Hopkins v. Warden, et al. CV-04-030-M 05/20/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Kenneth Hopkins
v. Civil No. 04-30-M Opinion No. 2004 DNH 088 Warden, NH State Prison, et al.
REPORT AND RECOMMENDATION
Plaintiff Kenneth Hopkins, an inmate at the New Hampshire
State Prison for Men ("NHSP"), brought this suit against Jane
Coplan, NHSP Warden, and a number of state corrections officials
pursuant to 42 U.S.C. § 1983 (document no. 4).1 Hopkins alleges
that he has suffered numerous and repeated retaliatory acts by
NHSP staff, intentional indifference to his safety and serious
medical needs, and violation of his due process rights. These
acts allegedly stem from Hopkins' participation in a 1992
investigation that led to the termination of NHSP staff members
who were embezzling funds from inmate accounts. Hopkins claims
that the defendants have violated his rights under the First,
1The following individuals are also named as defendants: Phil Stanley, former Commissioner of the New Hampshire Department of Corrections, Viola Lunderville, former NHSP Director of Security, Marilee Nihan, former NHSP Director of Programs and Acting Warden, C.O. Topham, C.O. Turcott, C.O. Edsel, L t . Thibeault, Sgt. Desmond, and Cpl. LaFlamme. Fifth, Eighth and Fourteenth Amendments to the United States
Constitution. He seeks compensatory and punitive damages, a
declaratory judgment and injunctive relief. I address my
preliminary review of Hopkins' complaint in part I of this
document. In part II of this document, I address an objection
and five motions brought by defendants.
I
Standard of Review
Under this court's local rules, when an incarcerated
plaintiff commences an action pro se and _in forma pauperis the
magistrate judge is directed to conduct a preliminary review and
to prepare a report and recommendation determining whether the
complaint or any portion thereof should be dismissed because:
(I) the allegation of poverty is untrue, the action is frivolous, malicious, or fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief under 28 U.S.C. § 1915A(b); or
(ii) it fails to establish subject matter jurisdiction under Fed. R. Civ. P. 12(b) (1)
Local Rules of the United States District Court for the District
of New Hampshire, LR 4.3(d)(2). In conducting the preliminary
review, the Court construes pro se pleadings liberally. See
Ayala Serrano v. Gonzalez, 909 F.2d 8, 15 (1st Cir. 1990), citing
2 Estelle v. Gamble, 429 U.S. 97, 106 (1976). The Court accepts
the plaintiff's factual assertions, and all reasonable inferences
that may be drawn therefrom, as true, but does not credit bald
assertions or unsupported conclusions. See Aulson v. Blanchard,
83 F.3d 1, 3 (1st Cir. 1996) .
Hopkins filed his complaint pursuant to 42 U.S.C. § 1983.
To state a claim under § 1983, a plaintiff must allege two
elements: (1) that a right secured by the Constitution or laws of
the United States has been violated, and (2) that the violation
was committed by a person acting under color of state law. See
West v. Atkins, 487 U.S. 42, 48 (1988). The allegations that are
most pertinent to Hopkins' claims are discussed next.
Background
A. Investigation Into Staff Embezzlement
In early 1992, defendant Lunderville enlisted Hopkins'
assistance in an investigation into possible staff embezzlement
of inmate canteen funds. Compl., 5 8. Hopkins agreed to
participate in the investigation as long as his identity was kept
confidential and his safety was not put in jeopardy. I d ., 5 9.
Lunderville arranged for Hopkins to get the job of recreation
clerk, which at the time included overseeing the accounting of
3 inmate canteen funds. Id. In that position, Hopkins was able to
identify the embezzlers and the means that they used to
wrongfully obtain funds. Id. As a result of the embezzlement
investigation, NHDOC terminated former Administrator of
Recreation Bruce Wright, his assistant Bill Woodson, and a female
bookkeeper. I d ., 5 18. Hopkins believes that some members of
the corrections staff resented his involvement in an
investigation disclosing staff misconduct. I d ., 5 11.
B. Beginning of Staff Retaliation
After the embezzlement investigation was complete, Hopkins
was placed into pending administrative review status and moved to
the prison's Reception and Diagnostic ("R&D") Unit for his
protection. I d ., 5 10. At that time Warden Coplan was the R&D
unit manager. Id. Coplan retaliated against Hopkins by issuing
him three unwarranted disciplinary reports, which were guashed by
Major Guimond. I d ., 5 17. Hopkins was moved to the prison's
Special Housing Unit ("SHU") to protect him from Coplan. Id.
Hopkins was later transferred from SHU to the Valley Street Jail
in Manchester, and then transferred to the Massachusetts prison
system, where he remained for the next six years. I d ., 5 19.
Hopkins' "informant-against-staff" status was not kept
4 confidential as Hopkins was told countless times by Massachusetts
correctional officers that they knew about his involvement in the
NHSP investigation. I d ., 5 20.
C. Return to the New Hampshire Prison System
Hopkins was returned to NHSP permanently in October 1998.
I d ., 5 25. In December 1998, Hopkins was moved to Medium Custody
South ("MCS"). Id. Hopkins was informed by defendant C.O.
Topham: "Don't get too comfortable because you're not staying in
this unit very long. We were warned about you and your
involvement in the canteen incident in the early 9 0 ’s." I d ., 5
26. Months of harassment by C.O. Topham, Cpl. Washburn and C.O.
Bohannan followed during which Hopkins was given at least eight
major disciplinary reports, all of which were later dismissed or
downgraded by reviewing officers. I d ., 5 28. Hopkins alleges
that defendant Marilee Nihan told him that he was the victim of
retaliatory harassment and that it would stop. I d ., 5 32.
Hopkins believes that C.O. Topham was eventually dismissed
from his position after an investigation by Cpl. Keith Saunders
revealed that Topham refused to inform Hopkins that Hopkins'
seventy-five year old mother had arrived for a visit and was
waiting for an hour. I d ., 55 33-35. Soon after Topham left.
5 Hopkins was told by an officer that many staff in MCS "have it in
for you and want you moved to H-building where you can be dealt
with." I d ., 5 36. Hopkins was later designated for transfer
from MCS to H-building purportedly because of the eight
unwarranted disciplinary reports that he had received, and for
failing to show up on time for a classification hearing even
though his notice did not specify the time that he was supposed
to appear. I d ., 55 37-40. Less than five months later, Hopkins
was moved from MCS to H-Building where he was initially housed
only with "prey" inmates.2 I d ., 5 41.
In December 2001, defendant C.O. Turcott informed Hopkins
that, "[w]hat happened in South Unit, with that other officer,
has not gone unnoticed." I d ., 5 42. Several days later, Turcott
returned and told Hopkins in front of his cellmate that he was
going to "come back and tear the [expletive] out of this cell."
Id. Turcott later returned to fulfill his threat, and issued
Hopkins a disciplinary report for having a "strange odor in pen."
I d ., 5 43. That disciplinary report was dismissed. I d ., 5 44.
On December 9, 2001, Turcott arranged for Hopkins to be
2Inmates at NHSP are categorized as "predators," "prey" or "normal." Prey inmates in particular are housed separately from predator inmates to protect the prey inmates from the more dangerous and aggressive predator inmates.
6 moved from B-pod to D-pod, a cell with inmates who were
classified both as predators and prey. I d ., 5 41, 44. Hopkins
complained about his assignment to D-pod to Counselor Matt Wall,
Cpl. LaFlamme, Unit Manger Thyng, Sgt. Desmond, L t . Thibeault,
and Marilee Nihan. Id., 55 5, 45-48. Hopkins was assured by
Cpl. LaFlamme, Sgt. Desmond, and L t . Thibeault that the situation
would be rectified.
D. Hopkins Is Set Up To Be Attacked
When Hopkins was housed in cell D-8 on D-pod, he noticed
that one of the inmates in his cell was given extraordinary
access to a rotunda area between pods whenever Turcott was on
duty. I d ., 5 49. That inmate, Jamie Bezanson ("Bezanson"), was
permitted to go to the doors of other pods, and he usually
returned with a bag of canteen items. Id. According to Hopkins,
the word amongst inmates was that Bezanson was acting as a
"bookie" and was selling tobacco contrary to prison rules. Id.
5 50. Bezanson was never guestioned about the bags he carried,
which, according to Hopkins, demonstrated that he had a "special
relationship" with Turcott. Id.
Several days after being housed in cell D-8, Hopkins asked
defendant LaFlamme about being returned to B-pod. I d ., 5 51.
7 LaFlamme forced Hopkins to confront Turcott with Hopkins'
allegations that Turcott had wrongfully moved him. I d ., 55 51-
52. When Hopkins attempted to discuss the issue, LaFlamme kept
interrupting and finally told Hopkins that although there was "no
reason" for Hopkins to have been moved, Turcott did not feel that
Hopkins belonged on B-pod, and LaFlamme stood by Turcott's
decision. Id.
Ten minutes after Hopkins' meeting with LaFlamme and Turcott
ended, Bezanson was summoned to a lieutenant's office over the
loudspeaker. I d ., 5 53. When Bezanson returned a few minutes
later he screamed at Hopkins, "You are a [expletive] rat," and
threatened Hopkins with a serious beating. Id. Bezanson then
announced before a room full of witnesses that Hopkins had
reported that Bezanson was harassing, bullying and extorting
other inmates in cell D-8. Id. Hopkins denied Bezanson's
allegation and left to confront Turcott about inciting Bezanson.
Id. Another inmate, Paul Little, later explained to Bezanson how
Hopkins had been involved in the investigation into staff
embezzlement, and how Hopkins had suffered harassment from staff
members thereafter. I d ., 5 55. Bezanson commented that "Turcott
must want to jam [Hopkins] up." Id. Hopkins wrote to defendant Nihan to inform her of the
continuing staff harassment. I d ., 5 56. While Nihan had told
Hopkins that if he experienced any more retaliation to contact
her immediately, she responded to his December 17, 2001 inmate
request slip with the comment: "Your Unit CC/CM can help you w/
whatever your needs are. Please use him." I d ., 5 57.
E. Hopkins Is Severely Beaten
On January 5, 2002, Scott McAuley ("McAuley"), an inmate in
cell D-8, called Hopkins a rat. I d ., 5 58. Bezanson and inmate
Henry Thomas were in the cell at the time. I d ., 5 59. Hopkins
demanded that McAuley apologize, and McAuley did so. I d ., 5 58.
When Hopkins turned to walk away, however, McAuley jumped onto
Hopkins from behind slamming Hopkins to the ground. Id.
Hopkins' face and forehead hit the concrete floor. Id. While he
was on the floor, McAuley began beating Hopkins with his fists.
Hopkins lost consciousness. Id. Hopkins alleges that Bezanson
later bragged that while McAuley beat Hopkins, inmate Thomas
stomped and kicked him. I d ., 5 60. Hopkins believes that
Bezanson lifted Hopkins up while Hopkins was unconscious so that
McAuley could repeatedly punch Hopkins in the face. I d ., 5 61.
Hopkins later recalled momentarily regaining consciousness and hearing Bezanson say, "I can't believe he's still breathing."
I d ., 62. When Hopkins awoke later on someone was holding him in
the shower. I d ., 5 63. He was naked. Id. Inmate Paul Little
arrived and assisted him. Id. Hopkins' face was rapidly
swelling and he was incoherent and unresponsive. Id.
Bezanson directed inmates to clean up the cell and discard
the evidence of the beating. I d ., 5 64. Hopkins was given clean
clothes and directed to hide his face from view during the inmate
count. I d ., 5 66. Bezanson refused to allow Hopkins to leave
the room even though inmate Little argued that Hopkins needed
medical attention. Id. Hopkins was later ordered by an officer
to leave the cell to go pick up his legal mail. I d ., 5 68.
Hopkins wore a hooded sweatshirt to conceal his face. Id.
When Hopkins arrived to pick up his mail, his appearance
caused the officers to erupt into exclamations of disbelief.
I d ., 5 69. The officers took him into the office and immediately
escorted him to the infirmary. Id. Hopkins injuries were
extensive, including bruising all over his face, a broken wrist,
blurred vision, and other post-concussion symptoms. I d ., 55 VO-
73. He visited the infirmary several times for post-concussion
symptoms during the following weeks, but eventually Dr. Friedman
10 accused Hopkins of being a "whiner" and refused to see him after
February 5, 2002. I d ., 5 73.
On April 3, 2002, Hopkins was admitted for observation in
the infirmary after a physical therapist noticed that Hopkins was
having neurological problems. I d ., 5 74. At 10:00 p.m. that
evening, Hopkins' involuntary twitches and spasms got so bad that
he was transported to Concord Hospital. Id. Emergency brain
surgery was performed on April 4, 2002 after CT-scan with dye
revealed a subdural hematoma. Id. Hopkins alleges that the
surgeon told him that he would have died within twenty-four hours
if he had not been treated. Id.
F. Cover Up By Prison Staff
Hopkins alleges that the medical staff who examined Hopkins,
and every correctional officer who saw him after January 5, 2002,
recognized that Hopkins had received a beating. I d ., 55 75-76.
Medical staff observed that Hopkins had no defensive marks. I d .,
5 75. On January 6, 2002, Officer Leitner asked Hopkins to
explain what happened. I d ., 5 77. Hopkins stated that his
roommates told him that he had fallen in the shower. Id.
Leitner then stated, "We already know what happened; we know all
the people involved; and you did not get this from falling in the
11 shower; and it is not the result of a one-on-one fight; you were
given a severe beating by no less than three or four people. In
all the time I have worked here, you are without doubt the worst
that I have seen. Please do not insult my intelligence." Id.
(emphasis in original). C.O. Pellitier also told Hopkins while
making rounds, "Don't worry Hopkins; we know all of the people
involved. They are not getting away with this and they will be
punished severely." I d ., 5 78 (emphasis in original).
Hopkins was surprised to learn days later from L t . Thibeault
that Officer Leitner had written a disciplinary report on Hopkins
for being involved in a one-on-one fight. I d ., 5 79. Lt.
Thibeault told Hopkins that he did not "buy that scenario" and
that it was evident to him that Hopkins had been the victim of a
severe beating. Id. L t . Thibeault also assured Hopkins that the
disciplinary report would likely be ripped up. Id. On January
11, 2002, however, L t . Thibeault gave Hopkins Disciplinary Report
# 02-01-67 accusing Hopkins of using provoking words or gestures
and fighting. I d ., 5 80. Hopkins asked L t . Thibeault why the
disciplinary report was not ripped up. Id. L t . Thibeault
informed Hopkins that there were now three confidential
informants providing information that served as the basis for the
12 disciplinary report. Id. Hopkins responded that there had not
been three independent people in the room when the beating took
place. Id. L t . Thibeault replied, "How do you know who was in
the room? You don't remember anything." Id. Hopkins pled not
guilty. Id. Hopkins complains that L t . Thibeault did not record
Hopkins' comments that (1) several correctional officers believed
that Hopkins had been beaten; (2) defendant Turcott had given
Bezanson a false "tip" that incited Bezanson; (3) McAuley
admitted to jumping Hopkins from behind; (4) Hopkins was
unconscious during the beating; (5) Hopkins' cellmates asked him
to move out because he would not agree to adopt their story that
he was in a one-on-one fight; (6) medical staff stated that
Hopkins had no defensive marks; and (7) that marks on Hopkins'
upper arms showed that someone held him from behind while he was
beaten. I d ., 5 81. Hopkins alleges that prison staff
consistently refused to add any of the above facts to the written
record. I d ., 5 82.
When Hopkins received notice of a hearing on January 14,
2002, he reguested a continuance to secure copies of medical
records, contact his attorney, and secure witnesses. I d ., 5 82.
His reguest for a continuance was denied. Id. The only witness
13 that Hopkins was permitted was inmate Paul Little. I d ., 5 83.
Sgt. Morin, the hearing officer, declined to accept Little's
written statement about the coverup by inmates after the beating.
Id. The charge against Hopkins of using provoking words or
gestures was dropped to an incident report, but he was found
guilty of fighting. Id. Hopkins alleges that Sgt. Morin
informed him that as a result of his finding Hopkins would be
held liable for restitution for his medical expenses. Id.
Hopkins has received restitution bills for $454.84 on February
21, 2002 and for $777.78 on March 27, 2002. Id.
Hopkins appealed the hearing officer's decision to an
unspecified Major on February 6, 2002. I d ., I 84. That appeal
was denied. Id. Hopkins further appealed to Warden Coplan on
March 11, 2002. Id. After receiving no response, he appealed to
Commissioner Stanley on April 1, 2002. Id. Hopkins alleges that
his former attorney, Michael Sheehan, was supposed to contact the
Warden and Commissioner to get copies of their responses to the
appeal, but those responses were never provided to Hopkins. Id.
F. Move to SHU
On December 2, 2003, C.O. Dunnack had Hopkins moved to the
Special Housing Unit ("SHU") without providing him any reason.
14 I d ., 5 93. Soon after arriving in SHU, Hopkins began having
severe abdominal pain. I d ., 5 94. Hopkins alerted C.O. Edsel,
who refused to call a nurse or provide Hopkins with any of the
normal amenities provided to inmates moved to SHU such as toilet
paper. Id. C.O. Edsel later watched as Hopkins was writhing in
pain. Id. When a nurse made her rounds later that evening she
immediately determined that Hopkins needed to be taken to the
infirmary. Id. Hopkins had to be catherized and drained of 1100
cc of urine, the source of the pain. Id. Hopkins was taken to
an outside hospital after that incident, and Hopkins ended up
being housed in the infirmary for two weeks. I d ., 5 95. While
he was in the infirmary, classification staff allegedly told
Hopkins that they could not determine why he was moved to SHU,
and he was moved back to MCS. Id.
Discussion
There can be no reasonable dispute in this case that the
defendants have acted under color of state law, so the Court does
not address that element of Hopkins' § 1983 claims further. The
Court focuses on the alleged violations of Hopkins' rights under
the Constitution or the laws of the United States.
15 A. Retaliation Claims
" [A]n otherwise legitimate and constitutional government act
can become unconstitutional when an individual demonstrates that
it was taken in retaliation for his exercise of First Amendment
speech." Anderson v. Davila, 125 F.3d 148, 161 (3d Cir. 1997).
A cognizable retaliation claim has three elements: (1) the
plaintiff engaged in protected conduct; (2) an adverse action was
taken against the plaintiff that would deter a person of ordinary
firmness from continuing to engage in that conduct; and (3) there
is a causal connection between the plaintiff's protected conduct
and the defendant's adverse action. See Thaddeus-X v. Blatter,
175 F.3d 378, 394 (6th Cir. 1999); see also Shabazz v. Cole, 69
F. Supp. 2d 177, 197 (D. Mass. 1999) (to sustain a claim of
retaliatory discipline, a plaintiff must first show that the
disciplined conduct was constitutionally protected). Where a
plaintiff shows that his protected conduct was a substantial or
motivating factor for the defendant's actions, the burden shifts
to the defendant to show that he would have reached the same
decision even in the absence of the protected conduct. Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977); Shabazz, 69 F. Supp. 2d at 197 (citing Graham v.
16 Henderson, 89 F.3d 75, 79 (2d Cir. 1996)).
Taking the facts alleged in the complaint as true, defendant
Turcott retaliated against Hopkins by moving him to cell D-8 with
the intention of putting Hopkins in danger. Turcott acted on
that intention by defaming Hopkins to an inmate for the purpose
of inciting an attack on Hopkins. Compl., 5 103. Although
prison officials could freely move Hopkins within the prison,
they could not do so for a retaliatory reason. See McDonald v.
Hall, 610 F.2d 16, 18 (1st Cir. 1979) (recognizing an inmate's
section 1983 retaliatory transfer claim). For purposes of
preliminary review, I find that Hopkins has stated a cognizable
claim that defendant Turcott retaliated against him by moving him
to a cell where his safety was jeopardized in response to
Hopkins' protected activity of speaking to prison administrators
about staff misconduct. I further find that Hopkins has
adeguately pled state tort claims for assault and battery against
defendant Turcott, whose malfeasance Hopkins alleges directly led
to him being severely beaten.
Hopkins further alleges in the complaint that he received
retaliatory disciplinary reports from defendants Coplan, Topham
and Turcott. He states in his complaint, however, that those
17 reports were either dismissed or reduced to incident reports.
Hopkins has not alleged any actionable harm that directly
resulted from the allegedly retaliatory reports.3 I find that
Hopkins' claims against defendants Coplan, Topham and Turcott for
writing retaliatory disciplinary reports against him fail to
state a claim upon which relief may be granted.
B. Deliberate Indifference Claims
The Eighth Amendment provides that: "Excessive bail shall
not be reguired, nor excessive fines imposed, nor cruel and
unusual punishments inflicted." U.S. Const, amend. VIII. An
Eighth Amendment claim arises only if an official inflicts "cruel
and unusual punishment" by knowing of and disregarding "an
excessive risk to inmate health or safety." Farmer v. Brennan,
511 U.S. 825, 837-838 (1994). In accordance with the Eighth
Amendment, prison officials must "ensure that inmates receive
adeguate food, clothing, shelter, and medical care, and must take
reasonable measures to guarantee the safety of the inmates."
31he Court notes that Hopkins alleges that he was moved from MCS to H-Building in April 2000 based in part on the disciplinary reports that he received from defendant Turcott, Compl., 55 31 -
41, but Hopkins has not alleged that any of the defendants were responsible for that transfer.
18 Farmer, 511 U.S. at 832 (internal quotations omitted).4
Prison officials have not been deliberately indifferent if
they responded reasonably to a risk to an inmate's health or
safety. Farmer, 511 U.S. at 844; Burrell v. Hampshire County,
No. 02-1504, 2002 WL 31218304 at *5 (1st Cir. Oct. 4, 2002) . A
reasonable response defeats the claim of a constitutional
violation. Burrell, 2002 WL 31218305 at *5.
1._________ Failure to Take Reasonable Measures to Guarantee _ ___________Hopkins' Safety
Prison officials have a duty to take reasonable measures to
ensure the safety of inmates. Hudson v. Palmer, 468 U.S. 517,
526-527 (1984). Hopkins claims that defendants Lunderville,
Nihan, Coplan, Stanley, Cpl. LaFlamme, Sgt. Desmond, and L t .
Thibeault violated his Eighth Amendment rights by failing to take
steps to protect him from harm caused by staff retaliation.
Compl., 55 99-101. Hopkins alleges that the defendants' failure
to prevent staff retaliation, and to protect him from harm, led
to him being set up to be attacked by defendant C.O. Turcott.
Reading the complaint generously, I find that Hopkins has alleged
that each of the defendants was aware of the existence of staff
4The Fourteenth Amendment makes the Eighth Amendment applicable to state actors, such as NHSP officials. See DesRosiers v. Moran, 949 F.2d 15, 17 (1st Cir. 1991).
19 retaliation against him, and that they deliberately ignored the
risk of harm to him. For purposes of preliminary review, I find
that Hopkins has stated Eighth Amendment claims for failing to
protect him upon which relief may be granted against defendants
Lunderville, Nihan, Coplan, Stanley, Cpl. LaFlamme, Sgt. Desmond,
and L t . Thibeault.
2. Delay of Necessary Medical Care
To state an Eighth Amendment claim premised on inadeguate
medical care, a prisoner must allege two elements. The prisoner
must allege (1) acts or omissions by prison officials
sufficiently harmful to evidence "deliberate indifference," to
the prisoner's (2) "serious medical needs." See Estelle v.
Gamble, 429 U.S. 97, 106 (1976). In order to be found
deliberately indifferent, a prison official "must both be aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
the inference." I d .; see also, Farmer, 511 U.S. at 837.
Deliberate indifference may be manifested by prison doctors in
their response to the prisoner's needs or by prison personnel
"intentionally denying or delaying access to medical care or
intentionally interfering with the treatment once prescribed."
20 Estelle, 429 U.S. at 104-05. With regard to the second element,
"[a] 'serious medical need' is one 'that has been diagnosed by a
physician as mandating treatment, or one that is so obvious that
even a lay person would easily recognize the necessity for a
doctor's attention.'" See Mahan v. Plymouth County House of
Corr., 64 F.3d 14, 17-18 (1st Cir. 1995)(guoting Gaudreault v.
Salem, 923 F.2d 203, 208 (1st Cir. 1990)).
Hopkins alleges that his need for medical attention was
obvious because he was writhing in pain. He further alleges that
defendant Edsel was aware of his need for medical attention, and
that defendant Edsel acted with deliberate indifference to his
health. Compl., 5 105. Edsel's indifference resulted in Hopkins
having to be taking an outside medical facility for treatment.
Hopkins further alleges that the delay in medical treatment led
to him having to be catherized for the following week. I find
that Hopkins has adeguately stated an Eighth Amendment claim upon
which relief may be granted against defendant Edsel for
intentionally delaying or denying him access to medical care.
C. Due Process Claims
Hopkins claims that defendants Thibeault, Coplan and Stanley
violated his rights to substantive and procedural due process by
21 participating in "the obstruction of justice." Compl., 55 100,
104. The facts alleged in the complaint that appear to be
relevant to Hopkins' due process claims pertain to the
disciplinary proceedings against him.5
Hopkins complains that defendant Thibeault failed to include
facts that Hopkins wanted in the administrative record that
showed that Hopkins was not involved in a one-one-one fight.
Hopkins further complains that defendants Coplan and Stanley
failed to take corrective action after his appeals.
The Fourteenth Amendment to the United States Constitution
prohibits a state from depriving a person of life, liberty or
property without due process of law. U.S. Const, amend. XIV. In
Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court greatly
curtailed cognizable prisoner due process claims by finding that
a prisoner's liberty interest is "generally limited to freedom
from restraint which, while not exceeding the sentence in such an
unexpected manner as to give rise to protection by the Due
defendants LaFlamme and Desmond are named along with defendant Thibeault in a paragraph that claims that Hopkins' due process right were violated. See Compl., 5 104. Hopkins has not alleged any facts in the complaint that may be construed as demonstrating that defendants LaFlamme and Desmond participated in the disciplinary proceedings against him. Therefore, I find that Hopkins has failed to alleged facts that state due process claims against defendants LaFlamme and Desmond.
22 Process Clause of its own force, . . . nonetheless imposes
atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life." I d . at 484 (internal
citations omitted).6 Here, Hopkins has not alleged facts that
show that the disciplinary hearing led to his freedom being
restrained in a manner that imposed an atypical and significant
hardship on him. Rather, Hopkins complains that he was reguired
to pay restitution for his medical expenses. I d ., 5 83. It
appears, therefore, that no protected liberty interest within the
meaning of Sandin has been implicated here.
Hopkins has also claimed that the defendants' acts have
violated his right to substantive due process. To demonstrate a
substantive due process violation, a plaintiff must show either
that a specific liberty or property interest protected by the
Fourteenth Amendment has been violated, or that the state's
conduct "shocks the conscience." Brown v. Hot, Sexy & Safer
Prods., 68 F.3d 525, 531 (1st Cir. 1995); Coyne v. Somerville,
972 F .2d 440, 443 (1st Cir. 1992).
6In her dissenting opinion in Sandin, Justice Ginsburg criticized the majority's holding for focusing on the result of the hearing. Sandin, 515 U.S. at 489 n.l ("One must, of course, know at the start the character of the interest at stake in order to determine then what process, if any, is constitutionally due. 'All's well that ends well' cannot be the measure here.").
23 While prisons have a constitutional obligation to provide
inmates access to medical care, inmates do not have a
constitutional right to receive free medical care. See Revere v.
M a s s . G e n . Hosp., 463 U.S. 239, 245 (1983); Reynolds v. Wagner,
128 F.3d 166, 174 (3d Cir. 1997) (prisoner co-payment plan does
not violate the Eighth Amendment); Martin v. DeBruyn, 880 F.
Supp. 610, 615 (N.D. Ind. 1995), aff'd , 116 F.3d 1482 (7th Cir.
1997) ("The Eighth Amendment guarantees only that states will not
ignore an inmate's serious medical needs; it does not guarantee
free medical care."). Therefore, Hopkins cannot show that a
specific liberty or property interest has been violated by the
reguirement that he pay restitution for his medical expenses.
Under the second strand of substantive due process
violations, Hopkins must allege facts that demonstrate that the
state's conduct "shocks the conscience." This reguires that the
state's conduct "offend[s] the community's sense of fair play and
decency," and must "do more than offend some fastidious
sgueamishness or private sentimentalism." Rochin v. California,
342 U.S. 165, 172-173 (1952). The threshold for alleging such
claims is high. See Brown, 68 F.3d at 532.
It cannot be said that reguiring an inmate who has been
24 found guilty of fighting to pay for his own medical expenses for
the treatment of injuries sustained in the fight "shocks the
conscience." Such an outcome appears to be a reasonable
deterrent to prohibited conduct. In Hopkins' particular case,
the guilty finding against him stands. Hopkins may not appeal
that administrative determination in a § 1983 due process claim
in federal court. See Edwards v. Balisok, 520 U.S. 641 (1997)
(prohibiting § 1983 claims for declaratory relief and damages
based on challenges to procedural defects in prison disciplinary
procedures that necessarily imply the invalidity of the
punishment imposed unless the plaintiff can first show that the
guilty finding against him has been overturned).7 Accordingly, I
find that Hopkins has not stated a substantive due process claim
upon which relief may be granted. Conseguently, I recommend that
Hopkins' due process claims be dismissed from this action.8
7T o the extent that Hopkins has no available avenue for reconsideration of his appeal within the Department of Corrections, Hopkins' recourse lies in a lawsuit brought in the state courts, or before the state's board of claims. See N.H. Rev. Stat. Ann. 541-B:9(II) & (IV), and 541-B:14 (1997) (providing a post-deprivation means of recouping property loss attributable to the state).
8A s discussed in detail infra, this recommendation does not mean that the Court is not concerned about the fairness and result of Hopkins' disciplinary hearing.
25 II
Pending Motions
Shortly after filing his complaint, Hopkins filed a motion
for a preliminary injunction (document no. 5). A hearing on that
motion was held over two days on February 18 and 20, 2004. The
Court recommended that the motion be denied in a report and
recommendation dated April 30, 2004 (document no. 19).
During the preliminary injunction hearing, the Court issued
oral orders to the defendants requiring the production of the
confidential informant statements cited by the hearing officer in
Hopkins' disciplinary hearing and Hopkins' medical records. In
response to those orders, the defendants filed the following
pleadings: (1) an ex parte objection to this Court's order that
the defendants produce the confidential informant statements
(document no. 13); (2) a motion to seal the ex parte objection
(document no. 14); (3) a motion to provide Hopkins' updated
medical records (document no. 15); (4) a motion to seal Hopkins'
medical records (document no. 16); (5) a motion to provide the
court with the identities of individuals identified as
confidential informants, and (6) a motion to seal the same (see
unmarked documents submitted with document no. 18). I address
26 these pleadings seriatim.
A. Pleadings Pertaining to Confidential Informants
1. Ex Parte Objection
On February 18, 2004, during the first day of the
preliminary injunction hearing, plaintiff testified that he was
severely beaten by inmates McAuley, Bezanson and Thomas.
Plaintiff alleged that inmates on his pod acted to cover up the
beating and told Hopkins that he should tell prison staff that he
fell in the shower. Hopkins then alleged that the inmates later
attempted to persuade him to adopt their story that he was
engaged in a one-on-one fight with McAuley, which Hopkins refused
to do. Hopkins next testified about his interview with L t .
Thibeault regarding the incident, his disciplinary hearing, and
his claims of unanswered appeals to Warden Coplan and
Commissioner Stanley.
Hopkins did not offer any evidence at the hearing against
defendants Thibeault, Coplan, and Stanley pertaining to the
beating of January 5, 2002, or the actions taken thereafter, that
would justify a preliminary injunction prohibiting retaliatory
conduct against those defendants. Nevertheless, defendants'
counsel pursued the matter of the evidence presented during
27 Hopkins' disciplinary hearing on cross-examination of Hopkins and
with her own witnesses. During cross-examining of Hopkins, the
following exchange occurred:
Q. And you don't know what the confidential
informants told the hearing officer at the disciplinary
hearing, do you?
A. All he said is they had three eyewitnesses.
Q. Listen to my guestion. You don't know what the
confidential informants told the hearing officer?
A. I don't know, I don't know. According to what he
told me they didn't tell him anything. He said he had
-- he said that there were three statements.
Q. And I'm just trying to establish, you don't know
what those were?
A. No.
Draft Transcript of Hearing Held on February 18, 2004.
The Court asked defense counsel what defendants' position
would be when Hopkins reguested discovery of the identities of
the confidential informants. Despite her inguiry on cross-
examination, defense counsel indicated that the prison had
security concerns about revealing the identities of the
28 confidential informants. Counsel requested that the Court
consider the confidential informant statements _in camera. See
Dfs.' Ex Parte O b j . at 2. The Court informed the defendants that
if they wanted to rely on the confidential statements to defend
against Hopkins' claims, then those statements would become part
of the public record and available to the plaintiff. Defense
counsel responded that the defendants would not enter the
confidential informant statements into evidence, or pursue the
matter further. I d . at 2-3.
For reasons not clear to the Court, on the next day of the
hearing defendants again tried to buttress their arguments by
reference to the confidential informant statements. The
following exchange occurred during the direct testimony of L t .
Thibeault:
Q. Did you agree with the hearing officer's decision
to [find] them both guilty of fighting?
A. No, ma'am I didn't.
Q. But it wasn't your call, was it?
A. No, ma'am.
Q. Officer, would the hearing examiner have
opportunity to see confidential informant statements.
29 medical records, other records that perhaps you did not
present to him?
A. Yes, ma'am.
Draft Transcript of Hearing Held on February 20, 2004. After
that exchange, the Court found that the defendants had opened the
door on the confidential statements by putting into evidence that
the hearing officer's judgment, based on statements not before
the Court, should be preferred to L t . Thibeault's testimony. The
Court ordered the defendants to file the confidential informant
statements with the Court by 5:00 p.m. on February 20, 2004.
Defendants reguested, among other things, that the Court decline
to order production of the confidential informant statements to
Hopkins until after the Court completed its preliminary review of
the complaint. The Court granted that reguest.
As of today's date, no confidential informant statements
have been filed. Instead, defendants first filed an "Ex Parte
Objection to Production of Confidential Informant Statements
and/or any Information About the Confidential Informants"
(document no. 13). Defendants argue that the Court's order would
be placing the lives of the confidential informants in danger,
and that the statements were not relevant to the plaintiff's
30 request for a preliminary injunction. However, defendants did
submit four exhibits to their objection, which they assert was
all of the information that they were able to recover within the
time permitted by the Court:
Exhibit A : NHDOC Disciplinary Report (for Hopkins) signed by Robert Leitner and dated 1/6/02; NHDOC Incident Report signed by Robert Leitner and dated 1/6/02; NHDOC Statement Form written by C.O. Bigue and dated 1/6/02;
Exhibit B : NHDOC Disciplinary Report (for McAuley);
Exhibit C : Cassette tape recording of Inmate McAuley's disciplinary hearing dated 1/17/02;
Exhibit D : Inmate History by Cell/Date for Hopkins.
None of these exhibits identify the purported confidential
informants. In fact, defendants have confirmed that they do not
have any written statements from the confidential informants, and
that if there ever were any such statements only former
Corrections Officer Jason Bigue, now inmate Bigue,9 can identify
them. Dfs.' Obj. at 4-5.
Notwithstanding that they do not have any confidential
informant statements, defendants argue that the plaintiff is not
defendants confirm that C.O. Bigue was terminated by NHDOC for providing contraband (tobacco) to inmates. Bigue was also criminally prosecuted and convicted on January 30, 2004. Df. Obj. at 5; see also Testimony of Jane Coplan, Draft Transcript of Hearing Held on February 20, 2004.
31 entitled to learn the identities of the confidential informants
who may have testified against him during disciplinary hearings.
Dfs.' Obj. at 5. Defendants reguest that this Court withhold the
information they provided from the plaintiff, or provide him only
redacted copies. Defendants further reguest that in the event
that the Court decides to provide Hopkins full or redacted copies
of the submitted documents, this Court should stay it's order to
permit review by Judge McAuliffe, or allow that the documents be
delivered to Hopkins by the Office of the Attorney General during
a business day so that the Office of the Attorney General can
take unspecified steps to limit any resulting harm to other
inmates.
Defendants' reguest is puzzling. It is unclear what the
defendants would like the district judge to review as the
defendants have represented that they do not have any
confidential informant statements, and that there apparently
never were any. The Court also finds that defendants' legal
argument for keeping the submitted documents from the plaintiff
is misplaced.
Defendants cite Wolff v. McDonnell, 418 U.S. 539, 565-568
(1974), for the proposition that the plaintiff is not entitled to
32 learn the identities of the confidential informants who testified
against him during disciplinary proceedings. Dfs.' Obj. at 5-6.
That is an overbroad reading of Wol f f . One of the issues in
Wolff was whether disciplinary proceedings violate an inmate's
right to due process when the inmate is denied disclosure of the
identity of his accusers. The Court deferred to the discretion
of prison officials in protecting identities in disciplinary
proceedings. It did not find that the identities were
unavailable in appropriate circumstances in § 1983 cases.
While plaintiff may have been appropriately denied access to
the identities of the confidential informants in his disciplinary
proceedings, that does not mean that those identities must be
kept from the plaintiff in this court's proceedings. Here, the
defendants have asserted that the hearing officer's conclusion
was better than that of L t . Thibeault because the hearing officer
had access to three confidential informant statements.
Therefore, the defendants imply that the hearing officer's
conclusion that the plaintiff was engaged in mutual combat, as
opposed to having been set up for a beating, should be accepted
by this court. By advancing this claim, the defendants put the
reliability of confidential informants at issue in a case pending
33 in federal court. That is quite a different matter than whether
due process in the plaintiff's disciplinary hearing required
disclosure. This Court does not accept secret evidence in any
form.
It is clear that the defendants' objection and exhibits were
not filed ex parte to protect the identities of the confidential
informants since none of the informants are identified or even
identifiable. What is clear instead, however, is that no one
other than C.O. Bigue, who was caught, and ultimately convicted
of, distributing contraband in the prison provided the statements
that were relied upon by the hearings officer. This raises
serious doubt about the reliability of the purported informants.
Defendants' recognize the force of this inference in their
objection. See Dfs.' Obj. at 6.
Having completed a preliminary review of Hopkins' complaint,
the Court finds that the exhibits submitted with the defendants'
objection are relevant to the underlying issue of whether Hopkins
engaged in a one-on-one fight or was, as he alleges, assaulted by
other inmates. In turn, that issue is relevant to the decision
on the merits of Hopkins' § 1983 claims against the defendants
for the failure to take reasonable steps to ensure his safety.
34 and to Hopkins' state tort claims against defendant Turcott.
Accordingly, I overrule defendants' objection to the production
of the exhibits based on relevance and the Supreme Court's
holding in Wolff.
2. Motion To Provide C.I. Identities
Subseguent to defendants' objection, defendants filed a
motion to provide the Court with the identities of the
confidential informants and a motion to seal the motion to
provide the Court with the identities the confidential informants
(see unmarked documents submitted with document no. 18). In
these motions, defendants now claim that [redacted] was a fourth
"confidential informant" and they identify [redacted] as the
three confidential informants who gave statements to C.O. Bigue.
Defendants allege that C.O. Bigue summarized the statements
of the confidential informants in his own written statement
provided to the hearing officer. Defendants further allege, on
information and belief, that C.O. Bigue did not himself testify
at Hopkins' disciplinary hearing because "revealing his own
identity would risk the constructive identification of his
informants."
35 Reviewing all of the documents submitted in response to this
Court's February 20, 2004 Order, the Court finds that defendants'
submissions demonstrate the following: [redacted] (2) none of the
confidential informants relied upon by the hearing officer at
Hopkins' disciplinary hearing testified at the hearing, (3) the
hearing officer did not have any written statements from the
three confidential informants identified by C.O. Bigue when he
made his decision, (4) C.O. Bigue did not testify, and was not
examined by the hearings officer, and (5) C.O. Bigue has since
been terminated by NHDOC and prosecuted for engaging in the very
criminal conduct of which Hopkins was suspicious. The plaintiff
clearly has a very strong argument that the hearing officer's
finding that Hopkins was engaged in a mutual fight has no
credibility. And frankly, the Court is shocked by the lack of
basic fairness in Hopkins' disciplinary proceeding and the
restitution ordered.10
10Although the Court recognizes that it does not have the authority to reverse the prison's disciplinary finding against Hopkins, Hopkins may amend his complaint in this action to include the disciplinary hearing as part of the retaliation against him.
36 In light of the Court's finding during the preliminary
injunction hearing that the defendants opened the door on the
confidential informant statements, and having considered the
defendants' ex parte submissions, the defendants are ordered to
provide Hopkins within ten business days unredacted copies of the
ex parte objection and exhibits submitted therewith, a copy of
the motion to provide the court with the identities of the
confidential informants, and a copy of the motion to seal the
confidential informants (see unmarked documents submitted with
document no. 18).
B. Hopkins' Medical Records
In response to this Court's order, issued orally from the
bench during the preliminary injunction hearing. Defendants filed
a motion to provide Hopkins' updated medical records (document
no. 15) . Defendants have also filed a motion to seal those
medical records (document no. 16). Those motions are granted.
Conclusion
For the reasons set forth above, I find that the plaintiff
has adeguately stated a § 1983 retaliation claim and state tort
claims for assault and battery against defendant Turcott. I find
37 that plaintiff has adequately stated § 1983 claims based on
failure to take reasonable steps to ensure his safety against
defendants Lunderville, Nihan, Coplan, Stanley, LaFlamme, Desmond
and Thibeault. And I find that the plaintiff has adequately
stated a § 1983 claim against defendant Edsel based on
intentional indifference to a serious medical need.11 I
recommend that defendant Topham, and all of Hopkins' remaining
claims against the other defendants, be dismissed from this
action.12
Defendants' motion to provide updated medical records
(document no. 15), and motion to seal those medical records
(document no. 16) are granted. Defendants' ex parte objection
(document no. 13) is overruled. Defendant's motion to seal the
ex parte objection (document no. 14), motion to provide the court
with the identities of the confidential informants, and motion to
11In an order issued simultaneously with this report and recommendation, I direct that those claims be served on the appropriate defendants.
12If this Court's Report and Recommendation is approved, the claims that the Court has identified herein will be considered for all purposes to be the claims raised in the complaint. If the plaintiff disagrees with this Court's identification of the claims, plaintiff must do so by filing an objection within ten (10) days of receipt of this Report and Recommendation, or by properly moving to amend the complaint.
38 seal the motion to provide the court with the identities of the
confidential informants (see unmarked documents submitted with
document no. 18) are denied.
Any objections to this Court's Report and Recommendation
must be filed within ten (10) days of receipt of this notice.
Failure to file objections within the specified time waives the
right to appeal the district court's order. See Unauthorized
Practice of Law Comm, v. Gordon, 979 F.2d 11, 13-14 (1st Cir.
1992); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.
1986) .
James R. Muirhead United States Magistrate Judge
Date: May 20, 2004
cc: Kenneth Hopkins, pro se Mary E. Schwarzer, Esg.