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Gray v. Perkins

United States District Court, D. New Hampshire

September 20, 2016

Jeffrey M. Gray
v.
John Perkins et al. [1] Opinion No. 2016 DNH 168

          ORDER

          Paul Barbadoro United States District Judge

          Order Pro se plaintiff Jeffrey M. Gray, an inmate in the custody of the New Hampshire Department of Corrections (“DOC”), and presently incarcerated at the New Hampshire State Prison (“NHSP”), has sued defendants under 42 U.S.C. § 1983, asserting violations of his First and Eighth Amendment rights alleged to have occurred at the NHSP and the Northern New Hampshire Correctional Facility (“NCF”). Before the court is defendants' motion for summary judgment (doc. no. 72, and supplemental memoranda, doc. nos. 103 and 111).[2] Plaintiff objects (doc. nos. 108 and 118-1).

         I. 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) (“‘the 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 “‘draw[s] 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).

         “A party moving for summary judgment must identify for the district court the portions of the record that show the absence of any genuine issue of material fact.” Flovac, Inc. v. Airvac, Inc., 817 F.3d 849, 853 (1st Cir. 2016) 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.'” Id. (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 make the requisite showing “entitles the moving party to summary judgment.” Id.

         II. BACKGROUND

         A. Claims

         The claims presently in this case, which have been served on individual defendants, are as follows[3]:

1. NCF Librarian John Perkins and NCF Corrections Officer (“C.O.”) Roy Tripp retaliated against Gray for exercising his First Amendment right to petition the government for a redress of grievances, by barring Gray from the law library on and after August 29, 2014, and by causing Gray to lose his prison job, in violation of Gray's First Amendment rights.
2. NHSP C.O. Stephen P. Sullivan acted with deliberate indifference to a substantial risk of serious harm to Gray when Sullivan, on April 28, 2014, showed the other inmates in Gray's cell a newspaper article describing Gray's charges and conviction for sexual offenses, placing Gray in danger of being harmed by the other inmates, in violation of Gray's Eighth Amendment right not to be subject to cruel and unusual punishment.
3. NHSP Lt. James Brown acted with deliberate indifference to a substantial risk of serious harm to Gray on November 19, 2014, by telling several inmates, including Gray's cellmates, that Gray had filed grievances accusing one of his cellmates of engaging in inappropriate sexual behavior involving Gray, as Brown's statements placed Gray in danger of being harmed by the other inmates, in violation of Gray's Eighth Amendment right not to be subject to cruel and unusual punishment.
4. DOC physician Dr. Celia Englander, NHSP Nurse Practitioners Lisa Savage and Corina Neculai, NHSP Nurses Donna Dufrene and Cynthia Chapman, NHSP Physical Therapist Bernadette Campbell, (former) NCF Warden Edward Reilly, (Former) NHSP Warden Richard Gerry, and DOC Commissioner's office employee Christopher Kench, acting with deliberate indifference to Gray's serious medical needs (sleep apnea, ulcers, Helicobacter Pylori stomach disease (“H-Pylori”), chronic lower back pain, and tinnitus), denied Gray constitutionally adequate medical care for those conditions, or denied Gray's grievances concerning his medical care, in violation of Gray's Eighth Amendment rights.
5. On May 6, 2014, NHSP C.O. Frank H. Logan, III, violated Gray's Eighth Amendment rights to adequate medical treatment and safe conditions of confinement when, with deliberate indifference to a substantial risk of serious harm, he placed Gray in a top bunk, resulting in injury to Gray, despite knowing that Gray had been issued a “bottom bunk pass” by the prison medical department.
6. On October 9, 2014, NHSP Sgt. Sheryl St. Peter and NHSP Lt. James Brown violated Gray's First Amendment right to freely exercise his religion by seizing and failing to return Gray's Bibles, religious books, and religious pamphlets, pursuant to a cell search.
7. DOC Oral Surgeon Dr. Paul Levy, NHSP Dentist Dr. Edward Dransite, NHSP Dental Hygienist Larry Denecourt, NHSP Dental Assistant Alexis White, NHSP Medical and Forensic Services Deputy Director Ransey Hill, (former) NHSP Richard Gerry, and DOC Commissioner's office employee Christopher Kench, denied Gray constitutionally adequate dental care, or denied Gray's grievances concerning his dental care, in violation of Gray's Eighth Amendment rights.
8. On or around February 15, 2013, NCF Lt. McFarland and NCF Sgt. Bigl, acting with deliberate indifference to a substantial risk of serious harm to Gray, endangered Gray's safety by requiring him either to stay in a cell with an inmate who had threatened him, or to give up his bottom bunk medical pass and be placed in a top bunk, in violation of his Eighth Amendment rights.

         B. Facts[4]

         1. DOC Administrative Grievance Procedures

         At all times relevant to this matter, the DOC employed a three-level procedure for handling inmate grievances “concerning any condition of confinement.” DOC Policy and Procedure Directive (“PPD”) 1.16(III)(E) (Doc. No. 72-3 at 2). Inmates “are informed of the grievance procedures through the Inmate Manual” and through the published grievance policy. PPD 1.16(III)(G) (Doc. No. 72-3 at 2).

         To complete the first level of the DOC's grievance process, an inmate utilizes an Inmate Request Slip (“IRS”) “addressed to the lowest level staff person with the authority to address the issue raised.” PPD 1.16(IV)(A)(1) (Doc. No. 72-3 at 2). “A request slip regarding any issue must be received within 30 calendar days of the date on which the event complained of occurs.” Id. An inmate dissatisfied with the response to an IRS may, within thirty days of the date of that response, direct a Grievance Form to the Warden or Director of the DOC facility in which the inmate is then housed. PPD 1.16(IV)(B) (Doc. No. 72-3 at 3). An inmate dissatisfied with the Warden's response to his grievance, within thirty days of the denial of his grievance to the Warden, may appeal that denial to the DOC Commissioner. PPD 1.16 (IV)(C)(1) (Doc. No. 72-3 at 4). The timeframes set forth in PPD 1.16, and the use of appropriate forms, at each level of the DOC grievance process, are mandatory. PPD (IV)(E)&(F) (Doc. No. 72-3 at 4-5).

         2. Claim 1 - August 29, 2014, Retaliation

         On July 8, 2014, Gray, while housed at NCF, was hired to be a teacher's assistant in the NCF Education Department. See Pl.'s V. Second Am. Compl. (doc. no. 23 at 30) (“VSAC”). Ten days later, on July 18, 2014, Gray got into a heated discussion with a staff member at the NCF law library. Id. at 32. NCF Librarian John Perkins accused Gray of giving the staff member a hard time. Id. Gray states that he and Perkins then argued, and Perkins called NCF C.O. Roy Tripp and asked Tripp to remove Gray from the law library. Id. at 32-33. Once outside the law library, Gray told Tripp that he was going to file a grievance against him. Id. at 33. Gray has averred that Tripp responded by firing Gray from his teacher's assistant job. Id.; Decl. of Jeffrey M. Gray, June 17, 2016 (Doc. No. 118-1 at 18) (“Gray Decl.”). Gray claims that Tripp further stated on July 18, 2014, that if Gray filed a grievance against him or Perkins, Tripp would initiate disciplinary proceedings against Gray for filing a false grievance. Gray Decl. at 18.

         On August 29, 2014, Gray was again in the NCF law library. Gray asserts that Perkins refused to allow Gray to check law books out of the library because Gray had two overdue books checked out of the recreational library. VSAC, at 34. Gray asserts that Perkins also refused to give Gray a New Hampshire Supreme Court appeal form. Id. at 35. According to Gray, he asked an NCF inmate law clerk for a “42 USC § 1983 Complaint Packet, ” and told Perkins and Tripp that he intended to file a complaint against Perkins in federal court for denying Gray law books. Id. at 35-36. Perkins then asked Tripp to remove Gray from the library, which Gray claims was retaliation for Gray's stated intention to file a lawsuit against Perkins. Id. at 36. Gray claims that as of August 29, 2014, Tripp and Perkins ordered that Gray have no further access to the NCF law library or to any law books or materials. Id. at 37. Gray claims that after removing him from the law library on August 29, Tripp again threatened to retaliate against Gray if Gray filed a grievance against Tripp or Perkins, by filing a disciplinary report charging Gray with filing a false grievance. Gray Decl. at 21-22, 24.

         Gray states that, while walking to his housing unit after leaving the law library on August 29, 2014, he was stopped by NCF Lt. Orlando and NCF Sgt. Fountaine. Id. at 23; VSAC at 37. Gray states that he informed Orlando of what had transpired in the law library that day. VSAC at 37; Gray Decl. at 23. Gray also told Orlando and Fountaine about Tripp's retaliation threat. Gray Decl. at 24. As stated in Gray's Declaration, Orlando told Gray not to file grievances against Tripp or Perkins; Orlando assured Gray he would investigate the incident and refer it to the DOC Bureau of Investigations; and Orlando said that Gray did not have to file any grievances through the prison's administrative procedure. Id. Gray states that he never learned of the result of the investigation. Id. at 25.

         Gray states that on June 19, 2015, while housed at the NHSP, he finally summoned the courage to file a grievance against Perkins and Tripp, despite Tripp's previous threats of retaliation. Id. On that date, Gray sent an IRS to Patricia Lynn, the NCF Director of Education, complaining that Perkins and Tripp had removed Gray from the law library on July 18 and August 29, 2014, barred him from the law library altogether as of August 29, 2014, and caused Gray to lose his teacher's assistant job. June 19, 2015, IRS (Doc. No. 72-5).

         On June 23, 2015, Tripp responded to that IRS, stating that Gray's effort to grieve the events of July and August 2014 was untimely, and therefore, Tripp was not going to address them. Id. Tripp's response further stated that neither Tripp nor Perkins had imposed any bar to law library access on Gray, and that Gray only had to request access using an IRS to be scheduled for library time. Id. Tripp added that Gray had been placed on reduced pay status for creating a disturbance in the law library. Id.

         On June 23, 2015, Gray appealed Tripp's denial of his IRS to NHSP Warden Richard Gerry, complaining that Tripp and Perkins had retaliated against Gray for exercising his First Amendment rights, by firing him from his job and denying law library access. June 23, 2015, Grievance Form (Doc. No. 72-8 at 2). On June 30, 2015, Gerry denied Gray's grievance, stating that Gray's complaint had been untimely, and adding that Tripp's response to Gray's IRS had been appropriate. Id.

         On July 2, 2015, Gray appealed Gerry's decision to DOC Commissioner William Wrenn. July 2, 2015, Grievance Form (Doc. No. 72-13 at 2). Acting on Wrenn's behalf, Christopher Kench denied the grievance on July 20, 2015. Id.

         3. Claim 2 - April 2104 Endangerment

         Gray claims that in April 2014, NHSP C.O. Stephen P. Sullivan showed Gray's cellmates a newspaper article describing Gray's charges and conviction for sexual assault. VSAC at 26; Gray Decl. at 34. Gray asserts that Sullivan endangered Gray's safety by informing other inmates that Gray was a sex offender. VSAC at 26; Gray Decl. at 34.

         On May 9, 2014, Gray states that he verbally complained to NHSP Sgt. David Cormeir about Sullivan's behavior and the resulting threat to Gray's safety, and told Cormier that he wanted to file a written grievance against Sullivan. Gray Decl. at 36-37. Gray was placed in protective custody status and transferred out of his housing unit, and thus away from Sullivan, that day. Id. at 36. In his response to Gray's stated intention to file a grievance against Sullivan, Cormeir told Gray that Gray's “‘staff complaint' is not grievable through the written grievance process, and that [Gray] would have to raise the issue about Sullivan instead with the protective custody review board since Sullivan was one of the reasons in [Gray's] statement why [Gray] was in such fear for [his] safety.” Id. at 37-38. Cormeir told Gray that there was no pertinent relief that could be granted by the written grievance process, as Gray had been removed from Sullivan's unit, and instructed Gray not to file a written administrative grievance against Sullivan. Id. at 38. Gray asserts that he made an oral grievance to the protective custody review board about Sullivan's actions, but did not receive any response. Id. at 39.

         4. Claim 3 - November 2014 Endangerment

         Gray asserts that on November 21, 2014, NHSP Lt. James Brown told several of Gray's cellmates that Brown was in possession of two grievances written by Gray in which he accused one of his cellmates, Christos Kalaitzidis, of “doing gay stuff to [Gray]” and “looking at [Gray] creepy while he is sleeping.” VSAC at 45; Aff. of Christos Kalaitzides, Nov. 23, 2014 (Doc. No. 16-2) (“Kalaitzides Aff.”). Gray asserts that Brown's statements to Gray's cellmates endangered Gray's safety.

         Gray avers that, upon learning of Brown's statements, he went to Brown's office and spoke to him about the incident, and that Brown denied making the statements. Gray Decl. at 41. Gray then met with Brown and NHSP Cpl. Towers. Id. Gray states that after those meetings, he asked Brown for a grievance form, but Brown refused to give him a form. Id. at 42. Brown stated that Gray's “‘staff complaint' about [Brown's] ‘inappropriate sexual comments' was not grievable through the formal written grievance process” and instead would have to be addressed within the context of the two grievances Brown then had in his possession, that were being sent to Gerry. Id. In reliance on Brown's statements, Gray did not file a separate administrative grievance concerning Brown's statements to Gray's cellmates. Id. at 43.

         5. Claims 5 and 8 - Bottom Bunk Pass Incidents

         Gray asserts that on February 19, 2013, while Gray was housed at NCF, NCF Lt. Edward McFarland and NCF Sgt. George Bigl forced Gray to forego his medical bottom bunk pass, after Gray filed two IRS forms complaining that his cellmate posed a threat to Gray's safety, and moved Gray into a different cell where he was assigned to a top bunk. VSAC at 16; Gray Decl. at 44. Gray asserts that he verbally complained to McFarland and Bigl about being placed in a top bunk, and that those officers told Gray there were no bottom bunks available. Gray Decl. at 45. Gray further asserts that he requested a grievance form from Bigl and McFarland, but the officers refused to give him one, stating that being moved to a bottom bunk was not grievable. Id. at 45-46.

         Gray claims that, in May 2014, while he was housed at the NHSP, C.O. Frank Logan forced Gray to move to a top bunk despite knowing that Gray had been issued a bottom bunk pass. Id. at 47. Gray asserts that he fell out of his bunk that night, and suffered “severe cuts and lacerations” to his leg. VSAC at 27. Relying on Bigl and McFarland's previous statement that being moved out of a bottom bunk was not a grievable issue, Gray did not file an administrative grievance concerning this incident. Gray Decl. at 47-49.

         6. Claim 4 - Medical Care

         Gray asserts, and defendants have not disputed, that prior to arriving at the NHSP, Gray suffered from, and was being treated in the community for, sleep apnea, ulcers, H-Pylori, back pain, and tinnitus. VSAC at 21-22. Gray states that he sought medical care at the NHSP for these issues, as follows: Gray saw NHSP Nurse Practitioner Lisa Savage on March 18, 2014, but she refused to provide him with any treatment; Gray saw NHSP Nurse Donna Dufresne on November 7, 2014, and April 23, 2015, who, on those occasions, refused to adequately examine him and denied him any treatment; Gray saw NHSP Physical Therapist Bernadette Campbell on November 7, 2014; Gray saw NHSP Nurse Practitioner Corina Neculai on November 20, 2014, but she denied all of Gray's requests for medical treatment; and Gray saw NHSP Nurse Chapman on May 22, 2015, but she failed to provide him with medical care or treatment for those problems. VSAC at 21-22, 57; VSAC Addendum (Doc. No. 87) at 11-23.

         It is undisputed that, during his incarceration, Gray filed IRS and grievance forms concerning the medical problems ...


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