Rogers, Chas. v. Rockingham Cty.

• Court: District Court, D. New Hampshire
• Decided: September 8, 1998
• Docket: CV-96-560-SD
• Status: Published

Opinion

Rogers, Chas. v. Rockingham Cty. CV-96-560-SD 09/08/98 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Charles F . Rogers

v. Civil No. 96-560-SD

County of Rockingham; Rockingham County House of Corrections; Superintendent, Rockingham County House of Corrections; EMSA Correctional Care; Sandra Chapman, Senior Supervisor for EMSA Correctional Care; Heather Fleming; Joan Houghtaling

O R D E R

Plaintiff Charles Rogers brought this case under 42 U.S.C.

§ 1983 challenging the conditions of his confinement in the

Rockingham County House of Corrections. Currently before the

court is the Rockingham County defendants' motion for

reconsideration.

1. Rockingham County Defendants' Motion for Reconsideration

(document 92)

In an order dated July 23, 1998, this court denied

defendants' motion for summary judgment as to Count II (denial of exercise) because defendants offered no evidence of reasonable

exercise opportunities provided to plaintiff. Defendants have

now provided evidence that supports the inference that plaintiff

was provided reasonable exercise opportunities. Although

plaintiff was restricted from participating in the outdoor

exercise program for health reasons, indoor exercise equipment

was available to him. Thus plaintiff was not denied a reasonable

opportunity to exercise.

The court also denied defendants' motion for summary

judgment as to Count XIV (unconstitutional phone system) on the

ground that defendants had not asserted a valid penological

interest to justify restrictions on the use of the telephone.

Defendants have now submitted evidence supporting the inference

that the restrictions were necessary to prevent fraud by

prisoners using the jail telephone. First, inmates were

fraudulently billing calls to unconsenting third-party members of

the public. Allowing only collect calls solved this problem.

Second, inmates were using the telephone to harass members of the

public. An announcement at the commencement of a telephone call

that the call originates from a jail responds to this problem.

Although "'parties should not use [a rule 59 motion] to

raise arguments which could, and should, have been made before

judgment issued,'" Jorge Rivera Surillo & Co., Inc., v. Falconer

2 Glass Industries, Inc., 37 F.3d 25, 29 (1st Cir. 1994) (quoting

Federal Deposit Ins. Corp. v. World Univ., Inc., 978 F.2d 10, 16

(1st Cir. 1992)), the court is persuaded that summary judgment

should be granted on the two remaining claims against the

Rockingham County defendants.

2. The Private Defendants

Defendants EMSA Correctional Care, Joan Houghtaling, and

Sandra Chapman have not moved for summary judgment. The court,

however, notes that it has granted summary judgment in favor of

the Rockingham County defendants on plaintiff's section 1983

claim based on inadequate medical treatment. Thus it would

appear that summary judgment in favor of the private defendants

on the 1983 claim would likewise be appropriate. The court is

prepared to enter summary judgment sua sponte on this claim. See

Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) ("district

courts are widely acknowledged to possess the power to enter

summary judgments sua sponte"). Although the plaintiff has

already had the opportunity to come forth with his proof as to

this claim, in an abundance of caution, the court will grant the

plaintiff until September 28, 1998, to respond.

3 Conclusion

For the abovementioned reasons, the Rockingham County

defendants' motion for reconsideration (document 92) is granted.

The court modifies its earlier order on summary judgment, hereby

granting summary judgment on the two remaining claims against

the Rockingham County defendants. Plaintiff will have until

September 28, 1998, to oppose the entry of summary judgment in

favor of the private defendants on his section 1983 claim.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

September 8, 1998

cc: Charles F . Rogers, pro se Dyana J. Crahan, Esq. Cynthia L. Fallon, Esq.