Stow v. Horan

• Court: Court of Appeals for the First Circuit
• Decided: September 27, 1994
• Docket: 94-1102
• Status: Published

Opinion

USCA1 Opinion

September 27, 1994    [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

No. 94-1102

                                   WESTON J. STOW,

                                Plaintiff, Appellant,

                                          v.

                                 DAVID HORAN, ET AL.,

                                Defendants, Appellees.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                            Selya and Cyr, Circuit Judges.
                                           ______________

                                 ____________________

            Weston J. Stow on brief pro se.
            ______________
            Jeffrey  R. Howard,  Attorney General,  and William  C.  McCallum,
            __________________                          _____________________
        Assistant Attorney General, on brief for Michael Cunningham appellee.
            David  Horan,  Assistant County  Attorney,  and  Peter  McDonough,
            ____________                                     ________________
        Assistant County Attorney, on  brief for David Horan and  James O'Mara
        and Hillsborough County.

____________________

____________________

Per  Curiam.   Appellant  Weston  Stow  appeals the
                      ___________

            district court's  grant  of summary  judgment  in  appellees'

            favor.  We affirm in part and remand for further proceedings.

                      I.  Background
                          __________

                      We   describe   the   facts  in   the   light  most

            advantageous  to  Stow.    See  Nereida-Gonzalez  v.  Tirado-
                                       ___  ________________      _______

            Delgado, 990 F.2d  701, 702  (1st Cir. 1993).   In  September
            _______

            1990, Stow, who was serving  a prison term in  Massachusetts,

            was transported to a  county jail in New Hampshire  under the

            Interstate  Agreement on  Detainers (IAD)  to stand  trial on

            charges pending against  him in  that state.1   He was  tried

            and  convicted on  those charges  in December  1990, and  was

            returned to  county jail  pending  sentencing.   On April  1,

            1991,  James O'Mara,  who  was superintendent  of the  county

            jail,  obtained Stow's  transfer to  the New  Hampshire State

            Prison  (NHSP).   In  a letter  to  an NHSP  official, O'Mara

            explained that  Stow was "facing the  longest sentence handed

            [down]  in the  history of  the Hillsborough  County Superior

            Court for a  non-murder case.   In addition,  inmate Stow  is

            involved in  civil litigation with the  former Superintendent

            [, which] presents a  minor problem.  If inmate  Stow were to

            be injured during  a forced  move, he could  allege that  the

____________________

            1.  The  IAD is  codified at  N.H.  Rev. Stat.  Ann. 606-A:1.
            State prisoners may  file section 1983 suits based on alleged
            violations of the IAD, as codified  in state law.  See Cuyler
                                                               ___ ______
            v. Adams, 449 U.S. 433, 442, 450 (1981). 
               _____

treatment  was a  result  of this  suit.   It  would be  most

            helpful if this situation  could be avoided."  Stow  was then

            transferred to  NHSP without  being given  prior notice  or a

            statement of reasons for his transfer.

                      On  May 3,  1991, a  New Hampshire  court sentenced

            Stow  to 40-80 years in  prison, to be  served consecutive to

            his Massachusetts sentence.  He then appealed his conviction.

            On  June 14, 1991, state prison officials told him to prepare

            for  his return to Massachusetts,  but later that  day he was

            told  that he  would not  be returned  to Massachusetts.   He

            discovered  subsequently that  county prosecutor  David Horan

            had instructed prison officials to keep him in New Hampshire.

            The asserted  ground for doing so was  apparently the state's

            concern that,  if Stow's  appeal were successful,  Stow would

            contest future  attempts to return  him to New  Hampshire for

            retrial  and seek  dismissal  of the  indictment against  him

            under the IAD.2  

                      In July and August,  Stow wrote to O'Mara, advising

            him that he was being illegally detained in New Hampshire and

            that it  was O'Mara's responsibility to  have him transported

            back to  Massachusetts after his  sentencing.  In  August and

            September,  Stow  submitted several  inmate request  slips to

____________________

            2.  Under what  is known as an  "anti-shuffling" provision, a
            prisoner may  obtain dismissal of the  indictment against him
            in a  receiving state if the  state has not tried  him on the
            charges  against  him before  returning  him  to the  sending
            state.  See N.H. Rev. Stat. Ann. 606-A:1, Art. IV(e).   
                    ___

                                         -3-

NHSP Warden Michael  Cunningham, requesting clarification  of

            his  situation, and stating that the county attorney had said

            that Cunningham was responsible  for preventing his return to

            Massachusetts.   

                      While these events were  unfolding, Stow filed  the

            present actions against O'Mara and Horan, seeking declaratory

            relief and compensatory and  punitive damages under 42 U.S.C.

              1983.3   His claims  were two-fold, relating  first to  the

            state's failure to return him to Massachusetts, and second to

            his transfer to NHSP from the county jail.  Stow alleged that

            Horan had  prevented Stow's  return to Massachusetts  in June

            1991,  thereby  violating Stow's  rights  under  the IAD  and

            various  provisions  of  the Federal  Constitution;  that  he

            should  have  been returned  to  Massachusetts  after he  was

            sentenced on May 3,  1991;4 and that O'Mara had  not returned

            him  to Massachusetts despite Stow's  requests that he do so.

            With  respect  to  his   second  claim,  Stow  asserted  that

            transferring  him to  NHSP "without notice,  without official

____________________

            3.  In  his  original  complaint against  Horan,  Stow sought
            injunctive  relief  as  well,  but  a consolidated  complaint
            omitted  that   claim.    Later,  the   court  denied  Stow's
            separately filed  motions for a  temporary restraining  order
            and a preliminary and permanent injunction.

4.  In his submissions below, Stow argues that he should have
            been returned either after his conviction in December 1990 or
            at  the  latest  after he  was  sentenced.    We confine  our
            description  of the facts and our analysis to the allegations
            in Stow's complaint.

                                         -4-

reason" in itself violated his rights and, moreover, occurred

            in  retaliation for his  filing of a  civil complaint against

            county jail  administrators and for suggesting  that he would

            file  additional complaints if certain alleged constitutional

            violations continued.  In  an amended complaint, Stow claimed

            that  a county  employee  had  told  him  that  he  had  been

            transferred  because he had filed the lawsuit.  What is more,

            Stow  averred that  he had  consistently queried  county jail

            authorities about  alleged  civil rights  violations  at  the

            jail,  and that  he had  done so most  intensely in  the time

            period immediately preceding his transfer.  Later, Stow added

            Cunningham  as a  defendant, seeking  declaratory  relief and

            damages.   Stow alleged that he had  informed Cunningham that

            he was being held at NHSP in violation of the IAD and that he

            wanted to  be returned to Massachusetts,  but that Cunningham

            had refused to act.  

                      Subsequently, the parties filed motions for summary

            judgment.5   The court granted Cunningham's motion.  It found

            that  Cunningham had  absolute  immunity  deriving  from  the

            common law immunity accorded wardens and others who carry out

            judicial orders,  pointing to  a state decision  denying Stow

            habeas relief on the basis of the alleged IAD violation.  See
                                                                      ___

            Stow v.  Horan, 829 F.  Supp. 504,  507 (D.N.H.  1993).   The
            ____     _____

____________________

            5.  Cunningham   filed  a   motion  to   dismiss,  which   he
            supplemented by  affidavit after the  district court directed
            the parties to submit summary judgment materials.

                                         -5-

court  also granted  summary judgment  for Horan  and O'Mara,

            determining  that  Horan  had  qualified  immunity6 and  that

            O'Mara  was protected  by qualified  immunity for  the period

            preceding the state habeas  decision and by absolute immunity

            for the subsequent period.  Concluding that New Hampshire law

            conferred  no pre-transfer  procedural  rights  on Stow,  the

            court  dismissed Stow's  claims relating  to his  transfer to

            NHSP.  

                      II.  Discussion
                           __________

                      A.  Alleged IAD Violations
                          ______________________

                      Stow claims  first that the court  erred in finding

            the defendants to  be immune  from suit.   Since we  conclude

            that all defendants were  protected by qualified immunity, we

            need  not address  the district  court's conclusions,  or the

            parties' arguments, anent absolute immunity.  

                      None  of  the cases  cited  by  Stow  held  that  a

            receiving state may  not keep  an IAD prisoner  in the  state

            pending resolution  of an appeal where the state is concerned

            that if it returns  the prisoner to the sending state and the

            appeal is  successful the prisoner could  obtain dismissal of

            the indictment against him  under the IAD.  To  be sure, some

            of  the case law supports the proposition that Stow could not

____________________

            6.  Because it  found that Horan had  qualified immunity, the
            court   declined  to  consider   Horan's  claim  of  absolute
            prosecutorial immunity.  On  appeal, Stow seems mistakenly to
            believe  that  the  court   found  that  Horan  had  absolute
            immunity, and much of his argument addresses that question.

                                         -6-

have obtained dismissal of the indictment  against him if the

            state had returned him to Massachusetts pending appeal.  See,
                                                                     ____

            e.g.,  Joubert v.  McKernan,  588 A.2d  748,  751 (Me.  1991)
            ____   _______     ________

            (denying  a  prisoner's  claim  that a  receiving  state  was

            required to retain custody over him pending resolution of his

            appeal); State v. Jefferson, 574 A.2d 918, 921-22  (Md. 1990)
                     _____    _________

            (denying  a prisoner's  claim  that the  receiving state  had

            violated the anti-shuffling provision of the IAD by returning

            him to the sending state pending his "de  novo" appeal of his

            conviction under state statute); Shanks v. Commonwealth,  574
                                             ______    ____________

            S.W.2d  688 (Ky. Ct.  App. 1978) (denying  a prisoner's claim

            that  the  receiving  state had  violated  the anti-shuffling

            provision  of the IAD by  returning him to  the sending state

            pending  his retrial  after a  mistrial and  analogizing that

            situation  to  returning  a  prisoner to  the  sending  state

            pending appeal of a conviction) (dictum).  Nonetheless, those

            cases do not proscribe  what the state did here,  or actually

            hold that an  IAD prisoner  has the unequivocal  right to  be

            returned  to  the sending  state pending  appeal.   Given the

            potentially  serious  consequences  of prematurely  returning

            Stow to Massachusetts  and the dearth of  precedent, we think

            it is clear that a reasonable state official could decline to

            rely   on  those  cases  --  all  of  which  are  from  other

            jurisdictions  --  in  determining  when to  return  Stow  to

            Massachusetts.  

-7-

Moreover, the IAD  itself does  not require  Stow's

            return to  Massachusetts after  his sentencing.   Instead, it

            requires only that a prisoner  be returned "[a]t the earliest

            practicable  time  consonant   with  the  purposes   of  this

            agreement."  See N.H. Rev. Stat. Ann. 606-A:1, Art. V(e).  On
                         ___

            its  face,  therefore,  the IAD  establishes  no  bright-line

            rules, but anticipates case-by-case evaluations about when it

            is possible to return an inmate to his sending state.  

                      Finally, we  note  that the  New Hampshire  Supreme

            Court  has recently  held  that the  state  may keep  an  IAD
                                                        ___

            prisoner  in the state pending resolution of his appeal where

            the state had legitimate  concerns that it might not  be able

            to  retry him  if his appeal  were successful.   See Cross v.
                                                             ___ _____

            Warden, 644 A.2d 542 (N.H. 1994).
            ______

                      Because appellees  violated none of  Stow's clearly

            established  rights  by  keeping  him in  the  state  pending

            resolution  of his appeal, they are protected from a suit for

            damages by  qualified immunity.    See Nereida-Gonzalez,  990
                                               ___ ________________

            F.2d at 704.   

                      B.  Stow's Transfer to NHSP
                          _______________________

                      Stow  accepts  the  district court's  determination

            that  New  Hampshire  law gave  him  no  right  to notice,  a

            statement of  reasons for his  transfer, or a  hearing before

            being  transferred   from  the  county  jail   to  the  NHSP.

            Nevertheless,  he asseverates  that  a  Massachusetts  prison

-8-

classification  regulation,  103 Code  Mass.  Regs.    420.04

            (1992) (stating  that the regulation applies  to "all inmates

            at state,  county and federal  correctional institutions  who

            are serving a sentence imposed by Massachusetts"), applied to

            him while he  was in New Hampshire because he was serving his

            Massachusetts  sentence while in that state.   He claims that

            that  regulation grants  him certain  pre-transfer procedural

            rights.   Even  if  Stow's argument  that the  classification

            regulation applied  to him is correct,7 it avails him naught:

            the regulation conferred no pre-transfer procedural rights on

            Stow.   Rather,  it  provides that  a classification  hearing

            "shall normally occur before an  inmate's transfer."  See id.
                                                                  ___ ___

               420.09(2)(a).   But  "transfer"  is defined  to  be either

            "[t]he act of moving an inmate from one correctional facility

            to  another correctional  facility within  Massachusetts upon
                                               ______  _____________

            approval  by  the  Commissioner   or  his  designee,"  or  an

            "inmate's movement to an out  of state or federal  facility."
                                     ___  __ _____

            Id.    420.06  (emphasis  supplied).   Furthermore, the  term
            ___

            "correctional facility"  is defined to mean  a "state, county

            or   contract   correctional   institution   located   within
                                                                   ______

            Massachusetts."   Id. (emphasis  supplied). Nowhere  does the
            _____________     ___

            regulation  confer  procedural  rights  on  inmates  who  are

____________________

            7.  We  do not  decide this  point, but  we note  that Stow's
            argument appears to  find support in Good v.  Commissioner of
                                                 ____     _______________
            Correction, 629 N.E.2d 1321, 1323-24 (Mass. 1994).
            __________

                                         -9-

transferred  intrastate from  one  correctional  facility  to

            another, neither of which is located in Massachusetts. 

                      Stow also argues that  the district court failed to

            consider   his  retaliatory   transfer  claim.     We  agree.

            Accordingly, we remand to the district court to consider that

            claim  under the relevant case  law.  See,  e.g., Ferranti v.
                                                  ___   ____  ________

            Moran, 618 F.2d 888,  891 (1st Cir. 1980); McDonald  v. Hall,
            _____                                      ________     ____

            610 F.2d 16, 18 (1st Cir. 1979).

                      C.  Discovery-Related Issues
                          ________________________

                      Stow also  claims that the district  court erred in

            ruling on certain discovery-related  matters.  First, he says

            that  the  court erred  in  granting  summary judgment  since

            discovery had not  been completed.   But he  did not  present

            this argument to  the district court --  indeed, he, himself,

            moved  for  brevis  disposition   --  and  the  argument  is,
                        ______

            therefore,  waived.  See e.g., Ouimette v. Moran, 942 F.2d 1,
                                 ___ ____  ________    _____

            12 (1st Cir. 1991).

                      Second,   Stow  says   that  the  court   erred  in

            sustaining O'Mara's objection to a request for the production

            of documents, thereby depriving Stow of evidence necessary to

            support his retaliatory transfer claim.  Stow asked O'Mara to

            provide copies of the following:

                 --  any   and/or  all  relevant  data,   such  as  other
                 inmates/pre-trial   detainees   charged  with   class  A
                 Felonies, admittance  sheets, records, etc.  which would
                 show   their  name,   type  of   charge  and   how  many
                 dis[c]iplinary   reports,   or  24   hr   lock-ups  they
                 rec[ei]ved from the periods of  Sept. 07, 1990 and April

-10-

01-1991 while being  housed at  the Hillsborough  County
                 jail.  [And]

                 -- any  and/or  all  relevant data,  such  as  would  be
                 necessary  to  show  which  pre-trial  detainees/inmates
                 housed at  the Hillsborough  county jail from  the [same
                 periods] were charged with class A Felonies and did  not
                 rec[ei]ve any  d-reports and/or 24 hr  lock-ups and were
                 transferred to the N.H.S.P.  Additionally, copies of any
                 transfer papers  and that  part of their  inmate records
                 which apply.

            O'Mara objected on the ground of burdensomeness, stating that

            the  requests  would  require  him  to  review  and  classify

            approximately 2,200 files and copy each file in its entirety.

            He pointed out, correctly,  that Stow had not offered  to pay

            for the  copying.  He also said that he would be reluctant to

            allow  Stow to review the files of other prisoners since they

            were  confidential.   We find  that the  lower court  did not

            abuse  its  discretion  in  sustaining  O'Mara's  objections,

            especially since Stow's  requests were  overbroad and  sought

            information irrelevant to his claim.  

                      Third, Stow claims that  the court erred in denying

            his  request to take into  account a set  of admissions under

            Fed.  R. Civ. P. 36, to which  O'Mara did not respond.  While

            such  admissions  are  appropriately  considered  on  summary

            judgment, see generally United  States v. Kasuboski, 834 F.2d
                      ___ _________ ______________    _________

            1345, 1350 (7th Cir. 1987); see also Talley v. United States,
                                        ___ ____ ______    _____________

            990  F.2d  695, 697  (1st  Cir.)  ("Under [Rule]  36(a),  the

            failure  to respond  to such  a request  is deemed  a binding

            admission, unless  the court later grants  leave under [Rule]

-11-

36(b) to withdraw the admission."), cert.  denied, 114 S. Ct.
                                                _____________

            190  (1993),  we  have  already  remanded Stow's  retaliatory

            transfer claim,  see supra, and  we assume that  the district
                             ___ _____

            court will consider  O'Mara's default admissions  on remand.8

            We  note,  however,  that  O'Mara  may  yet  move  to  permit

            withdrawal of the admissions.  See Fed. R. Civ. P. 36(b).  We
                                           ___

            intimate no opinion  on how the  district court should  treat

            such a motion if one is forthcoming.  

                      III.  Conclusion
                            __________

                      We need go  no further.   To the  extent that  Stow

            advances  other claims, none require comment.  It suffices to

            say that  we have considered  them all, and  summarily reject

            them.   We add only that his request for declaratory judgment

            is moot  because he has  been returned to  Massachusetts, see
                                                                      ___

            Preiser  v. Newkirk, 422 U.S. 395 (1975), and that the denial
            _______     _______

            of  his motion to file a further amended complaint was within

            the court's discretion, see Foman v. Davis, 371 U.S. 178, 182
                                    ___ _____    _____

            (1962)  (holding that  leave to  amend may  be denied  if the

            amendment would be futile).   Finally, the court did  not err

            in  declining to appoint counsel.  See Cookish v. Cunningham,
                                               ___ _______    __________

            787  F.2d 1, 2 (1st  Cir. 1986) (explaining  that an indigent

            litigant has no  constitutional right to  counsel in a  civil

____________________

            8.  For  clarity's sake,  we  note that  the  court need  not
            consider the default admissions relating to  O'Mara's alleged
            duty to return Stow to Massachusetts.  Given their ambiguity,
            the  admissions do not  alter our conclusion  that O'Mara has
            qualified immunity.  See Talley, 990 F.2d at 686.
                                 ___ ______

                                         -12-

case,  but  must  demonstrate  exceptional  circumstances  to

            justify the appointment of counsel).  

                      Affirmed   in  part   and   remanded  for   further
                      ___________________________________________________

            proceedings.
            ____________

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