United States District Court, D. New Hampshire
Ayer, Plaintiff, Pro Se.
Heath, Defendant, represented by Megan A. Yaple, NH Attorney
General's Office (Civil) & Laura E. B. Lombardi, NH
Attorney General's Office (Civil).
State Prison, Warden, Defendant, represented by Laura E. B.
Lombardi, NH Attorney General's Office (Civil) & Megan A.
Yaple, NH Attorney General's Office (Civil).
Attorney General - Notice Only - Civil (Court Use Only),
Notice Only, represented by Megan A. Yaple, NH Attorney
General's Office (Civil).
Department of Corrections - Notice Only - Civil (Court Use
Only), Notice Only, represented by Megan A. Yaple, NH
Attorney General's Office (Civil).
REPORT AND RECOMMENDATION
K. JOHNSTONE, Magistrate Judge
plaintiff Daniel Ayer, an inmate at the New Hampshire State
Prison ("NHSP"), has sued six defendants in their
individual capacities, under 42 U.S.C. Â§ 1983, asserting
violations of his First and Eighth Amendment rights. Pursuant
to LR 72.1, the defendants' motion for summary judgment
(doc. no. 81), to which plaintiff objects, is before this
magistrate judge for a report and recommendation as to
judgment is warranted where "there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a); see
also Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d
206, 215 (1st Cir. 2016). "An issue is genuine' if
it can be resolved in favor of either party, ' and a fact
is material' if it has the potential of affecting the
outcome of the case.'" Xiaoyan Tang, 821
F.3d at 215 (internal quotation marks and citations omitted);
see also Commodity Futures Trading Comm'n v. JBW
Capital, LLC, 812 F.3d 98, 105 (1st Cir. 2016)
("[T]he mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.'"
(emphasis in original) (citation omitted)). At the summary
judgment stage, the court draws "all reasonable
inferences in favor of the non-moving party, ' but
disregard[s] conclusory allegations, improbable inferences,
and unsupported speculation.'" Fanning v. Fed.
Trade Comm'n, 821 F.3d 164, 170 (1st Cir. 2016)
obtain summary judgment, "[t]he moving party must
affirmatively demonstrate that there is no evidence in the
record to support a judgment for the nonmoving party."
Celotex Corp., 477 U.S. 317, 332 (1986). Once the moving
party makes the required showing, "the burden shifts to
the nonmoving party, who must, with respect to each issue on
which [it] would bear the burden of proof at trial,
demonstrate that a trier of fact could reasonably resolve
that issue in [its] favor.'" Flovac, Inc. v.
Airvac, Inc., 817 F.3d 849, 853 (1st Cir. 2016)
(citation omitted). "This demonstration must be
accomplished by reference to materials of evidentiary
quality, and that evidence must be more than merely
colorable.'" Id . (citations omitted). The
nonmoving party's failure to prove one essential element
"necessarily renders all other facts
immaterial.'" Delgado v. Aero Inv. Corp., 601
F.Appx. 12, 15 (1st Cir. 2015) (quoting Celotex, 477 U.S. at
323). The nonmoving party's failure to make the requisite
showing "entitles the moving party to summary
judgment." Flovac, Inc., 817 F.3d at 853.
six defendants to this action, Ayer asserts two claims that
have survived preliminary review. First, Ayer alleges that in
June 2014, then NHSP Warden Richard Gerry and NHSP Kitchen
Supervisor Robert Heath, violated Ayer's First Amendment
right to petition the government for a redress of grievances
by terminating his employment in the prison kitchen, in
retaliation for Ayer's filing of this lawsuit. See
Pl.'s Mot. to Amend (Doc. No. 11). Next, Ayer alleges
that Gerry, Heath, Heath's Supervisor, Jonathan Hanson,
NHSP Major Jon Fouts, New Hampshire Department of Corrections
("DOC") Commissioner William Wrenn, and DOC
Director of Security and Training Christopher Kench, violated
Ayer's Eighth Amendment right to safe conditions of
confinement by exposing him to toxic black mold in the NHSP
kitchen. See Pl.'s Mot. to Addend (Doc. No. 21).
started working in the NHSP kitchen in 2004. Pl.'s Mot.
to Am. (doc. no. 27), 3. In May and June 2014, Ayer was
employed in the "pots and pans area" of the NHSP
kitchen, and Robert Heath was his direct supervisor.
Id. at 5. Ayer's duties there included cleaning
the pots and pans area and the kitchen equipment located in
that area. Id.
sanitation in the prison kitchen, the following testimony
from Heath is largely undisputed:
I conduct daily inspections of the kitchen. Since my
employment there, I have seen small amounts of mold growing
in the kitchen and there have been reports made to me of mold
growing. However, when the mold is seen or reported, I
instruct the inmates to clean the areas. The mold is then
effectively eliminated. Because of the general nature of the
kitchen and the large amounts of water, small amounts of mold
is not unheard of.
In my position, I make sure that inmates receive cleaning
supplies, as they are required to maintain the cleanliness of
the kitchen. Inmates clean the kitchen every day. This
includes spraying down the various areas; using comet, bleach
(only under direct supervision), and paper towels to clean
the various areas; and using mops, buckets, brooms, dust
pans, and soap to do any further cleaning they see fit.
Additionally, there is a daily inspection of the kitchen.
Robert Heath (Doc. No. 81-5) ("Heath Aff."), Â¶Â¶
first noticed mold on various surfaces in the prison kitchen
in early 2014. Pl.'s Mot. to Amend (Doc. No. 21), 2. When
he showed Heath several cutting boards with mold on them and
asked for something to clean them with, "Heath added
some bleach to a sink with some water and plaintiff soaked
and washed them." Id . Ayer then cleaned
various other surfaces in the kitchen. Id . The mold
May, Ayer told Heath that he thought there was black mold in
the pots and pans area. Id . Thereafter, according
I inspected the area and while I agreed that there was a
small amount of mold, I did not see any substantial amounts
of mold. I instructed two other inmates to clean the area. I
also instructed Mr. Ayer to properly clean the area and told
him that it was "his job to clean" the area. I
provided Mr. Ayer with the proper cleaning supplies,
Aff., Â¶ 7. Ayer and another inmate thoroughly cleaned the
pots and pans area. Pl.'s Mot. to Amend (Doc. No. 21), 2.
Defendants have produced NHDC Food Service Inspection Forms,
indicating that the kitchen passed inspections by Heath or
other NHSP personnel every day in May and June 2014, except
May 21, June 4, and June 11, days for which no forms have
been submitted. See Doc. Nos. 81-6 & 81-7.
first week in June, the mold had returned. Pl.'s Mot. to
Amend (Doc. No. 21), 2. On June 9, 2014, Ayer directed an
Inmate Request Slip ("IRS") to Heath in which he
reported that he had discovered black mold in the kitchen and
asked Heath to test the purported mold. June 9, 2014, IRS
(Doc. No. 81-3). In the June 9 IRS, Ayer pointed out that
"[t]he mold could be a hazard, " but did not claim
that he had suffered any ill effects as a result of exposure
to it. Id . Heath forwarded Ayer's IRS to John
Hanson, who was Heath's supervisor. Id . Hanson
replied: "This area needs to be cleaned, inmates are
paid to clean. I will direct Bob Heath to oversee the
cleaning." Id . It is undisputed that
defendants neither tested the purported mold nor had it
professionally abated. Pl.'s Resp. Summ. J. (doc. no.
28, 2014, Ayer directed a Grievance Form to Warden Gerry.
Although Ayer had lost his job in the NHSP kitchen since
filing the June 9 IRS, in the June 28 Grievance, he asked for
testing of the purported black mold, but again, did not claim
to have suffered any ill effects from mold exposure. June 28,
2014, Grievance Form (Doc. No. 81-11). On July 14, 2014, Maj.
Fouts, who had them become the acting Warden of the NHSP,
responded to the June 28, 2014, grievance as follows:
I see no issue with Administrator Hanson's response dated
6/11/14 regarding this matter.... The Kitchen area is subject
to the same level of oversight and inspection as any other
commercial/institutional food service facility. No harmful
mold problem has been noted.... You have not demonstrated
that you have any particular expertise in this area and I
have no reason to believe that Administrator Hanson's
remedy isn't appropriate. Your grievance is not
appealed Fouts's response in a grievance directed to
Commissioner William Wrenn. July 20, 2014, Inmate Request
Slip (doc. no. 91-12). Ayer again asked for testing and
proper removal of the purported mold but did not claim to
have suffered any ill effects from mold exposure. Id
. On July 23, 2014, on behalf of DOC Commissioner ...