United States District Court, D. New Hampshire
Warren E. Peterson
William Wrenn, Commissioner, New Hampshire Department of Corrections, Richard Gerry, Christopher Kench, Lester Eldridge, Roger Provost, Kelly Jardine, Paul Cascio, Michael Marden, Jon Fouts, Brian Baxter, John Masse, and Charles Boyijian Opinion No. 2017 DNH 018
E. Peterson, pro se
Kenneth A. Sansone, Esq.
Elizabeth Mulholland, Esq.
J. Smith, Esq.
B. McCafferty, United States District Judge.
the court are defendants' motion for summary judgment
(Doc. No. 41) and plaintiff Warren E. Peterson's
objection and cross-motion for summary judgment (Doc. No.
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). 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), cert. denied, 85 U.S.L.W. 3324 (U.S. Jan.
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.
filed this action for damages and injunctive relief to
redress claims of disability discrimination and claims of
federal constitutional violations, naming a number of New
Hampshire State Prison (“NHSP”) and New Hampshire
Department of Corrections (“DOC”) officers and
employees as defendants. Defendants have moved for summary
judgment on all claims remaining in this action. Plaintiff
filed a cross motion for summary judgment on all claims
except Claim IV, as identified below.
court has identified the claims remaining in this action as
Claim I: Defendants DOC Commissioner William Wrenn, NHSP
Warden Richard Gerry, DOC Commissioner's Office employee
Christopher Kench, DOC Hearing Officer Lester Eldridge, NHSP
Cpl. Roger Provost, and NHSP Corrections Officer
(“C.O.”) Kelly Jardine discriminated against
Peterson based on his disability, paruresis,  in violation of
Peterson's rights under Title II of the Americans with
Disabilities Act (“ADA”), in that they subjected
Peterson to disciplinary penalties for failing to urinate for
a drug test and did not follow the conditions of
Peterson's NHSP “voiding pass, ” which had
been issued as an accommodation for Peterson's urine
Claim II: Defendants NHSP Lt. John Masse and Capt. Charles
Boyijian violated Peterson's First and Fourteenth
Amendment right of access to the courts, in that in
February/March 2013, they seized Peterson's legal files
and lost some of the files, while Peterson was preparing to
litigate a state post-conviction proceeding, which actually
hindered Peterson's ability to litigate a claim in that
Claim III: NHSP Defendants Capt. Paul Cascio, Lt. Michael
Marden, Maj. Jon Fouts, DOC Hearings Officer Brian Baxter,
and Christopher Kench retaliated against Peterson for
exercising his First Amendment right to petition the
government for a redress of grievances, in that they caused
Peterson to be charged and found guilty of the disciplinary
offense of “disrespect” because Peterson had
complained, in an inmate request slip (“IRS”),
that Cascio had lied to Peterson; and
Claim IV: Defendant NHSP Capt. Cascio retaliated against
Peterson for exercising his First Amendment right to petition
the government for a redress of grievances, in that he
withheld $35 in back pay owed to Peterson for work he did in
the Residential Treatment Unit (“RTU”), after
Peterson stated in an IRS that Cascio had lied.
brings Claim I against defendants in their official
capacities, and brings the remaining claims (Claims II-IV)
against defendants in their individual capacities.
Test and Urine Retention
March 7, 2013, Peterson was ordered to provide a urine sample
for a drug test. NHSP Cpl. Roger Provost escorted Peterson
off his residential unit to procure a urine sample. See
Appeal of 30A, Apr. 27, 2013 (Doc. No. 57-13, at 2).
Provost gave Peterson small quantities of water every half
hour for two hours to furnish a sample. See id.; DOC
Disciplinary Report, Mar. 10, 2013 (Doc. No. 41-16,
at 1). When Peterson nonetheless failed to urinate, Peterson
received an additional period of time to do so. See Doc. No.
57-13, at 2; Doc. No. 41-16, at 1. Peterson
still failed to produce a urine sample. See Doc. No.
57-13, at 2; Doc. No. 41-16, at 1.
prepared a disciplinary report about the incident and charged
Peterson with a substantial delay in furnishing a urine
sample for a drug test, in violation of Rule 30.A of the DOC
disciplinary rules for inmates. See Doc. No. 41-16.
Provost noted in the report that although Peterson “is
medically documented with a urinary retention problem,
” that did not “exclude him from producing a
urine sample.” See Id. at 2. The reviewing
officer, Officer Kelly Jardine, noted that Peterson had an
old “voiding pass” in his inmate records. See
id.; see also DOC Inmate Alert Search report, voiding pass
(Doc. No. 49-7, at 1). Lt. John Masse recommended
that the disciplinary report be processed as a major offense,
and Maj. Jon Fouts approved that recommendation. See Doc. No.
41-16, at 2.
receiving Provost's disciplinary report, Peterson
submitted an IRS to NHSP physician Dr. Celia Englander on
March 20, 2013, asking her to “review [Peterson's]
medical records and explain the precise details of [his]
voiding pass.” See Decl. of Dr. Celia A. Englander Apr.
14, 2016 (Doc. No. 41-18) (“Englander
Decl.”) ¶¶ 1, 5, 8; IRS, Mar. 20, 2013 (Doc.
No. 41-20). In her March 21 response to that IRS,
Dr. Englander wrote, “I reviewed all volumes of your
record. On December 18, 2002, Dr. Freedman wrote a voiding
pass stating that you were to be given 10 oz. of water, a dry
cell, a cup and an (one) hour to produce a urine
sample.” IRS Response, Mar. 21, 2013 (Doc. No.
41-20); see also Englander Decl. ¶ 7.
hearing on the March 2013 disciplinary report, DOC Hearing
Officer Lester Eldridge accepted Dr. Englander's March 21
response to Peterson's IRS as evidence, along with a
report of similar statements she made to Lt. Masse who asked
her to explain Peterson's voiding pass. See DOC Hearings
Results, Mar. 24, 2013 (Doc. No. 41-16, at 4-5).
Eldridge found Peterson guilty of the charged offense and
sentenced him to disciplinary penalties. See Id. at
4. Peterson's appeal was unsuccessful. See Doc. No.
57-13, at 1; Doc. No. 57-16, at 1.
ten years before, in December 2002, Peterson had been found
guilty of a similar charge. See Appeal of 30A, Dec. 20, 2002
(Doc. No. 56-7, at 5). Peterson appealed the
December 2002 guilty finding. Id. The Warden's
office granted the appeal and directed that Peterson be
returned to a lower custody status “due to medical
documentation of pre-existing issues.” See G. Crompton,
Warden's Response to Appeal of 30A, Jan. 21, 2003 (Doc.
No. 56-7, at 5, 6). Disciplinary reports were also
issued in December 2006 and January 2007, charging Peterson
with failing to furnish urine samples as required on December
16, 2006 and January 5, 2007. See DOC Disc. Rep., Dec. 21,
2006 (Doc. No. 56-6, at 1 - 2); DOC Disc. Rep., Jan.
18, 2007 (Doc. No. 56-5, at 1 - 2). It is undisputed
that the hearing officer in December 2006 threw out the
December 2006 charge, based on the December 2002 voiding
pass, see Doc. No. 56-4, at 2. The disposition of
the January 2007 charge is not part of this court's
Seizure of Legal Files
February 15, 2013, Peterson was transferred to the NHSP
Hancock Building, where he was assigned to a cell with seven
other inmates. See Decl. of John Masse, Apr. 12, 2016 (Doc.
No. 41-21) (“Masse Decl.”) ¶ 2.
Peterson arrived with a number of 55-gallon trash bags of
personal property, including legal paperwork. See
Id. Capt. Boyijian and Lt. Masse allowed Peterson to
have one bag of legal paperwork in his cell at a time, with
the remainder to be stored in the Hancock Building property
room. See id.
specifically asked to “receive the remainder of [his]
legal paperwork” in March 2013. Masse Decl. ¶ 8.
He was allowed to enter the Hancock Building property room
for that purpose on or around March 29, 2013. Id.;
IRS Response Apr. 1, 2013 (Doc. No. 41-24).
Peterson's March 31, 2013 IRS states that Peterson
located only three bags out of what he believed should have
been four bags of legal files. IRS Mar. 31, 2013 (Doc. No.
41-25). Peterson's April 2013 inmate request