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Hart v. Goulette

United States District Court, D. New Hampshire

August 7, 2018

Kenneth Hannibal Hart
v.
Ryan Goulette, Page Kimball, Eric Barbaro, and Paul Cascio

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge.

         Plaintiff Kenneth Hart, who appears pro se, is currently incarcerated at the New Hampshire State Prison (“NHSP”). He claims that NHSP Secure Psychiatric Unit (“SPU”) Lt. Paul Cascio, [1] Corrections Officer (“C.O.”) Ryan Goulette, Cpl. Page Kimball, and Sgt. Eric Barbaro:

seized and/or did not return Hart's legal work on November 29, 2012, to retaliate against Hart for exercising his First Amendment rights: (A) in litigating a petition to terminate a guardianship over his person . . .; and (B) in preparing a lawsuit challenging [an] April 2012 tasering incident.

         July 22, 2016 Report and Recommendation (Doc. No. 11), at 3, approved by August 31, 2016 Order (Doc. No. 18). Before this magistrate judge for a report and recommendation (“R&R”) is: (1) an unopposed motion for summary judgment (Doc. No. 96) filed by defendants Cascio, Goulette, Kimball, and Barbaro; and (2) defendant Dr. Linda DeLorey's “Motion for Entry of Final Judgment Pursuant to Rule 54(b)” (Doc. No. 95).[2] For the reasons that follow, the district judge should grant defendants' motion for summary judgment and, as a consequence, the district judge should deny, as moot, Dr. DeLorey's Rule 54(b) motion.

         I. Defendants' Motion for Summary Judgment (Doc. No. 96)

         A. Summary Judgment Standard

         “The purpose of summary judgment is to enable a court ‘to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.'” Fernández-Salicrup v. Figueroa-Sancha, 790 F.3d 312, 328 (1st Cir. 2015) (citations omitted). Summary judgment is appropriate “where ‘the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'” Sepúlveda-Vargas v. Caribbean Rests., LLC, 888 F.3d 549, 553 (1st Cir. 2018) (quoting Fed.R.Civ.P. 56(a)). At summary judgment, “[a]n issue is ‘genuine' if the evidence would enable a reasonable factfinder to decide the issue in favor of either party.” Irobe v. U.S. Dep't of Agric., 890 F.3d 371, 377 (1st Cir. 2018). “A fact is ‘material' when its (non)existence could change a case's outcome.” Mu v. Omni Hotels Mgmt. Corp., 882 F.3d 1, 5 (1st Cir. 2018). When ruling on a motion for summary judgment, the court must “construe the record in the light most favorable to the non-movant, resolving all reasonable inferences in that party's favor.” Sepúlveda-Vargas, 888 F.3d at 553.

         B. Background[3]

         At all times relevant to this matter, Hart was being held in the SPU. On November 29, 2012, Hart was scheduled to appear in court in the New Hampshire Circuit Court, Sixth Circuit, Probate Division, in Concord, for a hearing on a petition he had filed to terminate a guardianship over his person. Hart has asserted that SPU officers had a motive to interfere with that petition, as “[t]he issue before the [state] court concerned the future authority of the S.P.U. officers over [him], ” Compl. (Doc. No. 1), at 9.

         On November 29, 2012, C.O. Goulette and Cpl. Kimball went to Hart's cell to prepare him for transport. When the officers went into Hart's cell, they discovered unsanitary conditions, including trash and open containers of urine. Barbaro Decl. ¶ 5 (Doc. 96-2); Goulette Decl. ¶ 6 (Doc. No. 96-4); Kimball Decl. ¶ 6 (Doc. No. 96-5). Barbaro decided to move Hart to a different cell. Barbaro Decl. (Doc. 96-2) ¶¶ 7-8. Hart was handcuffed and moved into the corridor, and Hart's old cell was searched. Id. ¶¶ 5-6. The sheriff who had arrived to transport Hart to court eventually cancelled the transport. See id. ¶ 6.

         Goulette, Kimball, and Barbaro all describe the search of Hart's old cell in their declarations as having been conducted by SPU staff. Kimball expressly denied participating in the initial search and trash removal, as he stood with Hart outside of the cell at that time. Kimball Decl. ¶ 7. Barbaro stated that all of Hart's authorized property, including his legal material, was transferred from Hart's old cell to his new one. Barbaro Decl. ¶ 7. Goulette, Kimball, and Barbaro all expressly denied looking at any of Hart's legal material or taking any of it from Hart's cell. Barbaro Decl. ¶¶ 3, 9 (Doc. No. 96-2); Goulette Decl. ¶¶ 3, 8 (Doc. No. 96-4); Kimball Decl. ¶¶ 3, 9.

         In his verified complaint, [4] plaintiff stated that, on November 29, defendants Goulette, Kimball, and Barbaro seized his legal material, and that Lt. Cascio ordered the seizure of the legal material and then failed to give it back. See Compl. (Doc. No. 1), at 8-9. Hart further alleged that while Hart was holding a bag full of legal material, Barbaro snatched the bag, told him that he would not be leaving the cell with his legal material, but also told him that his legal material would be returned to him once it was searched. Id. at 8. Hart asserted that Goulette and Kimball also told him he would get his property back. See id. Hart described the incident somewhat differently in his deposition, testifying that he never saw any of the defendants actually seize his legal materials. See Hart Dep. 37:2-4 (Doc. No. 96-7, at 9). Cascio's declaration states that he “had no knowledge of any legal materials being seized from Inmate Hart or from his cell on November 29, 2012.” Cascio Decl. ¶ 3 (Doc. No. 96-3).

         Hart alleged in the verified complaint that the officers seized his legal material: (1) to prevent him from prevailing in his pending litigation; (2) in retaliation for petitioning to terminate his guardianship; and (3) in retaliation for preparing a lawsuit arising out of an April 2012 tasering incident. See Compl. (Doc. No. 1), at 9, 32. In his deposition, however, Hart answered, “Yes, ” when asked if, at the end of the day, it was “your speculation, ” that the taking of his legal work was a retaliatory act. Hart Dep. 26:18-22 (Doc. No. 96-7, at 5).

         Goulette and Kimball stated, in their declarations, that on November 29, they did not know which court Hart was being transported to. Goulette Decl. ¶ 4 (Doc. No. 96-4); Kimball Decl. ¶ 4 (Doc. No. 96-5). All four defendants have stated in declarations, that on November 29, they did not know that Hart had filed a petition to terminate his guardianship. Goulette Decl. ¶¶ 3, 8 (Doc. No. 96-4); Kimball Decl. ¶¶ 3, 9 (Doc. No. 96-5); Barbaro ¶¶ 3, 9 (Doc. No. 96-2); Cascio Decl. ¶ 5 (Doc. No. 96-3). Hart testified at his deposition that defendants knew where he was going on November 29 because of the “transport order.” Hart Dep. 59:17-23 (Doc. No. 96-7, at 16). When asked whether Hart had information indicating that defendants knew why he was going to court on ...


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