Pratt v . NH DOC, et a l . 05-CV-367-SM 11/07/07 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Harvey Pratt, Plaintiff
v. Civil N o . 05-cv-367-SM Opinion N o . 2007 DNH 136
N.H. Dep’t of Corrections, et a l . , Defendants
O R D E R
Pro se plaintiff, Harvey Pratt, is a former inmate at the
New Hampshire State prison. He brings this action against the
New Hampshire Department of Corrections (the “DOC”) and more than
30 individuals (most of whom are DOC employees). After reviewing
Pratt’s complaint, the Magistrate Judge concluded that it set
forth six viable federal claims, as well as state law claims for
libel, slander, defamation, and negligence. Those federal claims
are: (1) Fourteenth Amendment due process claims arising from
Pratt’s disciplinary proceedings; (2) First and Fourteenth
Amendment retaliation claims; (3) Fourteenth Amendment due
process claims arising from Pratt’s classification as a “sex
offender;” (4) an Eighth Amendment claim for denial of adequate
medical care; (5) a Fourteenth Amendment right to privacy claim
arising out of the alleged disclosure of Pratt’s confidential medical information; and (6) a supervisory liability claim
against five of the defendants. Report and Recommendation
(document n o . 1 0 ) , 2006 WL 995121 (D.N.H. March 3 1 , 2006) (the
“Report and Recommendation”).
Subsequently, Pratt filed an amended complaint, but it does
not appear to set forth any additional viable claims. Defendants
have organized their motion for summary judgment in a manner that
is consistent with the Magistrate Judge’s original construction
of plaintiff’s claims, addressing each of the viable federal
causes of action identified in the Report and Recommendation.
Pratt objects to defendants’ motion, but does not suggest that
his amended complaint advances any new causes of action.
For the reasons set forth below, defendants’ motion is
granted.
Standard of Review
When ruling on a party’s motion for summary judgment, the
court must “view the entire record in the light most hospitable
to the party opposing summary judgment, indulging all reasonable
inferences in that party’s favor.” Griggs-Ryan v . Smith, 904
F.2d 1 1 2 , 115 (1st Cir. 1990). Summary judgment is appropriate
2 when the record reveals “no genuine issue as to any material fact
and . . . the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c). In this context, “a fact is
‘material’ if it potentially affects the outcome of the suit and
a dispute over it is ‘genuine’ if the parties’ positions on the
issue are supported by conflicting evidence.” Int’l Ass’n of
Machinists & Aerospace Workers v . Winship Green Nursing Ctr., 103
F.3d 196, 199-200 (1st Cir. 1996) (citations omitted).
Nevertheless, if the non-moving party’s “evidence is merely
colorable, or is not significantly probative,” no genuine dispute
as to a material fact has been proved, and “summary judgment may
be granted.” Anderson v . Liberty Lobby, Inc., 477 U.S. 2 4 2 , 249-
50 (1986) (citations omitted). The key, then, to defeating a
properly supported motion for summary judgment is the non-
movant’s ability to support his or her claims concerning disputed
material facts with evidence that conflicts with that proffered
by the moving party. See generally Fed. R. Civ. P. 56(e). It
naturally follows that while a reviewing court must take into
account all properly documented facts, it may ignore bald
assertions, unsupported conclusions, and mere speculation. See,
e.g., Serapion v . Martinez, 119 F.3d 9 8 2 , 987 (1st Cir. 1997).
3 Background
I. Pratt’s Underlying Criminal Conviction.
Because Pratt challenges numerous aspects of his underlying
criminal conviction, and because some of his federal claims arise
out of his assertion that prison officials improperly “labeled”
him as a “sexual offender,” it is probably appropriate to briefly
outline the facts and circumstances surrounding his conviction.
Those facts were disclosed in Pratt’s earlier petition for habeas
corpus relief. The court (DiClerico, J.) there provided the
following summary:
Pratt met Jamie B[.] through the Internet. Jamie said that she was sixteen, when she was actually fourteen, and Pratt was thirty-three. Pratt lived in Quincy, Massachusetts, and Jamie lived with her father and step-mother in Londonderry, New Hampshire.
On February 1 0 , 2000, Jamie called Pratt and told him she wanted to leave home and live with him. Pratt told her to get as far from home as possible and that he would pick her u p . Jamie hitchhiked from her home to the Mall of New Hampshire in Manchester. Pratt drove to Manchester and picked Jamie up at a K-Mart near the Mall.
Pratt drove Jamie to his apartment in Quincy. Jamie testified that Pratt gave her money, kissed her, discussed having sex with her, gave her beer and offered her other alcohol, and told her to tell his roommate and anyone else at the apartment that she was eighteen. He also offered Jamie his telephone to call home, but Jamie did not use i t . When Jamie’s father found she was missing, he contacted police. With information from Jamie’s step-sister, the police found Jamie at Pratt’s apartment. Jamie’s father drove to Quincy to pick her up and provided her computer to the
4 police who sent it to the Federal Bureau of Investigation for analysis.
Pratt was indicted in September of 2000 on one count of interference with custody. He was tried and found guilty on August 14-15, 2001. Pratt appealed on the ground that the evidence was insufficient to support his conviction. The New Hampshire Supreme Court affirmed his conviction without a published decision. Pratt then filed pro se motions to amend his sentence, for a new trial, and to quash the indictment. Counsel were appointed to represent Pratt on the motions to amend sentence and for a new trial, and the motion to amend sentence was granted on appeal. After a hearing, Pratt was resentenced, but his motions for a new trial and to quash the indictment were denied. The supreme court declined Pratt’s appeals.
Pratt v . Warden, Northern N.H. Correctional Facility, 2006 WL
1425963 at *1 (D.N.H. May 2 3 , 2006) (footnote omitted).
II. Classifying Pratt as a “Sexual Offender.”
When he filed this action, Pratt was serving a sentence of
two to six years in state prison. His original sentence provided
that, as a condition of his eligibility for parole, Pratt was
required to participate in the prison’s sexual offender program.
It also provided that he must participate in any other programs
prison officials deemed necessary or appropriate (though not
necessarily as a condition of parole eligibility). Upon entering
prison, Pratt was interviewed to determine whether he would
benefit from the sexual offender program. Based upon a review
5 o f , among other things, his crime of conviction and the
circumstances surrounding that conviction, prison officials
concluded that he was an appropriate candidate for the program
(despite the fact that he minimized his criminal conduct and was
not amenable to treatment).
Subsequently, Pratt appealed his sentence and prevailed in
having the court remove the requirement that he participate in
the sexual offender program as a condition of his eligibility for
parole. All other aspects of his sentence, including the
requirement that he participate in programming recommended by the
DOC, remained the same. Although Pratt’s amended sentence did
not specifically require him to participate in the sexual
offender program, DOC staff continued to recommend that he do s o .
Neither the DOC nor prison staff could, however, force Pratt to
participate.
Pratt alleges that DOC staff “classified” him as a “sexual
offender” which, in turn, caused him to suffer numerous hardships
during his incarceration. Among other things, the DOC’s alleged
classification of him as a sexual offender gives rise to Pratt’s
claims of defamation, libel, and slander. The DOC, on the other
hand, says it does not label or classify inmates as “sexual
6 offenders,” and, during the course of his incarceration, Pratt
was classified as a C-3 or medium custody inmate. Although Pratt
repeatedly requested DOC officials to remove from his file the
recommendation that he participate in the sexual offender
program, officials informed him that they would continue to make
that recommendation until he was re-evaluated by the director of
the sexual offender program. But Pratt repeatedly refused to
submit to such an evaluation.
In short, Pratt claims that because New Hampshire law does
not require him to register as a convicted sexual offender, see
N.H. Rev. Stat. Ann. (“RSA”) 651-B:1, I and V , prison officials
stigmatized him by recommending that he participate in the
prison’s sexual offender program and, in the process, violated
his Fourteenth Amendment rights.
III. Disciplinary Charges.
The various disciplinary incidents giving rise to Pratt’s
claims are described in detail in the Report and Recommendation
and need not be recounted. See id. at 4-17.
7 IV. Transfer to Berlin.
In October of 2004, Pratt was transferred from the State
Prison in Concord, New Hampshire, to the state’s Northern
Correctional Facility in Berlin, New Hampshire. Pratt claims he
was transferred in retaliation for having engaged in protected
conduct (that i s , either filing grievances within the prison
system or pursuing litigation against various DOC staff). DOC
officials, however, deny that Pratt’s transfer was retaliatory in
nature. Although she does not know exactly why Pratt was
transferred, Kimberly Lacasse, the DOC’s Director of
Classifications, testified that she believes it was because Pratt
was not participating in any prison programming and officials
wanted to free up bed space so other inmates (i.e., those who
wished to participate in such programming) could be moved to
Concord. Lacasse affidavit (document n o . 139-3) at para. 1 2 .
She i s , however, confident that Pratt was not moved in
retaliation for his litigation activities and testified that she
did not believe that she was even aware of Pratt’s litigation
activities when the transfer decision was made. Id.
V. Medical Treatment.
When Pratt was initially held at the Rockingham County Jail
in 2001, he tested positive for tuberculosis. When he was turned
8 over to the custody of the state prison, however, he refused any
additional testing for tuberculosis. Accordingly, the medical
staff ordered a chest x-ray, which was negative. At various
other points in time, Pratt came into contact with the medical
staff, complaining of various respiratory ailments. Those
contacts, as well as the treatment provided and diagnostic
testing ordered, are described in the affidavit of Judy Baker, a
Nurse Practitioner at the Northern Correctional Facility.
Exhibit K to defendants’ memorandum (document n o . 139-13). See
also Report and Recommendation at 36-38.
Pratt claims the medical treatment he received was so
deficient as to violate the Eighth Amendment’s prohibition
against cruel and unusual punishment. He also claims that D r .
Eppolito, a physician who provided Pratt with medical care,
violated his privacy rights. Specifically, Pratt says he sent a
request slip to D r . Eppolito, in a sealed envelope marked
“confidential,” seeking tests for HIV and tuberculosis. He
claims D r . Eppolito violated his privacy rights when he responded
to that request using the regular prison mail, without using a
sealed envelope.
9 Discussion
I. Pratt’s Classification.
Much of Pratt’s objection to summary judgment is devoted to
an attack upon his underlying conviction. See Plaintiff’s
objection (document n o . 146) at 1-2, 6-11. See also Exhibits 1-
4. Among other things, Pratt claims the statute under which he
was convicted was improperly applied to his case, and asserts
that the evidence introduced at trial was insufficient to sustain
a conviction. Such claims are, however, inappropriate in the
context of a 1983 suit. As Pratt well knows, any challenge to
his underlying state conviction must be raised in the context of
a habeas petition. In fact, Pratt already (unsuccessfully)
pursued both his state and federal habeas remedies. He cannot
attempt to relitigate those claims in the context of this case.
A. Pratt’s Constitutional Rights were not Violated.
Pratt’s claim that, despite his success in having his
original sentence modified, prison officials unlawfully continued
to recommend his participation in the sexual offender program
fares no better. In short, Pratt contends that because, upon his
release from prison, New Hampshire law does not require him to
register as a convicted sexual offender, and because his amended
sentence did not require participation in the sexual offender
10 program, prison officials may not even recommend that he
participate in that program.
Pratt is correct in asserting that his amended sentence
removed the requirement that he successfully complete the sexual
offender program as a prerequisite to parole eligibility. See
Exhibit C to defendants’ memorandum, Amended Sentence (document
n o . 139-5) (“The Sentencing Order dated November 2 1 , 2001 is
amended to delete the recommendation to the Department of
Corrections of the Sexual Offender Program [and] the deletion of
the requirement that completion of that program be a condition of
parole.”) Nevertheless, the sentencing court maintained the
requirement that Pratt meaningfully participate in any
programming or training recommended by the DOC. Id. (“The
defendant is to participate meaningfully and complete any
counseling, treatment and educational programs as directed by the
correctional authority or Probation/Parole Officer.”). Given the
circumstances surrounding his conviction and the record before
the court, there is no evidence that prison officials’
recommendation that he participate in the sexual offender program
was irrational or unreasonable in any way. Moreover, even though
staff recommended that Pratt participate in the program, he was
11 not forced to do s o , nor was he punished or deprived of any
protected liberty interests for having failed to do s o .
To the extent Pratt claims his due process rights were
violated because his refusal to participate in the sexual
offender program adversely affected his eligibility for parole,
or the prison unit in which he was housed, it is well established
that inmates do not have a protected liberty interest in parole,
classification status, or housing status. See, e.g., Wellington
v . Comm’r of Corrections, N o . 96-189-M (D.N.H. Dec. 3 0 , 1996)
(“First, it is clearly established that Wellington has no
constitutionally protected liberty interest in being paroled.
Under New Hampshire law, parole is a matter of discretion rather
than a matter of right. Neither the New Hampshire parole
statute, N.H. RSA 651-A, nor the regulations promulgated pursuant
to that statute mandate a prisoner’s release upon proof of
certain ascertainable facts.”) (citations and internal
punctuation omitted). See also Report and Recommendation at 26
n.7 (“Under federal and state law, Pratt has no protected liberty
interest in parole, or custodial classification. Nor does he
have a protected liberty interest in rehabilitative, vocational
or educational programs, or prison work assignments, jobs and
wages.”)(citations omitted).
12 Of course, as the Magistrate Judge recognized in his Report
and Recommendation, some courts have concluded that there are
certain circumstances under which inmates must be afforded due
process protections before a state labels them as “sexual
offenders” and compels them to participate in sexual offender
programs and/or register as sexual offenders. See id. at 29-32
(citing Chambers v . Colorado Dep’t of Corrections, 205 F.3d 1237
(10th Cir. 2000); Kirby v . Siegelman, 195 F.3d 1285 (11th Cir.
1999); Neal v . Shimoda, 131 F.3d 818 (9th Cir. 1997)). This is
not such a case.
First, as Pratt concedes, DOC officials offered to drop the
recommendation that he participate in the sexual offender program
i f , upon reevaluation by the program’s director, it was found
that he was unlikely to benefit from the program. Whatever due
process protections the State (through the DOC) owed to Pratt,
presumably the first was to subject him to a psychological
evaluation before determining whether he was an appropriate
candidate for the sexual offender program. The DOC offered to do
just that. Pratt refused. See Report and Recommendation at 3 2 .
Yet, at the same time, he maintains that his due process rights
were violated. Plainly, Pratt cannot refuse the process afforded
13 to him and, simultaneously pursue a claim that he has been denied
due process.1
In light of his response to the DOC’s proposal to subject
him to a second evaluation, it is difficult to discern the
precise nature of Pratt’s constitutional claim. He seems to
believe that, regardless of any deviant sexual predilections he
may have exhibited, because he was not convicted of a “sexual
offense,” the DOC could not, as a matter of law, recommend that
he participate in the sexual offender program. Accordingly, he
seems to believe that DOC officials were obligated to acquiesce
when he filed various request slips and grievances asking them to
remove that recommendation from his file. He has, however,
failed to point to any authority supportive of such a broad
proposition of law.
Unlike some of the cases in which courts have recognized
that inmates’ protected liberty interests may be implicated when
they are labeled as “sexual offenders,” Pratt’s refusal to
1 The record does not reveal what remedies were available to Pratt if he had submitted to the re-evaluation and was dissatisfied with the outcome. Presumably, the prison’s regulations governing inmate grievances would have allowed him to challenge such a decision and obtain a hearing on the matter. But, neither Pratt nor the defendants discuss that issue.
14 participate in the sexual offender program has not caused him to
lose any accrued good time credits. Nor has it rendered him
“completely ineligible for parole.” See Neal, 131 F.3d at 829
(“[B]ecause the State’s regulations render the inmate completely
ineligible for parole if the treatment program is not
satisfactorily completed, the attachment of the ‘sex offender’
label to the targeted inmate has a practical and inevitable
coercive effect on the inmate’s conduct.”) (emphasis in
original). Consequently, it is difficult to see precisely what
protected liberty interest was adversely affected by the DOC’s
program.
B. Qualified Immunity.
Even if the DOC did violate Pratt’s constitutionally
protected liberty interest(s) by recommending that he participate
in the sexual offender program without first affording him due
process protections, defendants would plainly be entitled to
qualified immunity.
What makes Pratt’s case somewhat unusual is that New
Hampshire law does not, by virtue of his underlying crime of
conviction, define him as a “sexual offender” or “offender
15 against children.” See RSA 651-B:1, III and V . If he had been
convicted of a crime that state law defines as a sexual offense,
he would, of course, have no due process claim.
[I]t is clear that [plaintiff] received all of the process to which he was due. [Plaintiff] was convicted after formal criminal proceedings of attempted rape, obviously a sex offense. Further, [plaintiff] had been previously convicted of rape in 1977 and rape and attempted sexual assault in 1979. An inmate who has been convicted of a sex crime in a prior adversarial setting, whether as the result of a bench trial, jury trial, or plea agreement, has received the minimum protections required by due process. Prison officials need do no more than notify such an inmate that he has been classified as a sex offender because of his prior conviction for a sex crime.
Neal, 131 F.3d at 831. Here, despite the fact that Pratt was not
convicted of a “sex crime,” the DOC has, based upon a review of
the circumstances related to his conviction, as well as an
evaluation of him, recommended that he participate in the sexual
offender program. Assuming, for the moment, that under those
circumstances an inmate is entitled to notice of the decision,
the reasons for that decision, and a hearing at which he might
present evidence to challenge that decision, Pratt’s entitlement
to those procedural protections were not so clearly and
unambiguously established as to preclude defendants from
obtaining qualified immunity.
16 A government official is entitled to qualified immunity from
personal liability if the challenged “‘conduct [did] not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Aversa v . United States,
99 F.3d 1200, 1214 (1st Cir. 1996) (quoting Harlow v . Fitzgerald,
457 U.S. 8 0 0 , 818 (1982)). The challenged conduct is measured by
a standard of objective reasonableness, that i s : “Could an
objectively reasonable official, situated similarly to the
defendant, have believed that his conduct did not violate the
plaintiff[’s] constitutional rights, in light of clearly
established law and the information possessed by the defendant at
the time of the allegedly wrongful conduct?” Wood v . Clemons, 89
F.3d 9 2 2 , 927 (1st Cir. 1996). And, as the Court of Appeals for
the First Circuit has observed,
To determine a defendant’s eligibility for qualified immunity, courts must define the right asserted by the plaintiff at an appropriate level of generality and ask whether, so characterized, that right was clearly established when the harm-inducing conduct allegedly took place. This does not mean that a right is clearly established only if there is precedent of considerable factual similarity. It does mean, however, that the law must have defined the right in a quite specific manner, and that the announcement of the rule establishing the right must have been unambiguous and widespread, such that the unlawfulness of particular conduct will be apparent ex ante to reasonable public officials. After all, qualified immunity for public officials serves important societal purposes, and it is
17 therefore meant to protect all but the plainly incompetent or those who knowingly violate the law.
Brady v . Dill, 187 F.3d 1 0 4 , 115-16 (1st Cir. 1999) (citations
and internal quotation marks omitted) (emphasis supplied).
Importantly, as suggested in Dill, a defendant does not lose
the protection of qualified immunity if he acts mistakenly, as
long as his mistake was objectively reasonable, as qualified
immunity is intended to protect “‘all but the plainly incompetent
or those who knowingly violate the law.’” Veilleux v . Perschau,
101 F.3d 1 , 3 (1st Cir. 1996) (quoting Malley v . Briggs, 475 U.S.
335, 341 (1986)). Here, even viewing the record in the light
most favorable to Pratt, it is impossible to conclude that, by
evaluating Pratt, reviewing the circumstances surrounding his
conviction, and recommending that he participate in the prison’s
sexual offender program, defendants were plainly incompetent or
knowingly violated his clearly established constitutional rights.
Stated somewhat differently, in order to prevail, Pratt must
demonstrate that he has a clearly established, constitutionally
protected right to a hearing (complete with the due process
protections identified in Sandin) before prison officials may
make a non-binding recommendation that he participate in the
18 sexual offender program (i.e., a recommendation that is not
linked to his eligibility for good time credits or the entirely
discretionary awarding of parole). The Ninth Circuit’s opinion
in Neal does not stand for that proposition, since the inmates in
that case were required to complete the sexual offender program
as a “precondition to parole eligibility.” Neal, 131 F.3d at
827. Nor does the Tenth Circuit’s opinion Chambers, since the
inmate was unable to earn some good time credits if he refused to
participate in recommended prison programming. Chambers, 205
F.3d at 1240.
Of the cases identified in the Report and Recommendation and
presumably (albeit implicitly) relied upon by Pratt, only Kirby
goes so far as to hold that an “inmate who has never been
convicted of a sex crime is entitled to due process before the
state declares him to be a sex offender.” 195 F.3d at 1292. The
Court of Appeals for the First Circuit has yet to reach such a
far-reaching decision, nor has this court’s own research revealed
any other federal circuit courts of appeals that have embraced
the full holding in Kirby.2
2 In fact, several courts have considered and rejected the reasoning embraced by the Kirby court. See, e.g., Grennier v . Frank, 2005 WL 2076432 (W.D. Wis. Aug. 2 5 , 2005) (“In Neal, the court acknowledged that a ruling in the inmates’ favor would
19 Consequently, even assuming Pratt was deprived of a
protected liberty interest when DOC officials recommended that he
participate in the sexual offender program (i.e., to the extent
that recommendation can be said to have “labeled” him a sex
offender), and even assuming he was denied adequate procedural
protections prior to that deprivation, those constitutional
rights were not, at the time, clearly established. Under those
circumstances, defendants would plainly be entitled to qualified
immunity. See, e.g., Williams v . Ballard, 466 F.3d 3 3 0 , 333 (5th
Cir. 2006) (“Even if we were to consider [Kirby and Chambers],
the district court correctly concluded they do little to render
[plaintiff’s] right clearly established: the prisoner in Chambers
lost accumulated good time credits when he refused to accept a
sex-offender classification while in prison, a liberty interest
different from that here, and in Kirby the court appears to have
found a due process violation on the basis of stigma alone,
not ‘guarantee parole or necessarily shorten their sentences by a single day,’ but concluded nevertheless that the inmates had a liberty interest in becoming eligible for parole consideration under the Hawaiian parole scheme at issue. Although the Court of Appeals for the Ninth Circuit was willing to hold that an inmate had a liberty interest in discretionary parole, the Court of Appeals for the Seventh Circuit is not.”); Talouzi v . O'Brien, 2006 WL 625292 at *7 (E.D. Ky. March 1 0 , 2006) (“This Court finds that there is no due process violation herein because there is no liberty interest with regard to the sex offender [classification].”).
20 contrary to our precedent. Consequently, even if consideration
of these cases made the number of cases sufficient, the lack of
consistency among their rules makes ‘the contours of the right’
not ‘sufficiently clear.’”) (citations omitted).
II. The Disciplinary Charges.
It i s , perhaps, appropriate to note at the outset that Pratt
frequently asserts that he was denied due process in disciplinary
proceedings in which he was exposed to the possible loss of
accrued good time credits. See, e.g., Objection to motion for
summary judgment (document n o . 146) at paras. 16 and 1 7 . But,
Pratt does not specifically allege, nor is there any evidence to
suggest, that he was ever actually deprived of any good time
credits. Even if he had been deprived of such credits, Pratt’s
proper remedy would be a petition for habeas corpus relief, not a
§ 1983 action. See generally Paladin v . Rivas, 05-cv-079-SM,
2007 DNH 122 (September 2 8 , 2007). See also Leamer v . Fauver,
288 F.3d 5 3 2 , 540 (3d Cir. 2002) (“There is only a narrow subset
of actions that arguably might properly be brought as either [a
habeas petition or claim under § 1983], that i s , where the
deprivation of rights is such that it necessarily impacts the
fact or length of detention. In a series of decisions, the
Supreme Court has made it clear that for those cases, the
21 narrower remedy, the habeas petition, is the only available
avenue of relief. [Edwards v . Balisok, 520 U.S. 641 (1997)] was
one of these decisions. In i t , the Court clarified that a
plaintiff cannot circumvent the overlap between habeas and § 1983
by raising an issue as an attack upon procedure rather than
substance, when resolution of the issue in his favor would
necessarily imply the invalidity of the sentence - the fact or
duration of detention.”)(footnote omitted).
As to Pratt’s remaining claims about the disciplinary
charges filed against him, there is no evidence in the record to
suggest that he was denied due process (e.g., notice, a hearing,
the opportunity to call witnesses, the opportunity to present
evidence, e t c . ) . Instead, his assault on those proceedings seems
to arise out of his disagreement with their final outcome. That
i s , Pratt feels he was wrongfully convicted of those charges
(those to which he did not plead guilty, anyway). See, e.g.,
Plaintiff’s objection to summary judgment (document n o . 146) at
para. 16 (explaining how Pratt’s version of the relevant facts
differs from those found to be true at his disciplinary hearing).
Of course, without more, mere disagreement with the outcome of
prison disciplinary proceedings does not give rise to a
22 constitutional claim. On that basis alone, defendants are
entitled to summary judgment.
Additionally, however, the penalties imposed upon Pratt were
not sufficiently severe to implicate any constitutionally
protected liberty interests. In his Report and Recommendation,
the Magistrate Judge concluded that Pratt set forth a viable
Fourteenth Amendment procedural due process claim “to the extent
he claims defendants’ actions resulted in the loss of accrued
good time credit.” Id. at 25-26. As noted above, however, such
a claim (to the extent Pratt even advances one) must be brought
in the context of a petition for habeas corpus relief; section
1983 is not the proper vehicle for advancing such claims.
The punishments that were actually imposed on Pratt for his
improper conduct involved the imposition of additional hours of
work duty and the loss of canteen and recreation privileges for a
few days. See Exhibits H (document n o . 139-10) and J (document
n o . 139-12) to defendants’ memorandum. Punishments of that sort
are not “atypical and significant hardship[s] on the inmate in
relation to the ordinary incidents of prison life.” Sandin v .
Conner, 515 U.S. 4 7 2 , 484 (1995). Consequently, as a matter of
law, Pratt has no § 1983 claim that defendants violated his
23 constitutionally protected due process rights during the course
of the disciplinary proceedings. See, e.g., Garland v . Horton,
129 Fed. Appx. 733, 734-735 (3d Cir. 2005) (“The Supreme Court
has recognized an inmate’s qualified right to call witnesses in a
disciplinary hearing, and has also stated that the
decisionmaker’s conclusion must be supported by at least ‘some
evidence.’ In a case such as this one, these due process
protections are not required unless the discipline at issue
imposes an ‘atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.’ Here,
[plaintiff’s] thirty-day placement in the RHU was not the sort of
hardship required to confer a cognizable liberty interest.”).
(citations and internal punctuation omitted); Harris v . Chabries,
114 Fed. Appx. 363, 365 (10th Cir. 2004) (“[A]s to his challenge
to the defendants’ inmate classification system, housing
assignments, and program assignments, [plaintiff] has failed to
allege ‘an atypical and significant hardship ... in relation to
the ordinary incidents of prison life’ that would trigger the
protections of the Due Process Clause.”) (citations omitted);
Serrano v . Francis, 345 F.3d 1071, 1078 (9th Cir. 2003)
(“Typically, administrative segregation in and of itself does not
implicate a protected liberty interest.”); Smith v . Roper, 12
Fed. Appx. 393, 396 (7th Cir. 2001) (“In light of Sandin, the
24 deprivations that [plaintiff] suffered as a result of the
disciplinary proceedings - namely, 22 days in segregation, a six-
month loss of privileges associated with his demotion to “C”
class, and six days without phone privileges - do not implicate a
liberty interest.”).
III. Retaliation Claims.
Defendants assert that there is no genuine dispute that all
disciplinary charges lodged against Pratt were based solely on
his improper behavior while in prison and were not motivated by
any desire to retaliate against him. The same is true, say
defendants, with respect to his transfer from Concord to Berlin.
Pratt’s objection is silent on the issue. He has not, for
example, attempted to point to evidence suggesting that
defendants were motivated by a retaliatory animus.
Because Pratt has not filed any affidavits, deposition
testimony, or other evidence that undermines defendants’
recitation of the relevant facts relating to his retaliation
claims, the court will take defendants’ statement of facts as
uncontested. See Local Rule 7.2(b)(2) (“All properly supported
material facts set forth in the moving party’s factual statement
shall be deemed admitted unless properly opposed by the adverse
25 party.”). Based upon those undisputed facts, defendants are
entitled to judgment as a matter of law as to the retaliation
claims identified by the Magistrate Judge in his Report and
Recommendation.3
IV. Denial of Adequate Medical Care.
In order to prove a section 1983 claim for medical
mistreatment, an inmate must show that prison officials
demonstrated “deliberate indifference to [his] serious medical
needs.” Estelle v . Gamble, 429 U.S. 9 7 , 106 (1976). This test
has both subjective (state-of-mind) and objective components.
See DesRosiers v . Moran, 949 F.2d 1 5 , 18 (1st Cir. 1991). In
Farmer v . Brennan, 511 U.S. 825 (1994), Justice Souter explained
the state-of-mind element of deliberate indifference in the
context of an Eighth Amendment claim. Id. at 834-847. A prison
official is liable “only if he knows that inmates face a
substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it.” Id. at 847.
3 Parenthetically, the court notes that, in his objection, Pratt says, “Plaintiff did not plead a claim for retaliation for the disciplinary charges stated in defendants’ Motion for Summary Judgment.” Plaintiff’s objection (document n o . 146) at 1 3 . Accordingly, although it is not entirely clear, it appears either that Pratt never intended to bring claims alleging unlawful retaliation relating to the disciplinary charges or that he has waived them.
26 Accordingly, an Eighth Amendment medical mistreatment claim
cannot be premised on a theory of simple negligence or medical
malpractice; a medical care provider’s conduct must go beyond
negligence in diagnosing or treating a prisoner’s medical
condition. Similarly, a constitutional violation does not occur
merely because a prisoner happens to disagree with a nurse’s or
physician’s decision regarding the proper course of medical
treatment. See Watson v . Caton, 984 F.2d 5 3 7 , 540 (1st Cir.
1993) (“The courts have consistently refused to create
constitutional claims out of disagreements between prisoners and
doctors about the proper course of a prisoner’s medical
treatment, or to conclude that simple medical malpractice rises
to the level of cruel and unusual punishment.”).
With regard to the objective component of the deliberate
indifference test, the inmate must show that he or she has
suffered a serious deprivation of a fundamental right or basic
human need. See DesRosiers, 949 F.2d at 1 8 . As the Supreme
Court has observed, the Constitution “does not mandate
comfortable prisons, and only those deprivations denying the
minimal civilized measure of life’s necessities are sufficiently
grave to form the basis of an Eighth Amendment violation.”
Wilson v . Seiter, 501 U.S. 2 9 4 , 298 (1991) (citation and internal
27 quotation marks omitted). See also Rhodes v . Chapman, 452 U.S.
337, 347 (1981) (“Conditions must not involve the wanton and
unnecessary infliction of pain, nor may they be grossly
disproportionate to the severity of the crime warranting
imprisonment. . . . But conditions that cannot be said to be
cruel and unusual under contemporary standards are not
unconstitutional. To the extent that such conditions are
restrictive and even harsh, they are part of the penalty that
criminal offenders pay for their offenses against society.”).
Here, the undisputed facts of record fail to support even
the claim that Pratt received negligent medical care. The record
certainly does not support Pratt’s assertion that defendants were
deliberately indifferent to his serious medical needs and, in so
doing, provided him with care that was so far below acceptable
norms as to be violative of the Eighth Amendment. See, e.g.,
Exhibit K to defendants’ memorandum, Affidavit of Nurse
Practitioner Judy Baker (document n o . 139-13) (detailing Pratt’s
medical care). In fact, Pratt himself concedes that, without a
medical expert (which he has not disclosed), “plaintiff cannot
meet his burden of proof.” Plaintiff’s objection (document n o .
146) at 6. Consequently, as to Pratt’s medical claims,
defendants are entitled to judgment as a matter of law.
28 V. Right to Privacy.
Finally, Pratt claims that Nurse Baker and D r . Eppolito
violated his constitutionally protected right to privacy.
Specifically, Pratt alleges that he filed a request for
tuberculosis and HIV tests, which he delivered in a sealed
envelope. According to Pratt, D r . Eppolito and/or Nurse Baker
responded to that request by using the normal prison mail system
- that i s , they did not use a sealed envelope. That, says Pratt,
means other inmates and/or corrections officers could have had
access to his personal and confidential medical information.
In allowing Pratt’s privacy claim to proceed, the Magistrate
Judge noted that, although Pratt had alleged the minimal facts
necessary to describe a viable claim, he failed to “even allege[]
that the correctional staff who received his medical information
actually read his files or did anything improper with the
contents.” Report and Recommendation at 40-41. Plainly, to
survive defendants’ motion for summary judgment, Pratt would need
to do more. But, Pratt’s objection does not address his right to
privacy claim nor does it respond to defendants’ assertion that
they are entitled to judgment as a matter of law. As a result,
Pratt has failed to point to any evidence suggesting that any
unauthorized third parties, whether DOC staff or other inmates,
29 actually saw his allegedly confidential submission to medical
staff. Absent such evidence, he cannot prevail on a claim that
defendants violated his constitutionally protected right to
privacy.
VI. State Common Law Claims.
Having resolved all of Pratt’s federal claims in favor of
defendants, the court declines to exercise supplemental
jurisdiction over his state law claims. See generally 28 U.S.C.
§ 1367(3). See also United Mine Workers v . Gibbs, 383 U.S. 715,
726 (1966); Camelio v . American Fed’n, 137 F.3d 666, 672 (1st
Cir. 1998); DePoutot v . Raffaelly, 2005 DNH 3 9 , 2005 WL 515853 at
*9-10 (D.N.H. March 3 , 2005).
Conclusion
For the foregoing reasons, as well as those set forth in
defendants’ memorandum and the accompanying exhibits, defendants’
motion for summary judgment (document n o . 139) is granted. The
Clerk of Court shall enter judgment in accordance with this order
and close the case.
30 SO ORDERED.
Steven J. McAuliffe -Chief Judge
November 7 , 2007
cc: Harvey Pratt, pro se Andrew B . Livernois, Esq. Nancy Smith, Esq. John Vinson, N.H. DOC