Thomas v. FCI Berlin, Warden et al

Filing 80

///ORDER granting 77 Supplemental Motion for Summary Judgment. For the foregoing reasons, the court GRANTS defendants' Supplemental Motion for Summary Judgment as to all of Thomas's claims for damages, injunctive relief, and declaratory relief (Doc. No. 77). The clerk is directed to enter judgment for defendants and close the case. So Ordered by Judge Steven J. McAuliffe.(lw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Oliver Thomas
v.

Case No. 16-cv-12-SM
Opinion No. 2019 DNH 153

Joey Paul and M. Vigneault

O R D E R
Before the court is defendants’ Supplemental Motion for
Summary Judgment (Doc. No. 77).
objects.

Plaintiff, Oliver Thomas,

See Doc. No. 79.

Background
Thomas alleges violations of his constitutional rights
while he was an inmate at the Federal Correctional Institution
in Berlin, New Hampshire (“FCI Berlin”).

Since filing this

action, he has been transferred to FCI Forrest City Medium, in
Arkansas.
Thomas, who is African American, filed a complaint in
federal district court on January 6, 2016, alleging that while
employed in the prison laundry at FCI Berlin he was subjected to
racial discrimination and violations of his First Amendment
right to free speech.

In its preliminary review pursuant to 28

U.S.C. § 1915(e)(2), the court construed Thomas’s Complaint as

asserting three types of claims:

1

In Claim 1, Thomas alleges that defendants, two FCI Berlin
laundry room supervisors, Corrections Officer (“C.O.”) Joey Paul
and C.O. M. Vigneault, violated his Fifth Amendment right to
equal protection by:

(a) firing him because of his race; (b)

paying him less than they paid white inmates and denying him a
bonus paid to white inmates; and (c) demoting him so his
position could be given to a white inmate.
In Claim 2, Thomas asserts that defendants violated his
First Amendment right to petition the government by firing him
in retaliation for threatening to report their racially and
sexually motivated behavior to prison officials.
And in Claim 3, Thomas claims that defendants violated his
First Amendment right to free speech by coercing him to lie to
safety inspectors, by threatening to fire him if he told the
truth about improper practices in the laundry.

See July 13,

2016 Order (Doc. No. 11) (approving May 16, 2016 Report and
Recommendation (“R&R”) (Doc. No. 5)).
Thomas seeks reinstatement with full benefits, back pay,
compensatory damages, punitive damages, declaratory relief, and
other unspecified injunctive relief.

The court construed

Thomas’s damages claims as asserted against Paul and Vigneault
in their individual capacities under Bivens v. Six Unknown Named
Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

2

In 2017, defendants moved to dismiss Thomas’s claims for
failure to state a claim and failure to exhaust administrative
remedies.

The court denied the motion without prejudice as to

the exhaustion argument.

See July 17, 2017 Order (Doc. No. 54)

(approving June 21, 2017 R&R (Doc. No. 53)).

Defendants then

filed a Motion for Summary Judgment, focusing on Claims 1 and 2.
(Doc. No. 64).
The court denied the Motion for Summary Judgment without
prejudice to defendants’ ability to refile a similar dispositive
motion addressing four issues identified by the court.
Sept. 10, 2018 Order (Doc. No. 71).

See

The court appointed counsel

to represent Thomas for the purpose of responding to any
dispositive motion filed by defendants in response to the Sept.
10, 2018 Order.

See Sept. 10, 2018 Order (Doc. No. 72); Oct. 5,

2018 Order (Doc. No. 73).
Defendants have filed a supplemental motion for summary
judgment (Doc. No. 77), and Thomas, through counsel, has filed
an objection (Doc. No. 79).

This matter is ripe for review.

Summary Judgment Standard
When ruling on a motion for summary judgment, the court is
“obliged to review the record in the light most favorable to the
nonmoving party, and to draw all reasonable inferences in the
nonmoving party’s favor.”

Block Island Fishing, Inc. v. Rogers,

3

844 F.3d 358, 360 (1st Cir. 2016) (citation omitted).

Summary

judgment is appropriate when the record reveals “no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

In this

context, a factual dispute “is ‘genuine’ if the evidence of
record permits a rational factfinder to resolve it in favor of
either party, and ‘material’ if its existence or nonexistence
has the potential to change the outcome of the suit.”

Rando v.

Leonard, 826 F.3d 553, 556 (1st Cir. 2016) (citation omitted).
Consequently, “[a]s to issues on which the party opposing
summary judgment would bear the burden of proof at trial, that
party may not simply rely on the absence of evidence but,
rather, must point to definite and competent evidence showing
the existence of a genuine issue of material fact.”
Lorraine Enters., 769 F.3d 23, 29–30 (1st Cir. 2014).

Perez v.
In other

words, “a laundry list of possibilities and hypotheticals” and
“[s]peculation about mere possibilities, without more, is not
enough to stave off summary judgment.”

Tobin v. Fed. Express

Corp., 775 F.3d 448, 451–52 (1st Cir. 2014).

See generally

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

Discussion
Thomas seeks damages, injunctive relief, and declaratory
relief on each of his claims, namely, his First Amendment

4

compelled speech claim, alleging he was compelled to lie to
workplace safety inspectors upon the threat of being fired
(Claim 3); his First Amendment retaliation claim, alleging a
retaliatory job termination (Claim 2); and his Fifth Amendment
equal protection claims, alleging race discrimination in his
compensation (Claim 1(a)), his demotion (Claim 1(c)), and his
job termination (Claim 1(b)).

Defendants move for summary

judgment on each of those claims, arguing that the Bivens
doctrine does not provide a damages remedy in Thomas’s
circumstances, and that Thomas presently lacks standing to
obtain injunctive relief. 1

I.

Availability of Bivens Remedy
The Bivens doctrine allows a plaintiff to vindicate certain

constitutionally protected rights through a private cause of
action for damages against federal officials in their individual
capacities.
2008).

See DeMayo v. Nugent, 517 F.3d 11, 14 (1st Cir.

An action under Bivens serves as a limited “federal

analog to [42 U.S.C.] § 1983 suits against state officials.”
Soto–Torres v. Fraticelli, 654 F.3d 153, 158 (1st Cir. 2011).

1Defendants

also argue that Thomas failed to exhaust his
available administrative remedies. As the Bivens issue is
dispositive, this court does not address the exhaustion issue.
5

Courts presented with Bivens claims must first consider
whether the claim presents a new context for applying Bivens.
See Ziglar v. Abbasi, 137 S. Ct. 1843, 1859-60 (2017) (test for
determining if Bivens context is new).

A court must decline to

expand Bivens into a new context if “there are special factors
counselling hesitation in the absence of affirmative action by
Congress,” Abassi, 137 S. Ct. at 1857 (internal quotation marks
and citations omitted), taking into consideration such factors
as whether “alternative methods of relief are available” to the
plaintiff, id. at 1863 (“when alternative methods of relief are
available, a Bivens remedy usually is not”).

A.

New Context

The first step in addressing Thomas’s Equal Protection and
Free Speech claims requires this court to determine whether
those claims in this case present new contexts for applying
Bivens.

“If the case is different in a meaningful way from

previous Bivens cases, . . . then the context is new.”

Abassi,

137 S. Ct. at 1859.
A case might differ in a meaningful way because of the
rank of the officers involved; the constitutional
right at issue; the generality or specificity of the
official action; the extent of judicial guidance as to
how an officer should respond to the problem or
emergency to be confronted; the statutory or other
legal mandate under which the officer was operating;
the risk of disruptive intrusion by the Judiciary into
the functioning of other branches; or the presence of

6

potential special factors that previous Bivens cases
did not consider.
Id. at 1860.

1.

First Amendment Claims

Thomas’s First Amendment claims -- alleging that defendants
fired him in retaliation for his stated intent to report their
sexually charged comments and racial discrimination and alleging
that they forced him to lie about safety issues in the laundry - arise in a meaningfully different context than the three cases
in which the Supreme Court has recognized an implied cause of
action for damages for constitutional violations.

See generally

Abassi, 137 S. Ct. at 1854-55 (citing Bivens; Davis v. Passman,
442 U.S. 228 (1979); and Carlson v. Green, 446 U.S. 14 (1980)).
The Supreme Court has never recognized a Bivens remedy for First
Amendment claims, and it has affirmatively declined to extend a
Bivens remedy to claims invoking the First Amendment.

See Wood

v. Moss, 572 U.S. 744, 757 (2014) (acknowledging that the
Supreme Court has never recognized an implied damages remedy
under the First Amendment); Bush v. Lucas, 462 U.S. 367, 390
(1983) (declining to extend Bivens to federal employee’s First
Amendment retaliatory demotion claim).

Moreover, although the

Supreme Court has extended the Bivens remedy to prisoners
asserting one type of prison conditions claim, it has done so

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explicitly only for Eighth Amendment medical care claims. 2

See

Abbasi, 137 S. Ct. at 1855 (citing Carlson, 446 U.S. at 19).
There is no Supreme Court case like Thomas’s involving First
Amendment claims arising out of the prison workplace, and no
First Circuit case presenting like circumstances in which a
Bivens remedy has been inferred; it is clear that Thomas’s First
Amendment retaliatory job termination claim and First Amendment
compelled speech claim (Claims 2 and 3) both present new
contexts for Bivens.

2.

Fifth Amendment Discrimination Claims

Similarly, Thomas’s Fifth Amendment race discrimination
claims present a new context for Bivens.

In Davis v. Passman,

the Supreme Court held that an administrative assistant to a
member of Congress could bring a damages remedy against the
Congressman for workplace gender discrimination.

442 U.S. at

248–49; see also Lipsett v. Univ. of P.R., 864 F.2d 881 (1st
Cir. 1988) (following Davis in finding Bivens remedy for gender

2This

court need not consider whether the Supreme Court or
other controlling authority has implicitly expanded the reach of
Bivens remedies to other types of prison conditions claims that
are patently distinguishable from those at issue in this case.
Cf. Bistrian v. Levi, 912 F.3d 79, 90–92 (3d Cir. 2018)
(finding, in light of Farmer v. Brennan, 511 U.S. 825 (1994),
that pretrial detainee’s Fifth Amendment failure-to-protect
claim was not a new context for Bivens).
8

discrimination claims of V.A. doctor).

Thomas’s equal

protection claims arise out of a prison workplace setting, “a
highly regulated environment with little similarity to
employment for a Congressman,” Stile v. United States, No. CV
16-3832 (RMB), 2019 WL 287072, at *4, 2019 U.S. Dist. LEXIS
9884, at *8-*9 (D.N.J. Jan. 22, 2019), or the surgical residency
at issue in Lipsett.

Prisoners, unlike government employees

outside of a prison setting, lack the compensation protections,
and the right to obtain, maintain, and quit jobs when they will.
See generally U.S. Const. amend. XIII; see also Dupont v.
Saunders, 800 F.2d 8, 10 (1st Cir. 1986) (per curiam)
(“[P]risoners have no vested property or liberty rights to
either obtain or maintain prison jobs.” (citations omitted)).
Federal inmates are employed and compensated “solely by
legislative grace and primarily for their own benefit and
rehabilitation.”

Stile, 2019 WL 287072, at *4, 2019 U.S. Dist.

LEXIS 9884, at *9; see also Sprouse v. Fed. Prison Indus., Inc.,
480 F.2d 1, 4 (5th Cir. 1973) (“whatever right plaintiffs have
to compensation is solely by congressional grace and governed by
the rules and regulations promulgated by the Attorney General”).
The prison workplace context here is thus meaningfully
distinguishable from prior cases like Carlson and Davis and
presents a new context for a Bivens remedy.

See Stile, 2019 WL

287072, at *4, 2019 U.S. Dist. LEXIS 9884, at *13; Brown v.

9

Cooper, No. 18-219 (DSD/BRT), 2018 U.S. Dist. LEXIS 218544, at
*33, 2018 WL 6977594, at *12 (D. Minn. Dec. 11, 2018), R&R
adopted, No. 18-219 (DSD/BRT), 2019 U.S. Dist. LEXIS 2159, 2019
WL 121943 (D. Minn. Jan. 7, 2019), appeal docketed, No. 19-1387
(8th Cir. Feb. 26, 2019); Alexander v. Ortiz, No. CV 15-6981
(JBS-AMD), 2018 U.S. Dist. LEXIS 45329, at *11-*12, 2018 WL
1399302, at *4 (D.N.J. Mar. 20, 2018) (prisoner’s claims of race
discrimination and retaliation in prison employment arise in a
context “vastly different” from Davis), appeal docketed, No. 181778 (3d Cir. Apr. 13, 2018).

B.

Alternative Remedies and Special Factors

Defendants argue that special factors counsel against
extending Bivens to plaintiff’s claims under the First and Fifth
Amendments.

The special factors inquiry “concentrate[s] on

whether the Judiciary is well suited, absent congressional
action or instruction, to consider and weigh the costs and
benefits of allowing a damages action to proceed.”
S. Ct. at 1858.

Abbasi, 137

“Special factors” may arise because some

“feature of a case . . . causes a court to pause before acting
without express congressional authorization.”

Id.

Special

factors have been found where “Congress has designed its
regulatory authority in a guarded way, making it less likely

10

that Congress would want the Judiciary to interfere.”

Id.

(citations omitted).
Since Abbasi, most courts considering the issue have
determined that special factors counsel against inferring Bivens
remedies for prisoners’ free speech claims and equal protection
claims, and courts considering claims arising out of a prison
workplace context have uniformly declined to find a damages
remedy available under Bivens. 3

This court has identified no

case in which any court has found that there is a Bivens remedy
for the type of prison employment retaliatory discharge, race

3See,

e.g., Turner v. Doe, No. CV155942RBKAMD, 2018 U.S.
Dist. LEXIS 83707, at *15, 2018 WL 2278096, at *6 (D.N.J. May
18, 2018) (“it should be left to the legislative and executive
branches to determine whether an action for damages for a claim
of racial discrimination exists in the prison-workplace
environment” (citing Abassi and Alexander, 2018 WL 1399302, 2018
U.S. Dist. LEXIS 45329), aff’d on other grounds, No. 19-1030,
2019 U.S. App. LEXIS 20446, 2019 WL 3010286 (3d Cir. July 10,
2019); Rodriguez v. Hamel, No. CV157980NLHKMW, 2018 WL 2254557,
at *4, 2018 U.S. Dist. LEXIS 83213, at *8 (D.N.J. May 17, 2018)
(“prison housing and the prison workplace are special factors
precluding the extension of Bivens” to inmate’s First Amendment
retaliatory transfer and job reassignment claims); see also
Bistrian, 912 F.3d at 95-96 & n.25 (no Bivens remedy for
pretrial detainee’s First Amendment retaliation claim); Ajaj v.
United States, No. 14-CV-01245-JPG-RJD, 2019 U.S. Dist. LEXIS
136473, 2019 WL 3804232, at *3 (S.D. Ill. Aug. 13, 2019) (no
Bivens remedy for prisoner’s First Amendment free exercise and
retaliation claims); Vanaman v. Molinar, No. CV-17-00222-TUCJGZ, 2018 U.S. Dist. LEXIS 168971, at *11, 2018 WL 4698655, at
*4 (D. Ariz. Sept. 28, 2018) (no Bivens remedy for prisoner’s
First Amendment magazine censorship claim and Fifth Amendment
equal protection claim).
11

discrimination, and work-related compelled speech claims Thomas
asserts here.
Defendants point to Thomas’s ability to obtain injunctive
relief on his claims, at the outset of the case, as an
alternative remedy that may be available in such circumstances,
precluding a Bivens remedy.

Such “‘[a]lternative remedial

structures’” can take many forms, “including administrative,
statutory, equitable, and state law remedies.”

Vega v. United

States, 881 F.3d 1146, 1154 (9th Cir. 2018) (citation omitted).
To decide if the existence of alternative remedies is a
“‘convincing reason’” for a court to refrain from extending
Bivens, courts consider whether the remedies provide “roughly
similar incentives” for potential defendants to comply with
federal constitutional provisions, “while also providing roughly
similar compensation to victims of violations.”

Minneci v.

Pollard, 565 U.S. 118, 130 (2012) (citations omitted).

Although

its deterrent effect may not be as great as that which could
come from a personal capacity claim for damages, equitable
“remedies that provide no compensation for victims and little
deterrence for violators, such as injunctions and writs of
habeas corpus,” still “trigger the general rule that, ‘when
alternative methods of relief are available, a Bivens remedy
usually is not.’”

Farah v. Weyker, 926 F.3d 492, 502 (8th Cir.

2019) (emphasis in original) (quoting Abassi, 137 S. Ct. at

12

1863)).

The potential availability of injunctive relief at the

outset of Thomas’s case is one factor counselling against
inferring a new damages remedy for his claims, as the
possibility of reinstatement or court-ordered backpay could
provide some measure of relief.

But cf. Alexander, 2018 WL

1399302, at *6, 2018 U.S. Dist. LEXIS 45329, at *16-*17 (neither
writ of habeas corpus, nor injunction prohibiting future
discrimination, nor statutes providing remedies for federal tort
claims, for employment discrimination, and for prison workrelated injuries provided adequate alternative relief as to
inmate’s claims of discrimination and retaliation in prison
employment).
In circumstances where the BOP Administrative Remedy
Program (“ARP”) could provide some relief for the type of claims
at issue, the ARP can also be deemed to be an “alternative
remedial structure,” Abbasi, 137 S. Ct. at 1858, that weighs
against inferring a Bivens remedy.

See Stile, 2019 U.S. Dist.

LEXIS 9884, at *16, 2019 WL 287072, at *6 (potential
availability of pay adjustments through ARP counselled against
finding a Bivens remedy for inmate’s Fifth Amendment equal
protection claims challenging the practice of docking his pay
for time he spent away from his workstation awaiting
distribution of his prescription medication).

The ARP, designed

to allow inmates to seek formal review of any issues relating to

13

their confinement, allows for payroll corrections where
appropriate.

See Stile, 2019 WL 287072, at *6, 2019 U.S. Dist.

LEXIS 9884, at *16.

Here, Thomas’s workplace discrimination and

retaliatory discharge claims are the type of claims for which
relief through the ARP could provide monetary relief, roughly
similar to the compensatory relief Thomas seeks for his unequal
compensation, demotion, and job termination claims, see
generally id.

Cf. Jerra v. United States, No. 2:12-cv-01907-ODW

(AGRx), 2018 U.S. Dist. LEXIS 53512, at *14, 2018 WL 1605563, at
*5 (C.D. Cal. Mar. 29, 2018) (ARP does not preclude Bivens
remedy where inmate’s First Amendment retaliation claims were
“based on the fact the grievances he filed pursuant to the BOP’s
process resulted in retaliation”).
Even without finding that the ARP’s monetary remedy and the
possibility of injunctive relief are the types of alternative
remedial structures that preclude an inference of a Bivens
remedy in this case, this court would find that the heavily
regulated prison workplace setting for all of Thomas’s First and
Fifth Amendment claims, and the judicial restraint exercised in
cases implicating the administration of prisons, are special
factors that counsel against extending Bivens here.

“Prison

administration is . . . a task that has been committed to the
responsibility of . . . [the legislative and executive]
branches, and separation of powers concerns counsel a policy of

14

judicial restraint.”

Turner v. Safley, 482 U.S. 78, 85 (1987).

See also Abbasi, 137 S. Ct. at 1857 (“When a party seeks to
assert an implied cause of action under the Constitution itself,
. . . separation-of-powers principles are or should be central
to the analysis.”).
Congress, in passing laws relating to the federal prison
workplace, has granted considerable discretion to the BOP to
regulate and administer prison employment, while exempting
prison jobs from coverage under federal laws governing
employment relations outside of the prison context, in light of
the special status of inmate workers. 4

Congress created the BOP

Federal Prison Industries program (known as “UNICOR”) to provide
authority for the industrial employment of federal inmates.
18 U.S.C. §§ 4121-4129.

See

Congress has delegated authority to the

Attorney General to promulgate regulations to implement the
statutes authorizing inmate pay for industrial work, special

4Inmates

may not recover damages under federal statutes
regulating compensation and prohibiting employment
discrimination, as inmates are not deemed to be BOP “employees”
for purposes of those statutes. See Wilkerson v. Samuels, 524
F. App’x 776, 779 (3d Cir. 2013) (per curiam) (unpublished) (“It
is well established that a prisoner is not an employee under the
Fair Labor Standards Act (FLSA), because the relationship is not
one of employment, but arises out of the prisoner’s status as an
inmate.”); Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991)
(federal prisoner is not BOP employee under either Title VII or
Age Discrimination in Employment Act because their relationship
“arises out of [the prisoner’s] status as an inmate, not an
employee”).
15

compensation for institutional work assignments, and
compensation for work-related illnesses and injuries incurred in
institutional and industrial worksites. 5

18 U.S.C. § 4126(c)(4);

28 C.F.R. § 345.10.
Pursuant to that authority, the BOP regulates the inmate
work program within each of its institutions.
§ 545.20.

See 28 C.F.R.

Each sentenced inmate who can work is assigned to an

institutional, industrial, or commissary work program.
§ 545.23.

See id.

Each BOP warden is tasked with establishing an

Institution Inmate Work and Performance Pay Committee to
administer the institution’s work and performance pay program.
See id. § 545.22(a).

BOP regulations govern inmate work/program

assignments, work conditions, eligibility for performance pay,
inmate vacations, special commendations, and BOP supervisory

5The

Inmate Accident Compensation Act (“IACA”), 18 U.S.C.
§ 4126(c)(4), authorizes UNICOR to compensate inmates for
“injuries suffered in any . . . work activity in connection with
the maintenance or operation of the institution in which the
inmates are confined.” Id.; see also 28 C.F.R. § 301.101.
Consistent with BOP’s regulatory definition of a work-related
injury, courts have concluded that IACA funds are not available
to compensate inmates who allege claims of constitutional
violations like Thomas’s, see Alexander, 2018 U.S. Dist. LEXIS
45329, at *20, 2018 WL 1399302, at *6 (citing 28 C.F.R.
§ 301.102), the unavailability of alternative remedies alone
does not preclude this court from finding that there are other
special factors counselling hesitation against extending Bivens
to Thomas’s claims. See Alexander, 2018 WL 1399302, at *7, 2018
U.S. Dist. LEXIS 45329, at *20.
16

staff training, see id. §§ 545.23-545.31, among other workrelated issues.
Given the heavily regulated nature of the prison workplace,
the restraint courts must exercise when confronting issues
affecting prison administration, and the potential availability
of alternative forms of relief for claims like Thomas’s, this
court concludes that a Bivens remedy is not appropriately
inferred as to any of Thomas’s First Amendment compelled speech,
First Amendment retaliation, and Fifth Amendment race
discrimination claim.

Congress, and not the courts, is better

situated to weigh the costs and benefits of creating a damages
remedy for prison workplace misconduct like that alleged by
Thomas.

Cf. Abbasi, 137 S. Ct. at 1857 (purpose of special

factors inquiry is to determine if Congress, not the Judiciary,
“is in the better position to consider if ‘the public interest
would be served’ by imposing . . . ‘new substantive legal
liability’” (quoting Schweiker v. Chilicky, 487 U.S. 412, 426427 (1988)) (citations omitted)).

Defendants’ supplemental

motion for summary judgment on all of Thomas’s Bivens claims is
thus properly granted.

II.

Availability of Equitable and Declaratory Relief
Defendants have also moved for summary judgment on

plaintiff’s claims for equitable and declaratory relief.

17

Plaintiffs who request equitable remedies must demonstrate a
“likelihood of substantial and immediate irreparable injury, and
the inadequacy of remedies at law.”

O’Shea v. Littleton, 414

U.S. 488, 502 (1974); see also Rizzo v. Goode, 423 U.S. 362, 372
(1976) (“[p]ast exposure to illegal conduct does not in itself
show a present case or controversy regarding injunctive relief
. . . if unaccompanied by any continuing, present adverse
effects” (quoting O’Shea, 414 U.S. at 495-96).
Injunctive relief on Thomas’s claims against Vigneault and
Paul is no longer available to Thomas as he is now housed at
another BOP facility.

See Ford v. Bender, 768 F.3d 15, 29 (1st

Cir. 2014) (in the absence of claims for damages, “[a]
prisoner’s challenge to prison conditions or policies is
generally rendered moot by his transfer or release.”).

There is

no evidence before this court suggesting any realistic prospect
that Thomas will be sent back to FCI Berlin or otherwise placed
under Vigneault’s or Paul’s supervision in the future.

And

plaintiff’s argument is purely speculative that Thomas will
again suffer the same type of race discrimination alleged in
this case.

Accordingly, judgment as a matter of law on Thomas’s

claims for injunctive relief is warranted.
Thomas has also lost any legally cognizable interest in a
declaration that defendants’ actions were unconstitutional.

Cf.

ACLU of Mass. v. U.S. Conf. of Cath. Bishops, 705 F.3d 44, 53

18

(1st Cir. 2013) (“With limited exceptions, not present here,
issuance of a declaratory judgment deeming past conduct illegal
is . . . not permissible as it would be merely advisory.”).
Accordingly, the court grants the Supplemental Motion for
Summary Judgment as to Thomas’s claims for injunctive and
declaratory relief.

Conclusion
For the foregoing reasons, the court GRANTS defendants’
Supplemental Motion for Summary Judgment as to all of Thomas’s
claims for damages, injunctive relief, and declaratory relief
(Doc. No. 77).

The clerk is directed to enter judgment for

defendants and close the case.
SO ORDERED.

_____________________________
Steven J. McAuliffe
United States District Judge
September 17, 2019
cc:

Marrielle B. Van Rossum, Esq.
Terry L. Ollila, Esq.

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