Roy v. Stanley CV-02-555-JD 09/20/05 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Steven J. Roy
v. Civil No. 02-cv-555-JD Opinion No. 2005 DNH 131 Phil Stanley, et a l .
O R D E R
Steven J. Roy, who is incarcerated at the New Hampshire
State Prison, brings civil rights claims under 42 U.S.C. § 1983
against Phil Stanley, (former) Commissioner, New Hampshire
Department of Corrections; Jane Coplan, (former) Warden, New
Hampshire State Prison; Greg Crompton, Deputy Warden; and David
O'Brien and Neal Smith, New Hampshire State Prison Investigations
Department. Following preliminary review and approval of the
magistrate judge's report and recommendation, Roy maintains
claims of retaliation in violation of due process against
Crompton, denial of telephone access in violation of due process
against Crompton, Smith, and O'Brien, and a claim of supervisory
liability against Coplan and Stanley. The defendants move for
summary judgment, and Roy objects.
Standard of Review
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file. together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). The party seeking summary judgment must first demonstrate
the absence of a genuine issue of material fact in the record.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party
opposing a properly supported motion for summary judgment must
present competent evidence of record that shows a genuine issue
for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256 (1986). All reasonable inferences and all credibility issues
are resolved in favor of the nonmoving party. See i d . at 255.
Background
Before his incarceration, which began in 1993, Roy owned and
operated a company that developed and sold software for debt
collection agencies. After he was incarcerated, the company was
reorganized through bankruptcy proceedings and is being operated
and held in trust for Roy by Attorney Paul Heller. The company,
now known as Premier Software Systems, continues to operate, and
Roy holds a beneficial interest in the company.
The New Hampshire State Prison prohibits an inmate from
running a business during his incarceration. Deputy Warden
Crompton states that while inmates are not permitted to work for
2 compensation related to a business they acquired before their
incarceration, inmates are permitted to communicate with third
parties outside of the prison to the extent necessary to protect
the inmate's property or funds related to a legitimate business
or property interest. Roy states that after he was incarcerated
he "communicated heavily" with his company by telephone until
late in 1994 when the prison discovered his business activity and
began to interfere with his communications.
In 1995, in the course of investigating Roy for possession
of gambling materials, the prison seized some of Roy's business-
related papers, including computer printouts. The computer
printouts seized were actually debt collection software that the
prison mistakenly thought were related to gambling activities.
Roy brought suit in this court, alleging that prison officials
had violated his constitutional rights by seizing his papers.
While the case was pending, the prison imposed a restriction on
Roy that banned him from access to the prison's computers. In
response, Roy added a retaliation claim to his lawsuit. The
parties reached a settlement during trial. As part of the
settlement, the prison returned the computer printouts that had
been seized from Roy's cell and promised not to interfere with
Roy's communications with his company. The ban on Roy's use of
computers remained in place.
3 Warden Coplan reconsidered the computer ban in August of
2000 and decided to lift it. Roy then took several computer
courses in the prison. In September of 2001, Roy was given a job
in the prison law library helping other inmates use computers for
legal research. A few months later, in December of 2001, Roy was
terminated from that work without explanation. He was later told
he was dismissed for security reasons.
Roy filed a grievance in April of 2002 asking "to be removed
from the security blacklist that has prevented me from getting
any meaningful job in the prison." PI. Ex. 1. Deputy Warden
Crompton replied that Roy was restricted from computers. Roy
explained that he had taken computer classes and worked in the
library computer job without incident since the computer ban had
been lifted. Crompton replied: "Based on prosecutor statements
and incidents that you have engaged in in the past, you are
restricted from computers." Def. Ex. 10. The statements and
incidents Crompton refers to were the prison's mistaken belief
in 1995, before the settlement of Roy's first lawsuit, that
computer printouts in Roy's possession were related to gambling.
Roy continued to press the issue of his use of computers. On
October 17, 2002, Crompton responded that all of the issues were
resolved and that "[a]ny previous restrictions are lifted." Def.
Ex. 11. Roy immediately applied for a programming job in the
4 prison.
On October 28, 2002, a contractor conducting random
monitoring of inmates' telephone conversations heard Roy talking
with a customer of his former company about compensating Roy for
his work.1 She believed the conversation showed a violation of
the prohibition against running a business. She disconnected the
call and referred the matter to the prison Investigations
Department. An investigation of Roy's activities was begun. On
October 30, 2002, Supervisor O'Brien requested that the prison
suspend Roy's telephone privileges while the investigation was
pending. Crompton approved O'Brien's request and added a note:
"further, no access to Education or computers." Def. Ex. 12.
Roy filed this suit in December of 2002, alleging, among other
things, that he had been blacklisted from prison employment and
that his telephone use was unconstitutionally restricted.
In April of 2003, the prison concluded, based on the results
of the investigation, that Roy had violated the prohibition
against conducting a business. A formal charge was brought
against him, but because of procedural errors in processing the
disciplinary report, he was found not guilty. The prison
1Although Roy insists that the client's offer was merely charity unrelated to the business services Roy was providing, the court finds his interpretation of the conversation unpersuasive.
5 reinstated Roy's telephone privileges on a limited basis,
allowing communication with his family and his lawyer. He was
allowed to access the computers in the law library but his
computer access was otherwise restricted. Neil Smith testified
that the computer access restriction was maintained because
prison officials thought that Roy would use prison computers to
test his programming ideas for purposes of running his software
business.
Also in April of 2003, Roy applied and was hired for a
computer job in the prison's print shop. The next day, however,
the foreman of the print shop, Steven Carleton, wrote: "I was
just informed today that I cannot employ you." Pi. Ex. 13.
Several days later, Richard Davis, Print Shop Manager, wrote:
"According to what we have been told you have had problems in
other places you've worked doing illegal things on computers. We
simply cannot take a risk and also we've been told that you are
not to have any job connected to working on computers, by
administration." Pi. Ex. 17. Dennis Race, Director of the
Industries Program, responded to Roy's inquiry about the reasons
for the computer restrictions by stating that he had decided to
offer the job to someone else based on listed criteria and that
he had not considered any other reasons in denying Roy the job.
In June of 2003, the prison restored Roy's access to "stand
6 alone" computers. Crompton states that Roy was hired for a job
in the furniture shop in the North Yard but was then fired when
he was found to have brought contraband to the North Yard.
Crompton provides no dates or other evidence of that incident.
Roy explains that the incident occurred in May of 2005 and
characterizes his firing as an exaggerated response to a minor
infraction.
Roy states that he applied for vocational education in
computer assisted design in late 2003. The computer class was
held in the North Yard, and the instructor told him he could
attend the class. When he arrived for class on January 6, 2004,
he was refused entry to the North Yard. A job change form,
required to change assignment to the vocational educational
class, dated January 8, 2004, indicates that Roy's request was
denied because of "computer issues in the past." PI. Ex. 29. He
then attended classes outside of the North Yard. Roy states that
on January 15, 2004, an officer mistakenly thought he was
attending classes in the North Yard in violation of restrictions
imposed on him, and, as a result, he was "lugged" to the Special
Housing Unit. The writeup of the incident stated that Roy had
had computer issues in the past that were a security threat.
Following a disciplinary hearing on January 28, 2004, the
hearings officer dismissed the writeup. Shortly thereafter, Roy
7 was approved to attend classes in the North Yard, which he did,
beginning on February 11, 2004.
Roy states in his objection to summary judgment that he
learned in July of 2004 that his ongoing problems with access to
the North Yard and in gaining and maintaining employment or
education there were due to the anger of the administration and
Dennis Race about this lawsuit.2 He contends that the Furniture
Shop manager hired him in July of 2004 without being aware of the
"blacklist" against him. He further contends that the difficulty
he encountered in trying to get to the North Yard on his first
day of work and his subsequent termination were due to the
effects of the "blacklist." He also states that prison staff
continue to believe that he cannot be given computer access
because of some past illegal activities on computers. Roy
describes continued problems with access to the North Yard and in
maintaining employment there.
In the meantime, Roy's lawsuit proceeded in this court. He
sought a preliminary injunction to require the prison to lift the
telephone and computer restrictions on him, challenging the
prison's determination that he was running a business in
violation of prison rules. The magistrate judge held a hearing
2Roy has not alleged a claim of retaliation against him for exercising his First Amendment right of access to the courts. on January 10, 2003, with testimony from Roy and defendants
Crompton and Smith. The magistrate recommended that injunctive
relief be denied because Roy had not shown that he was likely to
succeed on the merits of his claims as telephone recordings cast
doubt on Roy's claim that he was not seeking payment for his
services. The court approved the magistrate judge's
recommendation.
Roy filed an amended complaint on May 1, 2003, and then
filed a motion for injunctive relief, contending new evidence
existed to support his claims. The magistrate judge again found
a lack of evidence to support Roy's claim that the telephone
restrictions burdened his constitutionally-protected activities.
With respect to the computer access ban, however, the magistrate
found that evidence existed to support Roy's retaliation claim.
In particular, the magistrate concluded that Richard Davis's
testimony that Dennis Race told the shop supervisors not to hire
Roy because of prior problems with computers was credible, while
Race's testimony to the contrary was not credible. The
magistrate also found that Crompton's testimony was not entirely
candid.3
3After reviewing the testimony of those witnesses, the court agrees with and adopts the magistrate's assessment of the testimony of Dennis Race and Gregory Crompton.
9 After hearing all of the testimony, the magistrate concluded
that, despite Crompton's testimony to the contrary, prison
officials had banned Roy from using computers. The magistrate
judge also concluded, however, that the defendants had stated
legitimate, non-retaliatory reasons for denying Roy access to
computers. He recommended that injunctive relief be denied, and
the court approved that recommendation. Roy's computer access
continues to be limited to "stand alone" computers that lack
Internet connection, and his telephone use is restricted to
communication with his family and his lawyer.
Discussion
Following the magistrate judge's review of Roy's amended
complaint and the court's approval of the recommendation that
only certain claims be served on the defendants, Roy brings three
claims against the defendants. In his first claim, he alleges
that Deputy Warden Crompton retaliated against him in violation
of due process by banning him from computer and telephone access
based on his possession of debt collection software, which the
prison had agreed he was entitled to have as part of the
settlement of his first lawsuit. Second, Roy alleges that
Crompton and Officers O'Brien and Smith are violating his right
to protect his business interests by restricting him from
10 telephone access to his former company. Third, he alleges that
Coplan and Stanley are liable for the constitutional violations
of the other defendants because of their actions or inaction as
supervisors. The defendants dispute Roy's claims and assert
qualified immunity.
A. Retaliation
Crompton contends that he did not retaliate against Roy by
restricting his access to prison computers and limiting his
telephone communications. "A prisoner alleging retaliation must
show (1) constitutionally protected conduct, (2) an adverse
action by prison officials sufficient to deter a person of
ordinary firmness from exercising his constitutional rights, and
(3) a causal link between the exercise of his constitutional
rights and the adverse action taken against him." Mitchell v.
Horn, 318 F.3d 523, 530 (3d Cir. 2003). If the prisoner proves
the three elements of retaliation, the defendants may avoid
liability by showing that they would have taken the same action
even in the absence of the prisoner's protected conduct. Centro
Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 10
(1st Cir. 2005); Bennett v. Goord, 343 F.3d 133, 137 (2d Cir.
2003) .
11 1. Computer ban.
Roy's constitutionally protected conduct was his possession
of computer printouts, which were copies of debt collection
software related to Roy's business. In the settlement of Roy's
1995 suit, the prison agreed that Roy was constitutionally
entitled to have the printouts in his possession. Since December
of 2001, Crompton has banned Roy from using computers or being in
the vicinity of computers based on the prison's original
disciplinary report, which mistakenly concluded that the
printouts were related to gambling activities.
Crompton did not know of the settlement of Roy's 1995
lawsuit in which the prison agreed that the printouts were not
contraband and agreed that Roy was entitled to have the
printouts. Instead, Crompton based his actions on the result of
the disciplinary proceeding that mistakenly found the printouts
were related to gambling. Because Crompton's decision to ban Roy
from computers was based on a mistake, there is no causal link
between Crompton's adverse action and Roy's protected conduct.
Alternatively, even if the record supported Roy's
retaliation claim, Crompton would be entitled to qualified
immunity. "Qualified immunity 'protects public officials from
civil liability insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
12 reasonable person would have known.'" Surprenant v. Rivas,
2005 WL 2178884, at *6 (1st Cir. Sept. 9, 2005) (quoting Cox v .
Hainev, 391 F.3d 25, 29 (1st Cir. 2004)). The First Circuit
evaluates qualified immunity in three stages. Torres-Rivera v.
Calderon-Serra, 412 F.3d 205, 214 (1st Cir. 2005). First, for
purposes of summary judgment, the court must determine whether
the facts as alleged and taken in the light most favorable to the
plaintiff "show the officer's conduct violated a constitutional
right." Torres-Rivera v. 0 'Neill-Cancel, 406 F.3d 43, 53 (1st
Cir. 2005). If so, the court next considers whether the
constitutional right asserted was clearly established at the time
of the alleged violation "such that a reasonable officer would be
on notice that his conduct was unlawful." I d . at 54 (internal
quotation marks omitted). If the asserted constitutional right
was clearly established, the court then decides "whether a
reasonable officer, similarly situated, would understand that the
challenged conduct violated the clearly established right at
issue."4 I d . (internal quotation marks omitted).
Based on the magistrate's preliminary review in this case,
Roy alleged a claim of unconstitutional retaliation. The
4The second and third stages are sometimes considered together. See Saucier v. Katz. 533 U.S. 194, 205 (2001); Burke v. Town of Walpole, 405 F.3d 66, 77 n.12 (1st Cir. 2005).
13 constitutional right Roy asserts, the right not to be subjected
to adverse action in retaliation for constitutionally protected
conduct, in that general sense, was clearly established in 2001
when Crompton first imposed the computer ban. See, e.g., Collins
v. Nuzzo, 244 F.3d 246, 251-52 (1st Cir. 2001). In a more
particular sense, however, a prisoner's right not to be subjected
to retaliation for possession of property that the prison has
agreed under a settlement of a prior lawsuit he is constitu
tionally entitled to have, is, at best, an obscure legal concept.
Even the law governing a prisoner's right to protect legitimate
property interests was far from clearly established at that time.
See King v. Fed. Bur, of Prisons, 415 F.3d 634, 636-37 (7th Cir.
2005); Rauso v. Vaughn, 2000 WL 873285, at *14 (E.D. Pa. June 26,
2000) .
At the third stage, the analysis turns from "abstract
principles to the specific facts of a given case." Burke v. Town
of Walpole, 405 F.3d 66, 86 (1st Cir. 2005). The court examines
the defendant's conduct in light of the circumstances that
confronted him to determine "whether it would be clear to a
reasonable [prison official] that his conduct was unlawful in the
situation he confronted." Groh v. Ramirez, 540 U.S. 551, 563
(2004) (internal quotation marks omitted). "[T]he doctrine of
qualified immunity provides a safe harbor for a wide range of
14 mistaken judgments." Hatch v. Dep't for Children, Youth & Their
Families, 274 F.3d 12, 19 (1st Cir. 2001). "An officer is
entitled to qualified immunity when his conduct is objectively
reasonable based on the information available at the time and in
light of clearly established law." Pena-Borrero v. Estremeda,
365 F .3d 7, 14 (1st Cir. 2004).
Crompton's imposition of the computer ban was based on his
mistaken belief that Roy had engaged in illegal computer
activities in the past, demonstrated by his possession of the
computer printouts that the prison mistakenly thought were
related to gambling. For reasons that remain unexplained,
Crompton did not know that the 1995 lawsuit had exonerated Roy of
illegal computer activities and that prison officials had agreed
that Roy was entitled to possess the printouts. Crompton's
conduct in imposing the ban based on his mistaken belief is
objectively reasonable. It would not be objectively reasonable,
however, for Crompton or anyone else at the prison to continue to
ban Roy's use of computers based on that mistaken belief.
2. Telephone use.
Roy's telephone use has been restricted to communications
with his family and his lawyer since October of 2002 when
monitoring revealed that he was conducting his business for
15 profit over the telephone. Inmates have no constitutional right
to conduct business in prison. French v. Butterworth, 614 F.2d
23, 24-25 (1st Cir. 1980). The New Hampshire State Prison
prohibits inmates from engaging in business activities. The
telephone restriction was imposed on Roy based on a perceived
violation of that rule. Therefore, Crompton did not impose that
limitation in retaliation for any constitutionally protected
conduct.
B. Violation of Right to Protect Business Interests
Roy contends that Crompton, O'Brien, and Smith, by
preventing his telephone communication with his company, are
depriving him of his right to preserve his beneficial interests
of the due process clause of the Fourteenth Amendment. Prisoners
do not have a constitutional right to use the telephone. United
States v. Footman, 215 F.3d 145, 155 (1st Cir. 2000). As noted
above, inmates have no constitutional right to operate or
maintain a business from prison. French, 614 F.2d at 24-25.
Inmates, however, may retain protected property interests in
assets that were legitimately acquired prior to their
incarceration. See King, 415 F.3d at 637. States also may
create certain liberty interests for inmates that are protected
by the due process clause, "[b]ut these interests will be
16 generally limited to freedom from restraint which . . . imposes
atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life." Sandin v. Conner, 515
U.S. 472, 484 (1995) .
To the extent Roy argues that he has a protected property
right in his business, he has not shown that the telephone
restriction has deprived him of that property. He has not shown
that the prison has prevented all communication with his
company.5 C f . King, 415 F.3d at 638 (noting complaint alleged
prison denied plaintiff's right to contact his broker). Further,
given Roy's appointment of an attorney to run his company through
a constructive trust, he has not shown that the restriction on
his telephone use has harmed his company to the extent of causing
a deprivation of property. See i d . at 637-38. Further, the
security issues pertaining to Roy's business activities,
identified by the defendants, justify the restrictions imposed on
his telephone use. See i d . at 638.
5Although he states in his affidavit that his mailed communications to the company have not been answered and that his certified mail "has vanished," he has not shown that the prison has imposed any restrictions on his mail. He surmises that the prison has discarded his mail to his company. Because the prison prohibits inmates from running businesses, Roy's mail may have run afoul of that regulation. Should problems with mail continue, Roy would be well advised to address the problem through the prison grievance process to ascertain whether his mail to his company has been intercepted and, if so, why.
17 Roy contends that the state created a liberty interest by
allowing him to communicate freely with his company and clients
over eight years and by promising not to interfere in his
communications with his company as part of the settlement of the
1995 lawsuit. Roy would be entitled to due process protection,
based on the asserted liberty interest in unfettered telephone
communication with his company, only if the current telephone
restriction "imposes atypical and significant hardship on [him]
in relation to the ordinary incidents of prison life." Sandin,
515 U.S. at 484.
Prisons legitimately impose a variety of restrictions on
inmates' use of telephones. See, e.g.. United States v. Lewis,
406 F.3d 11, 13 (1st Cir. 2005); Gildav v. Dubois, 124 F.3d 277,
293 (1st Cir. 1997); Spurlock v. Simmons, 88 F. Supp. 2d 1189,
1193 (D. Kan. 2000). The New Hampshire State Prison also
prohibits all inmates from running businesses. Nothing in the
record suggests that a triable issue remains as to whether the
restriction on Roy's telephone use is so atypical that it
violates due process.
18 C. Supervisory Liability6
Supervisors are liable under § 1983 for the unconstitutional
conduct of their subordinates when their "action or inaction is
affirmatively linked to that behavior in the sense that it could
be characterized as supervisory encouragement, condonation or
acquiescence or gross negligence amounting to deliberate
indifference." Wilson v. Town of Mendon, 294 F.3d 1, 6 (1st Cir.
2002) (internal quotation marks omitted). "To demonstrate
deliberate indifference a plaintiff must show (1) a grave risk of
harm, (2) the defendant's actual or constructive knowledge of
that risk, and (3) his failure to take easily available measures
to address the risk." Figueroa-Torres v. Toledo-Davila, 232 F.3d
270, 279 (1st Cir. 2000). Further, the plaintiff must show that
the supervisor's deliberate indifference was causally related to
the resulting harm. Camilo-Robles v. Zapata, 175 F.3d 41, 44
(1st Cir. 1999). A supervisor can be liable only if the
subordinate violated the plaintiff's constitutional right.
Wilson, 294 F.3d at 6.
The court has concluded that the record does not support a
6In his objection, Roy also asserts an official capacity claim against Defendants Stanley and Coplan. That claim was not alleged in the amended complaint, although he identified those parties as being sued in their individual and official capacities, and was not allowed in the magistrate's report and recommendation. Therefore, it is not considered here.
19 triable issue as to whether the subordinate defendants, Crompton,
O'Brien, and Smith, violated Roy's constitutional rights as he
alleges. In the absence of constitutional violations, there is
no basis for supervisory liability. Further, even if either of
the alleged violations had occurred, Roy has not shown the
necessary connection between Coplan or Stanley and the
subordinate's alleged violations.7
Despite the lack of a basis for supervisory liability, the
court is concerned about the shoddy prison supervision and
management this case has revealed. Two prison employees provided
testimony in this case that was not candid or credible,
apparently without being held accountable by their supervisors.
Further, the entire issue of the computer ban arises from a
mistake that could easily have been prevented if prison
supervisors had communicated with their successors and
subordinates about the settlement of Roy's first lawsuit. Prison
management and discipline should not be based on mistaken
assumptions, unfounded rumors, and gossip. To avoid continued
problems arising from the circumstances of this case, the prison
is put on notice that it must correct the disciplinary report on
Roy pertaining to his possession of computer printouts that were
7Although Roy documents that he sent grievances to Coplan and Stanley, the responses he received were from Crompton, rather than Coplan or Stanley.
20 mistaken for gambling activity and inform all prison staff of
that correction and the prison's obligations under the settlement
of Roy's first lawsuit.
Conclusion
For the foregoing reasons, the defendants' motion for
summary judgment (document no. 97) is granted. The defendants'
motion for leave to file corrections (document no. 110) is
granted. The plaintiff's motion for sanctions (document no. 112)
is denied. The defendants' motion to strike (document no. 115)
is terminated. The plaintiff's motion for leave (document no.
120) is granted. A copy of this order shall be sent to Stephen
J. Curry, Commissioner, New Hampshire Department of Corrections,
P.O. Box 1806, Concord, N.H. 03302-1806, and Bruce W. Cattell,
Warden, New Hampshire State Prison for Men, P.O. Box 14, Concord,
N.H. 03301-0014.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
Joseph A. DiClerico, Jr. United States District Judge
September 20, 2005 cc: Steven J. Roy, pro se Mary E. Maloney, Esquire Stephen J. Curry, Commissioner, NH DOC Bruce W. Cattell, Warden, NHSP