Rogers v. Rockingham County CV-96-560-SD 07/23/98 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
In this civil rights action, plaintiff claims his
constitutional rights were violated while he was detained in the
Rockingham County House of Corrections. Before the court is the
Rockingham County defendants' motion for summary judgment, to
which plaintiff objects, and plaintiff's motion for summary
judgment, to which defendants object.
In its order of April 30, 1998, this court denied the
Rockingham County defendants' motion for summary judgment, even
though plaintiff had not produced any evidence to support his
case. The court noted that "[a] party cannot rely on the
pleadings alone to oppose summary judgment, but must produce
properly supported evidence . . . to demonstrate a genuine
dispute for trial." Order of Apr. 30, 1998, at 2 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Nonetheless, the court temporarily denied summary judgment so the
pro se plaintiff would have a grace period for producing evidence
supporting his claims. The court warned plaintiff that after the
grace period had expired, "summary judgment will be granted for
every claim that plaintiff does not support with enough evidence
to demonstrate a triable issue of fact." Id. at 3.
The grace period has now expired, and plaintiff has produced
only minimal evidence, most of which relates to claims that have
already been dismissed by previous order. See Order of Jan. 7,
1997, at 6-7. Plaintiff has submitted his sworn affidavit, which
pertains, in most part, to the dismissed diet-related complaints,
see Plaintiff's Affidavit 5 6, and to the dismissed law library
access complaint, see Plaintiff's Affidavit 5 7. Next, Rogers
points to an entry in the medical records kept during his
confinement which confirms that plaintiff was ordered to "D block
as a medical lock-in, due to on-going non-compliance and threats
to his health." Defendants' Motion for Summary Judgment, Exhibit
1, at 3 (page numbered "-7-"). Plaintiff alleges this evidence
supports his claim that he was disciplined without due process of
law for eating french fries. However, that claim has already
been dismissed. See Order of Jan. 7, 1997, at 7.
Plaintiff has only submitted two pieces of evidence that
pertain to viable claims. First, paragraph 5 of plaintiff's
2 affidavit claims he was denied any opportunity to exercise during
his confinement. In Laaman v . Helqemoe, 437 F. Supp. 269, 309
(D.N.H. 1977) , the court said:
I have previously held that failure to provide physical exercise for an unreasonable period of time constitutes a threat to the well-being of the prisoners. It also exhibits a calloused indifference to the health needs of a captive population. It is, therefore, cruel and unusual punishment. . . . [T]he right to reasonable opportunities for exercise is fundamental.
Defendants respond with the affidavit of Gene Charron, who
claims that Rogers was prevented from participating in the
facility's outdoor exercise program for reasons of health.
Charron Affidavit at 3, 5 7 (attached to Defendants' Memorandum).
Nonetheless, inmates like Rogers, who for health reasons could
not participate in outdoor exercise programs, are entitled to
alternate reasonable opportunities to exercise, although they
need not be elaborate, as "[t]he Constitution does not demand
sophisticated athletic equipment." Laaman, supra, 437 F. Supp.
at 309. Defendants have submitted no evidence of any exercise
opportunities provided to inmates like Rogers who for reasons of
health were prevented from participating in the regular outdoor
program. Thus there remains a disputed issue of fact whether
Rogers' right to reasonable opportunities for exercise was
violated.
Next, Rogers' affidavit claims that limitations were imposed
on his right to use the telephone. The Supreme Court has
recognized that " [p]rison walls do not form a barrier separating
prison inmates from the protections of the Constitution." Turner 3 v. Saflev, 482 U.S. 78, 84 (1987). Accordingly, courts have held
that prisoners have a First Amendment right to use the telephone.
Owens-El v. Robinson, 442 F. Supp. 1368, 1386 (W.D. Pa. 1978)
("Inmates have a constitutional right, protected by the First
Amendment, to communicate with friends, relatives, attorneys, and
public officials by means of . . . telephone calls."); Johnson v.
Galli, 596 F. Supp. 135, 138 (D. Nev. 1984). On the other hand,
"courts are ill equipped to deal with the increasingly urgent
problems of prison administration and reform." Procunier v.
Martinez, 416 U.S. 396, 405 (1974). Factoring in the policy of
judicial restraint, the Supreme Court formulated a deferential
standard of review under which restrictions on a prisoner's
constitutional rights are valid if reasonably related to
legitimate penological interests. Turner, supra, 482 U.S. at 89.
Thus "[t]he particular formula for regulating telephone use
should be left to the sound discretion of jail officials, subject
to review by the district court to guard against unreasonable
restrictions." Feelev v. Sampson, 570 F.2d 364, 374 (1st Cir.
1978); Washington v . Reno, 35 F.3d 1093, 1100 (6th Cir. 1994);
Wolfish v. Levi, 573 F.2d 118, 126 (2d Cir. 1978) ("Although
pretrial detainees enjoy a first amendment right to communicate
by telephone with persons outside the prison, that right has
never been construed to mandate a special level of telephone
services. Accordingly, to require the [prison] to return to
court whenever it seeks to make any change, however minor, in its
telephone service, would place great strains on overburdened
4 federal judges and would, in essence, preempt the role of prison
officials. Disputes . . . would best be handled by the inmate
grievance procedure provided by the Bureau of Prisons, rather
than federal courts." (Footnote omitted.)).
Defendants have not asserted any penological interest to
justify the restrictions on Rogers' use of the telephone. This
court will not speculate as to whether such a penological
interest is in fact present. Thus there remains a disputed issue
of fact whether Rogers' First Amendment right to use the
telephone was infringed.
Aside from the exercise and telephone claims, the rest of
Rogers' claims are entirely unsupported by evidence. Rogers does
attempt to support his medical malpractice claims in paragraphs 4
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Rogers v. Rockingham County CV-96-560-SD 07/23/98 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
In this civil rights action, plaintiff claims his
constitutional rights were violated while he was detained in the
Rockingham County House of Corrections. Before the court is the
Rockingham County defendants' motion for summary judgment, to
which plaintiff objects, and plaintiff's motion for summary
judgment, to which defendants object.
In its order of April 30, 1998, this court denied the
Rockingham County defendants' motion for summary judgment, even
though plaintiff had not produced any evidence to support his
case. The court noted that "[a] party cannot rely on the
pleadings alone to oppose summary judgment, but must produce
properly supported evidence . . . to demonstrate a genuine
dispute for trial." Order of Apr. 30, 1998, at 2 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Nonetheless, the court temporarily denied summary judgment so the
pro se plaintiff would have a grace period for producing evidence
supporting his claims. The court warned plaintiff that after the
grace period had expired, "summary judgment will be granted for
every claim that plaintiff does not support with enough evidence
to demonstrate a triable issue of fact." Id. at 3.
The grace period has now expired, and plaintiff has produced
only minimal evidence, most of which relates to claims that have
already been dismissed by previous order. See Order of Jan. 7,
1997, at 6-7. Plaintiff has submitted his sworn affidavit, which
pertains, in most part, to the dismissed diet-related complaints,
see Plaintiff's Affidavit 5 6, and to the dismissed law library
access complaint, see Plaintiff's Affidavit 5 7. Next, Rogers
points to an entry in the medical records kept during his
confinement which confirms that plaintiff was ordered to "D block
as a medical lock-in, due to on-going non-compliance and threats
to his health." Defendants' Motion for Summary Judgment, Exhibit
1, at 3 (page numbered "-7-"). Plaintiff alleges this evidence
supports his claim that he was disciplined without due process of
law for eating french fries. However, that claim has already
been dismissed. See Order of Jan. 7, 1997, at 7.
Plaintiff has only submitted two pieces of evidence that
pertain to viable claims. First, paragraph 5 of plaintiff's
2 affidavit claims he was denied any opportunity to exercise during
his confinement. In Laaman v . Helqemoe, 437 F. Supp. 269, 309
(D.N.H. 1977) , the court said:
I have previously held that failure to provide physical exercise for an unreasonable period of time constitutes a threat to the well-being of the prisoners. It also exhibits a calloused indifference to the health needs of a captive population. It is, therefore, cruel and unusual punishment. . . . [T]he right to reasonable opportunities for exercise is fundamental.
Defendants respond with the affidavit of Gene Charron, who
claims that Rogers was prevented from participating in the
facility's outdoor exercise program for reasons of health.
Charron Affidavit at 3, 5 7 (attached to Defendants' Memorandum).
Nonetheless, inmates like Rogers, who for health reasons could
not participate in outdoor exercise programs, are entitled to
alternate reasonable opportunities to exercise, although they
need not be elaborate, as "[t]he Constitution does not demand
sophisticated athletic equipment." Laaman, supra, 437 F. Supp.
at 309. Defendants have submitted no evidence of any exercise
opportunities provided to inmates like Rogers who for reasons of
health were prevented from participating in the regular outdoor
program. Thus there remains a disputed issue of fact whether
Rogers' right to reasonable opportunities for exercise was
violated.
Next, Rogers' affidavit claims that limitations were imposed
on his right to use the telephone. The Supreme Court has
recognized that " [p]rison walls do not form a barrier separating
prison inmates from the protections of the Constitution." Turner 3 v. Saflev, 482 U.S. 78, 84 (1987). Accordingly, courts have held
that prisoners have a First Amendment right to use the telephone.
Owens-El v. Robinson, 442 F. Supp. 1368, 1386 (W.D. Pa. 1978)
("Inmates have a constitutional right, protected by the First
Amendment, to communicate with friends, relatives, attorneys, and
public officials by means of . . . telephone calls."); Johnson v.
Galli, 596 F. Supp. 135, 138 (D. Nev. 1984). On the other hand,
"courts are ill equipped to deal with the increasingly urgent
problems of prison administration and reform." Procunier v.
Martinez, 416 U.S. 396, 405 (1974). Factoring in the policy of
judicial restraint, the Supreme Court formulated a deferential
standard of review under which restrictions on a prisoner's
constitutional rights are valid if reasonably related to
legitimate penological interests. Turner, supra, 482 U.S. at 89.
Thus "[t]he particular formula for regulating telephone use
should be left to the sound discretion of jail officials, subject
to review by the district court to guard against unreasonable
restrictions." Feelev v. Sampson, 570 F.2d 364, 374 (1st Cir.
1978); Washington v . Reno, 35 F.3d 1093, 1100 (6th Cir. 1994);
Wolfish v. Levi, 573 F.2d 118, 126 (2d Cir. 1978) ("Although
pretrial detainees enjoy a first amendment right to communicate
by telephone with persons outside the prison, that right has
never been construed to mandate a special level of telephone
services. Accordingly, to require the [prison] to return to
court whenever it seeks to make any change, however minor, in its
telephone service, would place great strains on overburdened
4 federal judges and would, in essence, preempt the role of prison
officials. Disputes . . . would best be handled by the inmate
grievance procedure provided by the Bureau of Prisons, rather
than federal courts." (Footnote omitted.)).
Defendants have not asserted any penological interest to
justify the restrictions on Rogers' use of the telephone. This
court will not speculate as to whether such a penological
interest is in fact present. Thus there remains a disputed issue
of fact whether Rogers' First Amendment right to use the
telephone was infringed.
Aside from the exercise and telephone claims, the rest of
Rogers' claims are entirely unsupported by evidence. Rogers does
attempt to support his medical malpractice claims in paragraphs 4
and 8 of his affidavit. However, those statements are far too
vague and general to oppose summary judgment. See Lujan v.
National Wildlife Fed'n, 497 U.S. 871, 888 (1990) ("The object of
[Rule 5 6 (e)] is not to replace conclusory allegations of the
complaint or answer with conclusory allegations of an
affidavit."). None of Rogers' claims except the exercise and
telephone claims are supported by competent evidence, and summary
judgment is therefore appropriate on all other claims, except the
exercise and telephone claims.
The municipal defendants seek summary judgment on grounds
that Rogers has failed to "identify a municipal 'policy' or
'custom' that caused the plaintiff's injury." Board of County
Comm'rs v . Brown, ___ U.S. ___ , ___ , 117 S. Ct. 1382, 1388
5 (1997). To identify a policy, the plaintiff must point to an
"act by a decisionmaker with final authority in the relevant
area." Id. With respect to plaintiff's lack of exercise claim,
he swears by affidavit that he "wrote the Superintendent by
internal mail asking that the institution provide [appropriate
exercise]." Rogers' Affidavit 5 5. The court finds that the
superintendent retains the requisite authority in the area of
inmate exercise, and thus Rogers has satisfied his burden at this
stage of the litigation of identifying a municipal policy. With
respect to plaintiff's First Amendment claim, Charron admits in
his affidavit that the telephone restrictions of which Rogers
complains were pursuant to Rockingham County policy. See Charron
Affidavit 5 8 (attached to defendant's memorandum). In short,
this is not a case where Rogers is seeking to hold Rockingham
County liable simply for employing a tortfeasor.
Defendant Charron seeks summary judgment on the ground of
qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982), which held that "government officials performing
discretionary functions generally are shielded from liability for
civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known." The Court elaborated
further in Anderson v. Creighton, 483 U.S. 635, 640 (1987):
The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it 6 is to say that in the light of pre-existing law the unlawfulness must be apparent.
(Citation omitted.) In light of this district's decision in
Laaman, supra, 437 F. Supp. 269, a reasonable official would
understand that depriving Rogers of an opportunity to exercise
violated his clearly established constitutional rights.
Likewise, in light of the Court's opinion in Turner, supra, 482
U.S. at 84, the unlawfulness of unjustified restrictions on
Rogers' use of the telephone was apparent. In short, taking
plaintiff's allegations as true, Charron should have known that
his conduct violated Rogers' clearly established constitutional
rights. Qualified immunity is therefore inappropriate.
The court will now consider Rogers' motion for summary
judgment on his exercise claim in Count II. This is a close
call, because defendants have submitted practically no evidence
concerning the issue of reasonable exercise opportunities
provided to Rogers (except Charron's irrelevant claim that Rogers
was not denied exercise for punitive reasons). Nonetheless,
Rogers' evidence pertains to the denial of outdoor exercise, and
as long as inmates receive reasonable exercise opportunities, it
does not have to be outdoor exercise. Thus there remains a
disputed issue of fact whether Rogers was provided reasonable
exercise opportunities.
Conclusion
For the foregoing reasons, plaintiff's motion for summary
judgment (document 78) is denied. The Rockingham County 7 defendants' motion for summary judgment (document 49) is granted
as to Counts I, VII, VIII, IX, X, XI, XII, XIII, and is denied as
to Counts II and XIV.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
July 23, 1998
cc: Charles F . Rogers, pro se Dyana J. Crahan, Esq. Cynthia L. Fallon, Esq.