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Schoff v. Fitzpatrick

United States District Court, D. Maine

March 7, 2018

STEVEN R. SCHOFF, JR., Plaintiff
v.
JOSEPH FITZPATRICK, et al., Defendants

          RECOMMENDED DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND ORDER ON PLAINTIFF'S REQUEST FOR RULE 56(D) RELIEF AND MOTION TO STRIKE

          John C. Nivison, U.S. Magistrate Judge.

         In this action, Plaintiff Steven Schoff, Jr., an inmate in the custody of the Maine Department of Corrections, alleges Defendants illegally seized, opened, and reviewed his “privileged legal mail, ” deprived him access to the courts, and retaliated against him based on the information contained in his mail.

         The matter is before the Court on Defendants' Motion for Summary Judgment (ECF No. 26), Plaintiff's request for relief under Federal Rule of Civil Procedure 56(d) (ECF No. 39), and Plaintiff's Motion to Strike the Affidavit of Jennifer Ackerman (ECF No. 42). Through the summary judgment motion, certain defendants seek judgment on all claims, and some defendants ask the Court to enter judgment in their favor on all claims except Plaintiff's claim regarding the unlawful seizure and review of his outgoing legal mail.

         Plaintiff requests that the Court deny the motion in part based on the unavailability of facts needed to overcome the motion. Plaintiff also asks the Court to strike an affidavit filed by Defendants.[1]

         Following a review of the parties' submissions and the record, I deny Plaintiff's motion to strike and Plaintiff's request for Rule 56(d) relief, and recommend the Court grant in part and deny in part Defendant's motion for summary judgment.

         Background Facts

         The facts are derived from Defendants' statement of material facts (DSMF, ECF No. 27), affidavits cited in support of the statement (ECF Nos. 28, 49-2), Plaintiff's statement of disputed factual issues (PSDF, ECF No. 40), Plaintiff's affidavit in opposition to the summary judgment motion (Schoff Aff., ECF No. 40), and Plaintiff's complaint signed under penalty of perjury (Compl., ECF No. 1).[2]

         On February 2, 2016, Plaintiff, a prisoner at the Maine Correctional Center (MCC), was assaulted by another prisoner, Dale Gardner. (DSMF ¶ 1.) Defendant David Verrier, MCC's criminal investigator, conducted an investigation into the incident. (Id. ¶ 2.) As part of his investigation, Defendant Verrier reviewed recordings of Plaintiff's phone calls and learned that Plaintiff had obtained a news article from a person outside the facility regarding a criminal act committed by a person Plaintiff believed might be Mr. Gardner. (Id. ¶¶ 3 - 5.) On February 8, 2016, Defendant Verrier interviewed the person who sent the article to Plaintiff. (Id. ¶ 5.)

         On the same day, Defendant Verrier, accompanied by Defendant Penny Bailey, Unit Manager, met with Plaintiff to question him about the assault. (Id. ¶ 8.) Because Plaintiff was reluctant to discuss the events leading up to the assault with Defendant P. Bailey present, Defendant Verrier asked Plaintiff for a written statement regarding his history of conflict with Mr. Gardner. According to Defendant Verrier, he did not ask Plaintiff to send a statement to the district attorney, but rather asked Plaintiff to give him the statement. (Id. ¶ 9.) According to Plaintiff, Defendant Verrier told him to send his statement to the district attorney. (PSDF ¶¶ 1, 2.)[3]

         As a result of his interviews on February 8, Defendant Verrier directed MCC's Inner Perimeter Security (IPS) team to conduct surveillance of Plaintiff's mail. (DSMF ¶ 11.) On February 17, the IPS team intercepted a letter from Plaintiff to District Attorney Stephanie Anderson.[4] The letter contained the statement Defendant Verrier asked Plaintiff to prepare. (Id. ¶ 12.) Defendant Verrier reviewed the letter and evidently maintained custody of the letter until he met with the Deputy District Attorney Jennifer Ackerman approximately one month later.

         In the letter, Plaintiff described the circumstances under which he met Marc Miville, an individual he believed shared responsibility for the assault by Mr. Gardner. The letter included information of Plaintiff's involvement with Mr. Miville in the trafficking of drugs at the MCC in 2013. (DSMF ¶ 14.) Defendant Verrier gave a copy of the letter to Defendant Glean Brown, Deputy Warden of MCC. (DSMF ¶ 14.)

         On February 19, 2016, Defendant Luke Monahan, Unit Manager, was asked to attend a meeting with Defendants Brown and Verrier. At the meeting, Defendant Monahan learned of Plaintiff's letter to the district attorney regarding the drug trafficking activity, and was told the letter had been intercepted by the IPS team. (Id. ¶ 21.) Defendant Brown suggested that based on the letter, Plaintiff should receive a disciplinary write-up for trafficking. (Id. ¶ 22.) Defendant Monahan expressed concern as to whether they could use the information in the letter because it was included in Plaintiff's outgoing letter to the district attorney. (Id.) Defendants consulted an assistant attorney general, and were advised they could use the information in the letter for a disciplinary write-up for trafficking. (Id.) Defendant Brown then directed Defendant Monahan to prepare the disciplinary incident report. (Id.)[5]

         On February 19, 2016, while Defendant Harvey Bailey was filling in as the shift supervisor at MCC, Defendant Monahan submitted to him for review and approval a disciplinary incident report regarding Plaintiff. (Id. ¶ 23.) Under the relevant discipline policy, the staff person who prepares the disciplinary report must submit it to a supervisor within 72 hours of the incident; the shift supervisor must review the report to determine if the report clearly sets forth the incident and the disciplinary charge; and the shift supervisor must approve the report if the supervisor determines that a formal resolution of the charge is necessary. (Id. ¶ 24.) Defendant H. Bailey reviewed Defendant Monahan's report and approved the charge. (Id. ¶ 25.)

         In March 2016, Defendant Verrier met with Deputy District Attorney Ackerman, who eventually became the prosecuting attorney on the assault charge against Mr. Gardner. (Id. ¶ 15.) At the meeting, Defendant Verrier provided the letter that Plaintiff had attempted to mail to the district attorney. (Id. ¶¶ 16 - 17.) Following the meeting, the District Attorney's Office opened a file on Mr. Gardner. (Id. ¶ 18.)[6] According to Deputy District Attorney Ackerman, if her office had received the letter before a member of the office met with Defendant Verrier, because the office did not have an open file on Mr. Gardner at that time, the office would have forwarded the letter to Defendant Verrier for his investigative file. (Id. ¶ 18; Ackerman Aff. ¶ 5.) After investigating the matter, the District Attorney's Office determined there was insufficient evidence to charge Mr. Miville with assault; Deputy District Attorney Ackerman explained the decision to Plaintiff. (DSMF ¶ 19; Ackerman Aff. ¶ 6.) According to Deputy District Attorney Ackerman, Plaintiff's letter did not make a significant difference in the decision to prosecute Mr. Gardner because the District Attorney's Office obtained statements from two witnesses, and a copy of a video recording that showed Mr. Gardner striking Plaintiff with a hammer. (DSMF ¶ 20; Ackerman Aff. ¶ 7.)[7]

         Discussion

         A. Plaintiff's Motion to Strike

         Plaintiff contends the Court must strike Deputy District Attorney Ackerman's affidavit because he believes her assertion that she would have sent his letter to Defendant Verrier is not credible given that Plaintiff wrote in the letter that Defendant Verrier was “botching” the investigation. (Motion to Strike ¶ 3.) Plaintiff otherwise maintains that Deputy District Attorney Ackerman's assertions regarding what would have happened if the District Attorney's Office would have received the letter when Plaintiff mailed it are not relevant.

         Federal Rule of Civil Procedure 12(f) authorizes a court to strike “from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Motions to strike, however, are “disfavored in practice, and not calculated readily to invoke the court's discretion.” Boreri v. Fiat S.p.A., 763 F.2d 17, 23 (1st Cir. 1985). In the summary judgment context, in particular, a separate motion to strike a statement of fact is not allowed. See D. Me. Loc. R. 56(e).

         In this case, the challenged affidavit is not redundant, impertinent, or scandalous. Plaintiff has had the opportunity to respond to the factual assertions contained in the affidavit. The Court can assess the materiality of the affidavit and any other alleged deficiencies with the affidavit in its analysis of the motion for summary judgment. Accordingly, Plaintiff's motion to strike is denied.

         B. Plaintiff's Request for Rule 56(d) Relief

         As part of his response to Defendants' motion for summary judgment, Plaintiff asserts in conclusory fashion that “facts essential to justify opposition are unavailable.” (Response at 1, ECF No. 39.)

         When the nonmoving party at summary judgment believes the party has not had access to facts to respond to a motion for summary judgment, the party may ask the court to defer ruling on, or deny, the summary judgment motion until the nonmoving party obtains further discovery. Fed.R.Civ.P. 56(d). To obtain the relief provided by the Rule, the nonmoving party must show “by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” Id. The First Circuit has described the necessary showing, or proffer, and the standard of review, as follows:

[T]he proffer should be authoritative; it should be advanced in a timely manner; and it should explain why the party is unable currently to adduce the facts essential to opposing summary judgment.” If the reason the party cannot “adduce the facts essential to opposing summary judgment” is incomplete discovery, the party's explanation (i.e., the third requirement) should: (i) “show good cause for the failure to have discovered the facts sooner”; (ii) “set forth a plausible basis for believing that specific facts ... probably exist”; and (iii) “indicate how the emergent facts ... will influence the outcome of the pending summary judgment motion.” Thus, in a case involving incomplete discovery, the Rule 56(d) proffer requirements can be categorized as: “authoritativeness, timeliness, good cause, utility, and materiality.” “[T]hese requirements are not inflexible and .... one or more of the requirements may be relaxed, or even excused, to address the exigencies of a given case.” When all the requirements are satisfied, “a strong presumption arises in favor of relief.

In re PHC, Inc. S'holder Litig., 762 F.3d 138, 143 - 44 (1st Cir. 2014) (citations omitted) (quoting Resolution Trust Corp. v. N. Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir. 1994)).

         The discovery period closed on December 22, 2017. While Defendants filed their motion for summary judgment on September 26, 2017, three months before the close of the discovery, the Court granted two extensions to Plaintiff to respond to the motion, such that his response to the motion was due on December 29, 2017, after the close of the discovery period. (Orders, ECF Nos. 32, 35.) Plaintiff did not cite the inability to obtain discovery necessary to respond to the motion for summary judgment in either of his requests for more time to respond. (Motions, ECF Nos. 31, 33.) Instead, Plaintiff was concerned about his limited access to MCC's law library. (ECF No. 33.)

         Plaintiff has had more than sufficient time to conduct discovery in this matter. The Court is not persuaded that additional discovery is necessary for Plaintiff to respond to the summary judgment motions. In fact, Plaintiff argued in opposition to Defendants' substantive arguments (Response, ECF No. 39), and filed statement of disputed factual issues, with a supporting affidavit. (ECF No. 40.) Furthermore, Plaintiff has not identified the nature of the discovery he believes is necessary and how the ...


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