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Peters v. Azzara

United States District Court, D. New Hampshire

August 4, 2017

Matthew W. Peters
James Azzara

          Matthew W. Peters, pro se Lynmarie C. Cusack, Esq. Elizabeth A. Lahey, Esq.


          Andrea K. Johnstone United States Magistrate Judge

         Plaintiff, Matthew Peters, who appears pro se, is incarcerated in the New Hampshire State Prison ("NHSP"). Peters seek relief under 42 U.S.C. § 1983 based upon claims that defendant, James Azzara, an investigator employed by the New Hampshire Department of Corrections ("DOC"), violated Peters's Eighth Amendment rights by acting with deliberate indifference to Peters's safety. Before this magistrate judge for a report and recommendation is defendant's motion for summary judgment (Doc. No. 85).

         Summary Judgment Standard

         "Summary judgment is appropriate when the record shows that 'there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Walker v. President & Fellows of Harv. Coll., 840 F.3d 57, 61 (1st Cir. 2016) (citations omitted). "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 v. Citizens Bank, N.A., 821 F.3d 206, 215 (1st Cir. 2016) (citations and internal quotation marks omitted). When a court considers a motion for summary judgment, "[t]he evidence . . . must be viewed in the light most favorable to the nonmoving party . . . and all reasonable inferences must be taken in that party's favor." Harris v. Scarcelli (In re Oak Knoll Assocs., L.P.), 835 F.3d 24, 29 (1st Cir. 2016) . To defeat summary judgment, "[t]he non-moving party . . . must 'produc[e] specific facts sufficient to deflect the swing of the summary judgment scythe.'" Xiaoyan Tang, 821 F.3d at 215 (citation omitted).

         Background [1]

         Peters has described himself as a former high-ranking member of a prison gang known as the Brotherhood of White Warriors ("BOWW"). See Dep. Matthew Peters ("Peters Dep."), at 30 (Doc. No. 85-5, at 8); Mem. Law in Support Mot. Summ. J. ("S.J. Mem."), at 2 (Doc. No. 85-1). In early February 2015, Peters sent an Inmate Request Slip ("IRS") to the NHSP's office of investigations. In it, he stated the following:

I am writing to you to formally denounce my membership [in] BOWW, a security threat group ["STG"]. I was labeled and sentenced as such. I have since come to realize that that road will lead me nowhere in life. I have also cleaned up and taken every course available to me to better my life and be a better man. My urin[e] history and school admittance records will show this. According to House Bill 649 and [NHSP Policy and Procedure Directive] 5.11 a member [of an STG] in order to not be labeled an STG member must write to you guys and formally denounce their gang. I am doing that now as I am interested in good behavior and earning good time for myself. What I will not do is "debrief" or "rat" as I don't believe in it and it could put my life in harm to carry such a label. Please write me back and let me know if I'm no longer (STG) as my actions will show that I'm not.

DOC IRS, Feb. 1, 2015 (Doc. No. 93-3). Investigator Marc Marchand gave the following response: "Noted. Someone will be over to interview you about your knowledge of BOWW." Id.; S.J. Mem., at 2 (Doc. No. 85-1).

         Peters's IRS resulted in an interaction with Azzara in the rotunda of the NHSP Secure Housing Unit ("SHU"). Azzara and Peters have provided different descriptions of that interaction, the principal difference being that Peters, but not Azzara, reports that Azzara mentioned Peters's desire to leave BOWW when he spoke with Peters at that time. Compare Aff. Matthew Peters (Jan. 24, 2017) ("Peters Aff.") ¶ 3 (Doc. No. 93-26), with Aff. James Azzara (Dec. 19, 2016) ("Azzara Aff.") ¶ 6 (Doc. No. 85- 7). For purposes of resolving defendant's motion for summary judgment, the court bases its legal analysis on plaintiff's description. According to Peters:

Sometime in the month of April 2015 I was on my way from my cell out to the cages when me and the escorting officer were stopped by investigator James Azzara. Mr. Azzara walked up, and started, as he put it, "a casual conversation" in front of other max security inmates who were also labeled (STG). He stated that he had received my request slip and wanted to know if it was true that I wanted to leave [BOWW.] I stated "ya it is" he then stated that "he would have [already] come to see me but he was busy with [a lot] of criminal investigations. He told me to be of good behavior and that he would be down to de-brief me soon." The conversation made me very uncomfortable. I even told him that he needed to be more discrete [sic] next time.

         Peters Aff. ¶ 3 (Doc. No. 93-26).[2] Peters states that he has "had to answer countless interrogations by angry convicts on why [he] would de-brief or cooperate with authorit[ie]s, " and that "they all believed that [he] was trying to sell other convicts down the river." Id. ¶ 10 (Doc. No. 93-26), On June 14, 2015, Peters wrote an IRS complaining about how Peters had been ostracized and called a "rat" since Azzara spoke with him in SHU. PI.'s Obj. Summ. J. (Doc. No. 93), at 2; see also S.J. Mem., at 2 (Doc. No. 85-1). Peters was told he could use the NHSP protective custody ("P.C") process to address his safety concerns. See S.J. Mem. at 3 (Doc. No. 85-1); Azzara Aff. ¶ 21 ("Plaintiff has been repeatedly told that he could use the protective custody process.").

         It is undisputed that Peters has not requested P.C. status.

         In Peters's words:

I asked for out of state P.C. ... I chose not to P.C. in this prison because that [label] follows you forever and makes you look guilty but most of all [it's] only temporary until they relocate you to a different unit inside the same prison. ... I chose instead to go to the Residential Treatment Unit (RTU) and deal with the overwhelming stress and anxiety that I was under.

Peters Aff. ¶ 6 (Doc. No. 93-26) .

         In August 2015, plaintiff moved from SHU to the RTU, which he has described as more secure than a general population unit. Peters Dep. at 47-48 (Doc. No. 85-5, at 12). While in the RTU, Peters met with Azzara, in circumstances Peters describes ...

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