United States District Court, D. New Hampshire
Matthew W. Peters
Matthew W. Peters, pro se Lynmarie C. Cusack, Esq. Elizabeth
A. Lahey, Esq.
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge
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).
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
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).
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.
Aff. ¶ 3 (Doc. No. 93-26). 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.").
undisputed that Peters has not requested P.C. status.
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) .
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