Reid v . Strafford County DOC 06-CV-182-SM 01/15/08 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Gordon C . Reid, Plaintiff
v. Civil N o . 06-cv-182-SM Opinion N o . 2008 DNH 008 Strafford County Department of Corrections; Superintendent Warren F. Dowaliby; Kevin Sullivan; Edward McGowen; Fred Serne; Adam Rivera; Jeffrey McPherson; and Fernando Serna, Defendants1
O R D E R
In April of 2005, pro se plaintiff, Gordon Reid, was
indicted by a federal grand jury on charges that he interfered
with commerce by means of threats or violence, in violation of 18
U.S.C. § 1951(a) (also known as the “Hobbs Act”). At all times
material to this action, Reid was held at the Strafford County
House of Corrections, as a federal pre-trial detainee. While
1 Parenthetically, the court notes that, in his amended complaint, Reid names as one of the defendants “Fred Serne.” See Amended complaint (document n o . 37) at para. 7 . The court’s docket, however, lists as defendants both “Fred Serne” and “Fernando Serna” - an individual not specifically named in Reid’s amended complaint. Defendants have added to the confusion by filing a motion to dismiss and/or for summary judgment on behalf of “corrections officer Serne” (document n o . 4 0 ) , as well as a motion for summary judgment on behalf of “disciplinary officer Fernando Serna” (document n o . 6 2 ) . It would, however, appear safe to assume that “Fred Serne” and “Fernando Serna” are the same person and the defendant’s actual name is Fernando Serna. there, it appears Reid quickly distinguished himself as a
combative, disruptive, and violent inmate. See, e.g., Affidavit
of Superintendent Warren Dowaliby (document n o . 12-2) (noting
that during his relatively brief detention at the jail, Reid
assaulted a corrections officer by throwing a chair at him,
attacked other inmates at various times, resisted and/or
interfered with a corrections officer, and, on one occasion,
stabbed another inmate in the face).
In his thirteen-count amended complaint (document n o . 3 7 ) ,
Reid advances both state and federal claims, asserting that
various defendants assaulted him; deprived him of
constitutionally adequate access to the courts; retaliated
against him for exercising his First Amendment rights; denied him
equal protection of the law; deprived him of due process;
subjected him to cruel and unusual conditions of confinement;
subjected him to involuntary servitude; and deprived him of his
constitutionally protected freedom of association. As
compensation for the many wrongs allegedly committed against him,
Reid seeks in excess of $6 million in damages.
Defendants have filed various motions for summary judgment
asserting that they are entitled to judgment as a matter of law
2 as to each of the claims advanced by Reid. In response, Reid has
remained silent; he has failed to file any objection, nor has he
sought additional time within which to respond. Accordingly, the
court will take as admitted the factual statements recited in
defendants’ motions, as supported by the attached affidavits and
exhibits. 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
party.”). See also McCrory v . Spigel, 260 F.3d 2 7 , 31 (1st Cir.
2001) (“Although we view the evidence in the light most favorable
to the nonmovant, as to any essential factual element of its
claim on which the nonmovant would bear the burden of proof at
trial, its failure to come forward with sufficient evidence to
generate a trialworthy issue warrants summary judgment to the
moving party.”) (citations and internal quotation marks omitted).
Discussion
Given the undisputed material facts of record, it is plain
that defendants are entitled to judgment as a matter of law as to
each of Reid’s claims. Among other things, the record
establishes that defendants did not deprive Reid of meaningful
access to the courts or his legal materials, nor did they prevent
him from having meaningful contact with his criminal counsel
3 (count o n e ) . It is also plain that defendant Dowaliby did not
violate Reid’s constitutionally protected right to equal
protection by allegedly maintaining a policy of “not hiring
federal pretrial detainees of African-American ancestry” (count
two). Nor did defendants deprive Reid of due process by placing
him into maximum security/disciplinary segregation at the times
about which Reid complains (count three).
As to Reid’s assertions that various defendants subjected
him to cruel and unusual forms of punishment by, for example,
refusing to turn off an overhead light in Reid’s cell at night,
operating loud machinery at times Reid found unpleasant, and by
stopping Reid from assaulting another inmate by using pepper
spray on him (counts four, five, eight, nine, and t e n ) , the
record demonstrates that Reid was not subjected to
unconstitutional conditions of confinement and, therefore,
defendants are entitled to judgment as a matter of law. The same
is true of Reid’s claims that defendants deprived him of due
process in the context of inmate disciplinary proceedings (count
seven) and by placing him in full restraints whenever he was
moved out of maximum security/disciplinary segregation (count
eleven). See, e.g., Affidavit of Superintendent Warren Dowaliby
(document n o . 59-3) at para. 1 5 .
4 Reid’s claim that defendants subjected him to “involuntary
servitude, thereby depriv[ing] him of due process” by forcing him
“to perform manual labor under penalty of sanctions,” (count six)
and his claim that defendants deprived him of his
constitutionally protected freedom of association by placing
limits on his access to the jail’s telephone and on the number of
personal letters he could mail each week (count twelve) are, in a
word, frivolous. They lack any legal merit or factual support.
Reid’s assertion that defendants unlawfully retaliated
against him, in violation of the First and Fourteenth Amendments,
by placing him in and/or keeping him in maximum security/
disciplinary segregation (count thirteen) is entirely unsupported
in the record. First, there is no indication that any of the
time Reid spent in maximum security/disciplinary segregation was
unwarranted. Moreover, there is no indication that defendants
placed (or maintained) Reid in heightened security in response
t o , or in retaliation for, his having engaged in some form of
protected activity.
Finally, to the extent Reid’s amended complaint advances
viable state law claims for assault and battery, the record
establishes that defendant McGowen’s use of pepper spray against
5 Reid to stop him from assaulting another inmate (count eight), as
well as defendant Rivera’s use of physical force against Reid in
his cell (count t e n ) , were not only privileged, but justified,
measured, and reasonable uses of force against a non-compliant
and violence-prone inmate. See Affidavit of Adam Rivera
(document n o . 58-3) at paras. 5-8 and attached Exhibit A ;
Affidavit of Edward McGowen (document n o . 60-3) at paras. 6-8.
Reid’s assertion that defendant Sullivan “assaulted” him by
directing Reid to a warm shower (rather than a cold shower) to
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Reid v . Strafford County DOC 06-CV-182-SM 01/15/08 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Gordon C . Reid, Plaintiff
v. Civil N o . 06-cv-182-SM Opinion N o . 2008 DNH 008 Strafford County Department of Corrections; Superintendent Warren F. Dowaliby; Kevin Sullivan; Edward McGowen; Fred Serne; Adam Rivera; Jeffrey McPherson; and Fernando Serna, Defendants1
O R D E R
In April of 2005, pro se plaintiff, Gordon Reid, was
indicted by a federal grand jury on charges that he interfered
with commerce by means of threats or violence, in violation of 18
U.S.C. § 1951(a) (also known as the “Hobbs Act”). At all times
material to this action, Reid was held at the Strafford County
House of Corrections, as a federal pre-trial detainee. While
1 Parenthetically, the court notes that, in his amended complaint, Reid names as one of the defendants “Fred Serne.” See Amended complaint (document n o . 37) at para. 7 . The court’s docket, however, lists as defendants both “Fred Serne” and “Fernando Serna” - an individual not specifically named in Reid’s amended complaint. Defendants have added to the confusion by filing a motion to dismiss and/or for summary judgment on behalf of “corrections officer Serne” (document n o . 4 0 ) , as well as a motion for summary judgment on behalf of “disciplinary officer Fernando Serna” (document n o . 6 2 ) . It would, however, appear safe to assume that “Fred Serne” and “Fernando Serna” are the same person and the defendant’s actual name is Fernando Serna. there, it appears Reid quickly distinguished himself as a
combative, disruptive, and violent inmate. See, e.g., Affidavit
of Superintendent Warren Dowaliby (document n o . 12-2) (noting
that during his relatively brief detention at the jail, Reid
assaulted a corrections officer by throwing a chair at him,
attacked other inmates at various times, resisted and/or
interfered with a corrections officer, and, on one occasion,
stabbed another inmate in the face).
In his thirteen-count amended complaint (document n o . 3 7 ) ,
Reid advances both state and federal claims, asserting that
various defendants assaulted him; deprived him of
constitutionally adequate access to the courts; retaliated
against him for exercising his First Amendment rights; denied him
equal protection of the law; deprived him of due process;
subjected him to cruel and unusual conditions of confinement;
subjected him to involuntary servitude; and deprived him of his
constitutionally protected freedom of association. As
compensation for the many wrongs allegedly committed against him,
Reid seeks in excess of $6 million in damages.
Defendants have filed various motions for summary judgment
asserting that they are entitled to judgment as a matter of law
2 as to each of the claims advanced by Reid. In response, Reid has
remained silent; he has failed to file any objection, nor has he
sought additional time within which to respond. Accordingly, the
court will take as admitted the factual statements recited in
defendants’ motions, as supported by the attached affidavits and
exhibits. 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
party.”). See also McCrory v . Spigel, 260 F.3d 2 7 , 31 (1st Cir.
2001) (“Although we view the evidence in the light most favorable
to the nonmovant, as to any essential factual element of its
claim on which the nonmovant would bear the burden of proof at
trial, its failure to come forward with sufficient evidence to
generate a trialworthy issue warrants summary judgment to the
moving party.”) (citations and internal quotation marks omitted).
Discussion
Given the undisputed material facts of record, it is plain
that defendants are entitled to judgment as a matter of law as to
each of Reid’s claims. Among other things, the record
establishes that defendants did not deprive Reid of meaningful
access to the courts or his legal materials, nor did they prevent
him from having meaningful contact with his criminal counsel
3 (count o n e ) . It is also plain that defendant Dowaliby did not
violate Reid’s constitutionally protected right to equal
protection by allegedly maintaining a policy of “not hiring
federal pretrial detainees of African-American ancestry” (count
two). Nor did defendants deprive Reid of due process by placing
him into maximum security/disciplinary segregation at the times
about which Reid complains (count three).
As to Reid’s assertions that various defendants subjected
him to cruel and unusual forms of punishment by, for example,
refusing to turn off an overhead light in Reid’s cell at night,
operating loud machinery at times Reid found unpleasant, and by
stopping Reid from assaulting another inmate by using pepper
spray on him (counts four, five, eight, nine, and t e n ) , the
record demonstrates that Reid was not subjected to
unconstitutional conditions of confinement and, therefore,
defendants are entitled to judgment as a matter of law. The same
is true of Reid’s claims that defendants deprived him of due
process in the context of inmate disciplinary proceedings (count
seven) and by placing him in full restraints whenever he was
moved out of maximum security/disciplinary segregation (count
eleven). See, e.g., Affidavit of Superintendent Warren Dowaliby
(document n o . 59-3) at para. 1 5 .
4 Reid’s claim that defendants subjected him to “involuntary
servitude, thereby depriv[ing] him of due process” by forcing him
“to perform manual labor under penalty of sanctions,” (count six)
and his claim that defendants deprived him of his
constitutionally protected freedom of association by placing
limits on his access to the jail’s telephone and on the number of
personal letters he could mail each week (count twelve) are, in a
word, frivolous. They lack any legal merit or factual support.
Reid’s assertion that defendants unlawfully retaliated
against him, in violation of the First and Fourteenth Amendments,
by placing him in and/or keeping him in maximum security/
disciplinary segregation (count thirteen) is entirely unsupported
in the record. First, there is no indication that any of the
time Reid spent in maximum security/disciplinary segregation was
unwarranted. Moreover, there is no indication that defendants
placed (or maintained) Reid in heightened security in response
t o , or in retaliation for, his having engaged in some form of
protected activity.
Finally, to the extent Reid’s amended complaint advances
viable state law claims for assault and battery, the record
establishes that defendant McGowen’s use of pepper spray against
5 Reid to stop him from assaulting another inmate (count eight), as
well as defendant Rivera’s use of physical force against Reid in
his cell (count t e n ) , were not only privileged, but justified,
measured, and reasonable uses of force against a non-compliant
and violence-prone inmate. See Affidavit of Adam Rivera
(document n o . 58-3) at paras. 5-8 and attached Exhibit A ;
Affidavit of Edward McGowen (document n o . 60-3) at paras. 6-8.
Reid’s assertion that defendant Sullivan “assaulted” him by
directing Reid to a warm shower (rather than a cold shower) to
remove pepper spray from his face and body (count nine) is
without legal or factual merit.
Conclusion
For the foregoing reasons, as well as those set forth in
defendants’ legal memoranda, defendants are entitled to judgment
as a matter of law as to each of the claims advanced by Reid.
Accordingly, the following motions are granted:
Motion to dismiss or for summary judgment filed by defendants Dowaliby, McPherson, Sullivan, McGowen, Serna, and Rivera (document n o . 4 0 ) ;
Motion for summary judgment filed by defendant Rivera (document n o . 5 8 ) ;
Motion for summary judgment filed by defendants Dowaliby, McPherson, and the Strafford County Department of Corrections (document n o . 5 9 ) ;
6 Motion for summary judgment filed by defendant McGowen (document n o . 6 0 ) ;
Motion for summary judgment filed by defendant Sullivan (document n o . 6 1 ) ; and
Motion for summary judgment filed by defendant Serna (document n o . 6 2 ) .
The proposed discovery plan submitted by defendants Serna,
Rivera, Dowaliby, McPherson, Sullivan, and McGowen (document n o .
49) is now unnecessary, and moot.
The Clerk of Court shall enter judgment in accordance with
this order and close the case.
SO ORDERED.
____________ Steven J. McAuliffe 'Chief Judge
January 1 5 , 2008
cc: Gordon C . Reid, pro se Corey M . Belebrow, Esq. Victoria S . Shin, Esq.