Horstkotte v . NH Dept. of Corrections CV-08-285-JL 4/2/10 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Todd M . Horstkotte
v. Civil N o . 08-cv-285-JL Opinion N o . 2010 DNH 058 Commissioner, New Hampshire Department of Corrections, et a l .
OPINION AND ORDER
This civil rights case involves alleged retaliation by
correctional officers against an inmate for threatening to file
grievances. Plaintiff Todd M . Horstkotte, formerly an inmate at
the New Hampshire State Prison, brought this action against the
Commissioner of the Department of Corrections, the prison warden,
and various prison guards under 42 U.S.C. § 1983. He alleges
that the guards retaliated against him by placing him in the
dayroom, administering a strip search, and filing a disciplinary
report. This court has jurisdiction under 28 U.S.C. § 1331
(federal question).
The defendants have now moved for summary judgment. See
Fed. R. Civ. P. 5 6 . Horstkotte, who is proceeding pro s e , has
not objected. After reviewing the summary judgment record and
hearing oral argument, this court grants the motion. The
officers’ challenged actions were de minimis and thus
insufficient to support a retaliation claim. Moreover, under applicable First Circuit precedent, there is insufficient
evidence in the record to create a genuine issue of material fact
as to whether the officers acted with retaliatory intent.
I . APPLICABLE LEGAL STANDARD
Summary judgment is appropriate where “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c)(2). An issue is “genuine” if it may
reasonably be resolved in either party’s favor at trial, and
“material” if it has the capacity to sway the outcome under
applicable law. Vineberg v . Bissonnette, 548 F.3d 5 0 , 56 (1st
Cir. 2008) (quotations omitted). In making this determination,
the “court must scrutinize the record in the light most
flattering to the party opposing the motion, indulging all
reasonable inferences in that party’s favor.” Mulvihill v . Top-
Flite Golf Co., 335 F.3d 1 5 , 19 (1st Cir. 2003).
As noted, Horstkotte has not responded to the defendants’
motion for summary judgment. Under this court’s local rules,
where the non-moving party does not properly oppose the summary
judgment motion, “[a]ll properly supported material facts set
forth in the moving party’s factual statement shall be deemed
2 admitted.” L.R. 7.2(b)(2); see also De Jesus v . LTT Card Servs.,
Inc., 474 F.3d 1 6 , 20 (1st Cir. 2007). Summary judgment does
not, however, “automatically follow” from the lack of a response.
Stonkus v . City of Brockton Sch. Dep’t, 322 F.3d 9 7 , 101 (1st
Cir. 2003). The court still must evaluate whether the moving
party’s submission meets the summary judgment standard. See Fed.
R. Civ. P. 56(e) (“If the adverse party does not . . . respond,
summary judgment, if appropriate, shall be entered against the
adverse party.”) (emphasis added).
Consistent with this approach, the following background
summary is based on the statement of facts in the defendants’
motion, which is supported by affidavits and other authenticated
prison records.1
I I . BACKGROUND
On the morning of January 1 3 , 2008 corrections officer
Matthew Smith was distributing medication to the inmates in the
Secure Housing Unit (SHU) of the New Hampshire State Prison,
1 While Horstkotte explained at oral argument that he disagrees with aspects of the defendants’ factual statement, he was afforded an opportunity to respond to the defendants’ motion and chose not to do s o . Horstkotte was also presumably aware of the consequences of failing to respond to a summary judgment motion, as this court expressly addressed the issue in a previous suit he brought. See Horstkotte v . Comm’r, N.H. Dep’t of Corr., 2009 DNH 190 (citing L.R. 7.2(b)(2)).
3 where Horstkotte was an inmate. At approximately 5:30 a.m.,
Horstkotte told Officer Smith that he had not received his
medication, and Officer Smith responded that Horstkotte’s
medication card was empty. At around 6:30 a.m., corrections
officer Brian Benard was performing a routine health and safety
check of the inmates during the last round of his shift.
Horstkotte asked Officer Benard to check on the status of his
medication and told Officer Benard that he had already spoken to
another officer about the situation. Officer Benard responded
that it was the end of his shift and it was not his
responsibility, but that he would speak to the other officer
regarding the situation. Horstkotte then accused Officer Benard
of refusing him medical attention.
After completing his rounds, Officer Benard checked the
medication room and confirmed that Horstkotte had already
exhausted his prescription. He returned to Horstkotte’s cell,
placed the empty card against the door grate and told Horstkotte
that no refills were available. Horstkotte insisted that he
should have received his medication because he had previously
given a refill slip to a nurse, and threatened to file a
grievance under Prison Policy and Procedure Directive (“PPD”)
4 1.16.2 Officer Benard told Horstkotte that it was inappropriate
to use the threat of grievances to get what he wanted.
Horstkotte continued to insist on receiving his medication and
became loud, disruptive, and belligerent, which triggered
additionally disruptive shouts of “shut up” from other inmates on
the tier trying to sleep.
Another corrections officer, Ryan Flynn, overheard the
exchange between Officer Benard and Horstkotte, noticed that it
was escalating, and intervened. Officer Flynn recalled that
Horstkotte appeared “unstable, shaking and erratic, which [was]
not his typical behavior.” Aff. of Corrections Officer Ryan
Flynn ¶ 4 . Officer Flynn overheard Horstkotte’s statements that
Officer Benard had engaged in misconduct and recalled his threats
to file grievances and have Officer Benard fired. To avoid any
further disruptions on the tier, Officer Flynn determined that it
was necessary to place Horstkotte in the dayroom for a short
“cooling off” period. In an affidavit citing the applicable
Policy and Procedure Directive, Warden Richard Gerry explained
that standard prison operating procedures authorize SHU staff to
bring inmates to a dayroom for a “cooling off” period when they
become agitated or disruptive. Aff. of Warden Richard Gerry ¶ 2 .
2 See Knowles v . N.H. Dep’t of Corr., Comm’r, 538 F. Supp. 2d 453, 458-59 (describing the prison’s three-level grievance procedure as set forth in PPD 1.16).
5 Officer Flynn handcuffed Horstkotte and escorted him to the
dayroom. Officer Flynn gave Horstkotte the customary pre-strip
search warning and instructions, and conducted the search. At no
point did Horstkotte complain about being brought into the
dayroom or about the manner in which the strip search was
conducted. Warden Gerry further explained that standard
operating procedures under the applicable Policy and Procedure
Directive authorize a strip search of any inmate who has been
placed in a dayroom at the SHU, except when the inmate has been
brought into the dayroom for routine activities such as the use
of telephones or dayroom time. Gerry Aff. at ¶ 3 . Prison staff
does not need prior permission from the warden to conduct a strip
search under these circumstances because all staff members at SHU
are under standing orders that any inmate brought to a dayroom
for non-routine activities should be strip searched. Gerry Aff.
at ¶ 3 ; see also PPD 5.22, IV(6)(B)(3).
Horstkotte spent approximately one hour in the dayroom until
a supervisor, Corporal Robert Tschudin, determined that he had
calmed down and could be returned to his cell. Afterward,
Officer Flynn filed an incident report, and Officer Benard
prepared a disciplinary report against Horstkotte, charging him
with threatening staff and disrupting the orderly operation of
the prison. After a hearing, Horstkotte was found not guilty of
6 both charges because they were not sufficiently documented,
though by virtue of his failure to object to the motion at bar,
Horstkotte does not contest the defendants’ assertion that he was
disruptive. No further disciplinary action was taken against
Horstkotte.
III. ANALYSIS
Horstkotte alleges that the defendants retaliated against
him for threatening to file grievances, thereby violating his
First Amendment right “to petition the Government for a redress
of grievances.” U.S. Const. amend. I . To prevail on a
retaliation claim, Horstkotte must show that “(1) his complaints
were protected activity under the First Amendment; (2) the
defendants took adverse action against him; and (3) there was a
causal connection between the protected activity and the adverse
action.” Nagle v . Warden, N.H. State Prison, 2009 DNH 195, 1 5 ;
see also Smith v . Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008);
Davis v . Goord, 320 F.3d 346, 352 (2d Cir. 2003); Mitchell v .
Horn, 318 F.3d 523, 530 (3d Cir. 2003); Thaddeus-X v . Blatter,
175 F.3d 3 7 8 , 386-87 (6th Cir. 1999) (en banc); Cossette v .
Poulin, 573 F. Supp. 2d 456, 459 (D.N.H. 2008).
7 A . Protected activity
The defendants do not dispute that Horstkotte was engaged in
a protected activity. This court therefore assumes, without
deciding, that Horstkotte had a First Amendment right to express
his intent to file grievances, satisfying the first element of
his retaliation claim. See Nagle, 2009 DNH 195, 15 (same
assumption made). Horstkotte’s claim nonetheless fails to
satisfy the other two elements.
B . Adverse action
As to the second element, Horstkotte must show that the
defendants took adverse actions against him that were more than
“de minimis” and “would chill or silence a person of ordinary
firmness from future First Amendment activities.” Morris v .
Powell, 449 F.3d 6 8 2 , 684-85 (5th Cir. 2006) (quoting Crawford-El
v . Britton, 93 F.3d 813, 826 (D.C. Cir. 1996) (en banc)).
“[C]ertain threats or deprivations are so de minimis that they do
not rise to the level of being constitutional violations.”
Thaddeus-X, 175 F.3d at 398. Adverse acts will be considered de
minimis when they “cause an inmate only a ‘few days of
discomfort,’ impose ‘a [single] minor sanction,’ or impose an
otherwise constitutional restriction on the inmate.” Starr v .
Dube, 334 Fed. Appx. 3 4 1 , 342 (1st Cir. 2009) (unpublished)
8 (quoting Morris, 449 F.3d at 685-86) (alteration in original).
“In making this determination, the court’s inquiry must be
‘tailored to the different circumstances in which retaliation
claims arise,’ bearing in mind that ‘[p]risoners may be required
to tolerate more . . . than average citizens before a
[retaliatory] action taken against them is considered adverse.’”
Davis, 320 F.3d at 353 (quoting Dawes v . Walker, 239 F.3d 489,
493 (2d Cir. 2001)) (alteration in original). In his complaint,
Horstkotte did not allege that a specific incident was
retaliatory but instead referred to the entire sequence of events
on January 1 3 , 2008. Whether viewed individually or taken
together, the disciplinary report, temporary placement in the
dayroom, and strip search do not constitute adverse actions.
The defendants first argue that the disciplinary report
against Horstkotte does not constitute an adverse action. Our
court of appeals recently held that where disciplinary charges
are filed and ultimately dismissed against a prisoner, no
“reasonable fact-finder could conclude that inmates of ‘ordinary
firmness’ would be deterred from continuing to exercise their
constitutional rights.” Starr, 334 Fed. Appx. at 343; see also
Nagle, 2009 DNH 195, 16-17. Like the inmates in Starr and Nagle,
Horstkotte was found not guilty of the charges and no further
disciplinary action was taken against him. The dismissed
9 disciplinary report would not deter an inmate of ordinary
firmness from exercising his First Amendment rights and fails to
satisfy the second element of the retaliation test.
The defendants also argue that Horstkotte’s brief placement
in the dayroom and resulting strip search do not constitute
adverse actions. Courts have held that strip searches, in
conjunction with other discipline may constitute adverse actions.
See Brown v . Carr, N o . C-08-170, 2008 WL 4613050, at *3 (S.D.
Tex. Oct. 1 5 , 2008)(“[T]he retaliatory acts complained o f , a
disciplinary case resulting in the loss of privileges, and an
intrusive strip search, are more than de minimis.”); Marvel v .
Snyder, N o . 99-442, 2001 WL 830309, at *8 (D. Del. July 2 4 , 2001)
(a strip search, a cell shakedown, removal from inmate job, and
transfer to a potentially more dangerous area of the prison could
“negatively sway a reasonable prisoner from pursuing redress in
the court”). Unlike in these cases, however, Horstkotte’s strip
search was not combined with any significant discipline, cell
shakedown, transfer, or job loss.
Inmates are subjected to strip searches on a fairly routine
basis at the New Hampshire State Prison. When inmates at SHU are
brought to a dayroom for a “cooling off” period, prison policy,
as explained by Warden Gerry, requires them to be strip searched.
PPD 5.22, IV(4)(d) & (6)(B)(3). While the applicable regulation
10 recognizes that strip searches may be “annoying, irritating,
[and] time-consuming,” PPD 5.22, IV(6)(B)(3), the strip search
here is the type of de minimis act that causes an inmate “only a
‘few days [or less] of discomfort,’ impose[s] ‘a [single] minor
sanction,’ or impose[s] an otherwise constitutional restriction
on the inmate.” Starr, 334 Fed. Appx. at 342 (quoting Morris,
449 F.3d at 685-86). Given that “[p]risoners may be required to
tolerate more than . . . average citizens, before a [retaliatory]
action taken against them is considered adverse,” Davis, 320 F.3d
at 353, this strip search is not an adverse action. The court
here does not decide as a matter of law that no strip search,
standing alone, could constitute an adverse action. But under
this standard, and on this unrefuted record, L.R. 7.2(b)(2), the
court cannot say that the strip search of Horstkotte, either
standing alone or taken together with the dismissed disciplinary
action and brief placement in the dayroom, would deter a person
of ordinary firmness from exercising their constitutional rights.
C . Causal connection
As to the third element of a retaliation claim--causation--
inmates “face a substantial burden” to show that retaliation is
“the actual motivating factor” for the adverse action. McDonald
v . Hall, 610 F.2d 1 6 , 18 (1st Cir. 1979); see also Jackson v .
11 Fair, 846 F.2d 8 1 1 , 820 (1st Cir. 1988). Horstkotte must
demonstrate that the adverse acts would not have happened “but
for” the officers retaliatory motive. McDonald, 610 F.2d at 1 8 .
Because it is difficult to prove a retaliatory state of mind, the
plaintiff can introduce circumstantial evidence to establish
liability if it supports a reasonable inference of retaliation.
See Beauchamp v . Murphy, 37 F.3d 7 0 0 , 711 (1st Cir. 1994)
(Bownes, J., dissenting); Ferranti v . Moran, 618 F.2d 8 8 8 , 892
(1st Cir. 1980). Such evidence may include the chronology of
events or temporal proximity between the exercise of a
plaintiff’s right and the alleged retaliatory act. LaFauci v .
N.H. Dep’t of Corr., 2005 DNH 029, 21-22 (citing Ferranti, 618
F.2d at 892; McDonald, 610 F.2d at 1 8 ) ; see also Colon v .
Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). “At the summary
judgment stage, however, a bare allegation of temporal proximity
ordinarily will not be sufficient by itself to prove improper
motivation if the defendant has provided a legitimate explanation
for the challenged action.” LaFauci, 2005 DNH 029, 2 2 ; see also
Layne v . Vinzant, 657 F.2d 4 6 8 , 476 (1st Cir. 1981) (“The mere
chronology alleged in the complaint, while sufficient to
withstand a motion to dismiss, cannot get plaintiff to the jury
once defendants have produced evidence of a legitimate reason.”);
McDonald, 610 F.2d at 18-19. “[I]n cases where elusive concepts
12 such as motive or intent are at issue, summary judgment may be
appropriate if the nonmoving party rests merely upon conclusory
allegations, improbable inferences, and unsupported speculation.”
Meuser v . Fed. Express Corp., 564 F.3d 5 0 7 , 515 (1st Cir. 2009).
Based on this record, no reasonable fact-finder could
conclude that the officers acted with retaliatory intent when
they moved Horstkotte into the dayroom, strip searched him, and
filed a disciplinary report. Despite a close temporal proximity
between Horstkotte’s protected act and the alleged retaliatory
behavior, the defendants have provided a legitimate explanation
for their actions. By all accounts, it appears that Horstkotte
had become visibly upset after not receiving his medication. The
officers described his behavior as “belligerent” and by the time
that Officer Flynn intervened, the exchange between Horstkotte
and Officer Benard had become animated. Also, the exchange
occurred very early in the morning when many of the other inmates
were sleeping, and some began yelling “shut up” after being
awoken by the disturbance. When inmates become disruptive on the
tier it is common for officers to bring them into a dayroom for a
“cooling off” period. Gerry Aff. ¶ 2 . Part of the process of
bringing an inmate into the dayroom for a “cooling off” involves
administering a strip search. Officers do not need prior
permission to conduct these strip searches because all staff
13 members at the SHU are under standing orders that any inmate
brought into a dayroom for non-routine activities should be strip
searched. Gerry Aff. at ¶ 3 ; see also PPD 5.22, IV(6)(B)(3)
Thus, it was not merely Horstkotte’s threats to file
grievances that motivated the officers. Instead, it was the
combination of Horstkotte’s disruptive behavior, his insistence
in getting his medication, and the fact that he was causing a
disturbance among the other inmates that motivated the officers
to act the way they did. This explanation is supported by the
summary judgment record presented by the defendants, and
Horstkotte has not objected to this record, much less refuted i t .
Based on the defendants’ explanation and because Horstkotte has
not offered any evidence that might give rise to an inference of
discriminatory intent, the causation element of his retaliation
claim fails as a matter of law.
IV. CONCLUSION
For the foregoing reasons, the defendants’ motion for
summary judgment3 is GRANTED. The clerk shall enter judgment
accordingly and close the case.
3 Document n o . 1 9 .
14 SO ORDERED.
Joseph N . Laplante United States District Judge
Dated: April 2 , 2010
cc: Todd M . Horskotte, pro se Danielle L . Pacik, Esq.