Melvin v . Brodeur, Comm'r CV-97-192-SD 12/8/98 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
David Melvin
v. Civil No. 97-192-SD
Paul Brodeur, Commissioner, New Hampshire Department of Corrections; Michael Cunningham, Warden, New Hampshire State Prison; Michael Sokolow, Protective Custody Unit Manager, New Hampshire State Prison
O R D E R
Pro se plaintiff David Melvin, an inmate at the New
Hampshire State Prison (NHSP), brings this civil rights action
pursuant to 42 U.S.C. § 1983. He claims that the defendants,
Paul Brodeur, Commissioner of the New Hampshire Department of
Corrections; Michael Cunningham, Warden of NHSP; and Michael
Sokolow, Protective Custody Unit Manager at NHSP, acting under
color of state law, deprived him of his constitutional rights by
transferring him within the Protective Custody Unit (PCU) from
NHSP's E-Pod to its F-Pod. In addition to a state-law claim of
negligence, Melvin claims that by improperly classifying him under the Quay system, defendants violated the Laaman Consent
Decree and his Eighth Amendment rights.
Presently before the court is defendants' motion for summary
judgment, to which plaintiff objects. For the reasons that
follow, this court grants defendants' motion in its entirety.
Background In 1989 Melvin was convicted of aggravated felonious sexual assault for the rape of his 15-year-old daughter. Upon his incarceration, he was classified under the Quay system1 as "Normal", which allowed him to be housed with inmates who were classified as either "Aggressors" or "Prey". In October 1991 his rape offense was incorrectly recorded during an administrative review, which resulted in his being incorrectly classified2 as
1 The Quay classification system was developed in accordance with a Consent Decree issued in Laaman v . Helgemoe, 437 F. Supp. 269, 329 (D.N.H. 1977), to facilitate the separation of vulnerable inmates from aggressive ones. The Consent Decree is a settlement agreement between NHSP prisoners and prison officials regarding various living conditions within NHSP. This court approved the amended version of this decree on July 2 0 , 1990. The amended version is currently the subject of an unrelated action. 2 An inmate's offense is considered when determining his or her Quay classification. According to the Quay system, plaintiff's rape offense should have been recorded as a violent crime. Instead, his offense was incorrectly recorded as an "other sexual offense," which changed his overall classification from Normal to Prey. 2 Prey. Despite several administrative reviews between 1991-1995, prison officials failed to correct this classification mistake. In March 1995 plaintiff was classified as Normal, even though his rape conviction was still not properly recorded. Finally, in October 1996 Melvin's rape conviction was properly recorded, and he was appropriately classified as Normal under the Quay classification system.
Beginning in July 1995 Melvin lived in E-Pod of the PCU, which was composed of two pods, E-Pod and F-Pod. Inmates in F-Pod are generally more aggressive than those in E-Pod.3 On March 2 1 , 1997, defendant Sokolow, the PCU manager, informed plaintiff that he was being transferred to F-Pod for security reasons. Defendants allege that Melvin's transfer was necessary because other inmates had informed officials that he was operating an underground canteen in E-Pod, which officials believed posed an unacceptable risk of violence in that pod. Plaintiff objected to this transfer4 and informed Sokolow that in 1990 two inmates in F-Pod, Pete Provencher and Leon Evans, had threatened to stab him. Despite this alleged threat, Sokolow
3 Inmates with Quay classifications of Normal and Predator live in F-Pod, while inmates with Quay classifications of Normal and Prey live in E-Pod. 4 In March 1992 plaintiff had requested a transfer to F-Pod, but was denied. 3 knew, based upon his own observation5 and discussion with
plaintiff, that Melvin had not had any other difficulty with
these men while in the PCU. Sokolow informed Melvin that he
would still be transferred to F-Pod, but would not be placed in a
room with either of the inmates who had threatened him.
Over a period of two months, Melvin filed a series of
grievances regarding his living conditions. Except for the first
grievance, all of these complaints were filed after his transfer
to F-Pod. On February 15, 1997, before the transfer, Melvin
filed a grievance alleging that Correctional Officer Gregory
Barnett improperly reviewed plaintiff's mail. On March 9, 1997,
Sokolow informed plaintiff that he would talk to Officer Barnett
to correct this problem. On March 23, 1997, shortly after his
transfer to F-Pod, plaintiff filed a grievance with defendant
Cunningham claiming that he was living in fear on F-Pod. After
discussing the issue with Sokolow, on March 26, 1997, Cunningham
responded, informing Melvin that officials had a good reason for
placing him in F-Pod and did not believe he was in danger. On
April 2 , 1997, plaintiff filed another grievance with defendant
Brodeur claiming that he was in danger and that he was unfairly
5 Under staff supervision, inmates from E-pod and F-Pod interact during combined activities of the two pods, such as mealtimes. 4 being forced to dispose of his property.6 After discussing
plaintiff's grievance with Sokolow, Brodeur responded on April 4 ,
1997, informing Melvin that he had been on F-Pod for some time
without incident, that Sokolow was watching the situation
closely, and that officials had properly instructed plaintiff to
dispose of his excess property.
Also on April 4 , 1997, Melvin filed a request to see a
mental health counselor claiming that he was under a lot of
stress, he lived in fear for his safety, and he did not know how
much longer he could live like this. A NHSP mental health
counselor, Roman Aquizap, visited Melvin on April 7 , 1997.
Plaintiff claims that Aquizap was going to try to get him
returned to E-Pod to prevent the Vietnam flashbacks Melvin had
experienced since his transfer to F-Pod.
On April 9, 1997, Melvin filed a grievance with the prison
librarian claiming that an inmate working at the library had made
an extra copy of one of his grievances, that this extra copy was
circulating through F-Pod, and that this circulation was causing
plaintiff problems on F-Pod. On April 1 7 , 1997, the librarian
informed Melvin that his complaint would be investigated.
6 Plaintiff had filed an earlier grievance on March 25, 1997, with defendant Cunningham complaining that Sokolow had forced him to dispose of some of his property. Cunningham responded to this grievance on April 2 , 1997.
5 On April 9, 1997, Melvin also wrote a letter to his pod officer, Mr. Gauthier, stating that he had the following four problems on F-Pod: (1) on his first day on F-Pod "twenty dollars worth of canteen" was stolen from him; (2) an extra copy of one of his grievances was circulating through the pod, causing him problems with other F-Pod inmates; (3) his roommate had been approached by unidentified inmates who had requested his roommate's help in robbing plaintiff; and (4) an unnamed person told plaintiff he would get seriously hurt unless he put a carton of cigarettes and a bag of coffee by a specific cell at a designated time. As of February 1998, no one had informed Warden Cunningham of this letter.
On April 2 0 , 1997, Melvin sent a second grievance to Aquizap, the mental health counselor, complaining of persistent Vietnam flashbacks as a result of his transfer to F-Pod. After discussing the issue with Sokolow, on May 9, 1997, Aquizap informed plaintiff that Sokolow had not observed any
complications with plaintiff and that plaintiff should make an effort to get along with the other inmates in F-Pod. Although Aquizap also invited plaintiff to come visit him in the mental health unit if plaintiff's distress continued, plaintiff asserts that this option was not available to him because of his status as a PCU inmate.
6 On April 23, 1997, Melvin filed another grievance with Sokolow regarding the disposal of his personal property. Sokolow responded to plaintiff on April 2 8 , 1997, emphasizing that it was more than fair to force plaintiff to send his excess property out of the prison, when officials could have confiscated it instead.
On April 3 0 , 1997, Melvin had a tooth extracted, which he claims was necessitated by his being punched by an unidentified F-Pod inmate approximately one week prior to the extraction. One month later, on May 2 2 , 1997, plaintiff reported the assault to Corrections Officer Robert Drew. Melvin then informed Officer Drew of three additional problems he was having with other F-Pod inmates: (1) inmate William Hallinan had stolen property from him; (2) inmates, one of whom he believed to be Lawrence Hamilton, were extorting property from him; and (3) inmates Jonathan Conklin and Ronald Jacques robbed him the previous night, which caused him to stay awake all night to plan how he could kill them. With this information, prison officials placed Melvin on administrative review status and moved him to the Secure Housing Unit (SHU) that day. Plaintiff remained in the SHU for eight days during the unit investigation,7 and then was
7 To protect himself from alleged abuse by other inmates, plaintiff sought injunctive relief while he lived in NHSP's SHU. After an evidentiary hearing on May 2 7 , 1997, the court denied plaintiff's motion for injunctive relief. See Order of June 2 , 1997.
7 moved to E-Pod on the PCU, where he remained without incident until NHSP dissolved its entire Protective Custody Unit. He was then moved, with his permission, into the general population of the prison8 in June 1998. Other than continuing to experience Vietnam flashbacks, plaintiff has lived without incident within NHSP's general population. Melvin has been treated by a mental health professional for the last eight months regarding his Vietnam flashbacks and nightmares. Inmates who lived with plaintiff before his transfer to F-Pod claim that he did not experience Vietnam flashbacks before the transfer. Inmates who have lived with Melvin since his transfer to F-Pod have observed plaintiff experiencing these flashbacks.
Melvin and another NHSP inmate, Daniel Leaf, claim that NHSP officials have routinely sent inmates from E-Pod to F-Pod as punishment for making complaints against the establishment. Plaintiff claims he did not threaten other inmates on E-Pod, nor did he have a history of misconduct on E-Pod that would justify his transfer to F-Pod. Instead, Melvin claims that officials, knowing he would be robbed and physically and mentally abused by
8 Plaintiff claims that even though he wanted to remain in the PCU, he did not want to move with the unit into another prison with inmates he didn't know, and therefore he signed the waiver to be transferred to NHSP's general population.
8 other inmates on F-Pod, moved him to F-Pod in retaliation for his
initial grievance against Officer Barnett. To the contrary,
defendants allege that plaintiff was only transferred to F-Pod
because of their suspicions that he was operating an illegal
canteen operation on E-Pod, which was a potential threat to
security.
Discussion
1. Standard of Review
The court may only grant a motion for summary judgment 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). Accordingly, at this stage of the
proceeding, the court does not weigh the evidence and determine
the truth of the matter, but instead determines whether there is
a genuine issue of fact for trial. See Stone & Michaud Ins. Bank
Five for Savings, 785 F. Supp. 1065, 1068 (D.N.H. 1992) (quoting
Anderson v . Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). The
substantive law identifies which facts are material so that
"'[o]nly disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry
9 of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.'" Caputo v . Boston Edison Co.,
924 F.2d 1 1 , 12-13 (1st Cir. 1991) (quoting Anderson, supra, 477
U.S. at 2 4 8 ) .
The party seeking summary judgment bears the initial burden
of establishing the lack of genuine issues of material fact. See Celotex Corp. v . Catrett, 477 U.S. 317, 323 (1986), cert. denied,
484 U.S. 1066 (1988); Quintero de Quintero v . Aponte-Roque, 974
F.2d 226, 227-28 (1st Cir. 1992). As a result, the court must
view the entire record in the light most favorable to the non-
moving party, "'indulging all reasonable inferences in that
party’s favor.'" Mesnick v . General Elec. Co., 950 F.2d 816, 822
(1st Cir. 1991), cert. denied, 504 U.S. 985 (1992) (quoting
Griggs-Ryan v . Smith, 904 F.2d 112, 115 (1st Cir. 1990)).
Additionally, the court must read this plaintiff's complaint and other pleadings with an extra degree of care in light of his pro
se status. See Estelle v . Gamble, 429 U.S. 9 7 , 106 (1976), reh'g
denied, 429 U.S. 1066 (1977). However, once a defendant has
submitted a properly supported motion for summary judgment, the
plaintiff "may not rest upon mere allegation or denials of his
pleading, but must set forth specific facts showing that there is
a genuine issue for trial." Anderson, supra, 477 U.S. at 256.
10 2. 42 U.S.C. § 1983
Pursuant to 42 U.S.C. § 1983, litigants such as plaintiff
can bring civil actions against any government official "who,
under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory, . . . subjects, or causes to be
subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by
the Constitution . . . ." 42 U.S.C. § 1983 (1994). As the basis
for this section 1983 action, Melvin alleges three constitutional
violations: (1) defendants violated his Eighth Amendment right to
be free from cruel and unusual punishment by transferring him to
F-Pod, when they knew other F-Pod inmates posed a serious risk of
danger to him; (2) defendants violated his Fourteenth Amendment
rights by transferring him to F-Pod as punishment without due
process; and (3) defendants violated the Laaman Consent Decree
and his Eighth Amendment rights by improperly classifying him
under the Quay System.
Defendants allege, inter alia, that, to the extent they are
sued in their official capacities, they are not "persons" subject
to suit under 42 U.S.C. § 1983. See Defendants' Motion for
Summary Judgment. It is true that the defendants cannot be sued
under section 1983 in their official capacities. See Will v .
Michigan Dep't of State Police, 491 U.S. 5 8 , 71 (1989); Wilson v .
11 Brown, 889 F.2d 1195, 1197 (1st Cir. 1989) (court dismissed
section 1983 claim when prisoner sought monetary damages against
warden in his official capacity). On the other hand, plaintiff
has brought this suit against these defendants, not only in their
official capacities, but in their individual capacities as well.
Thus, as individuals who act under color of state law, these defendants would qualify as "persons" from whom the plaintiff may
recover under section 1983. See Hafer v . Melo, 502 U.S. 2 1 , 27
(1991) ("officers sued in their personal capacity [in a section
1983 suit] come to the court as individuals . . . [and] thus
fit[] comfortably within the statutory term 'person'").
a. Eighth Amendment
It is inappropriate for this court to consider whether
defendants violated the Laaman Consent Decree. First, "[n]ot
every breach of prison regulations will give rise to an Eighth
Amendment claim." DesRosiers v . Moran, 949 F.2d 15, 21 (1st Cir.
1991). Moreover, "[a] consent decree is negotiated by the
parties [who agree to it] and may be extremely detailed and
provide relief far beyond constitutional requirements." DeGidio
v . Pung, 920 F.2d 525, 534 (8th Cir. 1990). As a result, not
only would governmental authorities be discouraged from entering
into such decrees if violations were actionable under section
12 1983, but it would also be unfair to the parties to the consent
decree if the courts engaged in this type of analysis. See id.
Accordingly, the appropriate action for enforcement of a consent
decree is not a section 1983 action, but an action for contempt.
See Martel v . Fridovich, 14 F.3d 1, 3 n.4 (1st Cir. 1993) (citing
DeGidio, supra, 920 F.2d at 534; Green v . McKaskle, 788 F.2d 116,
1123 (5th Cir. 1986)).
According to the Eighth Amendment, government officials9 may
not inflict cruel and unusual punishment upon individuals. See
U . S . CONST. amend. V I I I . Specifically, it is official
punishments that are incompatible with "'the evolving standards
of decency'" of a modern society which violate the Eighth
Amendment. See Estelle, supra, 429 U . S . at 102 (quoting Trop v .
Dulles, 356 U . S . 86, 100-01 (1958)).
Under the Eighth Amendment, prison officials do have a duty
to protect prisoners from other prisoners who are violent; if
officials "intentionally place prisoners in dangerous
surroundings" or "are
prisoners' health or safety, they violate the Constitution."
Cortes-Quinones v . Jimenez-Nettleship, 842 F.2d 556, 558 (1st
Cir. 1988), cert. denied, 488 U . S . 823 (1988) (prison officials
9 The Eighth Amendment is applicable to state officials through the Fourteenth Amendment. See Robinson v . California, 370 U.S. 660, 666, reh'g denied, 371 U.S. 905 (1962). 13 violated Eighth Amendment when they were deliberately indifferent
to health and safety needs of psychiatric inmate killed in
overcrowded prison). The standard of deliberate indifference
requires the court to engage in a two-part inquiry which has an
objective component and a subjective component. See DesRosiers,
supra, 949 F.2d at 1 8 . To satisfy the objective component, a plaintiff must show
that defendants' actions resulted in a "sufficiently serious
deprivation" to the plaintiff. See DesRosiers, supra, 949 F.2d
at 1 8 . The Supreme Court has emphasized that "extreme
deprivations are required to make out a[n] [Eighth Amendment]
conditions -of-confinement claim." Hudson v . McMillian, 503 U.S.
1, 9 (1992) (contrary to confinement condition cases, the
seriousness of an inmate's injury is not a determinating factor
in excessive force cases). Because the Constitution "'does not mandate comfortable prisons,'" it is only those deprivations that
deny "'the minimal civilized measure of life's necessities'" that
are severe enough to implicate the Eighth Amendment. See Wilson,
supra, 501 U.S. at 298 (quoting Rhodes v . Chapman, 452 U.S. 337,
349, 347 (1981)) (no Eighth Amendment violation, even though
prison housed 38 percent more prisoners than its design capacity,
because overcrowding did not increase violence or lead to
deprivations of essential food, medical care, sanitation, or
14 other intolerable conditions of confinement). As a result,
plaintiff must prove he suffered a serious deprivation of basic
human necessities to implicate the Eighth Amendment in this case.
Based upon the record before the court, plaintiff claims
that defendants' actions caused him to suffer two "serious
deprivations:" (1) the change of his Quay classification and (2)
the denial by officials of a reasonably safe prison
environment.10 As to his first claim, based upon previous cases
involving conditions-of-confinement claims, the court cannot find
that a change in plaintiff's Quay classification would be a
serious deprivation of a basic human need. Because plaintiff
cannot satisfy this objective component of the deliberate
indifference test, our analysis as to this claim of deprivation
ends here.
As to Melvin's second deprivation claim, one of the basic
human needs of inmates is reasonable safety. See Helling v .
McKinney, 509 U.S. 25, 33 (1993) (nonsmoking inmate who
complained of exposure to second-hand smoke could satisfy Eighth
Amendment objective test by proving his exposure to smoke caused
10 It is unclear whether plaintiff claims that officials denied him appropriate mental health care in violation of the Eighth Amendment. Because plaintiff has not adequately developed this claim, the court will not consider it at this time. If plaintiff would like to amend his complaint to develop this argument, he may do so; such amendment must be filed with the court before December 2 4 , 1998. 15 serious danger to his future health not tolerated by society). Thus plaintiff may be able to meet the requirements of the objective test if he has sufficient evidence that he was "incarcerated under conditions posing a substantial risk of serious harm." Farmer v . Brennan, 511 U.S. 825, 834 (1994).
Initially Melvin complained that his safety was threatened on F-Pod because F-Pod inmates Pete Provencher and Leon Evans had allegedly threatened to stab him seven years earlier in 1990. Despite these alleged threats, there is no evidence that these prisoners caused any trouble to plaintiff after he was transferred to F-Pod. Plaintiff does not name either of these inmates as the assailant who allegedly punched him, and there is no evidence that these particular inmates continued to threaten plaintiff once he was transferred to F-Pod or that these inmates made any effort to carry out their alleged threats.
Despite the lack of evidence supporting Melvin's position that Pete Provencher and Leon Evans threatened his safety while he was on F-Pod, there is evidence suggesting that other F-Pod inmates jeopardized plaintiff's safety while he was there. For instance, after Melvin was transferred to F-Pod, he filed a number of grievances and letters to officials informing them that he had safety issues with other prisoners. NHSP prisoners and
16 prison officials acknowledge that inmates on F-Pod are more
aggressive than those on E-Pod.
Melvin also filed requests to see the mental health
counselor, Aquizap, complaining of emotional distress after his
transfer to F-Pod. It was not until he moved to F-Pod that he
claimed to suffer from emotional distress and Vietnam flashbacks, which could suggest to a jury that Melvin's mental problems
stemmed from unreasonably dangerous conditions on F-Pod.
Finally, there is evidence that Melvin was robbed while on
F-Pod and had a tooth knocked out by another inmate, which would
also support his theory that he lived in unreasonably dangerous
conditions on F-Pod. Thus, based on the evidence before the
court, plaintiff may be able to prove to a jury that his living
conditions were unreasonably dangerous, which would satisfy the
objective component of the deliberate indifference test. Although a jury could find that plaintiff's safety was
unreasonably threatened by his transfer to F-Pod, plaintiff still
must satisfy the subjective part of the deliberate indifference
test. Because "'[t]he infliction of punishment is a deliberate
act intended to chastise or deter,'" Wilson, supra, 501 U.S. at
300 (quoting Duckworth v . Franzen, 780 F.2d 645, 652 (7th Cir.
1985)), and not "every injury suffered by one prisoner at the
hands of another . . . translates into constitutional liability
17 for prison officials responsible for the victim's safety,"
Farmer, supra, 511 U.S. at 834, a mens rea evaluation of
officials is essential to the court's Eighth Amendment analysis.
Thus this part of the deliberate indifference test requires the
court to evaluate the officials' state of mind before and after
they transferred Melvin to F-Pod. Deliberate indifference requires a state of mind that is
"more blameworthy than negligence." Farmer, supra, 511 U.S. at
835. Additionally, failure by officials to alleviate a
significant risk that officials should have perceived but did not
cannot meet the level of knowledge required for the court to find
an Eighth Amendment violation. See id. at 838. According to the
deliberate indifference standard, prison officials may only be
held liable for denying humane living conditions if they know
that inmates face a substantial risk of serious harm and disregard that risk by failing to take reasonable measures to
abate it. See id. at 847.
Although a plaintiff must show that prison officials had
knowledge of a substantial risk, he may rely on circumstantial
evidence to show such knowledge. If a plaintiff presents
evidence showing a substantial risk of attacks that was
"longstanding, pervasive, well-documented, or expressly noted by
prison officials in the past," and the defendants being sued were
18 aware of this information, a jury could infer that the defendants
had actual knowledge of the risk to the prisoner. See id. at
842.
On the other hand, good faith on the defendants' part can
immunize them against liability. For instance, [p]rison officials charged with deliberate indifference might show, for example, that they did not know of the underlying facts indicating a sufficiently substantial danger and that they were therefore unaware of a danger, or that they knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent. In addition, prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.
Id. at 844.
Considering all the evidence before the court, Melvin cannot
prove that defendants knew he faced a substantial risk of serious
harm because of his transfer to F-Pod and disregarded that risk
by failing to take reasonable measures against it. The court
comes to this conclusion based upon evidence both before and
after plaintiff's transfer to F-Pod.
Melvin cannot prove that defendants knew prior to their
transferring him to F-Pod that such transfer would create a
substantial risk to him. He claims that defendants changed his
Quay classification prior to the transfer because they wanted to
19 punish him by placing him on F-Pod, where they knew he would be abused by other inmates. Contrary to plaintiff's contention, his Quay classification was not changed from Prey to Normal for the purpose of transferring him from E-Pod to F-Pod; such change occurred in March 1995, two full years before the transfer.
In addition, Melvin claims defendants wanted to punish him (by moving him to F-Pod) because he complained that Officer Barnett read his mail. When plaintiff discussed his complaint with defendant Sokolow, Sokolow agreed to discuss the issue with Officer Barnett. Contrary to plaintiff's allegations, it hardly seems plausible that officials would retaliate against plaintiff just because he complained that Officer Barnett read his mail. On the other hand, there is credible evidence that defendants transferred plaintiff to F-Pod, not for punishment purposes, but because of their suspicions that he was operating an illegal canteen operation on E-Pod that posed a security threat to inmates on E-Pod. This legitimate concern for the institution's safety undermines plaintiff's position that the only reason defendants transferred him to F-Pod was to retaliate against him.
Finally, before officials transferred Melvin to F-Pod, they did not have any other evidence besides plaintiff's allegations that other F-Pod inmates had previously threatened him. For instance, plaintiff alleged that he received physical threats
20 from particular F-Pod inmates seven years earlier, yet these threats had never been acted upon by these inmates within the PCU during any of the combined activities of the two pods. Thus, even if these threats were made, officials would have no reason to believe they would actually be carried out once plaintiff was transferred to F-Pod. Based on all of this evidence, plaintiff cannot prove that officials were aware of underlying facts indicating a substantial risk to Melvin before they transferred him to F-Pod.
Based upon his grievances and letters to prison officials, even if plaintiff could prove that defendants became aware of potential risk to him after he was transferred to F-Pod, he cannot prove that they ignored this risk or acted unreasonably in addressing it. On the other hand, there is evidence that once officials became aware of some risk to plaintiff on F-Pod, they took measures to abate it. For instance, defendants investigated and responded to all of plaintiff's grievances, even though he only made general comments to officials in his grievances regarding his safety on F-Pod.11 Brodeur and Cunningham responded to plaintiff's grievances by discussing them with
11 It is unclear whether any of the defendants were informed of plaintiff's letter to Officer Gauthier on April 9, 1997, see infra at 5, which did state more specifically how plaintiff felt threatened on F-Pod. 21 Sokolow, who had the opportunity to observe plaintiff on a daily
basis. Sokolow did not observe any safety problems between
plaintiff and other F-Pod inmates, and relayed this information
to these other officials. Additionally, when officials
discovered that Melvin had been assaulted by another F-Pod inmate
(one month after the assault, based upon information plaintiff relayed to Officer Drew), they responded reasonably to this risk
by removing plaintiff from F-Pod and investigating his safety
concerns. This evidence suggests that when defendants became
aware of a potential risk to plaintiff once he was on F-Pod, they
took appropriate steps to alleviate that risk. As long as
defendants responded reasonably to the known risk, they will not
be considered to have been deliberately indifferent to
plaintiff's safety, even if they could not prevent harm to him.
See Farmer, supra, 511 U.S. at 844. Accordingly, plaintiff has not met his burden to prove deliberate indifference on the part
of defendants.
b. Due Process
Melvin claims that when defendants transferred him to F-Pod,
they punished him without due process in violation of the
Fourteenth Amendment, which provides in part that no state shall
"deprive any person of life, liberty or property, without due
22 process of the law." U . S . CONST. amend. X I V , § 1 . In
determining whether this plaintiff has received appropriate
procedural due process under the Fourteenth Amendment, the court
considers the following two issues: (1) Does plaintiff have a
liberty or property interest with which the state has interfered?
(2) If such an interest does exist, were the procedures provided by the state regarding the deprivation of that interest
constitutionally sufficient? See Kentucky Dep't of Corrections
v . Thompson, 490 U . S . 454, 459-60 (1989). Although plaintiff has
not specified exactly the type of interest implicated in his
Fourteenth Amendment claim, because of Melvin's pro se status,
the court will consider his claim based upon a liberty interest
to remain on E-Pod.
Liberty interests protected by the Fourteenth Amendment can
arise from only two sources, the United States Constitution or the laws of the states. See Hewitt, supra, 459 U . S . at 466. In
regard to constitutionally created liberty interests within the
prison setting, the Supreme Court has emphasized that "'[a]s long
as the conditions or degree of confinement to which the prisoner
is subjected is within the sentence imposed upon him and is not
otherwise violative of the Constitution, the Due Process Clause
does not in itself subject an inmate's treatment by prison
authorities to judicial oversight.'" See Hewitt, supra, 459 U . S .
23 at 468 (quoting Montayne v . Haymes, 427 U.S. 236, 242 (1976),
cert. denied, 431 U.S. 967 (1977)); Sandin, supra, 515 U.S. at
482 (1995) ("federal courts ought to afford appropriate deference
and flexibility to state officials trying to manage a volatile
[prison] environment"). More specifically, the Court has
determined that "no Due Process Clause liberty interest of a duly convicted prison inmate is infringed when he is transferred . . .
within the State [prison system]," whether he has a hearing or
not. See Montayne, supra, 427 U.S. at 242 (prisoner had no right
to remain at any particular prison, even though he was not found
guilty of misconduct). Accordingly, plaintiff did not have a
constitutionally created liberty interest to remain on E-Pod.
Although plaintiff's transfer did not involve a liberty
interest created by the Constitution, his Fourteenth Amendment
claim could still survive if state law creates a liberty interest for him in regard to his transfer. State-created interests only
implicate the Due Process Clause when they protect prisoners from
a restraint which "imposes atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life."
Sandin, supra, 515 U.S. at 483. For instance, the Court has
ruled that a state discipline that confined a prisoner in
segregation for thirty days "did not present the type of
atypical, significant deprivation in which a State might
24 conceivably create a liberty interest." Sandin, supra, 515 U.S. at 486. Although Melvin discusses various procedures within NHSP's inmate manual regarding prison discipline, this court cannot find any evidence of state law that would take away the discretionary power of prison officials to transfer inmates to other pods within the same unit of a prison. Furthermore, even though plaintiff was transferred from E-Pod to F-Pod, he still remained within the Protective Custody Unit, and therefore his privileges and treatment by officials should not have changed substantially after the transfer. Thus the court finds that plaintiff's transfer to F-Pod did not cause him such an "atypical hardship" within the prison as to implicate any liberty interest that could even be created by state law.
3. State-Law Claim
Because the court has dismissed the federal claims, it
declines to hear this case based solely upon plaintiff's state-
law claim of negligence. See 28 U.S.C. § 1367(c) (1998)
(authorizing district court to decline jurisdiction after it has
dismissed "all claims over which it has original jurisdiction").
It is not uncommon for a court to decline jurisdiction under
these circumstances because the balance of competing
25 jurisdictional factors "weigh[s] strongly in favor of declining
jurisdiction over state law claims where foundational federal
claims have been dismissed at an early stage in the litigation."
Camelio v . American Fed'n, 137 F.3d 666, 672 (1st Cir. 1998).
Conclusion
For the abovementioned reasons, defendants' motion for summary judgment (document 37) is granted as to all federal claims. The remaining state claim of negligence is dismissed without prejudice. If plaintiff wishes to amend his complaint to include an Eighth Amendment claim regarding his medical care after he was transferred to F-Pod, the court grants him leave to do so. If such an amendment is not filed by December 2 4 , 1998, this case will be closed.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
December 8, 1998
cc: David Melvin, pro se Daniel J. Mullen, Esq.