Graham v . Corrections CV-02-377-PB 1/12/05
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Melvin Graham
v. Civil N o . CV-02-377-PB Opinion N o . 2005 DNH 006 Bruce Cattell, et a l .
MEMORANDUM AND ORDER
Melvin Graham is currently incarcerated at the Northern New
Hampshire Correctional Facility (“NCF”) in Berlin, New Hampshire.
He brings this lawsuit against the facility’s librarian, Angela
Rouleau Poulin,1 as well as her supervisors: Warden Bruce Cattell
and former New Hampshire Department of Corrections Commissioner
Phil Stanley. Graham seeks relief under 42 U.S.C. § 1983 for two
separate First Amendment violations. First, he claims that
library regulations, policies and practices2 developed by Poulin
1 Poulin married after Graham filed his claim and has since changed her name. At the time of filing, her name was Angela Rouleau. For the purposes of this order, I shall refer to defendant as “Poulin.” 2 For the purposes of this order, a “regulation” is a formally enacted rule memorialized in a policy and procedure directive (“PPD”). A “policy” is also a rule, yet unlike a violate his First Amendment right to access the courts. Second,
he claims that defendants implemented some of the policies and
practices to retaliate against him for exercising his First
Amendment rights. I conclude that no reasonable jury could
agree with either of Graham’s arguments. I therefore grant
defendants’ summary judgment motion on both claims.
I. BACKGROUND
Graham resides in the prison complex at NCF. This case
initially arose from an incident that occurred there in December
2001. Over the course of a weekend, Graham suffered serious
physical symptoms after he was bitten by a spider. In August
2002, he filed suit against certain state officials claiming that
their deliberate indifference to his condition caused his
injuries to worsen in violation of his Eighth Amendment right
against cruel and unusual punishment.3 In the same complaint,
regulation, is not memorialized in a PPD. A “practice” is either an official action or series of actions, as distinct from a rule, that may affect the prison population generally. 3 Graham’s Eighth Amendment claim was dismissed without prejudice for failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). (Doc. N o . 5 8 ) . His motion to reconsider was denied. (Doc. N o . 6 2 ) .
-2- Graham also raised grievances about the following five
regulations, policies and practices affecting his use of NCF’s
library facilities: (1) the prison’s library scheduling
regulations and policies; (2) the quality of its research
materials; (3) the “no talking” policy; (4) the quality of
library furniture; and (5) its photocopying policy. Poulin
implemented these regulations, policies and practices as part of
her responsibilities as NCF’s librarian. I discuss each of
Graham’s claims in detail below.
II. STANDARD OF REVIEW
Summary judgment is appropriate only “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). A trial is only necessary if there is a genuine factual
issue “that properly can be resolved only by a finder of fact
because [it] may reasonably be resolved in favor of either
party.” Anderson v . Liberty Lobby, Inc., 477 U.S. 2 4 2 , 250
(1986). A material fact is one that affects the outcome of the
-3- suit. See id. at 248.
In ruling on a motion for summary judgment, I must construe
the evidence in the light most favorable to the non-movant. See
Navarro v . Pfizer Corp., 261 F.3d 9 0 , 94 (1st Cir. 2001). The
party moving for summary judgment “bears the initial
responsibility of informing the district court of the basis for
its motion, and identifying those portions of [the record] which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v . Catrett, 477 U.S. 3 1 7 , 323
(1986). Once the moving party has properly supported its motion,
the burden shifts to the non-moving party to “produce evidence on
which a reasonable finder of fact, under the appropriate proof
burden, could base a verdict for i t ; if that party cannot produce
such evidence, the motion must be granted.” Ayala-Gerena v .
Bristol Myers-Squibb Co., 95 F.3d 8 6 , 94 (1st Cir. 1996)
(citation omitted). Neither conclusory allegations, improbable
inferences, nor unsupported speculation are sufficient to defeat
summary judgment. See Carroll v . Xerox Corp., 294 F.3d 2 3 1 , 236-
37 (1st Cir. 2002).
-4- III. DISCUSSION
A. First Amendment Right of Access to the Court
Graham argues that each of the challenged regulations,
policies and practices impede his access to the courts. He
correctly asserts that it is “undisputed that inmates have a
fundamental constitutional right of access to the courts.”
Carter v . Fair, 786 F.2d 433, 435 (1st Cir. 1986) (citing Bounds
v . Smith, 430 U.S. 8 1 7 , 828 (1977)). This right of access,
however, requires only that prison authorities “assist inmates in
the preparation and filing of meaningful legal papers by
providing prisoners with adequate law libraries or adequate
assistance from persons trained in the law.” Bounds, 430 U.S. at
828. To make a claim that access to the courts has been denied,
then, an inmate must show “that the alleged shortcomings in the
library or legal assistance program hindered his efforts to
pursue a legal claim.” Lewis v . Casey, 518 U.S. 343, 351 (1996).
It is important to note that because the touchstone is
meaningful access to the courts, “prison law libraries and legal
assistance programs are not ends in themselves, but only the
means for ensuring ‘a reasonably adequate opportunity to present
-5- claimed violations of fundamental constitutional rights to the
courts.’” Lewis, 518 U.S. at 351 (quoting Bounds, 430 U.S. at
825). “Because Bounds did not create an abstract, freestanding
right to a law library or legal assistance, an inmate cannot
establish relevant actual injury simply by establishing that his
prison’s law library or legal assistance program is subpar in
some theoretical sense.” Id. Therefore, in order for Graham to
assert a violation, he must “demonstrate that a nonfrivolous
legal claim ha[s] been frustrated or was being impeded” by the
policies and practices of the prison authorities. Lewis 518 U.S.
at 353; see also Christopher v . Harbury, 536 U.S. 403, 413-15
(2002) (holding that the right of access is “ancillary to the
underlying claim, without which a plaintiff cannot have suffered
injury by being shut out of court”).
Even if a prison regulation, policy or practice hinders a
prisoner’s ability to access the courts, it may be upheld if what
is challenged bears a rational relationship to legitimate
penological interests. See Overton v . Bazzetta, 539 U.S. 126,
132 (2003); Lewis, 518 U.S. at 361; Savard v . Rhode Island, 338
F.3d 2 3 , 30-31 (1st Cir. 2003). Four factors are relevant to
this analysis: (1) “whether the regulation has a ‘valid rational
-6- connection’ to a governmental interest”; (2) “whether alternative
means are open to inmates to exercise the asserted right”; (3)
“what impact an accommodation of the right would have on guards
and inmates and prison resources”; and (4) “whether there are
‘ready alternatives’ to the regulation.” Overton, 539 U.S. at
132, quoting Turner v . Safety, 482 U.S. 7 8 , 89-91 (1987).
1. Library Scheduling
Graham’s first grievance is that prison regulations and
policies do not provide him with sufficient time to conduct
research. Under NCF regulations, prisoners are allotted a total
of four hours of library time per week, but may apply for
extended time if he can present Poulin with proof that he is
engaged in active litigation. See Plaintiff’s Exhibit B , N.H.
Department of Corrections Policy and Procedure Directive, 7.20
(IV) (A) (3-4) (effective date: 11/01/03) (“Exhibit B ” ) .
Prison policy further limits access to the law library to
two separate time blocks: from 6:45am to 10:45am and from 10:45am
to 2:30pm. Poulin Aff. at 2 . This policy, and the regulations
regarding weekly allocation of library time, have been in effect
throughout Poulin’s tenure at NCF. See Plaintiff’s Exhibit A ,
-7- Affidavit of Angela Rouleau Poulin at 2 (“Poulin Aff.”). 4
Graham claims that additional policies were adopted after he
filed an action in Coos County Superior Court challenging the
time limitations placed on library use at NCF. See Am. Compl.
(Doc. N o . 12) at 3.5 When prison officials agreed to allow
Graham eight hours of access to the law library per week, the
court dismissed the writ as moot. Id.
Under the new policies, if a prisoner signs up for time in
the law library, he must report to the library and sign i n . See
4 Graham observes that these and other policies became effective on 11/01/03. See Plaintiff’s Objection to Defendant’s Motion for Summary Judgment (Doc. N o . 72) at 4 . He then notes that NCF has been operational since April 2000. Id. Graham believes that this implies that the policies at issue must have changed. However, without access to the policies they replaced, there is no way to know whether this is true or not. The only facts presented on this issue are statements made by Poulin. Those statements, uncontradicted by evidence to the contrary, proclaim that the rules at issue have remained unchanged. 5 Graham claims that he has filed three separate habeas petitions in the New Hampshire Superior Court, one in the New Hampshire Supreme Court, and one here in U.S. District Court. See Plaintiff’s Objections to Summary Judgment (Doc. N o . 72) at 7 . Graham has not produced any additional information about these actions. Id. He claims only that the petitions were denied on procedural grounds and that a different result might have occurred were library conditions as he claims they should b e . Id. Without more information, I have no way to evaluate these claims.
-8- Am. Compl. at 4 . If he signs up for a morning slot, he must
arrive on time, and he may leave for breakfast only after signing
in. See Poulin Aff. at 3 . If a prisoner is late or fails to
keep his appointment, the prisoner may be subject to disciplinary
action. This may effect his parole status. Graham has not
alleged that he has been disciplined in any way for his failure
to comply. He does argue, however, that he suffers from hearing
loss and therefore must rely on prison officials to wake him up
in the morning. See Am. Comp. at 4 . If they fail to do so and
he is late, he may be punished. Id. This, he claims, makes it
highly likely that he will be disciplined in the future.
In evaluating the reasonableness of the scheduling policy,
it is important to note that “the Constitution does not guarantee
a prisoner unlimited access to a law library. Prison officials
of necessity must regulate the time, manner, and place in which
library facilities are used.” Lindquist v . Idaho State Bd. of
Corr., 776 F.2d 8 5 1 , 858 (9th Cir. 1985). Here, Poulin has done
exactly that.
A policy limiting inmates to four hours of law library-use
per week, but providing for the possibility that this time may be
extended, is clearly permissible as a regulation reasonably
-9- related to the stated, and in my view, legitimate, penological
interest of maintaining prison order. Poulin Aff. at 3 . So too
is the requirement that prisoners arrive on time to sign i n .
Without these polices, it could prove difficult to keep track of
a prisoner’s whereabouts and to ensure that all prisoners are
given comparable access to library resources. Supported
rationally by reasonable policy concerns, then, these regulations
do not violate Graham’s First Amendment right of access to the
courts.
2. Research Materials
Graham’s second grievance is that the prison’s newly
established computer research system impedes his ability to
effectively research his claims. Among other resources, the NCF
law library has acquired several LOIS-law computer research
terminals. Poulin Aff. at 3 . These terminals replaced the
library’s book-based research system, which the New Hampshire
Department of Corrections decided was too costly to maintain.
Id. The new system provides access to a wide range of materials,
including case law and statutes.6 Id. Prisoners who do not know
6 The LOIS-law databases include the New Hampshire Rules of Evidence, Practice, and Procedure, New Hampshire statutes,
-10- how to use NCF’s computers may learn to do so by reading
instruction books, or by referencing a help application within
the LOIS program. Outdated case reporters and treatises are
maintained in the recreation library for those who are unable or
unwilling to learn how to use the computers. See Am. Compl. at
4. If an inmate is unable to find what he needs, he may fill out
a request form which Poulin can then pass on to the main prison
library, the prison’s in-house counsel, or even the New Hampshire
Supreme court library, to be answered.
When evaluating whether these resources meet constitutional
standards, it is important to recognize that “the Prison need not
provide its inmates with a library that results in the best
possible access to the courts.” Lindquist, 776 F.2d at 856.
Given the library resources available to Graham, it is thus
difficult to see how he can credibly claim that he is denied at
least adequate access. According to Lewis, “the Constitution
does not require that prisoners (literate or illiterate) be able
to conduct generalized research, but only that they be able to
federal circuit court opinions, U.S. Supreme Court opinions, Federal Rules of Civil and Appellate Procedure, and local rules of procedure.
-11- present their grievances to the courts -- a more limited
capability that can be produced by a much more limited degree of
legal assistance.” 518 U.S. at 360. Graham’s ability to bring
this suit and pursue it to the summary judgment stage is
evidence, in and of itself of his ability to gain meaningful
access to the courts. I thus hold that NCF’s research facilities
do not violate Graham’s First Amendment right of access to the
3. The “No Talking Policy”
Graham’s third grievance is that NCF has adopted a strict
“no-talking” policy between inmates while in the law library. He
views this limitation as an additional impediment to his right of
access.
Under prison regulations, only individual research is
permitted. See Exhibit B , (IV) (C) (2) ( a ) . The purpose of this
rule is to ensure that library time is used effectively by
attending prisoners and to maintain order and discipline. Poulin
Aff. at 3 . Poulin has interpreted this regulation to restrict
any talk in the library, whatsoever. Id. at 2 . Like the other
policies Graham criticizes, the “no talking” policy has been in
effect throughout Poulin’s tenure. Id.
-12- Graham argues that the deficiency in library resources could
be overcome were prisoners allowed to confer. For this reason he
asks me to strike the policy down. I refuse to do s o . As noted,
prison officials may reasonably regulate the manner in which
library facilities are used. Lindquist, 776 F.2d at 858. The
“no talking” policy is a reasonable “manner restriction.” Its
penological purpose is to maintain order and discipline in the
library. Poulin Aff. at 3 . Without these rules, it would be
more difficult for Poulin and others to ensure that library time
is being used properly. Graham does not present any evidence to
suggest that such an approach is otherwise unreasonable. Without
such evidence, I must rule in defendant’s favor. See Ayala-
Gerena, 95 F.3d at 94 (requiring the party opposing a motion for
summary judgment to come forward with some evidence to prove the
existence of a material fact after its existence has been called
into question by the moving party). I hold that the policy of
requiring prisoners to conduct legal research on their own does
not violate Graham’s First Amendment right of access to the
4. Uncomfortable Chairs
Graham’s fourth grievance is that the law library chairs
-13- make it physically uncomfortable for him to do research there.
The prison replaced more comfortable chairs with the current
chairs only after Graham filed his initial complaint. This
occurred when it was discovered that the older chairs were housed
in the law library as the result of an administrative error. See
Poulin Aff. at 4 . When the error was discovered, the chairs were
promptly returned to the state. Id. They were replaced by
chairs no different from those used throughout the NCF facility.
Id.
Again, Graham’s claim that replacing the comfortable chairs
violates his access rights is contradicted by the very fact that
Graham has brought this case to the summary judgment stage of
litigation. To obtain relief against the state for impeding
access to the court, one must show that a claim has been
frustrated as a result of the alleged impediment. See Lewis, 518
U.S. at 353. Nowhere has Graham alleged that prison chairs have
resulted in injury to this or any case that he has filed. They
thus do not inhibit his ability to access the courts.
5. Photocopy Policy
Graham’s final complaint is that prison policy requires
Poulin to make copies of court material used by litigating
-14- prisoners.7 This policy, Graham asserts, allows Poulin to
impermissibly read and review the legal documents submitted by
prisoners for photocopying. He seems to base his claim first on
an assertion of certain privacy rights and second on the fact
that invading these rights may deter future filings. Poulin
states that, as a practice, she only examines the contents of
these materials i f , on their face, they contain information that
threatens prison security.8 See Poulin Aff. at 4 . Otherwise,
she examines prisoner documents in a cursory fashion and only in
order to remove staples or crumpled paper prior to making copies.
Stapled or crumpled paper, she states, damage the library’s
copier. Id.
I reject Graham’s challenge to the photocopying policy for
two reasons. First, his claim fails because he has not offered
7 Regulations regarding photocopying services are enumerated in a PPD. See Defendant’s Exhibit D, N.H. Department of Corrections Policy and Procedure Directive, 7.42 (“Exhibit D ” ) . Exhibit D does not contain any explicit language requiring the librarian to make photocopies. Nor does Exhibit D govern the care a librarian must take to examine, o r , for that matter, not examine, documents while copies are made. I therefore treat what is challenged as a prison policy. 8 This would occur i f , for instance, materials detailed a concerted plan designed by prisoners to attempt an escape.
-15- evidence that the policy compromised his ability to litigate a
specific claim. As I have explained, such evidence is required
to establish an access to the courts claim. See e.g., Lewis v .
Casey, 518 U.S. 343, 351 (1966). Second, because the policy is
rationally related to legitimate penological interests, Graham’s
challenge fails even if he could prove that the policy hindered
his ability to litigate a specific claim. Defendants have a
legitimate interest in ensuring that documents that are submitted
for photocopying do not contain staples, crumpled pages, tape or
other defects that could damage the photocopier. They also have
a strong interest in ensuring that the photocopier is not misused
in ways that could compromise prison security or adversely impact
public safety. Further, the cursory review of submitted
documents that the policy ordinarily permits Poulin to make is
among the least intrusive alternatives open to defendants. Thus,
because none of the other factors identified in Overton favor
Graham’s position, his challenge to the policy would fail even if
he could demonstrate that he was adversely affected by the policy
in a specific case.
B. First Amendment Right Against Retaliation
Graham next argues that Poulin has attempted to retaliate
-16- against him for exercising his right to redress grievances
through litigation. Graham cites three separate prison actions
in support of this argument. The first is the modification to
the library scheduling policy, which now requires inmates to
arrive at the law library on time to sign i n . The second is
Poulin’s decision to remove those chairs from the law library
that Graham considered “comfortable” and to replace those chairs
with less comfortable chairs. The third is Poulin’s decision to
more strictly enforce the prison’s “no talking” policy.9
To prove that Poulin violated his right against retalation,
Graham must show: (1) that he had a First Amendment right; (2)
that Poulin took an adverse action against him; (3) with the
intent to retaliate against him for exercising that right; and
(4) that the retaliatory act caused the injury for which he is
seeking compensation. See McDonald v . Steward, 132 F.3d 225, 231
(5th Cir. 1998).
Graham has met the first element of the test. The First
Circuit Court of Appeals recognizes an inmate’s First Amendment
9 Graham registers particular concern over a warning issued to all prisoners in September 2003 not to engage in conversation while in the law library. See Plaintiff’s Exhibit A , Verbatim Copy of Notice on Law Clerks Desk at NCF Law Library.
-17- right of access to the courts and will redress any actions by
prison officials that punish an inmate for exercising this right.
See Ferranti v . Moran, 618 F.2d 8 8 8 , 891-92 (1st Cir. 1980).
Graham has failed, however, to meet the second element.
Each action cited by Graham is a shift in prison operations that
affects the prison population generally. No cited action targets
Graham alone. Without some proof, beyond pure allegation, that
these actions were taken by Poulin in an effort to punish Graham,
he fails to meet the requirements of the second element.
Graham, has also failed to offer any proof that the cited
actions were taken with retaliatory intent. With respect to the
sign-in and “no talking” policies, he is unable to contradict
Poulin’s assertion that they were enacted to maintain a greater
measure of order among prisoners who use the law library. With
respect to the change in prison furniture, Graham is unable to
contradict Poulin’s assertion that comfortable chairs were
removed because they were placed at NCF as a result of
administrative error and needed to be returned. If these reasons
are purely pretext, Graham has failed to provide proof as to why
or how. Instead, he relies on conclusory assertions that they
were animated by retaliatory motives alone. Especially when
-18- challenging actions that affect the prison population generally,
more is required to survive summary judgment. Defendant’s motion
with respect to these claims is therefore granted.10
IV. CONCLUSION
Defendants’ motion for summary judgment (Doc. N o . 65) is
granted in its entirety. The clerk is instructed to enter
judgment accordingly.
SO ORDERED.
Paul Barbadoro United States District Judge
January 1 2 , 2005
cc: Melvin Graham Daniel Mullen, Esq.
10 Graham’s supervisory liability claims fail because he cannot establish that any of the supervisees violated his constitutional rights. See Febus-Rodriguez v . Betancourt-Lebron, 14 F.3d 8 7 , 92 (1st Cir. 1994)
-19-