LaFauci v. NHDOC
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Opinion
LaFauci v. NHDOC CV-99-597-PB 02/23/05
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Anthony LaFauci
v. Civil No. 99-597-PB 2005 DNH 029 New Hampshire Department of Corrections et a l .
MEMORANDUM AND ORDER
Plaintiff Anthony LaFauci, proceeding pro se, has sued 47
officials working for, or at the behest o f , the New Hampshire
State Prison (“NHSP”). He charges that defendants violated his
rights under the First, Eighth, and Fourteenth Amendments to the
United States Constitution. See 42 U.S.C. § 1983. In his multi-
count complaint, LaFauci, who is currently incarcerated at the
Osborn Correctional Institution in Somers, Connecticut, seeks
injunctive relief ordering Warden Michael Cunningham1 to provide
copies of all of LaFauci’s records at the state’s expense,
1 The current Warden of the New Hampshire State Prison is Bruce Cattell. expunge “trumped up” disciplinary convictions from his prison
record, and release him from prison. LaFauci also seeks monetary
damages.
Defendants have moved for summary judgment on each of
LaFauci’s claims. They make the preliminary argument that
LaFauci’s claims should be dismissed based on his alleged failure
to comply with the administrative exhaustion requirement of the
Prison Litigation Reform Act (“PLRA”). See 42 U.S.C. § 1997e(a).
Defendants contend that LaFauci failed to exhaust all available
administrative remedies by pursuing his claims through the proper
chain of command, as detailed in NHSP’s “Administrative Grievance
Scheme.” See LaFauci v . New Hampshire Dep’t of Corrections, N o .
99-253-M, 2001 WL 1570932, at *3 (D.N.H. Oct. 3 1 , 2001)
(unpublished order)(outlining the three-tiered “administrative
scheme through which inmates may seek to have various complaints
addressed and resolved”). Alternatively, defendants argue that
there are no genuine issues of material fact as to any claim and,
therefore, that they are entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(c). For reasons set forth more fully
below, I grant defendants’ motion for summary judgment in part,
and deny it in part.
-2- I. PROCEDURAL HISTORY
The procedural history of this case is long and convoluted.
It has been unduly, and indeed unnecessarily, complicated both by
LaFauci’s efforts to inundate the court with a deluge of
pleadings and by the defendants’ inability to promptly and
effectively respond to these pleadings. Furthermore, an ongoing
series of discovery disputes have needlessly prolonged the
litigation.
LaFauci filed his original complaint on December 2 1 , 1999,
and the case was referred to Magistrate Judge Muirhead for
initial review. See 28 U.S.C. § 1915A(a); U.S. District Court
District of New Hampshire Local Rule 4.3(d)(2). On May 1 6 , 2000,
Magistrate Judge Muirhead issued his explanatory Order, (Doc. N o .
5 ) , and Report and Recommendation, (Doc. N o . 6 ) , and ordered the
complaint served on the defendants. I approved this Report and
Recommendation on June 7 , 2000. (Doc. N o . 8 ) . After first
moving for an enlargement of time, defendants answered the
original complaint on July 1 7 , 2000. (Doc. N o . 2 0 ) . Then, on
August 1 5 , 2000, LaFauci moved for the first of three preliminary
injunctions and temporary restraining orders (“TRO”) (the second
-3- motion for a preliminary injunction and TRO was filed on
September 1 , 2000). Six days later, on August 2 1 , 2000, he moved
for leave to file an amended complaint. The court granted his
motion on September 7 , 2000.
Throughout the fall of 2000 and into 2001, LaFauci and the
defendants engaged in the first of several discovery disputes,
punctuated by several motions to compel production of documents,
and LaFauci’s motion to have defendants return his legal work.
On November 2 0 , 2000, the Magistrate recommended denial of
LaFauci’s first and second motions for a preliminary injunction
and TRO. I approved the Magistrate’s recommendation on January
2 9 , 2001. In response, LaFauci appealed the decision to the
First Circuit on March 2 8 , 2001. 2
Several months later, on July 1 6 , 2001, LaFauci filed a
motion for contempt, charging that defendants failed to comply
with a court order. The Magistrate denied this motion on August
1 7 , 2001. Another round of discovery disputes, including more
motions to compel, extended the case through 2001 and into 2002.
2 The First Circuit affirmed this court’s judgment on June 1 0 , 2002.
-4- On October 9, 2002, defendants filed an answer to LaFauci’s
amended complaint. (Doc. N o . 8 9 ) . LaFauci then filed yet
another amended complaint on April 3 , 2003. (Doc. N o . 9 8 ) . The
defendants moved to dismiss the amended complaint on September 2 ,
2003, (Doc. N o . 1 0 1 ) , and then, on November 1 0 , 2003, moved to
stay discovery pending a ruling on the motion to dismiss. Ten
days later, on November 2 0 , 2003, I issued an order granting in
part and denying in part defendants’ motion to dismiss.
Specifically, I concluded that only Incidents 4 , 5 , 7 , 8 , 9, 1 0 ,
and 11 remained viable.3 I also ordered defendants to file a
motion for summary judgment on or before January 1 5 , 2004.
Like the previous three years, 2003 and the first six months
of 2004 were characterized by yet another round of discovery
disputes, including another series of motions to compel. In
addition, LaFauci filed his third motion for a preliminary
injunction on December 2 9 , 2003. On January 2 3 , 2004, the
Magistrate recommended that this motion be denied. After twice
3 In his May 1 6 , 2000 Report and Recommendation (Doc. N o . 6 ) , Magistrate Judge Muirhead referred to the counts in LaFauci’s complaint, as LaFauci had, as “Incidents.” In the interest of consistency, I will continue to identify the claims as Incidents, rather than as Counts.
-5- moving to enlarge the time to file, defendants moved for summary
judgment on March 1 0 , 2004. (Doc. N o . 1 2 3 ) . Then, in April
2004, LaFauci moved to enlarge the time to object to defendants’
motion for summary judgment.
On July 2 7 , 2004, I held what was originally scheduled as
the final pretrial conference. At that hearing, I removed the
case from the trial list pending a ruling on the defendants’
motion for summary judgment, and clarified that Incident 3 had
not been dismissed in full, and thus remained a viable claim. I
also ordered LaFauci to file his objection to defendants’ motion
for summary judgment no later than September 2 7 , 2004, and
ordered defendants to file their reply no later than October 2 7 ,
2004. On October 1 8 , 2004, LaFauci filed his objection to
defendants’ motion for summary judgment. (Doc. Nos. 263 & 2 6 4 ) .
Finally, on December 5 , 2004, defendants’ filed their reply to
LaFauci’s objection. (Doc. N o . 2 7 0 ) . This Memorandum and Order
addresses the issues raised in these motions.4
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LaFauci v. NHDOC CV-99-597-PB 02/23/05
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Anthony LaFauci
v. Civil No. 99-597-PB 2005 DNH 029 New Hampshire Department of Corrections et a l .
MEMORANDUM AND ORDER
Plaintiff Anthony LaFauci, proceeding pro se, has sued 47
officials working for, or at the behest o f , the New Hampshire
State Prison (“NHSP”). He charges that defendants violated his
rights under the First, Eighth, and Fourteenth Amendments to the
United States Constitution. See 42 U.S.C. § 1983. In his multi-
count complaint, LaFauci, who is currently incarcerated at the
Osborn Correctional Institution in Somers, Connecticut, seeks
injunctive relief ordering Warden Michael Cunningham1 to provide
copies of all of LaFauci’s records at the state’s expense,
1 The current Warden of the New Hampshire State Prison is Bruce Cattell. expunge “trumped up” disciplinary convictions from his prison
record, and release him from prison. LaFauci also seeks monetary
damages.
Defendants have moved for summary judgment on each of
LaFauci’s claims. They make the preliminary argument that
LaFauci’s claims should be dismissed based on his alleged failure
to comply with the administrative exhaustion requirement of the
Prison Litigation Reform Act (“PLRA”). See 42 U.S.C. § 1997e(a).
Defendants contend that LaFauci failed to exhaust all available
administrative remedies by pursuing his claims through the proper
chain of command, as detailed in NHSP’s “Administrative Grievance
Scheme.” See LaFauci v . New Hampshire Dep’t of Corrections, N o .
99-253-M, 2001 WL 1570932, at *3 (D.N.H. Oct. 3 1 , 2001)
(unpublished order)(outlining the three-tiered “administrative
scheme through which inmates may seek to have various complaints
addressed and resolved”). Alternatively, defendants argue that
there are no genuine issues of material fact as to any claim and,
therefore, that they are entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(c). For reasons set forth more fully
below, I grant defendants’ motion for summary judgment in part,
and deny it in part.
-2- I. PROCEDURAL HISTORY
The procedural history of this case is long and convoluted.
It has been unduly, and indeed unnecessarily, complicated both by
LaFauci’s efforts to inundate the court with a deluge of
pleadings and by the defendants’ inability to promptly and
effectively respond to these pleadings. Furthermore, an ongoing
series of discovery disputes have needlessly prolonged the
litigation.
LaFauci filed his original complaint on December 2 1 , 1999,
and the case was referred to Magistrate Judge Muirhead for
initial review. See 28 U.S.C. § 1915A(a); U.S. District Court
District of New Hampshire Local Rule 4.3(d)(2). On May 1 6 , 2000,
Magistrate Judge Muirhead issued his explanatory Order, (Doc. N o .
5 ) , and Report and Recommendation, (Doc. N o . 6 ) , and ordered the
complaint served on the defendants. I approved this Report and
Recommendation on June 7 , 2000. (Doc. N o . 8 ) . After first
moving for an enlargement of time, defendants answered the
original complaint on July 1 7 , 2000. (Doc. N o . 2 0 ) . Then, on
August 1 5 , 2000, LaFauci moved for the first of three preliminary
injunctions and temporary restraining orders (“TRO”) (the second
-3- motion for a preliminary injunction and TRO was filed on
September 1 , 2000). Six days later, on August 2 1 , 2000, he moved
for leave to file an amended complaint. The court granted his
motion on September 7 , 2000.
Throughout the fall of 2000 and into 2001, LaFauci and the
defendants engaged in the first of several discovery disputes,
punctuated by several motions to compel production of documents,
and LaFauci’s motion to have defendants return his legal work.
On November 2 0 , 2000, the Magistrate recommended denial of
LaFauci’s first and second motions for a preliminary injunction
and TRO. I approved the Magistrate’s recommendation on January
2 9 , 2001. In response, LaFauci appealed the decision to the
First Circuit on March 2 8 , 2001. 2
Several months later, on July 1 6 , 2001, LaFauci filed a
motion for contempt, charging that defendants failed to comply
with a court order. The Magistrate denied this motion on August
1 7 , 2001. Another round of discovery disputes, including more
motions to compel, extended the case through 2001 and into 2002.
2 The First Circuit affirmed this court’s judgment on June 1 0 , 2002.
-4- On October 9, 2002, defendants filed an answer to LaFauci’s
amended complaint. (Doc. N o . 8 9 ) . LaFauci then filed yet
another amended complaint on April 3 , 2003. (Doc. N o . 9 8 ) . The
defendants moved to dismiss the amended complaint on September 2 ,
2003, (Doc. N o . 1 0 1 ) , and then, on November 1 0 , 2003, moved to
stay discovery pending a ruling on the motion to dismiss. Ten
days later, on November 2 0 , 2003, I issued an order granting in
part and denying in part defendants’ motion to dismiss.
Specifically, I concluded that only Incidents 4 , 5 , 7 , 8 , 9, 1 0 ,
and 11 remained viable.3 I also ordered defendants to file a
motion for summary judgment on or before January 1 5 , 2004.
Like the previous three years, 2003 and the first six months
of 2004 were characterized by yet another round of discovery
disputes, including another series of motions to compel. In
addition, LaFauci filed his third motion for a preliminary
injunction on December 2 9 , 2003. On January 2 3 , 2004, the
Magistrate recommended that this motion be denied. After twice
3 In his May 1 6 , 2000 Report and Recommendation (Doc. N o . 6 ) , Magistrate Judge Muirhead referred to the counts in LaFauci’s complaint, as LaFauci had, as “Incidents.” In the interest of consistency, I will continue to identify the claims as Incidents, rather than as Counts.
-5- moving to enlarge the time to file, defendants moved for summary
judgment on March 1 0 , 2004. (Doc. N o . 1 2 3 ) . Then, in April
2004, LaFauci moved to enlarge the time to object to defendants’
motion for summary judgment.
On July 2 7 , 2004, I held what was originally scheduled as
the final pretrial conference. At that hearing, I removed the
case from the trial list pending a ruling on the defendants’
motion for summary judgment, and clarified that Incident 3 had
not been dismissed in full, and thus remained a viable claim. I
also ordered LaFauci to file his objection to defendants’ motion
for summary judgment no later than September 2 7 , 2004, and
ordered defendants to file their reply no later than October 2 7 ,
2004. On October 1 8 , 2004, LaFauci filed his objection to
defendants’ motion for summary judgment. (Doc. Nos. 263 & 2 6 4 ) .
Finally, on December 5 , 2004, defendants’ filed their reply to
LaFauci’s objection. (Doc. N o . 2 7 0 ) . This Memorandum and Order
addresses the issues raised in these motions.4
4 Three other motions are also ripe for review. LaFauci’s Motion Requesting for Copies of Any Kinds of Documentation of Any Internal Investigations That Involved Named Defendants in This Complaint With Other Inmates (Doc. N o . 265) is denied. The remaining motions, defendants’ Motion for Clarification and Enlargement of Time (Doc. N o . 267) and Motion for Enlargement of
-6- II. BACKGROUND5
The events giving rise to the Incidents in LaFauci’s
complaint occurred on several occasions between May 1 6 , 1997 and
January 1 6 , 1998. At the heart of LaFauci’s complaint is his
allegation that while he was incarcerated at the New Hampshire
State Prison in Concord, prison officials engaged in a concerted
effort to harass, abuse, and on several occasions, assault him.
LaFauci complains that defendants’ actions denied him access to
the courts, in violation of the First and Fourteenth Amendments,
based on the alleged retaliatory actions described in Incidents
3 , 4 , 5 , and 7 through 1 1 . He also charges that the conduct of
prison officials and other inmates described in Incidents 4 , 5 ,
and 10 violates the Eighth Amendment’s prohibition against cruel
and unusual punishment.
A. Incident 3 : Retaliation Claim
In Incident 3 , LaFauci alleges that on May 1 6 , 1997,
Time from November 1 7 , 2004 to December 3 , 2004 (Doc. N o . 269) are moot. 5 The facts are described in the light most favorable to LaFauci, the non-movant. See Navarro v . Pfizer Corp., 261 F.3d 9 0 , 93-4 (1st. Cir. 2001)(explaining the operation of Fed. R. Civ. P. 56)(citation omitted).
-7- Corrections Officer (“C.O.”) John Eichhorn denied him access to
the law library and issued him a disciplinary report for
violation of Rule 14B (insubordination to a staff member) and
Rule 56B (lying or providing false or misleading information to a
staff member). LaFauci charges that the disciplinary reports
were unwarranted and, in support of this charge, points out that
he was later found not guilty of these violations. LaFauci also
complains that on June 2 2 , 1997, Eichhorn verbally harassed him,
and, later the same day, told him that he would receive a
disciplinary ticket for violating Rule 31B (failing to stand for
count, interfering with the taking of count, or being out of
place for count). According to LaFauci, these actions were taken
to “punish” him for filing a lawsuit, LaFauci v . Brodeur, 97-47-
J D , against several prison officials.
B. Incident 4 : Retaliation and Eighth Amendment Claim
LaFauci alleges in Incident 4 that he was assaulted in
violation of the Eighth Amendment’s prohibition on cruel and
unusual punishment, and that defendants retaliated against him
for filing suit against them. He charges that on June 2 7 , 1997,
defendants moved him from the South Unit to the H-Building, where
he was attacked and beaten by four other inmates. In particular,
-8- he states that when he placed his belongings in his new room, a
black inmate approached him and said, “This is a black man’s
room.” After LaFauci explained that he was newly assigned to the
room, four black inmates jumped him and physically assaulted him,
resulting in a fractured right hand. His injuries were
photographed by Corporal William Wilson, and he was sent to
Concord Hospital for treatment. On June 3 0 , 1997, LaFauci was
examined by an orthopedic surgeon, D r . James Forbes, M.D., who
fitted him with a cast. LaFauci suggests that Lieutenant Daniel
Torres knew that he would be assaulted upon his arrival at the
new room in the H-Building.
LaFauci next claims that on July 3 , 1997, C.O. Ken Gorski
and C.O. Lee Morrison called him names and threatened to hang him
with bedsheets, and that Morrison threw some of LaFauci’s legal
work in the toilet. According to LaFauci, the following day,
July 4 , 1997, C.O. Arthur Locke called him a “nigger lover” and
made comments “of a sexual nature” about him. He also complains
that on July 7 , 1997, Eichhorn taunted him while he was in the
shower, shouting “”HA! HA! HA! HA! I got you moved out of the
South Unit!,” and banging on the shower window. Four days later,
Eichhorn came to LaFauci’s Special Housing Unit (“SHU”) and
-9- yelled that he was going to “harass and abuse” him. One week
later, on July 1 4 , 1997, C.O. Charles Boyajian and C.O. Neil
Smith asked LaFauci if he wanted to go to the law library, but
then denied him access to his legal work. LaFauci later received
a disciplinary ticket for violating Rule 43B (conduct which
disrupts or interferes with the security or orderly operation of
the institution), but was not permitted to call witnesses to the
July 2 3 , 1997 disciplinary hearing on this matter. Two days
later, on July 1 6 , 1997, Locke “mentally assaulted” LaFauci,
denied him a shower, and would not let him leave his cell. These
actions, LaFauci claims, were retaliation against him for filing
LaFauci v . Brodeur.
C. Incident 5 : Retaliation and Eighth Amendment Claims
In Incident 5 , LaFauci alleges both retaliation and an
Eighth Amendment violation. Here, LaFauci maintains that on July
2 8 , 1997, C.O. Shawn O’Neil and C.O. Smith asked LaFauci if he
was going to the law library. When LaFauci said yes, O’Neil took
LaFauci’s legal work from him because he [O’Neil] wanted to
review i t . When LaFauci entered the law library, O’Neil and
Smith slammed the door behind him, locked the door, and took his
legal work before going back down the stairs. A short time later
-10- C.O. Lee Morrison came to the window of the library, and while
LaFauci watched, took some of his legal documents, tore them u p ,
and laughed while doing s o . LaFauci called for Unit Manager
Walter Davies to explain Morrison’s conduct, but C.O. Christopher
Walters arrived first and told LaFauci to shut u p . Soon
thereafter, Davies arrived and as LaFauci was explaining his
mistreatment, six correctional officers, including C.O. Eric
Denis, O’Neil, Smith, Lee Morrison, and C.O. Shelton Fitton,
joined Davies at the library.6 They slammed the door, turned off
the surveillance camera, and verbally harassed him. When LaFauci
protested, O’Neil told him to turn around and kneel on the floor,
and as he did s o , O’Neil hit him across the back of his head,
neck, and shoulders. The other officers then jumped on his back,
knocking him into a small table and then to the floor, causing
his nose and mouth to bleed. LaFauci was then hog tied and taken
back to his cell and left, face down, for about 25 minutes.
While he was still hog tied in his cell, Smith jumped on his
back, choked him, and forced his fingers into LaFauci’s ears.
6 C.O. Fitton was not named as a defendant in the original complaint. LaFauci seeks to add him as a defendant in the amended complaint (Doc. N o . 9 8 ) . See Am. Compl. ¶ 101.
-11- Smith then left LaFauci on the floor of his cell, handcuffed and
bleeding from the nose and mouth. A short time later Nurse Brad
Bowen entered LaFauci’s cell and removed the handcuffs, but
failed to provide any medical treatment for the bruises,
scratches, red blotches, and dizziness that resulted from the
assault.
Then, very early in the morning of July 3 1 , 1997, C.O. Brett
Morrison kicked the glass window on the day room and shouted,
which woke him up and “inflicted unreasonable noise physically
abusing and mentally harassing” him.
D. Incident 7 : Retaliation Claim
In Incident 7 , LaFauci charges that on September 1 2 , 1997,
C.O. Jay Hislop issued him disciplinary tickets for violating
rules 14B (insubordination to a staff member) and 40B (failing to
perform work or other assignment as ordered by a staff member).
The incident occurred in the kitchen where Hislop ordered LaFauci
to shuck ten bags of corn. LaFauci completed one bag, and was
starting the second, when Hislop told him that he could not sit
down while shucking corn. At this point, C.O. Thomas Casey made
a sarcastic comment and jokingly told Hislop that they should
take LaFauci out back and “kick his ass.” Hislop then ordered
-12- LaFauci to lift a 150-pound pan and LaFauci refused, explaining
that back and neck problems prevented him from doing s o . Hislop
then said he was going to make sure LaFauci got 50 extra hours of
work and verbally abused him by calling him names. LaFauci
approached Major Joseph Guimond and tried to explain that Hislop
was harassing him. Guimond ordered LaFauci to leave the kitchen
and return to his unit immediately. LaFauci claims that the
disciplinary tickets resulting from this incident were issued in
retaliation for his refusal to lift the pan and complete the corn
shucking task. He also complains that at the disciplinary
hearing for this matter, held on September 2 3 , 1997, he was not
permitted to call Major Guimond as a witness, another act of
retaliation.
E. Incident 8 : Retaliation Claim
On November 1 8 , 1997, when LaFauci was walking into the
dining hall, C.O. Anthony Dragon shouted at him to pin his
identification badge to his coat, where it would be visible,
rather than to his shirt. LaFauci first claims that his
identification badge was pinned to his shirt rather than his coat
because earlier in the day he was walking outside without a coat
and, second, claims that the badge was in fact visible to Dragon.
-13- In response to Dragon’s order, LaFauci stated, “it’s right here,
open your eyes,” or words to that effect, and then walked away
muttering, “I’m not in the army.” Dragon then issued him
disciplinary tickets for violating rules 14B (insubordination to
a staff member) and 39B (failing to obey . . . [an] order of a
staff member). LaFauci claims Dragon’s actions were retaliatory.
LaFauci also claims that at the December 1 , 1997 hearing on
this matter, the Hearing Officer, Lester Eldridge, “changed the
face value of the ticket” and refused to record or videotape the
disciplinary hearing. He further claims that Unit Manager John
Martin improperly placed a letter describing this incident in
LaFauci’s offender folder without providing him with a copy of
the letter. LaFauci maintains that Martin and Eldridge intended
their actions to punish him for filing the lawsuit LaFauci v .
Brodeur.
F. Incident 9: Retaliation Claim
On December 3 , 1997, C.O. Charles Boyajian verbally harassed
LaFauci and put him in the J-tier day room on a precautionary
watch, where he was deprived of water, clothing, and use of the
bathroom. The day room smelled of urine, the floors were
bloodstained, and the window frames had human feces in their
-14- cracks. LaFauci contends that Boyajian was retaliating against
him for filing the lawsuit, LaFauci v . Brodeur.
Likewise, on either December 6 or December 8 , 1997, C.O. Ken
Gorski and C.O. A.J. Williams entered LaFauci’s cell and took his
legal work, approximately 100 pages of “white copies” of inmate
request slips, telling him they were the state’s property.7
Gorski and Williams also called him degrading names, including
“skinner,” behind his back to other inmates.
Then on December 1 0 , 1997, LaFauci received a disciplinary
ticket for violating Rule 56B (lying or providing false or
misleading information to a staff member). Walter Davies
“interviewed” this ticket and refused to allow LaFauci to call
another inmate as a witness at the hearing held on December 1 7 ,
1997, and also refused to videotape or record the proceedings.
These actions, LaFauci alleges, were also retaliatory.
G. Incident 1 0 : Retaliation and Eighth Amendment Claims
The events of Incident 1 0 , in which LaFauci claims abuse and
harassment in violation of the Eighth Amendment, as well as
retaliation, commenced on December 1 6 , 1997. On that date
7 The white copies of inmate request slips and grievance forms are the copies retained by the inmate.
-15- LaFauci was moved out of D-Pod and into C-Pod. Immediately after
the move, C.O. Jay Hislop, C.O. Joel Robinson, and C.O. Arthur
Locke forced him to walk across the prison yard on the way to see
Dr. Forbes, whose office is located outside the prison facility.
LaFauci claims this walking caused pain and swelling in his knee.
The following day, after LaFauci asked to be removed from his pod
because he feared being brutally assaulted, C.O. Thomas Casey
escorted him out of his cell, but forced him climb stairs and
walk without crutches, resulting in additional pain and swelling
in his knee.
On December 2 1 , 1997, when LaFauci returned to his cell from
the shower, he discovered that inmate Thomas McQueen had put
water in the plastic bag containing LaFauci’s legal work. Prison
officials, particularly C.O. Michael Poulicakos to whom LaFauci
reported the incident, took no action. Later that day, after
LaFauci dried off his papers, inmate McQueen threw a bucket of
water into LaFauci’s cell, soaking his bedding and his legal
work. In response, LaFauci said it was a good thing he [LaFauci]
was behind bars, because he would have “beat the shit out of
. . . Thomas McQueen and someone should.” LaFauci was later
informed that McQueen had been removed from the tier and received
-16- a disciplinary ticket for his actions.
H. Incident 1 1 : Retaliation Claim
Finally, in Incident 1 1 , LaFauci again alleges that several
prison officials abused, harassed, and assaulted him in
retaliation for filing LaFauci v . Brodeur. He claims that on
December 2 2 , 1997, C.O. Mark Pistone and Corporal Kevin Keegan
pushed the steel door of his cell into him, resulting in bruises
to his body. A short time later, C.O.s Brett Morrison, Lee
Morrison, Pistone, and Cpl. Keegan removed LaFauci from his cell
and forced him to walk without his crutches, down three flights
of stairs, and across the yard to the Special Housing Unit. The
next day, when LaFauci asked that the telephones be turned on in
the day room, Brett Morrison harassed him and later issued him a
disciplinary ticket because LaFauci said that someone should beat
up inmate McQueen.8 LaFauci claims that in actuality, Morrison
took this action because LaFauci named him as a defendant in
LaFauci v . Brodeur. At the December 3 0 , 1997 disciplinary
hearing on this matter, Keegan admitted pushing LaFauci but the
Hearing Officer, Raymond Guimond “covered up” Keegan’s statement
8 The factual allegations in Incident 10 appear to overlap the allegations in Incident 1 1 .
-17- and imposed on LaFauci an improper punishment. Defendants also
refused to videotape or record this proceeding.
III. STANDARD OF REVIEW
Summary judgment is appropriate where “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 a judgment as a matter of law.” Fed. R. Civ. P.
56(c). A genuine issue is one “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 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, however, “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
-18- 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 nonmoving party to “produce evidence on
which a reasonable finder of fact, under the appropriate burden
of proof, 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)(citing Celotex, 477 U.S. at 323; Anderson, 477 U.S. at
249). Neither conclusory allegations, improbable inferences, or
unsupported speculation are sufficient to defeat summary
judgment. See Carroll v . Xerox Corp., 294 F.3d 2 3 1 , 236-37 (1st
Cir. 2002).
IV. ANALYSIS
Following my ruling on the defendants’ motion to dismiss
(Doc. N o . 101) and the pretrial hearing held on July 2 7 , 2004,
eight of LaFauci’s claims remained viable: Incidents 3 , 4 , 5 , 7 ,
8 , 9, 1 0 , and 1 1 . Defendants now argue that each of these
remaining claims must be rejected. First, defendants urge,
LaFauci has failed to exhaust all available administrative
remedies as is required by the PLRA, and his claims must
-19- therefore be dismissed.9 Alternatively, they submit that: (a)
the defendants are entitled to qualified immunity with respect to
all of the remaining claims; (b) LaFauci has not alleged
sufficient facts to support his claims that the defendants took
adverse actions against him to punish him for filing the lawsuit
LaFauci v . Brodeur; (c) LaFauci cannot prove his Eighth Amendment
claims; and (d) LaFauci is not entitled to recover mental or
emotional damages without a showing of physical injury or with
merely a showing of de minimis injury.
Even assuming, without deciding, that LaFauci properly
complied with NHSP’s Administrative Grievance procedures and
therefore exhausted all available administrative remedies as
required by the PLRA, defendants are nevertheless entitled to
summary judgment as to the Eighth Amendment and retaliation
claims in Incidents 3 , 4 , 7 , 8 , 9, 1 0 , and 1 1 . LaFauci has
9 Defendants actually make two separate, though related arguments. First, they contend that LaFauci’s claims should be dismissed with prejudice because, by failing to comply with the NHSP grievance procedure set forth in PPD 1.16 (eff. Oct. 1 , 2002), he failed to exhaust his administrative remedies within 30 days. Alternatively, defendants argue that LaFauci’s claims should be dismissed without prejudice because he has not demonstrated that he has yet to exhaust his administrative remedies and therefore has not properly complied with the version of PPD 1.16 that was in effect in 1997 and 1998.
-20- failed to demonstrate the existence of any genuine issue of
material fact with respect to these claims. LaFauci has,
however, demonstrated that genuine issues of material fact exist
as to the Eighth Amendment claim described in Incident 5 .
A. The Retaliation Claims: Incidents 3, 5, and 7-11
To prevail on his retaliation claims, LaFauci must show
that: (1) he had a First Amendment right; (2) the defendants took
adverse action against him; (3) with the intent to retaliate
against him for executing his First Amendment rights; and (4) the
retaliatory acts caused the injury for which he is seeking
compensation. See McDonald v . Steward, 132 F.3d 225, 231 (5th
Cir. 1998); Reid v . Brodeur, 2001 WL 274843, *6 (unpublished
order)(D.N.H. Feb. 1 4 , 2001).
In the typical case, direct evidence of a retaliatory state
of mind is not available to the plaintiff. Ferranti v . Moran,
618 F.2d 8 8 8 , 892 (1st Cir. 1980); McDonald v . Hall, 610 F.2d 1 6 ,
18 (1st Cir. 1979). Nevertheless, in some instances, an
inference of retaliation may be warranted from the chronology of
events recited in the complaint. Id. Such evidence may include
temporal proximity between a lawsuit filed against prison
officials and allegations of destruction of the inmate’s legal
-21- work and unprovoked physical abuse by prison employees. See
Colon v . Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (noting that
temporal proximity between inmate’s lawsuit and disciplinary
action may serve as circumstantial evidence of retaliation);
Shabazz v . Cole, 69 F. Supp.2d 1 7 7 , 197 (D. Mass.
1999)(describing evidence sufficient to infer retaliatory
intent). 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. See Layne v . Vinzant, 657 F.2d 4 6 8 , 476 (1st
Cir. 1981)(“[t]he 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” for their conduct); McDonald, 610 F.2d at 18-
19.
LaFauci has alleged two classes of retaliatory claims, one
based on alleged procedural deficiencies, the other based on
substantive violations. As to each class of claims, defendants
contend that they have offered a legitimate, non-retaliatory
explanation for the alleged retaliatory acts. They further argue
-22- that LaFauci has failed to produce sufficient evidence to support
his claim that defendants acted with a retaliatory motive. As I
explain with respect to each class of claims, I agree.
1. Retaliation Claims Based Upon Disciplinary Charges and Hearing Procedures
LaFauci outlines four categories of procedural defects and
charges that these defects were in fact retaliatory actions by
prison officials. In particular he alleges that: (1) on three
occasions, in Incidents 4 , 7 , and 9, he was not permitted to call
witnesses to disciplinary hearings; (2) on three other occasions,
in Incidents 8 , 9, and 1 1 , his disciplinary hearings were not
recorded or videotaped; (3) once, in Incident 7 , a Hearing
Officer changed LaFauci’s words; and (4) once, in Incident 8 , the
Hearing Officer “changed the face value of the ticket.”
Defendants argue that they are entitled to summary judgment
on these retaliation claims because LaFauci has failed to rebut
their legitimate, non-retaliatory explanations for their
decisions not to allow LaFauci to call witnesses to disciplinary
hearings or to have minor disciplinary hearings videotaped or
recorded.
-23- It is well-settled that “[p]rison disciplinary proceedings
are not part of a criminal prosecution, and the full panoply of
rights due a defendant in such proceedings does not apply.”
Wolff v . McDonnell, 418 U.S. 539, 556 (1974). Wolff established
the standards for adequacy of prison disciplinary procedures.
Under Wolff, “a prisoner facing a disciplinary hearing that may
result in the loss of a liberty interest must receive ‘(1)
advance written notice of the disciplinary charges; (2) an
opportunity, when consistent with institutional safety and
correctional goals, to call witnesses and present documentary
evidence in his defense; (3) a written statement by the fact
finder of the evidence relied on and the reasons for the
disciplinary action.’” Smith v . Mass. Dep’t of Corr., 936 F.2d
1390, 1398 (1st Cir. 1991)(quoting Superintendent Mass. Corr.
Inst. v . Hill, 472 U.S. 445, 454 (1985)). The Court later
clarified its holding in Wolff, explaining that prison officials
bear the burden of justifying the denial of a witness request by
offering an explanation, either at the hearing or in connection
with subsequent litigation. See Ponte v . Real, 471 U.S. 4 9 1 ,
497-99 (1985). An inmate’s right to call witnesses to a
disciplinary hearing is therefore qualified, not absolute, as is
-24- an inmate’s right to cross-examine witnesses. See Wolff, 418
U.S. at 568-69.
In the New Hampshire state prison system, disciplinary
hearings are governed by Policy and Procedure Directive (“PPD”)
5.25. See Ex. K , IV. D. to Def.’s Motion for Summ. J. (“Ex.”).
According to PPD 5.25, inmates who want to call witnesses must
provide the Hearing Officer with a list of the witnesses’ names
at least twenty-four hours before the hearing. Id. The Hearing
Officer is not required, however, to hear testimony or accept
evidence that is “irrelevant, unnecessary, cumulative, or
untimely.” Id. Furthermore, “witnesses may also be excluded for
institutional safety or correctional goals.” Id. The Hearing
Officer is permitted, however, to accept offers of proof as
evidence. Id. If witnesses are excluded, the reasons for the
exclusion must be in writing and on the record. Id. Finally,
under PPD 5.25, only disciplinary hearings involving major
offenses (“A” level) are recorded, and the tapes are retained for
6 months. Id. Minor disciplinary hearings (“B” and “C” levels)
are not recorded. Id.
a. Requests to Call Witnesses to Hearings
LaFauci asserts that on three occasions he sought to call
-25- witnesses at disciplinary hearings. In Incident 4 , however,
LaFauci failed to submit a written request with the witnesses’
names, in violation of the hearing procedure outlined in PPD
5.25. See Ex. B . In Incident 7 , LaFauci properly submitted a
request to call Major Guimond as a witness. However, as the
record reflects, the Hearing Officer denied his request because
Guimond did not witness the incident between LaFauci and officers
Hislop and Casey. Because LaFauci did not explain why he
requested Major Guimond’s testimony, the denial of his request to
call Guimond as a witness was not improper. See Ex. C & D.
Finally, in Incident 9, LaFauci asked to have inmate Sinhedeth
called as a witness. This request was denied because, as Unit
Manager Walter Davies explained, Sinhedeth did not speak English
well. Instead, Davies interviewed Sinhedeth and took his
statement; in this offer of proof Sinhedeth explained that he did
not observe any officers verbally harassing LaFauci. See Ex. E .
As with Guimond’s testimony, Sinhedeth’s testimony would not have
been relevant and was therefore properly excluded. Thus, because
in each instance defendants presented a legitimate, uncontested
explanation for their actions and LaFauci has failed to produce
any countervailing evidence of retaliatory motive, defendants are
-26- entitled to summary judgment on LaFauci’s claims that they
retaliated against him by refusing his requests to call witnesses
at disciplinary hearings.
b. Request to Videotape or Record Hearing
Likewise, LaFauci has not demonstrated that defendants’
denial of his request to have minor disciplinary hearings
recorded or videotaped was improperly motivated. See
Superintendent Mass. Corr. Inst., 472 U.S. at 454; Ex. K , PPD
5.25 IV., D., 8 . Incidents 8 , 9, and 11 each involved hearings
for minor offenses. See Ex. E , F, H . Accordingly, defendants’
refusal to videotape or record these hearings was in compliance
with the procedures set forth in PPD 5.25. Without evidence that
defendants elected not to record or videotape the hearings in
order to punish LaFauci for filing suit against them, these
decisions cannot form the basis of a retaliation claim. I
therefore grant defendants’ motion for summary judgment as to the
retaliation claims based on a failure to record the minor
disciplinary hearings in Incidents 8 , 9, and 1 1 .
c. Remaining Procedural Defects
LaFauci’s remaining procedural claims are equally
groundless. He charges in Incident 7 that at the disciplinary
-27- hearing, the Hearing Officer “changed [LaFauci’s] words.”
LaFauci has not, however, offered any evidence to indicate what
he originally said, what alteration the Hearing Officer
purportedly made, or what impact this alteration had on the
outcome of the hearing. Similarly, in Incident 8 LaFauci claims
that the Hearing Officer “changed the face value of the ticket.”
He appears to claim that he never admitted sarcastically asking
C.O. Dragon if he was blind when Dragon ordered him to display
his identification badge on his jacket. Again, though, LaFauci
has not presented any evidence that the outcome of the hearing,
including the guilty finding, would have been different but for
this alleged change. I therefore conclude that defendants are
entitled to summary judgment on these retaliation claims as well.
2. Substantive Retaliation Claims
In addition to the retaliation claims based on alleged
defects in the disciplinary hearing procedures, LaFauci also
claims in Incidents 3 , 5 , and 7 through 11 that he was harassed,
beaten, and abused by a number of prison officials in retaliation
for filing the lawsuit, LaFauci v . Brodeur. The defendants do
not challenge LaFauci’s assertion that he has a First Amendment
right to access the courts. Rather, they contend that he cannot
-28- demonstrate either that adverse actions were taken against him
with the intent to retaliate, or that these alleged retaliatory
acts caused the injuries for which he now seeks compensation.
See McDonald, 132 F.3d at 891-92. Defendants are correct.
Even construing LaFauci’s pro se complaint and other filings
liberally, as I must, see Estelle v . Gamble, 429 U.S. 9 7 , 106
(1976), he has not recited a chronology of events sufficient to
warrant an inference that the conduct of prison officials was
motivated by a desire to punish him for filing a lawsuit against
them. LaFauci’s complaint merely states that the adverse actions
taken against him occurred “within days” after he filed his
complaint in LaFauci v . Brodeur. The amended complaint in
LaFauci v . Brodeur was filed on May 1 3 , 1997, and served on
defendants on June 2 4 , 1997 with the Magistrate’s report. Yet,
only two of the 12 allegedly false and retaliatory disciplinary
reports identified in LaFauci’s complaint were issued within two
weeks of defendants being served with the complaint; the other 10
were issued between two and six months after the complaint was
served. This chronology of events thus does not establish a
close temporal proximity between the filing of the lawsuit and
the adverse actions taken by defendants. See Ferranti, 618 F.2d
-29- at 892; McDonald, 610 F.2d at 1 8 .
More damaging to LaFauci’s claims, though, is his failure to
offer any additional evidence that defendants took adverse
disciplinary actions with an intent to retaliate. Defendants
have submitted evidence that each of the alleged retaliatory
disciplinary charges were based on actionable infractions. See
Graham v . Henderson, 89 F.3d 7 5 , 79 (2d Cir. 1996)(summary
judgment appropriate if defendants show disciplinary action would
have been taken even in the absence of inmate’s protected
conduct); Shabazz, 69 F. Supp.2d at 198 (same). That LaFauci
does not believe he was guilty of these infractions is
insufficient evidence of retaliation where, as here, credible
evidence supports the Hearing Officers’ conclusions.
Because there is no genuine issue of material fact as to
these claims, I grant summary judgment with respect to LaFauci’s
retaliation claims as detailed in Incidents 3 , 5 , and 7 through
11.
B. The Eighth Amendment Claims: Incidents 4 , 5, and 10
The crux of LaFauci’s allegations in Incidents 4 , 5 , and 10
is that he was subjected to a nearly constant pattern of
unprovoked harassment, abuse, and mistreatment by virtually every
-30- corrections official he encountered. He specifically complains
in Incident 5 and 1 0 , that prison officials intentionally
assaulted him and, in Incident 4 , put him in a situation where
other prisoners could assault him, and that these actions
violated the Cruel and Unusual Punishment Clause of the Eighth
Amendment. Defendants counter that LaFauci’s allegations of
Eighth Amendment violations are no more than “bare allegations,”
insufficient to survive a motion for summary judgment. They
charge that LaFauci has adduced no evidence to support these
claims.
An Eighth Amendment violation in the prison context requires
circumstances that are objectively serious, so as to deprive an
inmate of the “minimal civilized measures of life’s necessities,”
Rhodes v . Chapman, 452 U.S. 3 3 7 , 347 (1981), and a showing that
the prison official who caused the deprivation had a sufficiently
culpable state of mind.” Wilson v . Seiter, 501 U.S. 2 9 4 , 297
(1991).
1. Incident 4 - Failure to Protect Claim
LaFauci charges that in Incident 4 , prison officials placed
him in a housing unit knowing he would immediately be beaten by
other inmates.
-31- “The Eighth Amendment imposes ‘a duty . . . to protect
prisoners from violence at the hands of other prisoners.’”
Skinner v . Cunningham, 2003 WL 21994759, *5 (D.N.H. Aug. 2 0 ,
2003)(quoting Farmer v . Brennan, 511 U.S. 825, 833
(1994))(unpublished opinion). That duty requires that prison
officials not be “deliberately indifferent to the risk to
prisoners of violence at the hands of other prisoners.” Burrell
v . Hampshire County, 307 F.3d 1 , 7 (1st Cir. 2002)(citing to
Farmer, 511 U.S. at 8 3 3 ) . However, not every injury suffered by
a prisoner at the hands of a fellow inmate gives rise to an
Eighth Amendment claim. Giroux v . Somerset County, 178 F.3d 2 8 ,
32 (1st Cir. 1999). Two requirements must be met in order for a
prison conditions complaint to state a violation of the Eighth
Amendment. Id. First, the alleged deprivation of adequate
conditions must be objectively serious. “[T]he inmate must show
that he is incarcerated under conditions posing a substantial
risk of serious harm.” Farmer, 511 U.S. at 834. Second, the
prison official involved must have had “a sufficiently culpable
state of mind,” Wilson, 501 U.S. at 299, usually described as
deliberate indifference to the inmate’s health or safety.
Farmer, 511 U.S. at 834. A prison official manifests
-32- “deliberate indifference” if he or she knew o f , and disregarded
an excessive risk to the inmate’s health or safety. Id. at 837.
LaFauci thus must first establish that defendants knew that when
they moved him to the H-Building, they were subjecting him to a
substantial risk to his health or safety. See id. at 834;
Giroux, 178 F.3d at 3 2 . He then must also establish that, in
moving him to the H-Building, defendants failed to respond
reasonably to those risks. See Farmer, 511 U.S. at 844; Burrell,
307 F.3d at 8 .
LaFauci’s failure to protect claim fails under this test
because he is unable to produce sufficient evidence to support
his contention that defendants acted with a culpable mental
state. The only evidence LaFauci has presented on this point is
his unsubstantiated assertion that prior to being moved from the
South Unit to the H-Building, he asked L t . Torres why he was
being moved, and Torres responded that he would “find out” when
he arrived at the H-Building. From this, LaFauci appears to
infer that Torres knew LaFauci would be assaulted upon his
arrival. He has not produced any evidence, however, that Torres,
or any other defendant for that matter, was aware of facts from
which they could determine that a serious risk of harm existed
-33- for LaFauci. Because LaFauci has not demonstrated that any
defendant was deliberately indifferent to his health or safety,
his claim fails under the second requirement of the Farmer test.
I thus grant defendants’ motion for summary judgment as to this
Eighth Amendment claim.
2. Incident 10 - Cruel and Unusual Punishment Claim
In Incident 1 0 , LaFauci alleges that several corrections
officers roughly handcuffed him and forced him to walk across the
prison yard, causing pain and swelling to his knee, and that the
following day C.O. Casey forced him to climb several flights of
stairs and walk without his crutches, resulting in additional
pain and swelling in his knee. He asserts that these actions,
done with malicious intent, were in violation of the Eighth
Amendment’s prohibition on cruel and unusual punishment.
Where, as here, prison officials stand accused of using
excessive physical force in violation of the Eighth Amendment’s
prohibition on cruel and unusual punishment, the core inquiry is
“whether force was applied in a good-faith effort to maintain or
restore discipline, or maliciously and sadistically to cause
harm.” Hudson v . McMillian, 503 U.S. 1 , 6-7 (1992)(extending
Whitley v . Albers, 475 U.S. 312 (1986)). To prevail, an inmate
-34- need not demonstrate “significant injury.” Id. However, not
every “malevolent touch by a prison guard gives rise to a federal
cause of action,” and one de minimis use of physical force is
shielded from constitutional scrutiny unless the use of force is
not “repugnant to the conscience of mankind.” Hudson, 503 U.S.
at 9 (internal citations omitted).
Again, LaFauci has failed to present evidence sufficient to
warrant the conclusion that prison officials, including C.O.
Casey applied force “maliciously or sadistically,” so as to cause
harm, rather than “in a good faith effort to maintain or restore
discipline.” Hudson, 503 U.S. at 6-7. In fact, in response to
LaFauci’s allegations, defendants have presented evidence that
LaFauci did not have a medical pass that would permit him to use
crutches or excuse him from walking. See Ex. O (Affidavit of
Thomas Casey). Moreover, C.O. Casey recalled that because
LaFauci complained of pain in his knees, he and C.O. Jordan
allowed LaFauci to stop when he needed to and made no attempt to
hurry him. Id. Casey explained that they let LaFauci take all
the time he needed. Id. The record is thus completely devoid of
any evidence that any force used by Casey and Jordan was applied
maliciously, sadistically, or was “repugnant to the conscience of
-35- mankind.” Hudson, 503 U.S. at 9. I therefore grant summary
judgment on this claim.
3. Incident 5 - Cruel and Unusual Punishment Claim
Unlike Incident 1 0 , the allegations in Incident 5 require
closer scrutiny. Here, LaFauci alleges that several corrections
officers took him to the prison’s law library, turned off the
surveillance camera and savagely beat him, without provocation,
both behind the locked doors of the library and later in his
cell. As with his other Eighth Amendment claims, defendants
argue that they are entitled to summary judgment on Incident 5
because LaFauci failed to present sufficient evidence to
demonstrate that he exhausted all available administrative
remedies as required by the PLRA. Defendants also argue that
LaFauci cannot prove his claim and, in any event, they argue that
they are entitled to qualified immunity. I disagree.
a. Exhaustion of Available Administrative Remedies
As noted above, defendants first move for summary judgment
by arguing that LaFauci failed to exhaust administrative remedies
available to him through the NHSP grievance system. The PLRA
provides in relevant part that “[n]o action shall be brought with
-36- respect to prison conditions under section 1983 . . . by a
prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a)(Supp. 2002). In Porter v .
Nussle, the United States Supreme Court held that “the PLRA
exhaustion requirement applies to all inmate suits about prison
life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other
wrong.” 534 U.S. 516, 532 (2002); see Medina-Claudio v .
Rodriguez-Mateo, 292 F.3d 3 1 , 34 (1st Cir. 2002).
The NHSP provides administrative remedies for inmate claims
related to prison conditions. The prison’s remedial scheme
requires inmates to first present any complaint that cannot be
resolved orally by filing an “inmate request slip.” See LaFauci,
N o . 99-253-M, 2001 WL 1570932, at * 3 . An inmate must then appeal
an adverse ruling with respect to an inmate request slip by
filing a grievance with the Warden. See id. If the inmate is
not satisfied with the Warden’s response, a final appeal may be
filed with the Commissioner. See id. Typically, an inmate’s
complaint is not administratively exhausted until this process,
following the “chain of command,” has been completed. There is
-37- an exception to the “chain of command” rule when the inmate
believes that he is subject to imminent injury or harm. Under
those circumstances, “the inmate may directly address the Warden
or the Commissioner, even if the inmate has not previously filed
an inmate request slip.”10 Id. at *3 n.1 (citing Inmate Manual,
section D(3)).
Here, LaFauci filed a grievance form with the Commissioner
on July 2 8 , 1997, taking advantage of the emergency procedure.11
Pl.’s Ex. N-24. It was reasonable for LaFauci to address his
initial grievance directly to the Commissioner rather than Unit
Manager Davies, who witnessed and participated in the assault, as
LaFauci could reasonably have believed that addressing an inmate
request slip to Davies would have subjected him to additional
injury or harm. In response, the Commissioner’s Office directed
LaFauci to write to the Warden. Pl.’s Ex. N-24. On September 3 ,
1997, LaFauci sent an inmate request slip to Warden Cunningham,
noting the Commissioner’s instruction. Pl.’s Ex. N-26. In this
10 It is not clear from the record if a special form must be used to file an emergency grievance. 11 The following day, LaFauci sent a letter to the Commissioner’s Office, providing additional details of the incident in the law library. See Pl.’s Ex. N-26.
-38- request slip, LaFauci indicated that he had contacted the
Warden’s office on several occasions, but had never received an
answer. Id. The Warden apparently investigated LaFauci’s
allegations and on October 6, 1997, informed LaFauci that he was
satisfied that his staff had “acted appropriately.” Id.
Finally, on October 2 2 , 1997, in an effort to properly comply
with the administrative grievance procedure, LaFauci sent an
inmate request slip to the Unit Supervisor, Sgt. O’Brien. Pl.’s
Ex. N-27. In the request slip, LaFauci explained his efforts to
comply with the grievance procedure and noted that he had
previously contacted O’Brien’s office about the incident but had
received no reply. Id. Two days later, O’Brien responded by
asking LaFauci if he had complied with the grievance system but
did not indicate that he had conducted any investigation into the
incident. Id.
The record thus demonstrates that LaFauci properly complied
with the NHSP grievance system as to this claim, as is required
by the PLRA. After being assaulted by the corrections officers
on his Unit, he took advantage of the emergency exception and
reasonably addressed his grievance to the Commissioner’s Office.
Then, in compliance with the Commissioner’s clear and unambiguous
-39- direction, LaFauci sent an inmate request slip to the Warden, who
apparently investigated the allegations and found them
groundless. Finally, in an effort to be sure he properly
complied with the system, LaFauci returned to the Unit Supervisor
and filed an inmate request slip. While proper compliance with
the grievance system makes sound administrative sense, the
procedures themselves, and the directions given to inmates
seeking to follow those procedures, should not be traps designed
to hamstring legitimate grievances. I therefore find LaFauci
exhausted all available administrative remedies, and proceed to
evaluate the merits of his claim.
b. Merits of LaFauci’s Cruel and Unusual Punishment Claim
As with Incident 1 0 , LaFauci must demonstrate that force was
applied by the corrections officers “maliciously and sadistically
for the very purpose of causing harm,” rather than “in a good
faith effort to maintain or restore discipline.” Hudson, 503
U.S. at 6-7. In making this determination, the U.S. Supreme
Court has instructed trial courts to evaluate “the need for
application of force, the relationship between that need and the
amount of force used, the threat reasonably perceived by the
-40- responsible officials . . . and any efforts made to temper the
severity of a forceful response.” Id. at 7 (quoting Whitley, 475
U.S. at 321)(internal quotation marks omitted).
LaFauci claims that when C.O. O’Neil and C.O. Smith took him
to the library on July 2 8 , 1997, they confiscated his legal work,
and locked him in the library, after which C.O. Morrison tore up
some of his legal work while LaFauci watched. At this point,
LaFauci claims, he began to call for Unit Manager Davies to come
to the library, but C.O. Walters responded first and joined
Morrison. Davies was the next to reach the library, and as
LaFauci tried to explain Morrison’s actions, several other
corrections officers arrived, entered the library, and brutally
assaulted him. According to the incident reports from the
corrections officers, LaFauci was being disruptive in the library
and they needed to use force to subdue him. Not surprisingly,
none of their reports include an account of C.O. Morrison’s
actions. The incident reports also indicate that LaFauci refused
several orders to turn around and kneel down. LaFauci denies
refusing the order and instead alleges that as he was kneeling
down, C.O. O’Neil rushed at him and knocked him to the floor.
-41- There exists, then, a genuine dispute as to the following
material facts: the cause of the disturbance in the library; the
threat reasonably perceived by the officers; the need for six
corrections officers to apply force; and any efforts made to
temper the severity of the forceful response. See Whitley, 475
U.S. at 321. LaFauci has thus presented sufficient evidence to
permit a trial on his claim that the corrections officers acted
“maliciously or sadistically for the very purpose of causing
harm.” Hudson, 503 U.S. at 6. I therefore deny defendants’
motion for summary judgment on this claim.
V. CONCLUSION
For the foregoing reasons, I grant defendants’ motion for
summary judgment (Doc. N o . 123) as to all claims in Incidents 3 ,
4 , 7 , 8 , 9, 1 0 , and 1 1 , and deny it as to Incident 5 . The only
remaining defendants therefore are those involved in Incident 5 :
Eric Denis, Neil Smith, Shawn O’Neil, Christopher Walters, Walter
Davies, Shelton Fitton, and Lee Morrison.
I also deny LaFauci’s motion for internal investigation
reports (Doc. N o . 265) and his motion to strike defendants’
motion for summary judgment (Doc. N o . 2 6 4 ) .
-42- This Memorandum and Order renders moot defendants’ motion
for clarification and enlargement of time (Doc. N o . 267) as well
as their motion for enlargement of time from November 1 7 , 2004 to
December 3 , 2004 (Doc. N o . 2 6 8 ) . The clerk shall enter judgment
accordingly.
SO ORDERED.
Paul Barbadoro United States District Judge
February 2 3 , 2005
cc: Anthony LaFauci, pro se Mary E . Schwarzer, Esq.
-43-
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