrete harm that resulted from the denial of the transfer of funds. Accordingly,
there is little indication that the actions of the DOC Defendants here would have the “chilling
effect of deterring others from filing” their own grievances; Knox’s requests were ultimately
approved. See Carmona-Rivera, 464 F.3d at 20. While no doubt annoying to Knox, no
reasonable jury could find that the delay was an adverse action based on the evidence before the
Court.
Knox has provided no evidence other than his own opinion that the DOC Defendants
denied his requests in retaliation for the filing of the instant suit. And though the record is less
than clear as to the chronology of subsequent denials and eventual approval of such requests,
Knox’s dissatisfaction with the delay does not alone create an actionable harm.

165

Knox SOMF ¶ 56; DOC Resp. ¶ 56.
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2.

Reclassification

Knox also argues that a May 2015 reclassification hearing was an adverse action. Docket
No. 126 at 15. The hearing was held on May 29, 2015 after his suspension from treatment ended
on May 24, 2015. Docket No. 69 at 1 n.1. As a result Knox was reclassified from MTC to MCI
Shirley. 166 The hearing occurred just one week after Knox filed a preliminary injunction motion
to prevent his transfer to the second floor and after the parties agreed that he would not be moved
pending resolution of the motion. Knox’s housing was not actually changed as a result of the
hearing. Indeed, Knox remained on the first floor of the MTC until he left DOC custody in
November 2016. 167
Knox has not alleged any harm from the hearing itself. Indeed, there is no description in
the record as to Knox’s role in the hearing, if any. While the hearing alone could conceivably
cause harm in and of itself, Knox has not put forth evidence of any such facts. Without that, and
given that Knox was not actually transferred, no reasonable jury could conclude that the hearing
alone was an “adverse action”.
Accordingly, the Court recommends that summary judgment be granted in favor of the
DOC Defendants on Count 4.
D. Constitutional Violations
Pursuant to 42 U.S.C. § 1983, Knox alleges that the individual defendants violated his
rights (1) under the Eighth Amendment by depriving him of medically necessary therapeutic care
and by their requirement that he sign a confidentiality waiver to receive treatment; (2) under the

166
167

Knox SOMF ¶ 47; DOC Resp. ¶ 47.
DOC SOMF ¶ 2; Pl. Resp. ¶ 2.
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Fourteenth Amendment by assigning him to a second floor housing unit; and (3) under the
Fourteenth Amendment by denying his grievances.
Section 1983 is a vehicle through which individuals may sue certain persons acting under
the color of state law for deprivation of federally assured rights. Gagliardi v. Sullivan, 513 F.3d
301, 306 (1st Cir. 2008). Specifically, Section 1983 states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of
any State or Territory or the District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983.
Section 1983 is “not itself a source of substantive rights, but merely provides a method
for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94
(1989) (internal quotation marks and citations omitted). “A claim under Section 1983 has two
essential elements. First, the challenged conduct must be attributable to a person acting under
color of state law” and “second, the conduct must have worked a denial of rights secured by the
Constitution or by federal law.” Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997). None of
the individual defendants for purposes of summary judgment contest that they were acting under
color of state law.
Here, there are a number of legal impediments to Knox’s claims as set forth below.
1.

Lack Of Individual Liability

Because there is no vicarious liability under Section 1983, a plaintiff must establish that
each defendant’s individualized conduct violated the Constitution. Rua v. Glodis, 52 F. Supp. 3d
84, 94 (D. Mass. 2014), appeal docketed, No. 14-2158 (1st Cir. 2014).

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Further, government officials may not be held liable for the unconstitutional conduct of
their subordinates under Section 1983 under a theory of respondeat superior. Ashcroft v. Iqbal,
556 U.S. 662, 676 (2009). Absent participation in the challenged conduct, a supervisor may be
held liable for constitutional violations only if (1) the behavior of his subordinates results in a
constitutional violation and (2) the supervisor’s action or inaction was affirmatively linked to the
behavior in the sense that it could be characterized as supervisory encouragement, condonation,
or acquiescence, or gross negligence of the supervisor amounting to deliberate indifference.
Pineda v. Toomey, 533 F.3d 50, 54 (1st Cir. 2008). In other words, a supervisor’s action or
inaction must be a proximate cause of the constitutional violation. See Rua, 52 F. Supp. 3d at
94. Causation may be satisfied if the supervisor knew of, overtly or tacitly approved of, or
purposely disregarded the conduct. Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582
(1st Cir. 1994). Causation may also be satisfied if there is a long history of widespread abuse
sufficient to alert a supervisor to ongoing violations and the supervisor fails to take corrective
action. Id.
With respect to Commissioner Higgins-O’Brien, there are no allegations that she was
personally involved in any of the actions alleged in the Amended Complaint. Further, there are
no facts linking her directly to any of the actions taken by any of the other individual defendants
concerning Knox. Rather, Knox offers only the following: “[S]he had power and control over
her subordinates.” 168 Such an allegation is simply not enough to establish individual liability
under Section 1983 either individually or in a supervisory capacity. It is a conclusory assertion

168

DOC SOMF ¶ 69; Pl. Resp. ¶ 69. This statement of fact relates only to Knox’s allegation
with respect to Higgins-O’Brien’s deliberate indifference. There are no other allegations in the
record with respect to her individual actions and any of the other claims for constitutional
violations.
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devoid of any linkage between Higgins-O’Brien to acts or omissions by her subordinates.
Accordingly, summary judgment should be granted on this basis alone to Higgins-O’Brien on
Counts 5, 6, 7, 8, and 9.
2.

Cruel And Unusual Punishment (Counts 5 and 6) 169

Knox argues that his Eighth Amendment rights were violated because he was denied
“medically necessary care attributable to the requirement that inmates waive confidentiality in
treatment.” Docket No. 134 at 14; see also Docket No. 137 at 13.
Deliberate indifference to a prisoner’s serious illness or injury states a cause of action for
violation of the Eighth Amendment under Section 1983. Estelle v. Gamble, 429 U.S. 97, 105
(1976). To establish an Eighth Amendment violation, Knox “must satisfy both of two prongs:
(1) an objective prong that requires proof of a serious medical need, and (2) a subjective prong
that mandates a showing of prison administrators’ deliberate indifference to that need.” Kosilek
v. Spencer, 774 F.3d 63, 82 (1st Cir. 2014) (citing Estelle, 429 U.S. at 106; Sires v. Berman, 834
F.2d 9, 12 (1st Cir. 1987)).
A medical need is “serious” if it is “one that has been diagnosed by a physician as
mandating treatment, or one that is so obvious that even a lay person would easily recognize the
necessity for a doctor’s attention.” Id. (citing Gaudreault v. Municipality of
Salem, 923 F.2d 203, 208 (1st Cir. 1990)). “This prong does not impose upon prison
administrators a duty to provide care that is ideal, or of the prisoner’s choosing.” Id. (citing
United States v. Derbes, 369 F.3d 579, 583 (1st Cir. 2004)).

169

Knox also alleges a violation of Article 26 of the Massachusetts Constitution. Amended
Compl. ¶¶ 118-21. “Because Article 26 and the Eighth Amendment guarantee essentially the
same scope of rights, there is no need for separate analyses.” Carter v. Symmes, No. 06-10273PBS, 2008 WL 341640, at *5 n.3 (D. Mass. Feb. 4, 2008). Accordingly, the Court addresses
these claims together.
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An Eighth Amendment claim based on medical mistreatment also requires more than “an
inadvertent failure to provide adequate medical care” and must involve “acts or omissions
sufficiently harmful to evidence deliberate indifference to serious medical needs.” Feeney v.
Corr. Med. Servs., Inc., 464 F.3d 158, 161 (1st Cir. 2006) (quoting Estelle, 429 U.S. at
105-06). Deliberate indifference “may be manifested by prison doctors in their response to the
prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care
or intentionally interfering with the treatment once prescribed.” Estelle, 429 U.S. at 104-05
(citations omitted). Knox can demonstrate deliberate indifference only if the medical attention
he received is “so clearly inadequate as to amount to a refusal to provide essential care” and
must be “so inadequate as to shock the conscience.” Torraco v. Maloney, 923 F.2d 231, 234
(1st Cir. 1991) (citations omitted). Mere negligence or medical malpractice does not establish
deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 835 (1994); Estelle, 429 U.S. at
104. Moreover, failure to provide access to rehabilitative programming does not violate the
Eighth Amendment. Fiallo v. De Batista, 666 F.2d 729, 730 (1st Cir. 1981).
Here, Knox has not made the requisite showing. It is undisputed that the sex offender
treatment program here is rehabilitative. 170 Nevertheless, Knox claims that sex offender
treatment is medically necessary for him. Docket No. 134 at 14. He has not provided any
medical opinions to that effect. Rather, he argues that the treatment is necessary because it is
“frequently made a predicate to parole.” Id. However, Knox has made no argument, or offered
any evidence, that it was a predicate for his parole.

170

FHS SOMF ¶ 32; Pl. Resp. ¶ 32. The Court notes that to the extent Knox’s claim involves
interference with rehabilitation, Judge Sorokin has already dismissed such a claim. Docket No.
100.
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In addition, Knox signed the confidentiality waivers 171 and therefore did receive
treatment throughout his confinement at MTC. To the extent he argues that he received less than
optimal treatment because he felt constricted by the lack of confidentiality, 172 this simply does
not meet the “shock the conscience” test. He has made no argument that he was harmed by the
level of treatment that he received. Indeed, he has offered no medical opinions that the treatment
was sub-par in any respect. In addition, Knox has failed to provide any evidence of any
individual acts or omissions by any of the individual defendants pertaining to the confidentiality
waivers themselves that affected his medical treatment. 173 Rather, he argues, for example, that
Julius “admitted that FHS agreed to limit confidentiality protections because it was a condition
of the contract put out for bid by DOC.” Docket No. 137 at 14. Without any further
explanation, this assertion forms no basis for liability against Julius. For all these reasons, even
assuming that Knox has proved a serious medical need existed, no reasonable jury could
conclude that the individually named defendants were deliberately indifferent to Knox.
Accordingly, summary judgment should be granted with respect to Counts 5 and 6.
3.

Equal Protection Clause (Count 7)

Knox avers that his Equal Protection claim arises from having been treated differently
from other similarly situated disabled individuals. Docket No. 134 at 13. 174

171

FHS SOMF ¶¶ 116-18, 120-21; Pl. Resp. ¶¶ 116-18, 120-21.
FHS SOMF ¶ 113; Pl. Resp. ¶ 113.
173
It is not apparent, and Knox does not allege, that any of the individual defendants signed the
confidentiality waivers or discussed their content with him. See Docket No. 120-2 at 2, 4, 6, 8.
It appears that Defendant Julius signed several contact notes in a supervisory capacity. See id. at
3, 9. In any event, Knox has not argued that this conduct is a basis for Julius’ liability. Docket
No. 137 at 12-13.
174
The alleged unconstitutional conduct that underlies Knox’s Equal Protection claim is his
assignment to the second floor of the MTC. Amended Compl. ¶¶ 125-30. Knox already
challenges this conduct under the ADA, Article 114 of the Massachusetts Constitution and the
Rehabilitation Act. Id. at ¶¶ 85-105. Accordingly, Knox’s Equal Protection claim may well be
34
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The Equal Protection Clause commands that no State shall “deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV. “The Equal Protection
Clause does not forbid classifications. It simply keeps governmental decisionmakers from
treating differently persons who are in all relevant respects alike.” Nordlinger v. Hahn, 505 U.S.
1, 10 (1992). “[U]nless a classification warrants some form of heightened review because it
jeopardizes exercise of a fundamental right or categorizes on the basis of an inherently suspect
characteristic, the Equal Protection Clause requires only that the classification rationally further a
legitimate state interest.” Id. (citing Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 43941 (1985)). “The disabled are not a suspect class for equal protection purposes.” Toledo v.
Sanchez, 454 F.3d 24, 33 (1st Cir. 2006) (citing Cleburne, 473 U.S. at 448-50). The Supreme
Court has explained further that “[s]tates are not required by the Fourteenth Amendment to make
special accommodations for the disabled, so long as their actions toward such individuals are
rational.” Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367-68 (2001). Accordingly,
rational basis review is appropriate here and Knox must demonstrate that placement on the
second floor lacked a rational relationship to a valid penologicial objective.
“In order to set out a plausible equal protection claim, the [plaintiff] must allege facts
that he was treated differently from others similarly situated.” See Callaghy v. Town of
Aquinnah, 880 F. Supp. 2d 244, 252 (D. Mass. 2012) (citing Clark v. Boscher, 514 F.3d 107, 114
(1st Cir. 2008)). The test for whether a plaintiff has shown that shown that individuals are
similarly situated is “whether a prudent person, looking objectively at the incidents, would think
them roughly equivalent and the protagonists similarly situated.” Barrington Cove, Ltd., v. R.I.

precluded by the ADA’s comprehensive remedial scheme. This Court, however, does not
address this argument as it finds for the individual defendants on the merits.
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Hous. & Mortg. Corp., 246 F.3d 1, 8 (1st Cir. 2001) (internal quotation marks and citations
omitted). “Exact correlation is neither likely or necessary, but the cases must be fair congeners.
In other words, apples must be compared to apples.” Id. (citation omitted). Although the
determination as to whether parties are similarly situated is a “fact-bound inquiry” this does not
mean “that every case, regardless of the proof presented, is a jury case.” Cordi-Allen v. Conlon,
494 F.3d 245, 251 (1st Cir. 2007). A plaintiff must identify the similarly situated entities and
circumstances to “a high degree.” Rectrix Aerodrome Ctrs., Inc. v. Barnstable Mun. Airport
Comm’n, 610 F.3d 8, 16 (1st Cir. 2010).
Knox must “first identify related specific instances where persons situated similarly in all
relevant respects were treated differently, instances which have the capacity to demonstrate that
[he was] singled . . . out for unlawful oppression.” Buchanan v. Maine, 469 F.3d 158, 178 (1st
Cir. 2006) (emphasis in original). Knox “must show that the parties with whom [he sought] to
be compared have engaged in the same activity vis-a-vis the government entity without such
distinguishing or mitigating circumstances as would render the comparison inutile.” CordiAllen, 494 F.3d at 251.
Here, Knox’s placement on the second floor was supported by the recommendation of his
treatment providers. 175 While Knox argues that his comprehensive evaluation should have been
completed prior to such placement, he provides no evidence that the treatment recommendation
at the time was erroneous or discriminatory. In addition, there is no evidence of record
pertaining to similarly situated individuals – namely wheelchair-bound inmates who required
similar treatment to Knox, and how they were treated in terms of housing and therapy placement.

175

FHS SOMF ¶ 61.
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While there is passing reference to wheelchair-bound or otherwise mobility-limited inmates, 176
there is no evidence of their treatment needs. Accordingly, no reasonable jury could conclude
that Knox’s placement on the second floor lacked any rational penological objective or that he
was treated differently from similarly situated individuals. For that reason, summary judgment
should be granted to the individual Defendants with respect to Count 7.
4. Procedural Due Process (Count 8)
Knox argues that he has a liberty and property interest in DOC granting his grievances
with respect to placement on the second floor. He further argues that he was owed “deliberate
consideration”, Amended Compl. ¶ 135, and the Defendants’ “perfunctory denial” of his
grievances regarding his placement violates the procedural due process clause. 177 Docket No.
134 at 13. This Court disagrees.
A procedural due process claim applies only where there is a deprivation of interests
encompassed by the Fourteenth Amendment’s protection of liberty and property. Bd. of Regents
of State Colls. v. Roth, 408 U.S. 564, 569 (1972). Specifically, under the Fourteenth
Amendment, procedural due process requires that there be notice and opportunity for a hearing
before a person is deprived by state action of a protected interest. Logan v. Zimmerman Brush
Co., 455 U.S. 422, 428 (1982); Fuentes v. Shevin, 407 U.S. 67, 96-97 (1972). Such interests are
not created by the Constitution, but are defined by existing rules or understandings that stem
from an independent source, such as state law. Roth, 408 U.S. at 577. To have a protected

176

Knox Tr. 77:20-22, 78:8-16. FHS SOMF ¶¶ 111, 127-28.
At oral argument, Knox clarified that he is not pursuing any claims pursuant to Articles 1, 10
and 12 of the Massachusetts Constitution. Accordingly, summary judgment should be granted to
the Defendants on Count 9.
37

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interest in a benefit, a person must have a legitimate claim of entitlement to it. Id. It is not
enough to have an abstract need or desire for it, or even a unilateral expectation of it. Id.
“The failure to respond to a grievance to the satisfaction of the inmate does not, standing
alone, implicate a liberty interest.” Hicks v. Ryan, No. 13-10709-RGS, 2013 WL 1992679, at
*10 (D. Mass. May 9, 2013). Consequently, courts have repeatedly denied Section 1983 claims
arising from the alleged failure to properly investigate prisoner grievances. See Leavitt v. Allen,
No. 94-1641, 1995 WL 44530, at *2 (1st Cir. Feb. 3, 1995) (unpublished table decision); Hicks,
2013 WL 1992679, at *10; see also Stringer v. Bureau of Prisons, 145 Fed. Appx. 751, 753 (3d
Cir. 2005). In addition, an inmate does not have a liberty interest in being housed or classified in
a particular facility. Meachum, 427 U.S. at 225. As prison inmates do not have a liberty interest
in where they are housed, transfers within the prison are well within the discretion of prison
officials and inmates are not constitutionally protected from such transfers. See Olim v.
Wakinekona, 461 U.S. 238, 244-45 (1983). There is also no liberty interest in a particular prison
program. See Moore v. Weeden, No. 09-434 S, 2010 WL 737655, at * 4 (D.R.I. Mar. 1, 2010)
(participation in rehabilitative sex offender treatment does not implicate the Fourteenth
Amendment).
Knox does not have a constitutionally protected interest either in the way the grievance
procedure was handled or in his placement in a particular program or unit of his choice. In
addition, even if he did have a protected interest, he has produced no evidence that the procedure
was faulty in any way. Rather, he appears to disagree with the result. Therefore, summary
judgment should be granted for the individual defendants for this reason on Count 8. 178

178

The DOC individual defendants, but not Julius, have raised the affirmative defense of
qualified immunity. Docket No. 123 at 16-17. Because Knox has failed to establish a
constitutional violation on part of the DOC individual defendants, however, the Court does not
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IV.

RECOMMENDATION
For the foregoing reasons, the Court recommends that the District Judge assigned to this

case grant the Defendants’ respective motions for summary judgment in their entirety and deny
Knox’s motion for partial summary judgment.
V.

REVIEW BY DISTRICT JUDGE
The parties are hereby advised that under the provisions of Fed. R. Civ. P. 72(b), any

party who objects to these proposed findings and recommendations must file specific written
objections thereto with the Clerk of this Court within 14 days of the party’s receipt of this Report
and Recommendation. The written objections must specifically identify the portion of the
proposed findings, recommendations, or report to which objection is made, and the basis for such
objections. See Fed. R. Civ. P. 72. The parties are further advised that the United States Court
of Appeals for this Circuit has repeatedly indicated that failure to comply with Fed. R. Civ. P.
72(b) will preclude further appellate review of the District Court’s order based on this Report
and Recommendation. See Phinney v. Wentworth Douglas Hosp., 199 F.3d 1 (1st Cir. 1999);
Sunview Condo. Ass’n v. Flexel Int’l, Ltd., 116 F.3d 962 (1st Cir. 1997); Pagano v. Frank, 983
F.2d 343 (1st Cir. 1993).

/s/ Jennifer C. Boal
JENNIFER C. BOAL
United States Magistrate Judge

need to address their qualified immunity argument. Ruiz-Casillas v. Camacho-Morales, 415
F.3d 127, 134 (1st Cir. 2005) (“The failure of appellant’s constitutional claims obviates our need
to address the qualified immunity defense: we have found no constitutional violation.”).
39