Hart v. Goulette et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kenneth Hannibal Hart
v. 	Civil No. 16-cv-028-PB
Ryan Goulette, Page Kimball,
Eric Barbaro, and Paul Cascio
REPORT AND RECOMMENDATION
Plaintiff Kenneth Hart, who appears pro se, is currently
incarcerated at the New Hampshire State Prison (“NHSP”). 	He
claims that NHSP Secure Psychiatric Unit (“SPU”) Lt. Paul
Cascio,1 Corrections Officer (“C.O.”) Ryan Goulette, Cpl. Page
Kimball, and Sgt. Eric Barbaro:
seized and/or did not return Hart’s legal work on
November 29, 2012, to retaliate against Hart for
exercising his First Amendment rights: (A) in
litigating a petition to terminate a guardianship over
his person . . .; and (B) in preparing a lawsuit
challenging [an] April 2012 tasering incident.
July 22, 2016 Report and Recommendation (Doc. No. 11), at 3,
approved by August 31, 2016 Order (Doc. No. 18). 	Before this
magistrate judge for a report and recommendation (“R&R”) is: (1)
an unopposed motion for summary judgment (Doc. No. 96) filed by
defendants Cascio, Goulette, Kimball, and Barbaro; and (2)
1Paul Cascio retired from the New Hampshire Department of
Corrections as a captain, but at the time of the events giving
rise to this suit, he was a lieutenant. 	See Cascio Decl. (Doc.
No. 96-3) ¶¶ 1-2. 	For convenience and consistency with the
record, the court refers to him as “Lt. Cascio.”
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defendant Dr. Linda DeLorey’s “Motion for Entry of Final
Judgment Pursuant to Rule 54(b)” (Doc. No. 95).2 	For the reasons
that follow, the district judge should grant defendants’ motion
for summary judgment and, as a consequence, the district judge
should deny, as moot, Dr. DeLorey’s Rule 54(b) motion.
I. 	Defendants’ Motion for Summary Judgment (Doc. No. 96)
A. 	Summary Judgment Standard
“The purpose of summary judgment is to enable a court ‘to
pierce the boilerplate of the pleadings and assay the parties’
proof in order to determine whether trial is actually
required.’” 	Fernández-Salicrup v. Figueroa-Sancha, 790 F.3d
312, 328 (1st Cir. 2015) (citations omitted). 	Summary judgment
is appropriate “where ‘the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’” 	Sepúlveda-Vargas v. Caribbean
Rests., LLC, 888 F.3d 549, 553 (1st Cir. 2018) (quoting Fed. R.
Civ. P. 56(a)). 	At summary judgment, “[a]n issue is ‘genuine’
if the evidence would enable a reasonable factfinder to decide
the issue in favor of either party.” 	Irobe v. U.S. Dep’t of
Agric., 890 F.3d 371, 377 (1st Cir. 2018). 	“A fact is
2All of the claims asserted against defendant Linda DeLorey
have been dismissed from this case. 	See Mar. 13, 2018 Order
(Doc. No. 94) (approving Feb. 23, 2018 R&R (Doc. No. 90)).
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‘material’ when its (non)existence could change a case’s
outcome.” 	Mu v. Omni Hotels Mgmt. Corp., 882 F.3d 1, 5 (1st
Cir. 2018). 	When ruling on a motion for summary judgment, the
court must “construe the record in the light most favorable to
the non-movant, resolving all reasonable inferences in that
party’s favor.” 	Sepúlveda-Vargas, 888 F.3d at 553.
B. 	Background3
At all times relevant to this matter, Hart was being held
in the SPU. 	On November 29, 2012, Hart was scheduled to appear
in court in the New Hampshire Circuit Court, Sixth Circuit,
Probate Division, in Concord, for a hearing on a petition he had
filed to terminate a guardianship over his person. 	Hart has
asserted that SPU officers had a motive to interfere with that
petition, as “[t]he issue before the [state] court concerned the
future authority of the S.P.U. officers over [him],” Compl.
(Doc. No. 1), at 9.
On November 29, 2012, C.O. Goulette and Cpl. Kimball went
to Hart’s cell to prepare him for transport. 	When the officers
went into Hart’s cell, they discovered unsanitary conditions,
including trash and open containers of urine. 	Barbaro Decl. ¶ 5
(Doc. 96-2); Goulette Decl. ¶ 6 (Doc. No. 96-4); Kimball Decl.
3Unless otherwise indicated, the facts recited in this
section are undisputed.
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¶ 6 (Doc. No. 96-5). 	Barbaro decided to move Hart to a
different cell. 	Barbaro Decl. (Doc. 96-2) ¶¶ 7-8. 	Hart was
handcuffed and moved into the corridor, and Hart’s old cell was
searched. 	Id. ¶¶ 5-6. 	The sheriff who had arrived to transport
Hart to court eventually cancelled the transport. 	See id. ¶ 6.
Goulette, Kimball, and Barbaro all describe the search of
Hart’s old cell in their declarations as having been conducted
by SPU staff. 	Kimball expressly denied participating in the
initial search and trash removal, as he stood with Hart outside
of the cell at that time. 	Kimball Decl. ¶ 7. 	Barbaro stated
that all of Hart’s authorized property, including his legal
material, was transferred from Hart’s old cell to his new one.
Barbaro Decl. ¶ 7. 	Goulette, Kimball, and Barbaro all expressly
denied looking at any of Hart’s legal material or taking any of
it from Hart’s cell. 	Barbaro Decl. ¶¶ 3, 9 (Doc. No. 96-2);
Goulette Decl. ¶¶ 3, 8 (Doc. No. 96-4); Kimball Decl. ¶¶ 3, 9.
In his verified complaint,4 plaintiff stated that, on
November 29, defendants Goulette, Kimball, and Barbaro seized
his legal material, and that Lt. Cascio ordered the seizure of
4A “verified complaint is ‘treated as the functional
equivalent of an affidavit to the extent that it satisfies the
standards explicated in Rule 56(e).’” 	Bersaw v. Northland Grp.,
No. 14-cv-128-JL, 2015 DNH 50, 2015 U.S. Dist. LEXIS 29790, at
*3 n.2, 2015 WL 1097402, at *1 n.2 (D.N.H. Mar. 11, 2005)
(quoting Sheinkopf v. Stone, 927 F.2d 1259, 1262 (1st Cir.
1991)).
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the legal material and then failed to give it back. 	See Compl.
(Doc. No. 1), at 8-9. 	Hart further alleged that while Hart was
holding a bag full of legal material, Barbaro snatched the bag,
told him that he would not be leaving the cell with his legal
material, but also told him that his legal material would be
returned to him once it was searched. 	Id. at 8. 	Hart asserted
that Goulette and Kimball also told him he would get his
property back. 	See id. 	Hart described the incident somewhat
differently in his deposition, testifying that he never saw any
of the defendants actually seize his legal materials. 	See Hart
Dep. 37:2-4 (Doc. No. 96-7, at 9). 	Cascio’s declaration states
that he “had no knowledge of any legal materials being seized
from Inmate Hart or from his cell on November 29, 2012.” 	Cascio
Decl. ¶ 3 (Doc. No. 96-3).
Hart alleged in the verified complaint that the officers
seized his legal material: (1) to prevent him from prevailing in
his pending litigation; (2) in retaliation for petitioning to
terminate his guardianship; and (3) in retaliation for preparing
a lawsuit arising out of an April 2012 tasering incident. 	See
Compl. (Doc. No. 1), at 9, 32. 	In his deposition, however, Hart
answered, “Yes,” when asked if, at the end of the day, it was
“your speculation,” that the taking of his legal work was a
retaliatory act. 	Hart Dep. 26:18-22 (Doc. No. 96-7, at 5).
Goulette and Kimball stated, in their declarations, that on
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November 29, they did not know which court Hart was being
transported to. 	Goulette Decl. ¶ 4 (Doc. No. 96-4); Kimball
Decl. ¶ 4 (Doc. No. 96-5). 	All four defendants have stated in
declarations, that on November 29, they did not know that Hart
had filed a petition to terminate his guardianship. 	Goulette
Decl. ¶¶ 3, 8 (Doc. No. 96-4); Kimball Decl. ¶¶ 3, 9 (Doc. No.
96-5); Barbaro ¶¶ 3, 9 (Doc. No. 96-2); Cascio Decl. ¶ 5 (Doc.
No. 96-3). 	Hart testified at his deposition that defendants
knew where he was going on November 29 because of the “transport
order.” 	Hart Dep. 59:17-23 (Doc. No. 96-7, at 16). 	When asked
whether Hart had information indicating that defendants knew why
he was going to court on that day, Hart answered that “[t]he
entire SPU staff knew I was petitioning to terminate the
guardianship . . . [t]hrough the psychiatrist and the social
worker.” 	Hart Dep. 60:3-6 (Doc. No. 96-7, at 17).
The verified complaint further alleges that in the days
after November 29, Hart prepared three pages of motions for
filing in his guardianship petition, which Lt. Cascio read.
Compl. (Doc. No. 1) ¶ 10, at 21. 	After Hart told Cascio that
the papers requested a continuance in a pending pro se court
case, Cascio refused Hart’s request for the return of the legal
property that had been taken from his cell, explaining that it
had been taken because it was “‘too much’” and a “‘fire
hazard.’” 	Id.
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As to Hart’s claim that the officers seized his legal
materials in retaliation for his preparing a lawsuit based on
the April 2012 tasering incident, Hart testified in his
deposition that he filed that lawsuit in 2015. 	See Hart Dep.
61:23 (Doc. No. 96-7, at 18). 	Hart’s verified complaint states
that his seized legal materials included a completed complaint,
naming Barbaro as one of the defendants, along with draft
discovery requests and exhibits relating to the April 2012
tasering incident. 	See Compl. (Doc. No. 1) ¶ 9, at 32. 	All
four defendant officers have asserted in their declarations,
however, that on November 29 they did not know that plaintiff
had prepared a lawsuit resulting from the April 2012 tasering
incident. 	See Goulette Decl. ¶¶ 3, 8 (Doc. No. 96-4); Kimball
Decl. ¶¶ 3, 9 (Doc. No. 96-5); Barbaro ¶¶ 3, 9 (Doc. No. 96-2);
Cascio Decl. ¶ 5 (Doc. No. 96-3).
C. 	First Amendment Retaliation Standard
“[I]n order to survive summary judgment on a retaliation
claim, a prisoner must make out a prima facie case by adducing
facts sufficient to show that he engaged in a protected
activity, that the state took an adverse action against him, and
that there is a causal link between the former and the latter.”
Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011). 	“[C]ourts
must insist that such claims are bound up in facts, not . . .
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speculation and surmise.” 	Id. 	Defendants argue that plaintiff
has failed to establish a prima facie case of retaliation based
on either his litigation of the petition to terminate the
guardianship or preparation of a case on the tasering incident.
1. 	Petition to Terminate Guardianship
Defendants argue that there is no evidence in the record to
establish the causation element of a retaliation claim. 	In this
regard, plaintiff points to the date of the alleged seizure of
those materials (i.e., the same day Hart was scheduled to be
transported to a hearing on his petition to terminate the
guardianship). 	To draw an inference of a causal link based on
temporal proximity, however, there must be proof that the
decision maker knew of the plaintiff’s protected conduct when he
or she decided to take the adverse action. 	See Pomales v.
Celulares Telefónica, Inc., 447 F.3d 79, 85 (1st Cir. 2006)
(Title VII employment discrimination case).
With respect to defendants’ knowledge that Hart had
petitioned to terminate his guardianship, the record includes:
(1) declarations from all four defendants in which they stated
that they did not know that Hart had filed a petition to
terminate his guardianship; (2) Hart’s deposition testimony that
all four defendants knew which court he was going to, because of
the transport order; (3) Hart’s deposition testimony that all
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four defendants knew why he was going to that court, “[t]hrough
the [SPU] psychiatrist and . . . social worker,” Hart Dep. 60:6
(Doc. 96-7, at 17); and (4) Hart’s allegations, in the verified
complaint, that on a date after the seizure of Hart’s legal
materials, Cascio denied Hart’s request to have his “legal
property” returned, after Cascio had read draft motions Hart
planned to file in the guardianship proceeding to obtain a
continuance or rescheduling of the November 29 hearing.
Plaintiff offers no evidence suggesting that any defendant
knew of the existence of petition to terminate the guardianship
at the time the officers are alleged to have seized his legal
materials. 	Although plaintiff points to the existence of the
transport order, the record lacks any evidence as to: (1) what
information is included in the transport order; and (2) whether
any of the four defendants in this case ever saw the transport
order. 	With respect to the psychiatrist and the social worker,
the record does not contain any evidence of what those
individuals may have said to any of the defendants about Hart’s
petition. 	If presented with the evidence in the record, no
reasonable jury could find that the defendants knew about Hart’s
petition to terminate his guardianship at the time of the
alleged seizure of his materials. 	See Irobe, 890 F.3d at 377.
As to Cascio’s alleged reading of motions that Hart planned
to file in his guardianship proceeding to continue the hearing
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he missed, Hart has not presented sufficient evidence regarding
the contents of those motions to allow a reasonable factfinder
to infer that Cascio knew of the pending petition to terminate
the guardianship, either at the time of the seizure of the legal
materials or, after reading the motions, when Hart has alleged
he refused Hart’s request to return his legal property. 	Even if
this court were to find that there is a genuine issue of fact as
to whether Cascio knew of the existence of the petition to
terminate the guardianship before refusing Hart’s request to
return his legal property, such evidence by itself would not
give rise to a triable issue of causality, particularly where
the “larger sequence of events” undercuts a claim of causation.
Soileau v. Guilford of Me., Inc., 105 F.3d 12, 16 (1st Cir.
1997). 	Hart alleges that Cascio said that the legal materials
had been seized because they were “too much” and presented a
“fire hazard”; such reasons would apply equally to a decision
not to return the materials. 	On the record before the court, no
reasonable jury could conclude that Hart’s legal materials were
seized and withheld in retaliation for Hart’s litigation of a
petition to terminate his guardianship. 	Accordingly, the
district judge should grant defendants’ motion for summary
judgment (Doc. No. 96) on the retaliation claim relating to the
petition to terminate Hart’s guardianship.
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2. 	April 2012 Tasering Lawsuit
Defendants further argue that plaintiff has not adduced
sufficient facts to establish the causation element as to his
claim that the seizure of legal materials was undertaken in
retaliation for his preparation of a lawsuit challenging the
April 2012 tasering incident. 	With respect to defendants’
knowledge of that lawsuit, the only evidence in the record is in
the officers’ declarations, in which each of them stated that he
did not know that plaintiff had prepared a lawsuit resulting
from the tasering incident. 	Although there are statements in
the verified complaint indicating that the seized legal
materials included a completed complaint, naming a number of
defendants, including Barbaro, concerning the tasering incident,
there is no evidence in the record that Barbaro or any other
defendant read any of the materials relating to that incident
that Hart alleges officers seized from his cell, or that they
were otherwise aware that Hart had prepared a complaint based on
the tasering incident. 	No reasonable jury could find, based on
the record presently before the court, that any of the four
defendants knew that plaintiff was preparing to file a lawsuit
concerning the tasering incident. 	Accordingly, defendants’
motion for summary judgment (Doc. No. 96) on the retaliation
claim relating to the tasering lawsuit should be granted.
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II. 	Motion for Judgment under Rule 54(b) (Doc. No. 95)
Defendant Dr. Linda DeLorey has moved, under Fed. R. Civ.
P. 54(b), for entry of judgment on the claims against her that
were resolved in her favor when her motion for summary judgment
was granted. 	See Mar. 13, 2018 Order (Doc. No. 94) (approving
Feb. 23, 2018 R&R (Doc. No. 90)). 	Rule 54(b) allows the court,
under certain circumstances, to “direct entry of a final
judgment as to one or more, but fewer than all, claims or
parties.” 	Fed. R. Civ. P. 54(b). 	“Rule 54(b) should be
employed with great circumspection, as “piecemeal appeals are
disfavored.” 	González Figueroa v. J.C. Penney P.R., Inc., 568
F.3d 313, 318 n.3 (1st Cir. 2009).
This R&R recommends that the district judge grant a summary
judgment motion as to all of the claims remaining in this
action. 	The district judge’s approval of this R&R, granting
that motion, would allow the clerk to enter judgment as to the
entire case, effectively mooting the Rule 54(b) motion.
Accordingly, in approving this R&R, the district judge should
deny Dr. DeLorey’s Rule 54(b) motion (Doc. No. 95) as moot.
Conclusion
For the reasons detailed above, the district judge should
grant defendants’ motion for summary judgment (Doc. No. 96),
direct the clerk to enter judgment, and deny, as moot, Dr. Linda
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DeLorey’s Rule 54(b) motion (Doc. No. 95). 	Any objection to
this report and recommendation must be filed within fourteen
days of receipt of this notice. 	See Fed. R. Civ. P. 72(b)(2).
The fourteen-day period may be extended upon motion. 	Failure to
file a specific written objection to this report and
recommendation within the specified time waives the right to
appeal the district court’s order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
August 7, 2018
cc: 	Kenneth H. Hart, pro se
Jonathan A. Lax, Esq.
Seth Michael Zoracki, Esq.
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