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Ayer v. Wrenn

United States District Court, D. New Hampshire

July 28, 2016

Daniel Ayer,
William Wrenn, Richard Gerry, Christopher Kench, Jon Fouts, John Hanson, and Robert Heath

          Daniel Ayer, Plaintiff, Pro Se.

          Robert Heath, Defendant, represented by Megan A. Yaple, NH Attorney General's Office (Civil) & Laura E. B. Lombardi, NH Attorney General's Office (Civil).

          NH 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).

          NH Attorney General - Notice Only - Civil (Court Use Only), Notice Only, represented by Megan A. Yaple, NH Attorney General's Office (Civil).

          NH Department of Corrections - Notice Only - Civil (Court Use Only), Notice Only, represented by Megan A. Yaple, NH Attorney General's Office (Civil).


          ANDREA K. JOHNSTONE, Magistrate Judge

         Pro se 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. § 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 disposition.

         Summary Judgment Standard

         Summary 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) (citation omitted).

         To 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.


         I. Claims

         Naming 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).

         II. Factual Background[2]

         Ayer 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.

         Regarding 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.

         Aff. of Robert Heath (Doc. No. 81-5) ("Heath Aff."), ¶¶ 5-6.

         Ayer 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 returned. Id.

         In late May, Ayer told Heath that he thought there was black mold in the pots and pans area. Id . Thereafter, according to Heath:

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, including bleach.[3]

         Heath Aff., ¶ 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.

         By the 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. 97), 14.

         On June 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 sustained.


         Ayer 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 ...

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