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Anctil v. Fitzpatrick

United States District Court, D. Maine

December 13, 2018

STEVE ANCTIL, JR., Plaintiff
v.
JOSEPH FITZPATRICK, et al., Defendants

          RECOMMENDED DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          JOHN C. NIVISON, U.S. MAGISTRATE JUDGE

         In this action, Plaintiff alleges Defendant Troy Ross, the Deputy Warden at the Maine State Prison, failed to protect him from harm caused by other inmates, and that Defendant Joseph Fitzpatrick, the Commissioner of the Department of Corrections, and Defendants Rodney Bouffard and Randall Liberty, the former and current Wardens of the Maine State Prison, deprived him of his right to his legal mail. (Order Affirming Recommended Decision and Addressing Other Pending Motions, ECF No. 90.)

         The matter is before the Court on Defendants' Motion for Summary Judgment. (ECF No. 93.) Following a review of the summary judgment record, and after consideration of the relevant legal issues, I recommend the Court grant Defendants' motion for summary judgment.

         Procedural Background

         After Plaintiff filed this action on February 24, 2016, he amended the complaint on two occasions. (Complaint, ECF No. 1; Amended Complaint, ECF No. 18/24; Amended Complaint, ECF No. 31.) In his original complaint, Plaintiff asserted a claim based on a challenge to the grievance policy and grievance practices at the Maine State Prison. As explained in a recommended decision after a review of Plaintiff's complaint, Plaintiff did not allege an actionable claim. (Recommended Decision, ECF No. 9.)

         On April 6, 2016, Plaintiff moved to amend the complaint (Motion, ECF No. 16), and subsequently filed a proposed amended complaint. (Amended Complaint, ECF No. 18.) In his proposed amended complaint, Plaintiff named as defendants Joseph Fitzpatrick, Rodney Bouffard, Randall Liberty, Troy Ross, and Wendell Atkinson. The Court granted the motion to amend. (ECF No. 23.)

         Following a review of the amended complaint, I recommended the Court dismiss the claims asserted in the amended complaint, but that Plaintiff be afforded another opportunity to amend the complaint. (Recommended Decision, ECF No. 25.) On July 7, 2016, Plaintiff filed a second amended complaint, which pleading he dated and signed “under penalty of perjury.” (Second Amended Complaint, ECF No. 31.) In the second amended complaint, Plaintiff alleged facts related to each of the matters he had grieved. (ECF No. 31-1.)[1]

         On October 24, 2016, following a review of the second amended complaint, I determined the second amended complaint generated the following legal issues and claims: First Amendment (access to court, legal mail, retaliation, and access to newspapers), Fourth Amendment (monitored legal telephone calls), Eighth Amendment (failure to protect, failure to treat, unsanitary conditions, and noise), Fourteenth Amendment (failure to compensate for damaged or lost property and improper charges to prison account), and Challenge to Grievance Procedures (claims asserted against Defendant Atkinson, in his role as Grievance Review Officer). (Recommended Decision, ECF No. 36.) I recommended the Court dismiss all Plaintiff's claims except for his claim regarding the failure to protect against an assault and the related failure to train, which claim would proceed as a deliberate indifference claim against Defendant Ross. (Id. at 3 - 19.) As explained in the recommended decision, the claim concerns assaults that occurred between September and November, 2014:

Plaintiff alleges that in September 2014 he was relocated to “Charlie Pod” after notifying the pod officer that he believed he would not be safe in that pod. According to Plaintiff, the officer told him he would be moved after the officer placed “a phone call.” (Second Am. Compl., Statement of Claim, at 1, ECF No. 31-1.) A week later, Plaintiff was assaulted by an inmate in Charlie Pod with “two combination locks on a belt, and stabbed in the chest.” (Id.) Several days later, Plaintiff addressed his concerns “with staff.” (Id. at 2.) In October 2014, Defendant Atkinson “declined to investigate” and stated that Plaintiff should have presented the issue sooner. (Id.) In November 2014, Plaintiff was again assaulted by the same inmate. (Id.) In May 2015, Plaintiff informed Defendant Fitzpatrick that he was advised he would be stabbed again and in June 2015, Defendant Ross responded that Plaintiff's concerns “don't require further review, as [he] created [his] own issues.” (Id.)

(Recommended Decision at 36.)

         On January 20, 2017, Plaintiff filed a supplement to his pleadings, seeking leave to amend. The supplement consisted of 92 paragraphs related to events that occurred between April, 2016, and January, 2017, mostly related to mail. (Supplemental Pleading, ECF No. 46.) After a review of the supplemental pleadings, I recommended the Court permit Plaintiff to proceed solely on his failure to protect claim against Defendant Ross. (Recommended Decision, ECF No. 53.)

         The Court affirmed in part the recommended decision. The Court agreed that Plaintiff stated an actionable claim against Defendant Ross regarding an assault by another prisoner. The Court also determined that Plaintiff stated a claim “of inadequate access to the courts [based on] Defendants' alleged failure to properly handle the Plaintiff's incoming and outgoing legal mail pertaining to Plaintiff's efforts to challenge the conditions of his confinement.” (Order, ECF No. 68.) The Court therefore permitted Plaintiff to supplement his mail claim through the supplemental pleading. (Order at 6, 13 - 14.)

         On October 5, 2017, Defendant Ross moved to dismiss Plaintiff's claim. Defendant Ross argued the allegations do not permit a plausible inference that he was aware of or involved in matters related to Plaintiff's failure to protect claim, or that he had cause to believe there was a need for additional training. (ECF No. 70.) After Plaintiff filed a response to the motion, I recommended the Court deny the motion. (ECF No. 80.) The Court subsequently affirmed the recommended decision and denied Defendant Ross's motion to dismiss. (ECF No. 90.)

         On May 8, 2018, Defendants filed the pending motion for summary judgment and a supporting statement of material facts. (ECF Nos. 93, 94.) On May 29, 2018, Plaintiff asked the Court to stay the proceedings or to extend the time to for him to respond to Defendants' motion for summary judgment.[2] (ECF No. 98.) The Court denied the request for a stay, but extended the time for Plaintiff to file a response to the motion. (ECF No. 108.)

         Noting the deadline for Plaintiff's response had expired without the filing of a response, by order dated November 13, 2018, the Court advised Plaintiff that the Court intended to begin its review of and decide the motion. The Court also informed Plaintiff that if Plaintiff wanted to object to the motion, Plaintiff should file his response promptly. (Order, ECF No. 122.) The Court subsequently reiterated the Court's intention to review and decide the motion. (Order, ECF No. 125.) Plaintiff has not filed a response to the motion for summary judgment.

         Summary Judgment Record

         When presented with a summary judgment motion, a court ordinarily considers only the facts included in the parties' statements of material facts, which statements must be supported by citations to evidence of record. Federal Rule of Civil Procedure 56(c) and District of Maine Local Rule 56(b) - (d) require the specific citation to record evidence. In addition, Local Rule 56 establishes the manner by which parties must present their factual statements and the evidence on which the statements depend. A party's pro se status does not relieve the party of the obligation to comply with the court's procedural rules.[3]Ruiz Rivera v. Riley, 209 F.3d 24, 27 - 28 & n. 2 (1st Cir. 2000); Marcello v. Maine, 489 F.Supp.2d 70, 77 (D. Me. 2007).

         By rule, a party seeking summary judgment must file, in addition to its summary judgment motion, a supporting statement of material facts setting forth each fact in a separately numbered paragraph, with each factual statement followed by a citation to evidence of record that supports the factual statement. D. Me. Loc. R. 56(b). A party opposing a motion for summary judgment must file an opposing statement in which it admits, denies, or qualifies the moving party's statements by reference to each numbered paragraph, with citations to supporting evidence, and in which it may set forth additional facts, in separately numbered paragraphs, with citation to supporting evidence. D. Me. Loc. R. 56(c). If an additional statement is introduced by the non-moving party, the moving party must file a reply statement in which it admits, denies, or qualifies the non-moving party's additional statements by reference to each numbered paragraph, with citations to supporting evidence. D. Me. Loc. R. 56(d).

         “Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted.” D. Me. Loc. R. 56(f). Additionally, “[t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment.” Id. Finally, “[t]he court shall have no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of facts.” Id.

         Nevertheless, the factual assertions contained in the verified pleadings and affidavits filed by a pro se litigant generally will be considered in the review of a summary judgment motion. That is, where a pro se litigant has failed to comply strictly with the summary judgment rules, this Court has considered the sworn assertions of record. See Clarke v. Blais, 473 F.Supp.2d 124, 128 - 30 (D. Me. 2007) (“The First Circuit has not addressed this notice debate directly, but has said, in the summary judgment context, that unrepresented plaintiffs' opposing affidavits and opposition papers are to be read ‘liberally.'” (citing Posadas de Puerto Rico, Inc. v. Radin, 856 F.2d 399, 401 (1st Cir. 1988), and Mas Marques v. Digital Equip. Corp., 637 F.2d 24, 27 (1st Cir. 1980)); Demmons v. Tritch, 484 F.Supp.2d 177, 182 - 83 (D. Me. 2007).

         Background Facts [4]

         A. Failure to Protect

         On March 29, 2014, when Plaintiff was assigned to C-pod of the Close Unit at the Maine State Prison, Sgt. Kevin Cox observed that Plaintiff had a black eye. Plaintiff told Sgt. Cox the injury occurred accidentally during a basketball game. Plaintiff assured Sgt. Cox that there were no safety issues for him in the pod and that he got along with all the prisoners in the pod. (DSMF ¶ 16.)

         At the request of the medical department, Plaintiff was isolated until x-rays could be taken and it could be determined whether he had sustained an orbital fracture and whether he was safe in population. Plaintiff was placed on Emergency Observation Status in a cell in A-pod the same day. (Id. ¶ 17.) Plaintiff remained in A-pod until September 11, 2014, when he was transferred back to C-pod. (Id. ¶ 18.) Plaintiff asserts that he informed a pod officer that he believed he would not be safe in C-pod, but the officer placed him in C-pod after placing a phone call. (Second Am. Compl., Statement of Claim, at 1, ECF No. 31-1.) Plaintiff has not identified or described a specific threat.

         On September 18, 2014, Plaintiff's cellmate assaulted him without warning in the C-pod dayroom. A subsequent investigation revealed that the two prisoners were involved in an altercation in their cell the previous evening, as evidenced by a minor stab wound to Plaintiff's shoulder and what appeared to be a razor slash across the left side of the cellmate's face. (Id. ¶ 19.)

         Following a complaint from Plaintiff's mother, Dwight Fowles, the Intelligence/Fugitive Coordinator at the prison, was assigned to investigate the September 18, 2014 incident. (Id. ¶ 22.) When Mr. Fowles interviewed Plaintiff, Plaintiff complained of the conduct of one of the officers who was present and responded to the incident. He also complained about Unit Manager Antonio Mendez's decision to place Plaintiff in Close C-pod after Plaintiff had informed staff that he had previously been assaulted in Close C-pod. (Id. ¶ 23.)

         When Mr. Fowles asked Plaintiff if he had spoken directly to Unit Manager Antonio Mendez about his concern, Plaintiff reported he had only spoken with the pod officer. Plaintiff was unable to identify the officer with whom he spoke. Plaintiff also reported that the prisoner who had assaulted him previously was not in C-pod. Mr. Fowles also asked Plaintiff if he provided staff with the names of the prisoners with whom he believed would present a problem, he advised there were no such specific prisoners in the pod. (Id. ¶ 24.) Plaintiff also stated he had not had any problems after moving to the pod after the prior assault. He told Mr. Fowles that his cellmate initially did not want to live with him because the cellmate heard that Plaintiff had informed on some other prisoners. Plaintiff advised that he and his cellmate had worked things out, and that he did not report any problems to staff prior to the assault. (Id. ¶ 25.) Mr. Fowles asked Plaintiff if he had any idea he was going to be assaulted by his cellmate; Plaintiff reported the assault was a complete surprise. (Id. ¶ 26.)

         After the September incident, Plaintiff spent some time in the infirmary before being transferred to Close F-pod. Close Unit Manager Mendez entered a Level II “keep separate” notification on Plaintiff and the former cellmate in the prisoner database, which notification required that they be assigned to different pods. The former cellmate remained in Close C-pod. Prisoners in different pods within the Close Unit occasionally might interact with each other, particularly when prisoners are moved for meals, jobs and activities. (DSMF ¶ 20.) On November 4, 2014, Plaintiff and his former cellmate were involved in a fight in the hallway between Close C-pod and F-pod, but the report of this incident does not suggest that Plaintiff sustained an injury. (Id. ¶ 21.)

         In May 2015, Plaintiff reported that he was advised he would be stabbed again. According to Plaintiff, in June 2015, Defendant Ross responded that Plaintiff's concerns “don't require further review, as [he] created [his] own issues.” (Second Am. Compl., Statement of Claim, at 2.)

         In his capacity as Deputy Warden, Defendant Ross is not responsible for training security staff at the prison. Officers receive their initial training during a six-week course administered by the Maine Criminal Justice Academy, and additional training is provided informally on the job and formally by the Department's training staff. (Id. ¶ 27.) Defendant Ross was not involved in the decisions regarding Plaintiff's housing placements in 2014. Decisions about where to place prisoners within the Close Unit were made by the unit management team as led by the Unit Manager and the Shift Commander. At that time, Antonio Mendez was the Close Unit Manager and Capt. Kenneth Vigue was the Shift Commander.

         B. Legal mail claim

         1. Outgoing mail

         The Maine Department of Corrections maintains a policy for incoming and outgoing prisoner mail, Policy 20.1, Prisoner Mail. (Id. ¶ 1.) Prisoners in general population place outgoing mail in locked mail boxes located on the path to the dining facility. (Id. ¶ 2.) Prisoners in restricted housing (which includes housing in the Special Management Unit, Infirmary, Administrative Control Unit, and Structured Living Unit) deposit their outgoing mail in locked mail boxes in their unit. (Id. ¶ 3.) Mail room staff collect the boxes, usually by 10 a.m., bring them to the mail room, and process the mail. (Id.)

         Prisoners who do not have postage stamps or who must send an item by certified mail do not deposit their mail in the locked mail boxes. Because they must request the transfer of funds from their prison trust accounts to pay for postage, prisoners are required to attach a transfer request slip to the mail and give the slip and mail to a designated officer in their housing unit. The designated officer delivers the mail to the mail room, where mail room staff weigh the mail to determine the amount of postage required and send the transfer slips to the business office. Staff in the business office then debit the prisoner's account and return the transfer slip to the mail room. Mail room staff then affix the appropriate amount of postage. (Id. ¶ 4.) If a prisoner has no funds in his account, the business office will note this on the transfer slip, return the outgoing mail to the mail room, and the mail room will return it to the prisoner. (Id. ¶ 5.)

         Prisoners are provided free postage for two one-ounce letters per week. In addition, the Department will pay for outgoing “legal mail, ” if the prisoner has no funds to pay for postage. The processing of requests for free legal mail postage is the same as the transfer slip process. The business office determines whether the outgoing mail constitutes “legal mail” for which free postage is available. (Id. ¶ 6.)

         Other than on Saturdays, Sundays, and holidays, outgoing mail is ordinarily collected, processed, and delivered to the post office on the day it is deposited. Delays occasionally occur, such as when mail room staff are diverted to assist in a security incident, the facility is locked down, or the volume of mail is particularly high. In such instances, the mail is delivered to the post office the following weekday. (Id. ¶ 7.)

         2. Incoming mail

         Mail room staff process all incoming prisoner mail. (Id. ¶ 8.) Staff initially inspect the envelope for a legible return address. If the staff member inspecting the mail concludes the mail is not legal mail, he or she places the mail in a collection that will be opened and inspected for checks, money orders or contraband.[5] (Id. ¶¶ 8, 11.) If the staff member concludes the mail is legal mail, the mail is not to be opened in the mail room. (Id. ¶ 9.) Mail from an attorney, a court, an advocacy group like the ACLU, or an elected official is considered legal mail. If the return address is that of a state agency, unless the name of a particular individual appears in the return address, the mail is not considered legal mail. (Id.)

         If the mail is determined to be legal mail, the mail is delivered to the prisoner's housing unit, where the shift supervisor or another designated officer will call the prisoner to his or her office, and then open and inspect the mail in the prisoner's presence. The prisoner is then required to sign a log or receipt to reflect that the mail was opened in the prisoner's presence. (Id.)

         Non-legal mail is opened in the mail room using a machine that moves the envelopes along a conveyor and opens the envelopes. On occasion, a piece of legal mail will inadvertently be opened in the mail room. This can occur when two pieces of mail stick together and are run through the opening machine, when it cannot be determined from the return address on the envelope that it is legal mail, or from simple inadvertence when a large volume of mail is processed. (Id. ¶ 11.) When legal mail is accidentally opened in the mail room, a note is made on the envelope advising the prisoner of that fact. The mail room staff do not read the mail. (Id. ¶ 12.)

         Eric Wildes, the mail room supervisor at the Maine State Prison, is familiar with Plaintiff and has responded to some of his complaints about his legal mail. Mr. Wildes reports the following:

On April 24, 2015, Plaintiff complained about receiving a package from the Maine Human Rights Commission that was taped closed. There was no indication that the package had not been received in that condition or that the mail room had opened it and then taped it closed again.
On October 19, 2015, Plaintiff complained that a letter from the Maine Volunteer Lawyers' Project was opened outside of his presence. Inspection of the envelope showed that the return address (specifically the words “Lawyers' Project”) was partially obscured by a white bar code label that had been affixed to the envelope, so that the mail was not identifiable as legal mail.
On November 24, 2015, a letter from the state Office of Program Evaluation and Government Accountability was opened outside Plaintiff's presence. The mail room staff did not consider this legal mail, and it was later determined that mail from OPEGA would not be considered privileged unless the return address included the name of the director or one of the OPEGA committee members.
On December 14, 2015, Plaintiff claimed that unit staff removed a piece of his outgoing legal mail from the SMU mailbox. (There was no indication that the mail was opened or read or not brought to the mail room to be sent out.) Plaintiff was advised that the SMU mailbox is locked and only mail room staff have the key.
At one point, the mail room received a complaint from the local post office that a couple of its employees had sustained injuries as the result of staples being left in outgoing prisoner mail. This was the result of prisoners or staff stapling transfer slips to the envelopes rather than using tape or paper clips. Staff and prisoners were advised not to use staples on outgoing mail, or the mail would be returned. Despite this, Plaintiff persisted in using staples, and several pieces of outgoing mail were returned to him for this reason.
On April 3, 2016, a letter from Plaintiff to the United States District Court was returned as undeliverable. Mail room staff mistakenly opened the returned letter outside of Plaintiff's presence (but did not read the letter.) This was inadvertent.

(Id. ¶ 13.)

         Between the end of July 2016 and the end of December 2016, the business office approved payment of postage for eighty-four items of outgoing legal mail from Plaintiff. (Id. ¶ 14.) The business office does not keep a copy of a transfer slip if it is determined that the envelope does not contain legal mail and does not qualify for free postage. In such a case, the mail is simply returned to the prisoner. The business office, therefore, does not have a record of when it refused a request by Plaintiff to pay for postage. Plaintiff filed five grievances with the business office regarding the refusal to pay for postage for his outgoing mail. (Id. ¶ 15.)

         According to the database of the Litigation Division of the Office of the Attorney General, in addition to this case, Plaintiff is currently or has recently been the plaintiff, petitioner, or complainant in the following actions brought against the Maine Department of Corrections, its employees, or other state agencies:

Steve Anctil v. Jodie Breton, Public Access Officer, PORSC-CV-16-184 and AUGSC-CV-16-1178, Law Court Docket No. Ken-17-418
Steve Anctil v. Public Access Officer, PORSC-CV-16-122 and AUGSC-CV-16-143, Law Court Docket No. Ken-17-123
Steve Anctil v. Joseph Fitzpatrick, Public Access Officer, Kennebec Superior Court, AP-17-113
Steve Anctil v. Maine Dep't of Corr., Maine Human Rights Commission, PA-17-03423-A
Steve Anctil v. Maine State Prison, Rockland District Court, PA-217-53, Law Court Docket ...

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