United States District Court, D. New Hampshire
SUPERSEDING REPORT AND RECOMMENDATION
K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE.
Timothy Logsdon, an inmate at the New Hampshire State Prison
(“NHSP”), seeks monetary and injunctive relief,
claiming that the defendants violated his constitutional
rights by denying him visits from certain family members.
Invoking 42 U.S.C. § 1983, Logsdon alleges that the
restrictions on his family's visits violate his First,
Fifth and Fourteenth Amendment rights of familial
association. Before the court is defendants' motion for
summary judgment (Doc. No. 50), to which plaintiff has
objected (Doc. No. 56). Defendant's motion has been
referred to the undersigned magistrate judge for a report and
recommended disposition. See Aug. 1, 2018 Order; LR
72.1. For the reasons that follow, the district court judge
should grant the defendant's motion for summary judgment.
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)
(citation omitted). “Summary judgment is warranted if
the record, construed in the light most flattering to the
nonmovant, ‘presents no genuine issue as to any
material fact and reflects the movant's entitlement to
judgment as a matter of law.'” Lawless v.
Steward Health Care Sys., LLC, 894 F.3d 9, 20-21 (1st
Cir. 2018) (citation omitted); see 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.), review denied, 885 F.3d
52 (1st Cir. 2018).
obtain summary judgment, “[t]he moving party must
affirmatively demonstrate that there is no evidence in the
record to support a judgment for the nonmoving party.”
Celotex Corp. v. Catrett, 477 U.S. 317, 332 (1986).
“This demonstration must be accomplished by reference
to materials of evidentiary quality, and that evidence must
be more than ‘merely colorable.'” Flovac,
Inc. v. Airvac, Inc., 817 F.3d 849, 853 (1st Cir. 2016)
(citation omitted). 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). The
nonmoving party's failure to prove any essential element
of a claim “‘necessarily renders all other facts
immaterial.'” Delgado v. Aero Inv. Corp.,
601 Fed.Appx. 12, 15 (1st Cir. 2015) (quoting Celotex Corp.,
477 U.S. at 323). The nonmoving party's failure to make
the requisite showing “entitles the moving party to
summary judgment.” Flovac, Inc., 817 F.3d at 853.
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. FTC, 821 F.3d 164, 170 (1st Cir. 2016)
(citation omitted). When ruling on cross motions for summary
judgment, the court applies the same standard of review, but
each motion is viewed separately, with all inferences drawn
in favor of the nonmoving party. See Cooper v.
D'Amore, 881 F.3d 247, 249-50 (1st Cir. 2018)
following facts, culled from the parties' filings to
date, are undisputed except as otherwise noted. Logsdon is
serving a ten-to-thirty year sentence, imposed in December
2009, for a 2006 felony sexual assault committed against his
then three-year old daughter, J.L. See Dec. 1, 2009
Sentencing Order, State v. Logsdon, No.
219-2009-CR-190 (N.H. Super. Ct., Strafford Cty.) (Doc. no.
20-6). As a condition of Logsdon's sentence, the
sentencing court prohibited Logsdon from: having contact with
J.L. “except as allowed by Family Court orders,
”; having unsupervised contact with children younger
than sixteen; and having contact with his ex-wife and mother
of his three children, Marylisa. Id.
March 2010, the Family Court issued a Final Parenting Plan
(“FPP”) in the Logsdons' divorce proceedings.
See Mar. 31, 2010 FPP, In re Logsdon, No.
632-2009-DM-9 (N.H. Cir. Ct. - 7th. Cir. - Family Div.) (Doc.
No. 50-4). The FPP provided that Logsdon could exchange
letters with his three children - J.L., F.L., and P.L. (then
ages six, four and nine, respectively) - to the extent
recommended and permitted by J.L.'s therapist, Nancy
Hoag, who also served as the family therapist for F.L. and
P.L. The FPP further provided that the children's
telephone or in-person contact with Logsdon, while not
recommended at the time the FPP issued, could occur in the
future if, and under such circumstances, as may be
recommended by the children's therapists.
February 2013, Logsdon requested and received approval for
his children to visit him at the NHSP. In June 2015, he
received approval for Marylisa to visit him. In December
2015, Marylisa and the three children attended a holiday
party at the NHSP. June 5, 2018 Decl. of Nicole D. Kipphut
(Doc. No. 50-2) (“Kipphut Decl.”), ¶ 8.
During that event, J.L. became visibly upset, crying through
at least part of the visit. Id. at ¶¶ 8,
18; Breen Decl. (Doc. No. 20-1), ¶ 15; March 31, 2017
Letter of Nancy Hoag (“March 2017 Hoag Letter”),
(Doc. No. 29), at 19.
the holiday visit, then-Victim Services Coordinator Breen
reviewed the pertinent sentencing and family court orders and
interpreted them as barring Logsdon from having contact with
J.L., Marylisa or children under the age of sixteen.
Id. at ¶ 9. Breen then removed Marylisa, J.L.,
F.L., P.L. and Logsdon's minor nephew from his approved
visitor list. See id.
2016, Logsdon requested approval for his children and
Marylisa to attend a Father's Day event at the NHSP
scheduled for June 2016. The request was denied, owing to the
fact that those family members had been removed from
Logsdon's visitor list. When Logsdon inquired further as
to the reason his request was denied, he was informed in
writing that the visits were denied because the NHSP
administration had determined that the FPP only allowed
contact by letters through the children's therapist and
the Sentencing Order did not allow Logsdon to have any
contact with J.L. See June 27, 2016 Inmate request
(Doc. No. 50-5.).
August 25, 2016, the state sentencing court amended
Logsdon's sentence to remove the family contact
limitations, in accordance with State v. Towle, 167
N.H. 315 (2015), in which the New Hampshire Supreme Court
held that a sentencing court exceeded its statutory authority
by including a “no contact” provision in a
sentence. Logsdon brought the sentencing change to
next day, August 26, 2016, Dr. Hoag advised Breen and then
Warden Michael Zenk in writing that she and P.L.'s
individual therapist had recommended that the children be
allowed to visit their father if they wanted to, in
accordance with terms established by the therapist,
including, among other things, the supervision of the visits
by Marylisa and another adult, limitations on physical
contact and affection between Logsdon and the children, and
the ability of the children to refuse or terminate the visit
at any time. See Aug. 26, 2016 Letter of Nancy Hoag
(Doc. No. 13-1) (“August 2016 Hoag Letter”).
After receiving the August 26 Hoag letter, Breen and other
prison officials were concerned that Dr. Hoag did not have
sufficient information concerning the prison's limited
ability to provide supervision for Logsdon's visits to
ensure that the conditions Hoag identified as necessary were
met. See Breen Decl. (Doc. No. 20-1) at ¶¶
11-12. Breen also expressed concern that Logsdon's adult
family members had already brought J.L. to visit Logsdon at
the NHSP in apparent violation of court orders in effect at
the time of those visits. Id. at ¶ 7. Also,
prison officials were concerned that Hoag ...