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Peterson v. Wrenn

United States District Court, D. New Hampshire

January 30, 2017

Warren E. Peterson
v.
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

          Warren E. Peterson, pro se

          Kenneth A. Sansone, Esq.

          Elizabeth Mulholland, Esq.

          Nancy J. Smith, Esq.

          ORDER

          Landya B. McCafferty, United States District Judge.

         Before 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. 49).

         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). 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. 9, 2017).

         “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.

         Background

         Peterson 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.

         I. Claims

         This court has identified the claims remaining in this action as the following[1]:

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, [2] 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 retention problem.
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 proceeding.
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.

         Peterson brings Claim I against defendants in their official capacities, and brings the remaining claims (Claims II-IV) against defendants in their individual capacities.

         II. Undisputed Facts

         A. Drug Test and Urine Retention

         On 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.

         Provost 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.

         After 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.”[3] IRS Response, Mar. 21, 2013 (Doc. No. 41-20); see also Englander Decl. ¶ 7.

         At the 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.

         Approximately 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 record.

         B. Seizure of Legal Files

         On 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.

         Peterson 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 ...


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