Hilario v. FCI Berlin, Warden

Filing 46

ORDER granting 11 Motion to Rescind as outlined, denying 22 Motion to Request that this Court Order the Defendants to Stop Giving Code Violations ; denying 24 Motion to Request Summary Judgment, at the Conclusion of this B ivens Claim Herein ; denying 32 Motion to Request that this Court Orders... [an] Answer to Plaintiffs Constitutional Questions Herein; denying without prejudice as outlined 37 Motion to Dismiss; denying 41 Motion to Request that this Court Ord er the Defendants to Give the Plaintiff Protective Custody Status. The Clerks Office is directed to correct the docket in this matter to indicate that the Oral Orders docketed on August 11, 2014, were docketed in error, and to clarifythat those Orders were in fact taken under advisement on that date.SO ORDERED by Chief Judge Joseph N. Laplante.(cmp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Jose Miguel Hilario
v.

Civil No. 14-cv-193-JL
Opinion No. 2014 DNH 184

Esker L. Tatum, Jr.1

O R D E R
Before the Court is Defendant’s Motion (doc. no. 11) to
rescind this Court’s May 7, 2014 Order (doc. no. 4).

The Order

directed Defendants not to place the Plaintiff, Jose Miguel
Hilario, into “general population” at the Federal Correctional
Institute, Berlin, New Hampshire (“FCI Berlin”), where Hilario
is presently incarcerated, and to house Hilario, to the extent
practicable, in a manner that will keep him safe from harm.

The

Court held an evidentiary hearing on August 11, 2014, on the
Motion to rescind and on Hilario’s request that the Court
maintain the May 7 Order.

Also before the Court are a number of

motions filed by Hilario (doc. nos. 22, 24, 32, and 41) and
Defendants’ Motion to Dismiss (doc. no. 37).

1

The defendants in this action, who are all sued in their
official capacities, are Federal Correctional Institution,
Berlin, New Hampshire employees Warden Esker Tatum, Lt. Jeremy
Hess, and Lt. Howard Andy.

BACKGROUND2
I.

Plaintiff’s Evidence
A.

April 3 and 4, 2014

At the August 11 hearing, Hilario testified that he arrived
at the FCI Berlin on April 3, 2014.

Hilario testified that, at

the time of his arrival, he believed that the inmates with whom
he had been transported to FCI Berlin, and who were subsequently
housed with Hilario at the FCI Berlin, were circulating rumors
about Hilario being a sex offender.3

Upon his arrival at FCI

Berlin, Hilario expressed concern to FCI Berlin staff that he be
housed where it would be safe for him as a sex offender.
Shortly thereafter, at about 8:45 p.m., Hilario was placed on
“C-1 Unit,” in general population.
Hilario’s cellmate on C-1 Unit on April 3, 2014 (“Cellmate
1”), immediately asked Hilario about his incarcerating offense.
Hilario eventually told Cellmate 1 that he was a sex offender.
Cellmate 1 told Hilario that he could not stay on the unit
unless he could produce court papers to demonstrate that he was
2

For purposes of resolving the Plaintiff’s request for an
injunction, and the Defendants’ Motion to Rescind (doc. no. 11),
the Court considers the testimony, argument, and exhibits
presented at the August 11, 2014, hearing in this matter.
3

Hilario is incarcerated pursuant to his convictions for
possession and distributing child pornography. See United
States v. Hilario, 1:08CR00079-01ML (D.R.I.); see also Defs’ Ex.
1.

2

not a sex offender within a month.

The following morning,

Hilario reported Cellmate 1’s statement, which Hilario
understood to be a threat, to the C-1 Unit officer.

Hilario was

immediately transferred to the Special Housing Unit (“SHU”)
while the threat was investigated.
On April 9, 2014, FCI Berlin authorities met with Hilario
and informed him that they could not verify a threat to Hilario
on C-1 Unit.

Warden Esker Tatum directed that Hilario be

returned to C-1 Unit.

On April 13, 2014, the eve of Hilario’s

return to C-1 Unit, Hilario filed an “Inmate Request to Staff”
form, directed to Tatum, stating that he had actually been
assaulted by Cellmate 1 on April 3, 2014, but had not previously
reported the assault because he was afraid for his safety in the
institution if he was identified as a “snitch.”
B.

April 14, 2014

Hilario was returned to C-1 Unit on April 14, 2014.
Hilario states that in his C-1 Unit cell, his cellmate, a
different individual than his cellmate on April 3, 2014
(“Cellmate 2”), stated that Hilario could not stay in that cell,
and punched Hilario on the left side of his face.

Hilario said

that he was in his cell for a short time, approximately three to
five minutes.

3

When Hilario left his cell, he went to the C-1 Unit office
and told the corrections officer there that he wanted to see a
lieutenant.

Hilario was sent to Lt. Jeremy Hess’s office.

Hilario told Lt. Hess that he needed protective custody, and
began to explain what had just occurred in his cell, but Lt.
Hess told Hilario instead to fill out a “Protective Custody”
form.

Lt. Hess placed Hilario in the “tank” to fill out the

form, but two to three minutes later, before Hilario had a
chance to complete the form, and before he had written down that
he was assaulted, Lt. Hess snatched the form out of Hilario’s
hands and told Hilario that he was not going to send him to
protective custody.
A corrections officer then directed Hilario to return to
his cell on C-1 Unit.

Hilario refused, stating that he feared

his life was in jeopardy on that unit.

Accordingly, Hilario was

transferred to SHU and issued a disciplinary incident report for
the refusal.

Hilario testified that later, upon Hilario’s

report that he had been assaulted by Cellmate 2, he was seen and
medically assessed by FCI Berlin Nurse Christine Larin, who
determined that Hilario had an injury on the left side of his
face.
FCI Berlin officials determined again that the alleged
April 14, 2014, threat and assault were not verified, and that

4

Hilario should be returned to a general population unit.
Hilario has remained at SHU, however, since April 14, 2014,
during the investigation of the asserted threat, and, since May
7, 2014, pursuant to the May 7 Order.4
II.

Defendants’ Evidence
A.

April 3 and 4, 2014

On April 3, 2014, Hilario arrived at the FCI Berlin.
During an intake interview with Special Investigative Services
(“SIS”) Technician Glen Brown, Hilario stated that he did not
have any known enemies or threats to him at the FCI Berlin.
Hilario was then placed on C-1 Unit in general population.

On

April 4, 2013, Hilario saw Lt. Hess and requested protective
custody status on the basis that, as a sex offender, he was not
safe in general population, and that inmates had been requesting
to see his court papers to determine whether he was a sex
offender and therefore should get himself removed from C-1 Unit.
Hilario was immediately removed to SHU during an
investigation of the threat alleged.
at SHU.

Brown interviewed Hilario

Hilario reported to Brown that, because he was

4

The Court did not intend for the May 7 Order to serve as a
specific directive to the Defendants to house Hilario in SHU.
At the August 11, 2014, hearing, the Defendants represented to
the Court that SHU is the only alternative to general population
housing at FCI Berlin.

5

incarcerated on a sex offense, he had been asked to produce his
court papers and harassed, both by Cellmate 1 and by Hilario’s
fellow Dominican inmates on C-1 Unit.
On April 6, 2014, Brown interviewed both Cellmate 1 and a
Dominican inmate in connection with Hilario’s allegations.

Both

inmates told Brown that they were not involved with checking
court papers, that they had no issues with Hilario, and that
Hilario could return to C-1 Unit.

Unable to confirm that there

was any threat to Hilario’s safety, Brown recommended that the
alleged threat be deemed unverified, and that Hilario be
returned to general population.

After a meeting on April 9,

2014, attended by Hilario, Brown, Warden Tatum, and other FCI
Berlin officials, Esker told Hilario that he would be returned
to general population.

Hilario was released to C-1 Unit on

April 14, 2014.
B.

April 14, 2014

Hilario arrived on the C-1 Unit at 1:35 p.m. on April 14,
2014.

At approximately 2:45 p.m., Hilario went to the C-1 Unit

lieutenant’s office and reported to Lt. Hess that he had been
threatened and that his life was in danger in general
population, and requested protective custody status.

Lt. Hess

testifed that he spoke with Hilario for 15 - 30 minutes, during
which time Hilario gave at least three different accounts of who

6

had threatened him, first stating it was someone on his unit,
then that it was Cellmate 2, who Hilario described as Hispanic,
and then that it was four to seven of Cellmate 2’s friends on
the unit.

When Lt. Hess said that he could watch the video feed

on the unit to help determine who had made the reported threat,
Hilario stated that it was the same person who had assaulted him
on April 3.

Lt. Hess testified that he asked Hilario a number

of times if he had been assaulted on April 14, 2014, and Hilario
never said that he was hit.
Lt. Hess then gave Hilario a form on which to request
protective custody status, placed Hilario in the holding cell in
his office, and told him to fill out the form.

At that time,

among other inconsistencies in Hilario’s statements, Lt. Hess
determined that Cellmate 2 was African-American, not Hispanic.
Hess also spoke with the C-1 Unit officer, who had not noticed
anything unusual on the unit.5

Hess contacted the SHU and was

5

Although it does not bear on the decision in this Order,
the Court finds it concerning that when FCI Berlin Lt. Derek
Myers testified that the C-1 Unit officer did not notice anyone
threatening or harming Hilario, Lt. Myers added that, as the FCI
Berlin units are large, the officer probably wouldn’t have
noticed such behavior anyway. Under certain circumstances, not
present here, inadequate staffing on a prison housing unit, such
that threat or harm might come to an inmate without being
noticed, and FCI Berlin officials’ awareness of that inadequacy,
could constitute evidence of deliberate indifference to a
serious risk to inmate safety.

7

told that there had been no problems with Hilario’s release from
SHU to C-1 Unit earlier that day.
Lt. Hess testified that because there was “not a whole lot”
of credible information provided by Hilario, he chose not to
pursue Hilario’s request for protective custody.

Lt. Hess

testified that he then snatched the Protective Custody form out
of Hilario’s hands.6

Hess told Hilario that he would not send

him to SHU based on his request for protective custody, and
further advised Hilario that the only way he could get to SHU at
that point was to refuse a direct order to return to general
population.

Lt. Hess also told Hilario that such a refusal

would result in immediate placement in SHU, and the issuance of
a disciplinary report to Hilario for refusing a direct order.
Lt. Hess then told another officer to give Hilario a direct
order to return to his housing unit.

The officer twice directed

Hilario to return to general population.

Hilario refused the

order and was taken to SHU and later issued a disciplinary
report.

6

Lt. Hess testified that the form was ultimately shredded,
but would have been made part of Hilario’s file if the threat
alleged had ultimately been verified. As the Court noted at the
hearing, the destruction of a written request for protective
custody is not a good investigative or administrative practice,
and could be deemed under certain circumstances, although not in
this case, as evidence of deliberate indifference to a serious
risk to an inmate’s safety.

8

At 3:30 p.m., while Hilario was still in the lieutenant’s
office on C-1 Unit awaiting transport to SHU, Lt. Derek Myers
came on duty and relieved Lt. Hess at the end of his shift.

Lt.

Hess told Lt. Myers that Hilario had requested protective
custody status, alleging that he had been threatened, and that
Hilario was scared to stay in general population.

Lt. Hess also

told Lt. Myers that Hilario had refused to return to C-1 Unit
and was thus going to be placed at SHU.

Lt. Myers decided to

conduct his own investigation of the threat incident, and
questioned Hilario briefly before having Hilario escorted to SHU
at approximately 3:50 p.m.

Hilario told Lt. Myers that he had

been threatened, but did not report being assaulted.

Once

Hilario was in SHU, another officer advised Lt. Myers that
Hilario had reported being assaulted on C-1 Unit that day.
Myers then directed that Hilario be medically assessed.
investigation was initiated.

Lt.

An SIS

Lt. Myers reviewed the C-1 Unit

video feed from 1:30 p.m. to 2:45 p.m. on April 14, 2014, and
saw no evidence of an assault on Hilario.

Lt. Myers stated that

the video did not reach into Hilario’s cell, but did show
Hilario going into his cell twice, for no more than six seconds
each time.

Further, Lt. Myers testified that Hilario’s demeanor

on the unit was calm, and that Hilario had a conversation with
Cellmate 2 outside of his cell after leaving his cell for the

9

second time, and then lingered in the common area for
approximately twenty minutes before going to the unit office to
request protective custody status.
Lt. Myers and Lt. Hess both testified that in their
dealings with Hilario between 1:35 p.m. and approximately 7:00
p.m., they saw nothing in Hilario’s appearance to suggest that
he had been assaulted.

A medical assessment was conducted by

FCI Berlin Nurse Christine Larin during the evening of April 14,
2014.

Nurse Larin’s report indicates that Hilario reported

being punched in the left cheek, that Hilario had “slight
redness to [his] left upper cheek” and “some tenderness on
palpation,” but no “raccoon eyes, laceration(s), abrasion(s),
[or] swelling.”
On April 24, 2014, Brown interviewed Hilario concerning his
second protective custody request.

Brown also interviewed other

inmates, including Cellmate 2, who stated that they had not
assaulted or threatened Hilario, and had no issue with him.
Brown also viewed the C-1 Unit video feed from approximately
1:50 to 3:50 p.m., and did not see any evidence of an assault on
the tape.

Brown conceded that he did not view the video for the

first fifteen minutes Hilario spent in C-1 Unit on April 14,
2014, and that the video feed did not provide a view inside
Hilario’s cell.

Based on his investigation, and the fact that

10

Hilario had stated he would be willing to be housed in a general
population unit if no one there presented any threat to him,
Brown recommended that Hilario be released from SHU and returned
to general population.
C.

Sex Offenders at FCI Berlin

Brown testified that, as of the date of the August 11
hearing, there were 86 sex offenders at FCI Berlin.

In addition

to Hilario, five other sex offenders were in SHU based on
allegations that they had been pressured while in general
population to produce their court paperwork.

Eighty sex

offenders were living safely in general population units.
Defendants represented at the hearing that no sex offender
presently at FCI Berlin, other than Hilario, has reported being
assaulted there.

At the hearing, evidence was also presented

that there are 12 general population units at FCI Berlin, and
that if returned to general population, Hilario would not
necessarily be returned to C-1 Unit.
DISCUSSION
I.

Preliminary Injunction Standard
“A plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary

11

relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.”

Winter v. Natural

Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Peoples
Fed. Sav. Bank v. People’s United Bank, 672 F.3d 1, 9 (1st Cir.
2012).

The party seeking the injunction bears the burden of

proof.

See González-Droz v. González-Colon, 573 F.3d 75, 79

(1st Cir. 2009).
II.

Likelihood of Success on the Merits
Demonstrating a likelihood of success on the merits of the

underlying claims in the lawsuit is a prerequisite to obtaining
preliminary injunctive relief.

See Esso Standard Oil Co. v.

Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006) (“if the moving
party cannot demonstrate that he is likely to succeed in his
quest,” preliminary injunctive relief is properly denied without
further analysis).

Hilario’s underlying claim is that the

Defendants violated his Eighth Amendment rights by failing to
protect him from a substantial risk of serious harm when they
assigned him to a general population unit at the FCI Berlin on
April 3, 2014, and again on April 14, 2014.

To show that he is

likely to succeed on the merits of that claim, Hilario must
demonstrate that the Defendants acted with “deliberate
indifference” to a “substantial risk” that Hilario would be

12

subject to “serious harm” in general population.

Farmer v.

Brennan, 511 U.S. 825, 828 (1994) (citation omitted).

To

demonstrate deliberate indifference, Hilario must show that the
Defendants were aware of and disregarded an excessive risk to
his safety.

See id. at 843-44.

A prison official does not

violate the Eighth Amendment if he “respond[s] reasonably to the
risk, even if the harm ultimately was not averted.”

Id. at 844.

In this instance, the testimony from both parties
demonstrated that both times Hilario was placed in general
population and reported a threat to his safety, he was placed in
SHU pending investigation of his allegations.

Although the

testimony at the hearing suggested that the investigations were
not as thorough, objective, or effective as they could have
been, the investigations were sufficient to allow the Court to
find that the Defendants responded reasonably to Hilario’s
allegations under the circumstances presented to them.

Even if

the findings of the investigations were incorrect, or the
investigations were conducted in a negligent fashion, the
evidence at the hearing showed that neither Hilario’s
allegations of threats, nor the potential risk of harm to
Hilario in general population, were disregarded by the
Defendants.

Hilario thus failed to meet his burden to

demonstrate that Defendants acted with deliberate indifference.

13

Accordingly, Hilario did not demonstrate that he is likely to
succeed on the merits of the underlying claims in this action.
III. Irreparable Harm
Even if Hilario were able to demonstrate that he was likely
to succeed on the merits of his underlying claims, he has failed
to demonstrate that he will be subject to irreparable harm
absent an injunction.

Demonstration of irreparable harm in the

absence of an injunction is required to obtain preliminary
injunctive relief.

See Voice of the Arab World, Inc. v. MDTV

Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011) (citing 11A
Charles Alan Wright, Arthur Miller & Mary Kay Kane, Federal
Practice and Procedure § 2948 (2d ed. 1995) (“Perhaps the single
most important prerequisite for the issuance of a preliminary
injunction is a demonstration that if it is not granted the
applicant is likely to suffer irreparable harm before a decision
on the merits can be rendered.” (internal quotation marks and
citation omitted))).

To demonstrate irreparable harm, the

plaintiff must state facts to show more than speculation that he
might suffer harm in the future if the court fails to issue the
requested injunction.

See Narragansett Indian Tribe v.

Guilbert, 934 F.2d 4, 6–7 (1st Cir. 1991) (“‘[s]peculative
injury does not constitute a showing of irreparable harm’”
(citation omitted)).

14

Hilario contends that, as a sex offender, and as someone
who, since reporting the threats that form the basis of this
action, is likely to be labelled a “snitch,” his life will be in
danger if he is returned to general population.

In support of

this assertion, Hilario claims that during each of his two brief
stays in C-1 Unit in April 2014, he was threatened and assaulted
by other inmates because he is a sex offender.

The Defendants

counter that the investigations found no verifiable threat to
Hilario’s safety.
The burden to demonstrate that irreparable harm does exist,
however, is Hilario’s, and he failed to meet it.

As the Court

stated on the record at the August 11 hearing, Hilario has
convinced the Court that he is sincerely afraid for his safety
in a prison setting if he is not placed into protective custody.
However, Hilario failed to present credible evidence at the
hearing that he would, in fact, be in imminent danger of
irreparable harm if the May 7 Order were rescinded.

Hilario’s

accounts of threats and assaults, both at the hearing and at FCI
Berlin, have been inconsistent, at best.

The only other

evidence of assault was a red mark on Hilario’s face, without
swelling, that a nurse saw on the evening of April 14, 2014, but
that neither Lt. Myers nor Lt. Hess, who each spoke at some
length with Hilario that afternoon, received a report of an

15

assault, or saw any mark on Hilario’s face, at that time.
Without more, the evidence of redness on Hilario’s face is
insufficient to lend sufficient credence to Hilario’s account of
events to allow the Court to find that irreparable harm to
Hilario will result if the Court rescinds the May 7 Order.
Even if the Court were to accept, for the sake of argument,
that Hilario was threatened and assaulted on April 3 and April
14, 2014, however, Hilario cannot demonstrate that, absent the
Court’s maintaining the May 7 Order, he would be subject to
irreparable harm.

The evidence at the hearing showed, and

Hilario did not deny, that Hilario need never return to general
population at FCI Berlin if he does not feel safe there,
regardless of the findings of any threat investigation.

Hilario

has the right to refuse to be housed in general population, and
to stay in SHU.

Although refusing general population placement

would result in disciplinary action and sanctions against
Hilario, no nonspeculative evidence was presented at the hearing
indicating that those sanctions would be so severe as to
constitute irreparable harm.
Although Hilario testified that while housed at SHU he was
threatened and assaulted by his cellmate there, he also
testified that FCI Berlin officials, upon Hilario’s report of
that incident, immediately conducted a medical assessment, and

16

protected his safety by moving him to another cell.

Further,

the evidence at the hearing demonstrated, first, that of the 86
sex offenders housed at FCI Berlin as of the date of the
hearing, 80 were being housed safely in general population.
Accordingly, Hilario has failed to meet his burden to
demonstrate that he will suffer irreparable harm if the Court
rescinds the May 7 Order.7
IV.

Other Preliminary Injunction Factors
The Court need not make any finding concerning the balance

of hardships or whether an injunction here would further public
7

The Defendants largely found Hilario’s allegations to be
unverified because Hilario’s statements concerning who had
threatened him, and whether he had been assaulted, were
inconsistent. To determine whether Hilario’s allegations could
be verified, Lt. Myers and Brown watched video feed for April
14, 2014, that did not show the inside of Hilario’s cell, where
Hilario alleged the assault occurred, and, in Brown’s case, did
not include 15 minutes of video feed during which an assault
could have occurred. Further, Brown’s primary investigative
tool appears to have been asking the inmates Hilario had accused
whether they had threatened or assaulted Hilario, and whether
they had any reason to believe Hilario would not be safe in
general population. Brown, for purposes of his investigation,
accepted those inmates’ denials of wrongdoing and assurances
that they had no problem with Hilario. Brown relied on those
statements, despite the fact that he believes inmates tell him
the truth less than ten percent of the time when he asks them
about their alleged wrongdoing, in recommending Hilario be
returned to general population. The Court notes that, while
Plaintiff failed to carry his burden in this instance, the
efforts of the Defendants to determine the validity of an
alleged threat or assault on an inmate, at least as presented at
the August 11 hearing, appear to lack objectivity, thoroughness,
effectiveness, or the delicacy that may be required to get to
the truth in such circumstances.

17

interest, as Hilario has demonstrated neither likelihood of
success on the merits of his complaint nor irreparable harm.
V.

Other Motions
At the August 11, 2014, hearing, the Court announced, on

the record, how it was inclined to rule on a number of motions
pending in this case, including Plaintiff’s: “Motion to Order
the Defendants to Stop Giving Code Violations” (doc. no. 22);
“Motion to Request Summary Judgment at the Conclusion of this
Bivens Claim” (doc. no. 24); “Motion to Request that the Court
Order AUSA to Give Answers to Plaintiff’s Constitutional
Questions” (doc. no. 32); “Motion for Protective Custody Status”
(doc. no. 41); and Defendants’ “Motion to Dismiss” (doc. no.
37).

The Court’s statements concerning these motions were

docketed as oral orders.

The Court’s intention was not to issue

final orders on those matters but, as the Court stated
specifically with regard to the Motion to Rescind (doc. no. 11),
the Court intended to take those matters under advisement, and
to review the evidence prior to issuing its Order.

Accordingly,

the Court now directs that the “Oral Orders” docketed on August
11, 2014, denying the motions docketed at numbers 22, 24, 32,
37, 41, and 42, be vacated.

The Court’s rulings on those

motions are contained in this Order.

18

VI.

Rulings on Other Motions
A.

Plaintiff’s “Motion to Request that this Court Order
the Defendants to Stop Giving ‘Code Violations’. . .”
(Doc. No. 22)

Hilario has asserted that on two occasions in June 2014,
FCI Berlin officials who had not been made aware of the Court’s
May 7 Order, directed Hilario to return to general population,
and then initiated disciplinary action against Hilario when he
refused to do so.

At the August 11 hearing, Defendants admitted

that the May 7 Order had not been effectively communicated to
all relevant FCI Berlin officials.

However, the evidence at the

hearing demonstrated that once approproate officials were made
aware of the May 7 Order, the disciplinary actions and sanctions
imposed thereon were rescinded and/or expunged, and thus did not
impact Hilario. Further, the Court finds that the failure to
communicate its Order, while less than commendable, did not
constitute willful disregard of a Court order sufficient to
warrant a contempt finding, as requested in Plaintiff’s motion.
In his Motion, Hilario also requested an order directing
that he be transferred to a different facility that is safer for
sex offenders.

For the reasons explained above, the Court finds

that no such Order is warranted.
(doc. no. 22) is denied.

19

Accordingly, Hilario’s motion

B.

Hilario’s “Motion to Request Summary Judgment, at the
Conclusion of this Bivens Claim Herein” (Doc. No. 24)

While titled as a motion for summary judgment, Hilario’s
Motion (doc. no. 24) largely reiterates Hilario’s request for
injunctive relief, and also adds a request for compensatory and
punitive damages.

To the extent the Motion reiterates Hilario’s

claim for injunctive relief, it is denied for the reasons stated
in this Order.

If Hilario seeks to add claims for damages to

this action, he must do so by properly filing a motion to amend
his complaint seeking such relief against appropriate
defendants.

Accordingly, the Motion (doc. no. 24) is denied

without prejudice to Hilario filing a motion for summary
judgment or a motion to amend his complaint.
C.

Hilario’s “Motion to Request that this Court Orders .
. . [an] “Answer” to Plaintiff’s Constitutional
Question(s) Herein” (Doc. No. 32)

The Court cannot find any cognizable request for relief in
Hilario’s Motion.

Further, nothing in the Motion appears

relevant to any issue in this case.

Accordingly, the Motion

(doc. no. 32) is denied.
D.

Hilario’s “Motion to Request that this Court Order the
Defendants to Give the Plaintiff Protective Custody
Status . . .” (Doc. No. 41)

Hilario asserts that when he submitted an administrative
grievance requesting protective custody status, FCI Berlin

20

officials informally resolved the grievance.

Hilario believed

the informal resolution included Defendants’ promise to give
Plaintiff protective custody status.

Hilario seeks an Order

directing that the promise be enforced.

The Court finds that no

such promise existed, and thus there is nothing to enforce.
Further, for the reasons explained in this Order and during the
August 11 hearing, the Court finds that directing the Defendants
to place Hilario in protective custody is inappropriate.
Accordingly, the Motion (doc. no. 41) is denied.
E.

Defendants’ “Motion to Dismiss” ((Doc. No 37)

Defendants have filed a motion to dismiss asserting that
Hilario has failed to exhaust his administrative remedies in
this matter.

Because the motion requires consideration of

evidence outside of the pleadings, it is not properly considered
as a motion to dismiss, but instead, as a motion for summary
judgment.

Accordingly, the Motion (doc. no. 37) is denied

without prejudice to Defendants’ refiling the motion as one for
summary judgment.
VII. Notice of Interlocutory Appeal
On August 15, 2014, Hilario filed a document in this matter
entitled “Notice of Appeal” (Docket No. 45-1).

In general, the

District Court loses jurisdiction in a case once a party files a

21

notice of appeal, as such a filing ordinarily transfers
jurisdiction over the case, or at least of matters in the case
related to the appeal, to the appellate court.

However, certain

exceptions to that rule exist.
A district court can proceed, notwithstanding the
filing of an appeal, if the notice of appeal is
defective in some substantial and easily discernible
way (if, for example, it is based on an unappealable
order) or if it otherwise constitutes a transparently
frivolous attempt to impede the progress of the case.
United States v. Brooks, 145 F.3d 446, 456 (1st Cir. 1998).
“Where the order in question is manifestly unappealable, the
court of appeals never gains jurisdiction of it and,
consequently, the district court never loses jurisdiction of
it.”

United States v. Ferris, 751 F.2d 436, 440 (1st Cir. 1984)

(citing 9 Moore's Federal Practice ¶ 203.11, 3-51-52).

“In such

a case, the district court may ignore the appeal and proceed
with the case, ‘[o]therwise, a litigant could temporarily
deprive a court of jurisdiction at any and every critical
juncture.’”

Id. (internal citation omitted).

Here, it appears that Hilario seeks to appeal the “Oral
Orders” which, as the Court now clarifies, this Court did not
intend to issue as final Orders.

Because the Court has vacated

the “Oral Orders” as clerical docketing errors, Hilario’s
“Notice of Appeal” does not pertain to an appealable Order in
this matter.

Accordingly, this Court finds that it maintains

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jurisdiction over the issues before the Court related to
Hilario’s custody, security status, and housing placement.
CONCLUSION
For the foregoing reasons, and for the reasons stated on
the record at the August 11, 2014, hearing in this matter:
1.
Defendants’ “Motion to Rescind” (doc. no. 11) the
Court’ May 7, 2011, Order (doc. no. 4) granting certain
injunctive relief is GRANTED and the order is vacated to
the extent it directed Defendants not to place Hilario in
general population and to house him, to the extent
practicable, where he will not be likely to suffer harm.
2.
Plaintiff’s “Motion to Request that this Court Order
the Defendants to Stop Giving ‘Code Violations’ . .
.”
(doc. no. 22) is DENIED.
3.
Plaintiff’s “Motion to Request Summary Judgment, at
the Conclusion of this Bivens Claim Herein” (doc. no. 24)
is DENIED.
4.
Plaintiff’s “Motion to Request that this Court Orders
. . . [an] ‘Answer’ to Plaintiff’s Constitutional Questions
Herein” (doc. no. 32) is DENIED.
5.
Defendants’ “Motion to Dismiss” (doc. no. 37) is
DENIED without prejudice to Defendants’ refiling the motion
as one for summary judgment.
6.
Plaintiff’s “Motion to Request that this Court Order
the Defendants to Give the Plaintiff Protective Custody
Status . . .” (doc. no. 41) is DENIED.
7.
The Clerk’s Office is directed to correct the docket
in this matter to indicate that the Oral Orders docketed on
August 11, 2014, were docketed in error, and to clarify

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that those Orders were in fact taken under advisement on
that date.
SO ORDERED.

______________________________
Joseph N. Laplante
United States District Judge
September 3, 2014
cc:

Jose Miguel Hilario, pro se
T. David Plourde, Esq.

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