Latimore v. Suffolk County House of Correction et al

Filing 293

Magistrate Judge Marianne B. Bowler: MEMORANDUM AND ORDER entered granting 242 Motion for Summary Judgment. (Belpedio, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JASON LATIMORE,
Plaintiff,
v.

CIVIL ACTION NO.
14-13378-MBB

SHERIFF STEVEN TOMPKINS, KENNETH TROTMAN,
RYAN DORGAN, ROSEANNE BARROWS, RICHARD
LIBBY, PAULA SULLIVAN, and DANIEL ALLEN,
Defendants.
MEMORANDUM AND ORDER RE:
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(DOCKET ENTRY # 242)
December 3, 2021
BOWLER, U.S.M.J.
Pending before this court is a motion for summary judgment
filed by defendants Kenneth Trotman (“Trotman”), Ryan Dorgan
(“Dorgan”), Roseanne Barrows (“Barrows”), Richard Libby
(“Libby”), Paula Sullivan (“Sullivan”), and Daniel Allen
(“Allen”) (collectively “defendants”).

(Docket Entry # 242).

Plaintiff Jason Latimore (“plaintiff”) opposes the motion.
(Docket Entry # 252).
PROCEDURAL BACKGROUND
In August 2014, plaintiff filed a pro se complaint against
the Suffolk County House of Correction (“SCHOC”) and two John

Doe Correctional Officers.1

(Docket Entry # 1).

SCHOC moved to

dismiss the complaint under Fed R. Civ. P. 12(b)(6) (“Rule
12(b)(6)”) (Docket Entry # 9), which this court allowed (Docket
Entry # 24) on December 1, 2015.2

Docketed one day after the

dismissal but filed prior to the dismissal under the mailbox
rule, plaintiff moved to amend the original complaint and filed
a proposed amended complaint.

(Docket Entry ## 25, 25-1).

On

January 8, 2016, this court allowed the motion to amend and
explicitly advised plaintiff that, “An amended complaint
supersedes an original complaint, Brait Builders Corp. v. Mass.,
Div. of Cap. Asset Mgt., 644 F.3d 5, 9 (1st Cir. 2011), and the
defendants in this action are therefore only Kenneth Trotman and
Ryan Dorgan.”

On March 3, 2016, this court ordered (Docket

Entry # 35) the clerk to issue summonses to the defendants named
in the amended complaint (Trotman and Dorgan) (Docket Entry #
37), and they both waived service (Docket Entry ## 42, 43).

At

an October 25, 2016 hearing, this court allowed plaintiff leave
to file an amended complaint on or before November 15, 2016, as
“the operative complaint.”

(Docket Entry # 92).

Plaintiff

As indicated in an October 8, 2015 Order, SCHOC identified the
two “John Doe” Correctional Officers as Trotman and Dorgan in a
September 16, 2015 response (Docket Entry # 17) to plaintiff’s
motion to compel (Docket Entry # 14).
2
Previously, plaintiff and SCHOC consented to proceed before
this court. (Docket Entry ## 7, 15).
1

2

filed the operative complaint on November 15, 2016.

(Docket

Entry # 100).
As set out in a subsequent Memorandum and Order (Docket
Entry # 157, pp. 2-3),3 this operative complaint sets out the
following claims:

(1) conversion against Trotman, Dorgan, and

Barrows (“Count I”); (2) violations of the First Amendment under
42 U.S.C. § 1983 (“section 1983”) against Trotman and Dorgan
(“Count II”); (3) a section 1983 deprivation of counsel in
violation of the Sixth Amendment against Trotman and Dorgan
(“Count III”); (4) a section 1983 deprivation of due process in
violation of the Fourteenth Amendment against Trotman, Dorgan,
and Barrows (“Count IV”); (5) violations of the Massachusetts
Civil Rights Act, section 11I of Massachusetts General Laws
chapter 12 (“MCRA”), against Trotman, Dorgan, and Barrows for a
May 29, 2014 incident and Trotman for an August 7, 2014 incident
(“Count V”) (Docket Entry # 100, ¶¶ 68-73) (Docket Entry # 157,
pp. 2, 12-15); (6) intentional infliction of emotional distress
(“IIED”) against Trotman, Dorgan, and Barrows (“Count VI”); (7)
a section 1983 claim of improper supervision resulting in the
destruction of legal materials in violation of the Fourteenth
Amendment against Barrows (“Count VII”); (8) a failure to train,
supervise, and discipline as well as fostering a hostile work

Page numbers refer to the page number in the upper righthand
corner of the docketed filing.
3

3

environment resulting in violations of the Eighth and Fourteenth
Amendments against defendant Sheriff Steven Tompkins
(“Tompkins”) (“Count VIII”); and (9) section 1983 claims of
breaches of equal protection and substantive due process under
the Fourteenth Amendment and cruel and unusual punishment under
the Eighth Amendment against Trotman, Dorgan, and Barrows, and,
as to Tompkins, the Eighth Amendment (“Count IX”).

(Docket

Entry # 100) (Docket Entry # 157, pp. 2-3).
On December 23, 2016, Trotman, Dorgan, Barrows, and
Tompkins filed a Rule 12(b)(6) motion to dismiss all claims made
against them in their official capacity.

(Docket Entry # 105).

In an opposition to the motion to dismiss, plaintiff conceded
that such claims should be dismissed.
2).

(Docket Entry # 108, p.

Trotman, Dorgan, and Barrows further moved to dismiss Count

V alleging the MCRA violations, Count VI setting out the IIED
claim, and Count IX with respect to the alleged equal protection
violation.

(Docket Entry ## 105, 106).

Tompkins sought to

dismiss “all counts” asserted against him, i.e., Counts VIII and
IX, because he did not participate in the underlying incidents
and respondeat superior does not apply to section 1983 claims.
(Docket Entry # 106).

4

On August 23, 2017, this court allowed in part and denied
in part the motion (Docket Entry # 105) to dismiss.4
Entry # 157).

(Docket

In particular, this court dismissed all claims

against Trotman, Dorgan, Barrows, and Tompkins in their official
capacities; Count V (the MCRA claim) against Barrows and Dorgan;
Count V against Trotman as it relates to the May 29, 2014
incident against Trotman;5 Count VI (the IIED claim) as it
relates to the August 7, 2014 incident; Count XIII against
Tompkins; the equal protection claims in Count IX; and the
Eighth Amendment claim in Count IX against Tompkins.

(Docket

Entry # 157, p. 28).
The Memorandum and Order on the motion to dismiss
comprehensively sets out the factual allegations in the
operative complaint.

(Docket Entry # 157, pp. 5-11).

The

operative complaint depicts the events regarding the May 29,
2014 incident, which resulted in missing or destroyed legal
materials and personal property, and the related grievances.
(Docket Entry # 100).

It also describes the August 7, 2014

incident and the missing or destroyed additional legal
materials.

(Docket Entry # 100).

The conclusion includes a scrivener’s error referencing Docket
Entry # “28” as opposed to “105.”
5
At this juncture, therefore, Count V only survived against
Trotman based on the August 7, 2014 incident.
4

5

In October 2017, this court allowed plaintiff’s motion for
leave to amend the complaint to include Sullivan and Allen and
denied the motion insofar as it sought to add other defendants
and additional causes of action.

(Docket Entry # 174).

Significantly, the Memorandum and Order rejected plaintiff’s
attempt to add additional facts to the operative complaint and
characterized the May 2014 and the August 2014 incidents as “the
gravamen of the existing complaint (Docket Entry # 100).”
(Docket Entry # 174, pp. 4, 10).6

In no uncertain terms, the

Memorandum and Order also instructed plaintiff to file a

In opposing summary judgment, plaintiff asserts “[t]here are
numerous incidents which are the subject of this lawsuit and
these incidents[’] relevance is not limited to the May 29, 2014
and August 7, 2014 incidents.” (Docket Entry # 252, p. 1).
While these incidents encompass related grievances and facts,
including but not limited to plaintiff’s June 2014 discovery of
the missing or destroyed legal materials and property, the
gravamen of the governing complaint (Docket Entry ## 100, 185)
remains these two incidents. Plaintiff’s attempt to broaden the
claims beyond this is both unavailing and disingenuous. That
said, the short statement of facts as to Sullivan and Allen
appropriately adds the related facts as to Sullivan and Allen
regarding an April 3, 2014 grievance, which led to the alleged
retaliation in violation of the First Amendment. (Docket Entry
# 185, pp. 3-4).
The operative complaint revolves around the May and August
2014 incidents. (Docket Entry # 100). The August 2017
Memorandum and Order sets out the facts regarding these two
incidents in adjudicating a Fed. R. Civ. P. 12(b)(6) motion.
(Docket Entry # 157, pp. 5-11). Notably, this court denied the
motion to amend to include additional facts (except for allowing
the short statement of facts as to Sullivan and Allen) and to
include Jonathan Spinale, Zachary Clark, Sergeant Depina,
Stephanie Wright (“Wright”), Robert Martin, and Yolanda Smith as
additional defendants. (Docket Entry # 174).
6

6

statement of facts followed by an identification of the existing
causes of action he seeks to bring against Sullivan and Allen:
With respect to Sullivan and Allen, plaintiff shall file a
short statement of the facts that provide the basis for
liability against Sullivan and Allen followed by
identifying the causes of action in the existing complaint
that plaintiff seeks to bring against Sullivan and Allen.
This is not an opportunity to add new causes of action
against Sullivan and Allen at this late date in these
proceedings . . . [T]his court is denying plaintiff leave
to amend the complaint to include new causes of action
against Sullivan and Allen.
. . . Together with the existing complaint (Docket Entry #
100), the statement shall constitute the operative
complaint.
(Docket Entry # 174, p. 7) (emphasis in original).7
On December 13, 2017, the parties filed stipulations of
dismissal for Count I against Barrows (Docket Entry # 178) and
Count V against Trotman (Docket Entry # 179).

On December 27,

2017, plaintiff filed a motion to substitute Libby for Trotman
in Count V (the MCRA claim) in light of defendants’ counsel’s
identification of Libby as “associated with” the August 7, 2014
incident.

(Docket Entry # 184).

In a series of rulings on May

15, 2018, this court: reiterated that the amended complaint
(Docket Entry # 100) and the short statement of facts (Docket

With respect to Count II, the statement plaintiff filed sets
out a First Amendment claim against Sullivan and “Allen for
retaliation” based on their “retaliatory animus” and does not
include a claim against Sullivan and Allen on the additional
First Amendment claim in Count II for freedom of speech.
(Docket Entry # 185).
7

7

Entry # 185) would comprise “the operative complaint in this
case”;8 allowed the motion to substitute Libby for Trotman in the
MCRA claim (Docket Entry # 184);9 and permitted a limited
reopening of discovery in relation to Libby.
In light of the foregoing, the claims in the governing
complaint against defendants are:

(1) the conversion of

property claim against Trotman, Dorgan, and Sullivan (Count I);
(2) section 1983 First Amendment retaliation claims against
Trotman, Dorgan, Sullivan, and Allen, and a section 1983 First
Amendment free speech claim against Trotman and Dorgan (Count
II);10 (3) a section 1983 Sixth Amendment claim for deprivation
of counsel against Trotman, Dorgan, and Sullivan based on the
alleged destruction of legal materials (Count III); (4) section

To avoid confusion, the prior operative complaint (Docket
Entry # 100) together with the December 27, 2017 statement of
facts and claims (Docket Entry # 185) are referred to as “the
governing complaint.”
9
The prior dismissal of the MCRA claim against Trotman based on
the May 2014 incident (Docket Entry # 157) limits the MCRA claim
against Libby to the August 2014 incident and related facts.
10
Count II in the governing complaint sets out two First
Amendment claims: (1) the first for “denial of freedom of
speech” by the confiscation and/or destruction of “intellectual
property” consisting of “music lyrics, . . . a screenplay, . . .
books,” and “business plans” by Trotman and Dorgan (Docket Entry
# 100, ¶¶ 31, 49, 51); and (2) the second for “retaliation for
plaintiff’s petition of redress of grievance” with a focus on
events taking place on May 29, 2014 (Docket Entry # 100, ¶¶ 24,
49, 50) against Trotman, Dorgan, Sullivan, and Allen. See fn. 7
supra. Plaintiff’s summary judgment arguments on the freedom of
speech claim address the intellectual property items. (Docket
Entry # 252, pp. 65-66, 69).
8

8

1983 Fourteenth Amendment due process violations against
Trotman, Dorgan, and Barrows (Count IV); (5) MCRA violations
against Sullivan and Allen for the May 29, 2014 incident, and an
MCRA violation against Libby for the August 7, 2014 cell search
(Count V); (6) IIED claims against Barrows, Trotman, Dorgan,
Allen, and Sullivan based on the May 29, 2014 incident (Count
VI); (7) a section 1983 Fourteenth Amendment claim against
Barrows and Sullivan for failure to supervise the May 2014
inventory of plaintiff’s property (Count VII); and (8) section
1983 Fourteenth Amendment substantive due process and Eighth
Amendment violations against Trotman, Dorgan, Barrows, Allen,
and Sullivan for “cruel and unusual punishment” based on the
alleged intentional disposal of legal materials and property
(Count IX).11

Although the claims set out in the short statement of facts
and claims as to Sullivan and Allen do not refer to Allen by
name in Counts VI and IX, and do not refer to Sullivan by name
in Count VI, the claims state these two counts as brought
against “all defendants.” (Docket Entry # 185, p. 5). As such
and liberally construing the filing, Counts VI and IX encompass
the above-noted claims against Sullivan and Allen. The August
2017 Memorandum and Order dismissed Count VIII against Tompkins.
(Docket Entry # 157).
Count IX also includes a Fourteenth Amendment due process
claim based on the disposal of plaintiff’s legal materials,
which impaired plaintiff’s defenses in three criminal cases.
(Docket Entry # 100, ¶¶ 97-100); (Docket Entry # 157, p. 3)
(summarizing Count IX as “breaches of equal protection and due
process and acts of cruel and unusual punishment in violation of
the Eighth and Fourteenth Amendments”); (Docket Entry # 264).
Although Count IX refers to “Procedural and Substantive Due
11

9

In connection with the pending summary judgment motion,
defendants filed a motion to strike plaintiff’s LR. 56.1
statement of material facts.

(Docket Entry # 258).

A separate

Memorandum and Order (Docket Entry # 271) addresses this motion
and adjudicates what facts are stricken from the facts in the
summary judgment record for purposes of this opinion.
STANDARD OF REVIEW
Summary judgment is designed “to ‘pierce the boilerplate of
the pleadings and assay the parties’ proof in order to determine
whether trial is actually required.’”

Tobin v. Fed. Express

Corp., 775 F.3d 448, 450 (1st Cir. 2014) (internal citations
omitted).

It 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.”
56(a).

Fed. R. Civ. P.

It is inappropriate “if the record is sufficiently open-

ended to permit a rational factfinder to resolve a material

Process,” the factual description of the count does not target
any improper procedure. (Docket Entry # 100, ¶¶ 96-101).
Rather, it challenges the disposal of legal materials which
impaired plaintiff’s defenses in three criminal cases. See
Cortes-Rivera v. Dep’t of Corr. and Rehab. of Commonwealth of
Puerto Rico, 626 F.3d 21, 28 (1st Cir. 2010) (examining “plain
language” of complaint and its structure to determine if it
raised claim); see also Colón-Fontánez v. Municipality of San
Juan, 660 F.3d 17, 45 (1st Cir. 2011) (courts not required to
make determinations on claims “merely insinuated rather than
actually articulated”). As such, it raises a substantive, as
opposed to a procedural, due process claim and an Eighth
Amendment claim.
10

factual dispute in favor of either side.”

Pierce v. Cotuit Fire

Dist., 741 F.3d 295, 301 (1st Cir. 2014).
“An issue is ‘genuine’ when a rational factfinder could
resolve it [in] either direction,” and a “fact is ‘material’
when its (non)existence could change a case’s outcome.”

Mu v.

Omni Hotels Mgmt. Corp., 882 F.3d 1, 5 (1st Cir. 2018) (internal
citation omitted); accord Green Mountain Realty Corp. v.
Leonard, 750 F.3d 30, 38 (1st Cir. 2014).

Notably, “‘[a]

genuine issue of material fact “must be built on a solid
foundation -- a foundation constructed from materials of
evidentiary quality.”’”

Turner v. Wall, 2020 WL 5543935, at *1

(1st Cir. 2020) (quoting Perry v. Roy, 782 F.3d 73, 77–78 (1st
Cir. 2015)) (unpublished).

Where, as here, the nonmoving party

“‘would bear the burden of proof at trial,” he must show “‘a
trier of fact could reasonably resolve that issue in [his]
favor’” by “point[ing] to materials of evidentiary quality and
such materials must frame an issue of fact that is ‘more than
“merely colorable.”’”

Irobe v. United States Dep’t of Agric.,

890 F.3d 371, 377 (1st Cir. 2018) (internal citations omitted);
see Paul v. Murphy, 948 F.3d 42, 49 (1st Cir. 2020) (“nonmoving
party may ‘defeat a summary judgment motion by demonstrating,
through submissions of evidentiary quality, that a trialworthy
issue persists’”).
.
11

The record is viewed in favor of the nonmoving party, and
reasonable inferences are drawn in the nonmoving party’s favor.
See Garcia-Garcia v. Costco Wholesale Corp., 878 F.3d 411, 417
(1st Cir. 2017) (court examines “‘record in the light most
favorable to the nonmovant’ and must make ‘all reasonable
inferences in that party’s favor’”) (internal citations
omitted).

“‘“Conclusory allegations, improbable inferences, and

unsupported speculation”’” are ignored.
omitted).

Id. (internal citations

Where, as here, the governing complaint (Docket Entry

## 100, 185) is not verified, it does not serve as the
functional equivalent of an affidavit.

See Rivera-Rivera v.

Medina & Medina, Inc., 898 F.3d 77, 93 n.9 (1st Cir. 2018);
Sheinkopf v. Stone, 927 F.2d 1259, 1262-63 (1st Cir. 1991).
FACTUAL BACKGROUND
A.

Department Procedure Regarding Inmate Property and Unit

Changes
“Policy S403 describes the items an inmate receives upon
admission; items that may be purchased from canteen; and items
permitted in one’s cell” at SCHOC during the relevant time
period.

(Docket Entry # 244-9, p. 1, ¶ 3) (Docket Entry # 244-

10, pp. 3-4, ¶ IV(C)).

The policy allows an inmate to retain

property in his cell or room that, in total, does “not exceed
authorized quantities” or “an amount which can be” searched.
(Docket Entry # 244-10, p. 1, ¶ I(B)(1)).
12

Under the same

policy, an inmate cannot retain an amount of property that “may
present a fire” hazard in his cell or room.
244-10, p. 1, ¶ I(B)(1)).

(Docket Entry #

Materials “in excess of” the allowed

amount under Policy S403 are “considered ‘excess property’
and/or contraband and may be subject to confiscation” or subject
to storage.

(Docket Entry # 244-9, p. 1, ¶ 3) (Docket Entry #

244-10, pp. 3-4, ¶¶ IV(C)(2), V(A)(3), (6)-(7)).

Items that are

considered contraband include “items prohibited by law; not
issued by the facility and/or purchased through canteen; and
authorized items found in excess or altered from in its [or
their] original form.”

(Docket Entry # 244-9, p. 1, ¶ 4)

(Docket Entry # 244-10, p. 3, ¶ IV(C)).

An item considered

“[n]uisance contraband includes trash, wrappers, Styrofoam items
(cups/bowls), miscellaneous papers and unauthorized food items.”
(Docket Entry # 244-9, p. 1, ¶ 5).

Inmates can “keep written

materials (that includes legal paperwork), provided the quantity
does not exceed one cubic foot.”

(Docket Entry # 244-9, p. 1, ¶

6) (Docket Entry # 244-10, p. 3, ¶ IV(C)).

If the quantity does

exceed one cubic foot, Inmate Legal Services (“ILS”) will store
the inmate’s excess legal material.

(Docket Entry # 244-9, p.

1, ¶ 6) (Docket Entry # 244-10, p. 4, ¶ V(A)(6)-(7)).
When an inmate is moved to a segregation unit, “an inmate’s
property must be inventoried; a personal garment bag of
permitted items is gathered; additional personal property is
13

secured and stored; and nuisance contraband is disposed of.”
(Docket Entry # 244-3, p. 1, ¶ 4).

Under the process, two

designated SCHOC officers secure the inmate’s property,
inventory the property, and arrange for removal of the property
from the inmate’s cell.
V(F)).

(Docket Entry # 244-10, pp. 6-7, ¶

Under Policy S422, inmates assigned to segregation units

are permitted to have only “limited items” in their cells.
(Docket Entry # 244-9, pp. 1-2, ¶ 8) (Docket Entry # 244-11, p.
5, ¶ V(B)).

Property in excess of the permitted items is

“stored in the booking area until the inmate returns to a
general population or is released” from SCHOC custody.

(Docket

Entry # 244-9, p. 2, ¶ 9).
B.

May 29, 2014 Incident and Inventory of Plaintiff’s Property
Plaintiff was “incarcerated at the SCHOC from December 9,

2013 through August 8, 2014” (Docket Entry # 244-1, p. 1, ¶
2(a)) and acknowledges he was “serving a sentence at SCHOC”
(Docket Entry # 252, p. 39).

On April 3, 2014, plaintiff filed

a law library grievance regarding his status as a pro se inmate
in three pending criminal matters and the alleged lack of
availability to the SCHOC legal library while housed in
segregation.

(Docket Entry # 256, p. 1, ¶ 1) (Docket Entry #

252-1, p. 2).
As set forth in the grievance, plaintiff stated he “grieved
this issue” previously, which SCHOC ignored.
14

(Docket Entry #

252-1, p. 2).

In the April 3, 2014 grievance, plaintiff

asserted that additional law library hours were needed and
constitutionally required regardless of scheduling or
institutional rules.

(Docket Entry # 252-1, p. 2).

SCHOC

allegedly failed to provide an adequate amount of available time
slots to access the law library, according to the grievance.
(Docket Entry # 252-1, p. 2).

As a result, the grievance

requested “[m]andatory daily law library [time] for people with
open cases,” reinstatement of Friday law library hours, and the
hiring of “more or new staff” if needed.
p. 2).

(Docket Entry # 252-1,

SCHOC denied the grievance on the grounds that plaintiff

had access to legal mail and would “receive adequate access to
[the] law library” when he returned to the general population.
(Docket Entry # 252-1, p. 2).
A week later, on April 10, 2014, Sullivan filed a
disciplinary report against plaintiff.
p. 3).

(Docket Entry # 252-1,

In her report, Sullivan alleges that plaintiff “refused

to comply with posted unit regulations to be fully dressed when
exiting the 3-2-unit showers.”

(Docket Entry # 252-1, p. 3).

Sullivan further alleges that, when she ordered plaintiff to
“step behind the curtain,” he “began a brief debate, as he stood
in the dayroom in his underwear.”

(Docket Entry # 252-1, p. 3).

Sullivan describes this behavior as “defiantly challeng[ing]”
her authority because “inmates are advised daily to be in full
15

uniform especially in the presence of female staff.”
Entry # 252-1, p. 3).

(Docket

Sullivan also alleges in the disciplinary

report that plaintiff had “been warned in the past that this
disruptive behavior would not be tolerated.”
252-1, p. 3).

(Docket Entry #

Plaintiff pled “not guilty” to the alleged

misconduct and, during the disciplinary hearing, testified he
had no intention of exposing himself to Sullivan and was only
switching showers when “Sullivan came rushing over yelling” at
him.

(Docket Entry # 252-1, p. 4).

As a result of the charges,

plaintiff was denied canteen privileges until April 27, 2014,
and issued a written warning.

(Docket Entry # 252-1, p. 4).

On April 23, 2014, plaintiff filed a grievance alleging
that Sullivan “verbally assaulted” him.
p. 7).

(Docket Entry # 252-1,

The grievance requests that Sullivan be “punish[ed]” for

the behavior.

(Docket Entry # 252-1, p. 7).

SCHOC denied the

grievance due to plaintiff’s “disciplinary history of conflict
with staff” and the fact that no credible witness could verify
his claim.

(Docket Entry # 252-1, p. 7).

During the evening on April 23, 2014, Sullivan filed a
disciplinary report regarding plaintiff’s behavior.
Entry # 252-1, p. 5).

(Docket

According to Sullivan’s report, on April

23 she “observed [plaintiff] communicating with inmates in the
3-1 unit through the recreation deck door.”
252-1, p. 5).

(Docket Entry #

Sullivan alleges that when she ordered plaintiff
16

off the deck door, plaintiff continued his conversation and
“slowly and defiantly began to exit the area.”
252-1, p. 5).

(Docket Entry #

Sullivan also asserts in the grievance that when

she advised plaintiff that he would receive a disciplinary
report, plaintiff “began to protest[,] gaining the attention of
the inmate population by stating he was being targeted and
harassed by the staff.”

(Docket Entry # 252-1, p. 5).

Plaintiff once again pled “not guilty” to the allegations.
(Docket Entry # 252-1, p. 6).

In his testimony during a

disciplinary hearing, plaintiff stated that he was complying
with Sullivan’s orders to get off the recreation deck door and
that it was Sullivan’s conduct that was “causing a scene.”
(Docket Entry # 252-1, p. 6).

Plaintiff also acknowledged

saying he was “being targeted and harassed by the staff.”
(Docket Entry # 252-1, p. 6).

Plaintiff additionally testified

that Sullivan followed him back to his cell, screaming things
such as “‘this is my unit’” and “‘I[’]ll run it the way I
want.’”

(Docket Entry # 252-1, p. 6).

Sullivan also “slammed

the [cell] door,” according to plaintiff’s testimony.
Entry # 252-1, p. 6).

(Docket

As a result of the charges, SCHOC imposed

48 hours of “restricted movement” on plaintiff.
252-1, p. 6).

17

(Docket Entry #

On May 14, 2014, another incident took place, according to
plaintiff’s May 14, 2014 affidavit.12
86-88).

(Docket Entry # 252-1, pp.

Specifically, on May 14, plaintiff was preparing a meal

for himself and his cellmate which consisted of “5 bowls of
food.”

(Docket Entry # 252-1, p. 86).

When it was time for

plaintiff and his cellmate to collect their medicine, Sullivan
came to the door to let plaintiff out of his cell.
Entry # 252-1, p. 86).

(Docket

In the affidavit, plaintiff states that

Sullivan had been “observing [him] prep the food for the past
hour.”

(Docket Entry # 252-1, p. 86).

According to plaintiff,

Sullivan “observed [him] grabbing the 5 bowls to exit the cell
and slammed the door in [his] face.”
86).

(Docket Entry # 252-1, p.

She then “slammed the door a second time when [he] tried

to get the food again” and did the same to plaintiff’s cellmate
when he tried to grab the food.

(Docket Entry # 252-1, p. 86).

The affidavit also states that “[a]fter a struggle and
banging the door,” Sullivan let plaintiff and his cellmate out
for plaintiff’s medication and recreation.
1, p. 86).

(Docket Entry # 252-

Sullivan nevertheless ordered plaintiff to “lock in”

as soon as he got his medication “for no apparent reason” and
would not let him out of his cell to finish preparing his meal,
according to the affidavit.

(Docket Entry # 252-1, p. 86).

As

In a June 3, 2014 grievance, plaintiff depicts the incident
as taking place on May 7, 2014. (Docket Entry # 252-1, p. 11).
12

18

a result, plaintiff attests he was “forced to eat a half cooked
meal which [his] cellmate prepared [as plaintiff] pass[ed] the
food under the door for [his cellmate] to cook.”

(Docket Entry

# 252-1, p. 86).
Plaintiff’s affidavit also references instances of
mistreatment by Allen on May 25, 2014.13
p. 86).

(Docket Entry # 252-1,

Plaintiff states that on May 25, while waiting in a

medication line, he realized he left his identification in his
“daytime shirt.”

(Docket Entry # 252-1, p. 86).

As stated in

the affidavit, plaintiff was “profusely sweating” from a
basketball game he played prior to getting his medicine.
(Docket Entry # 252-1, p. 86).

After getting his identification

from his cell, plaintiff returned to the medication line.
(Docket Entry # 252-1, p. 86).

As also stated in the affidavit,

when he was at the front of the line, Allen ordered plaintiff to
“lock in” after he received his medication and informed him he
“was not coming out for the rest of the night.”
252-1, p. 86).

By affidavit, plaintiff states he had to shower

in his sink that evening as a result.
pp. 86-87).

(Docket Entry #

(Docket Entry # 252-1,

The affidavit depicts this treatment as “a re-

The affidavit is dated May 14, 2014, perhaps in error, and,
together with a motion to preserve evidence, docketed in
Massachusetts Superior Court (Suffolk County) on June 23, 2014.
(Docket Entry # 252-1, pp. 65, 84-88).
13

19

occurring theme,” and that Allen had locked plaintiff in his
“cell 5 or 6 times in 2 months.”

(Docket Entry # 252-1, p. 86).

On May 29, 2014, plaintiff “and a cellmate[] were assigned
to cell 3 in the 3-2 housing unit.”
2(b)).

(Docket Entry # 244-1, ¶

That day, the following defendants held the following

posts from 3:00 p.m. to 11:00 p.m.: (1) Barrows “was assigned as
a Building 3 Lieutenant” (Docket Entry # 244-2, ¶¶ 1-2); (2)
Sullivan was a “Sergeant assigned to the 3-2 housing unit”
(Docket Entry # 244-3, p. 1, ¶ 2); (3) Allen “was assigned as a
Building 3-2 unit officer” (Docket Entry # 244-4, ¶¶ 1-2); (4)
Dorgan “was assigned as a unit officer in the 3-4 unit” (Docket
Entry # 244-5, p. 1, ¶¶ 1-2); and (5) Trotman “was assigned as
the kitchen utility officer” (Docket Entry # 244-7, p. 1, ¶¶ 12).
On May 29, 2014, an inmate, referred to as “MC,” in cell 20
in the 3-2 housing unit was escorted out of the unit due to
disciplinary infractions and removed to segregation.

(Docket

Entry # 244-3, p. 1, ¶ 3) (Docket Entry # 244-4, ¶ 3).

Allen

collected “MC’s property . . . and placed [it] by the . . .
control panel for inventory.”
(Docket Entry # 244-4, ¶ 3).

(Docket Entry # 244-3, p. 1, ¶ 5)
On the same day, plaintiff was

also escorted out of the 3-2 unit because of disciplinary
infractions (Docket Entry # 244-4, ¶ 4) (Docket Entry # 244-9,
p. 1, ¶ 7) and “moved to the 1-4-2 segregation unit” (Docket
20

Entry # 244-1, ¶ 2(c)) (Docket Entry # 252-1, pp. 87, 91)
(Docket Entry # 244-9, p. 1, ¶ 7).14

(Docket Entry # 272, Ex.

13A).
As set out in plaintiff’s affidavits, on May 29 while
plaintiff was playing basketball with other inmates on the
recreation deck, a disruption in the rear of the 3-2 unit
dayroom interrupted their game.

(Docket Entry # 252-1, pp. 87,

91) (Docket Entry # 272, Ex. 13C).

Plaintiff and the other

inmates stopped their game and went to witness the disturbance
in the unit.

(Docket Entry # 252-1, pp. 87, 91).

avers that he was not wearing his uniform top.
252-1, pp. 87, 91).

Plaintiff

(Docket Entry #

He also states that “none” of the other

inmates who also left the recreation deck and entered “the unit
. . . had [their] uniform tops on,” whereas video footage shows
only a few inmates not wearing a blue top.
Ex. 13A).

(Docket Entry # 272,

Allen then came to the rear of the unit, yelling at

the inmates to disperse.

(Docket Entry # 252-1, pp. 87, 91).

Plaintiff “waived 5 fingers at [Allen]” and told him to “calm
down.”

(Docket Entry # 252-1, pp. 87, 91).

When the inmates

returned to their game, Allen yelled “Lock in.”

(Docket Entry #

Policy S430 requires that “[n]o inmate shall be placed in
disciplinary segregation . . . without being afforded a hearing
by the Disciplinary Office.” (Docket Entry # 252-1, p. 8). The
policy also prohibits “capricious or retaliatory” disciplinary
sanctions and “corporal punishment.” (Docket Entry # 252-1, p.
8).
14

21

252-1, pp. 87, 91).

When the inmates went to gather their

uniforms, Allen indicated the order was directed only at
plaintiff.

(Docket Entry # 252-1, pp. 87, 91).

Plaintiff

attests he was complying with Allen’s order and asking Allen
“‘why he wanted me to lock in,’” at which point Allen radioed
into the guards.

(Docket Entry # 252-1, pp. 87, 91).

On May 29, 2014, plaintiff was escorted to segregation and
received a disciplinary report and subsequent hearing.
Entry # 252-1, pp. 16-18, 87).

(Docket

In the disciplinary report,

Allen asserts that plaintiff did not comply when guards escorted
him out because he told Allen that he would not leave the
recreation deck.

(Docket Entry # 252-1, p. 16).

As alleged in

the disciplinary report, Allen describes that plaintiff ignored
subsequent orders by Allen before he radioed into a Special
Emergency Response Team (“SERT”) to have plaintiff removed.
(Docket Entry # 252-1, p. 16).
As indicated above, plaintiff was “escorted out of the unit
to 1-4-2 segregation unit.”

(Docket Entry # 252-1, pp. 87, 91)

(Docket Entry # 272, Ex. 13A).

Upon being placed in

segregation, plaintiff asked an unnamed guard to call Barrows
and request that she “oversee or assign a CO to inventory [his]
cell besides” Sullivan and Allen.
87, 91).

(Docket Entry # 252-1, pp.

Barrows assigned Dorgan to oversee the inventory.

(Docket Entry # 244-2, ¶ 2).

By the time Dorgan arrived,
22

Sullivan and Allen had already begun the process of inventorying
items in plaintiff’s cell.

(Docket Entry # 272, Ex. 13A).

Plaintiff’s cellmate in the 3-2 housing unit provided Sullivan
plaintiff’s property, which included a box of material or
papers.

(Docket Entry # 244-3, p. 1, ¶ 6) (Docket Entry # 272,

Ex. 13A).

Sullivan placed the box by a table.

(Docket Entry #

272, Ex. 13A).
Allen did not inventory plaintiff’s property, instead
focusing on “completing reports related to these inmates.”
(Docket Entry # 244-4, p. 1, ¶ 5) (Docket Entry # 272, Ex. 13A).
Video reflects him writing at a table.
13A).

(Docket Entry # 272, Ex.

Sullivan is seen inventorying various items (Docket Entry

# 272, Ex. 13A), and she attests she “focused on the inventory
of MC’s property” (Docket Entry # 244-3, p. 1, ¶ 8).

Sullivan

“did not read written or legal materials,” (Docket Entry # 2443, p. 2, ¶ 10), which video footage also indicates (Docket Entry
# 272, Ex. 13A).

Additionally, according to video footage,15

SCHOC cameras captured the May 29, 2014 events. (Docket
Entry # 244-14) (Docket Entry # 244-18). The inaudible video
footage from 8:00 p.m. to midnight are exhibits 13A, 13B, and
13C. (Docket Entry # 272). Defendants provided details of
camera angles and an institutional map indicating camera
placement. (Docket Entry # 244-18). This court accessed and
fully reviewed the video evidence (Docket Entry # 272, Ex. 13A13C) and views the facts “‘in the light depicted by [this] video
evidence.” O’Brien v. Town of Bellingham, 943 F.3d 514, 531
(1st Cir. 2019). An investigator assigned to the Sheriff’s
Investigative Division, who is familiar with an investigation by
15

23

Sullivan discarded small items into the trash.

(Docket Entry #

272, Ex. 13A) (Docket Entry # 244-3, p. 2, ¶ 10).

Due to the

camera angle and distance, the exact nature of the small items
Sullivan discarded is unclear, but there is no showing she threw
away plaintiff’s legal documents or plaintiff’s personal
property identified in a grievance as “yellow legal pads with
music lyrics,” one “yellow pad with a screenplay” for “a movie,”
one “yellow pad with a book,” and “business plans” (Docket Entry
# 252-1, p. 20).

(Docket Entry # 272, Ex. 13A).

In particular,

at 9:43 p.m., the video shows Sullivan picking up a single,
blank piece of white paper and discarding it into the trash.16

A

few minutes later in the video, she is seen placing manila

the Sheriff’s Investigative Division (“SID”) into plaintiff’s
purported loss of property, also reviewed the video recordings,
and he describes what the video shows occurred on May 29, 2014,
in an affidavit. (Docket Entry # 214-14). This court relies on
this affidavit only to the extent it identifies the individuals
in the inaudible video and the property as belonging to either
plaintiff or MC, which the inaudible video does not clarify and
to the extent consistent with affidavits based on personal
knowledge. (Docket Entry # 272, Ex. 13A). Otherwise, the
recitation of the inventory and the transport of the inventoried
material is based primarily on the video evidence and, to the
extent confirmed or to fill in gaps, the affidavits of Sullivan,
Trotman, and Dorgan based on their personal knowledge.
Plaintiff’s recitation of the events (Docket Entry # 256, ¶¶ 44101), to the extent not stricken from the record, is set out in
plaintiff’s LR. 56.1 statement. The unstricken paragraphs do
not change the outcome on any of the causes of action subject to
summary judgment.
16
Here again, the distance of the camera makes it difficult to
discern the exact nature of the document but the video does not
show the document constitutes “legal documents,” as plaintiff
contends.
24

envelopes with legal documents into a plastic bag.17

Trotman is

also seen helping Sullivan and putting manila envelopes into the
plastic bag.18

(Docket Entry # 272, Ex. 13A) (Docket Entry #

256, pp. 13-14, ¶¶ 79-80) (Docket Entry # 244-15, p. 3, ¶ 5).
As additionally shown in the video, Sullivan placed various
papers into the aforementioned box of plaintiff’s papers and
closed the lid.

(Docket Entry # 272, Ex. 13A) (Docket Entry #

244-3, p. 1, ¶¶ 6, 9).
Barrows was in the 3-2 housing unit for approximately ten
or 11 minutes and left the unit without carrying anything.
(Docket Entry # 272, Ex. 13A).

She is not seen assisting in the

inventory of plaintiff’s property, and she was not present
during the inventory of plaintiff’s property.

(Docket Entry #

272, Ex. 13A) (Docket Entry # 244-2, p. 1, ¶ 3).

Rather, as

indicated, Barrows asked “Dorgan and Trotman to assist in the
inventory of property belonging to [plaintiff] and inmate MC.”
(Docket Entry # 244-2, p. 1, ¶ 2).
In addition to Sullivan and Trotman, Dorgan participated in
the inventory.

(Docket Entry # 272, Ex. 13A) (Docket Entry #

See the next footnote.
Although the video does not show the contents of the manila
envelopes as containing legal documents or the plastic bag as
containing legal documents, the parties agree that Sullivan and
Trotman deposited the manila envelopes with the legal documents
into a single plastic bag and that Trotman placed the bag on the
cart. (Docket Entry # 256, pp. 13-14, ¶¶ 79-80) (Docket Entry #
244-15, p. 3, ¶ 5).
17
18

25

244-5, p. 1, ¶ 3).

A few minutes after Dorgan arrived, Trotman

entered the unit with a laundry cart.
13A).

(Docket Entry # 272, Ex.

Shortly thereafter, the video depicts Trotman and Dorgan

at one of the tables inventorying plaintiff’s property.

(Docket

Entry # 272, Ex. 13A) (Docket Entry # 244-5, p. 1, ¶ 3).

During

the inventory, Dorgan is seen writing on a piece of paper
(Docket Entry # 272, Ex. 13A), and he attests to completing an
Inventory Property Sheet (Docket Entry # 244-5, p. 1, ¶ 4)
(Docket Entry # 244-6).

The video does not show Trotman reading

documents (Docket Entry # 272, Ex. 13A), and he attests that he
“did not read [plaintiff’s] written or legal materials” (Docket
Entry # 244-7, p. 1, ¶ 5).

Trotman and Dorgan threw away small

items in the trash, and they aver they discarded only “nuisance
contraband” consisting of wastepaper items, trash, and napkins.19
(Docket Entry # 272, Ex. 13A) (Docket Entry # 244-5, p. 1, ¶ 5)
(Docket Entry # 244-7, p. 1, ¶ 5).

After Sullivan closed the

lid on plaintiff’s box of papers, Trotman put the bag with the

The video shows they threw away small items but the distance
of the camera precludes a precise identification of the items.
Plaintiff testified at his deposition that when looking at the
video surveillance, it is generally difficult to make out the
content of certain papers. (Docket Entry # 244-15, p. 10)
(Docket Entry # 244-16, pp. 3-4).
19

26

manila envelopes and the box of plaintiff’s papers onto the
cart.20

(Docket Entry # 272, Ex. 13A).

After completing the inventory of both plaintiff’s and MC’s
property, Dorgan left the unit with two bags to deliver to
plaintiff and MC, while Trotman left the unit with the laundry
cart containing MC’s and plaintiff’s property to store the
property, including the box of plaintiff’s documents and the
plastic bag with the manila envelopes.

(Docket Entry # 244-5,

p. 1, ¶ 6) (Docket Entry # 244-7, p. 1, ¶ 7) (Docket Entry #
244-3, p. 1, ¶ 9) (Docket Entry # 272, Ex. 13A-13C).

Dorgan and

Trotman exited the unit into a hallway, entered an elevator
together, and rode the elevator together.

(Docket Entry # 244-

5, p. 1, ¶ 6) (Docket Entry # 272, Ex. 13B).

Following the

elevator ride, Trotman went to the booking area to store the
property, while Dorgan went to the segregation unit housing
plaintiff and MC.

(Docket Entry # 244-7, p. 1, ¶ 7) (Docket

Entry # 244-5, p. 1, ¶ 6) (Docket Entry # 272, Ex. 13B, 13C).
Video shows Trotman entering the booking station area with
the cart.

(Docket Entry # 272, Ex. 13C).

A few minutes later,

he goes into the segregation property room with the cart.
(Docket Entry # 272, Ex. 13C).

He leaves the property room and

The parties agree that Trotman put the box with plaintiff’s
documents on the cart. (Docket Entry # 256, p. 14, ¶ 81)
(Docket Entry # 244-15, p. 3, ¶ 5).
20

27

the booking station, after depositing the cart near the
entrance, and returns to the booking area a few minutes later
and retrieves the cart, which appears empty of the box of
documents and the plastic bag.21

(Docket Entry # 272, Ex. 13B,

13C).
Dorgan proceeded to the segregation unit and delivered the
bag with plaintiff’s property to plaintiff and the other bag to
MC.

22

(Docket Entry # 272, Ex. 13B) (Docket Entry # 244-5, p.

1, ¶ 6).

Plaintiff’s bag included some legal materials.23

(Docket Entry # 272, Ex. 13B) (Docket Entry # 244-5, p. 1, ¶ 6).
After delivering plaintiff his bag, Dorgan “had no [further]
contact with [plaintiff’s] property.”
1, ¶ 6).

(Docket Entry # 244-5, p.

By affidavit, Sullivan, Dorgan, and Trotman attest

At an August 3, 2017 deposition, plaintiff testified he had
no evidence that Trotman handled his property after depositing
plaintiff’s belongings in storage. (Docket Entry # 244-15, pp.
1, 12-13).
22
The inventory sheet prepared by Dorgan for plaintiff’s
property includes “Misc: Legal/Mail.” (Docket Entry # 244-6).
23
By affidavit, plaintiff attests that Dorgan brought his
property to him in segregation on May 29, 2014, but that
“Legal/Mail” was “not delivered to me.” (Docket Entry # 252-1,
pp. 87, 92). In his August 3, 2017 deposition, however,
plaintiff testified to the contrary by stating that Dorgan
brought him “legal cases” in segregation and, in answer to a
question of whether he “[had] legal materials in that plastic
trash bag,” answered, “Yes, Ma’am.” (Docket Entry # 244-15, p.
5). Where, as here, a party provides “‘“clear answers to
unambiguous questions” in discovery, that party cannot “create a
conflict and resist summary judgment with an affidavit that is
clearly contradictory.”’” Escribano–Reyes v. Pro. Hepa
Certificate Corp., 817 F.3d 380, 386 (1st Cir. 2016) (citations
omitted).
21

28

they did not destroy or confiscate any of plaintiff’s personal
belongings or legal materials.

(Docket Entry # 244-3, p. 2, ¶

11) (Docket Entry # 244-5, p. 1, ¶ 5) (Docket Entry # 244-7, p.
1, ¶ 6).
A June 2, 2014 disciplinary hearing summary reflects that
plaintiff pled “not guilty” to the May 29 events depicted in the
aforementioned May 29 disciplinary report.
1, p. 18).

(Docket Entry # 252-

During the hearing, plaintiff testified that he did

not ignore Allen’s orders and was unaware that Allen was
speaking to him during the initial lock-in call.
# 252-1, p. 18).

(Docket Entry

Found guilty of certain charges, plaintiff

received five days isolation, time served, and three days
isolation time suspended for 30 days until July 1, 2014.
(Docket Entry # 252-1, p. 18) (Docket Entry # 252-1, pp. 87,
91).
On June 2, 2014, plaintiff was released from segregation,
and on June 3, 2014, “Sgt. Depina” brought plaintiff his
property except for the W.B. Mason box of printed legal cases
and assorted canteen items.

(Docket Entry # 252-1, pp. 87, 92)

(Docket Entry # 244-15, pp. 6-7) (Docket Entry # 244-6) (Docket
Entry # 244-1, ¶ 2(d)).

Plaintiff alleges that his legal work

and personal property were confiscated and destroyed during the
May 29, 2014 inventory.

(Docket Entry # 252-1, p. 12).

Despite

submitting grievances regarding the confiscation of the W.B.
29

Mason box of printed legal cases and the assorted canteen items,
plaintiff claims he “received no response” to the grievances as
of July 16, 2014.

(Docket Entry # 252-1, p. 92).

Plaintiff’s

affidavits evidence that on June 3, 2014 (Docket Entry # 244-15,
pp. 6-7) (Docket Entry # 244-6), Sergeant Depina did not deliver
the W.B. Mason box of printed legal cases to plaintiff.
Entry # 252-1, pp. 87, 92).

(Docket

Notably, the unstricken portions of

plaintiff’s LR. 56.1 statement do not controvert the paragraph
in defendants’ LR. 56.1 statement that Correctional Officer
Michael Misci (“Misci”) delivered a box of legal materials,
which Misci describes as a paper copy box, to plaintiff in late
June 2014.24

(Docket Entry # 244, p. 9, ¶ 45) (citing Docket

Entry # 244-12); (Docket Entry # 244-12); (Docket Entry # 244-9,
p. 2, ¶ 10).

Rather, at best, plaintiff’s LR. 56.1 statement of

disputed facts refers to Misci’s delivery in stricken paragraphs
(Docket Entry # 256, pp. 8, 23, ¶¶ 36, 131), which cite a
grievance and disciplinary report, see Bennett v. Saint-Gobain
Corp., 507 F.3d 23, 28 (1st Cir. 2007), as opposed to materials
of evidentiary quality showing that Misci did not deliver the
box of missing legal materials to plaintiff.25

See n.60.

The only reasonable inference is that the paper copy box
Misci delivered was the W.B. Mason box of legal material.
25
Plaintiff’s affidavits and deposition only reflect that when
Sergeant Depina brought plaintiff his property from booking on
June 3, 2014, upon his release, Sergeant Depina did not deliver
24

30

Separately, during the week of July 14, 2014, Corporal
Stephanie Wright (“Wright”) of SCSD cleaned the segregation
property room and found “a property bag with manila envelopes
and what appears to be legal paperwork belonging to [plaintiff]”
in the segregation property room.26

(Docket entry # 244-13).

Previously, on or about July 1, 2014, ILS attorney Robert Martin
(“Attorney Martin”) checked various locations for plaintiff’s
legal papers, including the segregation property room, without
success.

(Docket Entry # 252-1, p. 27).

On July 22, 2014, ILS

paralegal Renee McNeil (“Paralegal McNeil”) retrieved the legal
materials from Wright and stored these excess materials in the
law library.”27

(Docket Entry # 244-15, pp. 16-17) (Docket Entry

# 252-1, p. 32) (Docket Entry # 244-13) (Docket Entry # 244-9,
p. 2, ¶ 10) (Docket Entry # 244-22, p. 2, ¶ 9).

On the same

day, plaintiff “was notified that his legal papers were secured
in the law library.”

(Docket Entry # 244-22, p. 2, ¶ 9) (Docket

Entry # 252-1, p. 32).

As stated in plaintiff’s affidavits,

the W.B. Mason box of printed legal cases and assorted canteen
items. (Docket Entry # 252-1, pp. 87, 92) (Docket Entry # 24415, pp. 6-7) (Docket Entry # 244-6).
26
As previously noted, Trotman entered the segregation
property room on May 29, 2014, with the cart with the bag
containing manila envelopes and video footage shows the cart
empty of the bag and the box a short time later.
27
This took place after plaintiff signed his affidavits and
filed a “Motion to Inform [the] Court” about the confiscation of
his “legal materials” in Massachusetts Superior Court (Suffolk
County) (Docket Entry # 252-1, pp. 89-90) (Docket Entry # 24424, p. 22).
31

plaintiff had three open cases in which he was representing
himself pro se.28

(Docket Entry # 251-1, pp. 87, 92).

On June 3, 2014, plaintiff filed the grievance regarding
Sullivan’s perceived mistreatment of slamming the cell door in
his face.29

(Docket Entry # 252-1, p. 11).

Based on the May

2014 incident, plaintiff requested in the grievance that
“Sullivan be fired” and that the internal affairs department
investigate.

(Docket Entry # 252-1, p. 11).

The Institutional

Grievance Coordinator denied the grievance because it was “over
30 days old.”

(Docket Entry # 252-1, p. 11).

On June 3, 2014, plaintiff filed a separate grievance
regarding his perceived mistreatment during the May 25 incident.

In the affidavits, plaintiff expresses an additional
conclusory and subjective belief that he is “unable to defend
[himself] in any further court proceeding as a result of this
destruction maliciously of my property” or “proceed with any
meaningful presentation of the facts and issues of [his] case.”
(Docket Entry # 252-1, pp. 87, 92). “[U]nsupported, speculative
assertions,” and conclusory statements in an affidavit submitted
in opposition to summary judgment do not create a genuine or a
material fact sufficient to warrant proceeding to trial. Garmon
v. Nat’l. R.R. Passenger Corp., 844 F.3d 307, 315 (1st Cir.
2016); see Méndez-Aponte v. Bonilla, 645 F.3d 60, 68 (1st Cir.
2011). Likewise, statements that amount to mere unsupported
characterizations, personal opinions, or subjective beliefs do
not create a triable issue. Garcia-Garcia, 878 F.3d at 425
(plaintiff “provides no detail and no support other than his
subjective belief that he was being discriminated against by
Costco”); Quinones v. Buick, 436 F.3d 284, 290 (1st Cir. 2006)
(discounting plaintiff’s affidavit which, “like his deposition
testimony, reflects only Quinones’ subjective speculation and
suspicion that Barnes’ greater earnings” resulted “from
discrimination”).
29
See footnote 12 and related text.
28

32

(Docket Entry # 252-1, p. 15).

As alleged in the grievance,

plaintiff asserts that Allen disciplined him and targeted him
“on many occasions” “[a]t the request of Sgt. Sullivan.”
(Docket Entry # 252-1, p. 15).

The grievance requests “all

camera footage from May 25th, 2014 be preserved” and that SCHOC
“do whatever [it] deem[s] necessary to C.O. Allen.”
Entry # 252-1, p. 15).

(Docket

The Institutional Grievance Coordinator

denied the grievance on the ground that inmates “must have
[their] I.D. on . . . whenever [they] leave [their] cell.”
(Docket Entry # 252-1, p. 15).
On June 3, 2014, plaintiff filed another grievance, this
time relating to the May 29 incident.30
p. 19).

(Docket Entry # 252-1,

In this grievance, plaintiff recites the events that

led to Allen issuing the May 29, 2014 disciplinary report and
plaintiff’s placement in segregation until June 3.

The

grievance alleges that the confinement resulted in the
destruction of plaintiff’s legal materials, including “evidence
from 3 open cases,” as well as “music lyrics,” a screenplay,

The first line of the grievance identifies May 29, 2014 as
the date of the incident and the description of the facts in the
grievance relate to the events that took place on May 29, 2014.
This court assumes that the description’s additional reference
to the events as taking place on June 3, 2014 is a mistake.
(Docket Entry # 252-1, p. 19).
30

33

book(s), and “business plans.”31

(Docket Entry # 252-1, p. 19).

The Institutional Grievance Coordinator rejected the grievance
on the basis that plaintiff’s “own actions” on May 29 “cause[d]
the abusive behavior and created the situation.”

(Docket Entry

# 252-1, p. 19).
On June 4, 2014, plaintiff filed another grievance with
SCSD alleging that on May 29, 2014, Sullivan and Allen threw
away some of plaintiff’s property, including court cases,
written motions, and all of plaintiff’s legal work.
Entry # 252-1, p. 20).

(Docket

The grievance also complains about

Sullivan and Allen throwing away other items of plaintiff’s
property in plaintiff’s cell on May 29, 2014.
252-1, p. 20).

(Docket Entry #

These items consist of the three “yellow legal

pads with music lyrics,” one “yellow pad with a screenplay” for
“a movie,” one “yellow pad with a book,” and “business plans.”
(Docket Entry # 252-1, p. 20).

The Institutional Grievance

Coordinator “returned” the grievance because plaintiff “received
all property and items from [his] property bag” and because
plaintiff “signed the inventory sheet” describing the property
that was returned.

(Docket Entry # 252-1, p. 20).

The latter category of material corresponds to the
“intellectual property” identified in the governing complaint
that forms the basis for the First Amendment freedom of speech
or expression claim in Count II. (Docket Entry # 100, ¶¶ 31,
49, 51).
31

34

Similarly, in plaintiff’s June 8, 2014 appeal he reported
the alleged antagonistic behavior of Sullivan and Allen and once
again alleged his property had been thrown away.
# 252-1, p. 21).

(Docket Entry

The disciplinary hearing’s decision was

modified because “the situation could have been handled
informally” and because the video “did not support any
accusation of discrimination.”

(Docket Entry # 252-1, p. 21).

Plaintiff filed a classification appeal on June 18, 2014, of the
decision dated June 2, 2014, i.e., the decision regarding the
disciplinary charge based on the May 29, 2014 incident, and
other purported harassment by Sullivan and Allen.
# 252-1, pp. 18, 22).

(Docket Entry

The classification appeal was denied

because it was not “a disciplinary appeal, nor a forum for
[plaintiff] to negotiate for what [he] believe[d] [he]
suffered.”

(Docket Entry # 252-1, p. 22).

Further, the SID

investigation concluded that plaintiff’s “property was neither
lost, nor destroyed.”32

(Docket Entry # 244-14, p. 1, ¶¶ 1-4).

On June 2, 2014, plaintiff “was released from segregation and
moved to [the] 3-1 housing unit.”

(Docket Entry # 244-1, ¶

2(d)).

At his August 3, 2017 deposition, plaintiff testified there
was no evidence from the video surveillance that Trotman or
Dorgan physically destroyed his legal documents. (Docket Entry
# 244-15, pp. 8, 11-12, 14-15).
32

35

On June 17, 2014, plaintiff filed an appeal relating to the
April 2014 incident and disciplinary report lodged by “HOC
staff.”

(Docket Entry # 252-1, p. 23).

Plaintiff’s appeal was

denied on the ground that even if plaintiff was switching
showers, plaintiff was still required to “be fully dressed when
coming out of the shower.”

(Docket Entry # 252-1, p. 23).

On June 26, 2014, Correctional Officer E. Hestor (“Hestor”)
filed a disciplinary report against plaintiff relating to a
fight plaintiff had with his cellmate.
p. 28).

(Docket Entry # 252-1,

According to Hestor’s report, plaintiff and his

cellmate were “escorted out of the unit” after this altercation.
(Docket Entry # 252-1, p. 28).

Plaintiff filed a grievance

regarding this altercation on July 1, 2014.

(Docket Entry #

252-1, p. 29).
As stated in the July 2014 grievance, plaintiff alleges
that the June 26 fight between him and his cellmate was over the
fact that their “property was confused and a few belongings of
[plaintiff’s] ended up in [his cellmate’s] property bag or in
[segregation] with [his cellmate].”
29).

(Docket Entry # 252-1, p.

As a result, the grievance requests that “someone . . .

check [the] property bags” and locate plaintiff’s belongings.
(Docket Entry # 252-1, p. 29).

The belongings consist of an

“address book” and “2 books of stamps.”
p. 29).

(Docket Entry # 252-1,

The decision by the Institutional Grievance Coordinator
36

stated the plaintiff “[received] all property that was gathered
from [his] property bag.”

(Docket Entry # 252-1, p. 29).

The

Institutional Grievance Coordinator also explained that “the
property office [would] bring [plaintiff] another bag of manila
envelopes,” and his address book might be located inside.
(Docket Entry # 252-1, p. 29).
When asked about the loss of legal materials during his
August 3, 2017 deposition, plaintiff testified he “need[ed] to
prepare a suppression motion” and “a dismissal motion in the
next twenty days.”

(Docket Entry # 244-15, pp. 18, 21-22).

Plaintiff nevertheless acknowledged he was able to file motions
during this time period, did not miss a court date, and had
“access to [Attorney] Martin and a paralegal.”
244-15, p. 22).

(Docket Entry #

Plaintiff also had access to the law library.

(Docket Entry # 244-15, pp. 17-18, 22).

He further agreed that

he was “able to file motions on all of [his] criminal files.”
(Docket Entry # 244-15, pp. 22-23).

Defendants and plaintiff

agree that “[d]uring relevant time periods, [plaintiff] had
three pending criminal matters in Suffolk Superior Court: 1384
CR 10977 (“CR 10977); 1384 CR 11140; and 1484 CR 11124” (“CR
11124”).

(Docket Entry # 244, p. 9, ¶ 47) (Docket Entry # 256,

p. 28, ¶ 153) (Docket Entry ## 244-24 to 244-26) (Docket Entry #
252-1, pp. 87, 92).

Plaintiff was not arraigned in CR 11124,

37

however, until December 22, 2014.33
6-7).
C.

(Docket Entry # 244-26, pp.

(Docket Entry # 244-15, pp. 22-23).

Access to Legal Materials, Legal Services at SCHOC, and

Return of Legal Materials
At SCHOC, “[c]onsistent with Policy S480, inmates have
access to a law library, legal materials, typewriters (for pro
se inmates) and assistance from the ILS attorney or a person
trained in the law.”

(Docket Entry # 244-22, p. 1, ¶¶ 1-4)

(Docket Entry # 244-23).

When needed, “ILS and/ or the law

library store excess legal materials for inmates.”
Entry # 244-22, p. 1, ¶ 5).

(Docket

When plaintiff arrived at SCHOC in

2013, ILS stored his “excess legal materials in the law
library.”34

(Docket Entry # 244-22, pp. 1-2, ¶ 8).

“On April

11, 2014, ILS received legal materials belonging to
[plaintiff],” which were also “stored” and made “available for
[plaintiff].”

(Docket Entry # 244-22, p. 2, ¶ 9(a)).

“At all

times, [plaintiff] had access to all [of his] legal materials
stored by ILS” except during his temporary stay in segregation.
(Docket Entry # 244-22, pp. 1-2, ¶ 8) (emphasis added).

During

plaintiff’s incarceration at SCHOC, he was:

The discussion section includes additional facts relative to
plaintiff’s three open criminal prosecutions against him in
2014.
34
Excess materials “are these materials that exceed the size of
one cubic sized box.” (Docket Entry # 244-22, pp. 1-2, ¶ 8).
33

38

[A]fforded all services as outlined in Policy S480.
Specifically, ILS provided legal services, access to stored
legal documents, access to legal materials . . ., access to
copying, printing services; and legal aid in drafting
motions. [Plaintiff] regularly used the law library and
all services offered by ILS.35
(Docket Entry # 244-22, p. 1, ¶ 6).
While housed in segregation, plaintiff was still “afforded
ILS services, including the ability to ask ILS to provide him
access to stored legal materials held by ILS or secured in
booking storage.”
Entry # 244-11).

(Docket Entry # 244-22, p. 1, ¶ 7) (Docket
Additionally, while in segregation Dorgan

delivered the bag of plaintiff’s property, which contained legal
materials consisting of legal cases.
5).

(Docket Entry # 244-15, p.

On June 3, 2014, plaintiff received a box containing legal

materials from Sergeant Depina.

(Docket Entry # 244-6) (Docket

Entry # 252-1, pp. 87, 92) (Docket Entry # 244-15, pp. 6-7, 16).
Viewing the record in plaintiff’s favor and as previously noted,
the property Sergeant Depina delivered at that time did not
include the W.B. Mason box of printed legal cases.
Entry # 252-1, pp. 87, 92).

(Docket

In late June 2014, however, Misci

delivered the W.B. Mason “box of legal materials to [plaintiff]”
(Docket Entry # 244, p. 9, ¶ 45), which the non-stricken

At his August 3, 2017 deposition, plaintiff testified that
following the alleged loss of property, he had access to ILS and
the law library. (Docket Entry # 244-15, pp. 17-18).
35

39

portions of plaintiff’s LR. 56.1 statement do not controvert.
See LR. 56.1.
As also noted, in mid-July 2014, Wright found the
additional set of plaintiff’s legal materials in manila
envelopes in the segregation property room, which ILS picked up,
stored in the law library, and notified plaintiff of such on
July 22, 2014.

(Docket Entry # 244-9, p. 2, ¶ 10(b)) (Docket

Entry # 244-13) (Docket Entry # 244-22, p. 2, ¶ 9) (Docket Entry
# 244-15, p. 16) (Docket Entry # 252-1, p. 32) (Docket Entry #
244-22, p. 2, ¶ 9(b)).

Accordingly, plaintiff received the W.B.

Mason copy box of legal papers from Misci by late June 2014 and
was notified about the storage of legal papers, which consisted
of the manila envelopes containing legal paperwork, in the law
library on July 22, 2014.
The forgoing matters in the summary judgment record,
including Sullivan, Dorgan, and Trotman’s averments that they
did not destroy or confiscate plaintiff’s personal property or
legal materials (Docket Entry # 244-3, p. 2, ¶ 11) (Docket Entry
# 244-5, p. 1, ¶ 5) (Docket Entry # 244-7, p. 1, ¶ 6), establish
that plaintiff received the W.B. Mason copy box of legal papers
by late June 2014 and had access to all other legal papers
(including the manila envelopes with legal paperwork) stored in
the law library no later than July 22, 2014, and that the
foregoing defendants did not destroy or confiscate plaintiff’s
40

property on May 29, 2014.

The fact that plaintiff filed a

motion in CR 10977 on July 21, 2014, arguing or alleging the
destruction or confiscation (Docket Entry # 244-24, p. 22)
(Docket Entry # 252-1, pp. 89-90) does not give rise of a
genuinely disputed fact to the contrary.36

See generally Barrett

v. Lombardi, 239 F.3d 23, 27 (1st Cir. 2001) (allegations and
statements in legal memorandum are not adequate to forestall
summary judgment).
D.

Knowledge of Grievances
As of May 29, 2014, Barrows, Sullivan, Allen, and Trotman

“had no knowledge (a) that [plaintiff] had filed grievances; (b)
that [plaintiff] had pending criminal matters; or (c) that
[plaintiff . . .] was pro se.”

(Docket Entry # 244-2, ¶ 4)

(Docket Entry # 244-3, p. 2, ¶ 12) (Docket Entry # 244-4, ¶ 6)
(Docket Entry # 244-7, p. 1, ¶ 8).

As of May 29, 2014, Dorgan

“had no knowledge that [plaintiff] had filed grievances.”
(Docket Entry # 244-5, p. 1, ¶ 7).

As part of the SID

investigation regarding plaintiff’s “claimed loss of property of
May 29, 2014” (Docket Entry # 244-14, p. 1, ¶ 2), SID
investigators interviewed Sullivan and Allen.

During her

interview, Sullivan described plaintiff as a “litigious type of

The accompanying affidavit is dated July 16 and notarized on
July 18, 2014 (Docket Entry # 252-1, p. 92), prior to the July
22, 2014 notification.
36

41

inmate.”

(Docket Entry # 253, Audio Compact Disc of SID

Interviews).

She further stated she could not make an agreement

with plaintiff to, for example, lose an hour of recreation time
in lieu of receiving a disciplinary report as he “seemed . . .
the type of person that needed” to “grieve” the matter.
Entry # 253, Audio Compact Disc of SID Interviews).

(Docket

During the

interview, she also stated that she “did not know” plaintiff had
filed grievances against her.

(Docket Entry # 253, Audio

Compact Disc of SID Interviews).
E.

SCHOC Grievance Policy
Starting in 2014, Inmate Grievance Policy “S-491 [was] in

effect.”

(Docket Entry # 244-27, ¶ 2) (Docket Entry # 244-28).

Plaintiff “filed numerous grievances” during his stay at the
SCHOC.

(Docket Entry # 244-27, ¶ 4).

“Resolving inmate

grievances does not require that each correction officer be
advised of every instance that an inmate cites him/her in a
grievance.”

(Docket Entry # 244-27, ¶ 3).

As such, the Inmate

Grievance Coordinator “did not inform” Trotman, Allen, Sullivan,
Barrows, or Libby that plaintiff had filed grievances against
them.37

(Docket Entry # 244-27, ¶ 4).

Additionally, as of May

29, 2014, Trotman, Dorgan, Barrows, Sullivan, and Allen had no

The Inmate Grievance Coordinator’s responsibility includes
“administering the Inmate Grievance Policy S-491; investigating
grievances; and responding to the inmates regarding their
grievances.” (Docket Entry # 244-27, ¶ 2).
37

42

knowledge that [plaintiff] had filed grievances.

(Docket Entry

# 244-2, ¶ 4) (Docket Entry # 244-3, p. 2, ¶ 12) (Docket Entry #
244-4, ¶ 6) (Docket Entry # 244-5, p. 1, ¶ 7) (Docket Entry #
244-7, p. 1, ¶ 8).

As previously noted, plaintiff submitted a

signed grievance related to the May 29, 2014 inventory on June
4, 2014.

(Docket Entry # 244-15, p. 2) (Docket Entry # 244-29).

On June 13, 2014, a response was given to plaintiff by SCHOC
that he had “received all property and items from [his] property
bag in [his] cell,” and that he “signed the inventory sheet.”
(Docket Entry # 244-29).

At his August 3, 2017 deposition,

plaintiff testified that he had no evidence that Trotman knew
that plaintiff had filed grievances prior to May 2014.

(Docket

Entry # 244-15, p. 9).
F.

August 7, 2014 Incident
On August 7, 2014, the day before plaintiff’s release from

SCHOC, Libby38 entered plaintiff’s cell and proceeded to ransack
“all his legal materials.”

(Docket Entry # 244-8, p. 7, ¶ 29).

During this “cell search,” Libby said to plaintiff that “‘he had
better throw away some of his trash or he would do it for him.’”

The governing complaint refers to Trotman as the individual
who ransacked plaintiff’s cell on August 7, 2014. (Docket Entry
# 100, ¶ 29). In December 2017, plaintiff moved to substitute
Libby for Trotman as the individual who ransacked his cell
(Docket Entry # 184), which this court allowed. Accordingly,
when referring to this incident, this court refers to Libby as
opposed to Trotman.
38

43

(Docket Entry # 244-8, p. 7, ¶ 29).

Libby then looked at “the

mess and asked” plaintiff “if he was pro se.”

(Docket Entry #

244-8, p. 7, ¶ 29).39
DISCUSSION
I.

Conversion (Count I)
Defendants seek summary judgment on the conversion claim on

the basis that plaintiff fails to establish a prima facie case.
(Docket Entry # 243, p. 6).

Plaintiff contends that Trotman,

Dorgan, and Sullivan violated “his property rights by
conversion.”

(Docket Entry # 252, p. 24).40

Defendants cite the above allegations in the governing
complaint as “taken in favor of the [plaintiff]” “for purposes
of summary judgment” and therefore as setting out the summary
judgment facts of the August 7th events. (Docket Entry # 243,
p. 17). “[C]lear[] and unambiguous[]” allegations from a
complaint may be used as judicial admissions in support of
summary judgment. Schott Motorcycle Supply, Inc. v. Am. Honda
Motor Co., 976 F.2d 58, 61 (1st Cir. 1992) (“‘party’s assertion
of fact in a pleading is a judicial admission by which it
normally is bound throughout the course of the proceeding’” and
finding “that plaintiff should not be allowed to contradict its
express factual assertion in an attempt to avoid summary
judgment”) (internal citations omitted); see, e.g., Aretakis v.
Gen. Signal, Inc., Civil Action No. 05–10257–DPW, 2006 WL
1581781, at *1 (D. Mass. June 7, 2006) (“consider[ing] as
admitted the undisputed assertions in the Complaint . . . for
purposes of [the summary judgment] motion”).
40
Plaintiff argues that Allen as well as Trotman, Dorgan, and
Sullivan are liable in Count I. (Docket Entry # 252, p. 24).
The October 2017 Memorandum and Order required plaintiff to
identify “the causes of action in the existing complaint that
[he] seeks to bring against Sullivan and Allen” in allowing
leave to amend the complaint to include Sullivan and Allen.
(Docket Entry # 174, p. 7). In the statement, plaintiff
identified only Sullivan and not Allen with respect to Count I.
(Docket Entry # 185, p. 5).
39

44

Conversion requires “‘“an intentional exercise of dominion
or control over a chattel which so seriously interferes with the
right of another to control it that the actor may justly be
required to pay the other the full value of the chattel.”’”
Damon v. Hukowicz, 964 F. Supp. 2d 120, 141 (D. Mass. 2013)
(internal citations omitted); Third Nat’l Bank of Hampden Cnty.
v. Cont’l Ins. Co., 446 N.E.2d 380, 383 (Mass. 1983); see Reem
Prop., LLC v. Engleby, 251 F. Supp. 3d 274, 278 (D. Mass. 2017)
(defining conversion).

“The elements of the tort of conversion”

are the following:
(1) the defendant intentionally and wrongfully exercised
control or dominion over the personal property; (2) the
plaintiff had an ownership or possessory interest in the
property at the time of the alleged conversion; (3) the
plaintiff was damaged by the defendant’s conduct; and (4)
if the defendant legitimately acquired possession of the
property under a good-faith claim of right, the plaintiff’s
demand for its return was refused.
Reem Prop., 251 F. Supp. 3d at 278 (internal citation omitted);
see Evergreen Marine Corp. v. Six Consignments of Frozen
Scallops, 4 F.3d 90, 95 (1st Cir. 1993).
A.

Right of Possession
For a conversion claim to have merit, “‘[i]t is incumbent

on a plaintiff in such action to prove a right of immediate
possession of the property at the date of the writ.’”

Previte

v. Jianfeng He, Case No. 18-P-661, 2019 WL 2157584, at *4 (Mass.
App. Ct. May 17, 2019) (unpublished) (brackets in original)

45

(quoting MacNeil v. Hazelton, 28 N.E.2d 477, 478 (Mass. 1940)).
“In order to recover for conversion, plaintiffs must show that
at the time of the alleged conversion they had either actual
possession or the right to immediate possession or control of
the property in question.”

In re 604 Columbus Ave. Realty Tr.,

968 F.2d 1332, 1358 (1st Cir. 1992).

The plaintiff must have

“had either the right to immediate possession or title to the
property allegedly converted.”

Beliveau v. Ware, 33 N.E.3d 459,

462 (Mass. App. Ct. 2015) (acknowledging conversion requires
plaintiff to prove right to immediate possession).

“The

plaintiff must have had a present legal right to immediate
possession of the property.”

Jalbert v. Grautski, 554 F. Supp.

2d 57, 74 (D. Mass. 2008).
In the case at bar, defendants argue that no conversion
occurred because plaintiff did not have the immediate right to
possess his property when he was moved to segregation.
Entry # 243, pp. 6-8).

(Docket

Plaintiff maintains that he “not only

owned the property [but also that] he had a clearly established
interest that was known to be his pro se status in numerous
legal cases.”

(Docket Entry # 252, p. 26).

Although plaintiff is correct that he does own the
property, “there is a difference between the right to own
property and the right to possess property while in prison.”
Mason v. Dep’t of Corr., Case No. 08-P-1930, 2009 WL 3615043, at
46

*1 (Mass. App. Ct. Nov. 4, 2009) (unpublished); see also
Commonwealth v. Ecker, 84 N.E.3d 883, 887 (Mass. App. Ct. 2017)
(acknowledging circumstance of confinement restricts inmate’s
rights).

As an inmate, plaintiff “has certain ownership rights,

but he does not have unlimited rights to possess property in
prison.”

Puleio v. Dep’t of Corr., No. 14–P–1455, 2016 WL

1273139, at *2 (Mass. App. Ct. 2016) (unpublished) (table); see
Thornton v. Merchant, Civil Action No. H–10–0616, 2011 WL
147929, at *10 (S.D. Tex. Jan. 18, 2011) (inmate “has no legally
protected interest in the possession of personal property as a
general matter”).

It is also “well settled that prison

officials may impose reasonable restrictions on the type and
amount of personal property that inmates are allowed to possess
while in prison.”

Thornton, 2011 WL 147929, at *10.

For

example, a confiscation and conversion of inmate property,
consisting of a package containing a collage for outgoing mail,
on the basis of the legitimate penological purpose that it
contained contraband does not survive summary judgment because
incarceration abates “‘possessory interests in personal
effects,’” and the legitimate penological purpose forecloses the
inmate’s ability to show that the adverse action “would not have
occurred ‘but for’ the alleged wrongful conduct.”

Salameh v.

Duval, Civil Action No. 12–10165–RGS, 2014 WL 691610, at *4 (D.
Mass. Feb. 21, 2014) (internal citations omitted); see also
47

Torres v. Fla. Dep’t of Corr., Case No. 4:15cv464–RH/CAS, 2017
WL 9439165, at *7 (N.D. Fla. Aug. 16, 2017) (noting that
“prisoner lacks a protected interest in retaining contraband”
and “lawful right to possess” it, and affirming dismissal of due
process claim when officer confiscated money which was
“contraband” under prison rules); accord Baker v. Piggott, 833
F.2d 1539, 1540 (11th Cir. 1987).
Here, the diminution of plaintiff’s right to possess
property that be owns in prison coupled with the collection and
storage of his excess property in accordance with reasonable
SCHOC policies warrants summary judgment on the basis that
plaintiff did not have the right to immediate possession or
actual possession of the excess property at the time of
conversion.
1358.

See In re 604 Columbus Ave. Realty Tr., 968 F.2d at

SCHOC restricts within limits the amount of property an

inmate may have in his general population cell to one cubic
foot.

(Docket Entry # 244-9, p. 1, ¶ 6).

Regarding the latter,

plaintiff was not present at the time of the May 29, 2014
inventory and alleged conversion as he had been moved to
segregation.

On May 29, 2014, plaintiff had more than one cubic

foot of property in his cell and, hence, no immediate right to
possess such excess items, as dictated by Policy S403.

(Docket

Entry # 244-9, p. 1, ¶ 3) (Docket Entry # 244-10).
Additionally, in segregation, he had no right to immediate
48

possession of property beyond the permitted personal items in
the government bag which Dorgan delivered to plaintiff in
segregation, as provided for under Policy S422.

(Docket Entry #

244-5) (Docket Entry # 244-11).
In accordance with SCHOC policy, Sullivan, Dorgan, and
Trotman inventoried plaintiff’s property, and Dorgan and Trotman
transported the inventoried property as previously described
after plaintiff’s removal to the segregation unit due to
disciplinary infractions.

(Docket Entry # 272, Ex. 13A-13C)

(Docket Entry # 244-3, pp. 1-2, ¶¶ 4-10) (Docket Entry # 244-7,
p. 1, ¶¶ 3-7) (Docket Entry # 244-5, p. 1, ¶¶ 3-6) (Docket Entry
# 244-4, ¶¶ 4-5).

Sullivan, Dorgan, and Trotman collected

materials in accordance with SCHOC Policies S403 and S422.
(Docket Entry # 272, Ex. 13A) (Docket Entry ## 244-3, 244-5,
244-7, 244-10, 244-11) (Docket Entry # 244-9, pp. 1-2, ¶¶ 8-9).
As required under Policy S422, Trotman transported the excess
materials to the booking area for storage, and Dorgan
transported the two bags to MC and plaintiff in segregation.
(Docket Entry # 272, Ex. 13B-13C) (Docket Entry # 244-3, p. 1, ¶
9) (Docket Entry # 244-5, p. 1, ¶ 6) (Docket Entry # 244-7, p.
1, ¶ 7).

Upon his release from segregation, Sergeant Depina

returned the property to plaintiff “except for a WB Mason box of
printed legal cases from [ILS] and assorted canteen items.”
(Docket Entry # 252-1, pp. 87, 92).
49

When Sergeant Depina

delivered the property to plaintiff, plaintiff signed the inmate
property inventory sheet acknowledging the return of the
inventoried items.41
15, pp. 6-7).

(Docket Entry # 244-6) (Docket Entry # 244-

Thereafter, plaintiff received the W.B. Mason

copy box of legal papers in late June 2014 and had access to the
excess legal papers consisting of the manila envelopes
containing legal paperwork in the law library as of July 22,
2014.
Plaintiff nevertheless maintains that the facts “clearly
demonstrate a due process violation of the plaintiffs’ [sic]
property rights, [and] the conversion of property flows from the
facts and laws in the former.”

(Docket Entry # 252, p. 25).

First, as explained with respect to Count IV, the due process
claim based on the May 29, 2014 confiscation is subject to
summary judgment.

Hence, the premise of plaintiff’s argument,

i.e., a due process violation, is absent.

Second, in the

context of due process, plaintiff, as an inmate, does not have
“unlimited rights to possess” his property.

Puleio, 2016 WL

1273139, at *2 (affirming dismissal of due process claim because
disposal of inmate’s property was in accordance with prison
property policy in Policy S403).

Plaintiff did not initial the sheet at the time Dorgan
delivered the trash bag of items to plaintiff in segregation on
May 29, 2014. (Docket Entry # 244-6) (Docket Entry # 244-15, p.
7).
41

50

In sum, because plaintiff “does not have unlimited rights
to possess property in prison,” Puleio, 2016 WL 1273139, at *2,
he lacks the requisite possessory interest or immediate right to
possession of the excess property at the time of the alleged
conversion.

See Reem Prop., LLC, 251 F. Supp. 3d at 278

(recognizing ownership or possessory interest at the time of
alleged conversion as required element of conversion claim).

In

accordance with the above discussion, the conversion claim is
subject to summary judgment given the insufficient evidence to
support this element.
B.

Dominion Over Plaintiff’s Property with Intent to Deprive

Plaintiff
In the alternative, defendants argue that plaintiff fails
to establish a genuine issue of material fact that Sullivan,
Dorgan, or Trotman wrongfully denied plaintiff his property or
acted with the wrongful intent to deprive him of his property.
(Docket Entry # 243, p. 7).

They point out that Dorgan and

Trotman acted in accordance with SCHOC policies by inventorying
the property, delivering the bag to plaintiff in segregation,
and storing the excess remainder.

(Docket Entry # 243, p. 7).

Plaintiff argues that Trotman and Dorgan breached their
“absolute duty” by wrongfully and intentionally exercising
control of plaintiff’s property when they did not adhere to
Sullivan’s instruction to bring all of plaintiff’s legal
51

property to plaintiff in segregation.
25).

(Docket Entry # 252, p.

Plaintiff submits that conversion is a “strict liability

tort” and that a showing of wrongful intent by a defendant is
not required.

(Docket Entry # 252, p. 27).

Plaintiff maintains

that Trotman and Dorgan had an “absolute duty” to adhere to
Sullivan’s instruction to bring all of plaintiff’s property to
plaintiff in segregation.

(Docket Entry # 252, pp. 25-26).

First, plaintiff’s characterization of conversion as a
“‘strict liability tort’” that renders “‘defendants[’] good
faith, lack of knowledge, and motive . . . ordinarily
immaterial’” (Docket Entry # 252, p. 27) (quoting California
state court case) is misplaced.

The applicable law is

Massachusetts, not California, state law.

Conversion under

Massachusetts law requires that “‘the defendant intentionally
and wrongfully exercised control or dominion over’” plaintiff’s
“‘personal property.’”
(citation omitted).

Reem Prop., Inc., 251 F. Supp. 3d at 278

Plaintiff bears the underlying burden to

show that Trotman and Dorgan acted intentionally and wrongfully
to appropriate plaintiff’s property.

See Kelley v. LaForce, 288

F.3d 1, 11-12 (1st Cir. 2002) (recognizing conversion claim
requires showing wrongful act with intent to appropriate
property); Fiorillo v. Winiker, 85 F. Supp. 3d 565, 575 (D.
Mass. 2015) (conversion claim requires proof of defendant’s
intent “to appropriate” or “deprive” property).
52

“‘[A]n act

which is not intended to exercise dominion or control over a
chattel but is merely negligent with respect to it is not a
conversion, even though it may result in the loss or destruction
of the chattel.’”

Powell v. Holmes, Civil Action No. 17-10776-

FDS, 2018 WL 662482, at *6 (D. Mass. Feb. 1, 2018) (internal
citations omitted).

As explained by the First Circuit in

Kelley, an “action for conversion cannot be maintained without
proof that the defendant either did some positive wrongful act
with the intention to appropriate the property to himself or to
deprive the rightful owner . . . or destroyed the property.”
Kelley, 288 F.3d at 12 (internal quotation marks and citations
omitted); Fiorillo, 85 F. Supp. 3d at 575.
In considering if an action amounts to a conversion, courts
examine the circumstances which surround it.

See Damon, 964 F.

Supp. 2d at 142; Cahaly v. Benistar Prop. Exch. Tr. Co., Inc.,
864 N.E.2d 548, 559 (Mass. App. Ct. 2007); see also Restatement
(Second) of Torts § 222A (2020) (citing factors courts should
consider when assessing conversion claim).

Contrary to

plaintiff’s position, these circumstances include the
defendant’s good faith as well as the following:
the extent and duration of the defendant’s exercise of
control; [their] intent to assert a right . . .
inconsistent with . . . plaintiff’s right of control; the
defendant’s good faith or bad intention; the extent and
duration of the resulting interference with the plaintiff’s
right of control; the harm done to the chattel; and the
expense and inconvenience caused to the plaintiff.
53

Cahaly, 864 N.E.2d at 559, n.18 (citing Restatement (Second) of
Torts § 222A(2) (1965)).
The circumstances at issue in Damon and Kelley exemplify
why, in the case at bar, Sullivan, Dorgan, and Trotman’s actions
do not constitute a conversion because they did not engage in
any wrongful act with a deliberate intent to deprive plaintiff
of his property.

See Kelley, 288 F.3d at 11-12; Damon, 964 F.

Supp. 2d at 142.

In Damon, the officer’s conduct when the

plaintiff’s property was collected was permissible because the
officer was acting within the reasonable scope of his
professional duty.

See Damon, 964 F. Supp. 2d at 142.

The

officer was not “asserting his own right to [the bicycle],” but
rather acting within the scope of his job to serve “legitimate
safety concerns.”

Id.

In the case at bar and as explained above, Sullivan,
Trotman, and Dorgan controlled plaintiff’s property relative to
the May 29 inventory not for personal use but, rather, in
accordance with their duty to enforce and adhere to SCHOC Policy
S403, Policy S422, and SCHOC procedures.

As to the initially

unreturned W.B. Mason box of legal material, Misci delivered the
copy box to plaintiff in late June 2014.

(Docket Entry # 244,

p. 9, ¶ 45) (citing Docket Entry # 244-12); (Docket Entry # 2449, ¶ 10(a)).

The only reasonable inference is that this copy
54

box of legal papers is the W.B. Mason box of legal cases that
plaintiff attests (Docket Entry # 252-1, pp. 87, 92) Sergeant
Depina did not deliver to plaintiff on June 3, 2014.

Misci

returned this property after a short period of time on June 26,
2014, following plaintiff’s release from segregation.
Entry # 244-12) (Docket Entry # 244-9, ¶ 10(a)).

(Docket

In mid-July

2014, Wright found the bag with the manila envelopes containing
legal paperwork when she was cleaning the segregation property
room.

(Docket Entry # 244-13) (Docket Entry # 244-9, ¶ 10(b)).

ILS retrieved these legal materials from Wright and stored these
excess materials in the law library, and plaintiff received
notice that his legal papers were secured in the law library on
July 22, 2014.

(Docket Entry # 244-22, ¶¶ 5, 9(b)) (Docket

Entry # 244-13) (Docket Entry # 244-9, ¶ 10(b)).

The duration

of the deprivation was brief and by and large not inconsistent
with plaintiff’s right to control the property.

The legal

materials were not destroyed but, rather, either returned to
plaintiff or plaintiff had access to them by late July 2014.
Overall, the record establishes that all plaintiff’s
belongings were possessed with the intention of following prison
procedure rather than with the intent to deprive plaintiff

55

permanently of the property.42

See Damon, 964 F. Supp. 2d at

141-42; Eveden, Inc. v. N. Assurance Co. of Am., Civil Action
No. 10-10061-GAO, 2014 WL 952643, at *4 (D. Mass. Mar. 12, 2014)
(taking control over property in compliance with a legal
requirement did not amount to an act of conversion).

In

contrast, the defendants in Kelley demonstrated a clear intent
to deprive the plaintiff of her property by changing the locks

Whereas plaintiff also attests that Sergeant Depina did not
deliver “assorted canteen items” to plaintiff on June 3, 2014
(Docket Entry # 252-1, pp. 87, 92), plaintiff’s 93-page
opposition fails to adequately develop an argument regarding the
non-delivery of “assorted canteen items.” (Docket Entry # 252).
Although the opposition does reference “personal property” a
number of times, the opposition identifies non-legal property as
his “music, books, business plans, screen plays etc.” (Docket
Entry # 252, pp. 65-66, 70). Plaintiff therefore waives a claim
for conversion of assorted canteen items and, more broadly,
liability on the other causes of action based on the nondelivery of “assorted canteen items.” See Eldridge v. Gordon
Bros. Grp., L.L.C., 863 F.3d 66, 84 (1st Cir. 2017) (rejecting
plaintiff’s argument that district judge should have exercised
his discretion and addressed merits of plaintiff’s waived
summary judgment argument in plaintiff’s opposition rather than
rely on waiver); Curet-Velázquez v. ACEMLA de P.R., Inc., 656
F.3d 47, 54 (1st Cir. 2011) (“[a]rguments alluded to but not
properly developed before a magistrate judge are deemed
waived”); Coons v. Indus. Knife Co., Inc., 620 F.3d 38, 44 (1st
Cir. 2010) (“district court was ‘free to disregard’ the state
law argument that was not developed in Coons’s brief”).
Relatedly, with respect to plaintiff’s personal or intellectual
property consisting of his music, books, business plans, and
screenplays, plaintiff’s opposition references such property
only with respect to the freedom of speech and expression claim
in Count Two and the MCRA claim in Count Five. (Docket Entry #
252, pp. 65-66, 70). Plaintiff therefore waives a conversion of
the music, books, business plans, and screenplays and, more
broadly, other causes of action except for the freedom of speech
and expression claim and the MCRA claim. See Eldridge, 863 F.3d
at 84; Curet-Velázquez, 656 F.3d at 54; Coons, 620 F.3d at 44.
42

56

on plaintiff’s pub to deny her entry.
12.

See Kelley, 288 F.3d at

Unlike the case at bar, the defendants in Kelley possessed

the plaintiff’s property under their professional obligations
with the intent to deprive the plaintiff of access to her pub.
See id.
Second, plaintiff’s “absolute duty” argument (Docket Entry
# 252, pp. 10, 25) is misguided.

Plaintiff argues that Trotman

and Dorgan did not adhere to Sullivan’s instruction to bring all
of plaintiff’s legal property to plaintiff in segregation.
(Docket Entry # 252, pp. 10, 25).

Based on their positions as

correction officers, Trotman and Dorgan had an absolute duty to
abide by Sullivan’s orders, according to plaintiff.
Entry # 252, pp. 10, 25).

(Docket

The argument founders, however,

because it relies on facts that are stricken from the record,
namely, that Sullivan gave an order, albeit using “irregular”
wording.

(Docket Entry # 252, p. 25) (citing exhibit A9 at

lines 234-243, which is located at Docket Entry # 252-1, p.
109).43
Regardless, the fact that Sullivan stated during the SID
interview that she “did not instruct anybody to bring it44 to
booking, because [plaintiff is] supposed to get his legal mail,

The Memorandum and Order on the motion to strike allows the
motion as to exhibit A9.
44
“[I]t” refers to plaintiff’s “legal property.” (Docket
Entry # 253, Audio Compact Disc of SID Interviews).
43

57

his legal property” (Docket Entry # 253, Audio Compact Disc of
SID Interviews) does not show or reasonably infer that she
ordered Trotman and Dorgan to transport plaintiff’s legal
property to plaintiff in segregation in excess of the bag
allowed under SCHOC Policy S422.

More to the point, Trotman did

not engage in a wrongful act with the intent to deprive
plaintiff of his legal property by transporting the box and the
bag to the booking area for storage or that Dorgan engaged in a
similar wrongful act by not transporting the legal property to
plaintiff.

As explained, Trotman’s conduct and Dorgan’s conduct

complied with SCHOC policies.

Further, their conduct was not

inconsistent with plaintiff’s right of control, the duration of
their exercise of control over the legal property was brief, and
the property was not damaged or destroyed.

The short period of

time until Misci delivered the W.B. Mason box to plaintiff and
plaintiff received notification of the storage of legal material
in the law library belies any deliberate intent to deprive
plaintiff of his property or any wrongful act with the intention
to appropriate plaintiff’s property.
12; Powell, 2018 WL 662486, at *6.

See Kelley, 288 F.3d at

Accordingly, summary

judgment on the conversion claim is warranted in Sullivan,
Dorgan, and Trotman’s favor based on defendants’ alternative
argument that Sullivan, Dorgan, and Trotman did not engage in a
wrongful act with the intent to deprive plaintiff of his
58

property or appropriate the property for themselves.

See

Kelley, 288 F.3d at 12 (conversion fails absent “‘“proof that
the defendant either did some positive wrongful act with the
intention to appropriate the property to himself or to deprive
the rightful owner of it, or destroyed the property”’”)
(internal citations omitted); see, e.g., Damon, 964 F. Supp. 2d
at 141-42.
II.

First Amendment Retaliation (Count II)
Count II alleges a section 1983 First Amendment retaliation

claim against Trotman, Dorgan, Sullivan, and Allen.45

Defendants

move for summary judgment on the basis that plaintiff fails to
show a prima facie case.

(Docket Entry # 243, pp. 8-9).

They

argue that plaintiff cannot prove that Sullivan, Allen, Dorgan,
and Trotman took adverse action.

(Docket Entry # 243, pp. 8-9).

They also argue there is no showing they knew about the
protected activity and, accordingly, there is no causal “‘but
for’” connection between plaintiff engaging in the protected
activity and their taking “adverse action against him.”
Entry # 243, p. 8).

(Docket

Plaintiff contends that evidence shows that

defendants were aware of his protected activity and further
argues that the circumstances imply that Sullivan, Allen,

45

See n.7 supra.
59

Dorgan, and Trotman engaged in adverse action against him for
filing grievances.

(Docket Entry # 252, pp. 48-49).

To prevail on a First Amendment retaliation claim,
plaintiff must prove: (1) he engaged in protected activity; (2)
that defendant “took an adverse action against him;” and (3) “a
causal link between the protected activity and the adverse
action.”

Staples v. Gerry, 923 F.3d 7, 15 (1st Cir. 2019);

Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011); Schofield v.
Clarke, 769 F. Supp. 2d 42, 47 (D. Mass. 2011); see also Nieves
v. Bartlett, 139 S. Ct. 1715, 1722 (2019) (outlining
requirements to prove First Amendment retaliation claim).

With

respect to the first element, it is undisputed that filing
grievances constitutes protected conduct.

See Hannon, 645 F.3d

at 48-49; see also Mattei v. Dunbar, 217 F. Supp. 3d 367, 374
(D. Mass. 2016) (acknowledging filing grievances is a protected
activity).

Accordingly, this court turns to the foregoing

arguments, all of which implicate the second and third elements
of the prima facie case.
A.

Adverse Act
Count II alleges that Sullivan and Allen retaliated against

plaintiff for filing the April 3 and 23, 2014 grievances by
issuing disciplinary reports.

(Docket Entry # 185, pp. 2-5).

Sullivan also purportedly instructed “Allen to strictly enforce
any and all disciplinary action against” plaintiff, and Allen
60

therefore proceeded to discipline plaintiff for the May 2014
basketball incident.

(Docket Entry # 185, p. 3).

Count II

further alleges that Trotman and Dorgan retaliated against
plaintiff for plaintiff’s grievances against Sullivan and Allen.
(Docket Entry # 100, ¶ 49).
As previously noted, defendants maintain that Trotman,
Dorgan, Sullivan, and Allen did not take adverse action against
plaintiff.

They further argue that a retaliatory act must rise

above a de minimus standard.

(Docket Entry # 243, pp. 8-9).

Plaintiff contends that Trotman, Dorgan, Sullivan, and Allen’s
retaliation encompasses not just the May 29, 2014 incident but
the series of disciplinary reports filed by Sullivan and Allen
following the April 3, 2014 law library grievance.

(Docket

Entry # 252, pp. 49-51).
An action is considered “adverse” in the context of a
retaliation claim when the act “‘would deter persons of
“ordinary firmness” from exercising their constitutional rights
in the future.’”

See Mattei, 217 F. Supp. 3d at 374 (quoting

Starr v. Dube, 334 F. App’x 341, 342 (1st Cir. 2009)
(unpublished)).

For example, the mere “filing of a disciplinary

charge carrying potentially severe sanctions” does not rise to
the level of an adverse action.

Starr v. Dube, 334 F. App’x at

343; see also Peixoto v. Russo, Civil Action No. 16-cv-10428DJC, 2016 WL 7410774, at *4 (D. Mass. Dec. 22, 2016)
61

(considering cumulative impact when allegations encompass
multiple adverse acts are involved).

Likewise, “a ‘single

[allegedly unjustified] retaliatory charge that is later
dismissed is insufficient to serve as the basis of a” section
1983 action.

Starr v. Dube, 334 F. App’x at *2 (quoting Bridges

v. Gilbert, 557 F.3d 541, 555 (7th Cir. 2009)).

More broadly,

to form a basis for a First Amendment retaliation claim, the
adverse act should be more than de minimus.

See Knox v. Mass.

Dep’t of Corr., Civil Action No. 14-12457-LTS, 2017 WL 3401443,
at *13 (D. Mass. Aug. 8, 2017) (“An act must be more than de
minimus to constitute an adverse action.”); accord Santiago v.
Costa, Civil Action No. 18-12421-RGS, 2019 WL 2339521, at *4 (D.
Mass. June 3, 2019), dismissing appeal, 2019 WL 7494623 (1st
Cir. Sept. 10, 2019).

“[A]n adverse action that imposes a

‘substantial’ impact on an inmate” is considered sufficient.
Starr v. Dube, 334 F. App’x at 343 (internal citation omitted).
In assessing whether an “inmate[] of ‘ordinary firmness’ would
be deterred from continuing to exercise [his] constitutional
rights merely because of the filing of a disciplinary charge,”
the existence of a non-futile avenue to defend himself against a
disciplinary charge mollifies the deterrence.

Id. (internal

citation omitted).
With respect to Sullivan, plaintiff argues that Sullivan
retaliated against him because he filed the April 3, 2014
62

grievance regarding access to the law library (Docket Entry #
252-1, p. 2).

(Docket Entry # 252, p. 49).

When Sullivan found

“out about the grievance” on April 10, 2014, she told “plaintiff
‘to keep his mouth shut’” and shortly thereafter filed the April
10, 2014 disciplinary report, according to plaintiff.

(Docket

Entry # 252, p. 49).
The argument is misguided.

First, SCHOC allows for

disciplinary hearings and affords an opportunity for an inmate
to testify and present his version of events.
252-1, pp. 4, 8-9).

(Docket Entry #

The sanction imposed in connection with the

April 10, 2014 disciplinary report consisted of the minor twoweek loss of canteen privileges and a written warning.
Entry # 252-1, p. 4).

(Docket

Given these circumstances, no inmate of

“‘“ordinary firmness,”’” Mattei, 217 F. Supp. 3d at 374, would
be deterred from continuing to exercise his constitutional
rights.
Plaintiff’s argument that Sullivan retaliated against
plaintiff again two weeks later by filing a second disciplinary
report on April 23, 2014 (Docket Entry # 252, pp. 50-51), also
fails to give rise to an adverse action, even when viewed on a
cumulative basis.

The fact that plaintiff filed a grievance

against Sullivan earlier the same day for using the racial slur
against him is temporally close to the disciplinary charges but
the charges themselves and the sanction imposed (48 hours of
63

restricted movement) would not deter an inmate of ordinary
firmness from proceeding to exercise his constitutional rights.46
See Starr v. Dube, 334 F. App’x at 343.

Balancing the need for

flexibility to operate SCHOC and plaintiff’s constitutional
rights, Sullivan’s additional conduct of slamming plaintiff’s
cell door and ordering plaintiff “to lock in [his] cell” for the
evening on May 14, 2014 (Docket Entry # 252-1, p. 86), is not
sufficiently substantial to amount to adverse action.

See Starr

v. Dube, 334 F. App’x at 343; Tibbs v. Samuels, Civil Action No.
13-11095-DJC, 2017 WL 1164484, at *4 (D. Mass. 2017) (noting
that “‘inquiry must be “tailored to the different circumstances
in which retaliation claims arise,” bearing in mind that
“prisoners may be required to tolerate more than average
citizens, before a retaliatory action taken against them is
considered adverse”’”) (ellipses, citations, and brackets
omitted).

In sum, given the absence of sufficient evidence to

overcome summary judgment on the adverse action element of a
prima facie case as to Sullivan, she is entitled to summary
judgment on the First Amendment retaliation claim in Count II.
B.

Retaliatory Motive

Allen, as opposed to Sullivan, filed the May 29, 2014
disciplinary report which resulted in five days of isolation.
(Docket Entry # 252-1, pp. 17-18).
46

64

As previously stated, defendants also seek summary judgment
on the retaliation claim based on the absence of a “‘but for’”
causal connection between the protected activity and the adverse
action.

(Docket Entry # 243, p. 8).

They submit there is no

showing that Sullivan, Allen, Dorgan, and Trotman knew about the
protected activity of plaintiff filing the grievances and
therefore lacked a retaliatory animus.
8-9).

(Docket Entry # 243, pp.

Plaintiff argues that Allen worked with Sullivan and

therefore knew about her actions on a daily basis and “Sullivan
admitted she” and “Allen are on the same page when it comes to
disciplining the plaintiff” for his grievances.

(Docket Entry #

252, p. 50) (citing portions of plaintiff’s unauthenticated
transcription of SID interviews at Docket Entry # 252-1, pp.
107, 110).

He also maintains that Dorgan and Trotman knew about

plaintiff’s grievances based on video footage showing Sullivan
yelling and “disposing of plaintiff[’s] grievances” “in front of
Dorgan with Trotman 10 to 15 feet away.”

(Docket Entry # 252,

p. 50) (citing stricken paragraphs in plaintiff’s disputed
statement of material facts).
As noted above, the third element of a prima facie
retaliation claim requires plaintiff to show “a causal link
between the protected activity and the adverse action.”
Staples v. Gerry, 923 F.3d at 15.

In discharging this burden on

summary judgment by demonstrating that a reasonable finder of
65

fact could find in his favor, plaintiff “must show that his
protected activity ‘was a substantial or motivating factor for
the adverse action.’”
omitted).

Id. (internal citation and brackets

It is also “‘intuitive that for protected conduct to

be a substantial or motiving factor in a decision, the
decisionmakers must be aware of the protected conduct.’”

Id.

n.2 (internal citation omitted); see, e.g., Latimore v. Dep’t of
Corr., Civil Action No. 12–12260–JGD, 2013 WL 6181082, at *11
(D. Mass. Nov. 22, 2013) (dismissing First Amendment retaliation
claims because “Latimore has not alleged that any of the
defendants at MCI–Walpole had any knowledge of the grievance”).
As the nonmovant, it is incumbent on plaintiff to provide
“‘submissions of submissions of evidentiary quality that a
trialworthy issue persists’” to defeat summary judgment.

Paul

v. Murphy, 948 F.3d at 49; Maldonado-Cátala, 876 F.3d at 9.
Plaintiff’s reliance on his assertions in the unverified
governing complaint, the unverified descriptions of the offense
in grievances to the extent offered for the truth of the matter
asserted, and certain stricken paragraphs in his statement of
disputed facts (Docket Entry # 252, pp. 49-54) is therefore
inappropriate.
Based on the materials of evidentiary quality in the
summary judgment record, the record fails to reasonably infer
that Allen, Trotman, and Dorgan knew about prior grievances
66

plaintiff filed, including the April 23, 2014 grievance against
Sullivan, at the time Trotman and Dorgan participated in the
inventory and allegedly destroyed or confiscated plaintiff’s
property on May 29, 2014 while Allen focused on completing
reports related to plaintiff and MC.

(Docket Entry # 244-4, ¶

6) (Docket Entry # 244-5, ¶ 7) (Docket Entry # 244-7, ¶ 8)
(Docket Entry # 244-27, ¶ 4) (Docket Entry # 244-15, p. 9).

The

materials of evidentiary quality also fail to adequately show
that Allen knew about plaintiff’s prior grievances when he
ordered plaintiff to remain in his cell for the rest of the
evening on May 25, 2014, or when Allen completed the reports on
May 29, 2014.
4, ¶¶ 5-6).

(Docket Entry # 244-27, ¶ 4) (Docket Entry # 244-

Although this court recognizes that circumstantial

evidence can be sufficient to show the causal link, see Tibbs,
2017 WL 1164484, at *4 (because of difficulty obtaining “direct
evidence of a retaliatory state of mind, a plaintiff can satisfy
this element by introducing circumstantial evidence that
supports a reasonable inference of such retaliatory motive”),
there is an absence of sufficient evidence for a reasonable
finder of fact to find that one or more prior grievances was a
substantial or motivating factor on the part of Trotman or
Dorgan in purportedly destroying or trashing plaintiff’s
property on May 29, 2014.

There is also insufficient evidence

to avoid summary judgment based on plaintiff’s argument that
67

“under a conspiracy theory” Allen, Trotman and/or Dorgan “aided
and abetted” the alleged retaliatory practices of Sullivan (and
Allen as to Trotman and Dorgan’s aiding and abetting) of filing
disciplinary reports against plaintiff for the exercise of “his
protected right to redress grievances” (Docket Entry # 252, pp.
50, 52-55).
Accordingly, Allen, Trotman, and Dorgan are entitled to
summary judgment on the retaliation claim in Count II given the
lack of evidence of evidentiary quality for a reasonable finder
of fact to find in plaintiff’s favor on the third prong.

See,

e.g., Staples v. Gerry, 923 F.3d at 17.
III.

First Amendment Freedom of Speech (Count II)
The second claim in Count II sets out a section 1983 First

Amendment freedom of speech violation against Trotman and
Dorgan.47

(Docket Entry # 100, ¶¶ 31, 49, 51).

Defendants move

for summary judgment on the basis that plaintiff cannot prove
the required elements that show the restrictive prison policy at
issue (Policy S403) impeded plaintiff’s First Amendment
expression rights.

(Docket Entry # 243, pp. 9-11).

Plaintiff

submits that his right to freedom of speech and expression is

Plaintiff maintains that Sullivan and Allen are also liable
under this freedom of speech claim. As explained in footnote
seven, Count II does not include a First Amendment claim for
freedom of speech against Sullivan and Allen. Rather, it sets
out a First Amendment claim for retaliation claim addressed
above in Roman numeral II.
47

68

subject to strict scrutiny or intermediate scrutiny, and under
either test the deprivation does not serve a compelling
government interest.

(Docket Entry # 252, pp. 64-65).

He also

asserts that the “regulation,” which he fails to identify, is
not content neutral.

(Docket Entry # 252, pp. 64-65).

Even if

content-neutral, the regulation was unconstitutionally enforced
when plaintiff’s property was not returned after his release
from segregation, according to plaintiff.48

(Docket Entry # 252,

pp. 67-69).
As explained in footnote ten, this claim pertains to the
purported abridgement of plaintiff’s First Amendment right to
free speech and expression by the May 29, 2014 confiscation
and/or destruction of certain items of plaintiff’s personal or
intellectual property, namely, music lyrics, screenplay(s),
books, and business plans.

As discussed below, the claim fails

under the analysis of the four factors in Turner v. Safley, 482
U.S. 78, 89-91 (1987).

Furthermore, even if the claim included

the confiscation and/or destruction of plaintiff’s legal
property, it fails for similar reasons under the same Turner
analysis.

Plaintiff also argues that “due to an abuse of their position
which was not random or unauthorized,” Trotman and Dorgan
deprived plaintiff of “his due process property rights.”
(Docket Entry # 252, p. 67). Count II, however, is a First
Amendment free speech and expression claim rather than a
procedural due process claim.
48

69

A prison inmate maintains “‘rights that are not
inconsistent with his status as a prisoner or with the
legitimate penological objectives of the corrections system.’”
Id. at 95 (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)).
Although inmates retain constitutional rights while they are
incarcerated, their rights, including the “fundamental right” to
marry, are “subject to substantial restrictions as a result of
incarceration.”

Id. at 94; see Beard v. Banks, 548 U.S. 521,

528 (2006) (“Constitution sometimes permits greater restriction
of such rights in a prison than it would allow elsewhere”).
First, plaintiff argument’s regarding the application of
intermediate or strict scrutiny is not convincing.

As explained

by the Supreme Court in Turner:
Subjecting the day-to-day judgments of prison officials to
an inflexible strict scrutiny analysis would seriously
hamper their ability to anticipate security problems and to
adopt innovative solutions to the intractable problems of
prison administration. The rule would also distort the
decisionmaking process, for every administrative judgment
would be subject to the possibility that some court
somewhere would conclude that it had a less restrictive way
of solving the problem at hand. Courts inevitably would
become the primary arbiters of what constitutes the best
solution to every administrative problem, thereby
“unnecessarily perpetuat[ing] the involvement of the
federal courts in affairs of prison administration.”
Turner, 482 U.S. at 89 (internal citation omitted and brackets
in original).

Plaintiff’s related argument that “the scrutiny

test fails” because defendants “violated [plaintiff’s] due
process rights under the 14th Amendment” and “state law
70

conversion rights” (Docket Entry # 252, pp. 63, 66) and the
curtailment of his expression therefore does not serve a
legitimate government interest is misguided because both claims
do not withstand summary judgment for reasons explained
elsewhere in this opinion.
Second, “when a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests.”49
Turner, 482 U.S. at 89; Hudson v. Spencer, No. 15-2323, 2018 WL
2046094, at *3 (1st Cir. Jan. 23, 2018) (“‘prison regulation
which restricts an inmate’s First Amendment free exercise rights
is permissible if it is “reasonably related to legitimate
penological interests”’”) (internal citations omitted)
(unpublished).

This reasonableness “standard is necessary” in

order to allow “‘prison administrators, and not the courts, to

Defendants rely on Policy S403 as the regulation that
reasonably restricted plaintiff’s First Amendment right to
freedom of expression. (Docket Entry # 243, pp. 9-11). The
First Circuit in Kuperman v. Wrenn, 645 F.3d 69 (1st Cir. 2011),
equated “New Hampshire Department of Corrections Policy and
Procedure Directive 7.17” to a regulation and proceeded to
analyze the freedom of expression claim under Turner, 482 U.S.
at 89. Kuperman v. Wrenn, 645 F.3d at 71, n.1, 74-77; accord
Beard v. Banks, 548 U.S. at 524-25 (“consider[ing] whether a
Pennsylvania prison policy that ‘denies newspapers, magazines,
and photographs’ to . . . inmates ‘violate[s] the First
Amendment’”) (citing Turner, 482 U.S. at 89) (internal citation
omitted). Adhering to this precedent, this court considers
Policy S403 a regulation within the meaning of Turner and
proceeds with the First Amendment analysis.
49

71

make the difficult judgments concerning institutional
operations.’”

Turner, 482 U.S. at 89 (internal ellipses,

bracketed text, and citation omitted); see Overton v. Bazzetta,
539 U.S. 126, 132 (2003) (noting deference given to prison
officials when assessing reasonableness).

The relevant factors

in deciding when a regulation “is ‘reasonably related to
legitimate penological interests’” consist of: (1) whether there
is “a ‘“valid, rational connection” between the prison
regulation and the legitimate governmental interest put forward
to justify it;’” (2) whether alternative means to exercise “‘the
right that remain open to’” the inmate; (3) the impact that
accommodating the “‘asserted constitutional right’” will “‘have
on guards’” and “‘the allocation of prison resources;’” and (4)
whether there “are ‘ready alternatives’ for furthering the
governmental interests available.”

Beard, 548 U.S. at 529

(quoting Turner, 482 U.S. at 89-90); accord Kuperman v. Wrenn,
645 F.3d 69, 74 (1st Cir. 2011); Hudson v. Spencer, 2018 WL
2046094, at *3.
The first Turner factor examines “whether there is a
‘valid, rational connection’ between the regulation and a
legitimate and governmental interest put forward to justify it.”
Turner, 482 U.S. at 78.

Policy S403 limits the items of

personal property an inmate can possess in his cell to certain
items listed in the policy including “writing materials,
72

correspondence[,] and legal materials (not to exceed 1 cubic ft.
in the cell).”

(Docket Entry # 244-10, p. 3, ¶ IV(C)).

The

same policy provides for the inventory and storage of an
inmate’s personal property when the inmate is moved to
segregation.

(Docket Entry # 244-10, pp. 6-7, V(F)).

Defendants proffer the fire risk as justifying the
restrictions.

(Docket Entry 243, p. 10).

supports this justification.

Policy S403 fully

It prohibits property that exceeds

authorized quantities or “may present a fire or safety hazard.”
(Docket Entry # 244-10, p. 1, I(B)).

The policy repeats this

concern as applicable to excess legal paperwork that an inmate
retains in his cell.

(Docket Entry # 244-10, p. 4, ¶ V(A)(6))

(allowing inmates “to retain legal paperwork unless” deemed “an
excessive amount (i.e. a possible fire hazard in the cell)”).
Policy S430 also includes a rule that allows a seizure of
property considered “contraband or of excessive quantity” at any
time.

(Docket Entry # 244-10, p. 2, II(A)(3)) (Docket Entry #

244-9, ¶ 3).

Policy S430 and an affidavit by SCHOC Deputy

Superintendent Richard McCarthy establish that “[i]tems in
excess or not on the [designated] list will be considered
contraband.”

(Docket Entry # 244-10, p. 3, IV(C)) (Docket Entry

# 244-9, ¶¶ 3, 4).
Prison policies limiting excess items in a cell to
eliminate “fire and other safety hazards are legitimate
73

penological interests” under Turner’s first factor.

Gray v.

Perkins, Civil No. 14–cv–386–PB, 2016 WL 5108030, at *10 (D.N.H.
Sept. 20, 2016) (unpublished); see also Hudson v. Maloney, 326
F. Supp. 2d 206, 209 n.2 (D. Mass. 2004) (Department of
Corrections’ “ban on full-size prayer rugs is justified by
appropriate security concerns over the fire hazard and
sanitation problems the rugs pose”).

Moreover, the restriction

limiting written materials (including legal paperwork) to one
cubic foot (Docket Entry # 244-9, ¶ 6) (Docket Entry # 244-10,
p. 3, ¶ IV(C)) is logically and rationally connected to reducing
a fire hazard.

See Kuperman, 645 F.3d at 75 (prison official’s

statements that “regulation serves the function identified” are
“sufficient when the articulated connections between the
regulation and the penological objective are ‘logical ones’”)
(paraphrasing and quoting Beard v. Banks, 548 U.S. at 531-32);
see generally Sowell v. Vose, 941 F.2d 32, 35 (1st Cir. 1991)
(“unrealistic to expect prison authorities to give all prisoners
unfettered access to all of their legal materials at all times”
because “prisoners live in prison cells” and wardens “may have
good reason, based on considerations of safety and security, to
limit the amount of legal documents and similar materials that
prisoners may keep with them”).
Plaintiff nevertheless argues that the regulation
restricting the expression of his speech was “for non74

penological purposes once the property was not returned.”
(Docket Entry # 252, p. 69).

The argument, however, relies

substantially on the unverified governing complaint and evidence
stricken from the summary judgment record.
pp. 68-69).

(Docket Entry # 252,

The materials of evidentiary quality establish that

Sergeant Depina returned plaintiff’s property shortly after
plaintiff’s release from segregation on June 3, 2014, except for
the WB Mason box of printed legal cases and assorted canteen
items as well as the legal materials consisting of the bag with
manila envelopes Wright located and ILS stored in the law
library on July 22, 2014.

In late June 2014, Misci delivered

the copy paper box of legal papers to plaintiff.

(Docket Entry

# 244m p. 9, ¶ 45) (Docket Entry # 244-12) (Docket Entry # 2449, p. 2, ¶ 10(a)).

On July 22, 2014, plaintiff was notified

that legal materials were stored in the law library and he had
access to those materials.
5, 8, 9(b)).

(Docket Entry # 244-22, pp. 1-2, ¶¶

To the extent plaintiff challenges the

regulation’s security or safety purposes because delivering the
box to plaintiff in segregation in accordance with Sullivan’s
purported order50 would not have compromised “SCSD[’s] interest

Plaintiff submits that Trotman and Dorgan violated Sullivan’s
purported order to deliver all of plaintiff’s legal material to
plaintiff in segregation. (Docket Entry # 252, p. 67). If
Sullivan did not give the order to Trotman and Dorgan, plaintiff
alternatively argues that she ordered Dorgan and Trotman to
50

75

in security or safety” (Docket Entry # 252, p. 11), a breach of
security is not required to uphold “a regulation designed to
prevent it.”

Kuperman, 645 F.3d at 75.

Indeed, the First

Circuit in Kuperman rejected a similar argument, namely, that
“[Kuperman] personally would not have posed a security risk,” as
a “non-starter[].”

Id.

Moreover, the regulation’s interest

involves safety in the context of preventing fires.
In short, reducing fire hazards is a legitimate safety
concern in a prison environment.

Limiting the written materials

an inmate can possess in his cell has a rational connection to
this legitimate interest.

Therefore, the first factor weighs

decidedly in favor of Trotman and Dorgan.
Proceeding to the second Turner factor, plaintiff argues
that alternative channels to exercise his right to free speech
do not exist and that “the only alternative channel” is “to recreate new music, books, business plans, [and] screen plays.”
(Docket Entry # 252, p. 65).

Defendants point out that Policy

S403 allows inmates to possess written materials in their cells
as long as the quantity does not exceed one cubic foot.
Entry # 243, p. 10) (citing Docket Entry # 244-10).

(Docket

They also

confiscate and destroy plaintiff’s property during the May 29,
2014 inventory in retaliation for plaintiff filing grievances.
(Docket Entry # 252, pp. 15-16, 21-23, 28-29, 33-34, 45-46, 53,
58-59, 68, 77-78, 90-91).
76

maintain there is no evidence of a loss or destruction of the
property.

(Docket Entry # 243, pp. 10-11).

Here again, the evidentiary quality materials that comprise
the summary judgment record establish that Trotman and/or Dorgan
did not destroy plaintiff’s intellectual property and that
alternative means existed for plaintiff to exercise his First
Amendment right of expression.

Policy S403 does not restrict

all written materials in plaintiff’s cell.

Rather, it allows

the possession in the cell of up to one cubic foot of writing
materials, correspondence, and legal materials (Docket Entry #
244-10, p. 3, ¶ IV(C)(1)) thereby giving plaintiff an
alternative means to write screenplays, formulate business
plans, and write music lyrics.

Policy S422, in turn, allows

plaintiff to possess a legal pad and pen in segregation thus
affording him a similar opportunity.
5, ¶ V(B)(4)).

(Docket Entry # 244-11, p.

As the summary judgment target, plaintiff fails

to sufficiently show he lacked these materials.

The foregoing

alternative means set out in the regulations satisfy the second
Turner factor.

See, e.g., Kuperman, 645 F.3d at 76 (alternative

means to exercise religion set out in regulation “demonstrate
that Kuperman had available to him alternative means to exercise
his right to free expression of his religion”); see also
Overton, 539 U.S. at 135 (alternatives “need not be ideal,
however; they need only be available”).
77

Plaintiff’s argument that SCHOC did not leave open
alternative channels because “the only alternative channel would
be to re-create new music, books, business plans, and screen
plays” (Docket Entry # 252, pp. 65-67) does not forestall
summary judgment.

Plaintiff had the means to write other music,

books, screenplays, and business plans with the allowable legal
pad, writing materials, pen, and correspondence (Docket Entry #
244-10, p. 3, ¶ IV(C)(1)) (Docket Entry # 244-11, p. 5, ¶
V(B)(4)).

See Singer v. Raemisch, 593 F.3d 529, 539 (7th Cir.

2010) (confiscation of handwritten fantasy game manuscript and
prohibition on possessing Dungeons and Dragons fantasy game and
related material did not preclude inmate “from expressing
himself by writing another work of fiction” or “possessing other
reading material” thereby satisfying second Turner factor); see
also Hudson v. Spencer, 2018 WL 2046094, at *3 (“‘pertinent
question’” regarding second factor “‘is not whether plaintiffs
have been denied specific religious accommodations, but whether,
more broadly, the prison affords the inmates the opportunities
to exercise their faith’”) (internal citation omitted).

Like

the first factor, the second factor weighs in Trotman and
Dorgan’s favor.
With respect to the third Turner factor and to the extent
plaintiff challenges the one cubic foot limit, accommodating
plaintiff’s First Amendment right of expression would result in
78

plaintiff possessing in excess of the one cubic foot of writing
materials in his cell.

The accommodations would logically

increase the stated fire hazard in cells (Docket Entry # 244-10,
pp. 1, 4, ¶¶ I(B)(1), V(A)(6)) creating a risk to other inmates.
See Overton, 539 U.S. at 135 (noting, in conjunction with third
factor, that “[a]ccommodating respondents’ demands . . . would
impair the ability of corrections officers to protect all who
are inside a prison’s walls”).

Accordingly, in this respect,

the third factor weighs in Trotman and Dorgan’s favor.

To the

extent plaintiff does not challenge the one cubic foot limit,
the third factor is relatively neutral or favors plaintiff.
Turning to the fourth and final factor, the inquiry entails
“whether the prisoner has pointed to some obvious regulatory
alternative that fully accommodates the asserted right while not
imposing more than a de minimis cost to the valid penological
goal.”

Overton, 539 U.S. at 136; Kuperman, 645 F.3d at 77

(quoting Overton, 539 U.S. at 136); see Turner, 482 U.S. at 91
(if inmate “can point to an alternative that fully accommodates
the prisoner’s rights at de minimis cost to valid penological
interests, a court may consider that as evidence that the
regulation does not satisfy the reasonable relationship
standard”).

“[P]rison officials do not have to set up and then

shoot down every conceivable alternative method of accommodating
the [inmate’s] constitutional complaint.”
79

Turner, 482 U.S. at

90-91.

Moreover, the existence of other alternatives to the

limits posed by the regulations upon possessing written
materials, including legal paperwork, inside cells does not
necessarily meet this high standard.

See Hudson v. Spencer,

2018 WL 2046094, at *3 (“existence of additional alternatives
does not affect the balance, as the First Amendment does not
require that plaintiffs be afforded their preferred
alternatives”); see also Overton, 539 U.S. at 136.
Plaintiff does not offer a ready alternative designated as
such.

Rather, he submits that Dorgan and Trotman had a duty to

follow Sullivan’s alleged order to bring all of plaintiff’s
legal property to him in segregation.
67-68).

(Docket Entry # 252, pp.

To the extent plaintiff suggests an alternative of

being allowed to possess excess quantities of legal and
intellectual property in his segregation or general population
cell, this alternative would impose more than a de minimus
increased risk of a fire hazard.

The fourth factor weighs in

Trotman and Dorgan’s favor.
Finally, insofar as plaintiff alleges that Trotman and
Dorgan confiscated and destroyed the property for the purpose of
causing plaintiff pain (Docket Entry # 100, ¶ 50), it is true
that “confiscation of a prisoner’s written work for no other
reason than to cause emotional pain might support a First
Amendment claim under” the Turner analysis.
80

Latimore v. Dep’t

of Corr., 2013 WL 6181082, at *12.

Plaintiff nevertheless fails

to sufficiently show, via materials of evidentiary quality, that
the yellow legal pads, music lyrics and other items of his
intellectual property were confiscated or destroyed as opposed
to simply lost, misplaced, or not misplaced at all.

See id.

(dismissing First Amendment expression claim because “plaintiff
has failed to allege sufficient facts to show that his legal
pads were confiscated rather than lost or misplaced”).
Overall, plaintiff fails to offer materials of evidentiary
quality that would dispute defendants’ showing that SCHOC’s
restrictive policy was reasonably related to the legislative
penological interest of avoiding the fire hazard posed by
excessive paper and materials in a cell.

Even if plaintiff’s

property was destroyed, plaintiff had access to other materials
and the means to express himself through new works.

See

Overton, 539 U.S. at 135; Singer, 593 F.3d at 538-39.

Count II

is therefore subject to summary judgment.
IV.

Sixth Amendment Right to Counsel and Access to Courts

(Count III)
Count III alleges a section 1983 violation of plaintiff’s
Sixth Amendment rights against Trotman, Dorgan, and Sullivan.51

Plaintiff maintains that Allen is liable in Count III.
(Docket Entry # 252, p. 37). He is mistaken. As previously
explained, the governing complaint (Docket Entry ## 100, 185)
51

81

Defendants move for summary judgment on the basis that Trotman,
Dorgan, and Sullivan did not destroy plaintiff’s legal materials
and did not interfere with either plaintiff’s right to counsel,
or the interrelated right of access to the courts.
Entry # 243, pp. 11-12, 14-15).

(Docket

With respect to the right to

counsel claim, defendants argue they did not violate plaintiff’s
right to counsel because they did not unreasonably interfere
with his ability to consult with counsel and they did not
destroy his legal materials.

(Docket Entry # 243, pp. 11-12).

Regarding the right of access claim, defendants maintain that
plaintiff did not suffer a loss of his legal work and he fails
to show an actual injury.

(Docket Entry # 243, pp. 14-15).

Plaintiff responds that the confiscation and destruction of
his legal materials violated his Sixth Amendment right to
counsel and he does not need to show an actual injury to
establish a denial of his Sixth Amendment right to counsel
because it is a direct constitutional right rather than a
derivative right, such as the access to prison law libraries and
legal assistance programs at issue in Lewis v. Casey, 518 U.S.

includes the statement of facts and claims that added Allen as a
defendant (Docket Entry # 185). In filing the statement, this
court instructed plaintiff to “identify[] the causes of action
in the existing complaint that plaintiff seeks to bring against
Sullivan and Allen.” (Docket Entry # 174, p. 7) (emphasis in
original). With respect to Count III, the statement only
identifies Sullivan, not Allen. (Docket Entry # 185, p. 5).
82

343 (1996).

(Docket Entry # 252, pp. 38-39).

Plaintiff

additionally reasons he does not need to show an actual injury
under Lewis, 518 U.S. at 349, because he had the status of a
pretrial detainee inasmuch as he was defending against three,
open criminal prosecutions against him during the relevant time
period.

(Docket Entry # 252, pp. 38, 41-42).

Both arguments

rely heavily on Benjamin v. Fraser, 264 F.3d 175, 184-188 (2d
Cir. 2001), which plaintiff extensively quotes.

(Docket Entry #

252, pp. 37-43).
Before proceeding to the analysis, it is worth outlining
the contours of Count III.

First and foremost, Count III raises

a denial of the right to counsel claim under the Sixth
Amendment.

(Docket Entry # 100, ¶ 54).

Plaintiff describes

“[t]he crux” of the claim as the confiscation and disposition of
his “legal materials,” which deprived him of the research
“intended for his counsel to employ” to defend plaintiff in the
three criminal prosecutions.

(Docket Entry # 252, p. 38).

Plaintiff asserts he “had a protected constitutional right to
effective communication with his counsel, which includes the
right to furnish counsel with the complete research and
applicable law” to defend against these prosecutions.

(Docket

Entry # 252, p. 40).
It is debatable whether Count III also raises a denial of
access to the courts claim even though defendants argue that
83

this claim is subject to summary judgment (Docket Entry # 243,
pp. 14-15).

Plaintiff repeatedly distinguishes his right to

counsel claim from a denial of access to courts claim on the
basis that the latter requires an actual injury whereas the
former does not.

(Docket Entry # 252, pp. 37-43).

Indeed, in

opposing summary judgment, plaintiff states he “is not arguing
that his right to access the courts has been violated, but that
his Sixth Amendment right to counsel has been violated,” and it
is “the right to counsel in this claim and not the right to
access the courts.”

(Docket Entry # 252, pp. 39, 43).

Although

plaintiff’s opposition eschews the assertion of a denial of
access to courts claim, Count III cites Bounds v. Smith, 430
U.S. 817, 828 (1977), overruled on other grounds by Lewis v.
Casey, 518 U.S. 343, 354-55 (1996),52 and asserts that “an
absolute deprivation of access to all legal materials” obviates
the need to plead an actual injury.

(Docket Entry # 100, ¶ 59).

Similarly, in opposing summary judgment, plaintiff argues that
he “need not prove” the actual injury requirement.
Entry # 252, pp. 47-48).

(Docket

Accordingly, out of an abundance of

caution and because defendants seek to dismiss the claim (Docket

Bounds addressed an access to the courts claim and determined
that prison authorities are required “to assist inmates in the
preparation and filing of meaningful legal papers by providing
prisoners with adequate law libraries or adequate assistance
from persons trained in the law.” Bounds, 430 U.S. at 828.
52

84

Entry # 243, pp. 14-15), this court will address the access to
courts claim even though it is debatable whether the complaint
includes such a claim.

Thereafter, this court addresses the

right to counsel claim.
A.

Access to Courts Claim
Turning to the access to courts claim, defendants argue it

is deficient because plaintiff fails to show he suffered a loss
of his legal materials or an actual injury.
243, pp. 14-15).

(Docket Entry #

They are correct on both fronts.

As to the first argument, the materials of evidentiary
quality in the summary judgment record show that Sergeant Depina
returned plaintiff’s property to plaintiff on June 3, 2014,
except for the W.B. Mason box of printed legal cases.53
Entry # 252-1, pp. 87, 92).

(Docket

Thereafter, Misci delivered the

copy box of legal materials to plaintiff in late June 2014, and
on July 22, 2014, plaintiff received notice that the legal
materials in the manila envelopes were in the law library.
(Docket Entry ## 244-12, 244-13) (Docket Entry # 244-22, ¶ 9(b))
(Docket Entry # 244-9, ¶ 10).

Throughout his incarceration at

SCHOC, plaintiff’s additional excess legal materials were stored
in the law library, temporarily in the segregation property
room, and/or stored by ILS and made available to plaintiff.

Depina also did not return assorted canteen items.
Entry # 252-1, pp. 87, 92).
53

85

(Docket

(Docket Entry # 244-22, ¶¶ 8-9) (Docket Entry # 244, p. 9, ¶ 45)
(Docket Entry ## 244-12, 244-13) (Docket Entry # 272, Ex. 13B,
13C).

This evidence, together with the affidavits by Sullivan,

Dorgan, and Trotman that they did not destroy or confiscate
plaintiff’s personal property or legal materials (Docket Entry #
244-3, ¶ 11) (Docket Entry # 244-5, ¶ 5) (Docket Entry # 244-7,
¶ 6), establishes that: plaintiff received the W.B. Mason copy
box of legal papers by late June 2014; had access to his other
legal papers stored in the law library as of July 22, 2014; and
the foregoing defendants did not destroy or confiscate
plaintiff’s property on May 29, 2014.

Accordingly, at most,

plaintiff experienced a temporary loss of a portion of his legal
materials.
With respect to defendants’ second argument, inmates
undeniably have a constitutional right of access to the courts.
Boivin v. Black, 225 F.3d 36, 42 (1st Cir. 2000).
“‘[M]eaningful access to the courts is the touchstone.’”
518 U.S. at 351 (internal citation omitted).

Lewis,

To establish a

violation of the right of access to the courts, an inmate must
“show actual injury.”

Boivin, 225 F.3d at 43 n.5 (citing Lewis,

518 U.S. at 349); accord Stile v. Cumberland County Sheriff,
2:14-cv-00406-JAW, 2018 WL 4688722, at *21 (D. Me. Sept. 28,
2018) (“prisoner’s right to access the courts, however, requires
a showing of actual injury to that right”) (citing Lewis, 518
86

U.S. at 349).

There is no “abstract, freestanding right to a

law library or legal assistance, [and] an inmate cannot
establish [the] relevant actual injury simply by establishing
that his prison’s law library or legal assistance program is
subpar in some theoretical sense.”

Lewis, 518 U.S. at 351.

Rather, the inmate must “demonstrate that the alleged
shortcomings in the library or legal assistance program hindered
his efforts to pursue a legal claim.”

Id.

The Supreme Court in

Lewis “defined” an “actual injury” as ‘a nonfrivolous legal
claim being frustrated or impeded.’”

Boivin, 225 F.3d at 43 n.5

(quoting Lewis, 518 U.S. at 353) (internal ellipses and brackets
omitted).
Here, during the time period from the alleged confiscation
on May 29, 2014, until plaintiff’s August 8, 2014 release from
SCHOC, plaintiff was able to file motions in ongoing criminal
proceedings, had access to the law library and the ILS program
(except for the limited time period in segregation), and had
counsel representing him in the ongoing criminal proceedings.
He also filed pro se motions, including to remove his counsel
and proceed pro se, during this time period in Massachusetts
Superior Court (Suffolk County) (“Massachusetts state court” or
“Massachusetts Superior Court”).

(Docket Entry # 244-24, pp.

22-23) (Docket Entry # 244-25, p. 15).

Although he states he

had “a trial date set for June 23rd, 2014” and was unable to
87

“prepare motions in limine or suppression and dismiss motions”
(Docket Entry # 252-1, p. 87), what took place on June 23, 2014
in Massachusetts state court was plaintiff’s filing of the pro
se motion to remove counsel and a pro se motion to preserve
evidence.

(Docket Entry # 244-24, p. 22).

The examples provided by the Court in Lewis of actual
injuries demonstrate that plaintiff’s circumstances fall
decidedly short of creating a genuine issue of the requisite
injury.

See, e.g., Lewis, 518 U.S. at 351 (having a complaint

dismissed for technical reason because deficiencies of law
library prevented inmate from learning about the technical
requirement; inmate so stymied by inadequacies of law library
that he could not file a complaint).

In addition, district

court cases in the First Circuit involving allegations of denied
access to trial-related documents, denied access to necessary
legal materials, and temporary confiscation of legal materials
either dismiss such allegations under Fed. R. Civ. P. 12(b)(6)
or, alternatively, on summary judgment.

See Diaz v. Mass. Dep’t

of Corr., Civil Action No. 16-11894-LTS, 2017 WL 3891664, at *1,
2-4 (D. Mass. July 26, 2017); Perry v. Spencer, Civil Action No.
12-12070-LTS, 2015 WL 628538, at *3 (D. Mass. Feb. 12, 2015);
Felton v. Lincoln, 429 F. Supp. 2d 226, 239-40 (D. Mass. 2006).
Accordingly, plaintiff fails to show a genuinely disputed issue
vis-à-vis actual injury as to the access to courts claim.
88

Moreover, the implication in the complaint that an
“absolute deprivation of access to all [of plaintiff’s] legal
materials” satisfies the actual injury requirement (Docket Entry
# 100, ¶ 60) is mistaken and, in any event, the summary judgment
facts show that plaintiff does not fall within the reach of such
an exception.

Justice Souter’s opinion in Lewis cites a

plethora of circuit court cases, including Sowell, 941 F.2d at
35, which dispense with the actual injury requirement in cases
involving a “complete and systemic denial of all means of court
access.”

Lewis, 518 U.S. at 400 & n.2.

The majority opinion,

however, rejects Justice Souter’s suggestion to waive the
“actual-injury requirement in cases involving . . . [a]n
absolute deprivation of access to all legal materials” because
it “rests upon the expansive understanding of Bounds that we
have repudiated.”

Lewis, 518 U.S. at 353 n.4 (ellipses added)

(brackets in original) (internal citation and quotation marks
omitted); see Cowan v. Page, Civil Action No. 5:16cv14, 2016 WL
4227885, at *3 (E.D. Tex. Aug. 11, 2016) (“[a]lthough Justice
Souter argued inmates need only have a ‘concrete grievance’ in
order to show actual injury, . . . Supreme Court majority
rejected this view”).
Quoting Sowell, 941 F.2d at 35 (“absolute denial of access
to all legal materials, like an absolute denial of access to a
law library or other basic form of legal assistance, might be
89

deemed inherently prejudicial” in access to courts claim)
(emphasis in original), a number of district courts in this
circuit nevertheless recognize a limited exception to the actual
injury requirement in access to courts claims in cases of
systemic and widespread lack of access.

See Perry v. Spencer,

2015 WL 628538, at *3 (citing Sowell, 941 F.2d at 34-35).
Specifically, “‘[w]here the challenge is systemic, embracing the
basic adequacy of materials and legal assistance made available
to all or subgroups of the prison population’ or ‘the conditions
challenged obviously go the heart of any meaningful access to
libraries, counsel, or courts,’ no actual injury may be needed.”
Felton, 429 F. Supp. 2d at 240 n.7 (quoting Ferreira v. Duval,
887 F. Supp. 374, 381 (D. Mass. 1995) (quoting Sowell, 941 F.2d
at 34-35)).
Assuming arguendo that this principle survives Lewis, 518
U.S. at 351-353, the access to courts claim in the case at bar
does not fall within the reach of this exception.

First, as

explained above, the facts do not give rise to a genuine issue
that Trotman and Dorgan confiscated all of plaintiff’s legal
materials or that Sullivan issued an order to Trotman and Dorgan
to deliver all of plaintiff’s legal materials to plaintiff in
segregation, which Trotman and Dorgan then failed to follow.
Rather, the record shows that Sergeant Depina returned all of
plaintiff’s property inventoried on May 29 to plaintiff on June
90

3, 2014, except for the W.B. Mason box of printed legal cases
and the bag of manila envelopes with legal paperwork; Misci
thereafter delivered the copy box of legal materials to
plaintiff in late June 2014; and on July 22, 2014, plaintiff
received notice that legal materials in the manila envelopes
were in the law library.

Second, plaintiff had some legal

materials in segregation, and, in late 2013 and in 2014,
plaintiff had access to the law library and was represented by
counsel in ongoing criminal proceedings (Docket Entry # 244-24,
pp. 20, 22) (Docket Entry # 244-25, pp. 13-15)54 thus belying any
systemic and widespread condition that would dispense with the
actual injury requirement.

See Felton, 429 F. Supp. 2d at 240

n.7; see also Diaz v. Mass. Dep’t of Corr., 2017 WL 3891664, at
*3 (citing First Circuit case as “holding that a Massachusetts
state prisoner confined in a Kansas prison was not denied access
to the courts, despite his lack of access to Massachusetts legal
materials, because he had access to a law school clinical
program”).
B.

Right to Counsel Claim

“During relevant time periods, [plaintiff] had three pending
criminal matters in Suffolk Superior Court: 1384 CR 10977” (“CR
10977”); 1384 CR 11140 (“CR 11140”); and 1484 CR 11124 (“CR
11124”). (Docket Entry # 244, p. 9, ¶ 47) (Docket Entry ## 24424 to 244-26) (Docket Entry # 252-1, pp. 87, 92).
54

91

Turning to the right to counsel claim, this court will
assume, for purposes of argument only, that a showing of an
actual injury is not required in the context of this case.55
Plaintiff presents the claim as based on the right-to-counsel
law in Benjamin, 264 F.3d at 185-186, applies (Docket Entry #
252, pp. 37-43).

In addition, both plaintiff and defendants

concur that, “in the context of the right to counsel,
unreasonable interference with the accused person’s ability to
consult counsel is itself an impairment of the right.”

Id. at

185; (Docket Entry # 243, p. 11); (Docket Entry # 252, p. 40);
see generally Thore v. Howe, 466 F.3d 173, 181 n.1 (1st Cir.
2006).
As previously noted, defendants argue that Trotman, Dorgan,
and Sullivan did not violate plaintiff’s right to counsel

The assumption that an actual injury is not required is made
dubitante because the actual injury requirement “derives
ultimately from the doctrine of standing, a constitutional
principle that prevents courts of law from undertaking tasks
assigned to the political branches.” Lewis, 518 U.S. at 349.
Prejudice is also required in other right to counsel claims,
such as when the government intrudes upon an inmate defendant’s
confidential communications with his counsel. See Palermo v.
Wrenn, Civil No. 11-cv-337-JL, 2012 WL 405493, at *4-5 (D.N.H.
Feb. 8, 2012); see also United States v. Mastroianni, 749 F.2d
900, 907-908 (1st Cir. 1984).
Separately, this court is not convinced by plaintiff’s
argument that he has the status of a pretrial detainee. Rather,
as he forthrightly acknowledges, he was “serving a sentence at
SCHOC” prior to his August 8, 2014 release. (Docket Entry #
252, p. 39). Irrespective of plaintiff’s status, summary
judgment remains appropriate.
55

92

because they did not interfere with plaintiff’s ability to
consult with his attorney.

(Docket Entry # 243, pp. 11-12).

They point out that “[w]ell before the May 29, 2014 properly
incident, [plaintiff] was represented by defense counsel on two
criminal matters.”

(Docket Entry # 243, p. 11).

They further

maintain they “did not destroy his legal materials.”
Entry # 243, p. 11).

(Docket

Turning to Benjamin in light of

plaintiff’s reliance on the case to present the right to counsel
claim, the court determined that when an inmate raises a denial
of the right to counsel based on impeding his ability to visit
and meaningfully consult with his attorney representing him in
an ongoing criminal proceeding, the right to counsel is impaired
when there is an “unreasonable interference with [his] ability
to consult [with] counsel.”

Benjamin, 264 F.3d at 185; accord

O’Mara v. Hillsborough Cnty Dep’t of Corr., No. 08–cv–51–SM,
2008 WL 5077001, at *8 (D.N.H. Nov. 24, 2008) (“‘[I]n the
context of the right to counsel, unreasonable interference with
the accused person’s ability to consult counsel is itself an
impairment of the right.’”) (quoting Benjamin, 264 F.3d at 185).
The issue therefore reduces to whether a genuinely disputed fact
exists that Sullivan, Trotman, and/or Dorgan unreasonably
interfered with plaintiff’s ability to consult with his counsel
in one of more pending criminal prosecutions.

93

Plaintiff maintains these defendants interfered with his
right to effectively communicate with his attorney by
confiscating, destroying, or losing all of his legal materials
thereby denying him “the right to furnish counsel with the
complete research and applicable law related to his defenses.”
(Docket Entry # 252, p. 40).

First, the summary judgment record

fails to establish a genuinely disputed fact that these
defendants confiscated or destroyed plaintiff’s legal materials.
Rather, plaintiff experienced a temporary loss of a portion of
his legal papers, namely, the copy box of legal papers and the
manila folders with legal materials.

During this time period,

there is no indication that plaintiff sought to consult with his
then-appointed attorney in CR 10977 or CR 11140.

Contrary to

plaintiff’s argument (Docket Entry # 252, pp. 42-43), the
summary judgment record does not evidence that Sullivan ordered
Dorgan to deliver all of plaintiff’s legal property to plaintiff
in segregation or that Dorgan did not adhere to any such
purported order.

Likewise, and again contrary to plaintiff’s

argument (Docket Entry # 252, pp. 45-46), the summary judgment
record fails to evidence that Sullivan ordered Dorgan or Trotman
to confiscate or destroy plaintiff’s legal property.
Second, in December 2013, the Massachusetts Superior Court
appointed counsel to represent plaintiff in CR 10977 (Docket
Entry # 244-24, p. 20) and CR 11140 (Docket Entry # 244-25, p.
94

13).

On May 19, 2014, plaintiff attended court proceedings in

these cases, during which the court allowed the withdrawal of
plaintiff’s appointed counsel and appointed a different attorney
to represent plaintiff.

(Docket Entry # 244-24, p. 22) (Docket

Entry # 244-25, pp. 14-15).

In June 2014, the attorney in CR

10977 filed a motion to withdraw, and plaintiff filed a pro se
motion to remove him and proceed pro se.
24, p. 22).

(Docket Entry # 244-

In July 2014, the attorney in CR 11140 filed a

motion to withdraw, and plaintiff filed a pro se motion to
remove him and proceed pro se (Docket Entry # 244-25, p. 15).
The court did not immediately act on either motion.
Entry # 244-24, p. 22).

(Docket

On July 31, 2014, plaintiff again

attended court proceedings in CR 10977 and CR 11140, during
which the court allowed the motion to withdraw and appointed
another attorney to represent plaintiff.

(Docket Entry # 244-

24, pp. 20, 22-23) (Docket Entry # 244-25, p. 15).

Plaintiff

fails to demonstrate that by this time (July 31, 2014) he did
not have access to the missing legal materials.

Notably, there

is no showing that Sullivan, Trotman, and/or Dorgan interfered
with plaintiff’s opportunity to consult with these attorneys in
these court proceedings.

See Leniart v. Murphy, Civ. No.

3:11CV01635(SALM), 2016 WL 1273166, at *1, 4-5, 7-9 (D. Conn.
Mar. 31, 2016) (inmate’s difficulty in remembering items to
discuss with counsel because of theft of inmate’s handwritten
95

legal notes did not violate Sixth Amendment right to counsel)
(allowing summary judgment and citing, inter alia, Benjamin, 264
F.3d at 185-86).
After plaintiff’s August 8, 2014 release from SCHOC,
plaintiff attended court proceedings on August 14, 2014 in CR
10977 and CR 11140.

(Docket Entry # 244-24, p. 23) (Docket

Entry # 244-25, p. 15).

During these proceedings, the court

ordered his current counsel to serve as stand-by counsel and
allowed plaintiff to proceed pro se.
23) (Docket Entry # 244-25, p. 15).

(Docket Entry # 244-24, p.
Although plaintiff states

by affidavit that the confiscation and destruction of the W.B.
Mason box of legal cases made him unable to prepare motions in
limine and/or a motion to suppress in the context of a June 24,
2014 trial date (Docket Entry # 252-1, p. 87), there was no such
trial date, as previously explained, and plaintiff filed the
motions to suppress with affidavits in January 2015 when he had
stand-by counsel.

(Docket Entry # 244-24, pp. 24-26) (Docket

Entry # 244-25, pp. 16-17).

Moreover, stand-by counsel attended

court proceedings between August 2014 and January 2015, during
which plaintiff had the opportunity to discuss the preparation
of motions in limine at a time when he had his legal materials
or, more specifically, at a time when the materials of
evidentiary quality fail to show a genuinely disputed fact that
plaintiff lacked these materials.
96

Plaintiff also utilized ILS after his release from
segregation.

He acknowledges he worked with an attorney at ILS

and that an ILS paralegal was trying to help him.

(Docket Entry

# 244-15, pp. 17-19, 21-22) (Docket Entry # 244-22, ¶ 6).

More

broadly, the temporary loss of a portion of plaintiff’s legal
materials purportedly on the part Sullivan, Trotman, and/or
Dorgan does not create a genuinely disputed fact rising to the
level of an unreasonable interference with plaintiff’s right to
consult with his counsel.

See Leniart, 2016 WL 1273166, at *1,

4-5, 7-9; accord Benjamin, 264 F.3d at 185-86.

With respect to

the right to counsel claim, defendants are therefore correct
that Sullivan, Trotman, and/or Dorgan did not violate
plaintiff’s right to counsel or unreasonably interfere with
plaintiff’s right to counsel in a manner sufficient to avoid
summary judgment.56

Count III is therefore subject to summary

judgment.
V.

Due Process Claims (Counts IV and VII)

For reasons previously explained, Policy S403 does not
contravene Turner, 482 U.S. at 89-91. See, e.g., United States
v. Trabelsi, Criminal Action No. 06-89 (RDM), 2019 WL 3536611,
at *3-4 (D.D.C. Aug. 2, 2019) (applying Turner analysis in the
context of denying inmate’s Sixth Amendment right to counsel
claim); see also Dupont v. Dubois, No. 96-1459, 1996 WL 649340,
at *4 (1st Cir. Nov. 6, 1996) (rejecting inmate’s complaint
regarding defendants’ seizure of legal materials from inmate’s
cell in excess of one cubic foot under prison’s policy and
noting that seizures did not “cause[] any actual injury to his
right of court access”) (unpublished).
56

97

A.

Count IV
Count IV alleges a procedural due process claim against

Trotman, Dorgan, and Barrows.57

(Docket Entry # 100, ¶¶ 62-67).

Defendants’ argument regarding the procedural due process claim
is twofold.

First, defendants assert that plaintiff fails to

establish that Trotman, Dorgan, and Barrows deprived him of his
property.

Second, even if these defendants deprived plaintiff

of his property, a meaningful postdeprivation remedy was
available.

(Docket Entry # 243, pp. 12-13).

Relying on Logan v. Zimmerman Brush Co., 455 U.S. 422
(1982), plaintiff argues that the confiscation and destruction
was foreseeable and postdeprivation remedies therefore
inadequate.

(Docket Entry # 252, pp. 8-9, 12, 15).

He

maintains that “state officials learned or knew in advance”
about the “possible confiscation and disposal” of his legal
materials because he informed them about the danger.
Entry # 252, p. 12).

(Docket

Plaintiff’s affidavits reflect that, once

he was in segregation, he told an unidentified SCHOC sergeant to
call Barrows and instruct her to oversee the inventory or assign

Plaintiff maintains that Sullivan and Allen are also liable
under Count IV. (Docket Entry # 252, pp. 12, 14-17). The
governing complaint and, more specifically, the short statement
of facts and claims regarding the amendment to include Sullivan
and Allen as defendants, does not name these defendants in Count
IV. (Docket Entry # 185, p. 5). Count IV therefore does not
include Sullivan and Allen as defendants. (Docket Entry # 185,
p. 5).
57

98

a corrections officer “besides” Sullivan and Allen.
Entry # 252-1, pp. 87, 91).

(Docket

Citing Mathews v. Eldridge, 424

U.S. 319 (1976), and other cases, plaintiff additionally argues
that Sullivan exercised discretionary authority when she ordered
Trotman and Dorgan to deliver all of plaintiff’s legal property
to plaintiff in segregation and that Trotman and Dorgan had an
absolute duty to comply with her order.
pp. 10-11).

(Docket Entry # 252,

Alternatively, plaintiff asks this court to draw

the inference that, instead of giving this order, Sullivan58
along with Barrows conspired to destroy plaintiff’s property
because they knew about “plaintiff[’]s prior grievance and
disciplinary history” and Sullivan therefore ordered Trotman and
Dorgan to destroy plaintiff’s property in retaliation for
plaintiff “seeking redress of grievances.”

(Docket Entry # 252,

pp. 14-16).
Turning to defendants’ second argument, to succeed in a
section 1983 procedural due process claim, the plaintiff must
show: (1) the existence of a constitutionally protected
“‘liberty or property interest . . . interfered with by the
State’”; and (2) “‘the procedures attendant upon that
deprivation were constitutionally’” inadequate.

González-

Fuentes v. Molina, 607 F.3d 864, 886 (1st Cir. 2010) (internal

As stated in the previous footnote, Sullivan is not named as
a defendant in Count IV.
58

99

citation omitted).

Defendants maintain that the Parratt–Hudson

doctrine applies (Docket Entry # 243, pp. 12-13) whereas
plaintiff contends that Logan applies and that the factors in
Mathews lead to the conclusion that a postdeprivation remedy is
inadequate and summary judgment inappropriate (Docket Entry #
252, pp. 8-17).
In Parratt, a state inmate alleged a denial of procedural
due process because a state prison guard negligently lost the
inmate’s hobby kit.

Parratt v. Taylor, 451 U.S. 527, 530-31

(1981), overruled in part on other grounds, Daniels v. Williams,
474 U.S. 327 (1986); see San Gerónimo Caribe Project, Inc. v.
Acevedo-Vilá, 687 F.3d 465, 478 n.11 (1st Cir. 2012).

“The

Court held that no predeprivation process was required where
[the] state prison guard negligently destroyed [the] prisoner’s
property, so long as adequate postdeprivation remedies were
available.”

San Gerónimo, 687 F.3d 465, 478 (1st Cir. 2012).

The Court explained that the loss was not the result of an
“‘established state procedure and the State [could] not predict
precisely when the loss [would] occur.’”

Id. at 479 (quoting

Parratt, 451 U.S. at 541); accord Zinermon v. Burch, 494 U.S.
113, 129 (1990) (also quoting Parratt, 451 U.S. at 541).

“The

very nature of a negligent loss of property” by a state prison
guard acting in a random and unauthorized fashion “made it

100

impossible for the State to predict” the loss “and provide
predeprivation process.”

Zinermon, 494 U.S. at 129.

The Court in Hudson v. Palmer extended the reasoning in
Parratt to an intentional destruction of an inmate’s “property
by a state prison guard, explaining that ‘when deprivations of
property are effected through random and unauthorized conduct of
a state employee, predeprivation procedures are simply
“impracticable” since the state cannot know when such
deprivations will occur.’”

San Gerónimo, 687 F.3d at 479

(quoting Hudson v. Palmer, 468 U.S. at 533); accord Zinermon,
494 U.S. at 129-130.

“Whether the state employee knew in

advance of the deprivation was irrelevant; instead ‘[t]he
controlling inquiry is solely whether the state is in a position
to provide for predeprivation process.’”

San Gerónimo, 687 F.3d

at 479 (quoting Hudson v. Palmer, 468 U.S. at 534).

In both

Parratt and Hudson v. Palmer, the state prison guard “was not
acting pursuant to any established state procedure, but,
instead, was” acting in a random and unauthorized manner against
the prisoner.

Zinermon, 494 U.S. at 130.

Here too, whether the loss was intentional or a mistake on
the part of an SCHOC employee in failing to adhere to Policy
S403 and/or Policy S244 and deposit the W.B. Mason box of legal
papers in the correct location, the fact remains that a
predeprivation procedure was impracticable and predeprivation
101

safeguards of no use or value.

As to a negligent loss, “it

‘borders on the absurd to suggest that a State must provide a
hearing to determine whether or not a corrections officer should
engage in negligent conduct.’”
(internal citation omitted).

Zinermon, 494 U.S. at 137

The fact that plaintiff explained

to an unidentified sergeant that the sergeant needed to call
Barrows “and instruct her to oversee or assign a CO to inventory
[plaintiff’s] cell besides Sgt. Sullivan and CO Allen” (Docket
Entry # 252-1, p. 87) does not imply that SCHOC can “predict
precisely when the loss will occur,” San Gerónimo, 687 F.3d at
479 (emphasis added), or render it practicable to engage in a
predeprivation procedure at that time.

As to an intentional

destruction or confiscation of the box of legal materials, an
SCHOC “rule forbidding” staff “to maliciously destroy a
prisoner’s property would not have done any good.”

Zinermon,

494 U.S. 137; id. at 130 (“‘state can no more anticipate and
control in advance the random and unauthorized intentional
conduct of its employees than it can anticipate similar
negligent conduct’”) (quoting Hudson v. Palmer, 468 U.S. at
533).
With respect to plaintiff’s argument that the Mathews
factors control, it is true that Parratt is not an exception to
the Mathews test.

See id. at 129 (“Parratt is not an exception

to the Mathews balancing test”).

Rather, Parratt presents:

102

the unusual case in which one of the variables in the
Mathews equation—the value of predeprivation safeguards—is
negligible in preventing the kind of deprivation at issue.
Therefore, no matter how significant the private interest
at stake and the risk of its erroneous deprivation, see
Mathews, 424 U.S., at 335, 96 S.Ct., at 903, the State
cannot be required constitutionally to do the impossible by
providing predeprivation process.
Zinermon, 494 U.S. at 129.59

The same principle applies to the

intentional deprivation of property.

As elucidated in Zinermon,

both “Parratt and Hudson represent a special case of the general
Mathews v. Eldridge analysis, in which postdeprivation tort
remedies are all the process that is due, simply because they
are the only remedies the State could be expected to provide.”
Id. at 128.
Examining the three reasons the Zinermon Court used to deem
the Parratt–Hudson doctrine inapplicable confirms that
postdeprivations remedies, consisting of a state-law tort claim

The First Circuit summarizes the Mathews three-part test as
follows:
59

Determining the sufficiency of process in a particular
situation requires application of the Mathews v. Eldridge
balancing test, which weighs three factors: (1) the private
interest affected by the government action; (2) “‘the risk
of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of
additional or substitute procedural safeguards’”; and (3)
the state’s interest, “‘including the function involved and
the fiscal and administrative burdens that the additional
or substitute procedural requirement would entail.’”
Perry v. Spencer, 751 F. App’x 7, 11 (1st Cir. Aug. 29, 2018)
(quoting Wilkinson v. Austin, 545 U.S. 209, 224-25 (2005))
(quoting Mathews, 424 U.S. at 335)) (unpublished).
103

for conversion or SCHOC’s internal grievance process, “are all
the process that is due.”

Id.

The first reason is that “the

risk of deprivation of liberty was predictable and was so as to
the particular point . . . when the deprivation would occur.”
San Gerónimo, 687 F.3d at 480 (citing Zinermon, 494 U.S. at
136).

Here, plaintiff’s warning to the unidentified sergeant to

tell Barrows to oversee the inventory or assign a corrections
officer to inventory the property does not make the risk of a
negligent loss or an intentional destruction of the property
predictable at a precise or particular point during the
inventory and storage process.

Under the circumstances, the

particular point when the loss or destruction of plaintiff’s
property would occur was neither predictable nor foreseeable.
See id. (citing Zinermon, 494 U.S. at 133).

Similarly, although

in Parratt:
[the State] could anticipate that prison employees would
occasionally lose property through negligence, it certainly
“cannot predict precisely when the loss will occur.” 451
U.S. at 541, 101 S.Ct., at 1916. Likewise, in Hudson, the
State might be able to predict that guards occasionally
will harass or persecute prisoners they dislike, but cannot
“know when such deprivations will occur.” 468 U.S., at
533, 104 S.Ct., at 3203.
Zinermon, 494 U.S. at 136.
The second reason is that a predeprivation process was not
impossible.

Id. at 136-37.

In contrast, “the very nature of

the deprivation” at issue in Parratt, namely, the negligent loss

104

of the inmate’s hobby kit, “made predeprivation process
‘impossible’” because it was absurd to convene a hearing to
determine if the prison employee would act in a negligent
manner, and, with respect to intentional conduct, the State
“could not anticipate or control [the] random and unauthorized
intentional conduct” of a prison employee.

Id. at 137.

Likewise, as discussed above, SCHOC could not anticipate or
control random and unauthorized conduct given the nature of the
purported negligent misplacement or intentional destruction.
The third reason examines whether the conduct is
“‘unauthorized’ in the sense the term is used in Parratt and
Hudson.”

Id. at 138.

When the State delegates broad authority

to prison employees to effectuate the deprivation, it also
delegates the authority to effect predeprivation procedural
safeguards to guard against the deprivation.

See id.; see also

San Gerónimo, 687 F.3d at 480; Gonzalez v. Dooling, 98 F. Supp.
3d 135, 143 (D. Mass. 2015) (“third consideration can also be
characterized as an inquiry into the scope of discretion
conferred on the state actor”) (citing San Gerónimo, 687 F.3d at
482).

In the case at bar, SCHOC did not delegate broad

authority to prison employees to carry out the inventory and
storage process.

Rather, the policies dictate a specific and

discrete process that takes place when an inmate is removed from
his cell and placed in disciplinary detention.
105

Policy S403

requires two officers “to inventory, package and move all of the
inmate’s property” under a step-by-step procedure.
Entry # 244-10, ¶ V(F)).

(Docket

The officers must secure the property,

inventory each item on a prescribed form, and arrange for the
removal with the area supervisor.
V(F)).

(Docket Entry # 244-10, ¶

Policy S422 lists the exact items that inmates in the

disciplinary segregation unit are allowed to have while housed
in segregation60 and thereby limits the discretion of a prison
employee to transport only those items to disciplinary
segregation unit inmates after an inventory.

(Docket Entry #

244-11, ¶ V(B)) (Docket Entry # 244-9, ¶ 8).

These policies

leave little room for the exercise of discretion on the part of
the prison employees conducting the inventory and storage.

The

employees therefore lacked the broad authority and discretion to
deprive prisoners of their property and the concomitant duty to
initiate procedural safeguards.
Finally, multiple decisions by district courts in the First
Circuit apply the Parratt-Hudson doctrine to lost or stolen
inmate property and conclude that sufficient due process is
afforded by an adequate postdeprivation remedy in the form of a
state law claim for conversion or administrative remedies.
Simpson v. Superintendent, Merrimack Cnty. Dep’t of Corr., Civil

Items include one shower bag, six pairs of socks, and one
towel. (Docket Entry # 244-11, ¶ V(B)).
60

106

No. 13–cv–549–JD, 2014 WL 1404568, at *1, 3 (D.N.H. Apr. 10,
2014) (rejecting due process claim by inmate alleging prison
employees took his legal papers and threw them in trash during
period when he was moved to administrative segregation because
inmate had adequate postdeprivation remedy, i.e., state law
conversion claim); Tolbert v. Clarke, Civil Action No. 10–11643–
RWZ, 2011 WL 2530975, at *3 (D. Mass. June 21, 2011) (“In the
case of lost or stolen property, sufficient due process is
afforded an inmate if he has access to an adequate postdeprivation remedy.”); O’Mara, 2008 WL 5077001, at *11
(dismissing due process claim alleging confiscation of inmate’s
property consisting of correspondence and writing paper because
intentional deprivation does not violate due process if
meaningful postdeprivation remedy is available); Lepine v.
Brodeur, No. CV 97–72–M, 1999 WL 814277, at *16 (D.N.H. Sept.
30, 1999) (denying due process claim alleging lost or stolen
mail order catalogues because “inmates can pursue available
post-deprivation administrative remedies”).

Accordingly, Count

IV is subject to summary judgment.61
Count VII raises a corresponding claim that Barrows and
Sullivan are liable for their failure to supervise the

It is therefore not necessary to address defendants’ first
argument.
61

107

inventory.62

Defendants seek summary judgment on this claim

because the subordinate employees did not commit a
constitutional violation of plaintiff’s right to due process,
and there is no evidence of an affirmative link between their
conduct and the actions of Barrows and/or Sullivan.
Entry # 243, pp. 19-21).

(Docket

Plaintiff argues that Barrows and

Sullivan “failed to supervise their subordinates with deliberate
indifference amounting to gross negligence.”

(Docket Entry #

252, p. 55).
Supervisory liability “under section 1983 has two
elements.”

Parker v. Landry, 935 F.3d 9, 14 (1st Cir. 2019).

First, there must be a showing “that ‘one of the supervisor’s
subordinates abridged the plaintiff’s constitutional rights.’”
Id. (quoting Guadalupe-Báez v. Pesquera, 819 F.3d 509, 514 (1st
Cir. 2016)) (additional citations omitted); Guadalupe-Báez, 819
F.3d at 514 (“plaintiff must show that one of the supervisor’s
subordinates abridged the plaintiff’s constitutional rights”).
Second, there must be “an affirmative link between the
abridgement and some action or inaction on the supervisor’s

To the extent plaintiff maintains that defendants other than
Barrows and Sullivan are liable under Count VII, the governing
complaint names only Barrows (Docket Entry # 100, ¶¶ 81-86)
(Docket Entry # 157, pp. 2-3) and Sullivan (Docket Entry # 185,
p. 5) as defendants.
62

108

part.”

Parker v. Landry, 935 F.3d at 14 (internal citations

omitted).
First and foremost, Count VII is deficient because the
conduct of Trotman, Dorgan, and Barrows did not constitute a
constitutional violation of plaintiff’s right to procedural due
process as previously discussed.

Allen did not violate

plaintiff’s right to due process because he did not participate
in the inventory of plaintiff’s property and, instead, “focused
on completing [the] reports.”

(Docket Entry # 244-4, ¶ 5).

In

addition, as to all four defendants, the existence of available
postdeprivation remedies satisfies due process.

Accordingly,

defendants are correct that the first element of a supervisory
liability claim, a subordinate’s constitutional violation, is
absent.

It is therefore not necessary to examine the remaining

arguments relative to Count VII.

Neither Barrows nor Sullivan

incur supervisory liability in Count VII.

See McInnis v. Me.,

638 F.3d 18, 22 n.4 (1st Cir. 2011) (“[b]ecause there was
probable cause for the officers at the scene to arrest, . . .,
there is no basis for liability” of supervisors); Perry v.
Dickhaut, 125 F. Supp. 3d 285, 299 (D. Mass. 2015) (given
absence of “underlying conduct that was ‘itself violative of a
plaintiff’s constitutional rights,’ the assertion that the
supervisors are also liable fails”).

109

Count VII, like the

underlying due process claim in Count IV, is subject to summary
judgment.
VI.

MCRA Claim (Count V)
Count V sets out MCRA violations against Sullivan and Allen

based on the May 29, 2014 incident and against Libby based on
the August 7, 2014 cell search.

(Docket Entry # 100, ¶¶ 68-73)

(Docket Entry # 185, p. 5) (Docket Entry # 157, p. 28).63

With

respect to the May 29 incident, defendants seek summary judgment
because plaintiff fails to show “a prima facie case” of an MCRA
violation as to Sullivan and Allen.
15-16).

(Docket Entry # 243, pp.

In particular, they submit that plaintiff fails to

establish material facts which show an interference or attempted
interference with plaintiff’s “exercise or enjoyment of rights
guaranteed by the Massachusetts or United States constitution.”
(Docket Entry # 243, p. 15).

They also maintain that neither

Sullivan nor Allen’s conduct on May 29, 2014 involved threats,
intimidation or coercion.

(Docket Entry # 243, pp. 15-16).

Regarding the latter, they point to the absence of evidence that
“Sullivan or Allen placed [plaintiff] in fear, threatened or
coerced him in order to interfere with his rights” and
accurately note that plaintiff was not even present when the
collection and inventory took place.

63

See n.6.
110

(Docket Entry # 243, p.

16).

As to the August 7, 2014 incident, defendants similarly

argue that Libby’s conduct and statements during the cell search
did not rise to the level of threats, intimidation, or coercion.
(Docket Entry # 243, pp. 17-18).
Plaintiff disagrees and contends that Sullivan and Allen
used threats, intimidation, and coercion to prevent him from
exercising his right to file “institutional grievances against
the defendants” and exercise his First Amendment right to be
free from retaliation and their “selective code enforcement.”
(Docket Entry # 252, pp. 70-71).

Moreover, their conduct was

not limited to the confiscation and seizure of plaintiff’s legal
materials, music, and business plans on May 29, according to
plaintiff.

Rather, plaintiff submits their “selective code

enforcement” accompanied by threats, intimidation, and coercion
took place in April and May prior to the May 29, 2014 inventory
and storage of his property.

(Docket Entry # 252, pp. 70-81).

Citing the governing complaint, plaintiff argues that Libby’s
conduct of throwing plaintiff’s legal materials around the cell,
“clearing his entire bunk,” and Libby’s larger size and weight
than plaintiff’s size and weight placed plaintiff “in imminent
fear” of an assault or battery, engendered a “reasonable
apprehension of bodily harm,” and “could be considered
threatening, intimidating or coercive to a normal reasonable
person.”

(Docket Entry # 252, pp. 80-81) (emphasis omitted).
111

The MCRA constitutes “a state-law analogue to 42 U.S.C. §
1983 that provides a statutory civil cause of action against
those who ‘interfere’ with the exercise or enjoyment of rights
secured by federal or state law.”

Nolan v. CN8, the Comcast

Network, 656 F.3d 71, 76 (1st Cir. 2011).

Although the statute

reaches private conduct, it is narrower that section 1983
because it requires “conduct that interferes with a secured
right ‘by threats, intimidation or coercion.’”
Mass. Gen. Laws ch. 12, § 11H).

Id. (quoting

“[I]n order to prevent” the

creation of “a ‘vast constitutional tort,’” the Massachusetts
“Legislature ‘explicitly limited the [statute’s] remedy to
situations where the derogation of secured rights occurs by
threats, intimidation or coercion.’”

Glovsky v. Roche Bros.

Supermarkets, Inc., 17 N.E.3d 1026, 1035 (Mass. 2014) (citations
omitted).

Hence, “‘the derogation of secured rights must occur

by threats, intimidation or coercion.’”

Felix v. Donnelly,

Civil Action No. 12-10997-IT, 2017 WL 2261127, at *7 (D. Mass.
Mar. 28, 2017) (internal citation omitted); see Sheffield v.
Pieroway, 361 F. Supp. 3d 160, 168 (D. Mass. 2019) (to prevail
under MCRA, plaintiff must demonstrate “defendant engaged in the
use of threats, intimidation or coercion”), appeal dismissed sub
nom., Sheffield v. City of Bos., No. 19-2137, 2019 WL 8750044
(1st Cir. Dec. 9, 2019); see, e.g., Brum v. Town of Dartmouth,
704 N.E.2d 1147, 1162 (Mass. 1999) (affirming dismissal because
112

complaint failed to allege threats, intimidation, or coercion)
(internal citations omitted).

Overall, the plaintiff “‘must

prove that (1) the exercise or enjoyment of some constitutional
or statutory right; (2) has been interfered with, or attempted
to be interfered with; and (3) that the interference was by
threats, intimidation or coercion.’”

Glovsky, 17 N.E.3d at 1035

(internal citation omitted); Am. Lithuanian Naturalization Club,
Athol, Mass., Inc. v. Bd. of Health of Athol, 844 N.E.2d 231,
244 (Mass. 2006); accord Croteau v. MiTek Inc., Civil Action No.
19-12171-ADB, 2020 WL 4673532, at *5 (D. Mass. Aug. 12, 2020)
(stating same requirements).
Under the MCRA, “a ‘threat’ consists of ‘the intentional
exertion of pressure to make another fearful or apprehensive of
injury or harm’; ‘intimidation’ involves ‘putting in fear for
the purpose of compelling or deterring conduct’; and ‘coercion’
is ‘the application to another of such force, either physical or
moral, as to constrain him to do against his will something he
would not otherwise have done.’”

Glovsky, 17 N.E.3d at 1035

(internal citations omitted); see Planned Parenthood League of
Mass., Inc. v. Blake, 631 N.E.2d 985, 990 (Mass. 1994) (setting
out same definitions).

The standard to determine “whether

conduct constitutes threats, intimidation or coercion is an
objective, reasonable person standard.”

Kappa Alpha Theta

Fraternity, Inc. v. Harvard Univ., 397 F. Supp. 3d 97, 109 (D.
113

Mass. 2019) (citing Currier v. Nat’l Bd. of Med. Exam’rs, 965
N.E.2d 829, 838 (Mass. 2012)); see Haufler v. Zotos, 845 N.E.2d
322, 335 (Mass. 2006) (using “reasonable person standard to
determine whether Zotos’s conduct constituted threats,
intimidation, or coercion under the act”); Planned Parenthood,
631 N.E.2d at 990 (lower court “correctly applied the objective
standard of whether a reasonable woman . . . would be
threatened, intimidated, or coerced by the defendants’ conduct”)
(emphasis added).
Turning to the May 29, 2014 incident, defendants maintain
that neither Sullivan nor Allen engaged in any threats,
intimidation, or coercion.

For purposes of argument, this court

assumes that plaintiff correctly includes the conduct by
Sullivan and Allen that took place in April and May prior to the
May 29th incident and will consider this conduct as a basis for
finding they engaged in threats, intimidation, or coercion.

In

fact, “[a]n MCRA claim is often based on multiple or repeated
acts that if taken individually would be insufficient to make
out the claim but if taken collectively are sufficient to
constitute threats, intimidation, or coercion.”

Reichenbach v.

Haydock, 90 N.E.3d 791, 798 (Mass. App. Ct. 2017) (collecting
authority).

In the context of a prison environment, however,

neither Sullivan’s nor Allen’s conduct during this time period
would give rise to a reasonable person being threatened,
114

intimidated, or coerced.

A reasonable person under the

circumstances of the prison environment would not be threatened,
intimidated, or coerced to forgo filing grievances by Sullivan’s
slamming a cell door and “yelling and pointing” at plaintiff
(Docket Entry # 252-1, p. 6); Allen ordering plaintiff to “lock
in” on May 25 (Docket Entry # 252-1, p. 86); Sullivan’s warning
that plaintiff would “be receiving a disciplinary report”
(Docket Entry # 252-1, p. 5), see Fed. R. Evid. 801(d)(2); the
filing of disciplinary reports, all of which resulted in guilty
findings on at least one offense charged in each report; and
receiving punishments for committing such offenses consisting of
the two-week loss of canteen privileges, 48 hours of restricted
movement, and less than a week of time served in segregation
with three days suspended.

A reasonable inmate would also not

feel threatened, intimidated, or coerced by the fact that
Sullivan and Allen were assigned to inventory the property on
May 29th and defendants correctly point out that plaintiff was
not present during the collection, inventory, and storage of the
property.

Defendants also correctly point out (Docket Entry #

243, p. 16) that plaintiff fails to meet his underlying burden
to show that Sullivan and/or Allen engaged in threatening,
intimidating, or coercive conduct in order to “‘cause the
plaintiff to give up something that he has the constitutional
right to do.’”

Thomas v. Harrington, 909 F.3d 483, 492 (1st
115

Cir. 2018) (quoting Goddard v. Kelley, 629 F. Supp. 2d 115, 128
(D. Mass. 2009)).
Similarly, a reasonable person in plaintiff’s
circumstances, namely, an inmate about to be released from
prison and being subject to a cell search, would not consider
Libby’s actions on August 7, 2014 as threats, intimidation, or
coercion.

In the course of conducting a cell search, which is

commonplace in prison, Libby ransacked plaintiff’s legal
materials and told plaintiff to throw away the trash in the
context of also asking him if he were pro se.

It is a fact of

prison life that prison officials routinely engage in cell
searches and the statements fall substantially short of threats,
intimidation, or coercion.

See Muldoon v. Dep’t of Corr., Civil

Action No. 15-13892-DJC, 2017 WL 506250, at *4 (D. Mass. Feb. 7,
2017).
VII.

Accordingly, Count V is subject to summary judgment.

IIED Claim (Count VI)
Count VI alleges an IIED claim against Barrows, Trotman,

Dorgan, Allen, and Sullivan based on the May 29, 2014 incident.
Defendants move for summary judgment on the basis that their
“conduct was neither extreme nor outrageous.”
243, pp. 18-19).

(Docket Entry #

Plaintiff argues that Barrows, Trotman,

Dorgan, Allen, and Sullivan’s conduct meets this standard as it
was intentional and violated his constitutional rights.
Entry # 252, pp. 81-91).

(Docket

Plaintiff also relies on the conduct
116

preceding the May 29th incident to avoid summary judgment.
(Docket Entry # 252, pp. 81-91).
An IIED claim requires a plaintiff “‘to show (1) that [the
defendant] intended, knew, or should have known that his conduct
would cause emotional distress; (2) that the conduct was extreme
and outrageous; (3) that the conduct caused emotional distress;
and (4) that the emotional distress was severe.’”

Galvin v.

U.S. Bank, N.A., 852 F.3d 146, 161 (1st Cir. 2017) (quoting
Polay v. McMahon, 10 N.E.3d 1122, 1128 (Mass. 2014)).

“Extreme

and outrageous conduct is behavior that is ‘so outrageous in
character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.’”

Young v. Wells

Fargo Bank, N.A., 717 F.3d 224, 240 (1st Cir. 2013) (quoting
Foley v. Polaroid Corp., 508 N.E.2d 72, 82 (Mass. 1987)).

The

standard is “‘very high’” and is not met “even if the defendant
acted ‘with an intent which is tortious or even criminal,’ with
‘malice,’ or with ‘a degree of aggravation which would entitle
the plaintiff to punitive damages for another tort.’”

Galvin,

852 F.3d at 161 (internal citations omitted); see, e.g., Sneade
v. Rojas, Civil Action No. 11-40061-TSH, 2014 WL 949635, at *8
(D. Mass. Mar. 10, 2014) (defendant officer’s conduct of
shooting plaintiffs’ pet, 85 pound mixed-breed dog, that ran out
of kitchen and barked at officer but then remained sitting,
117

lacked “requisite level of outrageousness and atrocity”); cf.
Chao v. Ballista, 806 F. Supp. 2d 358, 380 (D. Mass. 2011)
(denying motion for new trial on IEED claim and finding that
“demanding fellatio in twenty-three separate places with”
plaintiff, an inmate, “in a correctional institution—was extreme
and outrageous”).
Here, no reasonable factfinder could conclude that the
conduct on May 29 or prior thereto in April and May 2014 was
extreme and outrageous.

On May 29, Trotman, Dorgan, and

Sullivan acted in accordance with Policy S403 and Policy S422.
Allen focused on completing the reports and by and large did not
take part in the inventory of plaintiff’s property.
Entry # 244-4, ¶ 5).

(Docket

Barrows was not present during the

inventory of plaintiff’s property or handle his property.
(Docket Entry # 244-2, ¶ 3).

In April and May, neither Sullivan

nor Allen engaged in extreme and outrageous conduct.

The

disciplinary reports were well founded and any yelling, slamming
of cell doors, and ordering plaintiff to “lock in,” may be
annoying and aggravating but it does not go beyond all possible
bounds of decency.

See Hayes v. Mirick, 378 F. Supp. 3d 109,

117 (D. Mass. 2019) (“mere insults, indignities, threats,
annoyance, petty oppressions, or other trivialities” do not
constitute extreme and outrageous conduct) (internal citations

118

omitted).

The IIED claim is therefore subject to summary

judgment.
VIII.

Eighth Amendment and Substantive Due Process Claims

(Count IX)
Count IX alleges Eighth Amendment violations against
Trotman, Dorgan, Barrows, Allen, and Sullivan grounded upon the
disposal of plaintiff’s legal materials and includes a
Fourteenth Amendment substantive due process claim.64
Entry # 100, ¶¶ 96-101) (Docket Entry # 185).

(Docket

The count is

premised upon defendants’ disposal of all of plaintiff’s legal
materials, which impaired his defenses in the three, pending
criminal cases and caused him “pain and suffering.”
Entry # 100, ¶¶ 96-101).

(Docket

Under the “‘totality of the

circumstances,’” the destruction purportedly resulted in
plaintiff pleading guilty and receiving “3½ to 5½ years in state
prison.”

(Docket Entry # 100, ¶ 99).

The foregoing defendants seek summary judgment on the
Eighth Amendment claim because they did not act with deliberate
indifference.65

(Docket Entry # 243, p. 21).

They point out

See footnote 11.
Defendants do not move for summary judgment on the
substantive due process claim in Count IX. (Docket Entry # 242,
pp. 1-2) (describing Count IX as “Eighth Amendment violations”);
(Docket Entry # 243, p. 2) (same); (Docket Entry # 243, p. 5)
(same); (Docket Entry # 243, p. 21) (addressing only Eighth
Amendment claim regarding Count IX).
64
65

119

that they did not know plaintiff was pro se in the three pending
criminal cases.

Alternatively, they argue there is no showing

that they destroyed any of his legal materials.

(Docket Entry #

243, p. 21).
Plaintiff does not address Count IX and defendants’
arguments to dismiss the count in his 93-page opposition
memorandum (Docket Entry # 252) and therefore waives any
argument to the contrary.

See Eldridge v. Gordon Bros. Grp.,

L.L.C., 863 F.3d 66, 84 (1st Cir. 2017) (rejecting plaintiff’s
argument that district judge should have exercised his
discretion and addressed the merits of plaintiff’s waived
summary judgment argument in plaintiff’s opposition rather than
rely on waiver).

The fact that this court addresses the merits

of defendants’ arguments as an alternative means to allow
summary judgment on Count IX is not intended to avoid this
waiver, which this court reserves as a basis to allow summary
judgment on Count IX.

See Negron-Almeda v. Santiago, 528 F.3d

15, 26 (1st Cir. 2008) (stating “rule” that if party belatedly
raises argument “in the district court but that court, without
reservation, elects to decide it on the merits, the argument is
deemed preserved for later appellate review”) (emphasis added).
“[A] prison official violates an inmate’s Eighth Amendment
right against cruel and unusual punishment ‘based on a failure
to prevent harm’ to the inmate only under two circumstances:
120

‘the inmate must show that he is incarcerated under conditions
posing a substantial risk of serious harm,’ and the prison
official must have acted, or failed to act, with ‘deliberate
indifference to inmate health or safety.’”

Lakin v. Barnhart,

758 F.3d 66, 70 (1st Cir. 2014) (internal citation omitted).
“Deliberate indifference, in this sense, is a mental state akin
to criminal recklessness.”

Surprenant v. Rivas, 424 F.3d 5, 19

(1st Cir. 2005) (citation omitted).

A prison official acts

“with deliberate indifference to inmate health,” including
mental health,66 or to inmate “safety only if the official ‘knows
of and disregards an excessive risk to inmate health or safety;
the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.’”

Calderón-Ortiz

v. LaBoy-Alvarado, 300 F.3d 60, 64 (1st Cir. 2002) (quoting
Farmer v. Brennan, 511 U.S. 825, 837 (1994)); accord
Madison v. Cruz, 359 F. Supp. 3d 135, 144 (D. Mass. 2019)
(applying two-prong deliberate inference standard in Farmer, 511
U.S. at 837, to Eighth Amendment failure to protect inmate’s
safety claim); Madison, 359 F. Supp. 3d at 144 (“‘prison
official may show that even if the risks were obvious to others,

66

See Torraco v. Maloney, 923 F.2d 231, 234 (1st Cir. 1991)
(“eighth amendment also protects against deliberate indifference
to an inmate’s serious mental health and safety needs”).
121

it was not obvious to them’”) (citation omitted); see also Leite
v. Bergeron, 911 F.3d 47, 53-54 (1st Cir. 2018) (affirming lower
court’s summary judgment under subjective prong based on lack of
deliberate indifference and noting “no evidence that Bergeron
had any suspicion that an inmate needed medical attention”)
(also quoting Farmer, 511 U.S. at 837).

Knowledge is required

and “an official’s failure to alleviate a significant risk that
he should have perceived but did not, while no cause for
commendation, cannot under our cases be condemned as the
infliction of punishment.”

Farmer, 511 U.S. at 838.

Here, there is insufficient evidence to allow a factfinder
to find that the above defendants knew about plaintiff’s three,
pending criminal cases or that plaintiff was pro se in these
cases.

Trotman, Allen, Sullivan, Dorgan, and Barrows all state

by affidavit that they did not know plaintiff had pending
criminal matters or that he was pro se as of May 29, 2014.
(Docket Entry # 244-2, ¶ 4) (Docket Entry # 244-3, ¶ 12) (Docket
Entry # 244-4, ¶ 6) (Docket Entry # 244-5, ¶ 7) (Docket Entry #
244-7, ¶ 8).

With the above defendants having asserted the

absence of evidence of knowledge, it was incumbent upon
plaintiff to identify matters of evidentiary quality to the
contrary, which he fails to do.
Defendants’ additional argument that there is no showing
that they discarded or destroyed his legal materials is also
122

well taken thus providing an alternative basis to allow summary
judgment.

As previously discussed, a reasonable factfinder

could not conclude that one or more defendants discarded the
W.B. Mason box of legal papers or the bag of manila envelopes
with legal paperwork.

Rather, Misci delivered the W.B. Mason

box of legal materials to plaintiff in late June 2014; and on
July 22, 2014, plaintiff “was notified that his legal papers
were secured in the law library.”

(Docket Entry # 244-22, p. 2,

¶ 9) (Docket Entry # 252-1, p. 37).

The Eighth Amendment claim

Count IX, whether viewed as deliberate indifference to
plaintiff’s safety or to plaintiff’s mental health, is subject
to summary judgment.67
CONCLUSION
Defendants’ motion for summary judgment (Docket Entry #
242) is ALLOWED.

The substantive due process claim in Count IX

is the only remaining claim in this action.68

The deadline to

file a dispositive motion (Docket Entry # 236) has passed, and
there shall be no extensions.

This court will conduct a status

conference on February 1, 2022, at 2:15 p.m.
/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

In light of the allowance of summary judgment, it is not
necessary to address defendants’ qualified immunity argument.
68
See footnotes 11 and 65.
67

123