Oropallo v. Parrish CV-93-309-B 09/08/95
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Charles J. Oropallo
v. Civil No. 93-309-B
Richard L. Parrish, et al
O R D E R
Charles J. Oropallo seeks damages as well as injunctive and
declaratory relief against defendant prison officials and inmates
for allegedly violating his civil rights.1 Specifically, he
alleges that defendants retaliated against him for filing
grievances in violation of his rights under the First Amendment.
He also asserts several other claims based on the New Hampshire
Constitution. Defendants have moved to dismiss alleging inter
alia that the complaint fails to state a claim. For the
1 The following prison officials and inmates are named as defendants: Richard L. Parrish, prison official, John Doe #1, inmate, John Doe #2, inmate, Loran Ackerman, prison official, Michael J. Cunningham, Warden, Ronald L. Powell, Commissioner of the New Hampshire Department of Corrections, Viola J. Lunderville, Administrator of Security, Donald G. Robb, prison employee, George R. Sasser, prison employee, and Ronald Patrick, staff member in the Recreation Department. following reasons, I grant defendants' motion.
I. BACKGROUND
A. Factual Background2
Since March 1985, Oropallo has been incarcerated in the New
Hampshire State Prison. For approximately three years, he worked
in the prison's recreation department, but in February 1991 he
was terminated from his position. Just prior to his termination,
Oropallo filed two complaints against the prison with the
Department of Corrections (hereinafter "prison complaints"). The
complaints related to missing wood in the hobbycraft shop and
damage to Oropallo's lamp in the shop.3 Lunderville, the
Administrator of Security, investigated both complaints and
recommended dismissal. In June 1991, the prison claims were
2 When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), I must "accept the factual averments of the complaint as true, and construe these facts in the light most favorable to the plaintiff's case." PFZ Properties, Inc. v. Rodriquez, 928 F.2d 28, 29 (1st Cir. 1991) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), cert, dismissed, 503 U.S. 257 (1992). I recount the facts with this standard in mind.
3 Claim # 91-31-DOC sought damages in the amount of $42.65 for wood that disappeared from his hobbycraft locker. Claim # 91-32-DOC sought compensation in the amount of $29.00 for damage to his lamp in the prison store.
2 heard before the claims officer. Oropallo was successful on one
claim, but not the other.
Shortly after Oropallo filed the prison complaints, Parrish
initiated a major disciplinary hearing against Oropallo charging
him with possession of state owned property in his hobbycraft
locker.4 The same day, Parrish instituted a ban barring Oropallo
from the North Yard. The effect of the ban was to preclude
Oropallo from using any of the recreational facilities in the
North Yard including the gymnasium, the hobbycraft shop, and the
ball field.
After investigating the disciplinary report, the head of the
New Hampshire State Prison's Investigation Department dropped the
allegations. However, Lunderville later ordered the hobbycraft
shop foreman to write another disciplinary report based on the
same allegations. Oropallo received a hearing on this second
report and was found guilty. This finding was upheld by Michael
Cunningham, the prison Warden, and Ronald Powell, the
Commissioner of the New Hampshire Department of Corrections.
In April and May of 1992, Oropallo was prevented from
4 The report stated that Oropallo placed a state owned screwdriver in his hobbycraft locker.
3 attending a jazz concert and a power lifting event, both taking
place in the North Yard. In addition, he attempted to access the
print shop to staple his legal papers and was denied access to
the yard where the print shop is located.5 Oropallo attempted to
determine why he had been barred from the yard and guestioned the
inmates' attorney, the warden, and Powell. While Powell
disavowed any knowledge of a ban, Ackerman indicated that
Cunningham had ordered Oropallo barred from the North Yard.
Oropallo alleges that these actions were taken against him in
retaliation for filing the prison complaints.
B. Oropallo's Cases Before this Court
On August 7, 1991, Oropallo filed suit to challenge the
conditions of his confinement. He filed an amended complaint on
January 30, 1992. See Oropallo v. Powell et al.. No. 91-339-M
(D.N.H. March 31, 1994) (hereinafter Oropallo I) .6 The complaint
alleged violations of the First, Fourth, Fifth, Sixth, Eighth,
5 At the end of May 1992, Oropallo's legal materials were confiscated. That action by the prison is the subject of a separate action filed by Oropallo on April 19, 1993. Oropallo II, 1st Compl. 5 28; Appendix at 19.
6 Oropallo originally filed this action pro se, but at the time of the court's consideration of the complaint and the motion to dismiss, Oropallo was represented by counsel. Oropallo I, slip op. at 1.
4 and Fourteenth Amendments to the United States Constitution, as
well as various state law claims, arising from events beginning
in 1985 through the time of filing the amended complaint in 1992.
Id. Among the matters that formed the basis for the complaint
was Oropallo's claim that he had been wrongly prevented from
participating in recreational activities in the prison's North
Yard. The court dismissed the amended complaint for failure to
state a claim on March 31, 1994. Id. Oropallo subseguently
appealed the dismissal to the First Circuit Court of Appeals.
On June 8, 1993, Oropallo, acting pro se, filed his first
complaint in the present action, alleging various state and
federal constitutional violations. Subseguently, I adopted the
report and recommendation of the magistrate judge and ordered
that the complaint be dismissed for failure to state a claim.
See Oropallo v. Parrish et al.. No. 93-309-B (D.N.H. Aug. 9,
1993) (hereinafter Oropallo II) . Oropallo appealed that
dismissal and the First Circuit reversed my order in part.
Specifically, the First Circuit found that Oropallo might be able
to claim that he had been subjected to unlawful retaliation for
filing certain lawsuits. Accordingly, it remanded the case with
instructions to allow Oropallo to file a second amended complaint
5 alleging unlawful retaliation. See Oropallo v. Parrish et al..
No. 93-1953, slip op. at 10-11 (1st Cir. May 5, 1994).7 Pursuant
to the First Circuit's opinion, Oropallo filed a second amended
complaint on July 20, 1994. Defendants' motion to dismiss that
complaint is now before me.
II. DISCUSSION
Defendants' motion states a myriad of arguments in favor of
dismissal.8 I conclude that: (1) Oropallo's claims against
defendants Parrish, Cunningham, Powell, Lunderville, and Patrick
should be dismissed because they are barred by res judicata; and
(2) Oropallo's claims against the remaining defendants should be
dismissed because they fail to state viable retaliation claims.
7 The First Circuit affirmed dismissal of Oropallo's procedural due process claim. Eighth Amendment claim, and egual protection claim. In addition, the court noted that Oropallo did not challenge the dismissal of his § 1985 claim and, therefore, deemed that claim waived. Thus, although Oropallo reasserts the § 1985 statute as a basis for his present complaint, I do not address it.
8 Defendants argue that (1) Oropallo failed to amend his complaint in conformity with the First Circuit directives; (2) Oropallo's amended complaint fails to state a cause of action for retaliation; (3) Oropallo's claims are barred by res judicata and collateral estoppel; (4) the defendants have sovereign immunity under the Eleventh Amendment; and (5) the defendants are entitled to gualified immunity.
6 In light of these rulings, I need not address the parties' other
arguments.9
A. Standard of Review
In considering a motion to dismiss for failure to state a
claim, I apply the following standard of review: "a complaint
should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief."
Conley v. Gibson, 355 U.S. 41, 45-46 (1957); accord Berniqer v.
Meadow Green-Wildcat Corp., 945 F.2d 4, 6 (1st Cir. 1991) . In
making this determination, I accept the truth of the facts
alleged in the complaint and give the plaintiff the benefit of
"every reasonable inference helpful to the plaintiff's cause."
Garita Hotel, Ltd. Partnership v. Ponce Fed. Bank, F.S.B., 95 8
F.2d 15, 17 (1st Cir. 1992). Although I ordinarily will confine
my review to the facts alleged in the complaint, I am also free
to consider matters in the court record where necessary to
9 I also dismiss the complaint as far as it alleges retaliation by John Doe #1 and John Doe #2 because Oropallo fails to allege any facts which demonstrate that these defendants acted "under color of state law" in depriving him of his First Amendment rights. See 42 U.S.C.A. § 1983 (West 1994).
7 evaluate a res judicata claim. See Day v. Moscow, 955 F.2d 807,
811 (2d Cir.), cert, denied, 113 S. C t . 71 (1992).
B. The Doctrine of Res Judicata10
Under the doctrine of res judicata, or claim preclusion, "a
final judgment on the merits of an action precludes the parties
or their privies from relitigating issues that were or could have
been raised in that action." Allen v. McCurry, 449 U.S. 90, 94
(1980); Gonzalez, 27 F.3d at 755. The essential elements of
claim preclusion are: (1) a final judgment on the merits in an
earlier action; (2) an identity of parties or privies in the two
suits; and (3) an identity of the cause of action in both the
earlier and later suits. Kale v. Combined Ins. Co., 924 F.2d
1161, 1165 (1st Cir.), cert, denied, 502 U.S. 816 (1991). I
address each element in turn.
1. Final Judgment on the Merits
"[DJismissal for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6) is a 'judgment on the merits,'" thus
barring a subseguent suit on the same claim. Federated Pep't
10 Because the preclusive effect of a prior federal action is at issue, I apply federal principles of res judicata. Gonzalez v. Banco Central Corp., 27 F.3d 751, 755 (1st Cir. 1994) . Stores, Inc. v. Moitie, 452 U.S. 394, 400 n.3 (1981) (citing
Angel v. Bullinqton, 330 U.S. 183, 190 (1947); Bell v. Hood, 327
U.S. 678 (1946)). Notwithstanding the general rule, Oropallo
claims that Oropallo I is not a final judgment because it has
been appealed. The federal rule, however, is that the pendency
of an appeal does not alter the res judicata effect of an
otherwise final judgment on the merits. In re Ewing, 852 F.2d
1057, 1060 (8th Cir. 1988); accord IB James Wm. Moore et al.,
Moore's Federal Practice, 5 0.416[3.-2] (2d ed. 1995) (citing
Huron Holding Corp. v. Lincoln Mine Operating Co., 312 U.S. 183,
189 (1941); Commodities Export Co. v. United Customs Serv., 957
F.2d 223, 228 (6th Cir. 1992); United States v. International Bd.
of Teamsters, 905 F.2d 610, 621 (2d Cir. 1990)). Thus,
plaintiff's appeal of Oropallo I does not affect its status as a
final judgment.
2. Identity of the Parties
Defendants Parrish, Cunningham, Powell, Lunderville, and
Patrick were named as parties in both Oropallo I and the present
action. Therefore, with respect to these defendants, there is
clearly an identity between the parties in the two suits. Kale,
924 F .2d at 1165-66.
9 Defendants assert without explanation or proof that the
other defendants, Ackerman, Sasser, and Robb, are in privity with
the defendants named in the prior action. I conclude that this
assertion is insufficient to meet their burden at the summary
judgment stage since they bear the burden of proof at trial for
this affirmative defense. See Fed. R. Civ. P. 56.
3. Identity of the Causes of Action
"To determine whether sufficient subject matter identity
exists between an earlier and a later suit, federal courts employ
a transactional approach." Gonzalez, 27 F.3d at 755 (citations
omitted); accord Manego v. Orleans Bd. of Trade, 773 F.2d 1, 5
(1st Cir. 1985), cert. denied., 475 U.S. 1084 (1986). Thus,
under this approach, a valid and final judgment in a prior action
extinguishes any subseguent claims based on "any part of the
[same] transaction, or series of connected transactions."
Gonzalez, 27 F.3d at 755 (guoting Manego, 773 F.2d at 5); accord
Restatement (Second) of Judgments § 24 (1982). A single
transaction or series of transactions often gives rise to many
claims. Gonzalez, 27 F.3d at 755. "It follows that the omission
of a particular statement of claim from the original suit is of
no great conseguence; if the transaction is the same and the
other components of the test are satisfied, principles of res
10 judicata will bar all claims that either were or could have been
asserted in the initial action." Gonzalez, 27 F.3d at 756.
Whether related facts constitute a single "transaction"
is determined pragmatically, giving weight to such considerations
as whether the underlying facts were the same or substantially
similar. Kale, 924 F.2d at 1166; Manego, 773 F.2d at 6; and
whether the suits seek redress for "essentially the same alleged
wrong," Aunyx Corp. v. Canon U.S.A., Inc., 978 F.2d 3, 8 (1st
Cir. 1992), cert, denied, 113 S. C t . 1416 (1993). Additionally,
weight should be given to relevant factors such as closeness in
"time, space, origin, or motivation, whether [the suits] form a
convenient trial unit, and whether their treatment as a unit
conforms to the parties' expectations." Restatement (Second) of
Judgments § 24.
Based on this criteria, I conclude that the two actions are
sufficiently identical to satisfy the res judicata standard. The
prior complaint details the same events as the complaint in the
present action. In both cases, Oropallo sets forth the following
facts as examples of the retaliation he suffered. First, he
alleges that his position in the recreation department was
threatened. Compare Second Amended Complaint, 55 5-8, with
Exhibit C, 5 61. Second, Oropallo alleges that his physical
11 well-being was threatened. Compare Second Amended Complaint, 5
6, with Exhibit C, 5 59m. Third, he alleges he was wrongfully
found guilty of concealing contraband in his locker. Compare
Second Amended Complaint, 55 9-12, 15-16, 18, with Exhibit C, 55
69a-70a, 72-78. Finally, Oropallo claims he was banned from
participating in recreational activities. Compare Second Amended
Complaint, 55 13-14, 17, 19-26, with Exhibit E, page 67. Because
all of these events occurred before or during Oropallo I, he
could have brought his retaliation and state constitutional
claims in the prior action. Further, because Oropallo was
represented by counsel in the prior action, it is not
unreasonable to foreclose Oropallo from litigating his present
claims which could have been raised by his attorney in the prior
suit either initially or through amendment prior to dismissal.11
C. Failure to State a Claim Against the Remaining Defendants
Although a prison inmate does not have a constitutional
right to participate in recreational activities of his choice,
"[i]t is well established that conduct which is not otherwise
11 Oropallo's claim that many retaliatory acts occurred after final judgment in Oropallo I is without merit. Final judgment in Oropallo I was entered in April 1994. Oropallo cites no actions by the defendants which occurred after that date.
12 constitutionally deficient is actionable under 42 U.S.C. § 1983
if done in retaliation for the exercise of constitutionally
protected First Amendment freedoms." Oropallo v. Parrish, No.
93-1953, slip op. at 9 (citing Ferranti v. Moran, 618 F.2d 888,
892 n.4 (1st Cir. 1980); McDonald v. Hall, 610 F.2d 16, 18 (1st
Cir. 1979)); accord Beauchamp v. Murphy, 37 F.3d 700, 710 (1st
Cir. 1994) (Bownes, J., dissenting), cert, denied, 115 S. C t .
1365 (1995). Oropallo has a right under the First Amendment to
"petition the government for a redress of grievances" and he
exercised that right when he filed two complaints with the
department of corrections. If, as he claims, he has been
subjected to retaliation for the exercise of that right, he is
entitled to the relief he seeks. Burgess v. Moore, 39 F.3d 216,
218 (8th Cir. 1994) ("a threat of retaliation is sufficient
injury if made in retaliation for an inmate's use of prison
grievance procedures"); Franco v. Kelly, 854 F.2d 584, 589 (2d
Cir. 1988). However, while the standard for stating a cause of
action for retaliation is very liberal, McDonald, 610 F.2d at 18,
particularly for pro se litigants, see Estelle v. Gamble, 429
U.S. 97, 106 (1976), a plaintiff must, nevertheless, aver a
"chronology of events" which warrants an inference of
retaliation. Ferranti, 618 F.2d at 892; see also McDonald, 610
13 F.2d at 18. The inference must be that the action taken was done
for the purpose of retaliating against the prisoner and would not
have occurred but for that purpose. McDonald, 610 F.2d at 18.
In addition, "a plaintiff must establish defendant's personal
responsibility for the claimed deprivation of a constitutional
right." Smith v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985)
(internal guotations and citations omitted).
1. Defendants Robb and Sasser
Oropallo alleges that on May 22, 1992, Robb prohibited him
from entering the North Yard for the purpose of stapling his
legal materials during the morning count and directed him to
return after the count was completed. 2d Am. Compl. 5 21. When
Oropallo returned after the count, Sasser informed him that he
could not enter the North Yard because the investigations
department had banned him from that area. Id.
There are no allegations or facts supporting an inference
that Robb was doing anything more than enforcing a prison
administrative rule. There is nothing to indicate that he was
personally involved in the ban or that he prevented Oropallo from
entering the yard for that reason.
In addition, the brief statement concerning Sasser's actions
does not provide any basis to infer that he was retaliating
14 against Oropallo for the prison complaints. According to the
complaint, Sasser informed Oropallo that the investigations
department had issued the ban. Sasser followed that department's
directive in prohibiting Oropallo's access to the yard.
There is not a sufficient nexus between these actions and the
complaints Oropallo filed to support a conclusion that Sasser
entertained a retaliatory motive. Therefore, I grant defendants'
motion to dismiss for failure to state a claim with respect to
defendants Ackerman, Robb, and Sasser.
2. Defendant Ackerman
Oropallo states in his original complaint in this action
that shortly after he guestioned prison officials concerning his
ban from the North Yard, Ackerman confiscated his legal
materials. Compl. at 5 28. He also states that this act by
Ackerman is the subject of another suit in this court. Id.; see
Oropallo v. Ackerman, Civil No. 93-cv-209-SD (claiming violation
of his right to access to the courts). Although these actions by
Ackerman may be in retaliation for Oropallo's inguiries about the
North Yard ban, whether these allegations support a cause of
action is most appropriately addressed in that other litigation
dealing with this transaction. Accordingly, this claim is
dismissed without prejudice.
15 3. The State Constitutional Claims
I dismiss the remaining state claims against Robb, Sasser
and Ackerman without prejudice because I decline to exercise my
discretion to retain supplemental jurisdiction over those claims
after dismissing the federal cause of action. See 28 U.S.C.A. §
1367 (West 1993) .
III. CONCLUSION
For the foregoing reasons, I grant defendants' motion to
dismiss and/or for summary judgment (document no. 29).
SO ORDERED.
Paul Barbadoro United States District Judge
September 8, 1995
cc: Charles J. Oropallo, pro se Lucy C. Hodder, Esg.