United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge.
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,  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
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). 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
Defendants' Motion for Summary Judgment (Doc. No.
Summary Judgment Standard
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
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.
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.
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.
verified complaint,  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.
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).
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 ...